« PreviousContinue »
The counsel for the defendant in error say, were permitted openly to conduct clairvoythat this instruction was properly refused, ant parlors for the purpose of operating conbecause the same benefit was given to the fidence games, and that many people were plaintiff in error by another instruction, swindled out of their money for large which stated that if the jury believed, from amounts in the aggregate by means of the the evidence, that any witness who had testi- confidence game, by the connivance and unfied as an accomplice had been promised the der the protection of the police. Complaints aid and assistance of the state's attorney in made to the police, and brought to the atten. an application for a pardon, that fact might tion of the plaintiff in error through the be considered by the jury in determining the mayor and the chief of police, as well as by credibility of the witness. The promise of individuals, produced no effect. Other memassistance in an application for a pardon was bers of the police force knew of this condidifferent from a hope or expectation of escap- tion, and it cannot be supposed that the chief ing a term of imprisonment in the penitentia- of detectives, with all this information in his ry by other means. The instruction was in- files, was the only one on the force in ig. tended to cause the jury to consider another norance of the facts. Frank Ryan was ackind of expectation. It is argued that the tively protected from arrest by misinformainstruction was inaccurate and confusing, tion given to the police force in Boston. It because there were no witnesses in the case is true that the evidence of Bertsche and the who were in such a position that they might Ryans comes through crooked channels from hope or expect to escape a term of imprison. a corrupt source, and the testimony of the ment for the crime. Bertsche was the most actual payment of the $500 bribe comes from important witness for the people. At the them alone. An item of evidence corroborattime of the trial he had already escaped one ing their story of Halpin's connection with year of a term of imprisonment in the peni- the conspiracy as condemnatory as anything tentiary for the commission of a crime of in the case is that in regard to the receipt which he had been convicted, and in which of $100 by Halpin at Hot Springs, Ark., in the judgment of conviction had been affirmed March, 1913. Bertsche and James Ryan tesby the Supreme Court, and his testimony tified that Bertsche inclosed a $100 bill, with shows that he understood that the mandate a short note, in a special delivery letter mailfrom the Supreme Court had been held up by ed to Halpin at Hot Springs early in March, somebody in the state's attorney's office with 1913. The delivery of a special delivery letwhom he said he may have had a conversa- ter to him there was proved, and Halpin ad. tion about it, that he did not expect to be mitted receiving such a letter containing in the penitentiary at all, and that he was $100, but said that it was from one Corbett. testifying under the hope and expectation Corbett was not called as a witness, and no that Hoyne would get him out. It thus ap- explanation of his absence was made. This pears that he expected to escape a term of must have seemed extraordinary to the jury, imprisonment in the penitentiary, and that and justified them in believing that the chief his experience in escaping one year of that of detectives was receiving money from the term already, regardless of the law and the chief of the clairvoyants. It seems to us judgments of the courts and the duty of the that no other conclusion can be reached. officers charged with their execution, justi.
While the special instruction as to the fied that expectation.
credibility of the witnesses which has been Error against the plaintiff in error occur- discussed should have been given, the attenred on the trial. Was it of such a character tion of the jury was called to this subject as to require a reversal of the judgment? by the instruction which was given, and, The plaintiff in error was denied none of his though the latter instruction did not comconstitutional or statutory rights. The errors were errors of procedure, in the admis- pletely cover the case, it did caution the sion of evidence and instructing the jury. If jury as to the credibility of witnesses testithe correction of the errors might reasonably fying under hope of favor from the state's be expected to result in a different verdict, attorney. Under the circumstances, the judg
ment should not be reversed for the refusal this judgment should be reversed. On the
of this instruction. other hand, if the jury, acting reasonably on the competent evidence, under proper in
The evidence, even considering the corrupt structions, could have reached no other con origin of much of it, carries with it an abidclusion than that of guilt, the judgment ing conviction of the plaintiff in error's guilt, ought not to be reversed, so that a better and the jury, acting on such evidence as was record may be made on another trial. The legally competent, under proper instructions, acts done after the termination of the al- could have reached no other conclusion. leged conspiracy, and those done not in
The judgment will be affirmed. carrying out the purposes of the conspira
Judgment affirmed. cy, were incompetent; but without considering them the evidence leaves no doubt of the CARTER, J. (specially concurring). I conexistence of a conspiracy for a year prior to cur in the conclusion reached in this opin
(276 Ill. 454)
Decatur shops. The administratrix of his BLOOMINGTON, D. & C. R. CO. v. INDUS- estate claimed compensation from the comTRIAL BOARD OF ILLINOIS et al. pany, and, being refused, a committee of ar(No. 10778.)
bitration was appointed. On November 7, (Supreme Court of Illinois. Dec. 21, 1916. 1914, the committee heard the evidence of
Rehearing Denied Feb. 7, 1917.) her claim and found for the company. No1. MASTER AND SERVANT O404WORKMAN'S tice of the decision was mailed from Chicago
COMPENSATION HEARING TRANSCRIPT on November 12, 1914, and within the time :
fixed by the statute the administratrix filed vious hearing before the Industrial Board, a petition with the Industrial Board asking though not authenticated by signatures of the for a review of the decision and for time in parties, attorneys, or chairman of the board, which to file a stenographic report of the evibut testified to be correct by the reporter and
dence. On December 23, 1914, within the subsequent to its admission certified by the chairman of the arbitration committee, was properly time extended for that purpose, the stenoadmitted, since, if authentication was essential, graphic report was filed. At the hearing betime of authentication was not material.
fore the Industrial Board the attorney for [Ed. Note.-For other cases, see Master and the railroad company moved to dismiss the Servant, Dec. Dig. Om 404.) 2. MASTER AND SERVANT 403–WORKMAN'S proceeding because the stenographic report COMPENSATION-BURDEN OF PROOF.
was not filed within the time required by The burden of proving that deceased work- statute, and the attorney for the claimant reman's death was accidental rested upon his ad- plied that an extension had been granted, ministratris, who sought compensation, and such and this was not denied. The motion was proof must amount to something more than
then denied. A hearing was afterward had guess or conjecture.
(Ed. Note.-For other cases, see Master and before the Iudustrial Board, resulting in a Servant, Dec. Dig. Om 403.)
finding for the administratris and fixing 3. MASTER AND SERVANT O 403INJURIES TO weekly payments to be made to her. The SERVANT-PRESUMPTIONS.
company sued out a writ of certiorari from Where the evidence showed that the deceased the circuit court of Macon county, and the workman had for 21 years been in perfect physi: cal condition, it is the reasonable presumption circuit court, on a hearing, confirmed the dethat his sudden death while at work was due to cision and entered judgment accordingly. external efficient agency.
The court certified that the cause was one (Ed. Note. For other cases, see Master and proper to be heard by this court, and the Servant, Dec. Dig. Om 403.]
record is now under review by writ of error. 4. MASTER AND SERVANT Om 417(7) WORK
(1) At the hearing before the Iudustrial MAN'S COMPENSATION-APPEAL-SCOPE.
If there was credible testimony before the Board counsel for the company objected to Industrial Board which awarded compensation, the stenographic report or transcript of evithe court on writ of error cannot consider the dence taken on the previous hearing because weight of the evidence, nor does the fact that not authenticated by the signatures of the other persons testified differently authorize interference.
parties or their attorneys or by the signature [Ed. Note. For other cases, see Master and of the chairman of the board. The evidence Servant, Dec. Dig. 417(7).]
was taken and transcribed by the official reFarmer and Dunn, JJ., dissenting.
porter of the circuit court, and was taken by
him for both parties and paid for by both of Error to Circuit Court, Macon County : them equally. The transcript was made and William K. Whitfield, Judge.
paid for by the company, and the reporter Certiorari by the Bloomington, Decatur & testified that it was correct, and his testiChampaign Railroad Company to review a mony was not disputed. The hearing prodecision of the Industrial Board of Illinois ceeded on the transcript of evidence so takawarding compensation to the administratrix en and transcribed and additional evidence, of Henry Yanda for his alleged wrongful and on June 10, 1915, before the decision of death. To review a judgment of the circuit the Industrial Board, which was on October court confirming the decision, the relator 20, 1915, the transcript was certified by the brings error. Affirmed.
chairman of the arbitration committee. If Charles C. Le Forgee and Thomas W. Sam- the authentication was essential and the uels, both of Decatur, and George W. Black, transcript could not be considered without it, of Peoria, for plaintiff in error. A. R. Ivens the time was not essential and the certificate and Whitley & Fitzgerald, all of Decatur, for could lawfully be made at the time it was defendant in error.
The following facts were proved: Henry CARTWRIGHT, J. Henry Yanda was a Yanda and George E. Albeitz were carpenters carpenter in the employ of the Bloomington, working on top of a car about 9 feet wide Decatur & Champaign Railroad Company, and 31 feet long. There were running boards which operated an interurban railroad, and laid lengthwise on top of the car, about 6 on July 9, 1914, he died instantly while work- inches apart, and the roof of the car on each ing, in company with George E. Albeitz, on side was oval, making what was called a top of one of the company's cars in the "turtle-back” car. There were a number of
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
hatchways for ventilation placed in pairs on by the testimony of Albeltz. The evidence each side of the running boards, about 12 was that Yanda was, and for 21 years had inches wide, 16 inches long, and 16 or 18 been, in perfect physical condition, and the inches deep. At the bottom of each ventila- reasonable presumption is that he was killed tor there was an iron frame forming a by some external, efficient agency. The "ground,” and near Yanda was an exposed agency was present if it became operative end of an uninsulated cable charged with ap- | through contact with he ron plate and exproximately 550 volts of electricity, and the posed end of the cable. If the testimony of ventilator beside him was open. Yanda and the daughter was true, it is certain that he Albeitz were working on opposite sides of did come into contact with the deadly agenthe running boards, putting nuts on bolts. cy, and we have no authority to consider the Albeitz finished putting the nuts on the bolts weight of the evidence where there was cred. on his side and tightened the same with his ible testimony before the board. The fact wrench and Yanda's wrench, which he had that other persons testitied differently does on his side. Yanda had been having some not authorize interference with the decision trouble getting one of the nuts on the bolt of the board. Neither does the fact that Alon his side, and finally said to Albeitz that beitz, who was looking down and working he had got it on. It was then necessary for with his cap over his eyes, did not see Yan. him to get the wrenches from Albeitz on the da make the contact. Albeitz saw him half other side of the running boards to tighten standing, when he keeled over, gave two or the nut. He was about to get the wrenches three gasps, and was dead, and the rational when Albeitz saw him suddenly rise up in a explanation is that the death was caused by half standing position, with both feet on top an electric shock. of the car, and fall over lengthwise of the The judgment of the circuit court is at. car. Albeitz said they had been talking firmed. about the weather and other things, and that Judgment affirmed. he had his cap down over his eyes so that he could not see Yanda without raising his head FARMER and DUNN, JJ. (dissenting). a few inches, because he had his head down We cannot agree to the opinion in this case. when he was working. He did not see Yanda Paragraph “b” of section 19 of the Workstep into or otherwise come into contact with men's Compensation Act (Laws 1913, p. 348) the iron in the ventilator or with the exposed provides that the decision of the committee end of the cable, but when he saw him he of arbitration shall become the decision of was half standing and was keeling over. the Industrial Board unless within 15 days Albeitz grabbed him and he was taken down after receipt of a copy of the decision and from the car, dead. Yanda was 47 years old, notice of the time when it was filed with in perfect health, had not been sick in 21 said board a petition for a review is filed, years, and never laid off from work on ac- and unless such party petitioning for a recount of any physical condition or ailment view shall, within 20 days after receipt by The company offered the testimony of wit him of the copy of said decision, file with nesses that there were no burns on Yanda, the board either an agreed statement of the and produced a number of experts who tes- facts appearing upon the hearing before the tified that he could not have come to his į arbitrator or committee of arbitration or, death in the manner claimed unless there if such party shall so elect, a correct stenowere burns upon his person. On the other graphic report of the proceedings at such hand, there was evidence of witnesses who hearings. The Industrial Board may, for had themselves been shocked by electricity sufficient cause shown, grant further time, so as to become insensible for a time without not exceeding 30 days, "in which to petition any mark of burns upon them, and that for such review or to file such agreed statepersons who had been killed by lightning ment or stenographic report.” The agreed showed no signs of burns. There was evi. statement of facts or stenographic report dence of experts that death from a contact "shall be authenticated by the signatures of with wires was different from death from the parties or their attorneys, and in the lightning. On the review before the board event they do not agree as to the correctness Yanda's daughter testified that his hands of the stenographic report it shall be auwere burned, and one of them very badly, so thenticated by the signature of the chairman that it was drawn and shriveled.
of the committee of arbitration.” The things [2-4] The burden of proof that Yanda's required by the statute to be done to give death was an accident arising out of his the board jurisdiction to review the decision employment rested upon the administratrix, of the committee of arbitration are: Filing and such proof must amount to something a petition for review and an agreed statemore then mere guess and conjecture. That ment of facts or correct stenographic report being so, it is contended that there was an authenticated in the manner provided. The entire failure to prove the cause of his death, requirement that a petition for review shall and that the decision of the board rested on be filed within 15 days after notice of filing nothing but the possibility of a contact with the decision, or within such further time, not the iron plate and the exposed end of the exceeding 30 days, as the board may grant
direct, and positive terms than the require the exceptions appear only in a bill of excepment that the agreed statement of facts or tions taken at a subsequent term, the matter stenographic report, duly authenticated, shall sought to be raised by that portion of the bill
stricken will not be considered on appeal. be filed within 20 days after notice of filing
[Ed. Note.-For other cases, see Appeal and the decision, or within such further time, not Error, Cent. Dig. 88 2404, 2405; Dec. Dig. exceeding 30 days, as the board may for suf-w537.) ficient cause grant. The plain, unambiguous 4. MUNICIPAL CORPORATIONS Om304(10) language of the statute is that the decision STREET IMPROVEMENTS-ORDINANCES. of the committee of arbitration shall become An ordinance, providing for the paving and the decision of the Industrial Board unless that other portions shall not be included in the
improving of portions of a street, and providing a petition for review and agreed statement improvement, but shall be improved and paid of facts or stenographic report, authenticat- for in accordance with the provisions of another ed, shall be filed within the time prescribed. ordinance, is not open to objection by properBoth are required to give the board juris- ground that it did not describe the nature, ex
ty owners assessed for the improvement on the diction to review the decision, and it cer- tent, and character of the improvement not intainly cannot be said to be a compliance cluded. with the statute to file a transcript of what
[Ed. Note.-For other cases, see Municipal purports to be the evidence heard before the Corporations, Cent. Dig. $ 812; Dec. Dig.
301(10).) committee of arbitration, unauthenticated. As we understand the statute, the decision of 5. MUNICIPAL CORPORATIONS 304(6) the committee of arbitration becomes the
STREET IMPROVEMENTS-ORDINANCES-ESTI. decision of the Industrial Board, and can
An ordinance, providing for curbing resting not be reviewed unless the authenticated re on concrete of specified dimensions and backport, as well as the petition for review, is ed by concrete of specified dimensions, is not filed within the time prescribed. The au- include the cost of the concrete footing and back
open to the objection that the estimate did not thentication of the report is made essential ing, where the estimate contained an item for by the statute, and no provision is made for the number of lineal feet of curb set in confiling or authenticating it after the time lim-crete complete, and stated that it included la
bor and material; this item being sufficient to ited has expired. There does not seem to be include the foundation and backing. any such ambiguity in the statute as to
[Ed. Note.- For other cases, see Municipal authorize giving it any other meaning than Corporations, Cent. Dig. $ 812; Dec. Dig. that which its language imports. The Leg- 304(6).] islature has said what is necessary to be 6. MUNICIPAL CORPORATIONS w 296(2) done to secure a review of the decision of STREET IMPROVEMENTS ESTIMATESSUFFIthe committee of arbitration by the Industrial Board, and that should govern.
An engineer's estimate of cost of street improvements is sufficiently itemized, so far as rights of assessed property owners are concerned, if it is specific enough to give them a
general idea of cost of substantial elements of (276 Ill. 490)
improvement. CITY OF EAST ST. LOUIS v. VOGEL et al. (Ed. Note.--For other cases, see Municipal (No. 10842.)
Corporations, Cent. Dig. § 793; Dec. Dig.
296(2).) (Supreme Court of Illinois. Dec. 21, 1916. Rehearing Denied Feb. 7, 1917.)
7. MUNICIPAL CORPORATIONS On 304(2)
STREET IMPROVEMENTS DELEGATION 1. EXCEPTIONS, BILL OF Cw43(2)—SIGNING DISCRETIONARY POWERS. DELAY OF JUDGE.
An ordinance for a street improvement is Where a bill of exceptions is presented to not open to the objection that it improperly the trial judge at such time that it could be delegates power to a board of local improvefiled within the time provided by order of court, ments because it does not set forth in minute dethe party will not be prejudiced by the neglect tail every particular of the improvement and or delay of the judge to sign the bill in time. every circumstance of the work, a substantial
[Ed. Note.-For other cases, see Exceptions, compliance with statute being all that is necBill of, Cent. Dig. § 7242; Dec. Dig. Om 43(2).) essary, and discretion as to the details of the
work being properly left to the board of local 2. EXCEPTIONS, BILL OF 44 - SIGNING improvements. FILING NUNC PRO TUNC.
[Ed. Note.-For other cases, see Municipal Where a bill of exceptions is presented to Corporations, Cent. Dig. 812; Dec. Dig. Om the judge in proper time for filing and through 304(2).] the delay or neglect of the judge to sign the bill, it is not signed until after the expiration of the 8. APPEAL AND ERROR Cw548(1) - REVIEW time for filing, a nunc pro tunc order to file the EVIDENCE-BILL OF EXCEPTIONS. bill of exceptions is unnecessary, and the signa
What is a local improvement is a question ture of the judge must be regarded as authenti- of law, but whether the circumstances attending cating it and authorizing it to be filed.
the widening of a bridge over a drainage canal [Ed. Note.-For other cases, see Exceptions, make it a public improvement, payable out of Bill of, Cent. Dig. 73; Dec. Dig. 44.)
general taxes, is a question of fact for the deter
mination of the municipal authorities in the first 3. APPEAL AND ERROB 537-RECORD-BILL instance, and their conclusion will not be reviewOF EXCEPTIONS.
ed, where the evidence on which it was based is Where a part of the bill of exceptions, re not contained in a bill of exceptions. ferring to proceedings at a prior term, has been [Ed. Note.-For other cases, see Appeal and expunged on the ground that no bill of excep- Error, Cent. Dig. 88 2433–2435, 2438; Dec. tions to the rulings was taken at such term and Dig. 548(1).)
Fun For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
9. APPEAL AND ERROR 548(1)-REVIEW Appeal from Circuit Court, St. Clair CounEVIDENCE – NECESSITY OF BILL OF EXCEP- ty; M. R. Sullivan, Judge. In proceedings to assess benefits and dam
Proceedings by the City of East St. Louis ages of street improvements, questions of fact against Carl J. Vogel and others, for an the determination of which requires a consider-assessment of benefits by reason of street ation of evidence will not be reviewed, in ab- improvements. Judgment for the plaintiff, sence of bill of exceptions containing evidence.
(Ed. Note.-For other cases, see Appeal and and defendants appeal. Reversed and reError, Cent. Dig. $8 2433-2435, 2438; Dec. manded. Dig. 548(1).] 10. MUNICIPAL CORPORATIONS
D. E. Keefe, of East St. Louis, James A.
m439 STREET IMPROVEMENTS ASSESSMENTS
Watts, of Nashville, and J. R. McMurdo, EVIDENCE.
James G. McHale, and E. J. Verlie, all of In proceedings by a municipality to assess East St. Louis, for appellants. Thos. L. benefits by reason of street improvements and for the ascertainment of compensation for prop-Fekete, Jr., City Atty., of East St. Louis erty taken or damaged, the city cannot intro- | (A. H. Baer, of Belleville, of counsel), for duce in chief evidence as to the condition in a appellee. state of nature of parts of the city not affected by the improvement for the purpose of affording a comparison between those lands and lands DUNN, J. The city of East St. Louis filed affected by the improvement and to show that is its petition in the circuit court of St. Clair those parts of the city under similar circumstances the improvements had been made to county for an assessment of benefits by rea: the satisfaction of the persons assessed there son of a certain street improvement and the for, and that the property had been benefited ascertainment of just compensation to be to an extent equal to or greater than the as- made for property taken for or damaged by [Ed. Note.-For other cases, see Municipal
the improvement. An assessment roll was Corporations, Cent. Dig. $ 1053; Dec. Dig. Om filed, to which various property owners filed 439.)
objections. From the judgment confirming 11. MUNICIPAL CORPORATIONS
the assessment roll some of the objectors STREET IMPROVEMENT8-ASSESSMENT OF BEN have appealed. EFITS. In determining benefits of street improve
A motion has been made by the appellee ments, convenience of public travel, removal of to expunge the bill of exceptions from the obstacles to such travel, and future growth of record, on the ground that it was not signed, city may be considered, where such elements sealed, and filed within the time ised by the give a special increased value to the property not shared by public generally, but cannot be order of the court for that purpose. considered where the only advantage is to the  The cause was tried at the January public generally.
term, 1916, and by various orders of court [Ed. Note. For other cases, see Municipal the time for filing a bill of exceptions was Corporations, Cent. Dig. 1053; Dec. Dig. Om 439.)
extended until July 12, 1916, when the last 12. MUNICIPAL CORPORATIONS w 438
extension expired. The bill of exceptions STREET IMPROVEMENTS – ASSESSMENT was presented to the trial judge on July 7th, BENEFITS.
was signed by him on July 31st, and was filed Benefits for street improvement are assessable against property located in subdivision not in the office of the circuit clerk on the same adjoining street improved, but which is made day. At each extension of time the appellee more accessible to business part of city by rea; excepted to the allowance of the extension, son of improvement; the owners having special and objected to the signing of the bill of exinterest in improvement different from that of general public.
ceptions. There is nothing in the record to [Ed. Note.-For other cases, see Municipal | indicate that the extensions of time were not Corporations, Cent. Dig. 8 1052; Dec. Dig. Om properly granted, but it is insisted that the 438.)
bill of exceptions, not having been signed 13. MUNICIPAL CORPORATIONS Om 454
and sealed by the judge and filed by the clerk STREET IMPROVEMENTS ASSESSMENT BENEFITS-INSTRUCTIONS.
within the time allowed by the order of In proceedings to assess benefits for street court, should be striken from the record. It improvements, instructions that if the respec- has been frequently held that if a bill of extive amounts assessed against the respective objectors, naming them, is more than the assessed ceptions is presented to the trial judge at property would be specially benefited, the jury such time that it could be filed within the should find the amount of benefit and should time provided by the order of the court, the render a verdict that each of the objectors party will not be prejudiced by the neglect should be assessed for the amount set opposite each respective name, was properly refused; or delay of the judge to sign the bill until there being no assessments against individuals, after the time fixed for that purpose. Underbut against respective tracts.
wood v. Hossack, 40 Ill. 98; Magill v. Brown, [Ed. Note.-For other cases, see Municipal 98 111. 235; Hawes v. People, 129 Ill. 123, 21 Corporations, Cent. Dig. $8 1080-1083, 1091– 1093; Dec. Dig. Om 454.]
N. E. 777; Hall v. Royal Neighbors, 231 Ill. 14. TRIAL (260(1) - INSTRUCTIONS COVERED 185, 83 N. E. 145; Hill Co. v. United States BY OTHER INSTRUCTIONS.
Guaranty Co., 250 Ill. 242, 95 N. E. 150; The refusal of instructions, the substance People v. Rosenwald, 266 Ill. 548, 107 N. E. of which is included in charge as given, is not S54, Ann. Cas. 1915D, 688; Illinois Improve
[Ed. Note. For other cases, see Trial, Cent. ment & Callast Co. v. Heinsen, 271 Ill. 23, Dig. $ 651; Dec. Dig. 260(1).)
111 N. E. 117. The bill of exceptions was