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of the office were exercised.” This court said in People v. Lieb, 85 Ill. 484, on page 489: "To constitute an officer de facto it is not necessary that he should derive his appointment from one competent to invest him with a good title to the office,”—citing authorities. This doctrine in both of these cases was cited with approval by this court in Lavin v. Commissioners of Cook County, supra. Under these authorities, beyond question, the plaintiff in error was a de facto officer and was liable, under the law, for his acts as such. The office of judge of election had a legal existence. The election was the general one provided by law. The voters of that locality went to the polls and cast their ballots, which had been duly prepared by the county clerk for that district. Plaintiff in error acted through the day and at the canvass of the ballots as one of the election officials, and he cannot be heard to deny that he is responsible for any delinquency on his part while acting in that capacity, simply because of an oversight by the county board, if one was made, in not making a proper record of the establishment of that election district.
It is also urged by counsel for plaintiff in error that certain testimony was admitted, over objection, that two or three weeks before the election the witness heard plaintiff in error, in talking about the election in the presence of several other persons, explain how easy it would be to take a short lead pencil between his fingers and as he was going over the ballots mark for any candidate he wished. It is not claimed that plaintiff in error said at that time that he was intending to do anything of the kind, but it is argued that the evidence was competent as an adinission against interest. The test of the admissibility of evidence is the connection of the facts proved with the crime charged, and whatever testimony tends directly to show the defendant guilty of the crime charged is competent: (People v. Moeller, 260 Ill. 375.) Any evidence which has a natural tendency to establish the fact in controversy should be admitted. (Commonwealth v. Merriam, 14 Pick. 518; People v. Jennings, 252 Ill. 534.) Any circumstance may be put in evidence which may tend to make the proposition at issue either more or less probable. (1 Wharton on Crim. Evidence,–3d ed.—sec. 21; Jones on Evidence, sec. 136.) Where the defendant was charged with the murder of his father, obscure allusions made by him to some coming event were admitted. “The fact that the language might possibly have an innocent meaning did not prevent its consideration by the jury, who would, of course, be called upon to decide whether such was the fact or whether it was a dark hint thrown from a mind that already felt the shadow of the coming tragedy.” (State v. Hoyt, 47 Conn. 518.) Where the defendant was accused of having committed a crime for hire, his statement that he was to receive some money was admitted. (State v. Green, 92 N. C. 779.) In another case it was shown that several months before the crime the accused had consulted with a hack driver about letting his team run away with a certain individual over a bluff into a lake and had asked him how much he would take for the horses and hack. This was held admissible to show that the accused contemplated murder. (State v. Hayward, 62 Minn. 474.) Where one was charged with strangling a woman, evidence that after the crime accused showed how he could kill by strangling was held admissible. (Moore v. State, 2 Ohio St. 500.) In this last case the court stated that the evidence was admissible as showing the state of the mind of the party and as part of his conduct from which an inference as to the working of his mind might be drawn. We think, under the reasoning of these cases, this evidence was properly admitted.
It is also urged that the court permitted the jury to retire in charge of an unsworn officer. This question was first sought to be presented on motion for new trial by the affidavits of the plaintiff in error and his counsel, the latter making their affidavits on information and belief. The record of the circuit court shows that the officer was sworn. Moreover, no objection was made by plaintiff in error or his counsel until after the trial. It has been held by this court that if an officer is not, in fact, sworn, the defendants should object to the irregularity at the time, and if not then corrected should preserve their objection by a bill of exceptions. (Dreyer v. People, 188 Ill. 40; see, also, Lamb v. People, 219 id. 399.) Counsel for plaintiff in error say they could not waive the objection because they did not know until after the trial that the officer was not sworn. It is the duty of plaintiff in error and counsel to take notice of all the steps taken in the progress of the trial, and they have no right to stand by and permit irregular proceedings to take place and then argue such irregularities to be error. Counsel could have ascertained whether or not the officer was sworn, before the jury retired in the officer's charge, if proper steps had been taken to ascertain such information.
It is further urged by counsel for plaintiff in error that prejudicial error was committed by the special State's attorney in his closing argument to the jury when he said, among other things, “They dared not put Robert Newsome on because he would not swear to that.” The record shows that when Maddox, a witness for the State, was being crossexamined by counsel for plaintiff in error, they asked him in regard to a conversation with Robert Newsome, brother of plaintiff in error: "In that conversation did you tell Robert Newsome that if Billie Newsome would get out of politics, resign as central committeeman, resign as overseer of the poor and move away, that you would stop the thing, and you thought you could ?” and he answered: “I never made any such statement to Bob Newsome or anyone else; I can explain what I did say.” This examination of Maddox was not in any way competent unless it was intended to impeach his credibility as a witness. Robert Newsome was not called as a witness, and so the special State's attorney deemed it proper, in discussing Maddox's testimony, to refer to this question put to Maddox. We do not think the remark of the special State's attorney, under these circumstances, constituted error.
Counsel for plaintiff in error asked the People's witness Bray, one of the challengers, who testified as to what occurred in the polling place at the canvass, whether he was drunk or sober at that time, and the court sustained an objection to the question. The court should have allowed a very wide latitude on the cross-examination of this witness and should have permitted this question to be answered so as to test how accurate his recollection was or how reliable his testimony. However, in view of the testimony of other witnesses as to what took place during the canvass, we are of the opinion that the error in this ruling cannot be considered prejudicial to plaintiff in error.
It is further objected that the instructions should have required proof that the ballots changed were legally cast. In canvassing the ballots the judges have no duty to perform with reference to the casting of the ballots. It is their duty to canvass the ballots in the ballot-box, and this duty is not affected by the illegality of the ballots, except so far as such illegality is shown by the ballots themselves.
Numerous objections were also made as to the giving and refusal of instructions. We have examined all the questions raised with reference to the instructions and have reached the conclusion that, taken as a series, the jury were not misled in any particular by the alleged errors, and it would serve no useful purpose to discuss in detail the numerous objections raised.
The evidence amply justified the verdict of the jury, and we find no reversible error in the record. The judgment of the Appellate Court will be affirmed.
(No. 12766.—Reversed and remanded.) The CITY OF CHICAGO, Plaintiff in Error, vs. THE INDUS
TRIAL COMMISSION et al.—(GILBERT H. Coyne et al. Defendants in Error.)
Opinion filed December 17, 1919–Rehearing denied Feb. 4, 1920.
1. WORKMEN'S COMPENSATION-legislature must say what persons are entitled to benefit of act. It is for the legislature and not the courts to say what class of persons shall be entitled to the benefits of the Workmen's Compensation act, and when the legislature has plainly excluded a particular class the courts cannot include it.
2. SAME-police patrolman of the city of Chicago is not within the Compensation act. Under the ordinances of the city of Chicago a police patrolman regularly appointed and sworn as such is an official of the city and not a mere employee and is by the terms of the Compensation act excluded from the operation of the act, regardless of the character of duty he was performing for the city at the time of his injury.
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. Oscar M. TORRISON, Judge, presiding.
SAMUEL A. ETTELSON, Corporation Counsel, and WilLIAM H. DEVENISH, City Attorney, (ROBERT H. FARRELL, and JAMES J. O'TƏole, of counsel,) for plaintiff in error.
Finn & MILLER, and MUNSON T. Case, (0. A. ARNSTON, of counsel,) for defendants in error.
Mr. Justice CARTWRIGHT delivered the opinion of the court:
Gilbert H. Coyne and Bridget Coyne made application under the Workmen's Compensation act to the Industrial Commission for compensation for the death of their son, Gilbert F. Coyne, a policeman of the city of Chicago. The arbitrator awarded compensation in the sum of $3500, payable in weekly installments of $12 each. Upon a review of the award the Industrial Commission made a finding that