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who could take them down if counsel wished, would not necessarily in every case cause a
to secure their services. The court reporter reversal (Spahn V. People, 137 IIl. 538, 27
was acting, as we understand the record, un- N. E 688), it was very apt to inflame the
der the provisions of the statute providing minds of the jury to the prejudice of the
for the appointment by the circuit judges of defendant. The trial court should have
court reporters in counties outside of the promptly sustained the objection to such re-
county of Cook to take down evidence in all marks and have instructed the jury orally at
trials. Hurd's Stat. 1916, p. 795. This stat- once, and, if requested, in writing later, to
ute, fairly construed, authorizes the reporter disregard such statements in their considera.
to take down the arguments of counsel as tion of the case. See Earll v. People, 99 Ill.
well as the evidence. The court, on request 123; Raggio v. People, 135 Ill. 533, 26 N. E.
of counsel, should have required the closing 377.
arguments to be taken down by the court re Objections were also made to the giving of
porter. We do not think, however, that the certain instructions for the people upon the
facts stated with reference to the reporter ground that they were argumentative and
not taking down in shorthand the closing did not state the law clearly. While there
arguments would be a justification for re- may be some basis for these objections on
versing this case, though we do not agree both of these points, we do not consider that
with counsel for the state that it was the reversible error was thereby committed.
duty of plaintiff in error to have these clos (21) Counsel for the plaintiff in error filed
ing arguments taken down in shorthand if affidavits showing that intoxicating liquors
he desired to object to anything that was were drunk by the jurors during the consid-
stated therein by the state's attorney. Coun- eration of the case. Counter affidavits were
sel for the state did not deny on the record bled on behalf of all the jurors and others
the truthfulness of the affidavit that the admitting that a small amount of such liquor
state's attorney made such statements in his was drunk, principally at meals, during the
closing argument, and the only attempt at several days occupied by the trial, but stat.
justification in the state's brief is that a few ing that no juror was at any time Intoxicat-
scattered sentences were picked out by coun- ed or that such drinking of intoxicating liq.
sel in making his affidavit and placed to- uors in any way affected the outcome of
gether as if they were all stated at the same the case. The affidavits on behalf of plain.
time.

tiff in error do not assert, in terms, that
[19, 20) The state further claims that coun- intoxicating liquor was drunk to excess by
sel for plaintiff in error should not have the jurors or that their verdict was in any
been permitted, under the rulings of this way thereby influenced. There can be no
court, to make the affidavit on motion for a question that it is grave misconduct on the
new trial. True, we have held it is not ethi- part of jurors to use intoxicating liquor to
cal for counsel to testify in a case he is try- excess during their consideration of a case,
ing, but that fact only goes to the weight of and some authorities have held it improper
his testimony and not to its admissibility. for jurors to use intoxicating liquor in any
Even if this rule should apply to counsel amount, or for the court to permit it to be
making affidavits on motion for a new trial, used in any amount, during their delibera-
on the record before us the affidavit of coun- tions on the case, except, perhaps, for medic-
sel for plaintiff in error on this question has inal purposes on a proper showing to the
been in no way impeached or contradicted. court and under proper restrictions. 2
We must accept it as stating the facts as Thompson on Trials (2d Ed.) 88 2566, 2567;
they occurred. Rarely, if ever, is a lawyer 12 Cyc. 725. Under the rulings of this court
justified in stating his personal belief that on the record before us we do not think re-
the cause he is representing is just. Shars- versible error was committed in permitting
wood's Legal Ethics, 99; Weeks on Attor- the drinking of the intoxicating liquor in
neys and Counselors at Law (2d Ed.) 8 113b. question. Sanitary District v. Cullerton, 147
Such action is not considered professional. III. 385, 35 N. E. 723; Davis v. People, 19
By so doing he makes himself a witness with. Ill. 74.
out the opportunity of being cross-examined. For the reasons stated, the judgment of
Such practice would almost necessarily place the circuit court will be reversed, and the
the counsel for the accused at a disadvantage cause remanded to that court for further
as opposed to a prosecuting officer, who proceedings according to the due course of
should only desire to have a conviction if he law.
knows the accused is guilty. 2 Thornton on Reversed and remanded.
Attorneys at Law, § 712, and cted cases.
While such a statement by the state's attorney | CRAIG, C. J., and FARE'n, J., disseut.

8. CRYMINAL LAW S126(1),VENUE-PET - Toy Cent. Dig. $ 3133; Dec. Dig. w1170 43

(276 Ill. 304)

8. CRIMINAL LAW C117012) - APPEAL – PEOPLE V. MURPHY. (No. 10872.)

HARMLESS ERROR.

Where the court limited the cross-examina(Supreme Court of Illinois. Dec. 21, 1916.) tion of witnesses, but later permitted them to

answer the questions, any error was cured. 1. HOMICIDE 234(1)-GUILT OF MURDER [Ed. Note.--For other cases, see Criminal SUFFICIENCY OF EVIDENCE.

Law, Cent. Dig. & 3133; Dec. Dig. w117042 In a prosecution for murder, evidence held (5).] sufficient to show defendant's guilt.

[Ed. Note.-For other cases, see Homicide, 9. CRIMINAL LAW e117042(5) - CROSS-ExCent. Dig. $ 482; Dec. Dig. 234(1).]

AMINATION-REFUSAL OF WITNESS TO AN

BWER SUSTAINING OBJECTION TO QUES2. CRIMINAL LAW Cm1186(1)-APPEAL-RE

TION. VERSAL-EVIDENCE.

Where a witness in a murder case was ask. Where defendant has been clearly proven ed on cross-examination what his first name guilty of crime, the Supreme Court cannot legal was, whether the name he gave was the name ly reverse judgment of conviction, unless the given him at birth, and also where his home record discloses some serious error having ten was, all of which he declined to answer, and dency to prejudice bim unduly with the jury. the court ruled that he should answer, but

[Ed Note.-For other cases, see Criminal later, on the witness' refusal, sustained ob. Law, Cent. Dig. 88 3215–3217, 3219, 3230; Dec. jection, there was technical error. Dig.' 11861).]

(Ed. Note.-For other cases,

see Criminal

Law, TION FOR

On petition for change of venue on the 10. CRIMINAL LAW Ow117042(5) - APPEAL – ground of prejudice in the county, the real HARMLESS ERROR. question to be determined is not whether or Such technical error was harmless where not the evidentiary facts in the petition are the witness answered that he was in jail, comproved, but whether, on all the evidence admit- mitted on charge of felony, since he was more ted, there is reasonable ground for fear that discredited in his refusal to answer than if he the alleged prejudice actually exists and that had made full answers as to his name and resithe defendant will not receive a fair and impar- dence. tial trial.

(Ed. Note.-For other cases, see Criminal (Ed Note.-For other cases, see Criminal Law, Cent. Dig. $ 3133; Dec. Dig. w117012 Law, Cent. Dig. § 243; Dec. Dig. Om 126(1).) (5).] 4. CRIMINAL LAW 134(4)—VENUE-PREJU. 11. CRIMINAL LAW 365(1) – EVIDENCE – DICE-SUFFICIENCY OF EVIDENCE.

RES GESTÆ. In a prosecution for murder, evidence pre

In a prosecution for murder of one brother, bented on defendant's petition for change of where the evidence in reference to the killing venue on the ground of the prejudice of the of another brother was inseparable from the inhabitants of the county held to show that evidence in relation to the killing of the first, there was no such general prejudice prevalent it was admissible as part of the res gestæ. as would be likely to prevent or interfere with

(Ed. Note. For other cases, see Criminal the due administration of justice,

Law, Cent. Dig. $ 807; Dec. Dig. Om365(1).] [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. 134(4).) 12. HOMICIDE O 170—EVIDENCE-OTHER OF

FENSES. 8. COURTS 56–TRIAL-INTERPRETER.

In a prosecution for the murder of one The interpreter in a criminal case was not brother, evidence as to the character of the disqualified because he was an officer of the wounds on the body of another brother killed city police.

at the same time was admissible, where the [Ed. Note.-For other cases, see Courts, character of the wounds was shown by the eviCent. Dig. $8 194–197; Dec. Dig. Om 56; Wit dence to point to the owner of a blue steel renesses, Cent. Dig. § 812.]

volver as the person who committed the double

murder, shown by evidence to have been com6. CRIMINAL LAW Om 660—TRIAL_OBJECTION mitted at the same time and by the same man. TO INTERPRETER-WAIVER.

[Ed. Note.-For other cases, see Homicide, In a prosecution for the murder of two cent. Dig. § 305; Dec. Dig. Om 170.) Greeks, where defendant objected to an interpreter on the ground that he was an officer 13. CRIMINAL LAW Ow388EVIDENCE--Exof the city police, and the court continued the

PERIMENTS IN ABSENCE OF DEFENDANT, case until the afternoon for the defense to pro The fact that experiments were made in the duce an interpreter, but defendant informed the absence of defendant on the body of deceased court when it reconvened that his interpreter to discover if defendant's revolver might have had gone away and that the defense would have caused the wounds in the head went merely to to go on without him, defendant thereby waiv. the weight of the evidence, and not to its aded his objection.

missibility. (Ed. Note.-For other cases, see Criminal [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1536, 1537; Dec. Dig. Law, Cent. Dig. 8 854; Dec. Dig. 388.] 660.)

14. CRIMINAL LAW E374EVIDENCE-Posi7. WITNESSES em 230 - TRIAL - FAIRNESS OF

TIVE IDENTIFICATION OF DEFENDANT INTERPRETER.

FELON. In a prosecution of two defendants, a large In a prosecution for murder, where an ofand a small man, for the murder of two Greeks, ficer of a city in another state positively idenan interpreter, a member of the city police, tified defendant as the person whose convicwas not unfair because, when a witness used tion of the infamous crime of burglary was the Greek words "megalos" and "mikros,” shown by an exhibit, but later qualified his idenmeaning “big man" and "little man," the inter- tification, the court properly refused to exclude preter designated the defendant indicated. the evidence.

(Ed. Note.-For other cases, see Witnesses, (Ed. Note.-For other cases, see Crimina) Cent. Dig. $$ 811, 812: Dec. Dig. 230.] Law, Cent. Dig. $ 835; Dec. Dig. Om 374.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and lodexes 114 N.E.-39

AS

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15. CRIMINAL LAW 1169(1) APPEAL the penitentiary, and the sentence of plaintiff HARMLESS ERROR-EVIDENCE.

in error was the death penalty. This writ In a prosecution for murder, where an officer of a city in another state positively iden- of error is prosecuted to have reviewed the tified defendant as the person whose convic- judgment of the court in the latter case. tion of burglary was shown by an exhibit, but he later qualified his identification, and after tially as follows: On November 9, 1915, four

The facts proven in this case are substancross-examination the state's attorney asked to have the exhibit withdrawn and the evidence Greek brothers, Tom, John, George, and Louis excluded, and the court instructed to disregard Roumas, were working for a railroad comthe excluded evidence and give it no considera- pany, and were living in a bunk car at Hilltion, defendant was not unduly prejudiced.

[Ed. Note.-For other cases, see Criminal ery, a small station on the Peoria division of Law, Cent. Dig. $ 3137; Dec. Dig. Em1169(1).] the Big Four Railroad in said county, a few

miles west of Danville. The car was 16. CRIMINAL LAW m713 ARGUMENT OF STATE'S COUNSEL.

freight box car that had been taken off its In a prosecution for murder, the remark trucks and set upon the ground, with its ends of counsel for the state in argument to the facing, respectively, the east and the west. jury, "There is a parole law which turns them out as fast as it gets them there,” meaning that in the middle of the south side of the car the parole law turns criminals out of the peni- was a door that opened into the car, and the tentiary as fast as they get there, was improp- interior of the car was divided by a partition er, since the parole law has no application just west of the door. A door in the parti. whatever to criminal trials. [Ed. Note. For other cases, see Criminal

tion opened from the west room of the car. Law, Cent. Dig. 88 1663, 1678; Dec. Dig. Om On that night the Greeks went to bed be 713.)

tween 9 and 10 o'clock. Tom Roumas was 17. CRIMINAL LAW Ow1171(1)-APPEAL AND sleeping on a bed in the southeast corner of

ERROR HARMLESS ERROR REMARK OF the east room of the car, his head to the STATE'S ATTORNEY.

In a prosecution of two defendants for east, and there was no light in that room. murder, where the penalty of death was inflict- John and George Roumas occupied a bed in ed by the jury as to plaintiff in error and a sen- the west end of the west room of the car. tence of 99 years given his codefendant, the Their heads were to the south. Louis Rouremark of state's counsel in argument that, “There is a parole law which turns them out mas occupied a bed just west of the partition as fast as it gets them there," meaning the pen- and on the north side of the west room. His itentiary, which was not specially directed to head was to the west. A lighted lamp bung the plaintiff in error, was harmless, the evidence against him being stronger than against on the south wall of the west room, about his codefendant, showing that plaintiff in error five feet from the floor and about three feet was the one who killed both the murdered men, from the bed in the west end of the room. A since the remarks did not figure in fixing plain-stove with fire in it was in the southeast cortiff in error's penalty.

[Ed. Note.-For other cases, 'see Criminal ner of the west room, the door of which was Law, Cent. Dig. $ 3127; Dec. Dig. Om 1171(1).] open. The outside door was fastened on the 18. CRIMINAL LAW Om 1186(4)—APPEAL AND inside with a bolt latch. Shortly after the ERROR-REVERSAL-HARMLESS ERROR.

Roumas brothers had gone to bed the south It should not be and is not the policy of the door of the car was forced open by two neSupreme Court in a criminal case to reverse a groes, plaintiff in error and Milton Armjudgment merely because error has been committed, unless it appears that real justice has strong. Plaintiff in error was armed with a been denied thereby, or the verdict of the jury blue steel revolver in one hand and had in the or the judgment may have resulted from the other a large flash light, and went to the error.

bed where Tom was asleep in the east room. (Ed. Note.-For other cases, see Criminal Law, Dec. Dig. 1186(4).]

He pointed the revolver at Tom's head and

forced him to go into the west room, where Error to Circuit Court, Vermilion County ; Armstrong had gone armed with a nickelWalter Brewer, Judge.

plated revolver and a small flash light. Charles Murphy was convicted of murder, George and John had already gotten out of and he brings error. Judgment affirmed.

bed by order of Armstrong and were facing Oliver D. Mann, of Danville, for plaintiff in him with their hands up. Tom was then

P. J. Lucey, Atty. Gen., John H. Lew- placed close to George and John, and all man, State's Atty., of Danville, and C. H. three of them had their hands up, facing the Linscott, of Springfield, for the People. two negroes, who were standing near the

door in the partition, covering the Greeks DUNCAN, J. Plaintiff in error and Milton with their revolvers. George asked what Armstrong were convicted of murder in the they wanted. Plaintiff in error then held his circuit court of Vermilion county on two flash light near Louis' face, who was lying separate indictments. The first charged them upon the bed. Louis rose up and sat with with the murder of George Roumas, and they his hands on his chin. He made a movewere each sentenced on the verdict in that ment with his hand, and plaintiff in error case for a term of 99 years. The second in- immediately shot him twice. One of the dictment charged them with the murder of bullets went through his head and the other Louis Roumas, and in that case Milton Arm- struck him in the side, and he fell dead bestrong's punishment was fixed at 99 years in Itween the bed and the partition. George

error.

then grabbed plaintiff in error by the hand , soft-pointed bullets of .38 caliber, and the and the wrist. They wrestled and scuffled barrel was slightly bent, and the revolver with each other through the partition door, had been thoroughly cleaned and oiled. The and finally out through the south door onto nickel-plated revolver was loaded, when takthe ground. John and Tom during this time en by the officers, with steel-jacketed bullets were looking after Louis, whom they found of .38 caliber. Two steel-jacketed bullets of to be dead, and while over his body they .38 caliber were found on the scene of the heard some one in the other room of the car murder, one near the body of George Rousay, “Shoot, Murphy!" Tom and John did mas, and one in the car near the body of not see what took place outside of the car, Louis Roumas, the latter bullet being shown but heard three shots, and in a short while to have been one fired at Louis Roumas, both they went out and found George outside on of which were exhibits on the trial. the ground near the car dead, and then gave Ora Calvin, a pawnbroker doing business the alarm,

in Champaign in November, 1915, and prior The foregoing facts were testified to by thereto, knew Murphy, and testified that MurJohn and Tom Roumas. They were very pos- phy pawned to him the blue steel revolver itive in their identification of plaintiff in er- in evidence October 12, 1915, for money borror, whom the evidence shows to be a large rowed by Murphy, redeemed it October 25, man, and also positively identified Arm- again pawned it October 28, and again re strong, whom the evidence shows to be a deemed it November 8, 1915, the day before much smaller man. They also testified that the killing of the two Greeks. He also testwo revolvers and two flash lights exhibited tified that the barrel of the gun was not bent in evidence were the same revolvers and flash when it was pledged to him, and that it lights used on that night by Murphy and would shoot steel-jacketed bullets or "softArmstrong or just like them.

nosed" bullets. On cross-examination he The testimony of the two Greeks was cor- stated that it was possible that the gun was roborated by a number of witnesses who saw bent when he had it, but that he did not Murphy in Hillery or in the vicinity of the think it was. bunk car the afternoon of the murder. Plez William Higgason testified that Armstrong Hubbard testified that he saw him get off came to his house in Champaign about 4 of a carload of logs with another man as o'clock a. m., November 10, 1915, asked him the train pulled into Hillery, and that he to make a fire, and said he did not know waved his hand at Murphy. D. J. Spitz, a where Murphy was, but that he would be conductor of the Big Four Railroad, testified there soon; that when he got up that mornthat he made the trip on a freight train from ing Murphy and Armstrong were sitting in Urbana to Indianapolis, arriving at Hillery, his kitchen; that he saw Murphy that evegoing east, at 1:13 o'clock p. m., and had a ning cut out of a copy of the Urbana Courier carload of logs in his train, but could not an article headed, “Robbers Murder Big recall that any one got off his train at Hill- Four Men!" and roll it up and throw it in ery. Gladys Miller and Clay Biddle identi- the cook stove; that Murphy and Armstrong fied plaintiff in error as the colored man that told him that night that they had intended to they saw in Batestown that afternoon with- go away, but had changed their minds; that in a few hundred yards of the bunk car. they slept that night at his house until ar. Lovina Pollock and Charles Gaw testified rested; and that Armstrong had never staythat they saw him the same afternoon in the ed all night at his house previous to that same vicinity and talked with him.

night, but Murphy had stayed there for three Jordan Johnson, deputy sheriff of Cham- or four weeks. He further testified that paign county, arrested Murphy and Arm- while the officers were knocking for admisstrong on the night of November 10, 1915, at sion to his house Armstrong burned up a William Higgason's house, in Champaign. black cap and a "flour sack with holes in it”; When Johnson flashed a light on the bed that he had seen Murphy with the blue steel where Murphy and Armstrong were sleeping, revolver and the holster in evidence "off and Murphy jumped up and started for his gun, on” all last summer, and that on November but Johnson “beat him to it.” Johnson and 9, 1915, between 12 and 12:30 o'clock p. m., E. V. Buckler, the officer accompanying him, he saw Murphy and Armstrong about 100 found on a box near the bed a nickel-plated feet west of Hopkins' restaurant, in Chamrevolver, a shoulder holster, and a large and paign, and spoke to them, and that they resmall flash light, and found a large blue plied, “How do you do? We are gone;" that steel revolver under their pillow. They also they then turned west on Wright street, toobtained from Murphy's pockets 13 Smith & wards the Big Four tracks. The evidence Wesson cartridges of .38 caliber, some of further shows that it is a mile and a quarter which had soft-pointed bullets and the re- along the railroad track from Hopkins' res. mainder of them steel-jacketed bullets, all of taurant on the Big Four to the Big Four which articles were made exhibits in the shops in Urbana. The Big Four runs from case and identified by the officers as the ar- Urbana east to Hillery and Danville. ticles taken with the prisoners. The blue Sherman Hopkins testified that Murphy steel revolver was loaded, when taken, with and Armstrong left his restaurant between

10 and 11 o'clock a, m. the day of the mur- | 12 and 1 o'clock and went down on Fremont der, November 9, 1915, and that they had two street, in Champaign, but that no one left caps, some flour sacks, and other articles with him; that he saw Robert Ewing at his wrapped up in two packages, and that Mur- house in Champaign about 11 o'clock a, m., phy was not at his restaurant that after and was at Anna Long's and Robert Ewing's noon; that they said they had a job, and that afternoon at about 4:15 o'clock, and saw were going to Danville; and that Murphy Ewing's wife and Cordelia Walls, and stayhad a blue steel revolver in a bolster and ed there about 25 minutes; that he could Armstrong a nickel-plated revolver in his not say just where he went from there; that pocket. The evidence showed that the freight about 7 o'clock p. m, he was again at Mrs. train on the Big Four, with D. J. Spitz as Long's, and stopped a few minutes to read conductor, left Urbana east bound at 12 the evening paper; that he then went over o'clock noon that day.

to the railroad track and sat down there with By the evidence of John F. Gilmore, the three or four fellows, and stayed there until undertaker, Dr. J. G. Fisher, W. D. Smith, 11 o'clock that night; that he then broke and Henry J. Sloan, deputy state fire mar- into the grocery store of A. E. Moran and shal, the people proved that the inside of the took therefrom a 50-pound bag of flour, a butt of the blue steel revolver was broken off, side of smoked bacon, four quarts of peaches and that that part of the revolver fitted ex- and four or five pounds of sugar, pried loose actly into a deep wound in the hair line at from the counter the money drawer and the top of the forehead of George Roumas at left it on the floor, and carried the stolen the same time that the trigger guard thereof articles to Fourth and Vine streets, in Chamwas resting in a smaller wound near his left paign; that he there got blocked by a freight eyebrow, and that the butt of the revolver train, got scared, and put the stolen stuff in and the guard fitted perfectly into those a box car standing on the track; that he then wounds at the same time; that the revolver went back to "where he was before," where was then in the same condition' it was when he had built a fire, sat there until 5 o'clock they testified; and that the wounds were of a. m., and then went to Bill Higgason's house, the same size and in the same condition they and there saw Higgason and Armstrong. On were when the body was removed from the cross-examination he admitted that he had car, except that the wounds had been cleaned. previously testified at the city hall, in the

J. D. Mann, a prisoner in the county jail presence of a number of persons, that he was charged with swindling by means of the con- at Hopkins' restraurant from 11 o'clock in fidence game, testified: That Murphy said the forenoon of that day until 1 o'clock p. m., to him in jail: “I am in a bad jam here; and that he might have stated that he was will you help me out? If I don't get out of at Anna Long's from 1 o'clock until 5 o'clock it I am going to get 'topped. I killed one of in the afternoon; that about 5 o'clock he the Greeks. Armstrong killed the other." went to the “jungles” and took some boys That Murphy asked him to go to see a man with him, and might have given at the other in Mattoon by the name of Jack Jacobs and trial as his reason for going there that he to Chai gn and see Arr ong, Higga- wanted to keep out of sight. He further son, and Jenkins. That he only saw one, stated that he had a flash light when he Jenkins. That Murphy wanted him to get broke into Moran's store, and that the small some saws and guns, and that witness had flash light in evidence was his, but could not previously told Murphy that he expected to say about the large one; that he had a nickget out of jail in a few days.

el-plated revolver and holster like the ones Plaintiff in error testified and denied in in evidence, and also a blue steel revolver toto the facts sworn to by the Greeks. He similar to the one in evidence, but did not also testified that he did not know where know whether they were his or not. He also Hillery was, and that he was never there or denied telling J. D. Mann in jail that he had stopped there so far as he knew, and that killed one of the Greeks and that Armstrong he had never seen Lovina Pollock, Gladys killed the other, and stated th he had never Miller, or Clay Biddle before they testified, said anything to him about killing any and denied having the two packages in Hop Greeks. He denied that he had told Mann kins' restaurant or elsewhere containing the anything about a man by the name of Nibcaps and flour sacks, and denied telling Hop- lack over in Champaign, but admitted that kins that he was going to Danville. He he saw Mann in jail and talked to him about stated that he bent his blue steel revolver in a man by the name of Jacobs in Mattoon, August, 1915, prying open a car on the Mil. and also one by the name of Charley Jenkins, waukee & St. Paul Railroad to get in out of but failed to state what he said to Mann the rain. He sought to establish an alibi, and about them. He further testified that he was testified that on the morning of November 9, not out of Champaign at any time on the 1915, he opened up Hopkins' restraurant day of the killing and was not with Armabout 7 o'clock and served some early cus- strong at all on that night, and never used tomers; that he was there again at 12:30 steel-jacketed bullets in his revolver, but P. m. and at 3 o'clock that afternoon, but was used soft-nosed bullets, .38 caliber, not there from eleven until one o'clock that Armstrong testified that he was not in

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