117 Ill. 422 | Ill. | 1886
delivered the opinion of the Court:
Peter Bressler was indicted by a grand jury of WTiiteside county for the crime of larceny. The venue was changed to the circuit court of Lee county, where he was tried and convicted, and sentenced to the penitentiary for the term of one year. He sues out this writ of error,, and brings the record of his trial and conviction before us for review.
Before proceeding to the questions arising on the rulings during the progress of the trial, we must pass upon the question, arising in limine, whether the court had jurisdiction to try the case, for without that jurisdiction the judgment is a nullity.
The statute provided that the term should commence on Monday, the 9th day of February, A. D. 1885. At two o’clock in the afternoon of that day, court was opened by one of the circuit judges, in due form of law. An order of court was then made, and entered of record, to the effect that if, at five o’clock in the evening of that day, no judge of the court should be in attendance, the" sheriff should continue the court until the next morning at nine o’clock. At the time to which that adjournment was made, no judge of the court being in attendance, the sheriff made proclamation, in pursuance of the order, that the court was adjourned until the next morning at nine o’clock. At the last named hour there was yet no judge of the court present, and at five o’clock in the evening of the same day, (the second day of the term,) the judge of the court still being absent, the sheriff made proclamation that the court was adjourned until nine o’clock the next morning, (the third day of the term,) and posted notices, on the door of the court house, of such adjournment; At the last named hour the judge of. the court was present, and court was opened in due form. Bressler then filed a plea, setting up these facts, to the jurisdiction of the court. . A demurrer to the plea was filed on behalf of the People, which the court sustained, and adjudged that Bressler should answer over, to which ruling he, at the time, excepted. Very clearly, the demurrer to the plea was properly sustained. It is provided by section 20, chapter 37, of the Revised Statutes of 1874, that “if, at any time after the opening of court for the term, no judge of the court is present at the time and place of holding court, the sheriff of the county or his deputy may adjourn the court from day to day, or, upon the written order of the judge, from time to time, and shall give notice of such adjournment by making proclamation in the court house, and by notification posted on the‘door of the court house.” The adjournment on the first day was, strictly, by order of the court, and no notice of that adjournment was therefore required to be posted; and it is not claimed that the adjournment on the second day was not in conformity with the statute, assuming the first adjournment to have been regular.
The larceny charged, was of two promissory notes; given by the defendant to one Henry Smith. They were both dated December 31, 1883. One was payable October 1, 1884, for $975.76, with interest from date at eight percent per annum, and the other was payable on the 1st of November, 1884, for $1603.92, with interest, also, at "eight per cent per annum. A payment of $905 had been made and credited on the last mentioned note, and the sum of $110 had been paid and credited on the other note. Both notes were secured by chattel mortgage. The notes were in the possession of Adam Smith, who was a brother of the payee, and a justice of the peace. It is agreed, on all hands, that on Monday, the 29tli of September, 1884, the defendant was in the office of Adam Smith, in Sterling, and then paid, on the first named note, a check drawn by Frank Bressler on Galt & Tracy’s bank, for $625, the cash upon which was soon after paid by the bank to Adam Smith, and that, at that time, the possession of both of the notes passed, by some means, from Adam Smith to the defendant. The evidence also agrees in proving that before the check was paid over, a computation was made of the interest due upon the note, and it Avas found that $300, added to the amount of the check, would overpay that amount by sixty-eight cents; that after the check was delivered, Smith, not having the sixty-eight cents, handed back to the defendant a dollar, and the defendant then handed Smith thirty-one cents in change, which Smith accepted in lieu of the thirty-two cents which Avas necessary to make the accurate change.
Smith testified that the defendant was in his office, in the morning, several times, before the interest Avas computed and the check paid over, inquiring at each time whether one Sox, to whom he claimed to have sold four colts on the day before for $300, had called, saying at one time, perhaps the first, that Sox had agreed to meet him there that morning and pay that sum on the note; that finally, a short time before noon, the defendant concluded to have the computation made and pay OArer the check, as was done, saying that Sox could pay the $300 when he came, which he expected might be at any moment; that just as they had got through changing the money, and while they were yet standing at the office table, (these notes, Avith a number of other notes, all of which were pasted together at the corner Avith mucilage, still being on the table,) August Schwertferger entered the room; that witness then turned from the table and advanced two or three steps to meet Schwertferger, and they spoke to each other; that just at that time the defendant passed around Schwertferger and left the room; that the witness, after talking to Schwertferger, turned to his -table, took the notes that were still lying there and put them in a safe, and locked it; that he then went to the bank and drew the money upon the check, and afterwards went to his dinner; that upon returning to his office he brought the packages of notes out of the safe, with the intention of indorsing the payment upon the note, and he then found that the notes were missing; that he immediately employed a constable to go with him to the residence of .the defendant, about three and a half miles from Sterling, where, finding the defendant, he demanded of him a return of the notes, speaking loud enough for the defendant to hear him, twice, but the defendant made no answer to him, and, with his son Frank, drove rapidly away in a buggy. On the next day but one, the larger of the two notes was returned to the witness by a person to wrhom the defendant had delivered it for that purpose.
Schwertferger testified that as he entered the room, at the time mentioned by Smith, he heard the jingling of money, and he observed the defendant standing at the table, doing something with the papers there, and that he (defendant) then took something and went out, passing, by the witness; that he put in his pocket what he took.
Sox testified that about two weeks before the 29th of September, the defendant wanted the witness to look at some horses and cattle he desired the witness to buy. He informed witness that they were mortgaged, but said that he preferred to sell them at private sale. ' Witness went and examined the property, but did not then make any purchase. On the Friday next before the 29th of September, the defendant again called upon the witness for the same purpose, and he then told witness that he wanted to sell to make up $300 to pay to Smith; that on the Sunday next before the 29th, witness bought four colts from the. defendant for $300, which he agreed to pay to Smith between that time,—i. e., the 28th of September and the 1st of • October; that the witness met the defendant in Sterling, on Monday, the 29th- of September, on the Street, just opposite to Smith’s office; that the defendant asked witness if he had been at Smith’s, and upon being answered in the negative, but that the witness was just going there, he informed the witness that, if agreeable to witness, he (defendant) would like to keep the colts, as he had “fixed it with Smith.”.
The defendant testified in his own behalf. He testified that he made an arrangement with his son, Frank, whereby he got $300 from him for the four colts; that he gave the check and the $300 to Smith, received the one dollar, gave back the thirty-one cents in change, and that Smith then handed him, as he thought, the note for $975.76, tearing it off the others. He denied that Schwertferger was in the room while he was there, and said he met Schwertferger coming in just as he (defendant) passed out of the room. He denied that he told Smith that Sox was to pay him $300; said that he asked if Sox had been in that day, and that, some two weeks before, he spoke to Smith, to know if it would be all right if he sold Sox some horses. Defendant further testified that shortly after getting what he supposed to be the note that he had paid, he delivered it to his son, Frank; that Frank, the next day, •showed him that he had obtained both notes, instead of one, and that he then took the $1603.92 note to Smith’s office to return it to him, but Smith was absent, and he then gave it to the party who returned it to Smith. Frank' Bressler corroborated the defendant in respect to the $300 said to have been paid by him for the colts, and Mrs. Eica Stultz, the defendant’s housekeeper, corroborated both as to the payment of the $300, which she says Frank paid to the defendant in her presence. The defendant denied that he heard Smith demand a return of the notes on the afternoon of the 29th of September, and Frank also denied that he heard such demand. .The constable who accompanied Smith corroborated him, and said that he heard him make the demand, and one of the grand jurymen returning the indictment, in this case, testified that Frank Bressler was sworn and examined before the grand jury while the question of returning this indictment was under consideration, and then testified that he “did not hear Smith ask about notes but once, and that he asked his father what Smith said about notes, and that his father replied that he did not know,—that he had paid one note, and did not know what Smith meant about notes.”
Witnesses were introduced both impeaching and sustaining the defendant’s reputation for truth and veracity, and witnesses were also introduced and examined, whose evidence tended to contradict the evidence of Frank Bressler, by showing that he could not have had the money he claimed to have had, and which was necessary to make the payments to -the defendant that he testified he did make.
Such of the numerous questions raised upon the rulings during the progress of the trial as we deem material, will now be considered.
First—The court permitted the People to prove, by the witnesses Moses Dillon and William Palmer, over the defendant’s objection, the amounts of money they had paid the witness Frank Bressler. As we understand the record, Frank Bressler did not fully and satisfactorily answer the question-as to the dates and amounts of money paid to him by Dillon and Palmer. He answered, at different times, “I would not be surprised,” “I do not know,” “Don’t recollect,” etc. In Hay v. Bell, 24 Ill. 451, this court said, in answer to a like objection to that urged here: “The rule on this point, as laid down by the elementary writers, and as found in reported cases, is, if the witness neither directly admits nor denies the act or declaration, as, when he merely says that he does not recollect, or gives any other indirect answer not amounting to an admission, it is competent to the adversary to prove the affirmative. ” To the same effect is also Wood et al. v. Shaw, 48 id. 273. We think the evidence was properly admitted.
Second—The People, on cross-examination, were allowed to interrogate Frank Bressler as to when and how he got the money which he testified that he let the defendant have. This W'as proper, as one means of contradicting him and discrediting his testimony. If he did not have the money, -it is evident that he could not have let the defendant have it.
Third—Frank Bressler was interrogated whether he did not testify before the grand jury, while the question of presenting this indictment was under consideration by that body, that “father came and got into my buggy, and I asked father what Smith said about notes, and he said he did not know,—■ he had paid one note, and did not know what Smith meant about those notes. I did not hear Smith ask about notes but once.” This has reference, as appears from other parts of the testimony, to the time when Smith testified that he twice demanded the defendant to return the notes, on the afternoon of the 29th of September, an hour or so only after they were taken or obtained by him. To the interrogatory the witness answered: “No sir; but I can tell you what I did say, if you want me to.” Defendant’s counsel then said, “I insist that he can explain. ” The court said, “If it was that in substance, he can tell.” The witness answered it was not that in substance, and defendant’s counsel thereupon excepted to the ruling. The ruling of the court was unobjectionable. This was cross-examination, and the witness should have been required to answer the questions that were asked, which, in this case; if he told the truth, could have been done by the word “no.” On the re-direct examination he would have been allowed to repeat what he did testify to before the grand jury, if he desired to do so. But he seems to have been content to let it rest as it was. The abstract fails to show that the witness was asked, on re-direct examination, what he did testify to before the grand jury. Inasmuch, however, as he previously testified that what he did testify to'was different in substance, there was a direct issue on that point.
One of the grand jurors before whom Frank Bressler was examined and gave testimony, at the time alluded to in the interrogatory quoted, testified, directly contradicting him, and saying that he did testify in the precise language of the interrogatory. This was objected to, and the ground of objection now insisted upon is, that a grand juror will not be permitted to testify how a witness stvore, except in a prosecution for perjury. This doctrine at one time was, and in some courts it is, doubtless, still, the accepted common law rule; but we think the rule otherwise is best sustained by authorities, on principle, and is more consistent with our practice. Our statute provides (sec. 412, Grim. Code, Bev. Stat. 1874, p. 408,) that “no grand juror, or .officer of the court, or other person, shall disclose that an indictment for felony is found, or about to be found, against any person not in custody or under recognizance, except by issuing process for his arrest, until he is arrested; nor-'shall any grand juror state how any member of the jury voted, or what opinion he expressed on any question before them.”
The reasons why, at common law, the proceedings before grand juries were required to be secret, are said in the books to be, first, that the utmost freedom of disclosure of alleged crimes and offences by prosecutors be secured; second, that perjury and subornation of perjury may be prevented, by withholding the knowledge of facts testified to before "the grand jury, which, if known, it would be for the interest of the accused, or their confederates, to attempt to disprove by procuring false testimony; third, to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it before the presentment is made. (Commonwealth v. Mead, 12 Gray, 167; State v. Broughton, 7 Ired. 96.) When the indictment is returned, and the defendant arrested and placed upon trial, neither the statutory nor common law reasons for secrecy can apply. There can be no reason, then, why evidence given before a grand jury should not be made known and proved, if the ends of justice require it. A contrary course would tend to defeat instead of to promote justice, and be directly in opposition to the tendency of the age, which is to enlarge, rather than to contract, the sources of evidence. See Commonwealth v. Mead, State v. Broughton, supra, and Gordon v. Commonwealth, 92 Pa. St. 216; Little v. Commonwealth, 25 Gratt. 921; State v. Wood, 53 N. H. 484.
Fourth—The name of Frank Bressler was indorsed on the indictment as one of the witnesses for the People, but he was not called and examined in chief by the People. The defendant moved the court to order him to be called on behalf of the People, so that he could be cross-examined by the defendant, but the court declined to make the order. The defendant then called and examined him as a witness in his behalf, and he was cross-examined by the State’s attorney. It is contended the court erred in not compelling the People to introduce the witness, in order that the defendant might cross-examine him. Under our practice, the People are not compelled to introduce all the witnesses whose names are on the back of the indictment. If they fail to do so, and the defendant introduces a. witness whose name is thus indorsed, he becomes his witness. And this is the modem English rule. 3 Russell on Crimes, (9th Am. ed.) 528; 1 Archbold’s Crim. Prac. and Plead. (6th ed. Waterman’s notes) 168-3; Regina v. Edwards, 3 Cox’s C. C. 83; Regina v. Cassidy, 1 F. & F. 79; Regina v. Woodhead, 2 C.& K. 520.
Fifth—The fifth instruction given at the instance of the People was as follows:
“The jury are instructed that the rule requiring the jury to be satisfied of a defendant’s guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish the defendant’s guilt. It is sufficient, if, taking the testimony all together, the jury are satisfied, beyond a reasonable doubt, that the defendant is guilty. ”
It is insisted that this is erroneous, because it is “essential that the circumstances be proved beyond a reasonable doubt, and it is just as essential that the connecting facts be established beyond a reasonable doubt.” It has often been said by this court, and its correctness is obvious, although it might never have been said, that whether, in a given ■ case, there should be a reversal for error in giving an instruction, depends quite as much upon the evidence before the jury to which the instruction might be applied, as upon the abstract accuracy of the language of the instruction; and so, if it is apparent that the language of the instruction, though inaccurate, yet, when applied to the evidence before the jury, it could not have misled the jury to believe that their duty was different from what it actually was, the inaccuracy can afford no reason for reversal.
It is quite true, as contended by counsel for the defendant, that a chain can not be stronger than its weakest link, and hence, where the fact of guilt depends upon proof of a series of links constituting a chain, the absence of a single link will be as fatal to a conviction as the absence of all the links. But the simile of a chain and links can only be applicable where there is a series of facts, one succeeding another, and each connected with and dependent upon the other. The evidence here is not of that character. The proof is direct that the defendant obtained the note from Smith. He admits it, and there has never been any controversy in regard to it. The question is, how did he obtain it ? We have seen the defendant testified that he paid the note, and that Smith then voluntarily delivered it to him. Smith, in his testimony, denied that the defendant paid the note, and that he voluntarily delivered it to him. He said the defendant obtained the note without his consent, and without his knowledge. One of these witnesses is not mistaken, simply. Smith and the defendant both know what the facts are. They both testify directly, fully, explicitly and positively. The testimony of neither comes under the head of circumstantial evidence. One testified truly, and the other falsely, and circumstances were then introduced in evidence, on the one side, to sustain, by rendering probable, on the other side, to discredit, by rendering improbable, the testimony given by the defendant. And this was all the evidence there was in the case to which it was possible for the jury to apply the instruction. Very clearly the jury might not have believed, beyond a reasonable . doubt, that Frank Bressler did not have the money wherewith to make the payment claimed by the defendant to have been made by him to the defendant, or that the defendant heard Smith demand him to return the note, and yet have believed that the defendant was guilty. These, and the other circumstances in evidence, are not principal facts,—indispensable links in a chain. They are only evidentiary facts tending to corroborate other evidence,—circumstances affording cumulative evidence,—and in that view, it is impossible that the instruction could have done any harm. We have several times repeated that “the reasonable doubt the jury is permitted to entertain, must be as to the guilt of the accused on the whole evidence, and not as to any particular fact in the case.” Mullins v. The People, 110 Ill. 42; Leigh v. The People, 113 id. 372; Davis v. The People, 114 id. 98.
Sixth—The sixth instruction, given at the instance of the People, is also excepted to. It reads thus:
“The court instructs the jury, that although a defendant has a right to be sworn and to give testimony in his own behalf, the jury are not bound to believe his testimony, but they are bound to give it such weight as they believe it is entitled to; and his credibility, and the weight to be attached to his testimony, are matters exclusively for the jury; and the defendant’s- interest in the result of the trial is a matter proper to be taken into consideration by the jury in determining what weight ought to be given to his testimony. ”
The objection taken to the instruction is, that it “does not confine the jury to the evidence, and limit their belief to the testimony. ” The statute permitting parties in criminal cases to testify in their own behalf, provides: “No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any "crime; but such interest or conviction may be shown for the purpose qi affecting his credibility.” (Rev. Stat. 1874 chap. 38, sec. 426, title “Crim. Code.”) Where the party to the suit testifies, and the jury know him to be such, as must have been the fact in the present case, there needs no further showing that he is a party to the suit, and the jury are authorized to consider to what extent that circumstance should affect his credibility. They are neither bound to believe him nor to disbelieve him, but in weighing his testimony they are to take into consideration the fact that it is testimony given by the defendant in the case. The instruction goes no further than this, and it is in harmony with Bulliner v. The People, 95 Ill. 407, and Chambers v. The People, 105 id. 415.
This instruction speaks of the evidence given by the defendant, only. It authorizes no conclusion to be reached that is not based on evidence, and it does not assume to state the law any further than that the fact that the evidence is that of the defendant, affects its credibility, so that what is said in the defendant’s instructions numbered 3 and 13 could not reasonably be regarded by the jury as in conflict with this instruction or applicable to a different subject matter, but" would naturally and properly be understood as supplementary, and to be read and considered in connection with it. Those instruetions are:
“3. The court instructs the jury that a juror, in a criminal case, ought not to condemn, unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused,—that is, unless he be so convinced by the evidence, no matter what the class of evidence of the defendant’s guilt, that, as a prudent man, he would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interest, under circumstances where there was no compulsion resting upon him to act at all. ”
“13. The jury have no right to disregard the testimony of the defendant through mere caprice, or merely because he is the defendant.- The law makes him a competent witness, and the jury are bound to consider his evidence, and give it such weight as they believe it is entitled to, and you are the sole judges of his credibility. ”
It is impossible, when these instructions are considered, as they should be, and as we doubt not were by the jury, in connection with the People’s sixth instruction, that the defendant’s rights could have been prejudiced by it.
On the question of • the effect of other evidence as tending to impeach or sustain the defendant, the jury were fully instructed. The People’s seventh instruction is:
“7. If you believe, from the evidence, that Peter Bressler, as a witness, has been successfully impeached on -this trial, then the jury are at liberty to disregard his entire testimony, except so far as it has been corroborated by other competent and credible evidence, or by facts and circumstances proved on the trial. ”
And the tenth instruction, given at the instance of the defendant, is:
“10. The court instructs the jury that they are the sole judges of the facts in this case, and of the credit, if any, to be given to the respective witnesses who have testified; and in passing on the credibility of such witnesses, the jury have a right to take into consideration not only their evidence itself, but their conduct, demeanor or bearing while testifying on the stand; their objects, purposes or designs, if any have been shown by the evidence, in so testifying; their feelings of prejudice against the defendant in this case, if any have been shown, and their means of knowing the facts and circumstances in proof, if any, tending to expose the feelings or purpose of such witness. ”
Every phase of the question thus seems to have been presented to the jury with sufficient fullness and accuracy. It is idle to say that the jury, giving heed to the instructions, could have felt authorized to disregard the evidence in determining what weight should be given to the evidence of the defendant. They would, of course, take into consideration the fact that he was the defendant, and precisely how far that should have effect, the jurors themselves must determine. No precise rule can be laid down prescribing how much or how little credence shall be given in such cases. It can not be held, as one portion of the argument of counsel for defendant would seem to tend to favor, that credence should be given or withheld as the other evidence should prove- guilt or innocence of the" crime charged, for that, in effect, would require that question to be determined before considering the evidence of the defendant, and then, if found guilty; his evidence could avail nothing, and if found innocent, it would be unnecessary.
Seventh—It is contended the court erred in refusing to give the eleventh instruction asked by the defendant. That instruction assumes to inform the jury “that although parol proof of the verbal admission of a party to a suit, when it appears that the admissions were understandingly made, affords satisfactory evidence, yet, as a general rule, the statements of a witness to the verbal admission of a party should be received with gteat caution,” etc. 'But we have been unable" to find any evidence in the record to which this instruction is applicable. The defendant is not proved to have made any verbal admissions affecting his guilt, which are controverted. The court gave, at the instance of the defendant, the following, which would seem to contain all that was necessary in cautioning the jury in respect to the liability of witnesses to be deceived in seeing or hearing:'
“9. You are further instructed by the court, that in judging of the weight and importance to be given to the testimony of any witness or witnesses in this case, you should take into account their means of knowledge of the facts of which they speak, and you have a right to judge from your own common observation of the ability of persons to judge of given facts from given opportunities, and you are not obliged to accept as true the testimony of any witness or witnesses, if, in your opinion, judging from such common observation, they are or may be mistaken concerning the facts of which they speak. ” Eighth—Complaint is made that the court refused to give the defendant’s twenty-second instruction. That instruction is not accurately worded. It tells the jury that in certain contingencies they should disregard certain evidence. This is too strong,—may ought to have been used instead of should. But the only legal idea attempted to -be conveyed in this instruction is sufficiently conveyed in the defendant’s twentieth and twenty-first instructions, and it was very proper that the court should decline to repeat that idea.
Ninth—We have examined the series of instructions with deliberation and care, and we are of opinion that, as a whole, they present the law applicable to the case fully and fairly,— at least no prejudice is done the defendant in that regard. We can not believe that by any different wording of the instructions which might have been admissible under the law, a different effect would have been produced upon the minds of the jury, and a different verdict have been returned by them.
Tenth—The last objection urged which is to be considered is, that the record does not affirmatively show that the defendant was asked by the clerk, or by the court, if he-had anything to say why sentence should not be pronounced, before the. court gave judgment. The record affirmatively shows that the defendant made a motion for a new trial, which was argued by counsel, and then overruled by the court; that he then made a motion in arrest of judgment, which, being heard, was also overruled by the court, and the record then recites: “And now neither the said defendant, nor his counsel for him, saying anything further why the judgment of the court should not be pronounced'against him on the verdict of guilty,” etc., judgment is therefore thereupon rendered, etc. Had the formal question contended for been asked, under our practice, what could .the prisoner have possibly said further to stay the pronouncing of judgment? We are aware of nothing. If the defendant or his counsel knew of anything which could have been then said to have .that effect, they should have said it. They had the opportunity, and, on principle, must be deemed to have waived any right in that regard. Whether the omission here complained of would be fatal in a capital' case, we will not now undertake to say; but under the modern practice the reason of the rule certainly does not apply to minor felonies. Grady v. State, 11 Ga. 253; Sarah v. State, 28 id. 576; West v. State, 2 Zabr. 212; State v. Ball, 27 Mo. 324.
Eleventh—Some minor objections have been urged which we do not deem it necessary to notice specifically. They have all, however, been considered, and we think them to be untenable. Objection is urged against the character of the impeaching evidence, because, it is alleged, the witnesses did not know what was the character of the defendant for truth, where he resided, nor among those with whom he was most conversant. This, as we understand, is directed against the effect of that evidence as an argument on the facts, rather than against any ruling of the court in admitting it over that objection, for, as to most of the witnesses testifying to defendant’s bad character, no objection seems to have been urged at the time, and the abstract fails to show that this particular objection was urged at any time, or that a motion was made to exclude evidence from the jury on that or any other ground.
Twelfth—The case has been argued with great ability, ingenuity and zeal, and we have endeavored to give to every argument and suggestion urged, all the consideration required for a correct conclusion. On no ground are we satisfied that the judgment should be reversed and a new trial ordered.
The question of larceny, here, as we have before herein indicated, is narrowed to that of whether Adam Smith or the defendant swore the truth. There is no manner of doubt that the defendant got the notes and carried them from Smith’s office on the 2Sth of September, and that either Smith then gave them to him, or he then stole them. Smith says that he stole them. Either the defendant is guilty, or Smith has committed the grossest and most willful perjury. No apparent motive for this' is shown, unless, indeed, we shall assume that he did it to steal the $300. His character is not impeached, or attempted to be impeached, by proof of bad reputation. His subsequent conduct in claiming immediately that the notes had been improperly taken, is consistent with his story. There is, on the other hand, inconsistency, to some extent, in the story of the defendant. The corroboration of the defendant is not direct,—it is only circumstantial, and not conclusive, even assuming the proof to be unquestionable. He may have had the $300 from his son, Frank Bressler, and have kept it. If Smith is not a perjurer, if he had it he did keep it. But there are circumstances tending, to some extent, how far the jury and the trial judge were the most competent to 'determine,, to discredit the corroborating evidence, and those who saw Smith and the defendant on the stand, and heard them, had facilities for forming opinions of their candor which we do not have.
The judgment is affirmed.
Judgment affirmed.