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 III. 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 recounty 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 considerato 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 considstated therein by the state's attorney. Coun-eration of the case. Counter affidavits were sel for the state did not deny on the record filed on behalf of all the jurors and others the truthfulness of the affidavit that the state's attorney made such statements in his closing argument, and the only attempt at justification in the state's brief is that a few scattered sentences were picked out by coun-ed or that such drinking of intoxicating liqsel in making his affidavit and placed together as if they were all stated at the same time.

admitting that a small amount of such liquor was drunk, principally at meals, during the several days occupied by the trial, but stating that no juror was at any time intoxicat

uors in any way affected the outcome of the case. The affidavits on behalf of plaintiff 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 deliberaon the record before us the affidavit of coun- tions on the case, except, perhaps, for medicsel 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.) §§ 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 rethe 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.) § 113b. question. Sanitary District v. Cullerton, 147 Such action is not considered professional. Ill. 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. Such practice would almost necessarily place the counsel for the accused at a disadvantage as opposed to a prosecuting officer, who should only desire to have a conviction if he knows the accused is guilty. 2 Thornton on Attorneys at Law, 8 712, and cited cases. While such a statement by the state's attorney

For the reasons stated, the judgment of the circuit court will be reversed, and the cause remanded to that court for further proceedings according to the due course of law.

Reversed and remanded.

CRAIG, C. J., and FARMER. J.. dissent.

(Supreme Court of Illinois. Dec. 21, 1916.)

1. HOMICIDE 234(1)-GUILT OF MUrder— SUFFICIENCY OF EVIDENCE.

In a prosecution for murder, evidence held sufficient to show defendant's guilt. [Ed. Note.-For other cases, see Homicide, Cent. Dig. 482; Dec. Dig. 234(1).]

2. Criminal LAW 1186(1)—APPEAL-REVERSAL EVIDENCE.

Where defendant has been clearly proven guilty of crime, the Supreme Court cannot legally reverse judgment of conviction, unless the record discloses some serious error having tendency to prejudice him unduly with the jury. [Ed Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3215-3217, 3219, 3230; Dec. Dig. 1186(1).]

3. CRIMINAL LAW 126(1)—VENUE PETITION FOR CHANGE-QUESTION PRESENted.

On petition for change of venue on the ground of prejudice in the county, the real question to be determined is not whether or not the evidentiary facts in the petition are proved, but whether, on all the evidence admitted, there is reasonable ground for fear that the alleged prejudice actually exists and that the defendant will not receive a fair and impartial trial.

Where a witness in a murder case was ask. ed on cross-examination what his first name was, whether the name he gave was the name given him at birth, and also where his home was, all of which he declined to answer, and the court ruled that he should answer, but later, on the witness' refusal, sustained objection, there was technical error.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3133; Dec. Dig. 11701⁄2 (5).]

10. CRIMINAL LAW 11701⁄2 (5) — APPEAL — HARMLESS ERROR.

Such technical error was harmless where the witness answered that he was in jail, committed on charge of felony, since he was more discredited in his refusal to answer than if he had made full answers as to his name and residence.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 3133; Dec. Dig. 1170%2

[Ed Note. For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. 126(1).] | (5).] 4. CRIMINAL LAW 134(4)-VENUE-PREJU 11. CRIMINAL LAW DICE-SUFFICIENCY OF EVIDENCE. RES GESTA.

In a prosecution for murder, evidence presented on defendant's petition for change of venue on the ground of the prejudice of the inhabitants of the county held to show that there was no such general prejudice prevalent as would be likely to prevent or interfere with the due administration of justice.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. 134(4).]

5. COURTS 56-TRIAL-INTERPRETER.
The interpreter in a criminal case was not
disqualified because he was an officer of the
city police.

[Ed. Note.-For other cases, Cent. Dig. 88 194-197; Dec. Dig. nesses, Cent. Dig. § 812.]

see Courts,
56; Wit-

6. CRIMINAL LAW 660-TRIAL OBJECTION TO INTERPRETER-WAIVER.

In a prosecution for the murder of two Greeks, where defendant objected to an interpreter on the ground that he was an officer of the city police, and the court continued the case until the afternoon for the defense to produce an interpreter, but defendant informed the court when it reconvened that his interpreter had gone away and that the defense would have to go on without him, defendant thereby waived his objection.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1536, 1537; Dec. Dig. 660.1

7. WITNESSES 230-TRIAL-FAIRNESS OF INTERPRETER.

In a prosecution of two defendants, a large and a small man, for the murder of two Greeks, an interpreter, a member of the city police, was not unfair because, when a witness used the Greek words "megalos" and "mikros," meaning "big man" and "little man," the interpreter designated the defendant indicated.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 811, 812: Dec. Dig. 230.]

365(1) - EVIDENCE

In a prosecution for murder of one brother, where the evidence in reference to the killing of another brother was inseparable from the evidence in relation to the killing of the first, it was admissible as part of the res gestæ.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 807; Dec. Dig. 365(1).] 12. HOMICIDE 170-EVIDENCE-OTHER OF

FENSES.

In a prosecution for the murder of one brother, evidence as to the character of the wounds on the body of another brother killed at the same time was admissible, where the character of the wounds was shown by the evidence to point to the owner of a blue steel revolver as the person who committed the double murder, shown by evidence to have been committed at the same time and by the same man. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 305; Dec. Dig. 170.]

13. CRIMINAL LAW 388-EVIDENCE-EXPERIMENTS IN ABSENCE OF DEFENDANT.

The fact that experiments were made in the absence of defendant on the body of deceased to discover if defendant's revolver might have caused the wounds in the head went merely to the weight of the evidence, and not to its admissibility.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 854; Dec. Dig. 388.] 14. CRIMINAL LAW 374-EVIDENCE-POSITIVE IDENTIFICATION OF DEFENDANT AS FELON.

In a prosecution for murder, where an officer of a city in another state positively identified defendant as the person whose conviction of the infamous crime of burglary was shown by an exhibit, but later qualified his identification, the court properly refused to exclude the evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 835; Dec. Dig. 374.]

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

15. CRIMINAL LAW 1169(1) APPEAL HARMLESS ERROR-EVIDENCE.

the penitentiary, and the sentence of plaintiff 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 The facts proven in this case are substanhe later qualified his identification, and after tially as follows: On November 9, 1915, four cross-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.

ARGUMENT OF

In a prosecution for murder, the remark of counsel for the state in argument to the jury, "There is a parole law which turns them out as fast as it gets them there," meaning that the parole law turns criminals out of the penitentiary as fast as they get there, was improper, since the parole law has no application

whatever to criminal trials.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678; Dec. Dig. 713.j

[Ed. Note. For other cases, see Criminal ery, a small station on the Peoria division of Law, Cent. Dig. § 3137; Dec. Dig. 1169(1).] the Big Four Railroad in said county, a few miles west of Danville. The car was a 16. CRIMINAL LAW 713 STATE'S COUNSEL. freight box car that had been taken off its trucks and set upon the ground, with its ends facing, respectively, the east and the west. In the middle of the south side of the car was a door that opened into the car, and the interior of the car was divided by a partition just west of the door. A door in the partition opened from the west room of the car. On that night the Greeks went to bed between 9 and 10 o'clock. Tom Roumas was sleeping on a bed in the southeast corner of the east room of the car, his head to the east, and there was no light in that room. John and George Roumas occupied a bed in the west end of the west room of the car. Their heads were to the south. Louis Roumas occupied a bed just west of the partition and on the north side of the west room. His head was to the west. A lighted lamp hung on the south wall of the west room, about five feet from the floor and about three feet from the bed in the west end of the room. A stove with fire in it was in the southeast corner of the west room, the door of which was open. The outside door was fastened on the inside with a bolt latch. Shortly after the Roumas brothers had gone to bed the south door of the car was forced open by two negroes, plaintiff in error and Milton Armstrong. Plaintiff in error was armed with a blue steel revolver in one hand and had in the other a large flash light, and went to the bed where Tom was asleep in the east room. He pointed the revolver at Tom's head and forced him to go into the west room, where

17. CRIMINAL LAW 1171(1)-APPEAL AND
ERROR HARMLESS ERROR REMARK OF
STATE'S ATTORNEY.
In a prosecution of two defendants for
murder, where the penalty of death was inflict-
ed by the jury as to plaintiff in error and a sen-
tence of 99 years given his codefendant, the
remark of state's counsel in argument that,
"There is a parole law which turns them out
as fast as it gets them there," meaning the pen-
itentiary, which was not specially directed to
the plaintiff in error, was harmless, the evi-
dence against him being stronger than against
his codefendant, showing that plaintiff in error
was the one who killed both the murdered men,
since the remarks did not figure in fixing plain-
tiff in error's penalty.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3127; Dec. Dig. 1171(1).] 18. CRIMINAL LAW 1186(4)-APPeal and ERROR-REVERSAL-HARMLESS ERror.

It should not be and is not the policy of the Supreme Court in a criminal case to reverse a judgment merely because error has been committed, unless it appears that real justice has been denied thereby, or the verdict of the jury or the judgment may have resulted from the

error.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. 1186(4).]

Error to Circuit Court, Vermilion County; Armstrong had gone armed with a nickelWalter Brewer, Judge.

Charles Murphy was convicted of murder, and he brings error. Judgment affirmed.

plated revolver and a small flash light. George and John had already gotten out of bed by order of Armstrong and were facing Oliver D. Mann, of Danville, for plaintiff in him with their hands up. Tom was then error. 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.

DUNCAN, J. Plaintiff in error and Milton Armstrong were convicted of murder in the circuit court of Vermilion county on two separate indictments. The first charged them with the murder of George Roumas, and they were each sentenced on the verdict in that case for a term of 99 years. The second indictment charged them with the murder of Louis Roumas, and in that case Milton Armstrong's punishment was fixed at 99 years in

two negroes, who were standing near the door in the partition, covering the Greeks with their revolvers. George asked what they wanted. Plaintiff in error then held his flash light near Louis' face, who was lying upon the bed. Louis rose up and sat with his hands on his chin. He made a movement with his hand, and plaintiff in error immediately shot him twice. One of the bullets went through his head and the other struck him in the side, and he fell dead between the bed and the partition. George

PEOPLE v. MURPHY

1

then grabbed plaintiff in error by the hand soft-pointed bullets of .38 caliber, and the 611 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 were looking after Louis, whom they found to be dead, and while over his body they heard some one in the other room of the car say, "Shoot, Murphy!" Tom and John did not see what took place outside of the car, but heard three shots, and in a short while they went out and found George outside on the ground near the car dead, and then gave the alarm,

The foregoing facts were testified to by John and Tom Roumas. They were very positive in their identification of plaintiff in error, whom the evidence shows to be a large man, and also positively identified Armstrong, whom the evidence shows to be a much smaller man. They also testified that two revolvers and two flash lights exhibited in evidence were the same revolvers and flash lights used on that night by Murphy and Armstrong or just like them.

The testimony of the two Greeks was corroborated by a number of witnesses who saw Murphy in Hillery or in the vicinity of the bunk car the afternoon of the murder. Plez Hubbard testified that he saw him get off of a carload of logs with another man as the train pulled into Hillery, and that he waved his hand at Murphy. D. J. Spitz, a conductor of the Big Four Railroad, testified that he made the trip on a freight train from Urbana to Indianapolis, arriving at Hillery, going east, at 1:13 o'clock p. m., and had a carload of logs in his train, but could not recall that any one got off his train at Hillery.

Gladys Miller and Clay Biddle identified plaintiff in error as the colored man that they saw in Batestown that afternoon within a few hundred yards of the bunk car. Lovina Pollock and Charles Gaw testified that they saw him the same afternoon in the same vicinity and talked with him.

Jordan Johnson, deputy sheriff of Champaign county, arrested Murphy and Armstrong on the night of November 10, 1915, at William Higgason's house, in Champaign. When Johnson flashed a light on the bed where Murphy and Armstrong were sleeping, Murphy jumped up and started for his gun, but Johnson "beat him to it." Johnson and E. V. Buckler, the officer accompanying him, found on a box near the bed a nickel-plated revolver, a shoulder holster, and a large and small flash light, and found a large blue steel revolver under their pillow. They also obtained from Murphy's pockets 13 Smith & Wesson cartridges of .38 caliber, some of which had soft-pointed bullets and the remainder of them steel-jacketed bullets, all of which articles were made exhibits in the case and identified by the officers as the articles taken with the prisoners. The blue steel revolver was loaded, when taken, with

en by the officers, with steel-jacketed bullets of .38 caliber. Two steel-jacketed bullets of .38 caliber were found on the scene of the murder, one near the body of George Roumas, and one in the car near the body of Louis Roumas, the latter bullet being shown to have been one fired at Louis Roumas, both of which were exhibits on the trial.

Ora Calvin, a pawnbroker doing business thereto, knew Murphy, and testified that Murin Champaign in November, 1915, and prior phy pawned to him the blue steel revolver in evidence October 12, 1915, for money borrowed by Murphy, redeemed it October 25, again pawned it October 28, and again redeemed it November 8, 1915, the day before the killing of the two Greeks. He also testified that the barrel of the gun was not bent when it was pledged to him, and that it would shoot steel-jacketed bullets or "softstated that it was possible that the gun was nosed" bullets. On cross-examination he bent when he had it, but that he did not think it was.

came to his house in Champaign about 4 William Higgason testified that Armstrong o'clock a. m., November 10, 1915, asked him to make a fire, and said he did not know where Murphy was, but that he would be there soon; that when he got up that morning Murphy and Armstrong were sitting in his kitchen; that he saw Murphy that evening cut out of a copy of the Urbana Courier an article headed, "Robbers Murder Big Four Men!" and roll it up and throw it in the cook stove; that Murphy and Armstrong told him that night that they had intended to go away, but had changed their minds; that they slept that night at his house until arrested; and that Armstrong had never stayed all night at his house previous to that or four weeks. night, but Murphy had stayed there for three

while the officers were knocking for admisHe further testified that sion to his house Armstrong burned up a black cap and a "flour sack with holes in it"; that he had seen Murphy with the blue steel revolver and the holster in evidence "off and on" all last summer, and that on November 9, 1915, between 12 and 12:30 o'clock p. m., he saw Murphy and Armstrong about 100 feet west of Hopkins' restaurant, in Champaign, and spoke to them, and that they replied, "How do you do? We are gone;" that they then turned west on Wright street, towards the Big Four tracks. further shows that it is a mile and a quarter along the railroad track from Hopkins' restaurant on the Big Four to the Big Four shops in Urbana. Urbana east to Hillery and Danville. The Big Four runs from and Armstrong left his restaurant between Sherman Hopkins testified that Murphy

The evidence

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 wrapped up in two packages, and that Murphy was not at his restaurant that afternoon; that they said they had a job, and were going to Danville; and that Murphy had a blue steel revolver in a holster and Armstrong a nickel-plated revolver in his pocket. The evidence showed that the freight train on the Big Four, with D. J. Spitz as conductor, left Urbana east bound at 12 o'clock noon that day.