8. Where the court instructed the jury orally, by consent of the state's attorneys and defendant and his counsel, expressed in open court, the defendant cannot complain that the instructions were oral, though the statute requires them to be in writing.

9. A plaintiff in error cannot question the correctness of instructions to which he took no exceptions on the trial.

10. While drunkenness is no excuse for crime, yet, where it is necessary to prove a specific intent in order to convict, it is competent to prove that the accused was at the time incapable, from intoxication, of forming such in

tent.

11. An order overruling a motion for a new trial cannot be reviewed where the bill of exceptions shows no exception thereto, though the record contains a recital that such an exception was taken.

Error to Criminal Court, Cook County; 0. H. Horton, Judge.

George Bruen was convicted of burglary, and brings error. Affirmed.

This is an indictment for burglary, found by the grand jury of Cook county against the plaintiff in error. The jury returned a verdict finding plaintiff in error guilty of burglary in manner and form as charged in the indictment, and fixed his punishment at imprisonment in the penitentiary. At the March term, 1903, of the criminal court of Cook county, judgment was rendered upon the verdict, and sentence was pronounced in accordance therewith. The present appeal is prosecuted from such judgment of conviction.

The material facts, shown by the evidence, are as follows: About 12 o'clock at night on January 23, 1903, a bell boy at the Hotel Majestic, 22 Quincy street, in Chicago, conducted a guest of the hotel to the room assigned to him, to wit, room K64, which is on the third floor of said hotel. On arriving at the entrance of the room the bell boy found the door unlocked and pushed it open. The door struck against plaintiff in error, who was standing behind it, with his overcoat on and his shoes unlaced. The room was perfectly dark. The bell boy asked plaintiff in error if that was his room, and plaintiff in error answered "Yes." The bell boy requested the elevator man to send up the porter. The porter ran and caught plaintiff in error, just after he had left the room, and started towards the stairs. The porter took the plaintiff in error to the office of the hotel, and there he was seen by the night clerk and the manager of the hotel. The night clerk testified that, when he saw plaintiff in error, the latter seemed to be sober, and also that no room in the house had been assigned to plaintiff in error, as the room in which he was found, K64, had been assigned to another party during the day. The manager testified that plaintiff in error stated to him at that time that he (the plaintiff in error) did not know what he was doing, but that he had become intoxicated, and went into the hotel, and did not know where he was. Plaintiff in error asked the manager where he was, and the manager told him. Plaintiff in error gave no excuse for being there. The

manager asked plaintiff in error if he had one of the hotel keys, and plaintiff in error answered, "No, he did not have any keys." A policeman was sent for through the telephone, and searched plaintiff in error in the presence of the hotel manager, and found on his person three keys belonging to the Great Northern Hotel, and two from the Lexington Hotel, and another key which opened the lock of room K64 in the Hotel Majestic. The policeman stated that he considered plaintiff in error sober. The proof showed that the Hotel Majestic was owned by Porter & Salisbury-Washington Porter and Nate Salisbury.

MAGRUDER, J. (after stating the facts). 1. This indictment for burglary contains two counts. The first charges that plaintiff in error "forcibly," etc., "did break and enter into the certain building, to wit, hotel of Washington Porter and Nate R. Salisbury, partners then and there doing business as Porter & Salisbury," "with intent to steal," "contrary," etc. The second count was the same as the first, with the exception that the grand jury charged plaintiff in error with entering the certain building "without force, the doors and windows being open," etc., "with intent," etc.

The first point made by plaintiff in error is that the indictment alleged a burglary in the daytime, while the proof showed a burglary in the nighttime. This is not an accurate statement of the allegations in the indictment. Neither of the counts alleged that the burglary occurred in either the daytime or nighttime. Section 36 of the Criminal Code (Hurd's Rev. St. 1899, c. 38) provides as follows: "Whoever willfully and maliciously and forcibly breaks and enters, or willfully and maliciously, without force, (the doors or windows being open), enters into any dwelling house, or other building, with intent to commit murder, robbery, rape, mayhem or other felony or larceny, shall be deemed guilty of burglary and be imprisoned in the penitentiary for a term not less than one year, nor more than twenty years: provided, however, that whoever willfully and maliciously and forcibly breaks and enters, or willfully and maliciously, without force (the doors or windows being open), enters into any dwelling house in the night time, with intent to commit, * shall, on conviction, be imprisoned in the penitentiary for a term of not less than five years, nor more than twenty years," etc. 1 Starr & C. Ann. St. 1896 (2d Ed.) p. 1244, c. 38, par. 70. The counts of the indictment here are framed under the first part of section 36 for burglary generally, without specifying whether committed in the day or in the night. The proof showed that the offense was committed at night, and there was no variance.

*

In Bromley v. People, 150 Ill. 297, 37 N. E. 209, it was held that, under this section 36, and the statute there quoted, it was unnecessary to charge that the crime was committed either "in the nighttime" or "in the daytime," in order to constitute the charge of burglary under the existing law of this state. In Bromley v. People, supra, the indictment charged that the crime was committed in the nighttime, while the proof showed that it was committed in the daytime, and it was held that there was a fatal variance on that account between the proofs and the allegations. In that case a doubt was expressed as to whether, under an information which charged the commission of the crime of burglary, without stating whether the act was committed in the nighttime or in the daytime, a defendant could properly be convicted, under a statute such as ours, of a burglary committed in the nighttime. The expression of such a doubt, however, was unnecessary to the decision of that case, in view of the variance already referred to. In the subsequent case, however, of Schwabacher v. People, 165 Ill. 618, 46 N. E. 809, we said upon this subject (page 624, 165 Ill., and page 811, 46 N. E.): "It would therefore seem clear that under a count framed under the first part of the section for burglary generally, without specifying whether committed at day or night, as the last two counts in this indictment were framed, the accused might be found guilty, where the evidence was otherwise sufficient, even though it appeared the offense was committed in the nighttime. But in such a case the punishment would be from one to twenty years, at the discretion of the jury, and not from five to twenty years. * * It would be burglary in either case, whether committed at night or in daytime, and it cannot be correctly said that, because the proof establishes the offense in its aggravated form, it does not establish it in its less aggravated form. Where sufficient is proved to establish the offense, it would be altogether illogical to say there was a failure of proof, or a variance between the allegations and proof, simply because more was proved than alleged." are therefore of the opinion that under this indictment, which does not specify whether the burglary was committed at day or night, there is no fatal variance because the proof shows the crime to have been committed at night.

We

2. The indictment charges that plaintiff in error "did enter into the certain building, to wit, hotel of Washington Porter and Nate R. Salisbury, partners then and there doing business as Porter & Salisbury." It is claimed that there was no proof that Washington Porter and Nate R. Salisbury were partners, and, therefore, that there was a fatal variance. One witness testified that he knew who the owners of the Hotel Majestic were, and that they were "Porter & Salisbury-Washington Porter and Nate Salis

bury," This was substantially a statement that the hotel was owned by Washington Porter and Nate Salisbury, and that they constituted the firm of Porter & Salisbury. The evidence further shows that certain of the employés of the hotel were in the service of Porter & Salisbury in the management of the hotel. There was thus testimony tending to show that Porter & Salisbury were partners. That a partnership actually exists may be implied from circumstances, and positive proof of the fact is not indispensable. Whether certain persons are partners or not is purely a question of fact, to be determined from the evidence. Kelleher v. Tisdale, 23 Ill. 405; Field v. Crawford, 146 Ill. 136, 34 N. E. 481.

3. It is furthermore claimed that there was no proof of the allegation, contained in the indictment, that the hotel in question was a "building." We have no doubt that, within the meaning of the words, "other building," as used in the burglary statute, a hotel is a building. In Orrell v. People, 94 Ill. 456, 34 Am. Rep. 241, it was held that "a 'stable,' as that word is commonly used and understood, is the equivalent of 'building,' and is therefore fairly included, in the statute defining burglary, in that class of structures denominated 'other buildings.'" In Gillock v. People, 171 Ill. 307, 49 N. E. 712, it was held that a chickenhouse, or henhouse, was a building within the meaning of said statute. See, also, Kincaid v. People, 139 Ill. 213, 28 N. E. 1060, and Schwabacher v. People, supra. A building has been defined to be "a fabric or edifice constructed for use or convenience; as a house, a church, a shop. It must be permanent, and designed for the habitation of men or animals, or the shelter of property." 2 Am. & Eng. Ency. of Law (1st Ed.) p. 601. A hotel is certainly an edifice designed for the habitation of men.

4. It appears from the evidence that the plaintiff in error was searched, and that there were found upon his person keys belonging to two other hotels than the one where he was arrested. It is claimed that the trial court erred in not excluding the evidence in regard to these keys. In our opinion no error was committed in this regard. It has been held that burglars' tools found upon the person of the accused when arrested may be put in evidence upon his trial for burglary. Williams v. People, 196 Ill. 173, 63 N. E. 681. The evidence showed that one of the keys, found upon the person of the plaintiff in error, unlocked the door of room K64 in the hotel where he was found. None of the keys, which he had, were keys belonging to the Hotel Majestic, but, as he carried about his person a key which would open the door of one of the rooms in the hotel, the testimony in regard to his possession of the keys was competent, as showing what instrument he used to effect his entry into the room, and as tending to contradict the statement that he

was so intoxicated that he did not know how he came to be in the hotel, or where he was at the time he was arrested.

5. Various objections are made by the counsel of plaintiff in error to the mode of summoning the grand and petit juries. It is to be observed, in regard to these objections, as well as in regard to other objections to the indictment, that they can only be taken by a challenge of the array or by motion to quash the indictment. Stone v. People, 2 Scam. 326. In the case at bar, however, there was no challenge of the array, and no motion was made to quash the indictment upon any ground. It will be presumed, until the contrary appears, that persons summoned by the sheriff were duly qualified, and were selected from the body of the county. Fletcher v. People, 81 Ill. 116.

Plaintiff in error also complains of certain defects and irregularities in the making up of the record by the clerk of the criminal court of Cook county. There is much force in the criticism made upon the defective and irregular way in which the present record has been made up by the clerk. But no objections were made in relation to these defects in the court below. Plaintiff in error should have made his objections upon this ground at the time, and, if they were not sustained, should have taken exceptions, and preserved such exceptions by a bill of exceptions. As he did not do so, these irregularities will be regarded as having been waived. "A prisoner on trial under our laws has no right to stand by and suffer irregular proceedings to take place, and then ask to have the proceedings reversed on error on account of such irregularities." McKinney v. People, 2 Gilm. 540, 43 Am. Dec. 65; Wilhelm v. People, 72 III. 468; Hughes v. People, 116 Ill. 330, 6 N. E. 55; Kelly v. People, 132 Ill. 363, 24 N. E. 56.

We will notice one of the objections referred to, which is here insisted upon, although no objection of any kind was made in relation to it in the court below. Plaintiff in error insists that no oath was administered to the foreman of the grand jury. The statute provides that, before the grand jury shall enter upon the discharge of their duties, an oath shall be administered to the foreman, and also an oath to the other grand jurors. 2 Starr & C. Ann. St. 1896 (2d Ed.) p. 2396, c. 78. par. 17. But counsel for plaintiff in error refers to the case of Lyman v. People, 7 Ill. App. 345, where it was held to be essential, In order to sustain a conviction, that the record shows affirmatively that the grand jurors were sworn. In that case the record merely showed that the foreman of the grand jury was sworn, but did not show that the other grand jurors were sworn, and it was held that the fact that the foreman was sworn did not raise a presumption that the other grand jurors were sworn. In the case at lar, however, the record contains the following recital: "The panel of grand jurors being

now filled, the court having now here appointed Aaron B. Mead foreman of said grand jury, the grand jurors aforesaid were duly sworn and charged by the court, and thereupon retired to consider their presentments." Here is an express allegation that "the grand jurors aforesaid were duly sworn," and, as the foreman was one of the grand jurors, he must have been sworn if all of the grand jurors were sworn. We think the allegation of the indictment is broad enough to contain the statement that the oath required by the statute was administered to the foreman, and that the oath required by the statute to be administered to the other grand jurors was also administered to them.

6. It is furthermore charged that there was error committed by the court in the instructions given to the jury. By stipulation the court was authorized to instruct the jury orally, and did instruct them orally. We have held that, while the statute requires instructions to be given in writing, the requirement is one which may be waived by the parties, and that, where they have consented, they are bound by such consent and waiver. Where the record shows that the court instructed the jury orally by the express consent and agreement of the state's attorney and defendant and his counsel, made in open court at the trial, the defendant cannot complain of the fact that the instructions were oral, where the case is brought up for review by writ of error. Bates v. Ball, 72 Ill. 108; Williams v. People, 164 Ill. 481, 45 N. E. 987; Cutter v. People, 184 Ill. 395, 56 N. E. 412.

Plaintiff in error is in no position to question the correctness of the oral instructions given by the court, because he took no exception upon the trial below to the giving of the instructions. The bill of exceptions contains the instructions given by the court orally to the jury, but it does not show that plaintiff in error took any exception to the action of the court in this regard. Complaint is made that the court failed to instruct the jury upon certain points of law upon which they should have been instructed. If the court failed to instruct in any important particular, the defendant cannot complain of such failure for the first time on writ of error. He should have called the court's attention to such failure at the time. Williams v. People, supra. In Village of Jefferson v. Chapman, 127 Ill. 438, 20 N. E. 33, 11 Am. St. Rep. 136, we said (page 448, 127 Ill., and page 38, 20 N. E., 11 Am. St. Rep. 136): "It is also claimed that the first instruction given at the instance of appellee was erroneous. It appears, however, from the record, that no exception was taken at the trial to the giving of that or any other of the instructions submitted by appellee. Appellant is therefore precluded from now insisting upon this assignment of error." This rule is applicable in the case at bar, no exception to the instruc

tions given by the court having been taken at the trial. But after a careful examination of what the court said orally to the jury in the way of instruction, as the instructions appear in the bill of exceptions, we are of the opinion that no error was committed. The plaintiff in error, when arrested, insisted that Le was so intoxicated that he did not know where he was or what he was doing. The only testimony to the effect that he was intoxicated is the evidence of the witnesses for the prosecution, who testified that he made such a statement when he was arrested. No evidence whatever was introduced by plaintiff in error in his own defense. All the testimony presented to the court was so presented by the prosecution. Several witnesses testified that the plaintiff in error exhibited no indications of being intoxicated, and did not have the appearance of an intoxicated man. The main criticism made upon the instructions of the court is upon that feature of them which relates to this subject of intoxication. We have held that while drunkenness is no excuse for crime, either at common law or under the statute, yet, where it is necessary to prove a specific intent before a conviction can be had, it is competent to prove that the accused was at the time wholly incapable of forming such intent, whether from intoxication or otherwise. Schwabacher v. People, supra; Bartholomew v. People, 104 Ill. 601, 44 Am. Rep. 97. We think that the oral instructions of the court sufliciently presented this idea to the minds of the jury. 7. The plaintiff in error made a motion for a new trial, and assigned various reasons in writing why a new trial should be granted. The motion for a new trial, and the reasons in support thereof, are set forth in the bill of exceptions; but the bill of exceptions nowhere states that plaintiff in error took exception to the action of the court in overruling the motion for new trial. Therefore such action of the court cannot be here assigned as error. It is true that in the recital by the clerk, upon the record, of the orders entered, it is stated that the motion for new trial was overruled, and that the defendant by his counsel excepted to the order of the court in so overruling the said motion. But this is not sufficient to authorize plaintiff in error to insist upon such action of the court as error in this proceeding upon writ of error. The exception of the plaintiff in error to the action of the court in overruling the motion for new trial could only become a part of the record by being incorporated in the bill of exceptions. The clerk's recitals in that respect are therefore extraofficial and of no legal effect. Gould v. Howe, 127 III. 251, 19 N. E. 714.

After a careful examination of the record, and of the numerous points made by counsel for plaintiff in error, we discover no ground upon which we would be justified in reversing the judgment of the trial court rendered

in this case. Accordingly, the judgment of the criminal court of Cook county is affirmed.

Judginent affirmed.

DEEMER et al. v. KESSINGER et al. (Supreme Court of Illinois. Dec. 16, 1903.) RULE IN SHELLEY'S CASE-INTENTION OF TESTATOR-EXTRINSIC EVIDENCE.

1. Where a will contained a codicil to the effect that testator desired to change a former provision bequeathing certain land to his son so that the latter should have the use, benefit, and control of the lands during his lifetime only, and at his death the lands should go to his lawful heirs, the son, under the rule in Shelley's Case, took a fee, although there were extrinsic facts indicative of testator's intention to give only an estate for life.

Appeal from Circuit Court, Pike County; A. Akers, Judge.

Action by Clair E. Deemer and others against Sarah J. Kessinger and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

This is a bill in chancery filed in the circuit court of Pike county by the appellants, the minor children of William L. Deemer, deceased, by their guardian, against their adult sister, Nina Long, for the partition of 120 acres of land located in said county, to which bill Sarah J. Kessinger and others claiming under her are made parties defendant, with the view of obtaining a holding to the effect that the title to said premises derived by ber through mesne conveyances from said William L. Deemer is an estate for the life of William L. Deemer only, and not in fee, as is claimed by her. The premises formerly belonged to Jacob Deemer, the father of William L. Deemer and grandfather of the complainants, and whatever interest the complainants have in the premises, if any, was derived by them through the following provisions of the will and codicil of Jacob Deemer, deceased:

Will: "Second-I give and bequeath to my son, William L. Deemer, and to his lawful heirs, the following described lands: *

Codicil: "In regard to former will, in bequest to my son, William L. Deemer, I desire to change to read, to-wit: That he shall have use, benefit and control of [same lands described in foregoing provision of will] during his lifetime only, and that at his death said lands shall go to his lawful heirs."

A demurrer was sustained to the bill, and the same was dismissed.

Jefferson Orr, F. S. Dulaney, and William Mumford, for appellants. Williams & Grote, for appellees.

HAND, C. J. (after stating the facts). The sole question presented for the consideration of this court by this appeal is, did the devise to William L. Deemer in the will and codicil

of Jacob Deemer vest a life estate or a fee in William L. Deemer? We are of the opinlon the rule in Shelley's Case applies to said devise, and that the fee vested in William L. Deemer, and passed by mesne conveyances to and vested in Sarah J. Kessinger, and that the complainants took no interest in said premises under the will and codicil of Jacob Deemer, deceased. That rule has been stated thus: "Whenever the ancestor takes an estate of freehoid, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in tail, the word 'heirs' is one of limitation of the estate, and not of purchase, and the ancestor takes the fee." Vangieson v. Henderson, 150 Ill. 119, 36 N. E. 974. Manifestly, under the provision contained in the will. "to my son, William L. Deemer, and to his lawful heirs," William took a freehold estate, and the estate was limited immediately to his lawful heirs in fee, which fulfilled every requirement of the rule and vested the fee-simple title in William L. Deemer. By the terms of the codicil William L. Deemer is given the "use, benefit and control" of the premises "during his lifetime," the effect of which was to vest an estate of freehold in him, and at his death the fee is given to his lawful heirs. In legal effect, the devise to William L. Deemer contained in the codicil and that contained in the will are the same; that is to say, a freehold estate by each of said provisions is given to William L. Deemer, and an estate in fee is limited immediately to his lawful heirs, and the fee to the premises, under the codicil as well as under the will, vested in William L. Deemer. The devise of the "use, benefit and control" of the premises was a devise to William L. Deemer of the land, and vested in him a life estate, Le.. a freehold estate, therein. Ryan v. Allen. 120 III. 648, 12 N. E. 65. The words "nearest," "legal," "lawful," or similar expressions preceding the word "heirs," without other words of limitation, in a devise, do not convert the word "heirs" from a word of limitation to that of purchase. Ryan v. Allen, supra; Vangieson v. Henderson, supra: Silva v. Hopkinson, 158 Ill. 386, 41 N. E. 1013.

It is, however, urged by counsel for the appellants that this construction defeats the manifest intention of the testator, and vests the fee in William L. Deemer, when the testator intended he should take only a life estate. There is no latent ambiguity in the will or codicil, and the intention of the testator can alone be ascertained from the language used therein by him. In Taubenhan v. Dunz, 125 Ill. 524, 17 N. E. 456, on page 529, 125 Ill., page 456, 17 N. E., it was said: "The question of first importance in every case of construction of a will is, what was the intention of the testator? and, when that is ascertained, effect is to be given thereto. In the absence of latent ambiguity, the intention of the testator is to be gathered alone

from the will itself-from a fuil view and consideration of everything contained within the four corners of the instrument." And in Fowler v. Black, 136 Ill. 363, 26 N. E. 596, 11 L. R. A. 670, on page 373, 136 Ill., page 596, 26 N. E., 11 L. R. A. 670: "Where there is no ambiguity in the terms used, or where the language of the instrument has a settled legal meaning, the instrument itself is the only criterion of the intention of the parties, and its construction is not open to oral evidence." And in Engelthaler v. Engelthaler, 196 Ill. 230, 63 N. E. 669, on page 233, 196 Ill., page 670, 63 N. E.: "The intention which is to be sought for in the construction of a will is not that which existed in the mind of the testator, but that which is expressed by the language of the will."

It has been repeatedly held by this court (Baker v. Scott, 62 Ill. 86, and subsequent cases) that the rule in Shelley's Case is in force in this state as a rule of property, and that, in determining whether it applies to a given case, its application does not turn upon the quantity of estate intended to be given to the ancestor, but upon the nature of the estate intended to be given to the heirs. Vangieson v. Henderson, supra. And in Perrin v. Blake, 4 Burr. 2579 (3 Greenleaf's Cruise on Real Prop. 313), as finally decided in the Exchequer Chamber, it was admitted that the rule in Shelley's Case often defeats the undoubted intention of the devisor, "for," it is said, "there never was an instance where an estate for life was expressly devised to the first taker that the devisor intended he should have any more. But if he afterwards gives an estate to the heirs of the tenant for life or to the heirs of his body, it is the consequence or operation of law that in this case supervenes his intention and vests the remainder in the ancestor." Vangieson v. Henderson, supra; Carpenter v. Van Olinder, 127 Ill. 42, 19 N. E. 868, 2 L. R. A. 455, 11 Am. St. Rep. 92; Hageman v. Hageman, 129 Ill. 164, 21 N. E. 814; Wolfer v. Hemmer, 144 Ill. 554, 33 N. E. 751. In Ewing v. Barnes, 156 Ill. 61, 40 N. E. 325, on page 68, 156 Ill., page 327, 40 N. E., it was held: "Where a devise is made to a man and his heirs, neither the expressed intention that the devisee shall have an estate for his life and no longer; nor, secondly, that he shall have only an estate for life in the premises, and after his decease it shall go to the heirs of his body, and in default of such heirs vest in the person next in remainder, and that the devisee shall have no power to defeat the intention of the testator; nor, thirdly, that the devisee shall be a tenant for life and no longer, and that it shall not be in his power to sell, dispose of, or make away with any part of the premises-will change the word 'heirs' into a word of purchase."

Much stress is laid upon the fact that the bill avers that the scrivener who prepared the will, as well as the testator, were unfamiliar with the use and meaning of tech