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company to advise the appellee of the danger and injury that might result from the explosion of cinder-taps, if known to appellant, was fully and sufficiently charged otherwise in the declaration, and the purpose of the al. legation in question was to charge the appellant company with knowledge out of which such duty grew.
Another ground of objection is, there was no evidence on which to base the claim that the appellant company knew, or by the exercise of ordinary care could or should have known, that cinder-taps in a heated condition would or were likely to explode if they became damp or wet, and hence no evidence on which to ground the instructions. A number of witnesses, employees and ex-employees of the appellant company, testified to their knowledge, acquired while in the employ of the appellant company, that moisture or water would cause hot cinder-taps to explode. One of the witnesses, Joseph Welch, an exemployee of the appellant, testified that a man by the name of Walton was injured in the mills of the appellant by the explosion of a cinder-tap; that he (the witness) was present and saw Walton carried from the mills of the appellant after he was injured by such an explosion. The cinder-tap which injured said Walton exploded while on the iron plates near the furnace room, but all the witnesses referred to testified that it was their experience, gained in the course of their employment in the mills of the appellant company, that hot cinder-taps were likely to explode if allowed to come in contact with water. There was no direct proof that any person who occupied the position of vice-principal, or who stood charged, by reason of his relation to the appellant company, with the duty of taking action to avoid the danger arising from the explosion of cinder-taps, had actual knowledge that such taps had exploded after having been wheeled away from the plates and dumped on the shipping ground. Rollin Baker, superintendent of the appellant's mills, testified he knew that a cinder-tap had exploded while
on the iron plates near the furnace; but the insistence is, proof that cinder-taps had exploded while on the iron plates awaiting the process of cooling did not charge the appellant company with knowledge that such taps might or possibly would explode after having been deposited on the dumping ground near the railroad tracks. True, the conditions were not the same; but this fact does not seem to us to strengthen the position of counsel, but rather to weaken it, for the reason the wet condition of the ground at the dumping ground near the railroad tracks was more conducive to an explosion than the condition on the iron plates. The appellant coinpany having knowledge that the cinder-taps had exploded while on the plates, it would not be creditable to the intelligence of those in charge of its affairs to conclude they would have deemed explosions less likely to occur if the cinder-taps should be removed from the iron plates while yet hot and placed on the wet dumping ground, in a pool of water. The experience of the appellant company, as master, was sufficient to justify the court in submitting it to the jury, as a question of fact, whether, in the exercise of ordinary care and caution, the appellant company should have known that cinder-taps in a heated condition were liable to explode while on the dumping ground as well as while on the plates.
It is objected that instruction No. 1 given for the appellee contains a mere abstract proposition of law, and therefore ought not to have been given. This instruction defines the relation of fellow-servants abstractly, it is true, but, nevertheless, correctly. The appellant company was insisting that facts and circumstances in proof raised the defense that said Demon, who wheeled the cinder-taps to the place of the explosion, and appellee, were fellow-servants, and that therefore the doctrine of respondeat superior did not apply. It prepared, and the court gave, an instruction, hypothetically, to that effect, -instruction No. 29. The tendency of the instruction
complained of was to enlighten the jury as to a legal principle relevant to the case, proper for the jury to consider with reference to the evidence as to a fact on which the jury were required to respond.
A special objection is also preferred to the fourth instruction given for the appellee, that it submitted to the jury an issue not within the scope of the declaration, viz., that the appellant company was negligent in causing the hot cinder-tap to be taken from its place on the plates to the dumping ground. We find in the first count of the declaration originally filed, and also in the additional count filed by leave of the court, allegations charging the appellant company negligently and carelessly permitted and caused the hot cinders to be dumped in the yard where the appellee was working.
The only complaints with reference to the rulings of the court in granting or refusing instructions asked to be given on behalf of the appellant company are, that the court refused to give instructions Nos. 32 and 34 asked in that behalf. These two instructions were based on appellant's contention, herein before considered and disposed of, that there was no evidence produced to justify the submission to the jury of the question whether the appellant company, at the time of the explosion in question, knew, or in the exercise of ordinary prudence should have known, that hot cinder-taps were liable to explode if placed on the dumping ground under the prevailing conditions.
We find no error in the record, and the judgment is affirmed.
Mr. JUSTICE HAND, having been of counsel in the court below, took no part in the decision of the case in this
C. V. KELLY
THE PEOPLE OF THE STATE OF ILLINOIS.
119 211 3166
Opinion filed October 24, 1901.
1. CRIMINAL LAW-uncorroborated testimony of accomplice will conrict. The uncorroborated testimony of an accomplice is sufficient to convict, in Illinois, when the same is competent, and sufficient to justify a verdict of guilty if believed by the jury.
2. SAME-what a sufficient indictment for crime against nature. An indictment which informs the defendant, in the language of the statute, that he is charged with the crime against nature with and upon a named person, averred to be "a man” and “a male person," is sufficient. (Honselman v. People, 168 Ill. 172, adhered to.)
3. SAME-rule as to requiring a bill of particulars. It is only when it is made to appear that the defendant cannot properly prepare his defense without a bill of particulars that the court will require the prosecuting attorney to furnish one.
WRIT OF ERROR to the Criminal Court of Cook county; the Hon. John GIBBONS, Judge, presiding.
John E. W. WAYMAN, for plaintiff in error.
H. J. HAMLIN, Attorney General, CHARLES S. DENEEN, State's Attorney, and F. L. BARNETT, for the People.
Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:
At the February term, 1901, of the criminal court of Cook county plaintiff in error was convicted of the “crime against nature." His motions for a new trial and in arrest of judgment were overruled and he was sentenced to the penitentiary at Joliet. By this writ of error he brings before us for review that record of conviction.
Most of the grounds of reversal urged have been de. cided adversely to the contention of counsel for plaintiff in error in the late case of Honselman v. People, 168 Ill. 172.
It is first insisted that the evidence of guilt produced upon the trial is insufficient to justify the verdict of the
jury. The indictment charged the crime, substantially in the language of the forty-seventh section of the Criminal Code, to have been committed upon and with one Lyle Patterson, averred in the first count to be "a man" and in the second and third "a male person.” The proof shows that Lyle Patterson was at the time a boy between six and seven years of age. He was sworn, and testified upon the trial to acts of copulation by the defendant, first by means of his own mouth upon him, the boy, and then by means of the mouth of the boy upon defendant. If the testimony of the boy is to be believed, there can be no doubt but that, under the law as laid down in the Honselman case, the crime was established. The defendant positively denied the charge and the acts sworn to by the boy. Other witnesses testified upon the trial, but we find nothing in their evidence which can be said to corroborate or contradict that of the prosecuting witness or the defendant as to the criminal acts.
In view of the extreme youth of the boy we have carefully scrutinized his testimony and endeavored to apply to it all the rules for testing its truthfulness, and have reached the conclusion that there is no sufficient legal reason for discrediting it. No motive to falsely accuse the defendant, either on the part of the child or others, can be discovered. His father, and other parents who believed their children had been outraged and debauched by similar practices, were anxious to discover the guilty party and have him punished, but there is nothing in the evidence from which we can perceive a motive to falsely charge this defendant.
In some jurisdictions the uncorroborated testimony of an accomplice is never sufficient to convict one of a crime. But that is not the rule in this State. Besides, consent on the part of the boy in this case cannot be presumed, he being incapable of understanding the nature of the act. He was incapable of committing a crime. We are not unmindful of the fact that the crime is of a class