(146 N.E.)

stated, among other things, that it was respondent claimed that it was apparent agreed between the parties, by their respec- that Delfosse had been largely overpaid; tive counsel and personally, that the cause, that there was the sum of $1,291 due Mrs. together with the intervening petition, should Stout from Delfosse and the insurance combe dismissed; the same having been settled. pany; that after obtaining this statement On June 6, 1922, Judge Friend, over the pro- for the purpose of ending the litigation retest of respondent, fixed the amount due spondent entered into negotiations with the from Mrs. Stout to respondent for legal serv- parties to secure a settlement out of court; ices at the sum of $150 and entered an or- that on May 18, 1922, he wrote Mrs. Stout der therefor, crediting Mrs. Stout with the asking her for authority in writing to make payment of $60, leaving a balance due re- the settlement, and informing her that at spondent of $90, which was tendered to him. the agreed rate the amount of fees due at He refused to receive the same and prayed that time was $565; that almost immediatean appeal to the Appellate Court. The suit ly after the receipt by Mrs. Stout of this letwas dismissed according to the stipulation. ter the settlement was made without the With reference to the second specification knowledge or consent of respondent; that the conclusion of the commissioner is: upon receiving notice that a settlement had been made May 24, 1922, before the entry of the order of dismissal and before any order had been entered by Judge Friend with reference to his fees, respondent served a written notice upon the insurance company and Delfosse for an attorney's lien for $565. On May 25, 1922, the parties all appeared in court before Judge Friend, and respond

"The evidence shows that A'Brunswick believed that there was a considerable sum of money to which Mrs. Stout was entitled, and he proceeded as best he could to obtain it for her; that after the matter had gone along for some time, the parties, without his knowledge or consent, got together and made an adjustment thereof and signed a stipulation to dismiss the suit, as also the intervening petition filed therein by A'Brunswick in her behalf; that A'Bruns-ent objected to the dismissal of the suit unwick objected to the dismissal thereof until his fees were fixed, and thereupon submitted his claim for fees to the learned judge presiding, who, after hearing the respective parties, made an allowance of $150; that after the same was fixed by the court he should have abided by it, in order that due respect be given to the court and due regard for its pronouncement and decrees: that here, again, because of the temper of A'Brunswick and his headstrong and belligerent manner, he refused to abide by the decision of the court, and thereafter, in violation of the ethics of his profession, served notice up-ceeded to hear testimony and also the testion the insurance company of a claim for attorney's lien in a sum far in excess of the amount allowed him by the court, and by reason of so doing his client has been unable to receive any portion of the money due to her. I can find no justification for this action by him, which was wholly unwarranted after having submitted his claim to the court for adjudication."

These conclusions of the commissioner in several respects are not in accordance with the evidence. The evidence shows that at the time respondent was employed by Mrs. Stout he informed her that his fees for the services rendered her would be charged at the rate of $6 per hour. The evidence also shows that the respondent spent a large amount of time and a great many days in court obtaining leave to file the petitions, arguing demurrers, arguing motions to advance the cause for hearing, and other motions; that he spent a large amount of time outside of court in the preparation of the case and in negotiations with the lawyers for Stout, Delfosse, and the insurance company; that he wrote many letters to the various parties interested in the controversy; that as the result of his efforts the insurance company was compelled to file in the case a statement of Stout's account, from which

til his fees were paid. A discussion ensued, and the judge inquired how respondent arrived at the sum of $565. Upon explanation by respondent the court stated that he would take testimony on the question. Respondent did not voluntarily submit his claim for fees to the judge, but stated that he did not believe that the court had jurisdiction; that he was not a party to the suit and objected to any hearing upon the subject. The judge, however, without any authority of law, pro

mony of respondent, and fixed the amount due from Mrs. Stout to respondent at the sum of $150, less the $60 theretofore paid. The judge was without jurisdiction in the premises and his order as to respondent's fees was a nullity. The settlement between the parties was made by the payment by the insurance company of $180 to Delfosse and $762.93 to Mrs. Stout, which was over $500 less than respondent claimed was due to her on the face of the answer filed by the insurance company. Shortly after the appearance in court before Judge Friend, at the time he fixed respondent's fees, Joseph Stout, the husband of Hazel N. Stout, called upon respondent with reference to an adjustment of the matter, and there was an agreement between them that respondent would take $150 in addition to the $90 allowed by Judge Friend, or a total of $240, rather than appeal, to which Stout, on behalf of his wife, agreed, which amount, however, was never paid. Respondent wrote to Stout on August 21 with reference to this agreement, and also wrote to the attorney for the insurance company on July 21, 1922, of the settlement by which his fees were fixed at $240. On August 28, 1922, he by registered letter again notified the insurance company of his claim

and that he would look to it for $565. There an accusation charging violation of criminal was other correspondence between Stout and respondent up to and including the last day of August, 1922, and on September 1, 1922, complaint was made to the Chicago Bar Association by Mrs. Stout.

DUNN, J. An information was filed in the county court of Warren county against William Wallace containing three counts, the second of which charged that on September 18, 1923, he did "unlawfully sell certain intoxicating liquor," and the third that he did "unlawfully have in his possession certain intoxicating liquor within prohibition territory with intent to sell the same, in violation of the Prohibition Act of the state of Illinois." A motion to quash the indictment and each count was made and overruled, a plea of not guilty was entered, and upon a trial-the jury returned a verdict finding the defendant guilty in manner and form as charged in counts 2 and 3. He made a motion for a new trial, which was overruled, and a motion in arrest of judgment which was Jurisdiction of a criminal prosecution can- also overruled, and he was sentenced to six not be conferred by waiver or consent, nor months' imprisonment in the county jail and can a conviction be sustained in the absence of to pay a fine of $150 upon each count.

(146 N.E.)

information in this case is the foundation for the judgment, just as the declaration is in a suit at law, and is equally subject to the rule that advantage may be taken of its insufficiency to support the judgment on a motion to arrest the judgment or on error.

sued out a writ of error from the Appellate road Co. v. Clausen, 173 Ill. 100, 50 N. E. Court for the Second District, assigning, 680; Kipp y. Lichtenstein, 79 Ill. 358. The among other errors, the overruling of his motion in arrest of judgment. The Appellate Court affirmed the judgment, and the defendant sued out of this court a writ of error, assigning, among other errors, that the Appellate Court erred in not finding that the motion in arrest of judgment should have been sustained, and in not reversing the judgment for that reason.

In his brief in this court the plaintiff in error argues that it was error to overrule the motion in arrest of judgment, for the reason that the verdict was insufficient upon which to base the judgment. This brief was filed on November 12, 1924. The case of People v. Barnes. 314 Ill. 140, 145 N. E. 391, was decided at the October term, 1924, and a rehearing was denied on December 5, 1924. In accordance with the opinion in that case, the two counts of the information upon which the plaintiff in error was convicted were not sufficient to charge him with a violation of the law, and in the reply brief filed on December 12 the plaintiff in error cites this decision in support of his argument that it was error to overrule his motion in arrest of judgment.

[1-3] No waiver or consent by a defendant to a criminal prosecution can confer jurisdiction, or authorize his conviction, in the absence of an accusation charging him with a violation of the criminal law. People v. Pilewski, 295 Ill. 58, 128 N. E. 801. Even a plea of guilty in manner and form as charged in the indictment or information is an admission only of what is well alleged. The plea confessed nothing, if the information charged no criminal offense, and the defendant may question the information by a motion in arrest of judgment or on a writ of error. Klawanski v. People, 218 Ill. 481, 75 N. E. 1028. Errors in the entry of judgments at law or decrees in equity can be taken advantage of after judgment or decree, if the cause of action stated in the declaration or bill is not sufficient to sustain the judgment or decree.

[4] By pleading to the merits after the overruling of a demurrer to a declaration the defendant waives the right to move in arrest of judgment for insufficiency of the declaration, but on appeal or writ of error he may urge that the declaration is not sufficient to support the judgment even though aided by verdict. Chicago, Rock Island & Pacific Railway Co. v. People, 217 Ill. 164, 75 N. E. 368. The rule is well settled that, if a declaration is so defective that it will not sustain a judgment, the insufficiency may be availed of in a writ of error, even after a demurrer overruled and a plea to the merits. Gillman v. Chicago Railways Co., 268 Ill. 305, 109 N. E. 181; Chicago & Alton Rail

.

[5] A point presented for the first time in the reply brief of the plaintiff in error ordinarily will not receive consideration, but since an accusation charging a crime is the foundation of the proceeding, without which no conviction can be sustained, the court will not, when the insufficiency of the charge is brought to its attention before final judgment, affirm a conviction.

The judgment will be reversed,
Judgment reversed.

1. Intoxicating liquors 238 (4)—Whether defendant's possession of liquor was for purpose of sale held for jury.

Circumstantial evidence held to make question of whether defendant's possession of liquor was for purpose of sale in violation of Prohibition Act, § 28, a question for the jury. 2. Intoxicating liquors 233(1) -Circumstantial evidence may be considered for what it is worth.

Circumstantial evidence is legal evidence, and may be considered by the jury for all that it is worth in liquor prosecution. Section of 3. Searches and seizures 2 Search and Seizure Act held repealed by Prohibition Act with which it is in conflict.

Search and Seizure Act, § 17, requiring issued by two justices of the peace, held rewarrant for night search and seizure to be pealed by Prohibition Act, § 30, providing for issuance of warrant by one justice, because in conflict therewith.

4. Intoxicating liquors 202-Count charging possession for "purpose" of sale held to charge possession with "intent" to sell.

Count charging possession for "purpose" of sale held to charge possession with "intent" to sell, in violation of Prohibition Act, § 28; the words "purpose" and "intent" being synonymous.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Intent; Purpose.]

5. Intoxicating liquors 221-Count held sufficient to negative exceptions contained in Prohibition Act.

Count charging that defendant unlawfully sold intoxicating liquor fit for beverage purposes without having a permit from Attorney General held sufficient to negative exceptions

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

contained in the Prohibition Act, though not in for the purpose of sale certain intoxicating exact words of statute.

6. Indictment and information

Exceptions may be negatived in language other than that of statute, where exceptions are excluded with same certainty.

Any equivalent language that excludes with the same certainty the exceptions contained in the act defining the crime may with equal propriety be employed. 7. Criminal law

liquor without having a permit from the At111(4) torney General to possess the liquor. The second count, after charging the former conviction, charged that the defendant unlawfully and willfully did sell certain intoxicating liquor without having a permit from the Attorney General to sell the liquor. A motion to quash the search warrant under which the seizure was made of the intoxicating liquor in the possession of the defendant and to impound the liquor seized was overruled by the court. A motion to quash the indictment was denied, and upon a trial the defendant was found guilty as charged in the indictment, and after motions for a new trial and in arrest of judgment were overruled, he was sentenced to the penitentiary for an indeterminate term and to pay a fine of $1,000. To review the record this writ of error is prosecuted.

814(1)-Instructions must be based on and applicable to charge contained in indictment.

Instructions must be based on the charge contained in the indictment and must be applicable thereto.

8. Criminal law 814(5) Instruction held erroneous because not applicable to charge. In prosecution for unlawful possession of intoxicating liquor with intent to sell, instructions that it was unlawful to possess intoxicating liquor at any place other than one's private dwelling without permit from Attorney General, and that, if liquor was kept in premises operated by defendant as a club and defendant did not use reasonable means to prevent it from being so kept, he was guilty, held erroneous because not applicable to the charge. 9. Criminal law 778(5)—Instruction making possession prima facie evidence of possession for purpose of sale held erroneous.

In prosecution for possession of intoxicating liquor with intent to sell in which there was a conflict in the evidence as to purpose for which liquor was being kept, action of court in instructing jury that possession of intoxicating liquor was prima facie evidence that possession was for purpose of sale held error, in that it placed the burden of proof entirely upon defendant, notwithstanding Prohibition Act, § 40; the only question in such case being whether intent to sell has been established beyond a reasonable doubt.

About 4 o'clock in the afternoon of October 20, 1923, on a sworn complaint a search warrant was obtained by the state's attorney of said county, issued by a justice of the peace, authorizing the search of the second floor of a building located at 4131⁄2 North Center street, in Bloomington, either in the day or night. The second floor of the building was occupied by a private social club for colored men, known as the Elite Club, of which the defendant was president. He was also cusThe club occupied todian of the club rooms. five rooms. The rear room contained the lunch stand, gas stove, and bar. The room directly east from the rear room was used as a cloak room. The room east of the cloak room was a pool room. The room east of the pool room was a parlor, and a small room south of the parlor and over the stairway was used as an office. The search warrant was delivered to the chief of police of

Error to Circuit Court, McLean County; Bloomington by the state's attorney about 8 Edward Barry, Judge.

o'clock, and about 10 o'clock he and four other police officers went to the Elite Club to serve the warrant. On their arrival at the stairs leading up to the club rooms a man came to the entrance to the club rooms at the top of the stairs and slammed the door, and the door thereby closed and automatically locked. The officers rapped at the door and demanded admission, stating that they were officers with a search warrant. Their demand not being answered, they broke open the door and entered. They proceeded to the rear room and found the defendant behind the bar, with his arms under it. The chief grabbed him by the arms, instructed another officer to hold him, went behind the bar, and found a brown jug turned upside down in a receptacle containing water which was for use in washing dishes and glasses. The contents of the jug were running into the water in the receptacle. The chief righted the jug and according to

(146 N.E.)

his statement proceeded to read the search | uor for the purpose of sale. While there is warrant to the defendant. Two small whis- no positive evidence from any witness that ky glasses were found in the receptacle, in which the officers detected the odor of whisky. There were about 18 men, other than the defendant, in the club rooms at the time of the raid by the officers. All of the foregoing articles were in evidence before the jury as exhibits. Chemical analysis of the contents of the brown jug taken by the officers showed that it contained more than 43 per cent. of alcohol by volume and was fit for beverage purposes. The former conviction of the defendant as charged in the indictment was admitted by stipulation.

The war

there was any liquor sold by the defendant or that he had the liquor for the purpose of sale, the evidence shows that he was peculiarly and well situated and surrounded with all the paraphernalia to sell liquor. He had the liquor in his possession, as the evidence warranted the jury in believing, and that liquor was whisky. The evidence positively shows the members of the club had been drinking out of the whisky glasses. Circumstantial evidence is legal evidence and may be considered by the jury for all that it is worth. The conduct of the defendant and of The evidence presented by the defendant the other parties who were present when the in his defense is, in substance, that on the officers broke in onto them was also a proper evening of the raid one Carter, a member of matter for the consideration of the jury. All the club, had ordered a chicken dinner from the foregoing circumstances have a very mathe defendant, to be served in the club rooms | terial bearing on the charge in the first count about midnight that night to himself and a of the indictment. party of his friends. Carter arrived at the [3] The court did not, for any of the club with a package about 7:30 p. m., con- grounds urged by the defendant, err in refustaining the jug of liquor taken by the officers, ing to quash the search warrant and to imwhich he put in the cloak room by permis-pound and to exclude the exhibits found as a sion of the defendant. The defendant did result of the search and seizure. not know what the package contained. Carter invited several members of the club who were present to accompany him to the cloak room to drink of the liquor. The defendant was engaged in the preparation of the dinner and did not see any one take a drink of the liquor. No drink was offered to him. Other witnesses than the defendant, who were present when Carter arrived, stated that he brought a package into the club rooms and placed it in the cloak room. Carter testified that the brought the jug and liquor to the club rooms and that defendant did not know that he had the jug there. defendant testified that at the time the police broke into the club rooms he saw Carter take the jug of liquor behind the bar; that he stooped down, picked it up, and asked, "What is this?" that at the same time the chief of police grabbed him by the arm and told another officer to hold his arm, and the chief walked behind the counter and picked up the jug containing the liquor. He also testified that the search warrant was not read to him until the police had started to take him away from the club and after they had left the club rooms. Carter testified that when the police arrived he picked up the jug of liquor in the cloak room-the brown jug-and put it behind the bar, and defendant said, "What is this?" Another witness also corroborated the defendant and Carter on this point. This testimony is stated as given by the witnesses, and it is not the intention of the court to characterize or pass on the testimony of either side in this lawsuit.

The

[1, 2] Under the evidence in the case it was a question for the jury as to whether or not the defendant had possession of the liq

rant was authorized by the provisions of sec-
tion 30 of the Prohibition Act (Smith-Hurd
Rev. St. 1923, c. 43, § 31), under which this
This section is substi-
prosecution is had.
tuted in the Prohibition Act in lieu of section
17 of the Search and Seizure Act (Smith-
Hurd Rev. St. 1923, c. 43, § 67), which latter
section requires a warrant that is to be used
for night search and seizure to be issued by
two justices of the peace. As section 30 is in
conflict with section 17 of the Search and
Seizure Act, the latter section is repealed.
People v. Williams, 309 Ill. 492, 141 N. E.
296. All the exhibits were properly put in
evidence.

[4-6] The court properly overruled the mo-
tion to quash the indictment. Section 28 of
the Prohibition Act (Smith-Hurd Rev. St.
1923, c. 43, § 29) provides that it shall be un-
lawful to have or possess any liquor intend-
ed for use in violating this act. The first
count charges that the defendant unlawfully
and willfully did possess for the purpose of
sale intoxicating liquor fit for use for beverage
purposes without having a permit from the
Attorney General. The words "purpose" and
"intent" are synonymous, and the charge is
equivalent to a charge of possession with in-
tent to sell. The second count charges that
the defendant unlawfully sold intoxicating
liquor fit for beverage purposes without hav-
ing a permit from the Attorney General.
Both counts charge a former conviction of
the defendant under the Prohibition Act and
that the acts done are prohibited by the stat-
This court held in People v. Barnes,
ute.
314 Ill. 140, 145 N. E. 391, and in People v.
Martin, 314 Ill. 110, 145 N. E. 395, that an
indictment or information under the Prohibi-
tion Act must show on its face that the pos-