(148 N.E.) He noticed a, land. Black told witness about his automobile accident near Christmas time. His ear was not healed. January 15 McCutcheon and Black went with witness to Superior. On arriving there witness let them out of his bus at the home of McCutcheon. He met Black and McCutcheon on the street next day about 3 o'clock, before his bus left for Ashland at 3:30. He next saw Black January 17, about 3:30 in the afternoon, in front of the Superior Hotel. Black went with witness from there to Ashland, where they arrived at about 6:30 in the evening. Witness saw Black in Ashland the 18th and 19th of January. Black was introduced to witness the first time he met him, at the Culver Hotel at Ashland, by McCutcheon. Black said he was looking for the location of a hotel. came acquainted with him. scar on his ear, which looked like it was the result of a cut of some kind and was very noticeable. Black was in the hotel on the day of January 15, and that night Lowe, the bus driver, whose headquarters were at the hotel, was talking about making a trip to Superior, 87 miles from Ashland. He asked witness if he would not like to go along. Superior was witness' home, and his vacation of one week started that day. Witness planned to go with Lowe, and in talking with Black asked him if he would like to go along. Black said he would, and after supper they started, and arrived at Superior before midnight. Witness lived there with his mother, brother, and sister. He and Black went to his mother's house and stayed all night there. They occupied a room together. He and Black had dinner at witness' mother's on January 16. Felix Idziorek was there. He was taking his meals at witness' mother's. A sister of witness' mother and a cousin of hers, as well as his brother and sister, were at the house at the time he and Black were there. He and Black went to the office of a lawyer in Superior, named Elmer S. Geraldson, the afternoon of January 16, and remained at the lawyer's office about half an hour. They went to witness' home in Superior that night, and slept in the same room. Idziorek was there and had dinner with witness, Black, and a brother and sister of witness the next day. The following day, January 17, they took the bus back to Ashland with Lowe, and arrived there after supper. Black occupied the same room in the hotel he occupied before they went to Superior, and stayed in Ashland until the 19th of January, when his wife arrived at the hotel. Black registered himself and wife January 19, but witness was not present at the time he registered. The proprietor had charge of the register at that time, Witness had never seen Black prior to January 14, 1924. Witness' uncle was proprietor of the hotel. Elmer S. Geraldson, for defendants, testified he is a lawyer at Superior. He recalls seeing Black at his office January 16, 1924; had never seen him before. Black was at witness' office between 3 and 4 in the afternoon. Superior is between 500 and 600 miles from Chicago. Black came to witness' office with Edward McCutcheon, who came to consult with witness about attaching an automobile. Witness prepared the attachment papers for McCutcheon. McCutcheon represented his mother in the business of the proposed attachment of the automobile. He told witness it was his mother's business. Witness knew the mother, and she was a client of his. Some one owed her a board bill. Harry Lowe testified for defendants that he lived in Superior. He met Black on January 14, 1924, at the Culver Hotel, in Ash At this point in the trial one of counsel for defendants stated they expected to prove that before the bank robbery Mrs. Black, wife of defendant Black, drew out of the Scott County Savings Bank, of Davenport, Iowa, $1,030, and came to Gary with the money. Counsel said he made the statement, so the state might have an opportunity, before the case was closed, to ascertain the truth of that testimony. Mrs. Frieda McCutcheon testified she lived in Superior, was the mother of three children, and kept roomers and boarders. Black came to her house with her son, Edward, after 10 o'clock the night of January 15, and stayed at her home until the 17th of January. She had never seen Black before. He was introduced to her by her son. Black and Edward slept in the same room. She called them about 11 o'clock in the morning, and they got up and ate dinner. Mrs. Eli, a cousin of witness, and Mrs. Luchenville, her sister, also a little boy and girl, Black, and Edward had dinner together January 16. A roomer and boarder named Leo Idziorek was also there. Black and Edward left the house somewhere about 2:30 in the afternoon. She asked her son to see Lawyer Geraldson about attaching an automobile for a board bill a man owed her. She did not see her son any more that day, but saw him and Black the following day. They slept at her house the night of January 16. She observed the scar on Black's ear. He said he got it in an automobile accident. They took the bus back to Ashland on January 17. She wrote her son a letter, dated January 18, which was introduced in evidence. She testified she mailed it January 18, too late to get it on the 4:30 p. m. train for Ashland. The envelope was stamped at Superior, Wis., January 19, 1924, and addressed to Edward McCutcheon at Ashland. In the letter she spoke of the visit of her son and his friend, and inquired what time they got back. She also said she had a letter "from Herb and Sparkey, so I don't think I will trouble with his car, unless he fails to do as he had agreed to do." he left the hospital. He was not in Lansing when the robbery took place, but was at his home at the time. He was living with his mother, brother, nephew, wife, and child. He did not think he left the house January 16 before 12:30 or 1 o'clock. He went down to a soft drink parlor in Gary and played a few games of cards. He left Gary the 22d or 23d, and went to Winona, Minn. He knew Black was there, and went up there to get away from liquor and get some kind of a job. He had about $12 the day he left Gary, and $4 when he was arrested. Belle Mattingly testified she is the mother of Robert Mattingly and had nine children. She lived in Gary and would be 71 years old her next birthday. The son she lived with owned the home, and she kept house for him. Another son and his wife and a grandson lived in the house. She testified Mattingly was at home during the forenoon of January 16. His wife went to work at 12 o'clock, and witness and Mattingly had a talk about how long they had been married, which lacked 3 days of being 10 years. Black testified in his own behalf, and de- prior to the bank robbery, for alcoholism. nied he had anything to do with the bank He left the hospital a day or two before robbery. He testified he left Gary on Jan- Christmas. His health was very poor after uary 9. He was never in Lansing in his life. He had a severe automobile accident about Christmas time, 1923, and sustained bruises and cuts which necessitated six stitches being taken-five in his head and one in his ear. He had formerly lived in Davenport, Iowa. His wife came to Gary on January 6, and brought with her $850 drawn from the bank there. They decided to leave Gary and look for a location for business. They went to Chicago Heights, where they remained. two days, and from there to Ironwood, Mich., and stopped at the St. James Hotel, registering as W. D. Black. His wife went to see a friend of hers in Hurley, Wis. Ironwood and Hurley are connected by a bridge. Witness said he went to Ashland the 14th and registered at the Culver Hotel about 2:30 in the afternoon. He recognized his signature on the hotel register. The night of the 15th he and the clerk, McCutcheon, went with Lowe, the bus driver, to Superior, where McCutcheon's mother lived. He testified he himself was looking for a location for a hotel. They spent the night at McCutcheon's mother's house, got up the next morning about 10:30, and had dinner there. There were some ladies present at the dinner-one of them Mrs. McCutcheon's sister, and the other some relative. There was also a boy and girl at dinner. About 2:30 in the afternoon he and McCutcheon went uptown. They visited the office of Lawyer Geraldson, who was the state's attorney, and probably remained in his office 30 minutes or more. He and McCutcheon played pool, and had something to eat at a café, and returned to Mrs. McCutcheon's house about 10:30, where they slept in the same room that night. They got up the next morning about 10:30 or 11 o'clock, and had dinner there. About 2:30 they left Mrs. McCutcheon's home to go to the bus to return to Ashland that evening. He testified his wife came to Ashland on January 19, and he took her to the Culver Hotel, where they registered and were given a room. On the 20th they left Ashland and went to Winona, Minn. They stopped there at the Park Hotel, where they stayed one day, and then went to the Ludwig. They were at Winona 10 days, when his wife returned home, and he went to Sioux City, Iowa, where he stopped overnight at the Star Hotel, and from Sioux City he went to Leadville, Colo. He testified he registered at every hotel he stopped as W. D. Black. He was arrested in Leadville on February 2. Eugene Mattingly testified he is 19 years old, lived with his grandmother, and attended school in Gary. He testified he remembered a conversation January 16 between his grandmother and Mattingly about the wedding anniversary being 3 days in the future, and that they would then have been married 10 years. Mattingly had been sick and was in his bathrobe. Felix J. Idziorek, a witness for defendants, testified he lived at Superior, is 32 years old and a druggist by occupation. He ran the Culver Hotel, at Ashland, for a while. He did not manage it himself. He was at the hotel in January, and is familiar with the register and the way the business was conducted. He remembered Black being at the hotel in January. The hotel was conducted on the American and European plans. He corroborated the clerk, McCutcheon, about the registration of Black, and later of Black and wife, at the hotel, and the room they were assigned to and occupied. Witness attended to some of their requests. He testified Black registered at the hotel on the 14th. He saw him there on the 15th. Before supper time Black left the hotel with Harry Lowe and McCutcheon, and did not return to the hotel until supper time, January 17. He was assigned room 62 on January 14. He did not occupy the room the night of January 15, and another guest occupied the Mattingly testified he was 32 years old, room, and Black was not charged for it, aland had lived all his life at South Bend and though it was kept in his name. Witness reGary, Ind. He was married, and has a boy membered Black coming to the hotel Jan8 years old. He had worked about 8 months uary 19 with his wife, and saw them regisfor Black in a soft drink parlor. He tes- ter. They were assigned to another and bettified he had been in a hospital, in December ter room than Black had occupied. (148 N.E.) Defendants then rested, and plaintiff introduced some rebuttal testimony. Nathan Potts testified he was a detective sergeant at Gary, and had known Black 3 years. He was asked what kind of business Black ran there. Counsel for defendants objected, and the assistant state's attorney said, "I asked him [evidently meaning Black] if he did not run a house of prostitution, and he said, 'No.'" Counsel for defendants excepted to the remarks and conduct of the assistant state's attorney, and after a conference between court and counsel outside of the hearing of the jury the state withdrew the wit ness. Sophia Jakubowski was called by the people in rebuttal. She testified she worked in, the Brighton Park State Bank on January 12, 1924, and was in the bank that day about 10:50 or 11 o'clock in the morning. Counsel for defendants objected to her testifying, and she was withdrawn. It can only be surmised what she was called to testify to. The court had permitted Mattingly, over objection of counsel, to be asked by the state's attorney, on cross-examination, if he was not at the Brighton Park State Bank the morning of January 12, if he did not have a gun in the bank, and if he did not leave the bank that morning in a maroon-colored Cadillac car, to all of which witness answered, "No." The only apparent purpose for calling Mrs. Jakubowski in rebuttal was to contradict Mattingly's testimony that he was not at the bank at that time. The Lansing State Bank was robbed January 16. It was not stated that the Brighton Park State Bank was robbed January 12; but, even if it was, it is not claimed the robbery of the Lansing State Bank had any connection with the robbery of the Brighton Park State Bank, or that the same parties robbed both banks. As this judgment must be reversed for the prejudicial misconduct of Assistant State's Attorney Milton D. Smith, who tried the case for the people, we will not comment at length on the testimony. It must be conceded that Black proved a rather remarkable alibi by witnesses in no way related to him, who apparently were reputable persons, having no interest in Black, and no motive to induce them to testify falsely. Besides his own testimony, Mattingly produced relatives by blood who testified he was at his home in Gary when the crime was committed in Lansing, 14 miles distant. On the other hand, Schultz and Wachewicz, who were in the bank at the time of the robbery, and Lucas, who was outside the bank and saw the men come out, get in a car, and drive away, identified Black and Mattingly as two of the men who committed the crime. The evidence was of a character that the case should have been tried and submitted to the jury in an orderly manner, unattended by any conduct intended or calculated to inflame the pas sions or prejudices of the jury, without throwing any light on the question of the guilt or innocence of the defendants of the crime charged in the indictment. We have heretofore had occasion more than once to condemn the conduct of the state's counsel in asking improper questions, or making uncalled-for remarks, which had no bearing on the guilt of the accused of the crime they were being tried for, but for the sole purpose of prejudicing them in the minds of the jury, and we have held that the error will not always be cured by the court sustaining objections. People v. Green, 292 Ill. 351, 127 N. E. 50; People v. Chrfrikas, 295 Ill. 222, 129 N. E. 73; People v. Flynn, 302 Ill. 549, 135 N. E. 101; People v. Newman, 261 Ill. 11, 103 N. E 589; People v. Decker, 310 Ill. 234, 141 N. E. 710; People v. Lewis, 313 Ill. 312, 145 N. E. 149; People v. Garines, 314 Ill. 413, 145 N. E. 699. It would require much space to describe the manner and conduct of the assistant state's attorney, and his improper questions and remarks during the trial, as they were of such frequent occurence. We shall only refer to two instances. During the cross-examination of McCutcheon, the clerk of the hotel at Ashland, the assistant state's attorney asked for the register sheets, showing Black was at the hotel from January 14 to 19. One of counsel for defendants said the state's attorney could have them after he got through with them. The state's attorney told counsel not to find Black's name as at the hotel January 16, and said the bill clerk would know. Counsel replied the bill clerk was not present. The state's attorney told counsel he could get him; that he had shown he could get pretty nearly anything. The remark was objected to, and the court merely remarked, "Now, no more of that; let's get along." After some further controversy the court ordered the remark stricken. While Robert Curran, an attorney of Superior, was testifying as a witness for defendants, he was asked by their counsel what schools he had attended. The state's attorney objected, and one of counsel for defendants charged him with making an insinuation which counsel said was something funny The state's attorney replied, "It ought not to be considered queer in your family" Counsel protested at his family being mentioned, and the court said he thought the remarks about counsel's family should go out. The state's attorney said, "He can pat them on the back enough to make up for anything I say " The above are two of many instances, and will serve to illustrate the attitude and conduct of the state's attorney toward opposite counsel. He seemed very antagonistic, espe cially toward one of defendants' attorneys, and throughout the trial his conduct was very offensive, and was apparently directed as much to discrediting and humiliating coun sel as to the discharge of his duty to the people in the prosecution of the case. Conceding that counsel for defendants was sometimes provoking, and making allowance for the heat of a contested lawsuit, which we know sometimes provokes remarks and conduct of an attorney which would not occur in moments of calm and deliberation, we are obliged to say this record shows an unjustifiable offensiveness of the state's attorney throughout the trial. The state's attorney should not allow consideration for any sensitiveness of feeling of defendants' counsel, or a desire to refrain from doing or saying anything objectionable toward them, to interfere with the proper and forceful presentation of the case to the jury, but the conduct of a trial in a court of justice should be characterized by a degree of dignity and good order. [1] Men charged with crime as defendants were should not be petted by the state, and nothing should be permitted to interfere with the presentation of the state's competent evidence in the most effective manner. If the evidence of guilt is such that the state's attorney believes a conviction is warranted it is his duty to try to secure a verdict of guilty, but it is never his duty to resort to unfair and improper methods to secure a conviction. His duty is to present to the jury, both in the introduction of the testimony and in argument to the jury, the evidence of the state upon which he relies, and this can be effectively done is accordance with the rules of law. No special favors are to be shown the defendant, but the law entitles him to a fair and impartial trial upon the evidence, free from any attempt to wrongfully inflame and prejudice the jury against him. The same fair and impartial trial is guaranteed by law to all defendants, whether they be good or bad, guilty or innocent. People v. Newman, supra. Deserving of censure as the conduct of the state's attorney referred to was, he did other things which were worse. It will be remembered Lowe was the bus driver who testified he took Black and McCutcheon from Ashland to Superior on January 15 and back to Ashland the 17th. He testified Black said he was looking for a location for a hotel. On cross-examination the state's attorney said to the witness: "As a matter of fact, Mr. Lowe, you weren't talking about any hotels were you? You were talking about a house of prostitution up there, weren't you?" The court sustained an objection to the question. When Black, who testified in his own defense, was being cross-examined, he testified he had kept a soft drink parlor and rooming house in Gary, but never had a hotel. The state's attorney then asked, "You had a house of assignation?" Counsel for defendants objected, and the state's attorney said, "He said he owned a hotel; I am going to show that it is a house of prostitution." The court ruled he could ask the question, but, without waiting for the answer, the state's attorney asked the witness, "This particular building that you had in Gary, in which you say you had a soft drink parlor, that was a moonshine parlor, wasn't it?" The witness answered it was not, and that he did not have a house of prostitution in Gary. The state's attorney then asked Black if his place in Gary was not closed by the police in March, 1923. An objection by defendants' counsel was overruled, and the witness answered he closed the business himself, but not on orders of the police. The state's attorney asked the witness, "Did you have any women hustling there?" and he answered, "No." Counsel for defendants objected, and the court remarked, "He has answered it." Later, on cross-examination, the state's attorney, referring to Black's trip to Winona, asked, "You weren't hustling any women up there, were you?" Counsel for defendants objected. and the court said, "Proceed." The witness answered, "No," and then the state's attorney asked, "As a matter of fact, that has been your business all your life, hasn't it?" The witness answered, "No," and counsel for defendants objected, and said he wanted to take an exception to the asking of the question and others of a similar character. The court said, "Yes." The state's attorney also interrogated Mattingly, who testified in his own behalf, as to his associations with certain women. ment to the jury the state's attorney referred to defendants as "two hustlers of women, two men who were working in moonshine parlors." Referring to Black saying his wife visited in Hurley, Wis., the state's attorney said: "Do any of you men know Hurley? Do you know it is the toughest town in the United States?" At another point in the argument, after counsel for defendants had objected to a statement of the state's attorney, he said one of defendants' counsel said the state's attorney and his associate (Cronson) were willing to take a long chance in sending defendants to the penitentiary, and continuing said to, the jury: "I say to you that, if Mr Cronson and I were not positive, we would not ask you to send these men to the penitentiary." Counsel for defendants objected, and stated to the court there were many decisions that the statements were improper. The court overruled the objection. Continuing, the State's attorney said: "And I say we would not take a long chance, and send any man to the penitentiary, unless we were positive of his guilt." Again counsel for defendants objected, and the court remarked. "Your exception is saved; proceed with the argument." In his argu [2, 3] Other instances of improper conduct of the state's attorney occurred during the (148 N.E.) trial, but it is unnecessary to refer to them to show that defendants were not accorded a fair and impartial trial, which, whatever their character may have been, they were entitled to under the law of the land. Some objections by defendants' counsel to questions of the state's attorney and his remarks in argument to the jury the court sustained, but generally they were overruled, or the court would simply say, "Proceed," or "Let's get along." It was as much the duty of the court to see that defendants received a fair trial as it was to see that the people had a fair trial. We have held that, although there may be enough competent evidence in the record to convict, a defendant has a right to a trial by the jury, and not by a reviewing court. People v. Gardiner, 303 Ill. 204, 135 N. E. 422. We have also held that, where the jury could not reasonably have reached any other ver dict than one of guilty, errors on the trial, will not always justify a reversal. But in this case the evidence was of such a character that there should have been no prejudicial error committed on the trial. In some of the cases first above cited the court has stated the law applicable to the conduct of the prosecution in attempting to show or impress the jury that the defendant is a bad man generally, and has committed or been accused of committing other offenses in no manner connected with the crime for which he was being tried, and which could not possibly throw any light upon his guilt or innocence of the offense. I. Physicians and surgeons Indictment for violation of Medical Practice out license, need not set out names of persons Act of 1923, for treating human ailments withtreated, the offense being treating of ailments without license, not treating any particular person. 2. Physicians and surgeons 6(10)-Evidence of violation of Medical Practice Act sufficient. chiropractor for violation of Medical Practice In prosecution against one practicing as Act of 1923, in treating human ailments without required license, evidence held sufficient to sustain charge of treatment of person named. 3. Physicians and surgeons-Practice of chiropractic may be regulated by state. The practice of chiropractic is not a harmless calling which cannot be regulated by the state, as any useful method of treatment may cause great harm if exercised without skill. 4. Physicians and surgeons 2-Requirements for period of study before issuance of license not arbitrary or unreasonable. Medical Practice Act of 1923, § 5, requiring that 22 months elapse between time student begins and time he finishes chiropractic course, which must consist of 3 six-months terms, held not arbitrary or unreasonable so as to be unconstitutional. 5. Constitutional law 208 (6)-Physicians and surgeons 2-Medical Practice Act not discriminatory because excepting government practitioners. Medical Practice Act of 1923, § 13, providing for issuance of license without examination, to any graduate of recognized college who has passed examination for admission to medical corps of army, navy, and public health service of United States, held not discriminatory, there being valid basis for those exceptions, in that exactions required before they can become comcompetency of such applicants is assured by [4, 5] The rule that it is the duty of the state's attorney to treat the defendant fairly applies to his argument to the jury as well as to the introduction of evidence. Counsel for the state has the right to argue to the jury his belief that the evidence warrants a conviction. It is legitimate argument, if the state's attorney so believes, to tell the jury the state's witnesses told the truth and are more credible than those for the defendant; but it is improper for him to express his own individual opinion or belief of defendant's guilt, except as that opinion is based on the evidence. Twice the state's attorney told the jury he would not ask them to send defendants to the penitentiary, if he and his associate were not positive of their guilt. That was an improper and prejudicial statement, in view of the evidence. Williams v. United States, 168 U S. 382, 18 S. Ct. 92, 42 L. Ed. 509; People v. King, 276 Ill. 138, 114 N E. 601. Respect for and obedience to the law cannot be promoted by denying to a defendant ing the Medical Practice Act, and he brings charged with crime a fair and impartial trial, and we cannot approve the verdict and judgment in this case, for the reason that the conduct of the state's attorney was such that defendants did not receive that kind of a trial. missioned. Duncan, J., dissenting. Error to Circuit Court, Vermilion Coun ty; Augustus A. Partlow, Judge. Max W. Walder was convicted of violat error. Affirmed. Isaac A. Love and Reuben B. Kilgore, both of Danville, for plaintiff in error. Oscar E. Carlstrom, Atty. Gen., Elmer O. Furrow, State's Atty., of Danville, and Merrill F. Wehimhoff, of Decatur, for the People. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |