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In People v. Lowhone, 292 Ill. 32, 126 N., beyond a reasonable doubt that the defendant, E. 620, it was said that since the Hopps Case Walter Krauser, entered into a conspiracy tó advances have been made in knowledge on commit robbery, and that, in pursuance of said the subject of insanity, its various types and conspiracy, the said defendant, Walter Kraus.

er, was armed with a revolver to consummate characteristics, and that it is now recognized said conspiracy, and that some act or acts were that there are cases of partial insanity which performed by said defendant, Walter Krauser, may render a person incapable of knowing a toward the consummation of said conspiracy, particular act to be wrong, or, if he can and that, in pursuance of the common design, distinguish right from wrong as to a particu- the defendant, Walter Krauser, or any accomlar act, he may be incapable of exercising plice the evidence may show that he had, while the power to choose between the right and in the act of prosecuting the robbery, killed the wrong. It was said that the mere abil- the deceased in this case, in manner and form

as charged in the indictment, then all perity to distinguish right from wrong was not

sons engaged in such conspiracy are guilty of the correct test, and the first two instructions murder, regardless of whether the other perwere held to be bad because

sons not firing the shot had the specific intent "They omit the necessary element, in cases of to kill the deceased. this character, that the accused must also be ing which shall happen in the prosecution of

(11) The court instructs you that any killmentally capable of choosing either to do or

a felonious intent shall be deemed and adjudged not to do the act, and of governing his conduct in accordance with such choice."

to be murder. So that, if you believe from the

evidence in this case beyond a reasonable doubt The first sentence of instruction 14 states that Walter Krauser or any accomplice shown that if the defendant's affection with by the evidence shot and killed Ralph Souders, insanity was the efficient cause of his act, in manner and form as charged in the indictand he would not have done it but for that ment, and while engaged in the prosecution of

a felony, the offense shall be deemed and adaffection, he should be acquitted. The next judged to be murder; and the law does not sentence undertakes to state the character permit any defendant in such a case to avail of the affection of insanity, and says that it himself of the defense of self-defense, nor must be such as to override the reason and would such a killing be excusable as a misadjudgment, obliterate the sence of right or venture, for the statute excusing one who unwrong, and deprive the accused of the power vides that the person killing be engaged in a

fortunately kills another by misadventure proof choosing between right and wrong. This lawful act. Robbery in this state is a felony." instruction, to justify an acquittal, requires of the defendant not only the ability to dis

Each of these instructions entirely ignored tinguish between right and wrong but the the defense of insanity, and concluded with power to choose between them and act ac- these words: cording to his choice; he must not only un “The court by this or any other instruction derstand the character of his act, but have does not intend to express any opinion upon the the power to choose and to act accordingly. | facts of this case, nor does he intend to cover In the Lowhone Case the ability to judge and the law concerning insanity. As to the law the power to choose are held equally neces- covering insanity, you are referred to other sary to criminal responsibility, and there-instructions given by the court." fore the lack of either will justify a verdict

In instruction 21 it was stated: of not guilty. The instruction in question states that both the knowledge of right and

"That these instructions are given and should wrong and the ability to choose between be considered together as one entire series, and

each instruction should be considered in conthem are necessary to such a verdict, and nection with all other instructions bearing upon it was therefore erroneous to give it.

the same subject." (13) Instructions 6, 10, and 11, not includ. ing the last sentence of each, were as follows: There is an obvious contradiction seen in

"(6) The jury are further instructed that if the conclusion of instructions 6, 10, and 11, in they believe from the evidence in this case first stating that the court did not intend by beyond a reasonable doubt that Walter Krauser any instruction to cover the law concerning or any accomplice the evidence might show, insanity, and then referring the jury as to inflicted upon the deceased, Ralph Souders, a that law to other instructions given by the mortal wound which caused the death of the court. But perhaps the jury would not be said Ralph Souders, as charged in the indict- misled by the contradiction. The plaintiff ment, and that such killing was involuntary on the part of the person so inflicting the wound in error, however, makes a more serious obas aforesaid; yet if you further believe that jection. These instructions directed a ver. the wound which caused the death of the said dict without regard to the defense of inRalph Souders was inflicted upon him by said sanity, and apparently had no relation to that person or persons while in the commission of defense. Instruction 21 directed the jury to an unlawful act which in its consequences nat- consider each instruction in connection with urally tended to destroy human life, then, un- all other instructions bearing upon the same der such circumstances, the defendant is guilty of murder, and the jury should so find.

subject. In following that instruction, the "(10) The court further instructs you that jury would naturally consider the instrucif you are satisfied by the evidence in this case tions which were given upon the subject of

men.

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(146 N.E.) insanity in connection with other instruc-, if any, in the outcome of the case, the relations upon that subject, but not in connec- tions which he bears to the state or defendtion with instructions 6, 10, and 11, which ant, the manner in which he might be afdirected a verdict, and as to these instruc- | fected by the verdict, the extent to which he tions the defense of insanity thus being is contradicted or corroborated by any other made was taken out of the case. It was er-credible evidence, continued: ror to give these instructions.

"And any circumstances that tend to shed [14-16) Instruction 2 refers to implied mal- light upon his credibility. You should deterice but ignores the question of insanity, and mine the amount of credence to which each the instructions do not anywhere require the statement is entitled at your hands as reasonaquestion of insanity to be considered in con- ble and intelligent men," nection with the question of implied malice. For this reason the instruction should not

The instruction, after enumerating circumhave been given. Instruction No. 16, given stances to be considered, ended by directing at the request of the people, was as follows: the jury that they should take into con

sideration any circumstances, and determine "The court instructs the jury that in order the credibility as reasonable and intelligent to find the defendant not guilty on the ground

This left the jurors merely to act on of insanity, such insanity must be so clearly

their own discretion. It told them that, proven as to raise a reasonable and wellfounded doubt of the defendant's guilt when the without any reference to the evidence in the whole evidence is taken together, and not a case, or what occurred during the trial, they mere shadow or possibility of a doubt."

were at liberty to determine the credibility

of the witnesses according to their own judg[17] This imposed the burden of proving ment, without any guidance from the court insanity upon the plaintiff in error, and was as to the reasons which might be proper to erroneous for that reason. The burden of consider in determining the credibility of proving the sanity of the accused in a crim- witnesses. inal case, where his sanity is in issue, is al- [19] The defendant asked an instruction, ways on the prosecution, and it is not neces- No. 6, which was refused. It stated the rule sary, before the jury can find the defendant requiring the jury to be satisfied of the guilt not guilty, that insanity should be proved of the defendant beyond a reasonable doubt, clearly or even by å preponderance of the requires that the entire verdict which may evidence.

It is only necessary that there be rendered upon the evidence shall be jusshould be evidence tending to proye insanity tified in the minds of the jury beyond a reasufficient, in connection with all the evidence, sonable doubt; that is, not only the question to raise a reasonable doubt of the defendant's of guilt must be so determined, but the eviguilt. People v. Penman, 271 Ill. 82, 110 N. dence from which the penalty is fixed should E. 894; Dacey v. People, 116 Ill. 555, 6 N. likewise establish, in the minds of the jury, E. 165.

The use of the words “clearly a conviction, beyond a reasonable doubt, that proven," in the instruction, was erroneous. the evidence justifies and requires the penSo was the use of the word "well-founded" alty fixed in the verdict which may be found in connection with reasonable doubt. Many by the jury; "and unless the jury can upon attempts have been made to define reasonable their oaths say that the punishment fixed by doubt, but it may well be doubted whether the verdict has been established beyond a they have not confused rather than been of reasonable doubt, and that they have a conany material assistance to the jurors, whom scientious belief that such penalty is just they were supposed to enlighten. It certainly and required by the law, then such verdict is of no benefit to the juror or help to his ar- is unauthorized, and a lesser penalty should riving at a verdict to add to the require- be fixed which meets with the requirement of ment of a reasonable doubt the requisite that representing the judgment of the jury beit shall also be well founded. The law gives yond a reasonable doubt from the evidence.” the defendant the right to an acquittal if The doctrine of reasonable doubt has no apthere is a reasonable doubt of his guilt. If plication in the determination of the jury a reasonable doubt actually exists, it is suf- as to the penalty to be imposed. When the ficient whether well or ill founded. Jurors guilt of the defendant has been established have always been told that a reasonable beyond a reasonable doubt, the question of doubt of guilt was sufficient to entitle the the penalty is committed by the law to the defendant to a verdict of not guilty. Now to discretion of the jury, subject to the revision say to them that the doubt must be well of the court on motion for a new trial. The founded is merely to introduce confusion. punishment cannot be "established beyond People v. Davis, 300 III. 226, 133 N. E. 320. a reasonable doubt.” It is a question of

[18] Instruction No. 4 advised the jury in judgment, to be exercised upon a consideraregard to judging of the credibility of wit- tion of the facts proved, and the instruction nesses, and after saying that the jurors requested, instead of giving any information should consider all the circumstances under to the jury as to their duties, would have no which any witness testified, his demeanor other effect than to introduce confusion into and manner while on the stand, his interest, their deliberations. The imposition of the

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death penalty in a verdict of guilty of mur error had a right to have his case submitted der, or of imprisonment for life or for 14 to the jury on the evidence introduced in the years, or any other term, can never be said case, uninfluenced by the statement of a witto be established beyond a reasonable doubt, ness on the trial of another case in another but is a question to be determined by the court in another state, and the weight of jury from a consideration of all the facts the opinion of that court on the question of proved in the case.

fact that the theory of the expert witnesses [20] The state's attorney, in his argument who testified in his behalf was utterly misto the jury, proposed to read from page 18 leading to a layman, and practically useless, of the case of State v. Ehlers, 119 A. 15, and if not worse than useless, in the administracounsel for the defendant objected on the tion of justice in a trial by jury. The introground that it was not a proposition of law duction at this time of such evidence was but a statement of purported fact or opinion erroneous, and was prejudicial to the plainwhich he was proposing to read. The court tiff in error. overruled the objection, and counsel read Other statements made by the state's atthe portion of the opinion which he desired, torney in the argument were objected to, as follows, quoting the testimony of an ex- but they ought not to occur on another trial, pert on the subject of epilepsy:

and it will not be necessary to consider them. "He (the expert) also explained as to the

[21] The evidence as to the mental capacimental age of twelve years that that was the ty of the plaintiff in error was such that he average mental age of the men of the Ameri- was entitled to have the jury accurately incan army in the World War, thereby clearly structed. demonstrating, as he frankly admitted (he said,

The judgment will be reversed and the 'It was not worth shucks as applied to adults'),

cause remanded. what has been the observation of practically all

Reversed and remanded. our judges (State v. Schilling, 95 N. J. Law, 145, 112 Atl. 400), that the so-called mental age theory of the experts, at least as applied

FARMER and THOMPSON, JJ., dissent. to adults, is based upon so arbitrary and unnatural a scale of ages as a standard as to be utterly misleading to a layman and practically useless, if not worse than useless, in the ad

(315 III. 461) ministration of justice by trial by jury." CLEVELAND, C., C. & ST. L. RY. CO. V.

COMMERCE COMMISSION ex rel. J. K. Dr. Hickson testified in regard to the men DERING COAL CO. et al. (No. 16018.) tal age theory of the experts, about which the witness in the case from which the (Supreme Court of Illinois. Feb. 17, 1925.) state's attorney read to the jury testified, 1. Commerce en 27(1)-Proposed track from that it was a system, proved by the different coal company, already having shipping facili. cases which he had examined, used in the ties to connect with second railroad not adRush Medical College, the Psycopathic Hos jacent to company, held not a private "spur pital, the juvenile.courts in various cities,

track," which state commission can author

ize. and many insane hospitals and many preparatory schools. It was the system as to

Proposed track from coal mine having exwhich the testimony of the expert that "it isting shipping facilities, to connect with a seewas not worth shucks as applied to adults” ond railroad not adjacent to it, held not a spur

track construction of which the Illinois Com. was introduced to the jury during the argu- merce Commission has jurisdiction to authorize ment after the evidence was closed, without under Public Utilities Act, $$ 45, 58 (Smithopportunity of cross-examination, and the Hurd Rev. St. 1923, c. 111%, $$ 45, 62), or testimony itself was pure hearsay in this under Mines Act, $ 1 (Smith-Hurd Rev. St. case. Such a use of reported cases is not 1923, c. 94, § 1), or under Const, art. 13, $ proper under the pretense of arguing the law 5, where by agreement two other railroads to the jury. In the case of People v. Rees, were granted operating rights orer it, and it 268 Ill. 585, 109 N. E. 473, the state's attor- roads completely adapted to extension of their

constituted a physical connection of three railney read from reported cases a statement of lines. the facts which the court said there was no

[Ed. Note.-For other definitions, see Words reason for reading to enable the jury to un- and Phrases, First and Second Series, Railderstand any rule of law, and the only pur- road Track.] pose or effect of the recital of the evidence was to show the similarity of the case read

2. Evidence en 20 (2) Common knowledge

that term "spur track” is given wider apfrom to the case on trial, and to lead the

plication than ordinary definition. Jury to a conclusion of fact as to the guilt of the defendant.

It is a matter of common knowledge that The court said that the

term "spur track" given a somewhat wider general rule is that counsel may read ex- meaning than “a track” leading from a line of tracts from the opinions in reported cases railway, and connected with it at one end only, bearing upon the law in the case, but not synonymous with “stub track," the definition the facts in the opinions. The plaintiff in / of standard lexicographers.

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

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(146 N.E.)
3. Commerce On 27(1)-Interstate Commerce 8563 et seq.), and as to such the latter act is

Commission held to have sole jurisdiction to supreme.
authorize proposed track from coal com-
pany constituting "extension” of road sought 9. Eminent domain Ow33—Statute 'held not to
to be connected with.

give coal company power to force connection

with railroad without sanction of legal auProposed track from coal company already

thority.
having shipping facilities, to connect with sec-
ond railroad not adjacent to it, held to con-

Mines Act, $ 1 (Smith-Hurd Rev. St. 1923, stitute an "extension" of such road within c. 94, § 1), authorizing a mining company to meaning of Interstate Commerce Act, § 1, build a track leading to its mines, where it is pars. 18–22, as amended Feb. 28, 1920 (Comp.

so situated that it cannot be conveniently St. Ann. Supp. U. S. 1923, 8 8563), and hence worked without it, held not to authorize coal to be a matter in which sole jurisdiction was

company to build a connecting track between vested in Interstate Commerce Commission.

two railroads, or to force connection with a [Ed. Note. For other definitions, see Words sanction of legal authority, where its mine is

railroad on which it is not located, without and Phrases, First and Second Series, Extend being conveniently worked with existing facil-Extension.)

ities.
4. Commerce 88 Rulings of Interstate 10. Mines and minerals 105(1)-Coal cor-

Commerce Commission particularly persua- poration not a "public utility."
sive, where matter of connection with rail.

A coal corporation is not a public utility, road bound up with interstate traffic.

in view of Public Utilities Act, § 10 (SmithWhile rulings of Interstate Commerce Hurd Rev. St. 1923, c. 11123, § 10), but is a Commission are not binding on Supreme Court, private enterprise, and possesses no charter they are particularly persuasive, where the powers to build a railroad. matter of a connection between coal company and railroad is bound up with whole subject of and Phrases, Second Series, Public Utility.]

(Ed. Note.-For other definitions, see Words interstate traffic, of which such commission has jurisdiction.

11. Public service commissions 6-Illinois

Commerce Commission has no powers except 5. Railroads 225—Limitation in order of

those granted by Public Utilities Act. Illinois Commerce Commission held not to

The Illinois Commerce Commission has no change character of spur track, as extension of railroad to private spur track.

powers except those granted it by Public Util

ities Act. Limitation, in order of Illinois Commerce Commission that proposed track from mine 12. Railroads On9 (1) Publio Utilities Act already having shipping facilities to connect

gives Commerce Commission no power to auwith a second railroad pot adjacent to it, thorize private corporation to build railroads. should be used only to haul coal from mine, Public Utilities Act gives Illinois Commerce unless commission's consent for other use was Commission no power to authorize private corbad, did not change character of such track as porations to build railroads. an extension of road, to that of a private spur track, since when built the track would be 13. Railroads Om 225 Connection between open to use of all shippers on adjustment by coal company and railroad not authorized, commission of proportionate cost thereof. though railroad was to build it. 6. Railroads Ow225--Constitution held not to

That proposed track from coal company, authorize coal company to compel connection with a second railroad not adjacent to it, was

already having shipping facilities, to connect with railroads, where amounting to extension.

to be built by railroad, would not authorize Const, art. 13, § 5, requiring railroads to connection, where coal company was to pay for provide certain connections, held not to enti- and own it, and railroad was but agent of coal tle coal company already having shipping fa

company in building track.
cilities to compel a connection with an inter-
state railroad not adjacent to it, where to do
80 would connect two or more railroads, and

Appeal from Circuit Court, Saline Counamount to an extension of them.

ty; A. E. Somers, Judge. 7. Carriers 39—Cannot be required to re

Orders of the Illinois Commerce Commisceive or deliver freight from or to point off sion granting permission to the J. K. Dering

Coal Company to construct and maintain a In absence of constitutional or statutory railroad track, and requiring the Cleveland, provision, railroad cannot be compelled to re- Cincinnati, Chicago & St. Louis Railway Comceive or deliver freight from or to a point off pany to provide and operate a connecting

switch track, were affirmed by the judgment 8. Commerce em8(12)—Statute held not to of the circuit court, and the Railway Comapply to situations coming under Federal pany appeals. Judgment reversed, and orTransportation Act.

ders set aside.
Public Utilities Act, $ 45 (Smith-Hurd Rev.
St. 1923, c. 1112, § 45), requiring railroads

George B. Gillespie, of Springfield (H, N. to provide certain connections with shippers, Quigley, of Cincinnati, Ohio, and P. J. Kolb, does not apply to situations coming under Fed- and M. J. White, both of Mt. Carmel, of eral Transportation Act (Comp. °St. U. S. sicounsel), for appellant.

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

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Miley & Çombe, of Harrisburg, and James | railway extending along the northwest side M. Sheean, C. B. Cardy, and P. J. Wimsey, of the Big Four, and parallel therewith from all of Chicago, for appellee J. K. Dering Eldorado to Carrier Mills, a distance of 20 Coal Co.

miles southwest. The Dering Coal Company

mine is located on the Illinois Central at a STONE, J. Appellant seeks review of a point 2142 miles northwest of the junction of judgment of the circuit court of Saline coun

the Big Four and the Illinois Central at Elty, affirming two certain orders of the ill-dorado. The coal company owns 3,670 acres nois Commerce Commission, one of which of coal lands. The point of these lands neargranted permission to the appellee, the J. K. est to the Big Four is approximately oneDering Coal Company, to construct and main- half mile from it. The evidence of the aptain at grade across the tracks of the Illi- pellees shows that the maximum daily pronois Central Railroad Company, and across duction of the Dering mine is about 3,500 the tracks of the Southern Illinois Railway tons, though its actual production has been & Power Company, and across three high- | between 2,000 and 2,500 tons. ways in Saline county, a railroad track.

The track sought to be laid is that shown The proposed track was to extend south from on the plat as extending in a southwesterly the coal mine of the coal company a distance direction from the tipple of the Dering coal of over 3142 miles, and across the two rail- mine across the Illinois Central railroad, roads and the three highways mentioned, to and thence south to and across the Traction the right of way of the appellant, herein- line, connecting with the Big Four at a point after called the Big Four. The second order southwest of the Wasson mine. It appears appealed from required the appellant to con

that appellant was not made a party to the struct, maintain, and operate on its own petition (known as No. 12819) for permisright of way a switch track, connecting the sion to cross the railroads and highways intrack authorized by the first order with the volved, although that petition states that the main track of appellant. The physical situa- coal company desires to connect with appeltion of the parties affected by these orders lant did not discover that such a petition

lant's road. It further appears that appelis shown by the following plat:

had been filed until after the entry of the

order therein. It then filed a motion with J.K.DERING

the commission to set aside the order, and COAL CO.

for leave to appear and defend against the 24m!

petition. The coal company thereupon filed a further petition (known as No. 12891) to require the Big Four to connect its line with the proposed track when constructed. The

two petitions were then consolidated for

hearing before the commission. N.

The first petition (No. 12819) was filed on November 25, 1922, by the Illinois Central, the Traction line, and the Dering Coal Company as their joint petition, and sets out that the petitioners had agreed among themselves as to the manner in which the crossing should be constructed, and the expense

thereof met, and that such agreement would It will be seen by examining the plat that be reduced to writing, and filed with the the Big Four railroad extends in a south- commission. The petition allegs that the enwesterly direction through Saline county. A tire cost of construction of the track will be branch line of the Illinois Central Railroad borne by the coal company, and prays that Company (hereinafter referred to as the Illi- the commission permit the track to be connois Central) extends from the city of Du- structed and operated as a mine spur-track Quoin, Ill., in southeasterly direction from the mine of the coal company across through the property of the Dering Coal the Illinois Central and the Traction line Company to Eldorado, where it connects with to the Big Four. With this petition were the Big Four. On the Big Four, southwest filed a plat of the proposed track, and the of Eldorado 8 or 10 miles, is Harrisburg, consent of the highway commissioner to the where the principal classification yards of crossing of the highways. On December 14. that road in that section are located, and ap- 1922, the commission entered the order on proximately half way between Harrisburg that petition complained of, finding that the and Eldorado.is what is shown on the plat as construction of the track was necessary to the Wasson Coal Company mine. Both the facilitate movement and distribution of coal Big Four and Illinois Central are interstate | cars from the coal company's mine, and would carriers. The Southern Illinois Railway & not unnecessarily impede or endanger trafPower Company (hereinafter referred to as fic upon the railroads to be crossed; that the Traction line) is an electric interurban the parties had agreed among themselves as

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