in error was in tears as he stood before the court in April and was examined. Dr. Krohn testified that the substance of the examination was as follows:

person came out and ordered him to put his
hands up; that this man kept coming towards
him; that he yelled to Bernie, and at the same
time the man had grabbed his wrist. He stat-
ed in response to a question that a shot was
A little later, in reply to a question, he
fired.
said the only time the gun was in his hand
was when the first shot was fired; that he
fell; that Grant, on being called to him, had
struck the man, who had grabbed his hand,
in the back of the neck four or five times; that
they ran from the store; that he threw his
overcoat away; that he lost his cap in the store;
that they went to the neighborhood of Forty-
Eighth and Union; that he got a hat at the
house of a woman who either said she had
lived downstairs in the same house or he had
lived down stairs in the same house with them
some years before; that Grant was in the base-
ment; that after he got the hat they divided
the money; that they then separated; that he
went on a street car to Cottage Grove avenue;
that he went on a Cottage Grove avenue car
down town; that he went to a nickel show;
that he went to a hotel, which he did not lo-
cate in response to a question, and didn't give
cross street it was near; that while in a
room in the hotel he met a cripple, in which
something was said about going to make $1,000,
to which request of the cripple he answered
no; that he was arrested in the night, but in
reply to a question he didn't state the time
of arrest; that he was taken to the stock yards
station. He was asked at the close of these
questions, and some others I don't recall, about
some automobile affairs he had been in, and
in the midst of that question was asked by his
counsel to repeat all he had said before in the
form of a story without being asked questions,
just as if he were telling his sister the whole
story about what happened.
He was then asked about
the whole story.
automobile affairs he had been in before, and,
in that connection, who had taken the auto-
mobile, and said that Edward Ratigan had tak-
en or stolen it, and he had a ride in it with
him; that on one of the three, and at one
time-think he said four occasions, when he
was riding in a stolen automobile, it came in
contact with a street car, and he received an
injury which caused a scar on his head; that
Edward Ratigan was not in the same court that
he was; that he (Krauser) was in the larger
court. He was asked what an accelerator was
and what a carburetor was, and what he did
in working at a garage, and said he just pumped
gasoline and things like that. On cross-exam-
ination he was asked if he was left-handed, and
he said no, he was right-handed; asked who
the man was who had been asking questions,
who his lawyer was, he said McEwen; asked
if he knew the name of the person question-
ing him, he said no; asked if he knew whether
the person questioning was a doctor, a lawyer
or a man, he said he did not know; asked if
this was a trial, he said no, it is a case; that
he knew this was a courtroom; asked if he
knew who is interested in the trial, he said
everybody. He said he knew what an A. & P.
store was. Then a series of questions followed.
the answers to all of which was no.”

He didn't tell

"He was asked his name, to which he replied Walter Krauser; asked where he lived, 614 West Forty-Third place; was asked his age, and he said 19. This is on direct examination by Judge McEwen. He was asked his birthday, and he said August 10; asked where he went to school, he said Fallon school; asked how long he knew Bernard Grant, said about two or three months, finally two months; asked if he ever owned or had a gun, he said no; asked when he first saw Bernard Grant at about time of this incident, he said the afternoon or evening before, at a candy store while he had some ice cream; asked by his counsel where he got money with which to buy ice cream, he said from his mother; that while there Grant came in; that he didn't eat ice cream; later met Grant at a dance hall at Forty-Third and Halsted; went into the hall in response to a request of Grant, who wasn't there; asked how long after Grant came in, he told it was five minutes after; asked if he saw anybody else there he knew besides Grant, he said he didn't; asked if he danced, he said he did not; that he just went to look; that he had followed the crowd at the corner and went up to the dance hall; asked whether he had ever talked with Milo Barrett about stickups, or with anyone else, he said he had not talked about stick-ups; asked what he and Grant talked about at dance hall, said Grant told him to get a gun; that he got a gun off Shea; that Shea didn't have it with him, but had slipped it somewhere; waited in front of house, and later on Shea brought the gun to him; he had gone to bed and got up at 6 o'clock. In response to a question said he had a light breakfast of coffee and buns; went to FortySeventh and Halsted; Grant wasn't there when he first got there, but came a little later; he and Grant boarded street car. In response to a question, said it was a Racine car; asked by counsel if he had any money, he said no; asked who paid fare, he said Grant did; asked how much he had, he said 25 cents; that Grant, in response to a question, said he had ridden on the car to a block beyond a tea store that was pointed out while they were on car; that they walked back a block and walked a little farther back and then turned around; that before they went into that store Grant had showed him how to hold a gun, and what he was to do when he went in-to say 'Hands up!' that they did go into the store and said, 'Hands up!' that he ordered a man in the tea store to back of the room; that there was a man and boy in the store; that Grant had told him to throw a bolt in the door; that they then locked the man and boy in the toilet; that they came out and got on another car and went to about Fifty-Fifth; that at or near a school house they divided the money, about $15; that Grant said to him in response to a question, "That that ain't no money; we ought to have $100'; that he handed the gun to Grant to hold for him while he went into a toilet; that they went to Fifty-Fourth street; that in The two doctors, Singer and Krohn, formthe second tea store Grant told him to do the same as before. In response to a question heed the opinion that the plaintiff in error was stated he ordered this man to a back room feigning insanity, and they thought that he

(146 N.E.)

material whether it was in the hand of the plaintiff in error or Souders. The plaintiff in error had the intent to commit murder if resisted. He was resisted, and the struggle resulted in the discharge of the revolver and the death of Souders. It was the act of the plaintiff in error, whether his hand or Souders' held the revolver, and the crime was murder and not manslaughter.

his statements before the police and before | gle the revolver was discharged. It is not the coroner, he had told his story, insisting that Souders had got control of the gun in the struggle and had shot himself; that he, the plaintiff in error, did not have his hand on it after the first shot. His story as told on the several occasions bore evidence that he knew what his acts had been, and was seeking to mitigate the seriousness of the consequences to himself by stressing the point that the policeman had killed himself. The intelligent statements made to the police and coroner, when compared with the puerile and imbecile statements to the doctors in the jail and answers to their questions, tend to support the conclusion that the plaintiff in error had changed his defense, and was seeking to escape the penalty for his crime by shamming feeble-mindedness. At any rate, the doctors thought that he was shamming, and the jury, from the evidence which was before them; could hardly have reached a different conclusion.

[1] The plaintiff in error contends that the shot which killed Souders was fired by Souders himself; that for that reason the plaintiff in error cannot be held responsible for murder, and that instructions asked on the subject of manslaughter should have been given. The statements of the plaintiff in error were not admitted as evidence of the crime, but merely on the question of his mental condition, but if it be admitted that Souders shot himself in the struggle for the gun, such a result might reasonably have been anticipated when he started to rob at the point of a revolver. There was no evidence which required the giving of instructions on the subject of manslaughter.

[2] The testimony of the two physicians, Singer and Krohn, of the physical and mental examinations which they made of the plaintiff in error was objected to as compelling him to give evidence against himself, and it is urged that the admission of the testimony over the objection was error. The rule is stated in 16 Corpus Juris, on page 568, as follows:

"Where the defense interposed is insanity, evidence of the facts disclosed at a physical and mental examination of accused by physicians, either prior to the trial or during an adjournment of the court while the trial is in progress, does not vitiate the constitutional privilege of accused not to be a witness against himself."

The following cases are cited to support the text: State v. Petty, 32 Nev. 384, 108 p. 934, Ann. Cas. 1912D, 223; People v. Austin, 199 N. Y. 446, 93 N. E. 57; People v. Furlong, 187 N. Y. 198, 79 N. E. 978; People v. Truck, 170 N. Y. 203, 63 N. E. 281; State v. Spangler, 92 Wash. 636, 159 P. 810.

[3, 4] One of the doctors in the examination at the jail in which both doctors took part, asked the plaintiff in error if he knew Sonny Dunn. The answer was in the negative. The plaintiff in error says that Sonny Dunn was a notorious character in the world of crime, and that the bringing of his name into the record was prejudicial. There is nothing in the record to show that Sonny Dunn was a criminal, however, nor was there anything in the question to so indicate. The court cannot take judicial notice of the character of the man whose name was mentioned, and we cannot say that plaintiff in error was prejudiced.

In Butler v. People, 125 Ill. 641, 18 N. E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423, a rict was in progress in which the plaintiffs in error were taking part. The marshal of the village attempted to arrest one of the plaintiffs in error, but he was resisted, and the bystanders undertook to stop the fight. While they were parting the men the marshal discharged his revlover, and one of the bystanders was killed. An indictment for murder was returned against the rioters, and [5] One of the statements which the plaintwo of them were convicted of manslaughter. tiff in error made as to his part in the crime, The conviction was reversed, and it was held and his actions before and after its commisthat there existed no common purpose or de- sion, was given in the police station in the sign between the defendants and the mar- early morning of December 20, 1922. The shal, and the former were not responsible people sought to show in rebuttal, on the for the acts of the latter. It was said, how-question of sanity only, the examination of ever, that they would be responsible for the plaintiff in error which was then made what they did themselves and such conse- by questioning him, and for that purpose quences as might naturally flow from their acts and conduct. The shooting of Souders was a consequence naturally to be expected from the plaintiff in error's acts. He made an assault with a deadly weapon, and Souders was justified in resisting the attack, and would have been justified in killing the plaintiff in error to prevent the crime. He seized the plaintiff in error, and in the strug.

produced as a witness James J. Sullivan, who was secretary to Police Lieutenant Larkin, of the Halsted street station, and was present and recorded the conversation in shorthand. The plaintiff in error made the general objection that the statement was properly a part of the case of the people in chief and was not competent in rebuttal. The witness testified that his original notes cor

290, 36 L. R. A. 693, 62 Am. St. Rep. 560, and Republic Fire Ins. Co. v. Weide, 14 Wall. 375, 20 L. Ed. 894, the evidence was received, and, in the particular case of proving the language of a conversation or the testimony of a witness, the stenographic notes are no less worthy of credit than the testimony of the stenographer. It would be an extraordinary memory which would enable a witness to repeat even the substance of an examination of any considerable length, much less the particular words used. There was no error in permitting the stenographers to read their notes to the jury.

rectly showed what took place. The plaintiff | 31 A. 591, 28 L. R. A. 143, 48 Am. St. Rep. in error objected that the reading of the 177, State v. Brady, 100 Iowa, 191, 69 N. W. notes was not the proper method of proving what was said. The witness then testified as to what he remembered. The people then asked the witness to read from his book of original notes. The plaintiff in error objected to this method of proving what was said. The objection was overruled, and the witness read the statement to the jury from his notes. The stenographer who reported the proceedings at the inquest was offered as a witness to show the examination of the plaintiff in error at the inquest. He testified that his notes correctly showed what took place, and that he had practically no recollection of anything which the plaintiff in error said. The plaintiff in error made the same objections as were made to Sullivan's testimony, and they were overruled. It is contended that it was error to permit the stenographers to read their notes.

[7, 8] The people produced, as nonexpert witnesses to give their opinions of the sanity of the plaintiff in error, certain policemen and two assistant state's attorneys, each of whom had heard one or more of the statements which the plaintiff in error had made. [6] The rule in this state is that a witness One of these witnesses was Michael Hughes, can testify only to such facts as are within chief of detectives. He had been present at his knowledge and recollection, but he is the examination of the plaintiff in error at permitted to refresh and assist his memory the police station, which occurred on the by the use of a written instrument, memoran- morning of December 20, 1922. The plaintiff dum or entry in a book, and it is not neces- in error had been at that time under the ob sary that the writing should have been made servation of the witness from 2 o'clock until by the witness himself, or that it should 6 or 7 o'clock. What had then occurred had have been an original writing, provided, that been testified to by other witnesses, including after inspecting the record he can speak to the stenographer, and there was no question the facts from his own recollection. Scovill of the accuracy of the evidence showing the Manf. Co. v. Cassidy, 275 Ill. 462, 114 N. E. occurences. The jury therefore had before 181, Ann. Cas. 1918E, 602; Walsh v. Chicago them the story of what had then happened Railways Co., 303 Ill. 339, 135 N. E. 709; in the presence of the witness Hughes. The Diamond Glue Co. v. Wietzychowski, 227 Ill. state's attorney, not requiring the witness to 338, 81 N. E. 392. Undoubtedly the witnesses state the facts upon which he had formed an here might have been permitted to refresh opinion of the sanity of the plaintiff in error, their memories from the notes which they said, "With the court's permission I will had made, but the course followed was the omit the details." Counsel for the plaintiff reading of their notes as original evidence, in error said, "I will make the same objeceach having testified that his notes correctly tion." The objection was that a proper basis recorded what had been said. The short- had not been laid to permit the witness to hand notes were made in each case in the express his opinion; that the witness was not regular course of duty of the reporter. The a proper witness to testify as to his opinion; evidence offered was admissible solely for and that evidence of the occurrences at the its bearing upon the question of the mental police station was not proper in rebuttal. condition of the plaintiff in error. It was The court overruled the objection, and the important that the language used in asking plaintiff in error argues that it was error not and answering the questions be accurately placed before the jury and the expert witnesses who were to be asked to base an opinion thereon. The normal memory of witnesses is not sufficiently accurate to recall the exact words used in an extended conversation. A memorandum made by a witness at the time of the transaction, in the usual course of business, may be referred to by the witness to refresh his memory. Whether it may be received in evidence in connection with the testimony of the witness who made it, and who testifies that the facts were correctly stated in it at the time, is a question upon which the authorities are con

to require the witness to state the things which he observed, and upon which he based his opinion. The witness was not an expert upon nervous and mental disorders.

"The rule is, that nonexperts who have had opportunities to observe a person, may give their opinion of his mental condition or capacity, at the same time stating their reasons, and the facts observed on which they base their the observed facts, but to render such opinions opinions, including conversations as a part of admissible, they must be limited to conclusions drawn from the specific facts thus disclosed." Jamison v. People, 145 Ill. 357, 34 N. E. 486.

It was erroneous to permit the witness

Ill.)

PEOPLE v. KRAUSER

(146 N.E.)

out requiring him to state what facts he misunderstood, for the people needed no based his opinion on, so that the jury might statement by the plaintiff in error to make judge of its reasonableness. While Hughes its case in chief. The only substantial matwas present at the examination, the evidence ter in dispute was whether the plaintiff in does not show that his opinion was formed error was mentally responsible for his acts. upon a consideration of all that occurred in The plaintiff in error contends that it was his presence. He may not have observed all error to permit the doctors Singer and Krohn that occurred, may have given little consid- to testify that plaintiff in error was falsifyThis followed eration to most of it, and may have formed ing and feigning insanity. his opinion upon a consideration of only a necessarily from their opinion that he was very small part of what occurred in his neither insane nor feeble-minded, which they presence, and that not the most important presented to the jury. part. Because of his prominence the jury may possibly have accorded more weight to his opinion than it would have been entitled to had the facts upon which it was based been stated, though, had this been the only error, it would not, perhaps, have required a reversal of the judgment.

[9] The testimony of the various state ments made by the plaintiff in error before his trial, except in one instance, was limited by the rulings of the court to the sole question of his mental condition. They were all introduced in rebuttal. The excepted instance was of his statements and conduct before the circuit court on the hearing, before his plea of guilty had been withdrawn. The doctors Singer and Krohn were permitted to state what then occurred, they having been present, as a part of the basis upon which their opinions were formed. Dr. Singer first Counsel for the testified of this matter. plaintiff in error objected, “I wish to renew my objection that I have made heretofore." When Dr. Krohn was offered to testify as to the matter the objection was, "I make the same objection that I did to Dr. Singer's The objection to Dr. Singer's testimony." testimony was as to what occurred in the It was as folfirst interview in the jail. lows:

"I want to make an objection to the detailing of this testimony of the doctor testifying to anything that occurred there between himself and Walter Krauser, for the reason that such an examination was made at the request of the state's attorney, without the consent of Krauser or his being consulted, while he was in jail and while he had no one representing him present, and the doctor no doubt will relate, if he is permitted to proceed, an interview with him concerning the facts in this case, and that I think, as a matter of a man's personal rights, that they were violated in this instance, and the doctor should not be permitted to testify on that."

[10] The objection was properly overruled, for the evidence was proper to be presented to the jury as showing a part of the facts upon which the doctors based their opinions as to the mental condition of the plaintiff in error. Subsequently, when like evidence was offered, the trial judge specifically ruled that it was admissible for the one purpose only. The purpose of its presentation by the doctors was apparent. The jury could not have

[11] The witness Michael J. Grady testified that, immediately before the plaintiff in error made his statement in the police station on the morning of December 20, he was told that if he should make a statement it would be used for or against him in court. It is urged for the plaintiff in error that the statement that was then made was thereby rendered involuntary, for a self-serving statement could in no event have been used for The objection could be him on his trial. available only if the statement were offered as evidence of the crime, but as it is in evidence only upon the defense of insanity, the objection that it was made under the influence of hope of gain or fear of punishment was properly overruled. So far as the purpose for which the statement was admitted is concerned, it made no difference whether the statement was voluntary or not.

[12] The plaintiff in error contends that the giving of instruction No. 14 for the peoThe instruction was as ple was erroneous. follows:

"The court instructs the jury that a safe and reasonable test in all cases of insanity is that whenever it appears from the evidence that at the time of doing the act charged the defendant was not of sound mind but affected with insanity and that such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted. But this unsoundness of mind, or affection of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged by overriding the reason and judgment and obliterating the sense of right or wrong as to the particular act done and depriving the accused of the power of choosing between right and wrong."

The law as given in the instruction was stated in Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231. The objections to it are as follows:

"This instruction is bad because (1) it does not fit the modern scientific view of insanity -an impulse is not necessary; (2) it omits the element of ability to act, for an insane person may know the difference between right and wrong, and he may be able to choose right from wrong knowingly, but be incapable of acting according to his judgment and choice; and (3) it requires both understanding and will, whereas either is a defense; and (4) it assumes he fired the shot charged in the indictment."