(No. 12885.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. CONSTANTINE KUHN et al. Plaintiffs in Error. Opinion filed December 17, 1919-Rehearing denied Feb. 4, 1920.

I. CRIMINAL LAW-what does not tend to disprove intent to rob. The fact that the victim of an alleged assault with intent to rob so defended himself when two men with blackened faces entered his store and ordered him to put up his hands that the men ran away without taking anything of value from him or from the store docs not tend to disprove the element of intent to rob.

2. SAME when verdict need not include finding as to intent. Where an indictment charges assault with intent to rob and the evidence shows that the methods employed were those usually employed in cases of robbery by force and intimidation, a verdict of guilty in manner and form as charged in the indictment need not contain a finding as to the intent. (Garrity v. People, 70 Ill. 83, and Turley v. People, 188 id. 628, distinguished.)

3. SAME when error in modifying instruction does no harm to the defendants. Error in so modifying an instruction upon the question of circumstantial evidence as to authorize the jury to entirely disregard the circumstantial evidence of the guilt of the defendants if the direct evidence is sufficient to establish their guilt beyond a reasonable doubt may be prejudicial to the prosecution but not to the defendants.

4. SAME amendment of record after term cannot rest in recollection of judge. An amendment of the record after the term can not be made on ex parte affidavits or testimony or on the judge's recollection but must be based upon some memorandum, minute or note of the judge or something appearing on the records or files of the court showing facts justifying the amendment.

5. SAME-verdict is part of the record proper. The verdict of the jury is a part of the record proper which is kept by the clerk under the direction of the court, and the record of a cause imports absolute verity and is the sole, conclusive and unimpeachable evidence of the proceedings of the court.

6. SAME bill of exceptions presents only proceedings not a part of the record. It is the office of a bill of exceptions to bring before a court of review matters outside of the record proper, and matters properly a part of the record cannot be shown by bill of exceptions.

7. SAME-general rule in case of conflict between record and bill of exceptions. In case of a conflict between the record and the

bill of exceptions the record will control as to all matters shown and properly appearing therein, while the bill of exceptions will prevail as to matters properly shown by said bill.

8. SAME-objection that one juror was not sworn comes too late on writ of error. If one of the jurors in a criminal case has not been sworn the defendant should object to the return of a verdict, and he cannot stand by and permit the verdict to be returned and then complain, on writ of error, that the juror was not sworn.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. MARCUS Kavanagh, Judge, presiding.

FRANK A. MCDONNELL, and THOMAS E. SWANSON, for plaintiffs in error.

EDWARD J. BRUNDAGE, Attorney General, MACLAY HOYNE, State's Attorney, and James B. SEARCY, (EDWARD E. WILSON, and JOHN K. MURPHY, of counsel,) for the People.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The plaintiffs in error, Constantine Kuhn and William Wilson, were convicted and sentenced in the criminal court of Cook county under the first count of an indictment which charged them with assault with intent to rob Adam Streit.

Adam Streit on April 17, 1919, had a grocery and market at 4422 Shields avenue, in Chicago, and about ten o'clock in the morning of that day was sitting with his back towards the door reading a newspaper, when the door was opened and somebody ordered "Hands up!" He turned around and confronted two men with their faces blackened and one of them pointing a revolver at him. Instead of holding his hands up he grabbed the revolver, but the men got it away from him and there was a fight, in which Streit was struck several times over the head with the revolver so that there were five cuts on his head and he was covered with blood. He was next to the counter and the show

case was smashed. People outside were attracted by the noise of the fighting and the men ran away. Streit followed them and called to George Rantz, a fruit and vegetable peddler, to go and get them. One of the men shot at Streit twice, and he lost them between Fifth avenue and Wentworth avenue. Rantz, the fruit and vegetable peddler, between the hours of nine and ten o'clock that morning saw two men about 200 feet from him in an alley between Shields and Princeton avenues blacking their faces, and the same men were in Streit's store. When they ran out Rantz chased them and fired one shot at them, and one of the men turned and fired three shots at him. The men ran into a saloon kept by Edward Boyle at 4301 Wentworth avenue. There was a telephone call at the police station that there were numerous shots being fired at Forty-fourth place and Shields avenue, and the "flivver squad" jumped into a Ford and went there as fast as they could. They arrived in four or five minutes, and found Streit, covered with blood, standing in his doorway, and he directed them the way the men went. At Forty-third street and Wentworth avenue they were directed by bystanders to the saloon and went there and arrested the plaintiffs in error.

So far there was no controversy as to the facts, and the only conflict in the testimony was as to the identity of the men who committed the assault. The defendants each denied having anything to do with the crime and interposed the defense of an alibi. Streit testified that he went to the police station as soon as he had his head dressed, which was about an hour after the assault, and identified the defendants, and he was corroborated in that testimony by police officers. Rantz also identified the defendants without hesitation, and both he and Streit testified positively at the trial that they were the men who committed the assault. The policemen each took a door of the saloon, and Frank Green, one of the policemen, found Wilson in the back room of the saloon with a towel, wiping black off from his face.

John J. Farrell, another policeman, went to the back door of the saloon, and when he came in Green had Wilson in custody. They went up-stairs and found Kuhn lying on the front bed-room floor with his face blackened and with a half-pint bottle of whisky and a towel lying by him. About one drink had been taken out of the bottle, and when Kuhn stood up he staggered as if he was very drunk, but he straightened up and walked down-stairs without any difficulty. The opinion of the officers was that he was pretending to be drunk.

The bar-tender at the saloon testified that when they closed up at one o'clock in the morning of April 17 he asked Kuhn to stay and help clean up the bar, and they cleaned the back bar and mirror and sat around until about a quarter after five and had two or three drinks; that Kuhn then got a half-pint of whisky and went up-stairs to sleep; that about 5:15 or 6:00 o'clock Wilson came around, and a couple of fellows who were entire strangers to the witness came in and invited Wilson to have a drink; that Wilson went to sleep in a chair, and the men, who had canvas gloves on which had oil on them, went to a stove and took off the lid and rubbed soot on the gloves and blackened Wilson without waking him up, and that he did not even turn around; that Wilson had six or seven drinks; that the men went upstairs with soot on their canvas gloves and left the saloon about 8:30 o'clock; that Kuhn could not have gone downstairs without the witness seeing him; that Wilson woke up probably about nine o'clock and asked the witness to give him a drink and was told to go and wash his face, and that Wilson looked in the mirror and saw he was blackened up and asked for a towel. The blacking on the faces of the men was in the nature of shoe blacking and in the fight Streit became smeared with it, and it is pretty clear that the blacking on the faces of the defendants was not soot. The story of the bar-tender was so improbable that a jury would not be likely to give it any credence. The tes

timony that the unknown men blackened with canvas gloves the face of a man who was able to sit up and soon after was practically sober, without waking him up or even causing a murmur, and that they blackened in the same way the face of Kuhn lying on the floor up-stairs, is not credible. The evidence established the guilt of the defendants.

The court admitted in evidence a revolver produced by the saloon-keeper which had recently been discharged, which the saloon-keeper testified belonged to him. He said he had discharged it in the basement to see whether it would go off, and there was no evidence tending to show that it was the revolver used by the defendants or that it had ever been in their possession. The court erred in admitting it in evidence, but it did not prove or tend to prove any issue, since there was nothing peculiar about it and nothing to distinguish or connect it with the crime. The men who committed the crime had a revolver, and whether that was the one or not was wholly immaterial, and as it did not add anything to the testimony the error was harmless.

The first count of the indictment was for assault with intent to rob, and it is argued that the evidence did not show such an intent because nothing of value was taken from the store or from Streit. The method employed and the order given were those usually employed and given in an assault with intent to rob, and the fact that there was no robbery was evidently due to the failure of Streit to obey the order. The fact that he defended himself and prevented the robbery has no tendency to disprove the alleged intent.

In the same connection complaint is made that the verdicts were not sufficient because they did not include a finding as to intent. There were separate verdicts finding each defendant guilty in manner and form as charged in the first count of the indictment, and reliance is placed on the cases of Garrity v. People, 70 Ill. 83, and Turley v. People, 188 id. 628, as holding that the manner and form charged in the indictment related only to the assault and did not in