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easily charged and difficult to disprove, and that it should therefore be established with clearness; but whether it was established in this case must depend upon whether or not the jury believed the testimony of Lyle Patterson. The court instructed the jury, on behalf of the defendant, "that the credibility of the witnesses is a question exclusively for the jury; that the jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent intelligence or lack of intelligence, their youth, and from all the surrounding circumstances appearing on the trial, which witnesses are to be worthy of credit and to give credit accordingly.” This instruction properly directed the jury as to the tests of credibility. No complaint is made of any of the instructions given on the questions of fact, and they were, to say the least, fair to the defendant. The testimony, then, on behalf of the People being competent and sufficient to justify a verdict of guilty if believed by the jury, and the finding being approved by the presiding judge, it is not for this court to interfere.
Counsel says if the crime set out in the forty-seventh section of the Criminal Code is the common law crime against nature the evidence does not make out the offense. That is conceded; but we have held that it is not the common law crime. Honselman v. People, supra.
Again, counsel says, "if the offense is a statutory one, and generic, as held in Honselman v. People, then the indictment is fatally defective, or the court erred in overruling defendant's motion for a bill of particulars.” The indict. ment in the Honselman case is exactly like the one here, and we held it sufficient. We did not say the definition of the crime was "generic," but did hold that because of the abominable nature of the crime it was not necessary to set forth in detail the manner in which it was committed; and also that under our Criminal Code and the repeated decisions of this court it was sufficient to allege the crime in the language of the statute, or so plainly
that its nature might be easily understood by the jury. The manner of committing the offense being too indecent to be set forth in the indictment itself, we are at a loss to perceive how it could be consistently incorporated in 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 it. In this case the indictment informed the defendant that he was charged with the crime against nature with and upon Lyle Patterson, and that was sufficient. (Honselman v. People, supra.) In short, we think counsel for plaintiff in error, throughout his argument, disregards the principal grounds upon which the indictment in the Honselman case was held sufficient, -that is, the fact that such a crime cannot be described without shocking the moral sensibil. ities. Blackstone says, speaking of this crime: "I will not act so disagreeable a part to my readers as well as myself as to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to imitate the delicacy of our English law, which treats it, in its very indictments, as a crime not to be named.” (Vol. 4, p. 215.)
While he does not say so, the argument of counsel for plaintiff in error inevitably leads to the conclusion the Honselman case does not correctly lay down the law and should be overruled. This we have no disposition to do.
We infer from statements in the argument of counsel for the People that a distinction has been attempted to be drawn between cases in which the defendant is charged with using his mouth upon another (which was the Hon. selman case) and in which he uses the mouth of the other upon himself, and to maintain that while he may be guilty in the former case he cannot be held so in the latter. We find nothing in the argument of counsel for plaintiff in error to that effect. Even if such a distinction could be drawn it would avail nothing to plaintiff in error in
this case, because, as we have seen, the evidence proves both acts. We are, however, unable to see upon what reasoning any such distinction can be based.
We find in this record no reversible error. The judgment of the criminal court will be affirmed.
JANIES A. WATTS et al.
ALEXANDER Z. RICE et al.
Opinion filed October 24, 1901.
BILLS OF REVIEW_due diligence must appear to sustain bill of review for newly discovered matter. It must be presumed that parties seeking partition will make, or cause to be made, an examination of title to the land in order that the court may render a proper decree; and it is not sufficient to show, in support of their bill of review to correct the decree for newly discovered matter, that they were ignorant of certain conditions of the title which could have been discovered by an inspection of the public records.
APPEAL from the Circuit Court of Washington county; the Hon. B. R. BURROUGHS, Judge, presiding.
W. W. WATTS, and LEWIS BĒRNREUTER, for appellants.
H. H. HOSMER, and GEORGE VERNOR, for appellees.
Mr. JUSTICE CARTER delivered the opinion of the court:
This is an appeal from a decree of the circuit court of Washington county upon a bill of review, filed to review and change a decree in a suit in partition. The decree in partition had determined the interests of the respective parties to the lands in question, and there had been a sale of the lands and a payment of the purchase money to the master, but no distribution of the proceeds had been made. The bill of review does not attack the
sale, but seeks to change the decree fixing the interests of the parties, and also the basis of distribution.
The facts necessary to an understanding of the case are, that Jeremiah Rice died testate, as found by the decree in partition, in June, 1876, but as found by the decree upon the bill of review, in December, 1878. The bill and decree in partition alleged and found that he died seized of the north half of the north-east quarter and the northeast quarter of the north-west quarter of section 10, and the south half of the south-east quarter (except ten acres described,) and the south-east quarter of the south-west quarter of section 3,-all in township 3, south, range 3, west of the third principal meridian; also that he left surviving him Mary H. Rice, his widow, and nine children and four grandchildren, one of which grandchildren was the child of a deceased daughter and three the children of a deceased son. Before the proceedings in partition there had been sales and conveyances of the interests of many of the heirs, and the decree found and fixed the interest of (among others) James A. Watts, appellant herein, to be the undivided two-elevenths, and of Alexander Z. Rice, appellee herein, the undivided 38% of all said lands. The original bill for partition was filed by said Alexander Z. Rice and James A. Watts. The bill of review was filed by said Alexander Z. Rice and other of the heirs, and alleged that Massey Rice was the first wife of Jeremiah Rice, and that she died in 1845, seized of the title to eighty acres of said land, viz.,the north-east quarter of the northwest quarter of section 10 and the south-east quarter of the south-west quarter of section 3, and that, subject to his estate by the curtesy, it descended to her children, who were eight of the said eleven children of Jeremiah Rice, and that the other three were children of Mary H. Rice, his second wife, and were not entitled to any part of said eighty acres, and that, therefore, the former decree was erroneous aud should be corrected. It was al. leged, also, that the complainants did not know of said
facts at the time of the former proceedings and could not have ascertained the same by reasonable diligence. Certain of the parties also filed a bill of interpleader and a cross-bill setting up a mortgage given by certain heirs on their interest in the property, to secure certain notes they had given. Issues were made, and on the hearing the court found that said notes and mortgage were barred by limitation, but granted the prayer of the bill of review and corrected the former decree, and ordered a distribution of the proceeds of the sale of said eighty acres among the heirs, or their grantees, of said Massey Rice, and not among all the heirs, and their grantees, of said Jeremiah Rice, as the former decree had adjudged.
It appeared from the evidence that the eighty acres constituted a part of the Jeremiah Rice farm and that he had had possession until his death and claimed to own it, and his title to it seems never to have been questioned till about the time the bill of review was filed; but it was proved by certified copies of United States patents that it was entered by Massey Rice and tbat the patents were issued to her of lands subject to sale at Kaskaskia, and said patents showed entries on their face, as follows: One, “Recorded Illinois, vol. 133, page 316," and the other, “Recorded Ill. vol. 141, page 112." Complainants also gave in evidence a certificate of the Auditor of Public Accounts of this State that he was custodian of the records of the United States land office formerly located at Kaskaskia, and that such records show that one of said forty-acre tracts was entered by Massey Rice on September 15, 1836, and the other February 22, 1839. Alexander Z. Rice, complainant in the bill of review and also complainant in the bill for partition, testified that he first learned that the title to the eighty acres was in Massey Rice, a few months, only, before the bill of review was filed; that he learned it from the abstracter, who asked him who Massey Rice was, and who told him "there was no connection with the title.” Before that,