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(145 N.E.)

her chickens were marked with insulated cion, and that it should be acted upon with wire; that at the time she sold the poultry and butter to plaintiff in error on March 4 he gave her a bill; that she took the bill home and placed it on a file. She produced the bill, and it showed a sale to plaintiff in error on March 4 of 350 pounds "mixed hens" at 20 cents a pound, and 60 pounds of butter at 50 cents a pound.

Both Madeja and Farina testified on behalf of plaintiff in error that the chickens delivered to them by Wigand the morning of March 5, 1924, were of many colors; that most of the chickens were white, but that there were many of other colors. Madeja testified that the white chickens taken from his place of business by Tong were not chickens that had been purchased from Wigand, but were white chickens which he had purchased from Arthur Boyer of Madison.

Mr. and Mrs. Fick testified, in substance, that plaintiff in error lived and conducted his business at their home, just outside the limits of Beecher; that plaintiff in error and Wigand ate supper with them about 5:30 p. m. on March 4; that Wigand left immediately in his automobile, and did not return to their house until about 6:30 o'clock the following morning; that they left shortly after supper and went to a party at the home of one of the neighbors; that they returned from the party | shortly after 11 o'clock and found plaintiff in error and their daughter, Amanda, listening to a radio program; that they listened to the program until about 1 o'clock, when they went to bed; that plaintiff in error did not go to bed until about 2 o'clock; that as he went by their bedroom door he spoke to them, and asked to be called at 6 o'clock that morning; that they arose shortly before 6 o'clock and called plaintiff in error; that he came downstairs and had breakfast with them; that the stairway was not carpeted, and they would have heard Wigand or plaintiff in error if they had used it during the night; that Wigand was not home when the rest of the family ate breakfast, and that they saw him drive into the barnyard in his automobile shortly after they had finished breakfast; that he came in and after he had eaten breakfast took the truckload of chickens to market; that their daughter, Amanda, married plaintiff in error April 18, 1924.

[1, 2] The conviction of plaintiff in error rests wholly upon the uncorroborated testimony of Henry Wigand. According to his testimony he was a willing accomplice. Many courts of high respectability question whether any conviction resting on the uncorroborated testimony of a person who confesses his guilt and accuses another should be sustained. This court, however, has adopted the prevailing view that convictions may be sustained on such testimony. In adopting the view, however, this court has always held that such testimony is liable to grave suspi

145 N.E.-45

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the utmost caution. If such tainted testimony were not so regarded, the life or liberty of the best citizen might be taken away on the accusation of the real culprit, made either to shield himself from punishment or to gratify his malice. Hoyt v. People, 140 Ill. 588, 30 N. E. 315, 16 L. R. A. 239, Campbell v. People, 159 Ill. 9, 42 N. E. 123, 50 Am. St. Rep. 134; Waters v. People, 172 Ill. 367, 50 N. E. 148; People v. Pattin, 290 Ill. 542, 125 N. E. 248. A conviction resting on such testimony will not be confirmed unless the record is free from substantial and prejudicial error.

[3, 4] Madeja and Farina were first called as witnesses for the prosecution, and later were called as witnesses for the defense. After they had given their testimony in chief for the defense, they were asked, on crossexamination by the state's attorney, whether they had not testified before the grand jury that all the chickens purchased by them from Wigand were white. They denied that they had so testified, and stated that they had testified before the grand jury that most of the chickens they had purchased from Wigand were white. In rebuttal the prosecution called a member of the grand jury, who testified that both witnesses told the grand jury that Wigand sold them white chickens, and that neither of them mentioned in their testimony that Wigand had sold them chickens of any other color. It was error to permit the prosecution to impeach these witnesses. There is no rule of evidence more firmly established than that a party cannot impeach a witness called by him by proving that the witness has on some other occasion made a statement different from the one he makes in court. Chicago City Railway Co. v. Gregory, 221 Ill. 591, 77 N. E. 1112, 6 Ann. Cas. 220; American Hoist & Derrick Co. v. Hall, 208 Ill. 597, 70 N. E. 581; Rockwood v. Poundstone, 38 Ill. 199; Richards v. State, 82 Wis. 172, 51 N. W. 652. This guaranty of credibility, if we may call it such, relates to the witness' general trustworthiness, and not to the correctness of specific statements of fact. The guaranty being of the continuing single quality of trustworthiness, it is inseparable and cannot be construed as existing for some statements and not for others. Therefore, if A calls a witness and obtains his testimony, and B afterwards calls him, A cannot impeach the credibility of the witness by proving that he has made statements out of court different from those made upon the witness stand, or by proving him to be of such general bad character as renders him unworthy of credit. 2 Wigmore on Evidence (2d Ed.) § 909; Ellicott v. Pearl, 10 Pet. 412, 9 L. Ed. 475;

Commonwealth v. Hudson, 11 Gray (Mass.) 64; Carlisle v. Norris, 215 N. Y. 400, 109 N. E. 564, Ann. Cas. 1917A, 429; Baltimore & Ohio Railroad Co. v. State, 41 Md.

268; Johnston v. Marriage, 74 Kan. 208, 86 [tified that on account of the fact that the P. 461, 87 P. 74. The testimony given by stairway was uncarpeted they would have Madeja and Farina as witnesses for plaintiff in error was important, and it was reversible error to permit these witnesses to be improperly impeached.

[5] The cross-examination of Mrs. Reaman concluded with this question: "Were either you or your husband ever tried for the crime of stealing chickens?" She had testified that she had delivered to plaintiff in error white Wyandotte chickens which were marked with celluloid bands on their legs. Tong claimed chickens found in the possession of Madeja, and based his claim on the fact that they were white Wyandotte chickens with celluloid bands on their legs. Mrs. Reaman's testimony accounted for Johnson's possession and sale to Madeja of chickens like those claimed by Tong. It was error to discredit her testimony by asking this insinuating and insulting question with no apparent purpose except to prejudice her with the jury. People v. Garines (No. 16177) 145 N. E. 699.

[6] The testimony of Bielfeld and Powers, to the effect that Johnson, while being interrogated in the county jail, had said that he did not know the party from whom he purchased chickens during the afternoon of March 4, was not proper evidence in chief. If he had denied making such statement to them while he was a witness in his own behalf their testimony would have been proper

in rebuttal, but he did not deny that he made the statement to them, and says that he did say to them that he did not know the name of the seller without consulting his duplicate bills.

[7] It was also error to examine Johnson at length on the collateral and immaterial subject of how many times he had been in court before.

[8] In addition to denying his guilt of the crime with which he was charged, plaintiff in error produced witnesses to prove his innocence by establishing an alibi. If the testimony of Mr. and Mrs. Fick is true, then the testimony of Wigand is false. Notwithstanding this, plaintiff in error was not given the full benefit of the testimony of Mr. and Mrs. Fick, because the court told the jury, in an instruction, that "to render the defense of an alibi available the evidence must cover the whole of the time of the commission of the alleged crime." This meant that there was no probative force to the testimony of these witnesses, and that their testimony was entitled to no consideration because they could not say that plaintiff in error was under their personal observation from 11 o'clock p. m. to 5 o'clock a. m. on the night in question. They did testify positively that plaintiff in error was at their home from about 11:30 o'clock p.m. to about 2 o'clock a. m., and that he was in his room at 6 o'clock a. m. They also tes

heard him if he had walked downstairs after 2 o'clock a. m., and had returned to his room upstairs before 6 a. m. He was entitled to the benefit of this testimony, notwithstanding the evidence did not cover the whole of the time of the commission of the burglary, and it was error to instruct the jury otherwise. Waters v. People, supra; People v. Fisher, 295 Ill. 250, 129 N. E. 196.

The judgment is reversed, and the cause is remanded to the circuit court of Will county for a new trial.

Reversed and remanded.

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5. Criminal law

528-Statement by defendant held incompetent against codefendant signing it as witness.

Statement to police officers by defendant, against codefendant, whose statement to them whether voluntary or not, held incompetent day before was excluded as obtained by violence and threats, though he signed second statement as witness; same influences being still operative.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

It is error to permit jury to take depositions, dying declarations, confessions, or other instruments of evidence, depending for their value on maker's credibility, to jury room for

6. Criminal law 858 (3)-Error to permit DUNN, J. In a street brawl about 1 jury to take depositions, confessions, etc., to o'clock in the morning of Sunday, September jury room. 23, 1923, Ernest Lundgren was killed by Herman Spranger. The latter and his brother, Theodore, were indicted for murder, and upon a trial Herman was found guilty of murder and Theodore of manslaughter. They were sentenced to imprisonment, Herman for 15 years, and Theodore until discharged according to law, and they have sued out a writ of error.

consideration. 7. Homicide

122-Principles of defense of

brother same as self-defense. Principles of defense of one's brother are same as those of self-defense.

9. Criminal law 789 (4)—Instruction not to deem facts proven unless proved beyond reasonable doubt held erroneous as to defensive circumstances.

Lundgren and the Sprangers were stran8. Homicide 146-Deliberate intent to kill gers, A few minutes before midnight on Satnot necessarily evidence of malice afore-urday night, Lundgren, who was a deputy thought, in view of right of self-defense. clerk in one of the branches of the municipal Though malice aforethought does not nec- court, with his friend Bill Nelson, went into essarily imply considerable time between malicious intent to kill and execution thereof, delib- the saloon of Joe Haber, in front of which erate intent to kill is not necessarily evidence he was killed a few minutes later, at the of malice aforethought, but may exist and be northeast corner of North avenue and Wood carried out without violating law, as in self- street, in the city of Chicago. He played a defense. game of pool with some person who was there and who went away after the game. Lundgren went to the bar. About a quarter after 12 the two Sprangers came in with four Lithuanian associates. According to the Sprangers the six had a drink of moonshine at the bar. Harry Gerdack, who is known as "Jeff," came into the saloon, and he and Lundgren played pool. When, they quit playing it was about closing time. They went to the bar. The testimony as to what took place in the saloon is vague. Gerdack testified that he heard something in a loud tone of voice, and that was Herman. does not say what he heard other than that. Instruction that no provocation by words Haber testified that after Lundgren and Geronly would reduce intentional killing to man- dack got through playing pool Lundgren slaughter held erroneous, in absence of evidence stepped up to the bar again and began talkof such provocation. ing with Gerdack and the pool players. Ha11. Criminal law 781 (2)—Instruction char- ber was in another corner, and when he came acterizing mere statement, admitting crim-back Herman was turning around to Lundinating circumstances, as "confession" erro- gren, and was talking about "ex-coppers." Herman had been on the police force. He Instruction characterizing mere statement, said he was an ex-copper, and was not afraid containing admission of criminating circum- of anybody; he could pinch anybody he wantstances, as "confession," which is acknowledged to. Haber continued that he saw that ment of participation in crime and admission Herman was looking for an argument, and of guilt, is error.

As facts tending to prove innocence need not be proved beyond reasonable doubt, instruction defining circumstantial evidence as proof of facts and circumstances tending to prove guilt or innocence, and cautioning jury not to consider facts as proven, unless proven beyond reasonable doubt, was erroneous. 10. Homicide 309 (3)-Instruction that provocation by words only would not reduce killing to manslaughter held erroneous as ab

stract.

neous.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Confession.]

He

he went from behind the bar and said, "Herman, no look for trouble in my place; it is close to closing time, and go home." closed the saloon about five minutes of 1.

He

Error to Criminal Court, Cook County; Herman and his brother went out first, then Walter P. Steffen, Judge.

Herman Spranger and Theodore Spranger were convicted of murder and manslaughter, respectively, and bring error. Reversed and remanded.

the four Lithuanians, and Lundgren, Nelson, and Gerdack after them. Lundgren had a machine-a small closed car-standing in the street in front of the saloon, next to the curb. After they were all out of the saloon, Haber locked the door from the outside,

O'Brien, Prystalski & Owen, of Chicago, stood there for a few minutes with Lundfor plaintiffs in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Edward C. Fitch, Asst. Atty. Gen. (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People.

gren and Nelson, then said good night, and went home. When he went away he left Lundgren, Gerdack, and Nelson near a news stand which was in front of the saloon, standing by Lundgren's car and talking about it.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The Sprangers both testified that after, from the east side of the street and rushed Lundgren and Gerdack stopped playing pool me, grabbed me by the lapel of the coat and they came to the lunch counter where the asked me if I was an officer, and I said 'No,' Spranger brothers were, and when Herman and it happened quick; and he made a asked who won, Lundgren "got peeved be- swing at me, and I ducked it, and made a cause he lost," as Herman said, or as Theo- swing at him, and when I done that he let dore says, he “got sore, and said something loose." He noticed two more men coming out of the way." Both testified that Nelson, from across the street, and he ran north on who was there, took off his glasses, put them Wood street in the direction to get over to in his pocket and said he was going to clean Lundgren's car, and was attacked, and he out the place in five minutes. Nothing of moved in another direction. Some one was the kind happened, however, or was attempt- on his back, and carried him to the middle ed. The visitors departed without any hos- of the street. He got the man off his back tile physical demonstration, and the saloon and turned around to fight, and saw four or was closed. five men coming at him. He dodged them, and a passing automobile going west slowed down and he got on the runningboard. All he could hear then was people shouting, "Get him! Get him!" He did not see what happened to Lundgren. When he returned to the place he saw some people standing around the body of Lundgren.

Lundgren, Nelson, and Gerdack were left by Haber at the news stand at the northeast corner of the street intersection. Gerdack says they sat down on the news stand, and no one else was around. When the Sprangers came out of the saloon they went over to the southwest corner of the street intersection and stopped there. Herman testified that he had noticed Lundgren had a star on, and when he came out of the saloon he went into a restaurant on the south side of North avenue, east of the Wood street intersection, called the Racine avenue police station, and told them that there was a man in the saloon who had a star, and he would like to have the wagon down there. When he came out of the restaurant he saw his brother on the southwest corner, so he told his brother that he had just called for the wagon and they would wait for it, and they did.

Herman's version is that when he came out of the restaurant after telephoning to the police station Theodore was standing on the southwest corner, and Herman told him that he had called for the wagon, and they would wait for it. While they waited Nelson walked around the corners about four times, and looked at them as he passed. Herman started to go to the alley. Theodore said, "Come on over and get in the car." Theodore started across the street, and Herman heard him call "Herman!" and ran across the street and saw Nelson and LundThe evidence as to the fight which result- gren launch into Theodore, beating him. ed in Lundgren's death is contradictory. Herman said, "Leave him go; it is my brothThere was a fight in which the Spranger er." Both of them slapped Herman in the brothers, Nelson, and Lundgren were involv- face, and he struck once, and Lundgren fell ed. It was not begun either by Lundgren or over on the curb. Nelson then started to Herman Spranger. Nelson and Theodore run west, and Gerdack, who had stood at the were first involved, and there is a dispute in news stand all the time, also went west on the evidence as to which was the aggressor. North avenue. Herman and Theodore then At the request of the state's attorney Nelson left the place and went home. He did not was called as a witness by the court. His kick Lundgren. narration of the events of the night was vague, and his recollection apparently hazy and uncertain, both as to what took place in the saloon and the later events after the saloon was closed. The evidence shows that after the saloon was closed, and while the two parties, Lundgren, Nelson and Gerdack on the one hand and the two Sprangers on the other, were occupying opposite corners of the street intersection, Nelson twice or oftener walked around the four sides of the street intersection looking at the Sprangers, standing at the southwest corner, but not speaking to them or being addressed by them. His version of the occurrence is that he took a walk to the west side of the street and back, then over on the southwest corner and south on Wood street about the length of the building, having made two trips. When he was on Wood street, back about the length of the building, "a party came running over

Theodore testified that Nelson walked

across the street, while they were standing on the corner, four times, and looked at them, and did not say a word, and they nev er said a word to him. Theodore started across the street to take a car when two men jumped on his back and had him down. He called for his brother to help him, and Herman came across and said, "That is my brother; let him alone." Nelson hit Theodore a couple of times, and the latter was knocked down and lying right at the curb before Herman came across the street, and Theodore saw him hit Lundgren with his hand. Lundgren fell down and hit the curb. Theodore testified that Nelson struck him the first blow, and he never hit Nelson at all.

Gerdack testified that he saw Spranger when the fight began, and Gerdack was the only one present; that somebody had a strangle hold on Nelson's neck, but he could

(145 N.E.)

not see his face. Herman
Lundgren, and Lundgren fell down to the
ground. Herman said, "I ain't afraid of no-
body," and Gerdack ran home. Lundgren
did not strike at Herman. Herman struck
the first blow that was struck, and Gerdack
did not see any other person strike a blow.
A post-mortem examination revealed a
fracture of Lundgren's skull, across the head
from temple to temple, and death resulted
in a few hours from violence, shock, and
hemorrhage. There were other circumstanc-
es in evidence in the case which we do not
deem it necessary to state, though they were
necessary to be considered by the jury in
reaching their verdict.

The action of the court in excluding the answer prevented the jury from giving the defendant's denial of malicious intent any consideration, and was

and was not murder.

erroneous.

Spranger hit, sential to a fair trial that the right of the parties to have all the competent evidence heard by the jurors and to have their verdict on all the evidence shall be observed. The error in rejecting a defendant's testimony as to his intent may not be sufficient to require a reversal of a judgment of conviction where no other conclusion than guilt can reasonably be reached, but that principle does not There was apply here. no evidence that any weapon, deadly or otherwise, was used. There was evidence that a single blow of the fist was struck, and, while there was evidence that the deceased was kicked, it was for the jury to say whether that fact was proved beyond a reasonable doubt. If the [1] There is evidence tending to corrobo- jury found that the affair was a fist fight rate each of the different accounts of the oc- only, and that the fracture of the skull was currence. Evidence was introduced of the occasioned by a fall on the curbstone, the previous good reputation as peaceable and jury might reasonably conclude that the delaw-abiding citizens of both the defendants. fendant's answer that he did not intend to We do not intimate any opinion as to the kill Ernest Lundgren was true, and that, weight of the evidence. It was contradictory even if the blow with the fist was not justiand not of that clear and convincing char-fied, the act was no more than manslaughter acter required to justify an affirmance of the judgment where serious error occurred on the trial. The defense claimed that Theodore Spranger was assaulted without justification by Nelson; that Herman Spranger [4] A statement in the nature of a conwent to his brother's rescue, and was himfession, containing criminating admissions, self assaulted by Lundgren; that in protecting himself from this assault Herman struck signed by Theodore Spranger on September Lundgren a blow with his fist, knocking 24, 1923, in the police station after his arrest, Lundgren down, and that in falling Lund- was introduced in evidence in rebuttal. It gren's head struck the curb, causing the frac- was witnessed by officers Balata and Swenture of the skull from which death resulted. son and by Herman Spranger, who were all [2, 3] During the examination Herman present when Theodore was questioned by Spranger was asked, "At the time you shot out your left hand did you intend to kill Ernest Lundgren?" He answered, "No, sir." The court sustained an objection and struck the answer out. In criminal cases, where the intention, the motive, or belief of the accused is material to the issue, he is allowed to testify directly to the fact. People v. Scott, 284 Ill. 465, 120 N. E. 553; People v. Peters, 265 III. 122, 106 N. E. 513, Ann. Cas. 1916A, 813; Wohlford v. People, 148 Ill. 296, 36 N. E. 107. The circumstances under which the act in question was done usually serve to manifest to a great degree the intent of the actor, and may overcome his declaration as to his intention, but he has the right to testify to his intention and to have the circumstances surrounding the act considered in connection with his testimony. The answer made to this proposition is that it is only in cases where the question of criminal intent is a close one on the facts that the accused may be asked directly as to his intent. The weight of the evidence of the prosecution does not affect the competency of evidence for the defense. It is not the rule in criminal trials that in clear cases competent evidence of the defendant may be rejected. In jury trials it is es

Balata, who reduced the examination to writing. On objection being made to the statement, Balata testified as to the making of the statement. He testified that he asked the questions, and Theodore answered, and Balata reduced it to writing, and it was read to Theodore and Herman, and signed by Theodore, and that Herman signed it as a witness. Balata stated:

"I did not induce him by threats or violence, or any other way, to sign this statement. The statement was signed voluntarily. I did not beat him or in any way abuse him. This statement was taken on the 24th of September in the detective sergeants' room of the North Racine avenue police station, twenty-third district. There was present my partner, William M. Swenson, Theodore Spranger, Herman Spranger, and myself. I asked him if he wanted to make a statement to me about the fight that he was in on the morning of September 23, about 1 o'clock in the morning. He said, 'Yes.' There were no other remarks made by There were no other statements anybody. made by any one there-by any of the officers or defendants-that was not incorporated in this statement or that I have not testified to. He then related the story in his own way, and I took it down in my own handwriting. I might have omitted a word or two, your honor. I

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