126 Ill. 282 | Ill. | 1888
On the night of January 17, 1888, the bank of Stevens & Welsh, of Tiskilwa, was entered, the safe blown qpen, and $5000 in money stolen. Fan Burns and Thomas Watson were indicted for the offense, and on a trial before a jury they were found guilty, and their term of imprisonment fixed at ten years in the penitentiary. The court denied a motion for. a new trial, and rendered judgment on the verdict of the jury, and this writ of error is sued out to reverse the judgment.
Two members of the bar were employed by the parties interested in the bank, to assist the county attorney of Bureau county in the trial of the cause. The defendants entered a motion to exclude the two attorneys who had been retained to assist the prosecution, from taking any part in the trial of the' cause. The court denied the motion, as it is said, and the decision is relied upon as error. The bill of exceptions contained in the record fails to show what disposition was made by the ■court of the motion, nor does the hill of exceptions show that ■ ■defendants excepted to any ruling of the court on the question. Under such circumstances, the point attempted to he raised is not presented by the record, and can not he considered. If the defendants desired to raise the question, they should have ■entered the motion, procured a decision of the court, excepted io the ruling of the court, and then made the motion, ruling ■and exception a part of the record, by hill of exceptions. This, .however, was not attempted.
It is next urged, in the argument, that the court erred in not sustaining challenges to jurors, and in ordering the sheriff io call bystanders to act as jurors in the case.- We find no ruling on this subject, or exception thereto in the bill of exceptions. There is, therefore, no question in regard to jurors presented by the record.
It is next claimed, that the evidence is not sufficient to authorize the verdict. The testimony introduced to establish ■ the guilt of the defendants, was, in the main, circumstantial ■evidence, and while it was not as clear and positive in its character as we might desire, still we are not prepared to say, after a careful examination of all the evidence, that the jury was not justified in finding the defendants guilty.
It is next urged, that the court erred in modifying defendants’ first instruction. It appears, from the record, that the instruction was modified, but in what manner it was modified does not appear from the record, and hence it is impossible to determine whether the modification was correct or incorrect.
The court refused defendants’ instruction No. 6, and the ruling is claimed to he erroneous. The instruction contains propositions of law that may be correct, but the manner in which they are stated rendered the instruction argumentative, and being argumentative, it was not error for the court to refuse to give it to the jury. But' aside from this, it does not appear, from the bill of exceptions, that the decision of the court in refusing the instruction was at the time excepted to by the defendants, and if they failed to except to the decision of the court, then they can not complain now.
Exception was taken to the giving of instructions for the People, hut we find no exception as to the action of the court on defendants’ refused instructions.
On the motion for a new trial, a large number of affidavits were read in support of the motion. It will, however, be remembered, that on the trial the defendants relied as a defense upon the proof of an alibi, the defendant Watson claiming that on the night the burglary was committed he was in Evansville, Indiana, and the defendant Burns claiming that he was in Clinton, Iowa. Evidence was introduced by the respective parties to prove that neither defendant was at Tiskilwa on the night the crime was committed, hut one was in Evansville, and the other in Clinton. From an examination of the affidavits filed on the motion, it will he found that the newly discovered evidence is merely cumulative, and, under the repeated decisions of this court, such newly discovered evidence is not ground for a new trial.
The judgment of the circuit, court will be affirmed.
. Judgment affirmed.
