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SCOTT, C. J. (after stating the facts).

It has been heretofore decided by this court August 22, 1902, when the foreclosure sale that a surplus remaining in the hands of a was made of the leasehold interest of the sheriff from the sale of property taken and Commerce Vault Company, the only interest sold under execution is not in the custody of which remained in the company was the the law, but that the sheriff holds such surright to redeem from the sale at any time plus for the use of the judgment debtor as within 12 months, and to continue in posses- money had and received (Pierce v. Carleton, sion for a period of 15 months. This riglit 12 Ill. 358, 54 Am. Dec. 403; Lightner v. was not such an interest as to be subject to Steinagel, 33 Ill. 510, 85 Am. Dec. 292); or, levy and sale under execution. Merry V. as stated in Weaver v. Davis, 47 Ill. 235, the Bostwick, 13 Ill. 398, 54 Am. Dec. 431; Wat- sheriff holds such surplus merely as a trusson v. Reissig, 24 Ill. 281, 76 Am. Dec. 746; tee for the debtor, which the latter may reCook v. City of Chicago, 57 Ill. 208; Kell v. cover in an action against the sheriff for Worden, 110 Ill. 310; Hill v. Blackwelder, money had and received. Such being the 113 Ill. 283. Consequently, no lien could at

relation between the sheriff, as the holder of tach to the leasehold interest by reason of the the surplus, and the debtor, it is manifest rendition of any judgment against the Com- that the latter has no property in the specifmerce Vault Company subsequent to the fore- ic money received by the sheriff, but has closure sale. Green v. Marks, 25 Ill. 221. merely a chose in action which may be enThe right of a creditor to redeem from a fore- forced against the sheriff in an action of closure sale at any time between 12 and 15 assumpsit. The sheriff may substitute any inonths after the date of sale, and to have other money, provided it be a legal tender, the property resold to satisfy his debt does in the place of the money received by him not exist by virtue of any lien on the prop- at the sale, and a payment with such substierty, but solely by reason of sections 20 tuted money would be a complete discharge and 23 of chapter 77, Hurd's Rev. St. 1903. of his liability to the person entitled to the Herdman v. Cooper, 133 lll. 383, 28 N. E. surplus. 1091.

That a chose in action, other than those All of the judgments involved in this suit evidences of debt which circulate as money, were rendered after the foreclosure sale, and is not subject to levy and sale under execufor that reason none of them became liens tion has been expressly decided by this court upon the leasehold interest theretofore own- in Crawford v. Schmitz, 139 Ill. 564, 29 N. ed by the Commerce Vault Company. The E. 40. In the case of Turner v. Fendall, 1 Knights Templars and Masons Life Indem- Cranch (U. S.) 117, 2 L. Ed. 53, the Supreme nity Company, however, redeemed from the Court of the United States, in discussing the foreclosure sale and caused the premises to question whether money collected for one be resold under execution No. 1 in its favor, person by a sheriff under an execution could, as it had a right to do under the provisions before it had been paid over to that person, of the statute above referred to. This sale be levied upon by the same sheriff under produced a surplus of $17,964.96 over and an execution in favor of another person and above the amount necessary to reimburse the against the goods and chattels of the perredeeming creditor for the money advanced son for whom the money was collected, said: by it and to satisfy that execution against “The general rule of law is that all chattels, the Commerce Vault Company. At the time the property of the debtor, may be taken of the sale under execution, and when the in execution, and whenever an officer has

it the sheriff, he had in his hands two other exe- his hands it is his duty to do so, and, if he cutions which had been issued upon judg- omits to perform his duty, he must be acments rendered against the Commerce Vault countable to those who may be injured by Company during the month of October, 1903. the omission. But has money not yet paid As above indicated, neither of these judg- to the creditor become his property? That ments was a lien upon the leasehold interest is, athough his title to the sum levied may heretofore mentioned. It was claimed by the be complete, has he the actual legal ownergarnishee in the trial court, and is contended ship of the specific pieces of coin which the here in support of the judgments of the cir- officer may have received? On principle the cuit and appellate courts, that executions court conceives that he has not this ownerNos. 2 and 3, although not liens upon the ship. The judgment to be satisfied is for leasehold interest, became liens upon the sur- a certain sum-not for the specific pieces plus arising from the sale under execution No. which constitute that sum-and the claim of 1 at the instant such surplus came into the the creditor on the sheriff seems to be of hands of the sheriff. Whether these execu- the same nature with his claim under the tions became liens upon such surplus depends judgment, and one which may be satisfied upon whether such surplus may be levied in the same manner. No right would exist upon by the sheriff under those executions or to pursue the specific pieces received by the applied thereon by him. This involves a con- officer, although they should even have an sideration of the relation existing between earmark; and an action of debt-not of dethe sheriff, as the holder of such surplus, and tinue—may be brought against him if he the Commerce Vault Company,

fails to pay over the sum received or con

*

*

verts it to his own use. It seems to the 16 N. E. 907, the sheriff had in his hands a court that a right to specific pieces of money writ of attachment, which he levied upon can only be acquired by obtaining the legal certain property in the possession of the or actual possession of thein, and until this warehouse company which was the defendis done there can be no such absolute owner- ant in attachment, and upon which the deship as that an execution may be levied fendant had a lien for storage charges and on them. A right to a sum of money in the money advanced. Thereupon the various hands of a sheriff can no more be seized owners of this property paid to the sheriff than a right to a sum of money in the hands the amount of the storage charges, and he of any other person, and, however wise or released the levy. The attorney for the just it may be to give such a remedy, the plaintiff directed him to pursue this course law does not appear yet to have given it." and to hold the money so received in lieu In Prentiss v. Bliss, 4 Vt. 513, 24 Am. Dec. of the property released. The sheriff, how631, where the same question was before ever, paid the money, upon the order of the the court as in Turner v. Fendall, supra, it defendant, to a creditor other than the plainwas said: "The fallacy of the ground as- tiff. This court held that the sheriff should sumed, that the money collected on an execu- have returned the money into court to antion becomes the money of the creditor, will swer to the judgment in attachment, as the manifestly appear by inquiring whether an court might direct. That conclusion was unaction of trover could be maintained against doubtedly correct for this reason there pointthe sheriff when he neglects to pay over the ed out: The money was paid into the shermoney? Whether if the money was stolen or iff's hands by the defendant's creditors, and lost, it would be the loss of the officer or the order given by the defendant to the creditor? Whether, if received in bills wbich creditor to whom the money was paid "was at the time, or at any time thereafter, should a distinct admission by the warehouse combe subject to a discount or bear a premium, pany that the money in the sheriff's hands the creditor would sustain the loss or have was their money, and upon this, if nothing the benefit of the premium? No one, I be- else, the sheriff should have attached or lieve, would hesitate to answer all these. have held the money in his hands as the questions in the negative.

Neither money of the warehouse company and have do we see any of the absurdities attending brought the same into court to abide,” etc. this view of the case which have been urged In the case now before us the identical in the argument. It has been said that it money in the sheriff's hands did not become is idle to require bim to pay over the money the money of the execution debtor, but the to the creditor when it would be his duty im- sheriff, in his individual capacity, was mere. mediately to levy on the same as soon as it ly indebted to the Commerce Vault Company came into possession of the creditor. But precisely as though he owed it for borrowed it may be remarked that there is no greater money. absurdity in this than there is in requiring Appellee refers us to adjudications in sishim in all cases to forbear levying on prop- ter states supporting his view, but we regard erty until it becomes the property of the per- the conclusion reached by the Supreme Court son for whose debt he is about to levy. of the United States and by the court of Whether he or any other person is indebted last resort of the state of Vermont as foundand about to make a payment, and whether ed upon the stronger reasoning. We therethis payment is to be made in money or

fore hold that executions Nos. 2 and 3 were specific articles, he, as sheriff, cannot stop not liens upon the surplus in the hands of the payment and seize upon the money or the sheriff at the time the garnishment writ specific articles until they have become the was served upon him in this case. That was money or property of the person for wliose the only defense set up by the answer, which debt he takes it." The case of Leach V. admitted that the garnishee had $17,964.96 Pine, 41 Ill. 65, 89 Am. Dec. 375, relied upon in his hands belonging to the Commerce by appellee, is entirely dissimilar to the one Vault Company when this writ was served at bar. The property involved in that case was upon him. The circuit court therefore erred personal property, and the executions were in overruling the exceptions to the answer, liens upon the property which was seized in discharging the garnishec, and in enterby the sheriff. In such case it is manifest

In such case it is manifest ing judgment against appellant for costs. that the surplus arising from a sale under The judgment of the circuit court and the one execution could be applied by the sheriff judgment of the Appellate Court will be reupon other executions which were in his versed, and the cause will be remanded to hands and were liens upon the property at the circuit court for further proceedings in the time such sale was made. In First Nat. conformity with the views herein expressed. Bank of Chicago v. Hanchett, 126 Ill. 499, Reversed and remanded.

78 N.E.-4

(222 Ill. 155)

must be settled before the logs were taken LARRANCE v. PEOPLE.

away. The deceased assented, and while he (Supreme Court of Illinois. June 21, 1906.) was gone for the singletree plaintiff in er1. HOMICIDE-MANSLAUGHTER - EVIDENCE

ror brought Henry Larrance's books to the SUFFICIENCY.

yard for the purpose of making settleEvidence held sufficient to sustain a convie

ment. North of the sawmill a short distance tion for manslaughter.

there was a logway or driveway running 2. WITNESSES — HOMICIDE — CROSS-EXAMINATION — DISCREDITING WITNESS – EFFECT OF

east and west, and just south of this driveERROR.

way was a pile of logs; each log being paralIn a prosecution for murder, a witness for lel with the driveway. When deceased redefendant was asked if he had testified at the

turned with the singletree Henry Larrance coroner's inquest to certain facts which he testified to on trial, and answered that he did not

again spoke to him about the settlement, remember. In argument, the prosecuting at- whereupon Henry Larrance, the deceased, torney referred to the matter, and stated that and plaintiff in error, who had the books, if the witness had made any such statement at

all sat down on a log in the large pile. Dethe coroner's inquest he would have said so. Held, that the cross-examination was improper,

ceased was about the middle of the log east because it had not previously been shown that

and west. Henry Larrance was on his east witness had been given an opportunity at the side, plaintiff in error was on his west coroner's inquest to testify to the matter with

side, and all three faced north. Deceased respect to which he testified on the trial, and that, in connection with the argument of the inquired what the amount was. Henry Larprosecuting attorney, the error in allowing such rance replied $2.60. Deceased expressed a cross-examination was prejudicial and cause for desire to see the books. Plaintiff in error exreversal.

hibited them, and after they were examined 3. CRIMINAL LAW-INSTRUCTIONS--PRESUMP

the deceased produced his book and announTION OF INNOCENCE. In a prosecution for murder, a requested in

ced that it showed just half that much. struction that, if the jury could reconcile the Plaintiff in error said: "We can't settle then." evidence upon any other reasonable theory or

Henry Larrance by this time had risen hypothesis than that of defendant's guilt, it was

to his feet and moved around in front of the their duty to acquit, was correct, and, in the absence of any other instruction of like import, its deceased, where he stood facing him, and refusal was reversible error.

again told him not to move the logs until Error to Circuit Court, Vermilion County;

payment was made. Deceased said, “I will E. R. E. Kimbrough, Judge.

move them,” and arose to his feet. Henry

Larrance ordered him off the premises. The Benjamin Cassius Larrance was convicted

deceased replied that he would go when he of manslaughter, and brings error. Reversed and remanded.

got ready. Henry Larrance then threw off

his coat and told the deceased to get out of Buckingham, Dysert & Troup, for plaintiff

there or he would whip him. Jerry Crimin error. W. H. Stead, Atty. Gen., and J.

mins stepped between Henry Larrance and W. Keeslar, State's Atty. (W. T. Gunn and the deceased, saying, “Boys, there is noO. M. Johns, of counsel), for the People.

thing to fight about.” Thereupon the deceasSCOTT, C. J. Benjamin Cassius Larrance

ed drew a revolver from his pocket and held was indicted for the murder of John Crim

it in his right hand, seeing which the plainmins by the grand jury of Vermilion county.

tiff in error also drew his revolver and said Upon a trial he sought to justify the killing

to the deceased, “Drop it!" and walked on the ground of self-defense and was con

around in front of the deceased, keeping victed of manslaughter. He prosecutes this

his face toward him, passing between the dewrit of error for the purpose of having the

ceased and Henry Larrance, repeating the record of the circuit court of Vermilion coun

words, "Drop it!” ty reviewed.

As to what next occurred the evidence is Henry Larrance, a brother of plaintiff in

in conflict. There were present at this time, error, on October 10, 1905, owned and operat

the deceased, plaintiff in error, Henry Lared a sawmill and the millyard connected

rance, Jerry Crimmins, Setzer, Robinson, therewith. Plaintiff in error was in the em

John Larrance (the father of the plaintiff in ploy of his brother, assisting in carrying on

error), and Charles Baird. John Larrance, the business at the mill. The deceased had however, was not a witness on the trial of some logs in the yard which he had brought the cause. Jerry

Jerry Crimmins testified that there for the purpose of having them sawed, when plaintiff in error had reached a point but concluded to remove them without sawing, directly in front of the deceased he fired and for that purpose came to the mill on

two shots at John Crimmins, both of which the day last mentioned with a team and took effect; that the latter then walked away two hired men, Robinson and Setzer, and his a few steps, fell down, and immediately died brother, Jerry Crimmins. In attempting to without speaking a word; that, at the time move one of the logs a singletree was broken. the shots were fired, he (Jerry Crimmins) Deceased started to go to his home to get was about 15 feet away from his brother, another to replace the broken one. As he engaged in a controversy with Henry Larwas on the point of going, Henry Larrance rance. Robinson testified that after the said to him that he was owing him (Henry plaintiff in error passed from the west side Larrance) some money, and that the account 1 of the deceased around in front of him, and

to a point northeast of him, plaintiff in error, though pointing his revolver at the deceased, kept backing away from him to the east, exclaiming, “Drop it!” That the deceased followed him 12 or 14 feet, until the deceased reached a point about 4 feet east of the east end of the log on which they had been sitting. That, when he reached that point, he (John Crimmins) gripped his revolver, raising it and pointing it toward the plaintiff in error, when the latter fired the two shots that killed the deceased. The testimony of each, Setzer, Henry Larrance, Charles Baird, and plaintiff in error is harmonious with that of Robinson in reference to the deceased following plaintiff in error as the latter retreated, after he had passed to the east of the deceased. Setzer said that as plaintiff in error backed away he said to deceased, "Drop it," and "Don't follow me"; that both of these expressions were several times repeated, notwithstanding which the deceased continued to advance upon plaintiff in error with the revolver in his hand. Charles Baird testified that immediately before the shooting the deceased was advancing upon plaintiff in error and raised his revolver and pointed it toward the latter, when the fatal shots were fired. Henry Larrance sạys that, as his brother went backward, commanding the deceased to drop his revolver, the latter followed, and as they proceeded in this manner Crimmins pointed his revolver at the plaintiff in error, when the latter fired. Plaintiff in error says that, when he first commanded deceased to drop the revolver, the latter replied, “I'll pick you first,” and pointed his revolver toward plaintiff in error, who then replied, "Johnny, don't do that”; that after he (Larrance) had passed to the east the deceased advanced and plaintiff in error kept going backward, and called out two or three times, "Johnny, don't you follow me"; that the deceased continued to advance and lowered his revolver a little and then raised it again, pointing it directly at the plaintiff in error, when the latter fired. Immediately after the shots were fired, and after the deceased had fallen to the ground, plaintiff in error called those present to witness that he had acted in selfdefense, said that he was going to Danville to give himself up, and in accordance with that announcement took his departure and surrendered himself to the sheriff.

It is first urged that the verdict of the jury is clearly against the manifest weight of the evidence, and that for this reason the judgment should be reversed. A careful examination of the record leads us to the conclusion that this error is not well assigned. We regard the case, however, as being very close on the evidence, and for this reason the rights of the parties in reference to certain questions which arose on the trial could be made effective only by rulings made in exact accord with the law.

A coroner's inquest was held on the even

ing of the day of the homicide, at which Henry Larrance testified. Upon cross-examination on the trial in the circuit court, for purposes of impeachment, he was asked by the prosecutor whether he related anything at the inquest about his brother having said to John Crimmins, "Don't follow me," and whether he said anything at the inquest about John Crimmins having advanced upon his brother. After an objection to this line of examination was overruled, the witness replied that he did not remember whether he had, at the coroner's inquest, testified anything in reference to these matters. Based upon this testimony, counsel for the prosecution, in his argument to the jury, made use of the following language: "Henry Larrance now tells you that at the time that this shot was fired John Crimmins was advancing upon Cassius Larrance and Cass Larrance was retreating. At the coroner's inquest I asked him if he made any such statement as that, and he hays he don't remember. He didn't make any such statement as that, or he would have told you so. That part of the statement is different now from what it was on the evening of this shooting before the coroner, that John Crimmins was advancing upon his brother and attempting to shoot him. Absolutely none. And now, when this case comes to trial, he says that John M. Crimmins was advancing upon his brother. And then this little Baird boy—there is some things about his evidence. He tells you, and they would have you believe, that he says that Crimmins was advancing upon Mr. Cassius Larrance at the time this shot was fired. It is up to this jury to say whether or not a man in this country can be shot down in cold blood and yet the man go scot-free. It is no wonder that we are pointed at as a county of lawbreakers—” Objection was then made and overruled, whereupon counsel continued: As a county of murderers. We have a right to refer to a matter that is of common knowledge." Whereupon an exception by plaintiff in error was noted.

We think the method of the cross-examination above referred to was improper, and that the objection made thereto should have been sustained. The proper matter for investigation in reference to the testimony of Henry Larrance before the coroner's inquest was not, in the first instance, whether or not he then testified that plaintiff in error told John Crimmins not to follow him, and that John Crimmins advanced upon plaintiff in error prior to firing the shots, but the crossexamination should first have been addressed to showing that Henry Larrance was given an opportunity to testify in reference to these matters; that he was either interrogated about them specificially; or that he was directed, or invited, or given an opportunity to state all that was said and done at the time of the affray. 30 Am, & Eng. Ency. of Law (20 Ed.) 1118; Commonwealth v. Haw

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kins, 3 Gray (Mass.) 463; Hyden v. State, 31 2. SAME-LOCATION-NEIGHBORHOOD OF PUBTex. Cr. R. 401, 20 S. W. 764. Unless he was

LIC SCHOOL.

The discretion of the mayor of a city to so specifically interrogated, or was so direct

refuse a license to keep a dramshop at a place ed, invited, or given opportunity at the in- where it will be a detriment and injury to the quest, it was entirely immaterial whether neighborhood, or offensive to the best interests he then made the same statements on this

of society, is not abused by refusing a license

to conduct a dramshop adjacent to or in the imsubject that he made on the trial in this

mediate neighborhood of a public school. case. We think this cross-examination, when taken in connection with the remarks

Appeal from Appellate Court, First District. of counsel which we have above set out, was

Mandamus by the people, on relation of prejudicial to the rights of the accused.

Henry Raben, to compel Carter H. Harrison It is apparent, from the testimony in ref

and others, as mayor, city clerk, and city erence to the occurrences at the time of the

collector of the city of Chicago, to issue a shooting, that the jury should have been

dramshop license to relator. From a judgaccurately and fully instructed in reference

ment of the Appellate Court, affirming a to the law of the case. The court refused

judgment awarding the writ, respondents ap

. the twenty-fourth instruction asked by plain- peal. Reversed. tiff in error, which was in the words follow- The people, on the relation of Henry Raben, ing: "The jury are instructed by the court filed a petition in the superior court of that, if they can reconcile the evidence in Cook county against the appellants, as mayor, this case upon any other reasonable theory city clerk, and city collector of the city of or hypothesis than that of this defendant's Chicago, for a writ of mandamus to compel guilt, it is your duty to do so and acquit the them to issue to the relator a license to keep defendant.” We think this instruction was a a dramshop at 345 East Division street, in correct statement of the law, and, in the ab- said city. The respondents answered the sence of any other of like import, its refusal petition, and upon a hearing the court awardin this case was reversible error. Other ed the writ as prayed. On appeal to the criticism of the action of the circuit court Appellate Court for the First District that in passing upon instructions is without merit. order was affirmed, and the respondents now

The court improperly admitted evidence of a bring the case to this court by a further statement made by John Larrance immedi- appeal. ately after the death of John Crimmins The case was heard in the superior court which indicated that the shooting was pre- upon an agreed state of facts, as follows: meditated, and improperly excluded evidence "The only ordinance of the city of Chicago offered by plaintiff in error which would have regulating the matter of granting licenses to tended to rebut any presumption of malice keep dramshops is the following: '1175. The which the jury might have drawn from the mayor of the city of Chicago shall from time fact that plaintiff in error was armed with to time grant licenses for the keeping of a revolver. Defendant in error insists that dramshops within the city of Chicago to perno prejudice resulted from these errors, for sons who shall apply to him in writing therethe reason that the jury returned a verdict for and shall furnish evidence satisfying of guilty of manslaughter, which amounted him of their good character. Each applicant to'a finding that plaintiff in error was not ani- shall execute to the city of Chicago a bond, mated by “malice aforethought." Whether with at least two sureties to be approved by in the present state of the record these er- the city clerk or city collector, in the sum rors last mentioned would require reversal of $500, conditioned that the applicant shall we deem it unnecessary to decide, as we ap- faithfully observe and keep all ordinances in prehend they will not arise upon another force at the time of the application or theretrial of the case.

after to be passed during the period of the Other questions are presented, but, in view license applied for, and will keep closed on of conclusions above reached, we will not Sundays all doors opening out upon any extend this opinion by discussing them. street from the bar or room where such dram

The judgment of the circuit court will be shop is to be kept, and that all windows openreversed, and the cause remanded.

ing upon any street from such bar or room Reversed and remanded.

shall on Sundays, except between the hours of one o'clock a. m. and five o'clock a. m., be

provided with blinds, shutters or curtains, so (222 Ill. 150)

as to obstruct the view from such street into HARRISON, Mayor, et al. v. PEOPLE ex rel.

such room. Nor shall any windows be paintRABEN.

ed or covered in any manner so as to obstruct (Supreme Court of Illinois. June 21, 1906.)

the view from such street into such room. 1. INTOXICATING LIQUORS-LICENSES—Pow

No application for a license shall be considerERS OF OFFICERS-DISCRETION.

ed until such bond shall have been filed.' It Though an ordinance requires the mayor to grant dramshop licenses to applicants fur- is admitted that the petitioner made his apnishing a proper bond and evidence of good plication for a license to keep a dramshop character, the mayor may refuse to issue a

at the place in question, and that in so license to keep a dramshop at a place where it will be a detriment and injury to the neighbor

doing he did everything required of him by mood or offensive to the best interests of society. the laws or ordinances; that no question was

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