Forman had had considerable trouble with the administrators of the estate of W. S. Forman in regard to an alleged claim that he held against the estate. The one who was administrator at the time of this litigation testified that C. M. Forman had told him that the property in question belonged to his brother, William S. Forman, and that the complainant, Stephens, had no interest in it, and that he (C. M. Forman) would be a valuable witness in the case for the estate. Forman himself denied having made such statements to the administrator.

A paper was offered in evidence which it was claimed was a carbon copy of a letter written by W. S. Forman to one A. H. Bachmann. It was testified that this copy was found in W. S. Forman's letter files after his death. It was dated June 8, 1904, and after stating that Bachmann had purchased what was known as the park property and that the time of redemption was about to expire, the letter continued: "This is partly in my name, but I have no interest in it except to protect a friend." The copy was signed, "W. S. Forman." It is not, however, claimed that the signature was his but that it was written by his stenographer. The original of this letter was claimed to have been lost. Bachmann himself testified that he received a letter from Forman, but he would not undertake to testify to its contents and was not positive whether this copy was a correct copy of the letter he had received.

The records of the railroad company were introduced, showing that the board of directors, on April 3, 1899, authorized the president, F. F. Espenscheid, to acquire the twenty-three acres of land at the bluffs for the purpose of a park and lease the same. There was also introduced in evidence a bill, answer and decree in the case of Caroline Bircher and W. S. Forman against the St. Louis Brewing Association and others, wherein it was alleged that Mrs. Bircher (as the assignee of the interest formerly owned by

Espenscheid) and Forman were the owners of the land. Some evidence was also offered showing that appellant had redeemed the property in question from the sale for taxes in 1904 and again in 1910. We find no evidence in the record that appellant was ever at any time in possession of the premises. Neither do we find any evidence that Stephens furnished the purchase money that was used in buying this tract at the time it was deeded by Fekete to Espenscheid and Forman, in May, 1899. The evidence shows that Forman not only represented appellant, but also all the other parties interested in the road, being a director and at one time president. The record is silent as to any compensation which he received for these services.

The record shows that appellant had much business with W. S. Forman with reference not only to this railroad but also to many other matters as well. The evidence offered by Webster as to the Stephenson transaction with Stephens, and the check testified to by Malacek, might have referred to business other than the furnishing of the purchase money for said twenty-three acre tract. The record is barren of any evidence as to what, if any, money was paid at the time Fekete deeded the land to Espenscheid and W. S. Forman. Whether the company furnished the money, or Stephens furnished any or all of it, or Forman furnished half or all of it himself, cannot be definitely ascertained from the evidence before us. It seems clear, however, that Forman was in possession of and managed this property from the time it was deeded to him until his death, the same as if he were the actual owner of half of it.

It has frequently been stated that where evidence is doubtful and not entirely clear and satisfactory, or is capable of reasonable explanation upon a theory other than that of the existence of an implied or resulting trust, such trust will not be held to be sufficiently established to entitle the beneficiary to a decree declaring and enforcing it. (Goels

v. Goelz, 157 Ill. 33; McGinnnis v. Jacobs, 147 id. 24; Pickler v. Pickler, 180 id. 168.) In view of the evidence in this record, is it not as reasonable to suppose that Forman was deeded the half interest in this property for his services in connection with the management of the road as it is that he purchased it with money furnished by Stephens and held it as a trustee for him? The policy of the law requires that everything which affects the title to real estate shall be in writing and that nothing shall be left to the frailty of human memory or as a temptation to perjury. Whenever this policy has been departed from and parol evidence admitted, the courts have been careful to examine into all the circumstances which may affect the probability of the alleged claim,—as the lapse of time, the means of knowledge and circumstances of the witnesses, and it will not grant the relief sought where the claim has been allowed to lie dormant for an unreasonable length of time or where the evidence is not clear in support of the alleged right, especially where no claim has been set up during the lifetime of the trustee but is first urged against the heirs, who may not be supposed to know anything about it. Enos v. Hunter, 4 Gilm. 211.

The record shows that appellant had an opportunity in a former suit, to which he himself and Forman were parties, to set up his ownership of the property here in question but did not do so. If he had such an interest, why did he not then assert it? The evidence here tending to show that appellant furnished the purchase money at the time of the purchase is too indefinite to be made the basis of a decree divesting the legal representatives of Forman of their title to this property.

The decree of the circuit court will be affirmed.
Decree affirmed.

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. HARRY MOELLER, Plaintiff in Error.

Opinion filed October 28, 1913-Rehearing denied Dec. 5, 1913.

I. CRIMINAL LAW-counts for burglary, larceny and receiving stolen goods may be joined. Counts for burglary and larceny and for larceny and receiving stolen goods may be joined in the same indictment, and a motion to quash cannot be sustained upon the ground that the indictment charges separate offenses in the differ

ent counts.

2. SAME when evidence is admissible though it tends to show other offenses. The test of the admissibility of evidence in a criminal case is the connection of the facts proven with the crime charged, and whatever testimony tends directly to show the defendant guilty of the crime charged is competent, even though it tends to show him guilty of another offense.

3. SAME―when jury are entitled to whole history of the case. On the trial of a person accused of the burglary of a building and the larceny of goods therefrom, the testimony of an accomplice showing that the accused, several months before the date of the crime charged, had taken him to the building and shown him the skylight above, and that he thereafter removed the glass and aided. the witness to get into the building and remove the goods on many occasions before the one when they were detected and arrested, is competent, and it is not error for the court to refuse to require an election of offenses before the close of the evidence.

4. NEW TRIAL-affidavit for a new trial for newly discovered evidence must show due diligence. Affidavits stating facts tending to prove an alibi are not ground for a new trial, where all of the facts stated therein were known to the accused at the time of the trial and could have been proven then as well as later, had he exercised diligence.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

PATRICK H. O'DONNELL, and EDWARD G. PURKHISER, for plaintiff in error.

P. J. LUCEY, Attorney General, MACLAY HOYNE, State's Attorney, and D. E. DETRICH, (GEORGE P. RAMSEY, and EDWARD E. WILSON, of counsel,) for the People.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

At the November term, 1912, of the criminal court of Cook county an indictment containing four counts was returned against Harry Moeller, the plaintiff in error, and Sam Horwitch. The defendants were charged in the first count with buying, receiving and aiding in concealing stolen property on October 8, 1912, consisting of 1000 raincoats, 1000 mackintoshes and 1000 coats, each of the value of seven dollars, the property of Moses Kriger; in the second count, with burglary and larceny of the same goods, on the same day, from the store and office of Moses Kriger; in the third count, with burglary, by breaking and entering said store and office on the same day; and in the fourth count, with burglary of the same store and office on the same day without force, the doors and windows being open. The court overruled a motion of the defendant Harry Moeller to quash the indictment, after which the defendants pleaded not guilty, and the defendant Harry Moeller made a motion that the State's attorney be required to elect upon which count of the indictment he would go to trial. The court refused to require an election before the trial and overruled similar motions during the introduction of evidence. The motion was renewed at the close of the evidence, when the State's attorney refused to elect, and the court confined the prosecution to the date of October 8, 1912, mentioned in the indictment. The jury found the defendant Harry Moeller guilty of burglary in manner and form as charged in the indictment, and after a motion for a new trial, which was overruled, he was sentenced on the verdict, and sued out a writ of error from this court.

It is not contended that there was any infirmity in the indictment, but it is argued that the court erred in refusing to quash it because it charged separate offenses in the dif