All the proceedings for the opening of the highway across this land were of record, and appellant was affected with constructive notice of the same. He was bound to take notice that the judgment for damages which had already been rendered, and the order opening the highway which had already been entered, would become perfected, so as to vest title in the commissioners upon the payment of the award. Indeed, the act of 1874 "concerning covenants of warranty" provides "that no covenant of warranty shall be considered as broken by the existence of a highway upon the land conveyed, unless otherwise particularly specified in the deed." 1 Starr & C. Ann. St. (2d Ed.) p. 923. A conveyance by one having the title when the judgment of condemnation is entered, and before possession is taken or payment is made, passes the property subject to the right of the petitioner for condemnation to acquire the same upon payment of the amount of the judgment. Price v. Engelking, 58 Ill. App. 547. And it is true, as a general thing, that the grantee from the person, holding the title when the judgment of condemnation is entered, is entitled to the compensation when the compensation is paid. In other words, the one who is entitled to receive the award of damages is the person who is owner when the possession is taken, or the payment of the damages is made. Rice v. City of Chicago, 57 Ill. App. 558. The appellant does not deny, as we understand the argument of his counsel, that, upon the payment of the amount of damages awarded, the highway commissioners became entitled to the portion of the land embraced within the highway; but he claims that inasmuch as he had purchased the land at the conservator's sale, and was the owner of it when the amount of damages awarded was paid by the commissioners, he is entitled to receive the amount so paid. Unquestionably he would be so entitled if it were not that he purchased the land at the conservator's sale with the distinct understanding that the amount of the judgment of condemnation should be paid to the estate of Fulton. Not only does the proof show that the announcement above set forth was made by the crier at the sale, but the conservator, in his report of the sale to the court, used the following language: "He further reports that the said land was sold with the recent highway as laid across the north end of it, and the said L. B. Morey, conservator," etc., "to have and receive the damages theretofore assessed to W. K. Fulton, insane, consequent upon the locating and laying out of said highway." This report of sale, containing the above statement, was approved and confirmed by the court; and in the decree approving and confirming the report the court found "that the said L. B. Morey, conservator as aforesaid, has in all respects conformed to and carried out the former orders 2nd decrees of this court relative to the sale

of said land." After appellant purchased the property at the sale, he became a party to the sale, and had a right to appear before the court and object to the report of sale if the statement made in it as above quoted was incorrect. Having acquiesced in the report, he must be considered as having adopted it, and is bound by the decree of the court confirming the sale. Browne, St. Frauds (5th Ed.) § 265.

3. Appellant furthermore sets up in his answer, and his counsel claim in their argument, that, if the property was purchased subject to the reservation contended for, the agreement in regard to the reservation was a parol agreement, and void under the statute of frauds. In reply to this it may be said that the statute of frauds has no application to judicial sales. Section 2 of chapter 59 of the Revised Statutes, relative to "frauds and perjuries," after providing that no action shall be brought to charge any person upon any contract for the sale of lands, etc., unless such contract, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, etc., contains the following clause: "This section shall not apply to sales upon execution or by any officer or person pursuant to a decree or order of any court of record in this state." 2 Starr & C. Ann. St. (2d Ed.) pp. 1997, 1998. Judicial sales are not within the statute of frauds, and are binding upon the bidder or purchaser without any written contract or memorandum of sale signed by him or his agent. 6 Ballard, Real Prop. § 850; Robertson v. Smith, 94 Va. 250, 26 S. E. 579, 64 Am. St. Rep. 723; Andrews v. O'Mahoney, 112 N. Y. 567, 20 N. E. 374. In Robertson v. Smith, supra, it was said by the court: "Judicial sales made by chancery courts through their commissioners are not within the statute of frauds, and are binding upon the bidder or purchaser without any written contract or memorandum of sale signed by him or his agent. By bidding he subjects himself to the jurisdiction of the court, and in effect becomes a party to the proceedings in which the sale is made, and may be compelled to complete his purchase by the process of the court." In Andrews v. O'Mahoney, supra, it was also said: "By bidding he subjects himself to the jurisdiction of the court, and in effect becomes a party to the proceeding; and he may be compelled to com. plete his purchase by an order of the court and by its process for contempt, if necessary The statute of frauds has no operation in such a case." See, also, Warfield v. Dorsey, 39 Md. 299, 17 Am. Rep. 562; 1 Reed, St. Frauds, § 304; Browne, St. Frauds (5th Ed.) § 265. Where a purchaser or bidder at such a sale fails to complete his purchase or comply with the terms of the sale, he may be proceeded against by rule, and compelled to do so. Clarkson v. Read, 15 Grat. 288. If a bidder at a judicial sale can be forced by the court to carry into effect the contract

evidenced by his bid, although it is not reduced to writing, he can be forced to carry into effect such a bid when made subject to a reservation of the character here under discussion.

Counsel for appellant contend, however, that a deed was here made to him conveying the whole of the half section, and that thereby the verbal contract was executed, so that, the statute of frauds being pleaded, parol evidence could not be introduced to affect or vary the deed. Here parol evidence is not made use of for the purpose of varying the terms of the deed. The conservator's deed executed to the appellant was made subject to the right of the commissioners to open the land for a highway when the compensation should be paid. The parol reservation was merely as to the person who should receive the amount of money awarded for damages. The deed, upon its face, conveys "the interest of said William K. Fulton, insane, in the following described real estate, viz., the west half of section 8," etc. The decree of sale entered by the county court on November 6, 1898, contained these words: "That, upon a sale of said real estate being made, the said L. B. Morey, conservator as aforesaid, make and execute to the purchaser or purchasers of said land good and sufficient deed or deeds to convey the interest of W. K. Fulton therein." Indeed, section 28 of the act in regard to lunatics, etc., provides that "it shall be the duty of the conservator making such sale, as soon as may be, to make return of such sale to the court granting the order, which, if approved, shall be recorded, and shall vest in the purchaser or purchasers all the interest of the ward in the estate so sold." 2 Starr & C. Ann. St. (2d Ed.) p. 2669. What was the "interest" of William K. Fulton which was conveyed by the deed? It was the title to the land sold, subject to the highway to be opened over it, and subject to the right of the commissioners to acquire the same upon the payment of the condemnation judgment. The purchaser at an administrator's sale is bound by the sale when it is then and there stated by the administrator that it is made subject to an easement, although there is no allusion thereto in the order of sale. Woerner, in his work on the American Law of Administration (volume 2 [2d Ed.] marg. p. 1057), says: "And the purchaser is bound by a sale stated by the administrator to be subject to an existing easement, although not alluded to in the order of sale." In Overdeer's Adm'r v. Updegraff, 69 Pa. 110, it was held that an administrator, selling by order of court land which was subject to an easement, might sell it so subject, although it was not noticed in any of the proceedings, and that a purchaser, having bought under conditions mentioning an easement, was estopped from claiming to hold the land free of such easement.

It is furthermore claimed on the part of

the appellant that the conservator had no authority to announce that the sale would be made subject to such reservation. If the conservator had announced any reservation which would operate to the injury of his ward, or which would be of doubtful benefit to the ward, his authority in the matter might be questioned. But it was the duty of the conservator to act in the interest of his ward, and certainly a reservation of the amount of the condemnation judgment for the benefit of his ward was in the interest of the latter. He had the right to make such a reservation, because it was not forbidden by any order of the court, and because it inured to the benefit of his ward. A proceeding by the conservator of an insane person for an or der of court to sell his land for the purpose of paying his debts, etc., is not adverse to the ward, but, on the contrary, it is for his benefit. Dodge v. Cole, 97 Ill. 338, 37 Am. Rep. 111.

4. It is to be noted that here the money awarded as damages for the opening of the road was paid into the hands of the clerk of the circuit court by the commissioners of highways, and both the appellant and the appellee entered their appearance, and answered the interpleader, and consented to the discharge of the commissioners, and both of them claimed the amount of the judgment. Where a bill of interpleader has thus been answered, and the defendants thereto consent to interplead, the court may so shape its decree as to do complete equity between the parties. 11 Enc. Pl. & Prac. p. 475. In Whitney v. Cowan, 55 Miss. 626, the court said: "The court may at the final hearing, having the fund in its hands or under its control, fasten upon it, either in whole or in part, any equitable lien or trust which one of the parties may have established, though the proprietary legal title and ownership belong to the other." Here the appellant consents to the money being paid into court, and by so doing he admits that the road is to be opened, and that the commissioners have complied with the law. He admits the payment of damages by the commissioners. This being so, he concedes that his deed does not give him the highway, but he voluntarily relinquishes the highway, and comes into court and claims the damages. Hence the authorities cited by appellant's counsel can have no application to the case at bar, inasmuch as appellant has consented to the payment of the money into court, and by so doing has made an issue of fact with the conservator upon the question whether or not the money was reserved at the sale. Upon this question the overwhelming weight of the evidence is against him.

For the reasons above stated, we are of the opinion that the decree of the circuit court and the judgment of the appellate court correctly dispose of the questions involved. Accordingly the judgment of the appellate court is affirmed. Judgment affirmed.

(195 Ill. 550)

CUNNINGHAM et al. v. PEOPLE.
(Supreme Court of Illinois. April 16, 1902.)
HOMICIDE-ASSAULT-CAUSE OF DEATH-EVI-

DENCE-BURDEN OF PROOF-INSTRUCTIONS
MISCONDUCT OF JUDGE - SENTENCE TO
REFORMATORY-AGE OF CONVICT.

1. The question whether a colored woman was present at an attempted identification of defendants was in issue in a homicide case, the defendants testifying that she was present. A police officer was being examined in reference thereto, when the court said, "But the colored woman wasn't there?" The officer, who had not previously stated that the woman was not present, answered in the negative, but stated un cross-examination that he did not know whether the woman was present or not. Held, that the remark of the court, whether regarded as a statement of fact by the court, or a leading question to the witness, was erroneous.

2. The only marks of physical violence on the person of deceased were a large and small bruise on the face; and he was shown to have been struck a fist blow in the face, and to have violently fallen on his face a few minutes thereafter, and that he was drunk and staggering before he was assaulted, and his physical condition was such that he might die at any time, and that any kind of emotion, excitement, or exercise might prove fatal. Held, in a homicide case, that the questions what produced the bruises, whether the death of deceased was caused by the blow or fall, or whether the fall was the result of the blow or intoxication, were for the jury.

3. A question by the court, in such case, to the prosecuting attorney, who was attempting to frame a hypothetical question, asking him why he did not say that the bruise was caused by a blow from a fist, was erroneous, as being

a conclusion of fact from the evidence.

4. Where four persons are indicted for homicide, but two ouly are apprehended, who claim that the crime was committed by the others, it is error to allow the state's attorney, in his argument to the jury, in declaring that the other defendants have no connection with the crime, to ask a nolle prosequi as to such defendants, and for the court to allow the motion at such time.

5. Where defendants in homicide contend that deceased was assaulted by two other men, and the evidence shows an assault by two men only, and there is nothing to show any concerted action between defendants and such other persons, or that the former were accessories to the acts of the latter, it is error to instruct that a conviction is authorized if defendants conspired with other persons to assault deceased, and he was killed by the other conspirators in carrying out the conspiracy.

6. The refusal in a homicide case to instruct that the law presumes defendant to be innocent, and that he must be proved guilty beyond all reasonable doubt, is not cured by the giving of an instruction that, though the person accused is presumed to be innocent, and the state has the burden of establishing guilt beyond a reasonable doubt, such rules are not intended to allow the guilty to escape, but only to guard against the danger of punishing innocent persons, as the latter instruction tends to minimize the rules.

7. Where a person in a diseased physical condition receives, while in a recumbent position, a blow with the fist, which renders him incapable of standing and walking, and in attempting to do so he receives a fall, from which death results, the assailant will be held responsible for his death, though the blow would not have resulted in death if deceased had been in good health, and the assailant had no knowledge that deceased was not in good health.

8. Hurd's Rev. St. 1899, c. 118, § 9, provides that inmates of the reformatory shall be divided into two classes,-those between 10 and 16 years old, and those between 16 and 21 years. Section 10 requires a verdict upon which a defendant is sentenced to the reforina. tory to find whether defendant is between the ages of 10 and 21 years. Section 12 authorizes the sending of male criminals under the age of 21 years to the reformatory. Held, that a defendant over 21 when convicted of a crime committed under such age should be sentenced to the penitentiary, and not to the reformatory.

Error to criminal court, Cook county; Jesse Holdom, Judge.

John Cunningham and another were convicted of manslaughter, and they bring erReversed.

ror.

Defendants' requested instruction No. 1 and instruction No. 23 were as follows:

Defendant's instruction 1: "You are further instructed, as a matter of law, that the indictment in this case is no evidence, in the slightest degree, but is a mere formal charge, requiring proof of all the material allegations contained therein, by the testimony of witnesses, or by facts and circumstances. And you are further instructed that the law presumes the defendants to be innocent of the crime charged in the indictment, until they have been proven to be guilty beyond all reasonable doubt; and this presumption of innocence is no mere idle theory, to be cast aside by the jury through mere caprice, passion, or law of the land, and follows the defendant prejudice, but it is a substantial part of the throughout the entire case, and must not be lost sight of by the jury until it has been overcome by evidence which establishes the defendant's guilt beyond all reasonable doubt, and to a moral certainty. (Refused.)"

People's instruction No. 14, and marked by the court "No. 23": "The court instructs the jury, as a matter of law, that the rule which clothes every person accused of crime with the presumption of innocence, and imposes upon the state the burden of establishing his guilt beyond a reasonable doubt, is not intended to aid any one who is in fact guilty of crime to escape, but is a humane provision of the law, intended, so far as human agencies can, to guard against the danger of any innocent person being unjustly punished. (Given.)"

A. J. Hanlon and John Pfeiffer, for plaintiffs in error. H. J. Hamlin, Atty. Gen., C. S. Deneen, State's Atty., and Harry Olson, Asst. State's Atty., for the People.

BOGGS, J. An indictment was returned into the criminal court of Cook county, charging the plaintiffs in error, John Cunningham and John Callahan, and two other persons, namely, Harry A. Taylor and Patrick Kane, with the crime of murder, in the killing of one Peter Hartman. Taylor and Kane were not apprehended, but the plaintiffs in error were placed on trial before the court and a jury in said criminal court, and were adjudg

ed guilty of the crime of manslaughter, and condemned to be imprisoned in the state penitentiary at Joliet for an indefinite period. They allege that errors which greatly prejudiced their cause before the jury intervened in the hearing of the cause, and have sued out this writ of error to bring the record of their conviction into review in this court.

The indictment contained five counts, each charging the said plaintiffs in error and said Taylor and Kane with the murder of said Peter Hartman. The state's attorney, however, elected to proceed to trial on the first and fifth counts only. The first count charged the said four parties accomplished the death of said Hartman by "striking, beating, pushing, and shoving him" with their "fists." The fifth count charged that said indicted parties made an assault upon said Hartman "in some way and manner, and by some means, instruments, and weapons, to the grand jurors unknown," and killed and murdered him.

The testimony of Hattie Reed and Daisy Drummond was relied upon by the people to show the circumstances of the killing of Hartman, and that of Hattie Reed alone to identify the plaintiffs in error as the parties who took his life. Her ability to know they were the persons who assaulted Hartman, and, in brief, the reliability and value of her identification of the plaintiffs in error as the guilty parties, became of the utmost importance in the investigation before the jury. In the view we have taken of the case, the cause must be again submitted to a jury for trial, and for that reason we shall refrain from commenting upon the testimony, except so far as it may be necessary in passing upon the matters assigned as for error; and nothing here said is intended to reflect the views of this court as to any matter of fact herein involved.

Hattie Reed, a colored woman, testified, in substance, that on Sunday, the 16th day of September, 1900, between the hours of 12 o'clock noon and 1 o'clock p. m., she was employed as a chambermaid in the Kensington Hotel, in the city of Chicago, and was engaged in "cleaning up" one of the rear rooms, on the fourth floor of the building, known as "Room No. 48"; that there were two windows in the room, both opening upon the alley which leads north from Harrison to Van Buren street, in the block bounded on the east by State street, on the west by Dearborn street, on the south by Harrison street, and on the north by Van Buren street; that in the room adjoining room No. 48 on the north there was another room of the hotel, which also had a window opening on the alley, from which latter window an iron fire escape led down into the alley; that while the witness was so engaged she testified she heard some one down in the alley cry, "Help!" and she looked from the north window in room No. 48, through the fire escape, into the alley, and saw three persons on the west side of the alley, some 50 feet to the north

of her position. She then had no acquaintance with, or had ever seen, either of the plaintiffs in error. Her statements as to what she saw are abstracted as follows: "When I looked out of the window, I saw three men. One was sitting against a barrel in the corner; one was sitting on the ground, and had the old man down between his knees; and the other fellow had his hands around the old man's neck, and was choking him. The two men I see here in court. This one [indicating Callahan] had the old man between his knees. He kept his hands, around the old man's neck, and this one at the chair was going into the old man's pockets. He took something out of his pocket and put it in his own pocket, but I didn't know what it was. The old man raised up his hands like this, and this man [indicating Cunningham] struck him once beside the head with his fist. After he put his hand in the old man's pocket, they ran down the alley, south. Then the old man got up and started to walk, and he staggered and fell in the middle of the alley. I stayed there until after the patrol wagon came. A crowd gathered, and, before the wagon came, some men picked him up and sat him against a barn door. The old man had on tan shoes, light overcoat, and light hat. Cunningham had on a blue suit, and the other one had on light pants and black coat. When I saw Callahan at the station, he had on a dark suit. The man I saw in the alley had on a light suit. The old man's head was to the north when he fell. When they had his head between the man's knees, he was facing north, towards Van Buren street,-his back to me. They were there five minutes after I went to the window. Callahan was looking north, and kept that position all the time. He was a settled man,-the man I call the 'old man.' I don't know about how old he was. I don't remember whether his hair was gray or not. He had a beard. I don't know what color. I saw his face when he got up. I had a good view of it. There was no blood upon his face. When he first got up, he started towards Van Buren street. I don't know how far he walked before he fell in the middle of the alley. He fell forward on his face. He remained on his face while I was there. Nobody turned him over. I don't know how long he lay there before they picked him up and set him against the wall. I could not recognize the persons who picked him up. I didn't see whether the old man had a mustache or not. I only saw one blow struck with the fist. All the time I saw the men scuffling in the alley, the other two men had their hats on."

As before stated, the rear of the Kensington Hotel was provided with an iron fire escape. It reached the fourth floor at a window immediately north of that through which the witness Hattie Reed was looking when she saw the occurrences in the alley. 50 feet to the north of her position, and across the alley. The fire escape was composed of iron rods, and supplied with an iron