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(316 Ill. 67)

PEOPLE v. TYLER. (Supreme Court of Illinois.

(No. 16233.) Feb. 17, 1925.) 1. Robbery 24 (3)-Evidence held to sustain conviction of robbery with dangerous weapon.

Evidence of identification held sufficient to warrant conviction of accused for the crime of robbery while armed with a dangerous weapon.

2. Criminal law 652-Accused held not entitled to test witnesses to his identity by placing him among group of other men.

block and a half. As they turned the corner one of their brakes stuck, and Campbell got out and went to the rear of the machine and

noticed the other machine coming up. He waved to the fellows in it to go to one side, as his machine was in the middle of the road. Instead of continuing on, the other machine stopped behind them. The two fellows jumped out, one on each side of their machine, came up to him and asked what was the matter, and at the same time one of them, Tyler, leveled a gun at him. They then walked him around to the right and in the shadow of his machine, and there Tyler pointed the gun at him and told him to give Tyler his money or anything he had. He told Tyler to take the gun out of his neck and then gave him $15 in United States currency and Tyler put it in his pocket. Tyler then pointed the gun at Howard, who was

As respects sufficiency of evidence identifying accused as the one committing a crime, accused is not entitled to be placed among a group or number of men to test ability of state's witnesses to point him out as the guilty party. Error to Criminal Court, Cook County; in the machine, and asked him how much Frederic R. De Young, Judge.

Richard Tyler was convicted of robbery while armed with a dangerous weapon, and he brings error. Affirmed.

W. G. Anderson, of Chicago, for plaintiff

in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People.

DUNCAN, C. J. Plaintiff in error, Richard Tyler, was jointly indicted with Harold Swart in the criminal court of Cook county for the crime of robbery while armed with a dangerous weapon, a revolver. On a separate trial he was found guilty on March 10, 1924, and sentenced to the penitentiary for an indefinite term. He has sued out this writ of error to review the record.

Only two witnesses testified for the people, Francis J. Campbell, general agent for the Internal Revenue Department, and Samuel Howard, chief deputy United States marshal for the Northern district of Illinois, both of Chicago. Campbell testified in substance as follows: On August 9, 1923, about 3 o'clock in the morning, he and Howard were in an automobile on their way home, traveling north on Sheridan road. While driving up Sheridan road he noticed a machine in their rear driving very quietly. They were driving slowly and this machine continued to remain behind them. They slowed down to let it pass them, and as it passed he noticed that it was an Oldsmobile maroon car, with two young fellows sitting in the front seat. They drove alongside of the other machine for a short ways, and did not pay any more attention to it. When they got to Bryn Mawr avenue they speeded up a bit and passed it. They turned off from Sheridan road into Rosemont avenue and proceeded about a

money he had. He heard Howard, say, "I have some currency," and Howard opened up his bill fold and gave him some money. Tyler asked him if he had any more, and Howard replied that he had some currency in his pocket and gave Tyler that. Tyler then said, "What else have you got?" Howard said, "I have got some change." Tyler said he did not want that and asked Howard what else he had. Howard replied that that was all. Tyler then said, "I will look for myself," and with that he stepped onto the running board of the car and threw back Howard's coat and said, "What is this?" Howard tried to talk him out of taking the star Howard had on his vest. Tyler then said, "You dirty son of a bitch, you get that off, or I will blow your brains out." After that, while Howard was sitting in the machine, Tyler walked Campbell to the other side and put him into the front seat and told him to drive like hell, and that if he looked around he would blow his brains out. The place where they were robbed was in Chicago, Cook county, Illinois.

Howard testified substantially to the same facts related by Campbell. He further testified that he was wearing an officer's star with a diamond set in it, of the value of $2,000, that had been presented to him by the employees in his office and his friends, which Tyler took after uttering some oath, saying that if he did not take the star off quickly he would put a hole through his head. Tyler also took from him his bill fold and took out of it a 50-dollar and a 20-dollar bill of lawful currency of the United States and returned to him the bill fold. Tyler also took from him 4 single dollars, lawful money of the United States, which he had in his pocket, but did not take the change in his pocket which he told Tyler he had.

On cross-examination both Campbell and Howard testified that they had never seen either Tyler or Swart prior to the robbery,

(146 N.E.)

rectly to his clothing, while Howard's attention appears to have been directed particularly to the cap without giving any particular attention to his clothing.

[1, 2] This evidence clearly warranted the verdict and judgment. It was the special province of the jury to settle all questions of fact in the case, and there is no good reason for disturbing the verdict and judgment. There is no requirement of the law that the state must have a defendant placed among a group of any number of men for the purpose of testing whether or not its witnesses and victims of the crime are able to point him out as the guilty party.

and had only seen Tyler once or twice since | hat, but his attention was called more dithe robbery and before the trial. Neither of them had ever seen Tyler in a group of men, or was ever asked to pick Tyler out from such a group. Howard described Tyler as being about 5 feet 6 or 8 inches tall and weighing about 170 pounds, and said that he might be taller than he had testified. He also said that he wore a cap and had dark hair at the time of the robbery, and that he probably did not get a good look at his hair that night. Campbell described Tyler as being about 5 feet 6 or 8 inches tall and wore a checkered suit, and that he did not have a cap on when he walked around to the rear of the machine, and before that he did not know whether he had a cap on. He did not see him change from a hat to a cap, and his best recollection is that Tyler did not wear a cap that night. He did not notice what kind of a hat Tyler had on. He did not know whether it was a straw hat or slouch hat.

The judgment of the criminal court is affirmed.

Judgment affirmed.

DE YOUNG, J., took no part in this decision.

(316 Ill. 104)

CITY OF CHICAGO v. COLLIN et al. (No. 15248.)

(Supreme Court of Illinois.

Feb. 17, 1925.)

1. Appeal and error 1097 (1)-Decision on former appeal is law of case on subsequent appeal, where evidence on two trials was substantially the same.

Tyler testified that he is 23 years old, is 5 feet 10 inches tall, and was about the same size August 9, 1923. He further testified that he did not have a revolver on that date on Rosemont avenue, and denied categorically all the testimony of the state's witnesses as to his having taken any part in the robbery; that he never saw the star alleged to have been taken from Howard; that he had lived in Chicago previous to the alleged holdup, and was in the cigar business with his father at Forty-Seventh street and Ingleside avenue; that Swart is his cousin, but that he had not seen him since Christmas, 1922, previous to his arrest; that he left Chicago for New Orleans with a man named Murphy, and was there arrested, and returned to Chicago voluntarily and without extradition papers. He admitted that in Ju- Grantee, to whom land was conveyed after ly, 1919, he pleaded guilty to a charge of petition for condemnation of land had been burglary before Judge Kavanagh in the crim-filed against grantor, succeeded to grantor's inal court of Cook county, and was sentenced vested rights. to the penitentiary on that plea.

The sole reason assigned by plaintiff in error for a reversal of the judgment is that he was not sufficiently identified by the witnesses as one of the robbers. He therefore argues that his guilt was not established by competent legal evidence beyond all reasonable doubt and that the verdict and judgment were not justified. Both Campbell and Howard positively identified him and on the trial pointed him out in the courtroom as one of the robbers. The only substantial difference between their testimony as to identification was on the question whether or not he on that night wore a hat or a cap. It was the judgment of Howard, positively expressed, that he wore a cap. Campbell expressed it as his opinion that he wore a hat, but was not sure of the character of the hat, and his testimony clearly shows that he did not pay strict attention to his

Decision on former appeal is law of caзe, on subsequent appeal, where the evidence on the two trials was substantially the same. 2. Eminent domain 153-Grantee to whom land was conveyed pending condemnation proceedings against grantor succeeded to grantor's vested rights.

3. Taxation

810(1)—Burden of proving validity of tax deeds on persons claiming thereunder.

Where grantee, to whom land was conveyed pending condemnation proceedings against grantor, filed petition in condemnation proceedings claiming right to the compensation, answered by persons who claimed title by virtue of tax deeds, grantee did not have burden of proving tax deeds void, but burden of establishing validity thereof was on persons claiming thereunder, in view of Revenue Act, § 224 (Smith-Hurd Rev. St. 1923, c. 120, § 210), making such deeds only prima facie evidence of certain facts.

4. Taxation

810(3)-Judgment declaring tax deeds void held warranted.

Where there was no evidence of compliance with Revenue Act, § 216 (Smith-Hurd Rev. St. 1923, c. 120, § 202), as to notice of tax sale, and no evidence that purchaser made affidavit for tax deed as required by section 217 (section 203),

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

and no precept or judgment was shown, court was warranted in declaring tax deeds void.

5. Appeal and error 1195 (3)-Questions which could have been presented are res judicata whether presented or not.

When litigation is prosecuted to an appellate tribunal and questions of law are decided, all such questions relating to the subjectmatter which were open to consideration, and could have been presented, are res judicata whether they were presented or not and whether the judgment was affirmed or reversed. 6. Appeal and error 1195 (3)—Judgment held res judicata as to right of holders of void tax deeds to reimbursement.

In action involving right of holders of void tax titles to reimbursement, in which there was evidence of application to register title under Torrens Act, with offer to reimburse holders

of void tax titles, judgment on appeal denying remuneration under tax deeds held res judicata as to right of reimbursement, though effect of such application was not expressly passed on. 7. Abatement and revival 58(2)-On death of owner, Torrens proceeding abates as to

him.

On death of owner, proceeding for registration of lands under the Torrens Act abates as to him.

of Chicago. The petition for condemnation was filed October 19, 1918. The petitioner was ordered to pay to the county treasurer, as full compensation to the owners and parties interested in the first three lots above named and for all private interests in the alleys abutting said premises, the sum of $1,800, together with $3 as costs of suit, and for the benefit of the owners and parties interested in the other eight lots the sum of $4,800, together with $3 as costs of suit. The taking over of the property by the city of Chicago for the use of the schools occurred some time after the judgments of condemnation and previous to April 8, 1920. On the latter date J. Kent Greene filed his petition in the circuit court of Cook county in the condemnation proceedings claiming to be the owner of lots 4, 45, and 46, together with the improvements thereon, and praying for an order on the county treasurer to pay to him the amount of $1,803, less any sums of money that may be due to any of the other defendants in the condemnation proceedings for liens upon the premises. Anna M. Cann (now Anna M. Condon) filed a similar petition with the court, claiming to be the owner of the other eight lots by virtue of a deed of conveyance from Oscar E. Lein

8. Eminent domain 158-Defendant's grantee not required to join as parties to heren, one of the defendants in the condemnapetition claiming compensation holders of void tax deeds.

Grantee, to whom land was conveyed pending condemnation proceedings against grantor, was not required to make persons claiming under void tax deeds parties to her petition claiming right to compensation, since such persons had the same right to file petition as such grantee.

tion proceedings, executed and delivered to her December 16, 1919. She was not made a party to the condemnation proceedings, but Greene was made a party thereto and claimed title by virtue of a warranty deed from Leinen and wife to him to the three lots, executed and delivered to him September 16, 1910. The petitions were answered by Jacob Glos and Lucy M. Glos,

Appeal from Circuit Court, Cook County; claiming ownership of both funds by virtue Oscar M. Torrison, Judge.

Condemnation proceedings by the City of Chicago against Guillaum Collin and others, in which Anna M. Condon and another filed petitions answered by Jacob Glos and another. From judgment rendered, Jacob Glos and another appeal. Affirmed.

See, also, 302 Ill. 270, 134 N. E. 751. John R. O'Connor and Alben F. Bates, both of Chicago, for appellants.

J. Kent Greene, of Chicago, for appellees.

of tax deeds. The petitions and answers were referred to a master in chancery, who took the evidence and reported that Greene and Anna M. Condon were the owners, respectively, of the lots claimed; that the tax deeds of Jacob Glos and Lucy M. Glos were void; that there was due to Greene $1,631.22 after allowing $171.78 to the city of Chicago; that there was due to Mrs. Condon $4,215.30 after allowing $587.70 to the city of Chicago; that Jacob Glos was entitled to $1,008.18 for reimbursement on his tax claims and Lucy M. Glos was entitled DUNCAN, C. J. On March 15, 1920, judg- to $579.48 on account of her tax claims. On ments in condemnation proceedings were ob- a hearing on exceptions to the report the tained in favor of the city of Chicago, in findings were approved, but one-half of the trust for the use of the schools, against cer- master's fees of $357.50 was taxed to Jacob tain lands, including the lands involved in Glos and Lucy M. Glos, to be paid out of the this proceeding, to wit, lots 4, 45, and 46, in fund, leaving the net amount payable to block 1, in John Nelson's subdivision of the Jacob Glos $894.68 and to Lucy M. Glos southwest quarter of the northwest quarter $514.23. It was stipulated that the charges of the northeast quarter of section 4, town- for the tax claim were to be made against ship 39 north, range 13 east of the third prin- Mrs. Condon, and she appealed from the orcipal meridian, and lots 27 to 34, inclusive, der. Jacob Glos and Lucy M. Glos assigned in the same block, all situated in the city cross-errors. They also appealed, and all

(146 N.E.)

the appeals were consolidated and all errors | lots were subsequently reconveyed to the and cross-errors were disposed of, "with- same grantor of Mrs. Condon. At the time out particular reference to them," by this the lower court ordered this cause resubmitcourt at the February term, 1922, in which ted for further evidence, the petitioner obdecision the decree of the circuit court was jected to such reference or to the further reversed and the cause remanded, as will be taking of evidence upon the ground that the found by reference to City of Chicago v. Supreme Court had completely and finally Collin, 302 Ill. 270, 134 N. E. 751. This court disposed of all matters in issue by its dedenied a rehearing at the April term, 1922. cision aforesaid. The appellants objected We refer to that decision for a more com- to the court limiting further inquiry and eviplete statement of the facts and the issues dence to the question of title to the premtherein decided. ises, only, contending that there should be After remandment of the cause the man- an inquiry also as to the question whether date of this court was filed in the lower court or not appellants were entitled to renumeraMay 1, 1922. The circuit court then ordered tion for the amount of taxes, etc., paid in that the petition of Mrs. Condon, and the securing their tax deeds. The master found issues formed thereon, be submitted to a from the evidence before him that Mrs. Conmaster in chancery of the court for the sole don was the sole owner of the real estate and only purpose of determining whether described in her petition at the date of the she was the owner of the real estate de- taking over of the real estate by the city of scribed in her petition and for determining Chicago. Objections to the report by appelwhether or not Jacob Glos and Lucy M. Glos lants were overruled by the master and were the owners of portions thereof. The stood as exceptions before the court. The master, Samuel A. Andalman, was directed court approved the report and entered a to consider the evidence taken before him decree finding Mrs. Condon was the owner at the former hearing of this petition, the of the lots described in her petition and takanswers, and such other evidence as any of en over by the city of Chicago for the use the parties might produce as to ownership, of the schools; that the tax deeds of appeland that the evidence be confined exclusive- lants are null and void, and that neither ly to the question of ownership. The at- of them is entitled to any portion of the fund torney for Mrs. Condon presented to the mas- deposited with the county treasurer; that ter in chancery the master's report made by the city of Chicago is entitled to the sum of him on the former submission and the evi- $619.90 out of the fund in addition to the dence attached to that report. He also of- $587.70 heretofore paid to it, for taxes, forfered in evidence a certified copy of the feitures, etc., and that Mrs. Condon or her opinion of the Supreme Court above cited. attorney, J. Kent Greene, is entitled to the 302 Ill. 270, 134 N. E. 751. Jacob Glos then remainder of the fund, amounting to $3,595.offered in evidence a quitclaim deed execut- 40, and the county treasurer is ordered to ed by himself and wife, Emma J. Glos, con- disburse the fund accordingly, and to tax all veying to Emma J. Glos, Clara G. Bates, cost of the second reference to the master, Albert Glos, Walter A. Glos, and Mabelle amounting to $216.05, to Jacob and Lucy M. Glos, as joint tenants, "all that particular Glos, who have prosecuted this appeal. interest and estate in land situated in the county of Cook and state of Illinois which the said grantors have acquired by virtue of and by mesne conveyances under taxes heretofore recorded in Cook county, Ill., excepting, however, such of said interests and estate as they have already conveyed by deed of record at the date hereof, situated in the county of Cook and state of Illinois," which deed bears date December 31, 1919. The attorney for Jacob Glos also introduced in condemnation was filed had a vested right evidence on behalf of Emma J. Glos a quitclaim deed by Jacob Glos to Walter A. Glos to all interest in the undivided three-quarters of lots 4, 45, and 46 and also to the other lots, dated October 18, 1918, and recorded October 21, 1918. This was all the evidence allowed on behalf of Jacob Glos, Emma J. Glos, or Lucy M. Glos, except that they introduced a deed of one of the grantors in the chain of title of Mrs. Condon to part of the lots condemned, and that evidence was immediately rebutted by the introduction of two other deeds showing that the

The first question arising on this appeal is as to what questions were decided by this court on the former appeal and as to whether or not that decision finally disposed of all matters before the court, and, if so, whether or not the parties were entitled to any further trial before the lower court, etc. On examination of the decision it is clear that this court decided that the owner of these lots on the day the petition for

in them which could not be impaired by any subsequent legislation passed while that suit was pending, and that as against such owner, Oscar E. Leinen, no then owner of void tax deeds for such lots would be entitled to any remuneration for the taxes, etc., paid in securing the same. In accordance with such holding it was further held that appellants, Jacob Glos and Lucy M. Glos, were not entitled to any of the fund paid into the county treasury for such lots as remuneration for taxes, etc., paid by them in securing their tax deeds. This is clear from a read

ing of the concluding sentence of the opinion, | same on this appeal as it was on the former to wit:

"As no allowance is to be made to Jacob Glos and Lucy M. Glos, the cost taxed to them I will not be taken out of the fund, but will be taxed against them personally."

This court further said:

"There was no reason for referring the petition to a master, but the record shows that the reference was made upon the motion of Greene as solicitor of Anna M. Condon and himself, and we cannot say from the record that anything which occurred before the master would require the taxing of all of his charges to Jacob Glos and Lucy M. Glos."

The proceeding before the circuit court with reference to the fund for distribution in the hands of the treasurer was regarded, not as a proceeding in equity, but as a proceeding at law. No objection of that kind was made in this court, and the court decided all contentions in that record against the appellants. This court decided all question before it at that time and reversed the judgment, of the court and remanded the cause. This is apparent from the language of the opinion in which it is stated:

"All errors and cross-errors will be disposed of without particular reference to them."

It was therefore also decided by this court that Anna M. Condon was the owner in fee of the lots on the evidence then in the record. The lower court properly decided that the question of title, only, was to be settled by it on the remandment of the cause. This is so because the question of remuneration under the tax deeds was absolutely and finally disposed of by this court in the former decision, because it was a question of law settled by the court and no right of trial by jury was involved. On the question of title, on remandment the parties were entitled to a jury, if such was demanded, as appellants had a right to show they had title to the lots by their tax deeds. This is so because several questions of fact might arise on another trial in case appellants sought to prove that they had complied with every requirement under the law to entitle them to tax deeds.

The evidence in the record is substantially the same on this appeal as it was on the former appeal. No jury was demanded. There was no objection to the reference to the master except as aforesaid, and no question was made in the lower court, and none is made in this court, as to his costs and charges being taxed as legal costs in this case. So the only questions for us to pass upon on this record are: First, as to whether or not Anna M. Condon was the fee-simple owner of any part of the lots; and, second, as to whether or not appellants are owners of any part of the lots in fee simple.

appeal, that Anna M. Condon was the feesimple owner of the lots described in her petition, as the evidence in the record is substantially the same. This court having expressly decided that Oscar E. Leinen had a vested right in the lots of Mrs. Condon on the date the petition for condemnation was filed and that no then owner of void tax deeds would be entitled to any remuneration for the taxes, etc., paid in securing the same, Mrs. Condon necessarily succeeded to all such vested rights of Leinen by her deed from him to the lots, executed December 16, 1919, after the petition for condemnation was filed, as we held in our former decision. Fee-simple title in Leinen to the lots now owned by Mrs. Condon, subject to certain liens in favor of Almina E. Wessling and J. Kent Greene, was established by the introduction of a certain decree in the circuit court of Cook county dated January 19, 1907, in a proceeding by Leinen against Almina E. Wessling and others under the Burnt Records Act and the complete record in that proceeding. The petition in the burnt records proceeding in evidence sets forth the complete chain of Leinen's title, beginning with the patent of the government of the United States, showing a connected chain of conveyances therefrom vesting title in him. The circuit court found the allegations true, and decreed, in substance, that Leinen was the owner in fee simple of said lots, subject to the liens aforesaid, as against the whole world except Jacob Glos, Emma J. Glos, Lucy M. Glos, and others holding certain tax deeds for and interests in the same, as to whom the proceeding was dismissed. It is virtually conceded in this case that said decree vested title in fee simple in Leinen except as to the parties interested in the tax deeds and who were dismissed as parties to that proceeding.

[3, 4] The claim of appellants in this case is that that decree of the circuit court is void as to them, as the proof in this record does not establish the fact that their tax deeds are void, and that the burden of establishing such facts was on Anna M. Condon. This is a misconception of the law. Mrs. Condon established her title when she introduced her deed from Leinen, and the burden was then cast upon appellants to prove the validity of their tax deeds. There is no more reason for asserting that Mrs. Condon had the burden of showing the invalidity of appellants' tax deeds, than for the assertion that the burden was on appellants to establish that Mrs. Condon had no title to the premises. Appellants merely introduced their tax deeds and proof as to the amount they had paid out in obtaining the same, for taxes, penalties, etc. Such proof is altogether insufficient to establish any title whatever in the holders of the tax deeds.

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