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(146 N.E.)

tions which he bears to the state or defendant, the manner in which he might be affected by the verdict, the extent to which he is contradicted or corroborated by any other credible evidence, continued:

insanity in connection with other instruc- | if any, in the outcome of the case, the relations upon that subject, but not in connection with instructions 6, 10, and 11, which directed a verdict, and as to these instructions the defense of insanity thus being made was taken out of the case. It was error to give these instructions.

[14-16] Instruction 2 refers to implied malice but ignores the question of insanity, and the instructions do not anywhere require the question of insanity to be considered in connection with the question of implied malice. For this reason the instruction should not have been given. Instruction No. 16, given at the request of the people, was as follows: "The court instructs the jury that in order to find the defendant not guilty on the ground of insanity, such insanity must be so clearly proven as to raise a reasonable and wellfounded doubt of the defendant's guilt when the whole evidence is taken together, and not a mere shadow or possibility of a doubt."

[17] This imposed the burden of proving insanity upon the plaintiff in error, and was erroneous for that reason. The burden of proving the sanity of the accused in a criminal case, where his sanity is in issue, is always on the prosecution, and it is not necessary, before the jury can find the defendant not guilty, that insanity should be proved clearly or even by a preponderance of the evidence. It is only necessary that there should be evidence tending to prove insanity sufficient, in connection with all the evidence, to raise a reasonable doubt of the defendant's guilt. People v. Penman, 271 Ill. 82, 110 N. E. 894; Dacey v. People, 116 Ill. 555, 6 N. E. 165. The use of the words "clearly proven," in the instruction, was erroneous. So was the use of the word "well-founded" in connection with reasonable doubt. Many attempts have been made to define reasonable doubt, but it may well be doubted whether they have not confused rather than been of any material assistance to the jurors, whom they were supposed to enlighten. It certainly is of no benefit to the juror or help to his arriving at a verdict to add to the requirement of a reasonable doubt the requisite that it shall also be well founded. The law gives the defendant the right to an acquittal if there is a reasonable doubt of his guilt. If a reasonable doubt actually exists, it is sufficient whether well or ill founded. Jurors have always been told that a reasonable doubt of guilt was sufficient to entitle the defendant to a verdict of not guilty. Now to say to them that the doubt must be well founded is merely to introduce confusion. People v. Davis, 300 Ill. 226, 133 N. E. 320. [18] Instruction No. 4 advised the jury in regard to judging of the credibility of witnesses, and after saying that the jurors should consider all the circumstances under which any witness testified, his demeanor and manner while on the stand, his interest,

"And any circumstances that tend to shed light upon his credibility. You should determine the amount of credence to which each statement is entitled at your hands as reasonable and intelligent men."

The instruction, after enumerating circumstances to be considered, ended by directing the jury that they should take into consideration any circumstances, and determine the credibility as reasonable and intelligent men. This left the jurors merely to act on their own discretion. It told them that, without any reference to the evidence in the case, or what occurred during the trial, they were at liberty to determine the credibility of the witnesses according to their own judgment, without any guidance from the court as to the reasons which might be proper to consider in determining the credibility of witnesses.

[19] The defendant asked an instruction, No. 6, which was refused. It stated the rule requiring the jury to be satisfied of the guilt of the defendant beyond a reasonable doubt, requires that the entire verdict which may be rendered upon the evidence shall be justified in the minds of the jury beyond a reasonable doubt; that is, not only the question of guilt must be so determined, but the evidence from which the penalty is fixed should likewise establish, in the minds of the jury, a conviction, beyond a reasonable doubt, that the evidence justifies and requires the penalty fixed in the verdict which may be found by the jury; "and unless the jury can upon their oaths say that the punishment fixed by the verdict has been established beyond a reasonable doubt, and that they have a conscientious belief that such penalty is just and required by the law, then such verdict is unauthorized, and a lesser penalty should be fixed which meets with the requirement of representing the judgment of the jury beyond a reasonable doubt from the evidence." The doctrine of reasonable doubt has no application in the determination of the jury as to the penalty to be imposed. When the guilt of the defendant has been established beyond a reasonable doubt, the question of the penalty is committed by the law to the discretion of the jury, subject to the revision of the court on motion for a new trial. The punishment cannot be "established beyond a reasonable doubt." It is a question of judgment, to be exercised upon a consideration of the facts proved, and the instruction requested, instead of giving any information to the jury as to their duties, would have no other effect than to introduce confusion into their deliberations. The imposition of the

death penalty in a verdict of guilty of murder, or of imprisonment for life or for 14 years, or any other term, can never be said to be established beyond a reasonable doubt, but is a question to be determined by the jury from a consideration of all the facts proved in the case.

[20] The state's attorney, in his argument to the jury, proposed to read from page 18 of the case of State v. Ehlers, 119 A. 15, and counsel for the defendant objected on the ground that it was not a proposition of law but a statement of purported fact or opinion which he was proposing to read. The court overruled the objection, and counsel read the portion of the opinion which he desired, as follows, quoting the testimony of an expert on the subject of epilepsy:

"He (the expert) also explained as to the mental age of twelve years that that was the average mental age of the men of the American army in the World War, thereby clearly demonstrating, as he frankly admitted (he said, 'It was not worth shucks as applied to adults'), what has been the observation of practically all 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 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 administration of justice by trial by jury."

Dr. Hickson testified in regard to the mental age theory of the experts, about which the witness in the case from which the state's attorney read to the jury testified, that it was a system, proved by the different cases which he had examined, used in the Rush Medical College, the Psycopathic Hospital, the juvenile .courts in various cities, and many insane hospitals and many preparatory schools. It was the system as to which the testimony of the expert that "it was not worth shucks as applied to adults" was introduced to the jury during the argument after the evidence was closed, without opportunity of cross-examination, and the testimony itself was pure hearsay in this case. Such a use of reported cases is not proper under the pretense of arguing the law to the jury. In the case of People v. Rees, 268 Ill. 585, 109 N. E. 473, the state's attorney read from reported cases a statement of the facts which the court said there was no reason for reading to enable the jury to understand any rule of law, and the only purpose or effect of the recital of the evidence was to show the similarity of the case read from to the case on trial, and to lead the jury to a conclusion of fact as to the guilt of the defendant. The court said that the general rule is that counsel may read extracts from the opinions in reported cases bearing upon the law in the case, but not the facts in the opinions. The plaintiff in

error had a right to have his case submitted to the jury on the evidence introduced in the case, uninfluenced by the statement of a witness on the trial of another case in another court in another state, and the weight of the opinion of that court on the question of fact that the theory of the expert witnesses who testified in his behalf was utterly misleading to a layman, and practically useless, if not worse than useless, in the administration of justice in a trial by jury. The introduction at this time of such evidence was erroneous, and was prejudicial to the plaintiff in error.

Other statements made by the state's attorney in the argument were objected to, but they ought not to occur on another trial, and it will not be necessary to consider them.

[21] The evidence as to the mental capacity of the plaintiff in error was such that he was entitled to have the jury accurately instructed.

The judgment will be reversed and the cause remanded.

Reversed and remanded.

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1. Commerce 27 (1)-Proposed track from coal company, already having shipping facilities to connect with second railroad not adjacent to company, held not a private "spur track," which state commission can authorize.

Proposed track from coal mine having ex

isting shipping facilities, to connect with a second railroad not adjacent to it, held not a spur track construction of which the Illinois Commerce Commission has jurisdiction to authorize under Public Utilities Act, §§ 45, 58 (SmithHurd Rev. St. 1923, c. 111%, §§ 45, 62), or under Mines Act, § 1 (Smith-Hurd Rev. St. 1923, c. 94, § 1), or under Const. art. 13, § 5, where by agreement two other railroads constituted a physical connection of three railwere granted operating rights over it, and it roads completely adapted to extension of their lines.

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

2. Evidence ~~20 (2) Common knowledge that term "spur track" is given wider application than ordinary definition.

term "spur track" is given a somewhat wider It is a matter of common knowledge that meaning than "a track" leading from a line of railway, and connected with it at one end only, synonymous with "stub track," the definition of standard lexicographers.

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3. Commerce 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 company constituting "extension" of road sought

to be connected with.

Proposed track from coal company already having shipping facilities, to connect with second railroad not adjacent to it, held to constitute an "extension" of such road within meaning of Interstate Commerce Act, § 1, pars. 18-22, as amended Feb. 28, 1920 (Comp. St. Ann. Supp. U. S. 1923, § 8563), and hence to be a matter in which sole jurisdiction was vested in Interstate Commerce Commission. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Extend -Extension.]

4. Commerce 88 Rulings of Interstate Commerce Commission particularly persuasive, where matter of connection with railroad bound up with interstate traffic.

While rulings of Interstate Commerce Commission are not binding on Supreme Court, they are particularly persuasive, where the matter of a connection between coal company and railroad is bound up with whole subject of interstate traffic, of which such commission has jurisdiction.

5. Railroads 225-Limitation in order of Illinois Commerce Commission held not to change character of spur track, as extension of railroad to private spur track.

Limitation, in order of Illinois Commerce Commission that proposed track from mine already having shipping facilities to connect with a second railroad not adjacent to it, should be used only to haul coal from mine, unless commission's consent for other use was had, did not change character of such track as an extension of road, to that of a private spur track, since when built the track would be open to use of all shippers on adjustment by commission of proportionate cost thereof. 6. Railroads 225-Constitution held not to

authorize coal company to compel connection with railroads, where amounting to extension. Const. art. 13, § 5, requiring railroads to provide certain connections, held not to entitle coal company already having shipping facilities to compel a connection with an interstate railroad not adjacent to it, where to do so would connect two or more railroads, and amount to an extension of them.

7. Carriers 39-Cannot be required to receive or deliver freight from or to point off its lines.

In absence of constitutional or statutory provision, railroad cannot be compelled to receive or deliver freight from or to a point off its lines.

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9. Eminent domain 33—Statute held not to give coal company power to force connection with railroad without sanction of legal authority.

Mines Act, § 1 (Smith-Hurd Rev. St. 1923, c. 94, § 1), authorizing a mining company to build a track leading to its mines, where it is so situated that it cannot be conveniently worked without it, held not to authorize coal company to build a connecting track between two railroads, or to force connection with a railroad on which it is not located, without sanction of legal authority, where its mine is being conveniently worked with existing facil

ities.

10. Mines and minerals 105(1)-Coal corporation not a "public utility."

A coal corporation is not a public utility, in view of Public Utilities Act, § 10 (SmithHurd Rev. St. 1923, c. 111%, § 10), but is a private enterprise, and possesses no charter powers to build a railroad.

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Public Utility.] 11. Public service commissions 6-Illinois Commerce Commission has no powers except those granted by Public Utilities Act.

The Illinois Commerce Commission has no powers except those granted it by Public Utilities Act.

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Appeal from Circuit Court, Saline County; A. E. Somers, Judge.

Orders of the Illinois Commerce Commission granting permission to the J. K. Dering Coal Company to construct and maintain a railroad track, and requiring the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to provide and operate a connecting switch track, were affirmed by the judgment of the circuit court, and the Railway Company appeals. Judgment reversed, and orders set aside.

Public Utilities Act, § 45 (Smith-Hurd Rev. St. 1923, c. 111%, § 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. §counsel), for appellant.

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

Miley & Combe, 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 point 21⁄2 miles northwest of the junction of the Big Four and the Illinois Central at Eldorado. The coal company owns 3,670 acres of coal lands. The point of these lands nearest to the Big Four is approximately onehalf mile from it. The evidence of the appellees shows that the maximum daily production of the Dering mine is about 3,500 tons, though its actual production has been

.

STONE, J. Appellant seeks review of a judgment of the circuit court of Saline county, affirming two certain orders of the Illinois Commerce Commission, one of which granted permission to the appellee, the J. K. Dering Coal Company, to construct and maintain at grade across the tracks of the Illinois Central Railroad Company, and across the tracks of the Southern Illinois Railway & Power Company, and across three high-between 2,000 and 2,500 tons. ways in Saline county, a railroad track. The proposed track was to extend south from the coal mine of the coal company a distance of over 31⁄2 miles, and across the two railroads and the three highways mentioned, to the right of way of the appellant, hereinafter called the Big Four. The second order appealed from required the appellant to construct, maintain, and operate on its own right of way a switch track, connecting the track authorized by the first order with the main track of appellant. The physical situation of the parties affected by these orders is shown by the following plat:

NIGHWAY

HIGHWAY

HIGHWAY

J.K.DERING
COAL CO.

PROPOSED TRACK

32 Mi

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So. ILL. R.R. & POWER Co.

c., c.c. & ST. L.R.R.CO.

WASSON
MINE

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The track sought to be laid is that shown on the plat as extending in a southwesterly direction from the tipple of the Dering coal mine across the Illinois Central railroad, and thence south to and across the Traction line, connecting with the Big Four at a point southwest of the Wasson mine. It appears that appellant was not made a party to the sion to cross the railroads and highways inpetition (known as No. 12819) for permisvolved, although that petition states that the coal company desires to connect with appellant did not discover that such a petition lant's road. It further appears that appelhad been filed until after the entry of the order therein. It then filed a motion with the commission to set aside the order, and for leave to appear and defend against the 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.

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 branch line of the Illinois Central Railroad Company (hereinafter referred to as the Illinois Central) extends from the city of DuQuoin, Ill., in a southeasterly direction through the property of the Dering Coal Company to Eldorado, where it connects with the Big Four. On the Big Four, southwest of Eldorado 8 or 10 miles, is Harrisburg, where the principal classification yards of that road in that section are located, and approximately half way between Harrisburg and Eldorado is what is shown on the plat as the Wasson Coal Company mine. Both the Big Four and Illinois Central are interstate carriers. The Southern Illinois Railway & Power Company (hereinafter referred to as

tire cost of construction of the track will be borne by the coal company, and prays that the commission permit the track to be constructed and operated as a mine spur-track from the mine of the coal company across the Illinois Central and the Traction line to the Big Four. With this petition were filed a plat of the proposed track, and the consent of the highway commissioner to the crossing of the highways. On December 14. 1922, the commission entered the order on that petition complained of, finding that the construction of the track was necessary to facilitate movement and distribution of coal cars from the coal company's mine, and would not unnecessarily impede or endanger traffic upon the railroads to be crossed; that

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to the construction of the crossing and the expense connected therewith, and permission was granted to construct this track across the railways and highways mentioned. The second petition (No. 12891) was filed December 27, 1922, directed against appellant alone. After setting out that the coal company needed connection with appellant's line for distribution of coal, and that permission had been granted to construct the track referred to in petition No. 12819, it prays for an order requiring the Big Four to construct, maintain, and operate a switch track connecting the proposed track of the petitioners with the tracks of the Big Four in accordance with a plat filed. The appellant filed an answer denying the reasonableness or necessity of such connection, alleging that the construction of the so-called mine lead track was to obtain additional car supply, and denying the jurisdiction of the commission to authorize its construction. Appellant's counsel also moved to dismiss the petition for want of jurisdiction of the Illinois Commerce Commission, for the reason that it was, in substance, a petition for car distribution and supply, which is controlled by the Interstate Commerce Commission, and for the further reason that it was a proceeding to establish a connection between two railroads, and to extend the lines of each within the meaning of the law, which matter is also within the sole jurisdiction of the Interstate Commerce Commission under the Federal Transportation Act.

Evidence was heard touching the question of the necessity for this additional service for the coal company. Its evidence was to the effect that the track in question is necessary by reason of lack of cars and service; that the normal maximum output of its mine cannot be had without it. The evidence of appellant shows that it has expended the sum of $16,000,000 in procuring equipment and facilities for handling coal in the territory served by it; that in order to handle the additional coal from this mine it would be necessary for appellant to enlarge its equipment and to extend its classification yards at Harrisburg; that service rendered to this mine or to other industries and businesses which may locate along the proposed track would seriously limit the service now being afforded to the industries on its own line, and that it would be unreasonable to require it to take on such further extension.

At the close of petitioners' evidence, and at the close of all the evidence, counsel for appellant again moved to dismiss these petitions on the ground that the evidence showed that the proposed track would be a railroad connecting the Illinois Central and the Traction line with appellant, and would amount to the extension of such lines, and that this was a matter over which the Interstate Commerce Commission had exclusive jurisdiction. 146 N.E.-39

This motion was also based on the ground that the coal company was attempting to construct a railroad to be operated for general commercial purposes, without charter powers so to do.

The record shows that this line of the Illinois Central is a branch of a very large system of railroads having a number of branch lines supplying numerous other coal mines in that region. No complaint to the Illinois Central arising out of lack of cars appears to have been made, or any proceedings had to secure more service from it. It is not shown that the coal company is unable to reach any desirable market with the service given by the Illinois Central. It also appeared on the hearing that the coal company had entered into a contract with the Illinois Central to build the proposed track at the expense of the coal company. By this contract the coal company gave to the Illinois Central the right to operate over the track with its trains and cars, the right to extend other tracks from it to other mines and properties, to change the grade of the track, to maintain additional crossings, to have the right of way in operation of its trains over the crossings, and to connect this track with its main line track. The agreement also provided that the Illinois Central was to maintain the track in good order at the expense of the coal company; that the Illinois Central agreed to operate its trains over this track in such manner as not to unreasonably interfere with the use thereof by other companies. The contract also provided that, when the coal company no longer desired the use of the track, the Illinois Central could purchase it, if it desired, at the actual cost thereof. The coal company by this contract was not permitted to sell the track to any other railroad company without the consent of the Illinois Central. The coal company also entered into a contract with the Traction company providing for a crossing over its railway and a wye connection with it, and for the operation of the track jointly with the Illinois Central for passenger and freight service, conferring on the Traction company privileges similar to those granted to the Illinois Central, but subject thereto.

At the close of the hearing of the evidence the petitioners in petition No. 12819 moved to modify the order entered on December 14, 1922, in that cause by limiting the use of the proposed track to that of a private mine track. This was done, and the order of December 14 in that cause otherwise adherred to. The commission also entered an order in No. 12891 confirming the building of the track, and ordering the connection with appellant, but provided in both orders that, notwithstanding the contract between the coal company and the railway companies, the track, when built and connected with the Big Four, should not be used for any other

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