seem folly for the plaintiff in error to insist that Rutkowski should be bound over and sent to the penitentiary for giving testimony in a proceeding which was the foundation of the one in which he himself testified, and now contend that the whole of the proceedings was void. We do not deem it necessary to determine whether the original judgment in the proceeding was void or even voidable, inasmuch as we think the court properly instructed the jury that the question was whether or not plaintiff in error committed perjury in Justice Everett's court.

It is next contended that certain instructions given on behalf of the People were erroneous. Of instruction No. 1 above set forth it is said, that "whether any other officer in South Chicago did his duty or not is a matter wholly foreign to the case. There was no evidence for or against the proposition-nothing upon which to base such a statement." So much of the instruction complained of was unnecessary and renders the instruction somewhat argumentative, but the substance of the instruction, aside from the portion complained of, was proper. Plaintiff in error was contending that he ought not to be convicted of perjury, even though he testified willfully and falsely of a matter material to an issue being tried in Justice Everett's court, because of a defect in a certain proceeding long before had in Justice Callahan's court, in which plaintiff in error did not testify, was not present and was not interested, as a party or otherwise; and while the portion of the instruction complained of ought to have been omitted, we do not regard the instruction, for the reason claimed, as harmful to plaintiff in error. The contention that from this instruction the jury might infer that the People were not required to prove the material averments in the indictment does not seem to us to be a reasonable deduction from anything said in that instruction.

It is claimed that instruction No. 9 is erroneous for the reason that it reads as follows: "The court instructs the jury that in this case, if they believe, beyond a reasonable doubt," etc., and omits the words "from the evidence." In various instructions for the People and the defendant the court instructed the jury that the prosecution must establish by the evidence, to the satisfaction of the jury, beyond a reasonable doubt, the guilt of the accused. It is sufficient if a series of instructions in a criminal case, considered as a whole, fully and fairly announces the matters of law applicable to the theory of the prosecution and the defense. (Henry v. People, 198 Ill. 162.) The omitted words, or their equivalent conveying the same meaning, should have been incorporated in the instruction, but being given in various other instructions we do not think the jury could have been misled by the omission of the words complained of.

Instruction No. 8 is also complained of, for the reason it omits the words "willfully and corruptly." But the jury had already been informed in other instructions that to constitute perjury the false evidence must be willfully and corruptly given, and, for the same reasons as given above in reference to instruction No. 9, we cannot hold the omission of the words "willfully and corruptly" to be reversible error.

It is next claimed that instruction No. 7 is argumentative and should not have been given. This instruction presented the law on the question of reasonable doubt. Practically the same instruction was passed upon in the case of Spies v. People, 122 Ill. 1, and was there held good.

It is next insisted the court erred in refusing to give certain instructions asked on behalf of the plaintiff in error. The court gave the jury twenty-three instructions asked on his behalf, which seem to cover every phase of law governing the case. The instructions that were refused that contained correct statements of the law were rendered unnecessary by reason of the giving

of other instructions covering the same points. Others were so defective that their refusal was proper.

It is next insisted there was no arraignment and plea of the defendant until after the jury was empaneled and the trial entered upon. It is admitted the record does not bear out plaintiff in error on this point but shows the reverse, but he relies upon affidavits of different parties to sustain his contention. Neither of the affidavits refers to any minute, memoranda or notation made by the judge or clerk, and we have repeatedly held that unless there was some minute made by the court or clerk to sustain an amendment of a record it could not be amended. The record shows the accused was duly arraigned and pleaded, and it imports a verity, and the proposed amendment was an effort to contradict the record by affidavits, and we think the court properly refused to consider the affidavits for that purpose.

It is next complained that the State's attorney made improper remarks before the jury, but it appears from the record that at the time the remarks were made by the State's attorney the jury had gone, or were going, to their jury room, and it is not shown that the jury even heard the remarks, or that if they did the interests of defendant were prejudiced in any manner.

It is next argued that the court left the room during the progress of the trial and that the defendant's interests were thereby prejudiced; but the record only shows the judge to have been out of the court room at the time of the remarks of the State's attorney complained of, and as was said in reference to that point, so far as the record shows the jury had retired to their room to consider their verdict, and there being no record of any proceeding that could have been detrimental to defendant's interest in the absence of the judge, this point is not well taken.

Some contention is made in reference to the admission and exclusion of evidence, but upon a careful review of

the case we cannot say that plaintiff in error has suffered injury in that regard. We think there is ample evidence in the record to sustain the verdict, and where there are technical errors in reference to the admission and exclusion of evidence, if, upon an examination of the whole record, it is shown that substantial justice has been done, a judgment in a criminal proceeding will not be reversed. Finding no reversible error the judgment of the criminal court of Cook county will be affirmed.

Judgment affirmed.

THE CITY OF CHICAGO et al.

v.

JOSEPH HANREDDY.

Opinion filed June 23, 1904-Rehearing denied October 11, 1904.

1. MUNICIPAL CORPORATIONS-section 50 of article 9 of the City and Village act construed. Section 50 of article 9 of the City and Village act, requiring contracts for public improvements costing over $500 to be let to the lowest responsible bidder after advertising for bids, applies to all public improvements, however paid for, and also to unfinished work abandoned by the contractor the cost of completing which will exceed $500.

2. SAME section 50 of article 9 of City and Village act was not repealed by act of 1897. Section 50 of article 9 of the City and Village act, since it applies to all public improvements, whether constructed by special assessment or otherwise, was not repealed, by implication, by the act of 1897, relating solely to local improvements.

3. SAME when contract may be let without advertising for bids. Under the proviso to section 50 of article 9 of the City and Village act, upon a two-thirds vote of the aldermen the proper officer of a city or village may enter into contract for a public improvement without advertising for bids and without the approval of the mayor or president of the board of trustees.

4. SAME-city cannot determine to complete public work by day labor. A city has no discretion, under section 50 of article 9 of the City and Village act, to complete by day labor unfinished public work abandoned by the contractor, the cost of completing which will exceed $500.

City of Chicago v. Hanreddy, 102 Ill. App. 1, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. RUSSELL P. GOODWIN, Judge, presiding.

This was a bill in chancery filed in the superior court of Cook county by the appellee, a resident and tax-payer of the city of Chicago, against the city of Chicago, its mayor and certain other officers of said city, to enjoin said city from constructing by day labor a portion of section D of the Lawrence avenue main conduit for intercepting sewers. The city and its officers, who were made defendants to said bill, filed an answer thereto, and upon a hearing upon bill and answer a decree was entered granting an injunction restraining the city of Chicago and its officers from constructing said work otherwise than by a contract or contracts let, after advertising and receiving bids therefor, to the lowest responsible bidder or bidders. An appeal was prosecuted from said decree by the appellants to the Appellate Court for the First District, where the same was affirmed, and a further appeal has been prosecuted to this court.

It appears from the bill and answer that the city council of the city of Chicago, prior to May 2, 1898, passed an ordinance for the construction in said city of section D of the Lawrence avenue main conduit for intercepting sewers; that on said second day of May a contract was entered into between the city of Chicago and John W. Farley and John Green, doing business under the name of Farley & Green, for the construction of said work. The contract provided that the work should be commenced on or before May 3, 1898, and should progress thereafter uninterruptedly, unless otherwise ordered by the commissioner of public works, and should be completed on or before September 1, 1899. The time of the commencement, rate of progress and time of completion of the improvement were made essential conditions of