p. 124.

per annum, no good cause being shown to the hardship or inconsistency in so holding, for court why such interest should not be taxed the reason that the law gave that effect to in accordance with the statute in such case his bond when he entered into it and he provided. The statute referred to in the or- had voluntarily consented to be bound by the der of the court is: “All moneys, bonds, order and judgment of the court, and the furnotes, and credits which any administrator ther reason that while he was bound by the or executor may have in his possession or con- judgment against his principal, he was given, trol as property or assets of the estate, at a by the 138th section of the same statute period of two years and six months from the (Rev. St. 1845, p. 564, c. 109), which is section date of his letters testamentary or of adminis- 124 of chapter 3 now in force, a right of tration, shall bear interest, and the executor appeal from that judgment, the court held or administrator shall be charged interest that the security was concluded by the judgthereon from said period at the rate of 10 ment, and that if the order against the adper cent.” Hurd's Rev. St. 1903, c. 3, § 114, ministrator was not warranted by law the

remedy of the security was by appeal, and The order of the probate court approving that they could not question it collaterally said account, charging the administrator when sued upon the bond. This case was with interest at 10 per cent. upon the amount followed and approved in Housh v. People, belonging to said estate remaining in his 66 Ill. 178." hands after March 15, 1895, and determining It is also urged that the court erred in findthe amounts, respectively, which should be ing that there was due the attorney who reppaid to said attorney and distributees, was resented the administrator in the settlement never appealed from or in any way annulled of the estate the sum of $310, and ordering or set aside, but remained in full force and ef- the administrator to pay him that amount fect at the time this case was tried, and the within five days. The administrator was orlaw seems to be well settled in this state that dered to pay that amount out of the funds such order is binding upon the administrator of the estate in his hands, and that order did and the sureties upon his bond in this suit un- not increase the burden of the administrator less it is impeached for fraud. Ralston v. or his bondsmen, as, had that amount not Wood, 15 Ill. 159, 58 Am. Dec. 601; Housh v. been ordered paid to the attorney for the esPeople, 66 Ill. 178; Frank v. People, 147 Ill.' | tate, the amount due the distributees would 105, 35 N. E. 530. There was no proof of have been by that amount increased. The fraud, and the most that is contended for judgment of the probate court of Cook counhere is that the probate court erred in char- ty approving the account of the administrator ging the administrator, in his account, with and ordering the amount in his hands to be interest on the funds of the estate which re- distributed was a final determination of the mained in his hands subsequent to March amount due by the administrator to the at15, 1895. This court has frequently held that torney and distributees of the estate, and interest for which a public officer or one ap- that judgment cannot be reviewed or set pointed by the probate court is liable is a aside in a suit at law on the administrator's proper charge against his bondsmen. Stern bond except the finding of that court be imv. People, 102 Ill. 540; Cassady v. Trustees peached for fraud, and the trial court did of Schools, 105 Ill. 560; Hughes v. People, not err in peremptorily instructing the jury 111 Ill. 457; Winslow v. People, 117 Ill. to return a verdict in favor of the plaintiff 152, 7 N. E. 135. In the Frank Case, 147 for the amounts found due by that order of Ill., on page 111, 35 N. E. 532, in commenting the probate court from John G. Brown, adon the construction of section 115 adopted in ministrator, to said attorney and distributees. Ralston v. Wood and subsequent cases, it It is lastỉy contended that the court erred was said: “'If we are to give any force to in declining to grant a new trial on the language, this statute certainly makes that ground of newly discovered evidence. It aporder as conclusive against the security as pears from certain affidavits found in the against the administrator himself. That record that a few days after the trial of this judgment or order is made evidence of a case in the circuit court John G. Brown was devastavit, if not complied with, and arrested upon a warrant issued by a justice titles the person in whose favor it is made, to of the peace in Cook county for a violation recover upon the bond against both principal of the statute in failing to turn over and and security. The suit upon the bond is a account for all funds in his hands as collateral action, founded as well upon that said administrator upon demand, and that upjudgment as upon the bond itself, and when on his preliminary examination before the the judgment is offered in evidence, like justice he testified he made said loan to any other judgment of a court of competent Hankins with the consent of his brother and jurisdiction, it cannot be inquired into by sisters, and his testimony given on that occathose affected by it, except for fraud. And sion is urged as grounds for a new trial, on after noticing the argument based upon the the theory that it was discovered subsequent supposed hardship of holding the security to the trial. The tenth plea filed by the apbound when he was not directly a party to pellant set up as a defense to the suit that the proceeding in which the judgment was Brown, after the making of the bond sued on, obtained, and showing that there was no with the advice, consent and connivance of the parties for whose use this suit was

(222 Ill. 216) brought, did fraudulently and unlawfully con

GREENE V. HITCHCOCK. vert to his own use the various sums of money

(Supreme Court of Illinois. June 14, 1906. in said declaration mentioned. John G.

Rehearing Denied October 11, 1906.) Brown was on the witness stand, and testified

1. WILLS—PROBATE-ADMISSIBILITY OF Evifor and on behalf of the plaintiff, and was DENCE. cross-examined by the attorneys for the de- In proceedings for the probate of a will, fendant. The Appellate Court, in disposing

the testimony of one of the attesting witnesses

that he would not have signed it, except in the of the contention of the appellant that the

presence of the testatrix and of the other wit. trial court erred in declining to grant a new ness, was not admissible. trial that he might on that trial avail him- 2. SAME. self of Brown's testimony, used the following In proceedings for the probate of a will,

testimony of an attesting witness, as to whethlanguage, which we think a conclusive an

er in his judgment the things mentioned in swer to the contention of the appellant. That the attestation clause of the will were in court said: “A discovery, after the trial, that every respect complied with, was inadmissible. a witness knew a material fact and did not 3. SAME-PROOF OF EXECUTION-STATUTORY

PROVISION. disclose it furnishes no excuse if he was not

Under Hurd's Rev. St. 1905, c. 148, § 2, questioned. If the consequence of failure

prescribing the requisites to the execution of specifically to interrogate the witness be the a will, and providing that testimony of two concealment of material evidence it indicates

of the attesting witnesses that they were present

and saw the testator sign the will in their such lack of diligence as will deprive the per

presence, or acknowledged it to be his act and son so failing, of a claim for a new trial on deed, and that they believed the testator to be the ground that such evidence was after- of sound mind and memory, shall be sufficient

proof of the execution of the will to admit it wards newly discovered. Toledo, Wabash &

to record, the only evidence that can be conWestern Railway Co. v. Seitz, 53 lll. 452; Fan- sidered in the circuit court on appeal from an ning v. McCraney, Morris (Iowa) 398; Hous- order admitting the will to probate is the ton v. Smith, 2 Smedes & M. (Miss.) 597; 3

testimony of the attesting witnesses, and where

one of them on such an appeal fails to testify Graham & Waterman on New Trials, 1029

that he was present and saw the testatrix sign 1095. In this case the newly discovered evi- the will, nor that she acknowledged it to be dence relied on, putting it most strongly for her act and deed, the will cannot be admitted

to probate. the appellant, is the statement of John G. Brown that the beneficiaries of the bond con- Appeal from Circuit Court, Peoria Counsented to the loan made by him to Hankins. ty; N. E. Worthington, Judge. The allegation of 'consent, advice, and conniv- Proceedings by Burton A. Hitchcock for the ance of these beneficiaries in the misappropri- | probate of the will of Phebe Rose. From a ation of the funds was explicitly made by the judgment admitting the will to probate, appellant in pleas filed two months before the Langford R. Greene appeals. Reversed and trial. This certainly showed at least that remanded, his attention had been directed to the possi

Winslow Evans and Judson Starr, for apbility of such a defense. Knowledge as to

pellant. Sheen, Miller & David, for appellee. the facts must have been in the possession of John G. Brown himself and all the benefi

SCOTT, C. J. On February 25, 1905, the ciaries. There is nothing to show that the

probate court of Peoria county admitted to latter were interrogated or interviewed con

probate a written instrument as and for the cerning it. John G. Brown was a witness at

last will and testament of Phebe Rose, dethe trial. He was cross-examined by appel

ceased. Langford R. Greene, a brother and lant's counsel, and asked, without objection, one of the heirs at law of said deceased, apif he was short all the money which should | pealed to the circuit court of Peoria county, have been paid to the beneficiaries; if he where an order was also entered admitting turned it over to anybody that was entitled said will to probate. This appeal is proseto it; to whom he turned it over, and if the

cuted by Greene from the order of the circuit court told him to so turn it over; and he an- court. swered that he was so short, that he had let Phebe Rose departed this life at Dunlap, Hankins have the money, and that he did not

in Peoria county, on September 14, 1904. know whether Hankins was entitled to it or

The instrument in question is dated May 5, not. But he was not asked whether this was 1888. The names of Norman H. Silliman with the consent of the distributees. This

and Emily Silliman are signed to an attestaplainly was lack of diligence fatal to a right

tion clause, which recites that the said into a new trial, on the ground that five days strument was "signed, sealed, published and afterwards Brown testified, to defend him- declared by Phebe Rose as and for her last self in a criminal prosecution, that such con- will and testament in the presence of us, who, sent was given.”

in the presence of the said testator and at Finding no reversible error in the record, her request and in the presence of each other, the judgment of the Appellate Court will have signed our names as witnesses,” etc. be affirmed.

This attestation clause immediately follows Judgment affirmed.

the signature of Phebe Rose to the will.

(222 Ill. 303)

trial was overruled, defendant was sentenced FLYNN V. PEOPLE.

upon the verdict, and prosecutes this writ of (Supreme Court of Illinois. June 14, 1906. error. Rehearing Denied October 10, 1906.)

John Flynn, at about 1 o'clock in the morn1. HOMIOIDE-SELF-DEFENSE-EVIDENCE-IN- ing of Sunday, January 22, 1905, was working STRUCTIONS.

for the Chicago City Railway Company on Where on a trial for homicide there was no evidence of a struggle between accused and

Halsted street, in the city of Chicago, redecedent prior to the killing, and the proof

moving frozen ice and snow from the gutter showed that decedent struck accused with a near the curb with a pick. Thomas Jordan

. stone and threatened to kill him, and thrust and John Brannan were working with him. his right-hand in his overcoat pocket in a threatening manner, and that accused staggered from

Other men in the employ of the same comthe blow, and when he straightezed up

pany and engaged in the same work were he struck' decedent with a pick handle, killing working a short distance away. The night him, an instruction that an acquittal would not

was dark, and the other men were not in a be justified on the ground of self-defense unless it appeared that accused believed at the time

position to see Flynn and the two men workof striking the blow that he was in danger of ing with him. While Flynn was so at work, losing his life, and that it must appear that the Peter Warren, the deceased, Frank Langlois, person assaulted by accused was the assailant

William Miller, and a man named Duchelle, and that accused had really and in good faith endeavored to decline any further struggle be

passed along the street. These men had been fore the assault was made by him, was erro- spending the last few hours in the saloons, neous.

and the evidence indicates that they were 2. CRIMINAL LAW - PRESUMPTION OF INNO- all intoxicated. Miller who testified on the CENCE-INSTRUCTIONS. An instruction that it is the duty of the

part of the prosecution, recites the fact that jury to presume that accused is not guilty and the members of the party of four had taken give him the benefit of the presumption through- a number of drinks, and says that he was out the trial "until evidence shall have been in

not perfectly sober; that he was drinking a troduced which * * * is sufficient to establish the guilt of defendant beyond all rea

little was just feeling good-had a few beers sonable doubt, and if such evidence be not in- in him; that he had knowledge of what he troduced, then defendant should have the bene- was doing, and that he thought that a man fit of such presumption throughout all stages

who is intoxicated don't know what he is of the trial" is erroneous as authorizing the jury, if they deem the evidence establishes guilt

doing. As to Warren's condition, Miller says: beyond a reasonable doubt, to consider the evi- “He was sober. He was not too sober; he dence offered by defendant without any regard was what I call drunk. He was not too to the presumption of innocence,

sober or too drunk.” As Warren and his as3. SAME-IMPROPER ARGUMENT OF COUNSELREVIEW-RECORD.

sociates passed the place where Flynn was at An attorney who has in his argument to work, Langlois and Duchelle were walking the jury in a criminal case transgressed the rules ahead. Warren and Miller were walking toof law by making improper remarks will not be permitted to justify his course by saying gether about 25 feet behind the other two. that he was answering improper statements

Miller testifies that as they reached the place made by his opponent, unless such statements where Flynn was at work, Warren turned are preserved in the record so that the court

and stepped towards the gutter, and there. on appeal may determine whether they warrant the reply made.

upon Flynn, without anything having been

said by him to Warren or by Warren to him, Error to Criminal Court, Cook County;

ran up and struck Warren on the head with George A. Dupuy, Judge.

a pick handle. Warren, who was then 22 John Flynn was convicted of manslaughter,

years of age, was removed to the People's and he brings error. Reversed and re

Hospital, where he died on January 29th from manded.

a skull fracture caused by the blow inflicted Daniel Donaboe and James Hartnett, for by Flynn. Langlois, who was walking ahead, plaintiff in error. W. H. Stead, Atty. Gen., says that as he went past Flynn and his coJohn J. Healy, State's Atty., and Frank laborers he made some joking remarks to Crowe, for the People,

them. The next thing he noticed he heard

"some one holler," and walked back and found SCOTT, C. J. John Flynn was indicted by that Warren had been struck, and assisted in the grand jury of Cook county in January, carrying him away. Duchelle did not testi1905, for the murder of Peter J. Warren, char- fy. Jordan testified on behalf of the proseged to have been committed on January 22, cution, and says that as Warren passed where 1905. He interposed a plea of not guilty and he was working with Flynn, Warren said:

contended that the killing was done in self- “Pick up, you sons of bitches, pick up,” and

defense. Upon a trial in the criminal court the jury returned a verdict in the following words: “We, the jury, find the defendant, John Flynn, guilty of manslaughter in manner and form as charged in the indictment, and vre fix his punishment at imprisonment in the penitentiary, and we recommend him to the mercy of the court." A motion for a new

Flynn told Warren to go ahead and mind bis own business; that nobody was interfering with him, and that one of the two who had preceded Warren along the sidewalk called him to "leave those fellows alone—they are all right"; that Warren then walked away about 10 feet, turned and came back, and as he did so applied to Flynn an epithet too foul