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(146 N.E.)

Ashbel V. Smith, State's Atty., of Waukegan (Sidney H. Block, of Waukegan, of counsel), for appellant.

for that purpose, and the grantor then lost | odist Episcopal Church of Waukegan Stacontrol over it. It was recorded and sent tion. Judgment for defendant, and the to Rose Dressler, the surviving grantee. The People appeal. Reversed and remanded, with grantor's intention is the controlling fact in directions. determining whether there has been an effective delivery of a deed, and such intention is to be gathered from all the circumstances attending the transaction. Marshall v. Moon, 311 Ill. 605, 143 N. E. 399. The finding of the master and the decree of the chancellor that the deed was delivered are justified by the evidence.

[8-10] Appellees contend that if the relief prayed by appellants is granted, the legacies bequeathed by the will of Sarah Ann Gaines will be defeated, and that therefore the legatees under her will are necessary parties. The executor of her will is a party to this suit. He answered the bill, joined in this appeal, and assigned cross-errors. Title comes to the legatee through the executor. Where parties are effectively represented they need not be made parties. Hale v. Hale, 146 Ill. 227, 33 N. E. 858, 20 L. R. A. 247; 21 Corpus Juris, 290, 291.

[11] Appellees also contend that the court erred in admitting the testimony of William Troy Cales. The conclusion that the two

deeds and the will of Sarah Ann Gaines are

inoperative so far as parcel A is concerned is reached independently of his testimony, and, in view of our decision with reference to parcel B, appellees could not be prejudiced by any of his testimony.

We find no reversible error in the record, and the decree of the circuit court will be affirmed.

Decree affirmed.

(315 Ill. 233)

Hall & Hulse, Clarence W. Diver, and Elan L. Clarke, all of Waukegan, for appellee.

DUNN, J. This appeal by the people from the judgment of the county court of Lake county, sustaining objections of the Methodist Episcopal Church of Waukegan Station to the application of the county collector for judgment for taxes, presents for decision, as stated by the appellee, the question whether property owned by a church, and used by its pastor as a residence and not for profit, is taxable. The question is answered affirmatively in the cases of People v. First Congregational Church, 232 Ill. 158, 83 N. E. 536, and First Congregational Church Board of Review, 254 Ill. 220, 98 N. E. 275, 39 L. R. A. (N. S.) 437. The question is fully considered in those cases, and we do not think it necessary or profitable to elaborate the argument.

V.

Counsel for the appellee in their brief quote extensively from the dissenting opinion in the latter case, and think that the court has followed that opinion in the recent cases of People v. Catholic Bishop, 311 Ill. 11, 142 N. E. 520, and Yates v. Board of Review, 312 Ill. 367, 144 N. E. 1. Reference is made particularly to the gardener's house and the archbishop's summer home, which are mentioned in the former case in describing the physical property involved. That property was a single tract of several hundred acres, on which were the build

PEOPLE ex rel. PEARSALL, County Col-ings mentioned in describing the property, but no question was made in regard to them, lector, V. METHODIST EPISCOPAL CHURCH OF WAUKEGAN STATION. and there was no adjudication in regard to (No. 16214.) (Supreme Court of Illinois. Dec. 16, 1924. the archbishop's summer home had been for

Rehearing Deried Feb. 6, 1925.)

Taxation 244-Property owned by church and used as pastor's residence held taxable.

Property owned by church, and used by its pastor as residence, and not for profit, is tax

able.

Appeal from Lake County Court; Perry L. Persons, Judge.

Application by the People, on the relation of Ira E. Pearsall, County Collector, for judgment for taxes unpaid against the Meth

them specifically. In fact, it appeared from the record that the buildings referred to as

merly used for that purpose, but on April 1, 1922, were used for the purposes of the seminary. The relation of the gardener's residence to the property was the same as that of the building occupied by the superintendent of grounds and out-door work of the seminary to the school property involved in the case of Monticello Female Seminary v. People, 106 Ill. 398, 46 Am. Rep. 702.

The judgment will be reversed, and the cause remanded, with directions to enter judgment against the property for the taxes. Reversed and remanded, with directions.

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

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(Supreme Court of Illinois. Dec. 16, 1924. Rehearing Denied Feb. 6, 1925.)

1. Criminal law 1159 (2)-Conviction not set aside as against evidence, unless verdict indicates passion or prejudice.

Conviction will not be set aside as against evidence, unless verdict is so palpably against weight of the evidence as to indicate passion or prejudice.

2. Homicide 257(1)-Evidence held to sustain conviction for assault with intent to murder.

Evidence held to sustain conviction for assault with intent to murder.

3. Homicide 158(1)-Testimony fixing time of threat as time of prior arrest of defendant held not objectionable as disclosing such prior arrest.

Testimony that threats made by defendant had been made at time of prior arrest held not objectionable as disclosing such prior arrest, witness having testified he did not know exact date of such threats, though voluntary statement that defendant was then intoxicated was incompetent and properly stricken.

4. Criminal law 371 (4)-Proof of threats competent, notwithstanding it tends to prove another offense.

Proof of threats is competent to show ill will of defendant, notwithstanding it tends to prove commission of another offense.

5. Criminal law 363-Testimony that bullet, after passing through officer's body, struck boy, held part of res gestæ.

Testimony that bullet from defendant's gun struck boy after it had passed through officer's body held part of res gestæ and admissible. 6. Criminal law 723(1), 1171(1)-Argument of counsel as to public sentiment held improper, though not reversible error, in view of circumstances.

Argument of state's attorney as to demand of public sentiment for conviction held improper, though not ground for reversal, where facts were such that it did not likely affect verdict.

7. Criminal law 941 (1)—Denial of new trial on ground of newly discovered evidence, which was merely cumulative, held not error. Denial of new trial sought on ground of newly discovered evidence, which was merely cumulative, held not error.

8. Criminal law 938(1)-Applications for new trial on ground of newly discovered evidence not favored.

Applications for new trial on ground of newly discovered evidence are not favored. 9. Criminal law 958(1)—Applicant for new trial on ground of newly discovered evidence has burden of showing diligence and of rebutting presumptions in favor of verdict.

Applicant for new trial on ground of newly discovered evidence has burden of showing

no lack of due diligence and of rebutting presumption that verdict is correct.

10. Criminal law 938(1)-Quality of newly discovered evidence to warrant new trial stated.

Newly discovered evidence to warrant new trial must be of such character as to make probable change in result of a new trial, must have been discovered since trial, be such as could not have been discovered before trial by due diligence, be material, and not merely cumulative.

Error to Circuit Court, Mason County; Guy R. Williams, Judge.

George W. Dabney was convicted of assault with intent to murder, and he brings error. Affirmed.

George W. Sprenger, of Peoria, for plaintiff in error.

Edward J. Brundage, Atty. Gen., and Scott W. Lucas, State's Atty., of Havana, and James B. Searcy, of Springfield, for the People.

STONE, J. Plaintiff in error was indicted in the circuit court of Mason county upon the charge of assault with intent to murder Thomas Cavanaugh, a police officer in Mason City. He was found guilty. Motion for a new trial was made, urging, among other grounds, discovery of new evidence. This motion was denied, and plaintiff in error was He brings the sentenced on the verdict. cause here for review, urging, first, that the verdict is not sustained by the evidence; second, that it was error to deny the motion for new trial on the ground of newly discovered evidence; third, error in the admission of evidence; and, fourth, prejudicial and inflammatory argument on the part of the state's attorney.

The record shows that on the evening of December 2, 1923, plaintiff in error, who is a farmer, drove into Mason City from his residence, five miles northwest of that place. Cavanaugh had gone on duty at 6 o'clock, and about 7 o'clock entered the restaurant of Doc Ewers, located on Tonica street in said city. Tonica street extends north and south, and is intersected north of the Ewers restaurant by Chestnut street, extending east and west. As Cavanaugh entered Ewers' restaurant he passed plaintiff in error, who was standing in front of the place talking to a man named Dobson. It appears from the state's testimony that shortly after Cava naugh entered the restaurant two of the state's witnesses, Frank Hubbard, a deputy sheriff, and Gus Sievers, a state patrol officer, who were standing near the front of the restaurant, saw plaintiff in error looking into the restaurant and holding a pistol in his hand; that he was pointing it toward the restaurant, and had it out of his pocket for

(146 N.E.)

two or three minutes. The state's witness, the corner of the alley and the street he saw Clarence Adkens testified that he was in plaintiff in error and the police officer scuffront of the restaurant at that time, and fling over a gun; that he was about 10 or 15 saw plaintiff in error flash the gun, and feet away; that Cavanaugh did not have heard him say, "I will get even." It ap- anything in his hand when he walked across pears that some one notified Cavanaugh that the alley; that he heard the shot fired, and plaintiff in error had a gun, and a short time Bernard Stone, who was with him, shouted: thereafter, while Cavanaugh was walking "Hey, mister! I am shot!" Bernard Stone a his beat, he came upon plaintiff in error boy of 14 years, testified to substantially standing in front of the Farmers' State Bank the same facts as those given by Spangler. on Chestnut street. This bank is located Dr. Don Deal described the wound in one-half block west of the intersection of Stone's chest, and testified that he removed Chestnut street and Tonica street, on the a bullet from the wound, which he thought south side of Chestnut street. It appears to be from a 45-caliber gun. The bullet was that the street there was lighted with elec- introduced in evidence without objection, and tric lights known as cluster ornamental there is no contention that it was not the lights. Plaintiff in error was talking to Ja- bullet fired from plaintiff in error's gun. son Allen. According to the state's evidence Cavanaugh walked up to him and said, "Have you got a gun on you, George?" whereupon plaintiff in error stepped back and replied, "No," but drew a 45-caliber Colt's automatic army pistol from his right hip pocket, and pressed the muzzle of it against Cavanaugh's side. Cavanaugh grabbed the pistol, and attempted to push the muzzle away from his body, but before he could do so the gun was discharged, and the bullet penetrated the left side of his body at about the fifth or sixth rib, and passing out lodged in the chest of a boy named Bernard Stone, who at that time was some 35 or 40 feet away. Cavanaugh thereupon drew his pistol, and attempted to shoot plaintiff in error, at the same time holding onto the latter's pistol with his left hand. Cavanaugh's pistol snapped, but did not discharge, and he therefore returned it to his pocket, and, taking hold of plaintiff in error's gun with his right hand also, attempted to wrest it from him. In the struggle that ensued Cavanaugh was struck over the head a number of times and received scalp wounds. Hubbard and Sievers, hearing the pistol shot, came to the scene, and plaintiff in error was arrested and taken to the city jail. On being searched, a clip containing additional cartridges was found in his possession.

Cavanaugh's testimony concerning the occurrence in front of the bank is corroborated by the testimony of Carl Tohlen, a boy of 14 years, who testified that he was directly across the street from the bank when the encounter took place between Cavanaugh and plaintiff in error. He testified that as Cavanaugh approached plaintiff in error he had nothing in his hand; that Cavanaugh said something; that plaintiff in error stepped back a step or two and pulled out a gun; that Cavanaugh closed in on him and plaintiff in error shot.

Plaintiff in error took the stand and testified that he did not draw his revolver until Cavanaugh tried to shoot him. He denied that he had ever in any way threatened Cavanaugh, but testified that when Cavanaugh approached him near the bank he (Cavanaugh) drew his gun and said, "George, you got a gun on you?" and grabbed plaintiff in error by the arm, saying, "Don't get smart with me, or I will blow your head off," and snapped his gun at plaintiff in error, but that it did not fire. Plaintiff in error testified that he then stepped back and that Cavanaugh hit him over the head with his revolver and knocked him to his knees; that when he got up he took his gun out of his pocket and hit Cavanaugh with it; that in the scuffle that took place Cavanaugh struck plaintiff in error's pistol with his own and it was discharged; that he did not fire the gun at all. Jason Allen testified on behalf of plaintiff in error and corroborated the latter's statement up to the point where he testified that Cavanaugh was the first to draw his gun, the witness then stating that he left because he was afraid he would be shot.

Plaintiff in error also claims that he did not draw his gun in front of Ewers' restaurant, but that he had in his hand at that time a nickel-plated flashlight. Witnesses Lloyd Cantrell and Gordon Andrews, called in his behalf, testified that plaintiff in error showed them a flashlight in front of Ewers' restaurant that night. In rebuttal it is shown by testimony of the sheriff of Mason county, W. F. Close, that the next morning he searched plaintiff in error in the city jail and found no flashlight on him. Hubbard and Sievers both testified that he had no flashlight in his possession when he was searched on the night of December 2 in the city lockup.

[1, 2] The questions as to the manner in which the shot was fired and as to who causGraham Spangler, a witness for the people, ed it to be fired were questions of fact for testified that he was in the alleyway next to the jury. A reviewing court will not set the Farmers' State Bank, near the corner, aside a conviction as unjustified by the eviwhen he saw Cavanaugh going west down dence unless the verdict is so palpably Chestnut street; that as the witness got to against the weight of the evidence as to in

court, on motion, struck out the testimony of the witness. We are of the opinion that that ruling was one more favorable to plaintiff in error than he was entitled to have.

[5] It is also contended that the testimony of Spangler and Stone to the effect that the latter was struck by the bullet was incompetent and prejudicial. We do not think so. It clearly concerned a part of the res gestæ.

[6] It is urged that the judgment in this case should be reversed because inflammatory statements were made by the state's attorney in argument. Particular attention is called to the following statement:

dicate it was based on passion or prejudice. | offense does not render such evidence incomPeople v. Jones, 310 Ill. 275, 141 N. E. 773; petent if it is competent for any purpose in People v. Carrico, 310 Ill. 543, 142 N. E. 164. the case. People v. McGuirk, 312 Ill. 257, [3] The state sought to show by the wit- 143 N. E. 855; People v. Meisner, 311 Ill. ness Leslie Elmore that a conversation had 40, 142 N. E. 482; People v. Kircher, 309 taken place between the witness and plain- Ill. 500, 141 N. E. 151; People v. Hall, 308 tiff in error in which the latter uttered | Ill. 198, 139 N. E. 123. As we have seen, the threats against Cavanaugh. The witness was unable to fix the time, and he was asked if it was immediately following the arrest of plaintiff in error in the month of June, 1923. This was objected to, and the court permitted the witness to answer for the purpose of fixing the date of the conversation, if there was such. The witness answered that he remembered the time plaintiff in error was in jail, although he could not recall the date. Counsel for plaintiff in error moved that the answer in regard to plaintiff in error being in jail be stricken as not responsive. This motion was overruled. The witness stated it was along in the summer of 1923; that when he took plaintiff in error home he was under the influence of whisky, and said, "I will get even." On motion of counsel for plaintiff in error the volunteer statement of the witness that plaintiff in error was under the influence of whisky was stricken. Later the court sustained a motion to strike all of the testimony of the witness for the reason that it did not show that the threat referred to Cavanaugh and admonished the jury to give no consideration to the statement. The objection is now made that, although stricken on motion this evidence was prejudicial and was error, in that it showed plaintiff in error had been previously arrested and intoxicated; that such was incompetent evidence of an offense not charged and prejudicial to the interests of plaintiff in error. It is answered that the question and answer objected to were for the purpose of fixing the time when the conversation occurred; that the state expected to show by the witness that the threat was against Cavanaugh, and that the fact the answer disclosed a previous arrest did not render it incompetent.

[4] From the testimony of the witness it is evident that he was testifying concerning a conversation which he had with plaintiff in error about Cavanaugh at the time when plaintiff in error was arrested, and it is a fair inference that plaintiff in error's expression, "I will get even," referred to his arrest by Cavanaugh. The statement that he was intoxicated was a voluntary statement of the witness and properly stricken. His testimony, however, concerning plaintiff in error's arrest was for the purpose of fixing the time, as best the witness could, when the conversation occurred, the witness having stated that he did not know the exact date. Proof of threats was competent as tending to show ill feeling towards the officer on plaintiff in error's part. The fact that testimo

"I say to you men in all sincerity, in all frankness and honor, that the honor and the morality of Mason county is at stake in this one case; and I want to say to you, gentlemen of the jury, that there are going to be thousands of people in this county that are anxiously waiting for a verdict of your unbiased judgment on this evidence of guilty."

This statement was objected to, and the objection was promptly sustained, and the court instructed the jury that the statement was improper and that they should not consider it. The statement was clearly error, and in a case close on the facts would be sufficient to reverse the judgment. The jury were required to try the case according to the law and the evidence, and what the people of the community might want in the matter had nothing to do with their duty in the case. The state's attorney had no right to inject into the case, by argument, any inference that the public were anxiously awaiting a verdict of guilty. We are of the opinion, however, that in this case it cannot be said that but for such statement the verdict might have been otherwise. The testimony presented in the case shows the guilt of plaintiff in error, and this error is not suf ficient to cause a reversal of the judgment.

[7-10] It is also urged that it was error to deny the motion for a new trial on the ground of newly discovered evidence. In connection with this motion counsel for plaintiff in error filed the affidavit of Elliott R. Bale, who states that he was near by and saw the encounter. A reading of his affidavit, however, discloses that his testimony would be cumulative merely, in that it would tend to corroborate plaintiff in error and the witness Jason Allen. Applications for new trial on the ground of newly discovered evidence are not looked upon with favor by courts, but such applications are to be subjected to close scrutiny. The bur

(146 N.E.)

tion that the verdict is correct and to show that there has been no lack of due diligence. People v. Le Morte, 289 Ill. 11, 124 N. E. 301. The evidence must fulfill the following requirements: First, it must appear to be of such conclusive character that it will probably change the result if a new trial is granted; second, it must have been discovered since the trial; third, it must be such as could not have been discovered before the trial by the exercise of due diligence; fourth, it must be material to the issue; and, fifth, it must not be merely cumulative to the evidence offered on the trial. People v. Pennell (No. 16237) 145 N. E. 606; People v. Le Morte, supra; People v. Williams, 242 Ill. 197, 89 N. E. 1030, 17 Ann. Cas. 313; Henry

v. People, 198 Ill. 162, 65 N. E. 120.

There is no reversible error in the record. The trial court used very great care in keeping out error. Plaintiff in error has had a fair trial.

The judgment will be affirmed.
Judgment affirmed.

(315 I11, 275)

ROLOFSON v. MALONE. (No. 16332.) (Supreme Court of Illinois.

Dec. 16, 1924.
Rehearing Denied, with Modification,
Feb. 6, 1925.)

1. Trusts

69-"Resulting trust" defined. A "resulting trust" arises where the legal title or estate to property is transferred to one person with the intention that the beneficial interest shall be in another, as where price is furnished by one person and deed is taken in

name of another.

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

2. Trusts

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of a fiduciary relationship between the grantor and grantee will not affect the conveyance of the beneficial interest unless thereby undue advantage is taken of grantor.

6. Trusts 86-Evidence held to overcome presumption of resulting trust on husband's purchase in own name of land with wife's money.

Evidence held to prove that wife intended that beneficial interest in land purchased with proceeds of wife's land in husband's name should be taken by husband, overcoming presumption that resulting trust arose.

7. Partition 87-Husband not entitled to credit for voluntary payment of funeral expenses of wife.

with no thought of a claim against the estate Husband, who paid funeral expenses of wife of the wife or the estate of the wife's mother, was not entitled to credit therefor in partition suit, the payment being voluntary.

Appeal from Circuit Court, Macon County; James S. Baldwin, Judge.

Bill by Nellie Rolofson against Robert L. Malone, in which the defendant filed a crossbill. Decree for defendant, and complainant appeals. Affirmed.

John A. McKeene, of Winchester, and W. F. Gray, of Clinton, for appellant.

McDavid, Monroe & Hershey, of Decatur, for appellee.

STONE, J. Appellant filed a bill in the circuit court of Macon county to declare a resulting trust and for an accounting as to certain land in that county, the legal title to which is in her father, Robert L. Malone, appellee. This tract of land contains 160 acres. Appellee answered denying that appellant is entitled to have a trust declared in said land, and alleging that he is owner of

6334-Resulting trust arises in- a two-thirds interest in the land in fee sim

ple, and appellant is owner of a one-third in

stant legal title is taken. A resulting trust arises the instant the le- terest subject to his (appellee's) dower ingal title is taken if it arises at all.

3. Trusts 6334-Resulting trust arises out of presumed intention and not agreement.

A resulting trust arises not out of an agreement, but out of a presumed intention that, while the title is taken in another, yet the beneficial interest is to be in the payor. 4. Trusts 86-Payment of consideration raises prima facie evidence in favor of resulting trust.

The payment of the consideration raises a prima facie presumption in favor of a resulting trust, but such presumption may be rebutted by parol proof of an intention on the part of the payor that grantee shall take the beneficial interest and not merely the legal title. 5. Gifts 38-Conveyance of beneficial interest as gift not affected by fiduciary relationship unless undue advantage taken.

Where gift is voluntary act of grantor and expresses his desire and purpose, the existence

terest in such one-third. Appellee also filed a cross-bill asking for partition. The cause was referred to the master in chancery, who heard the evidence, took an accounting and reported recommending partition in accordance with the prayer of the cross-bill and stating an account between the parties. The chancellor approved the master's report and decreed accordingly. Appellant brings the cause here for review, and appellee has assigned cross-errors as to an item of accounting in which he claimed credit for certain funeral, medical, and hospital bills paid by him.

The undisputed facts of the case are as follows: In October, 1884, Briscoe Davis, his wife, Harriet C., and daughter, Mary S., were residing on a farm of 197 acres in Scott county, Illinois. At that time Malone went to work as a farmhand for Davis and six months thereafter married the daughter.

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