nothing to do with the killing of the two | willful perjury in giving their testimony. Greeks, or either of them; that he was at Plaintiff in error failed utterly to establish Hopkins' restaurant about 12:30 o'clock p. his alibi-that is, that he was not in Hillery m. the day of the murders and saw Murphy when the murders were committed-by his there; and that he went from there to Mrs. witnesses offered to corroborate his own tesGrant's house and thence home, and got timony. Their evidence only tends to show home before 1 o'clock, and was not outside that he was in Champaign up to 8 o'clock of Champaign that day. He admitted that p. m. that day, while the murders were he was at Higgason's about 4:30 o'clock a. shown to have been committed after 9 o'clock m. of November, 1915, and that Murphy came that night. It was entirely possible for him there that morning, but denied that he told to have gone to Hillery after that time, Higgason to build a fire or that Murphy said have participated in the murders, have remake a fire. turned to Champaign and burglarized the The only other testimony offered by plain-store of Moran, and have gotten to Higgatiff in error in corroboration of his evidence son's before 5 o'clock the next morning, was: (1) That of A. E. Moran, who testified that his store was burglarized, his cash drawer found on the floor, and such articles as Murphy named were stolen from his store, but he could not tell the night or the hour of the night the burglary occurred; (2) that of Robert Ewing that he had known Murphy about eight years, and saw him about 11 o'clock that morning in Champaign and about 4:30 o'clock that afternoon at his home, but could not say which way he left, and fixes the date by his brother-in-law's death, which occurred that day; (3) that of Cordelia Walls that she saw Murphy a little after 4 o'clock in Robert Ewing's yard play-him with the jury. ing with the dog, and the date was fixed in her mind by the death of her husband that day; and (4) that of Anna Long that she had known Murphy since "last spring;" that she saw him "off and on all day;" that she saw him about 3 o'clock that afternoon, and the last time she saw him was at her house in

Champaign about half past 7 or 8 o'clock that evening; that he came into the house and asked to see the evening paper, saw it, thanked her, and left. She was contradicted in rebuttal by two witnesses, Jordan Johnson and Charles Vandervoort, who testified that she stated at her home on November 11, 1915, that Murphy came to her door in the evening of November 9, 1915, but did

not go into her house.

The testimony in rebuttal showed that trains on the Illinois Traction system run from Danville and Hillery to Champaign,

vember 10th.

where he met Armstrong. His own testimony was contradictory and very unsatisfactory and very damaging to him. It has many earmarks of a fabricated story, and undoubtedly tended strongly to condemn him in the minds of the jury and to convince them that it was untrue. We do not see how plaintiff in error could reasonably expect a more favorable verdict for a defendant clearly proven guilty of so foul a murder, and we cannot legally reverse the judgment unless the record should disclose some serious error committed by the trial court that would have a tendency to unduly prejudice

Prior to the commencement of the trial in this case plaintiff in error filed a verified petition for a change of venue to some other county, except Champaign county, on account of the prejudice of the inhabitants of Vermilion county, setting forth, in substance, that the indictments were returned against him January 28, 1916; that the first verdict was returned against him February 26th, and a motion for a new trial was pending when the state's attorney gave notice that he desired to have the second case set for trial; that there was great horror expressed in the newspapers of the county over the tragedies committed at the bunk car in the killing of the Greeks; that during the

first trial the Commercial News and the Danville Morning Press, newspapers of 10,headlines in giving accounts of the trial, 000 circulation or more, published flaming and on November 9, 1915, a train on that road left Hillery at 11 p. m. and arrived in such as, "Brother is Not Frightened by NeChampaign at 12:30 a. m., November 10th; gro," "Survivor of Bunkhouse Shooting Bethat a freight train on the Big Four, west haved Well on Witness Stand," "Murder Evidence Most Damaging," "William Higgason bound, left Hillery at 11:40 that night, and got into the Urbana yards at 2:35 a. m. No-Testified that Defendant Admitted Killing of Two Greeks," "Murphy Gets Nervous," etc., which headlines were accompanied by full [1,2] The foregoing is substantially the entire evidence in the case. It will require no accounts of the testimony of the state's witargument to convince the mind of any rea-nesses, while only a few words or sentences sonable man that the plaintiff in error is were devoted to the detailing of the evidence guilty of the murder of Louis Roumas be- for plaintiff in error, and that in many inyond all reasonable doubt. Both the positive stances the evidence was different from the and circumstantial evidence for the people evidence given on the trial, to defendants' point strongly and with certainty to his prejudice; that the argument of the state's guilt, and the only escape from that conclu- attorney to the jury was published in the sion would be in a finding that the state's paper at great length, with the statement witnesses, or many of them, have committed that he made a great speech and repeatedly

demanded the lives of the two prisoners; | ion county, and that they were disappointed that after the verdict was rendered there that it did not take place; that he interviewwas printed across the front page of one of ed several people from the towns surroundthe papers, "Murphy and Armstrong Get ing Danville, and that they were unanimous Ninety-Nine Years," and that the papers and in expressing the sentiment that the defendsaid printed matter were distributed over ants ought to be hung; that he believes that the county by the sending out of more than the defendants cannot secure a fair trial; 10,000 copies thereof; that, owing to said and as a further basis therefor he states that facts, the prejudice of the people waiting to after the trial of said defendants for the hear the verdict was so great that it was killing of George Roumas, after the jury refeared by the officers, including the judge, tired, certain officers of the court expressed that if the jury should bring in a verdict of fear that, should the jury bring in a verdict not guilty, there might be an attempt made of not guilty, the defendants would be lynchto lynch the defendants; that, judging from ed, and that just before the jury rendered those facts, a general "underground" preju- their verdict he was requested by the officers dice has arisen against Murphy since Feb- to say nothing, as they feared the outcome in ruary 20, 1916, and that there is no person of case the verdict should be favorable to the sufficient intelligence to serve upon the jury defendants; that on Saturday, March 2, who has not a fixed opinion as to his guilt 1916, there was published in one of the newsand as to what the verdict should be, and papers a purported statement from Lewman, that a great many people are demanding state's attorney, "I see no use of going to that he be hung without regard to the evi- the expense of trying these men elsewhere;" dence; that he is convinced that no jury that affiant believes that that statement causcan be secured in the county that would give ed many people to make affidavits in support him the presumption of innocence; and that of the people's denial of the affidavits for he fears and believes that he will not re- change of venue. ceive a fair and impartial trial in Vermilion county.

In support of said petition there was filed an affidavit of Charles R. Shannon that he was employed as counsel for the defendants and interviewed 125 citizens of Danville, that he secured from 25 of those citizens 25 affidavits, and that 80 of the 125 said that they felt that defendants could get as fair trial as they deserved, considering the crime they committed, as they felt that both should be hung, and that the jury erred in not so finding, and that the 10 others made no comment. The substance of each one of the 25 affidavits so referred to and filed in this cause is that affiant is a resident of the town of Danville, and that he believes that Charles Murphy, one of the defendants in said cause, cannot receive a fair and impartial trial in the circuit court of Vermilion county because the inhabitants thereof are

prejudiced against him, and that the preju

dice has arisen since February 20th.

The state's attorney filed an answer to the said petition, and denied that the inhabitants of Vermilion county were prejudiced against plaintiff in error, and denied the statement that he could not obtain a fair and impartial trial, averred that the statements made in the petition were based upon hearsay evidence and were without foundation in fact, and that it was not true that the sentiment of the people of the county had become worked up to an "intense pitch" against him, also ed by the officers of the court, and the court averred that the statement that it was fearitself, that if a verdict of not guilty were returned there might be an attempt to lynch defendants, was without any basis and is false, and further averred that Murphy could and would receive a fair and impartial trial in the circuit court of Vermilion county. The answer was supported by the affidavit of the state's attorney. The answer was further supported by four special affidavits by

Charles M. Crayton, Charles W. Wortman,

Oliver D. Mann, his counsel, filed in sup- all members of the Vermilion county bar. Charles W. Fleming, and James R. Juvinall, port of said petition his affidavit, setting It was stated in each of said affidavits that forth, in substance, that he appeared as counsel in the first trial, and that during that since the first trial of the defendants they trial it became apparent to him that there had talked to many persons of Vermilion existed such a prejudice against the defend- county, residing in all parts of it, about said ants that it would be impossible to secure a case and about the charge contained in the jury in the county of sufficient intelligence indictment, and that none of them expressed to act as jurors who would start with a pre- any bias or prejudice against the defendsumption in their minds that the defendants ants, and only a very few of them knew the were innocent, and who had not formed some deceased or ever heard of him before his opinion as to their guilt which will require death; that the men they interviewed were evidence to remove; that he talked with about from all walks of life, and that from those 50 citizens of Danville who said to him that statements there is no prejudice in the minds defendants ought to be hung, and that he of the inhabitants of Vermilion county against had done well to save their necks; that a either of said defendants, and that in their large number of people had said to him that judgment no reasonable apprehension exists

partial trial in that county; that the deceased | alleged prejudice actually exists and that the was a Greek railroad laborer, known only defendant will not receive a fair and imto a few persons living in said county. Affi- partial trial. Jamison v. People, 145 Ill. 357, ants Crayton and Fleming, as shown by their 34 N. E. 486. When all the affidavits are conaffidavits, had interviews with 100 men or sidered, we are satisfied that there was no more, Juvinall with 300 or more, and Wort- such general prejudice prevalent in Vermilion man with 500 or more. The answer was county as would be likely to prevent or interalso supported by over 1,700 affidavits from fere with the due administration of justice. representative citizens of all classes from It further appears from the record that a every town in the county, in all of which the jury was selected and sworn on the first day affiants state that they had talked to many of the trial, and it furnishes no complaint or citizens of their respective towns; that they showing whatever that any of the jurors takfound a few persons who had heard the for- en or examined had any prejudice against mer trial of plaintiff in error; that none of plaintiff in error. them had ever heard any person say he had [5, 6] Peter Docoons was objected to by any feeling or prejudice against him, and plaintiff in error as an interpreter on the never had heard any person say that he ground that he was an officer of the Danville could not get a fair and impartial trial; city police. That fact did not disqualify him that affiants had familiarized themselves as an interpreter. This court has held that with the sentiment of the people of their re- even a witness in a case or a relative of the spective towns; and that there was no preju- prosecutrix is not disqualified as an interpredice among the inhabitants of said towns ter on those grounds alone. Chicago & Alton against Murphy, and all of them expressed Railroad Co. v. Shenk, 131 Ill. 283, 23 N. E. the belief that there was no such prejudice and that he could have a fair and impartial trial in said county.

[7] The contention that the interpreter was unfair is not borne out by the record. One of the Greek witnesses, in answer to a question as to which side of the partition his bed was on that night, merely pointed to the west. The interpreter answered for him, "It was on the west side." In answer to the question, "Where who held his gun?" the witness answered in Greek, "Megalos," meaning "the big man." The interpreter interpreted and answered, "Defendant Murphy." In like manner the witness, in referring to Armstrong, used the Greek word "mikros," meaning "the little man," and the interpreter answered, "Defendant Armstrong." While

436; People v. Rardin, 255 Ill. 9, 99 N. E. 59, Ann. Cas. 1913D, 282. Besides, the court continued the case until 1:30 o'clock in the [3, 4] The court is well supported by the afternoon for the defense to produce an inrecord, as above shown, in its finding that terpreter. When the court reconvened it was there was no such prejudice against plain-informed by Murphy's counsel that their intiff in error as would prevent him from re- terpreter had gone away and that they would ceiving a fair and impartial trial in Vermil- have to go on without him, and thereby waivíon county. Nearly the entire investigations ed their objection. of attorneys for plaintiff in error were confined to the citizens of Danville, upon which they based their judgment as to the existence of prejudice against him. Plaintiff in error had little or no acquaintance in the county, and had no opportunity to make an investigation. His affidavit is necessarily based upon hearsay, largely. All the other 25 affidavits supporting the petition are shown to be made by citizens of Danville. The evidence in support of the answer comes from all parts of the county, and by men representing all classes of citizens and all kinds of business conducted in the county. Even if it be proved that there was great prejudice in the town of Danville against plaintiff in error, and that it was caused by the publication of the newspapers and other causes set forth in the petition, still, if in the remainder of the county there remained no prejudice against him, as is thoroughly shown, there could be no reasonable apprehension that he could not obtain a fair and impartial trial in said county. By the affidavits in the record it appears that Vermilion county is 42 miles long north and south and 23 miles wide east and west, and has a population of more than 90,000, while Danville has a population of approximately 30,000, and contains perhaps not over one-fifteenth of the entire territory of the county. The real question to be determined on such a petition is not whether or not the evidentiary facts in the petition are proved, but whether, upon all the evidence admitted, there is reasonable ground for fear that the

the interpretations were not literal, the answers of the interpreter and the witness amounted to one and the same thing, as the evidence clearly shows that Murphy was a big man and Armstrong a small man and that the witness actually referred to them in those terms. The court was at no time asked to dismiss the interpreter or to substitute another. It does not appear that the interpreter was intentionally unfair, or that his interpretations were, in fact, unfair to the plaintiff in error.

[8] Complaint is made that the court erred in limiting the cross-examination of two of the state's witnesses, John Roumas and Sherman Hopkins. The court at first limited the cross-examination of the witnesses in the manner charged, but afterwards permitted them to answer the questions. Whatever error, if any, was thereby cured. The record

also shows that the court permitted Jordan | his cross-examination the state's attorney Johnson to answer the very questions on cross-examination that it is contended the court excluded over plaintiff in error's objections.

[9, 10] J. D. Mann was asked on crossexamination what his first name was and whether the name he gave was the name given him at birth, and also as to where his home was, all of which he declined to answer. The court at first ruled that he should answer, but later, on the witness' refusal to answer, sustained an objection to the question. Technically this was an error, but we cannot see wherein plaintiff in error was prejudiced thereby. No reason appears in the record for the witness' refusal to answer. He did answer that he was in jail, and that he was committed there upon a charge of felony. In our judgment, the witness was more discredited in his refusal to answer than if he had made full answers as to his name and residence. The natural inference by his answer is that he had a history that he did not want to reveal, and that the reasons therefor were connected with other charges against him of a criminal nature.

asked to have the exhibit withdrawn and the evidence of Bailey excluded, and the court instructed the jury to disregard the excluded evidence and to give it no consideration in the case. The court did not err in its first refusal to exclude the evidence because of the fact that the witness first positively identified the plaintiff in error as the Walter Smith named in the people's exhibit. When the witness weakened on his evidence, the court did all that it could do to take the evidence from the consideration of the jury. Besides, we do not think the defendant was unduly prejudiced thereby, although the evidence was afterwards shown to be inadmissible by the further examination of the witness.

[16, 17] The most serious objection presented in this record is that taken to the remarks of counsel for the state in his argument to the jury in which he said, "There is a parole law which turns them out as fast as it gets them there," meaning thereby that the Parole Law turned criminals out of the penitentiary as fast as they get there. If the state's attorney was arguing on the question of punishment at the time such remark was made, it might have a tendency to cause the jury to award the more severe penalty. The Parole Law has no application whatever to criminal trials, and the state's attorney was clearly beyond his rights in using such expression. Farrell v. People, 133 Ill. 244, 24 N. E. 423. The court therefore erred in not sustaining the objection to the remark. We do not think, however, that the remark prejudiced plaintiff in error in this case. This appears from the verdict itself, in which the penalty of death was inflicted by the jury as to plaintiff in error and a sentence of 99 years was given to defendant Armstrong. The remark was equally applicable to both defendants, and was not specially directed to the plaintiff in error, so far as the record shows. The crime committed by plaintiff in error was a very revolting one. The evidence against him was much stronger than the evidence against Armstrong because of the fact that the latter was not identified by so many persons. The evidence also shows that Murphy was the one who shot Louis Roumas, and it tends to show that he also killed George Roumas. The jury no doubt inflicted the different penalties upon the two defendants for those reasons, and not on account of the remarks made by the state's attorney. We do not believe the re

[11-13] There is no merit in the contention that the court erred in permitting the state to introduce evidence concerning experiments made in fitting the blue steel revolver into the wounds on the body of George Roumas. The grounds for the objection are that it called the jury's attention to the fact that a double murder had been committed, and because plaintiff in error was not present. The evidence in reference to the killing of George Roumas was inseparable from the evidence in relation to the killing of Louis Roumas, and was therefore admissible as a part of the res gestæ. Hickam v. People, 137 Ill. 75, 27 N. E. 88; Lander v. People, 104 Ill. 248; Farris v. People, 129 Ill. 521, 21 N. E. 821, 4 L. R. A. 582, 16 Am. St. Rep. 283. The evidence as to the character of the wounds on the body of George Roumas was admissible for the further reason that the character of the wounds was shown by the evidence to point to the owner of the blue steel revolver as the person who committed the double murder, which was shown by the evidence to have been committed at the same time and by the same men. The fact that such experiments were made in the absence of plaintiff in error goes merely to the weight of the evidence, and not to its admissibility. Moore v. State, 96 Tenn. 209, 33 S. W. 1046. [14, 15] Henry Bailey, an officer of Padu-marks figured in fixing the penalty of plaincah, Ky., was placed on the witness stand to identify plaintiff in error as the person whose conviction of the infamous crime of burglary was shown by People's Exhibit 5. At first he identified the prisoner positively, but later qualified his identification. Plaintiff in error objected to the evidence on the ground that he was not properly identified by the witness as the Walter Smith named in the exhibit as the defendant convicted. After

tiff in error, or we would not hesitate to reverse the judgment on account of this error.

[18] The other errors assigned and argued are trivial in character and in no way affect the merits of the case, and are therefore passed without any further consideration. Plaintiff in error could not reasonably expect another or different verdict at the hands of another jury. It should not be and is not the policy of this court to reverse a judgment

(225 Mass. 355)

merely because error has been committed, unless it appears that real justice has been | GARDINER et al. v. BURRILL, Treasurer. denied thereby or that the verdict of the (Supreme Judicial Court of Massachusetts. Sufjury or the judgment of the court may have folk. Dec. 15, 1916.) resulted from such error. There is no such showing in this record, and the judgment | TAXATION 878(2)-SUCCESSION TAX-PROPERTY SUBJECT. of the circuit court is affirmed.

Where the funds held in trust under a will The clerk of this court is directed to enter to pay the income to L. for life and on his death an order fixing the period between 9 o'clock the principal to whomsoever he should by will in the forenoon and 4 o'clock in the after-appoint, consisted of shares of stock of Massanoon of February 16, 1917, as the time when the original sentence of death entered in the circuit court of Vermilion county shall be executed. A certified copy of such order shall be furnished by the clerk of this court to the sheriff of the county of Vermilion. Judgment affirmed.

(276 Ill. 78)

COHN et al. v. SESTI et al. (No. 10979.) (Supreme Court of Illinois. Dec. 21, 1916.) APPEAL AND ERROR 84(3)-REVIEW-DIS

MISSAL.

Where garnishees were discharged and on plaintiff's appeal to the Appellate Court, the judgment was reversed, and the cause remanded, a certificate of importance and appeal to the Supreme Court was improvidently granted, the judgment of the Appellate Court not being final and so the appeal will be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 530-533, 536; Dec. Dig. 84(3).]

Appeal from Second Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; John K. Prindivill, Judge.

Action by Isidore Cohn and others against Edward M. Malo, in which Fred Sesti and others were summoned as garnishees. The garnishees were discharged, and, on plaintiff's appeal, the Appellate Court reversed the judgment, remanded the cause, and granted a certificate of importance and peal to the Supreme Court. Appeal dismissed.

chusetts corporations, so that if there was no change of investment by the trustees the property would, under St. 1909, c. 527, § 8, and St. 1909, c. 490, pt. 4, § 1, be subject to a succession tax, on exercise of the power of appointment, as the transfer of the shares could not be effectuated without the aid of the laws of Massachusetts, it is immaterial that the trustees organized a corporation, G., under the laws of Maine, with the trustees as its officers, and its stock, amounting to one-sixtieth of the value of the trust shares, owned by them, and transferred the trust shares to G., in consideration only of its agreement in its contract with the trustees, reciting sale of the trust shares to it by the trustees, and its agreement to return the shares, or furnish an equivalent number of similar shares, or pay their fair market value, on demand, and till then to pay to the trustees the equivalent of all dividends, it in the meantime to keep the shares deposited with another Maine corporation, a trust company, which is to issue a certificate of deposit therefor, and keep them, or an equal number of similar shares, till surrender of the certificate released by the trustees, who agree to protect the trust company from "all liability now or hereafter" on account of the shares; these transactions being specious, and the trustees in making the contract, in effect, dealing with themselves, and intending to retain, and in fact retaining, full control of the comprising the trust property to be distributed legal title to the shares, and they in reality to L.'s appointees.

[Ed. Note.-For other cases, see Taxation. Cent. Dig. § 1701; Dec. Dig. 878(2).] Rugg, C. J., dissenting.

Case Reserved from Supreme Judicial Court, Suffolk County; Charles A. De Courcy, Judge.

Petition by Robert H. Gardiner and othap-ers, executors of Lawrence Tucker, deceased, of Andover, Me., against Charles L. Burrill, Treasurer and Receiver General of MassaThe

Thomas D. Nash and Michael J. Ahern, chusetts, for abatement of legacy tax. both of Chicago, for appellants. Blum, Wolf-probate court dismissed the petition, and sohn & Blum, of Chicago, for appellees. on appeal to the Supreme Judicial Court, Charles A. De Courcy, Judge, reserved the Decree of probate case for the full court. court affirmed.

DUNN, J. The appellees sued Edward M. Malo in attachment in the municipal court of Chicago and summoned the appellants as garnishees. Judgment was rendered against Malo for $76.25. The answer of the garnishees was contested, and upon a trial they were discharged. The plaintiffs appealed to the Appellate Court, which reversed the judgment, remanded the cause to the municipal court, and granted a certificate of importance and appeal to this court.

The judgment of the Appellate Court was not final, and the appeal was improvidently granted. It will be dismissed. Appeal dismissed.

Fred T. Field, of Boston, for petitioners. Henry C. Attwill, Atty. Gen., and Wm. Harold Hitchcock, Asst. Atty. Gen., for respondent.

BRALEY, J. By the respective wills of William W. Tucker and Susan E. Tucker, which were duly admitted to probate in this commonwealth, the state of their domicile, a trust was created for the benefit of Lawrence Tucker, their son, to whom the income was payable for life, and at his decease the trustees were to pay over the principal to who

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