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PAGE. People er rel. v. Chicago, Burl. & Quincy R. R. (Stone, J.)... 502 People er rel. v. City of St. Louis. (Carter, J.)............ .. 600 People v. Connors. (Thompson, J.)........ ......... 614 People v. Gallagher. (Stone, J.).......... People v. Hannon. (Stone, J.)......... People er rel. v. Harrigan. (Duncan, J.).......

206 People er rel. v. Harrigan. (Farmer, J.).

294 People v. Hussar. (Stone, J.).....

577 People v. Jarecki. (Carter, J.)........... People v. Jones. (Stone, J.)........ People v. Krause. (Thompson, J.)... People v. Kuhn. (Cartwright, J.)..... People v. Marquis. (Dunn, C. J.)..... People ex rel. v. Martin. (Dunn, C. J.).........

300 People v. Marx. (Carter, J.)............ People ex rel. v. Metzen. (Cartwright, J.)... People v. Newsome. (Carter, J.)....... People v. O'Donnell. (Stone, J.)........ People ex rel. v. Peeples. (Dunn, C. J.)...

537 People v. Shaffer. (Carter, J.)........

142 People v. Steinkraus. (Duncan, J.)......

........ 283 People ex rel. v. St. Louis Merchants Bridge Co. (Dunn, C. J.) 95 People v. Walker. (Thompson, J.).......

........ People, for use, etc. v. Wallace. (Thompson, J:)............. People er rel. v. Wells. (Cartwright, J.)................... 584 Pilsen Brewing Co. v. Wallace. (Cartwright, J.)............ 59 Pittsburgh, C., C. & St. L. R. R. v. Indus. Com. (Carter, J.).. 396 Pittsburgh Plate Glass Co. v. Kransz. (Farmer, J.).......... 84 Public Service Co. of North. Illinois v. Martin. (Duncan, J.). 471 Public Utilities Com. v. Springfield Gas Co. (Thompson, J.)... 209 Public Utilities Com. v. Thedens. (Carter, J.)............... 184

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R Ramsay v. Murrell. (Dunn, C. J.)......

........ 334 Redmond z. DuBois. (Dunn, C. J.)...... ........... 340 Rosehill Cemetery Co. ads. Harrison. (Cartwright, J.)......

416

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s Shaffer ads. People. (Carter, J.)........ Smallwood ads. Alabach. (Cartwright, J.).................. 338 Smith-Lohr Coal Mining Co. v. Indus. Com. (Cartwright, J.) 355 Springfield Coal Mining Co. v. Indus. Com. (Duncan, J.).... 408 Springfield Gas Co. ads. Public Utilities Com. (Thompson, J.) 209 State Bank of Chicago ads. Moore. (Farmer, J.)............ 372

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Steinkraus ads. People. (Duncan, J.)....................... 283
St. Louis, City of, ads. People ex rel. (Carter, J.)............ 600
St. Louis Merch. Bridge Co. ads. People ex rel. (Dunn, C. J.) 95
Stokes ads. Bay Bottoms Drainage District. (Carter, J.)..... 68
Suedmeier ads. Bullard. (Cartwright, J.)....... ......... 400
Sullivan v. Ohlhaver Co. (Thompson, J.)......
Sunnyside Coal Co. v. Industrial Com. (Carter, J.)........ 523
Sweitzer ads. Higgins. (Stone, J.).......

........ 551

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Taylor ads. United Disposal and Recovery Co. (Thompson, J.) 480 Thedens ads. Public Utilities Com. (Carter, J.)............... 184 Thoeming v. Hawkins. (Cartwright, J.)..... ........ 454 Tophoven ads. Chicago Rawhide Manf. Co. (Dunn, C. J:).... 616 Turner ads. Nadig. (Farmer, J.)..........

........ 513

Udstuen v. Ilik. (Farmer, J.)......

........ 443 United Disposal and Recov. Co. v. Indus. Com. (Thompson, J.) 480 United Engineering Co. v. Industrial Com. (Thompson, J.)... 480

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W Walker ads. People. (Thompson, J.)........ Wallace ads. People, for use, etc. (Thompson, J.)......... 465 Wallace ads. Pilsen Brewing Co. (Cartwright, J.)......... Walldren Express and Van Co. v. Krug. (Dunn, C. J.)....... 472 Walsh v. West Baden Springs Co. (Cartwright, J.)...... Waterman v. Hall. (Dunn, C. J.).......................... Wells ads. People ex rel. (Cartwright, J.).................. 584 West Baden Springs Co. ads. Walsh. (Cartwright, J.)....... 34 West Side Coal and Mining Co. v. Indus. Com. (Duncan, J.) 301 Wiley ads. Springfield Coal Mining Co. (Duncan, J.)....... 408

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CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF Illinois.

(No. 12762.-Judgment affirmed.) THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Er

ror, vs. WILLIAM E. NEWSOME, Plaintiff in Error.

Opinion filed December 17, 1919Rehearing denied Feb. 4, 1920.

I. CRIMINAL LAWwhen indictment sufficiently alleges existence of election district. In an indictment charging a judge of election with fraud under section 86 of the Election law, the statement that a general election was held in the second election district of the second precinct of the town of North Litchfield is a sufficient allegation that there was such an election district.

2. SAME-allegation as to qualification of candidates is immaterial in indictment against election judge. In an indictment under section 86 of the Election law, charging an election judge with fraudulently marking a ballot cast for a candidate for the office of State's attorney so that the ballot would not be counted or would count against him, it is not necessary to allege that said candidate had the qualifications required for the office, as the qualification of the candidate, so far as the offense is concerned, is immaterial.

3. SAME—when judge of election is guilty of fraud under section 86 of Election law. A judge of election who changes or attempts to change the ballot of an elector with intent to deprive such elector of voting for such person as he intended is guilty of fraud, corruption, partiality or manifest misbehavior in his office, for which he may be prosecuted under section 86 of the Election law, even though his act may also be a crime under other sections of the Election law or under the Criminal Code.

4. Same-order appointing special State's attorney can be attacked only in direct proceeding. Upon the filing of a petition by the State's attorney asking for the appointment of a special State's attorney the court has jurisdiction to determine whether such appointment shall be made, and as the attorney so appointed is at least a de facto officer, the order appointing him cannot be attacked except by a direct proceeding.

5. SAMEballots are admissible in evidence in prosecution of judge of election. In a prosecution of an election judge for fraudulently marking ballots while the canvass was being made, the ballots are admissible in evidence although it has been more than six months since they were voted, after which time the Election law requires that they be destroyed, and though they may not have been preserved in the manner required by the Election law.

6. SAME—what remark by accused before commission of alleged offense is admissible. In a prosecution of an election judge who is charged with fraudulently marking ballots during the canvass of an election, a witness may be allowed to testify that some wecks before the election he heard the defendant remark how easy it would be to take a short lead pencil between his fingers and as he was going over the ballots mark them for any candidate he wished.

7. SAME—when defendant cannot show that election was illegal. An election judge properly appointed as such and who takes the oath and acts as such official is a de facto officer, and on his trial for fraudulently marking ballots during the canvass he cannot show as a defense that there was no order of the county board fixing the voting place and no record of the establishment of the election district.

8. Samewhen objection that officer in charge of jury was not sworn comes too late. Where the record shows that the officer in charge of the jury was sworn, an objection that he was not, in fact, sworn comes too late on motion for new trial, even though defendant's counsel claim they did not know of that fact until after the trial, as it is the duty of the defendant and his counsel to take notice of all the steps during the trial and to object to irregularities and preserve exceptions if they are not corrected.

9. Same-When proof that ballots were legally cast is not essential. To authorize the conviction of a judge of election for fraudulently marking ballots during the canvass, proof that the ballots were legally cast is not essential.

WRIT OF Error to the Appellate Court for the Third District;-heard in that court on writ of error to the Circuit Court of Montgomery county; the Hon. WILLIAM B. Wright, Judge, presiding.

GEORGE P. O'Brien, and J. H. ATTERBURY, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, Amos MILLER, Special State's Attorney, and ALBERT D. RODENBERG, for the People.

Mr. Justice CARTER delivered the opinion of the court:

Plaintiff in error was convicted upon an indictment charging violation of section 86 of the general Election law of 1872. (Hurd's Stat. 1917, P. 1261.) He was sentenced on the verdict to confinement in the county jail for 260 days and to pay the costs. That section provides, among other things: “If any judge of any election * * * be guilty of any fraud, corruption, partiality or manifest misbehavior, * * * he shall, on conviction thereof,” be fined or imprisoned in the county jail. The judgment of conviction was affirmed by the Appellate Court for the Third District.

This writ of error has been sued out to reverse the judgment of the Appellate Court.

From the evidence it appears that plaintiff in error was judge of election at the general election held for State and county officers in the second district of the election precinct of North Litchfield, in Montgomery county, on November 7, 1916, at which the names of Frank M. Ramey and J. Earl Major appeared on the official ballot as opposing candidates for State's attorney. The indictment consisted of fourteen counts, in some of which the fraud, corruption, partiality and manifest misbehavior were alleged to be that plaintiff in error during the canvass of the votes changed and altered certain official ballots cast for Major

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