direction of flat "A" as though he had just stepped off the steps, and that he was running. Fred Walker testified that he saw Barkas running from the direction of flat "A," and that he was about fifty feet from the flat when he first saw him. John Jeremiah testified that shortly after he heard the shots at the time Victor Brown was killed he saw Pete Barkas walking pretty fast about five blocks from flat "A," going toward his home, which was west of flat "A." Barkas himself testified that he heard, within fifteen minutes after the occurrence, that Brown had been killed, and that he immediately left flat "C," where he was, for his home. It appears from the testimony of a number of the witnesses that quite a hue and cry was raised in the village immediately after the killing and threats were made . against the lives of the Greek inhabitants. Under the situation that existed there it was not remarkable that Barkas should go to his home as speedily as possible after he learned of the killing of the officer and heard the hue and cry that was being raised. In any event, no matter what his purpose was in running away from the vicinity where Victor Brown was killed, the chief witness for the People, and the one who was the best acquainted with the plaintiffs in error, testified positively that Pete Barkas had nothing to do with the killing, and no one testifies that he was in room 90 at the time. As the People failed to show that there was any conspiracy among the plaintiffs in error to take the life of Victor Brown, the instruction offered at the close of the case to find Parkas not guilty should have been given.

The judgment of the circuit court is reversed as to the plaintiff in error Pete Barkas, and for the errors indicated the judgment of the circuit court as to all the other plaintiffs in error is reversed and the cause is remanded to that court for a new trial.

Reversed in part and remanded.

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, s. ABE WEINSTEIN, Plaintiff in Error.

Opinion filed October 26, 1912.

I. CRIMINAL LAW-fact that information purports to be sworn to before the date of the offense is fatal. The same certainty of allegation is required in an information as in an indictment, and if an information is sworn to before the date on which the offense is alleged to have taken place the discrepancy is fatal, even in arrest of judgment; nor is the defect cured by an order amending the record to show that leave to file the information was granted after the date of the offense charged, there being no amendment of the information itself.

2. SAME—the date alleged must be taken as true in determining sufficiency of information. At the trial the date on which the offense is alleged to have taken place means any time within the Statute of Limitations, but in determining the sufficiency of an indictment or information the date alleged must be taken as true.

WRIT OF ERROR to the Branch "B" Appellate Court for the First District;-heard in that court on writ of error to the Municipal Court of Chicago; the Hon. EDWIN K. WALKER, Judge, presiding.

ROBERT E. CANTWELL, for plaintiff in error.

W. H. STEAD, Attorney General, and JOHN E. W. WAYMAN, State's Attorney, (OTTO WADEWITZ, of counsel,) for defendant in error.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

Abe Weinstein was convicted in the municipal court of Chicago of pandering, and, the conviction having been affirmed by the Appellate Court, is seeking a reversal on the ground, among others, that the information was defective and should have been quashed upon his motion.

The information was defective and should have been quashed because it was sworn to on July 3, 1909, while it charged the offense to have been committed on July 18, 1909. The same certainty of allegation is required in an information as in an indictment. (Parris v. People, 76 Ill. 274; Gould v. People, 89 id. 216.) At common law an indictment must charge the offense to have been committed on a day certain though it was not necessary to sustain the precise allegation by proof, provided the time stated was previous to the finding of the indictment, (State v. Beaton, 79 Me. 314; State v. Wither, 87 id. 462; State v. G. S. 1 Tyler, [Vt.] 295; Roberts v. State, 19 Ala. 256; Brady v. State, 102 Ga. 568;) and the rule has not been changed in this State. At the trial the date averred means any time within the Statute of Limitations, but in determining the sufficiency of the indictment the date alleged must be taken as the true one. (Dreyer v. People, 176 Ill. 590.) If the date stated is beyond the Statute of Limitations the indictment is bad and will be quashed. (Garrison v. People, 87 Ill. 96; Lamkin v. People, 94 id. 501.) If the offense is laid on an uncertain or impossible day, or on a future day, the objection is fatal, even in arrest of judgment. 2 Hawk's P. C. chap. 25, sec. 77; State v. Sexton, IO N. C. 184; State v. Litch, 33 Vt. 67; Markley v. State, 10 Mo. 311; Murphy v. State, 106 Ind. 96; Terrell v. State, 165 id. 443.

After the writ of error was sued out of the Appellate Court, the People, upon notice to the plaintiff in error, applied to the municipal court and obtained an order amending the record so as to show that the leave to file the information was given on August 3, 1909, instead of on July 3, 1909. No amendment of the information itself was made and no leave was asked for that purpose. Section 27 of the Municipal Court act requires an information presented by a person other than the State's attorney to be verified by such other person's affidavit. This information

showed, on its face, that it was presented by a person other than the State's attorney and was verified by such person's affidavit on July 3, 1909, but it charged no offense because it stated that the defendant committed the acts with which he was charged on July 18, 1909. It was impossible the verification could apply to future acts. The date on which the court authorized the filing of the information is of no consequence, for the information itself had no validity. The date to the jurat may have been a clerical error but it was fatal, and the carelessness of the prosecutor cannot be disregarded or corrected by the guess of the court.

The judgments of the Appellate Court and of the municipal court are reversed and the cause is remanded to the latter court. Reversed and remanded.

MICHAEL COLESAR, Defendant in Error, vs. THE STAR COAL COMPANY, Plaintiff in Error.

Opinion filed October 26, 1912.

I. TRIAL when a peremptory instruction is properly refused. An instruction to find the defendant in an action for personal injury not guilty is properly refused if there is any evidence fairly tending to prove the material allegations of the declaration, and the fact that such evidence is contradicted by the evidence for the defendant does not authorize the giving of the instruction.

2. SAME-plaintiff not bound to prove every count of declaration. The plaintiff in a personal injury case may charge different acts of negligence in different counts of the declaration as the cause of the injury alleged, but he is not required to prove each count in order to entitle him to a verdict, as he is entitled to recover if one count is sufficient and the proof supports it.

3. SAME-when admission of X-ray plates is harmless error. The admission of X-ray photographic plates in evidence is error where the evidence of the expert witness who made the plates and who testified as to what they disclosed shows that the plates would be unintelligible to the jury, but under such conditions the error is not of prejudicial character.

4. SAME-expert may testify as to what X-ray photograph discloses. Where it is shown on the trial that the condition plaintiff was in could have been caused by a stone in the kidney, a properly qualified expert who has made X-ray photographs of the plaintiff may state what he found as the result of his examination and whether or not there was a stone in plaintiff's kidney.

5. SAME-when failure of instruction to correctly quote provision of statute is not fatal. Failure of an instruction to correctly quote a provision of the statute is ground for its refusal, but the giving of the instruction is not ground for reversal where the misquotation does not change the meaning of the provision nor tend to mislead the jury.

6. Appeals anD ERRORS-objections to instructions not urged in the Appellate Court are waived. Objections to instructions which were not urged in the Appellate Court are deemed to have been waived or abandoned and cannot be urged in the Supreme Court.

7. SAME-remittitur not binding after allowing unrestricted rehearing. The filing of a remittitur, as required by the judgment of the Appellate Court, before the allowance by that court of an unrestricted rehearing, does not preclude the Appellate Court from thereafter affirming the judgment below for the full amount, as the allowance of the rehearing vacates the first judgment of the Appellate Court, and the case stands, pending the rehearing, as though such judgment had not been entered.

CARTWRIGHT, J., DUNN, C. J., and HAND, J., dissenting.

WRIT OF ERROR to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. S. C. STOUGH, Judge, presiding.

The defendant in error brought his action on the case. against the plaintiff in error in the circuit court of LaSalle county to recover for personal injury. Judgment for $10,000 was recovered in the circuit court, which, on appeal to the Appellate Court for the Second District, was affirmed in the sum of $6500 after defendant in error had entered a remittitur of $3500. A petition for rehearing was allowed by the Appellate Court, and upon the rehearing the judgment of the circuit court was affirmed in the sum of