Page images

came to their house a little after two o'clock in the morning of August 10 and said that he was a messenger boy and had a message for her brother, who had been a policeman, and that he would like to talk to her and wanted her to come out. She was then asked this question: "At that time and place did the defendant, McKinney, choke you?grab you by the neck?" and she made this answer: "He grabbed my mouth.” On cross-examination Butler was asked if he did not have a talk with Mrs. LaFount, in which he told her that McKinney told him that he had given a chum of his, Boitano, $500 to fix the case. The court overruled an objection, and the witness denied that he told Mrs. LaFount anything of the kind. Marie LaFount, the mother-in-law of Butler and mother of Lind LaFount, was called as a witness for the prosecution, and testified, over objection, that Butler made the statement to her concerning which he was interrogated.

The testimony of an accomplice is admissible against a defendant in a criminal case, and a conviction upon such testimony may be sustained if it is of such a character as to prove, beyond a reasonable doubt, the guilt of the defendant. It is, however, universally held that the testimony of an accomplice is liable to grave suspicion and should be acted upon with great caution, and only when the jury are satisfied from it, together with all the circumstances in evidence in the case, that it is true. The jury should subject such testimony to careful examination in the light of all other evidence in the case and consider the influence under which the testimony is given, and whether the purpose of the witness is to shield himself from punishment, to obtain some benefit for himself or to gratify his malice. (Hoyt v. People, 140 Ill. 588; Campbell v. People, 159 id. 9; People v. Feinberg, 237 id. 348.) The credibility of LaFount was a question for the jury, and his testimony was to be carefully weighed in view of his character, his connection with the crime and any motive that

may have influenced him to offer himself as a witness in behalf of the prosecution to aid in the conviction of another defendant. Unless he obtained some benefit his plea of guilty would result in the same judgment as if he had been found guilty by the jury, and the plaintiff in error had a right to prove anything having a legitimate tendency to throw light upon his truthfulness, so that the jury would be advised of everything which would enable them to judge of the credit to be accorded to his testimony. The examination was proper for the purpose of showing what influence operated on the mind of the witness causing him to withdraw his plea of not guilty and enter a plea of guilty. Counsel for the plaintiff in error has attached to the transcript of the record a certified copy of subsequent orders in the case of LaFount, but they are not a part of the record, and whether any plan or arrangement with anyone concerned in the prosecution was afterward carried out is immaterial on the question of LaFount's motives in testifying The court erred in not permitting the examination.

The cross-examination of the plaintiff in error about going to Boitano's house or what occurred there, and the testimony of Eva Boitano that he asked her to come out and “grabbed my mouth,” were entirely incompetent and it was serious error to admit the testimony. There was no evidence to connect it with the case in any way, and the only effect would be to create a prejudice against him. The examination of Butler as to whether he told Mrs. LaFount that McKinney told him that he had given Boitano $500 to fix the case, and the testimony of Marie LaFount that she had such a conversation with her son-in-law, Butler, were incompetent for any purpose. The answer of counsel for the People is, that by the fifth instruction the court told the jury that the statements of Butler in the absence of plaintiff in error could not be considered as evidence against the plaintiff in error, but that instruction did not help the matter, because the statements were not evidence

against anybody. The evidence that Butler said that McKinney said something was purely hearsay, and while statements made by Butler tending to show his guilt would be admissible against him, this evidence did not tend to prove that Butler had paid anything or done anything or that anything was paid for him, so that it was not admissible for any purpose. In the argument for the People it is said that there is some evidence not shown by the abstract. If that is so it was the privilege of counsel to present it in an additional abstract, which was not done.

The plaintiff in error did not have the fair trial which the law secures to everyone charged with crime, and therefore the judgment is reversed and the cause remanded.

Reversed and remanded.


cago, Burlington and Quincy Railroad Company, Appellee, vs. The PEORIA AND PEKIN UNION RAILWAY COMPANY, Appellant.

Opinion filed April 22, 1915.

. 1. RAILROADS-effect of the Crossings act of 1889. The act of 1889, relating to the crossing of one railroad by another, (Laws of 1889, p. 223,) did not repeal section 19 of the general Railroads act, but its effect was to withdraw from the company seeking the crossing the arbitrary power of selecting the place and manner of crossing and to confer upon the Railroad and Warehouse Commission the power to prescribe the place and manner of crossing if the parties failed to agree.

2. SAME-effect of amendment of the Crossings act in 1907. The amendment, in 1907, of section 1 of the Crossings act of 1889 (Laws of 1907, p. 475,) was to withdraw from the railroad company desiring to make the crossing the right to agree with the other company with reference thereto, and to impose upon the Railroad and Warehouse Commission, in every instance, the duty of determining at what place and in what manner a proposed crossing shall be made.

3. Samethe right of one railroad to cross another still exists. The right of one railroad to cross another, as conferred by section 19 of the general Railroads act, still exists notwithstanding the Crossings act of 1889 and its amendment in 1907; but such right is subject to the power of the Railroad and Warehouse Commission, not to deny the crossing, but to say that it shall be made at such a place and in such manner as will not unnecessarily impede or endanger travel on the road to be crossed.

APPEAL from the Circuit Court of Sangamon county; the Hon. James A. CREIGHTON, Judge, presiding.

STEVENS, MILLER & ELLIOTT, (GILLESPIE & FITZGERALD, of counsel,) for appellant.

EVERETT JENNINGS, J. A. CONNELL, and GRAHAM & GRAHAM, (GEORGE M. MORGAN, of counsel,) for appellee.

Mr. Justice Cooke delivered the opinion of the court:

On October 21, 1913, the Railroad and Warehouse Commission of this State granted to the Chicago, Burlington and Quincy Railroad Company permission to cross at grade the main track and a switch track of the Peoria and Pekin Union Railway Company on Water street at a point a short distance south of Bridge street, in the city of Peoria. Upon appeal to the circuit court of Sangamon county the order of the commission was affirmed. This appeal has been prosecuted by the Peoria and Pekin Union Railway Company to reverse the judgment of the circuit court.

The purpose of the proposed crossing is to extend a side-track from the present track of the Chicago; Burlington and Quincy Railroad Company in Water street into the wholesale district of the city of Peoria, permission having been granted by the city to that company to use certain streets and alleys of the city for that purpose. Appellant does not contend that this can be accomplished otherwise than by crossing its tracks at the place prescribed by the commission and concedes that a crossing of its tracks at such place can be effected only by a grade crossing. The appellant contends, however, that the Railroad and Warehouse Commission should have refused to grant the Chicago, Burlington and Quincy Railroad Company permission to cross the appellant's tracks at the place and in the manner selected by the railroad company even though a crossing could not be made at any other place or in any other manner, and in support of this contention urges that the commission is by statute vested with the power to prevent one railroad company from extending its tracks across the tracks of another railway, and that as the evidence shows that the operation of trains on appellant's tracks will be attended with great danger in case the proposed crossing shall be made, the commission abused its discretion in entering an order permitting the Chicago, Burlington and Quincy Railroad Company to extend its tracks across the tracks of appellant. Appellee, on the other hand, insists that the law confers upon it the right to cross appellant's tracks for any lawful purpose, and that the only power vested in the Railroad and Warehouse Commission with reference to such crossing is the power to determine and prescribe the manner and place of such crossing, and as appellant concedes that no other manner or place of crossing would be any more practicable than that prescribed, the order of the commission should not be disturbed.

The Chicago, Burlington and Quincy Railroad Company is a corporation organized under the laws of this State. Section 19 of the Railroad act of March 1, 1872, provides :- "Every corporation formed under this act shall, in addition to the powers hereinbefore conferred, have power : * Sixth-To cross, intersect, join and unite its railways with any other railway before constructed, at any point in its route, and upon the grounds of such other railway company, with the necessary turn-outs, sidings and switches, and other conveniences, in furtherance of the objects of its connections; and every corporation whose rail

« PreviousContinue »