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the judgment of the circuit court is therefore reversed and the cause is remanded to the circuit court of Montgomery county, with directions to enter an award of $1650, payable in installments to Nettie Davis, mother of the deceased employee, if the claimant shall elect to accept such award, otherwise to remand the cause to the Industrial Commission for a further hearing consistent with the views herein expressed.

Reversed and remianded, with directions.

(No. 13069.—Cause transferred.) THE PEOPLE OF THE STATE OF Illinois, Defendant in Er- .

ror, vs. FRANK CALKINS, Plaintiff in Error.

Opinion filed February 18, 1920.'

CRIMINAL LAWmere averment that constitutional question is involved does not authorize direct review of conviction for misdemeanor. A mere averment in the brief that the statute under which a person is convicted of a crime below the grade of felony is unconstitutional does not justify a direct review of the judgment by the Supreme Court.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. ROBERT E. Crowe, Judge, presiding.

JAMES HARTNETT, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, MACLAY HOYNE, State's Attorney, and EDWARD C. FITCH, (EDWARD E. Wilson, of counsel,) for the People.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the court:

The plaintiff in error, Frank Calkins, was charged in an indictment with doing certain acts which directly tended to render a certain female child of the age of sixteen years

delinquent by ravishing and carnally knowing her. His plea was not guilty, and upon a trial he was found guilty in manner and form as charged in the indictment. His motion in arrest of judgment was overruled and he was sentenced to two months' imprisonment in the house of correction at labor. He has sued out a writ of error, and alleges that the statute under which he was tried is unconstitutional, and that “the statute, indictment, verdict, judgment and sentence * * * deprive him of the protection of the constitution, of the law of the land and of due process of law.”

The only provisions of the constitution mentioned in the argument are sections 2 and 10 of article 2, neither of which has the slightest application to the case. While it is said that this statute (Laws of 1915, p. 369,) is manifestly contrary to the constitution, contrary to the law of the land and contrary to due process of law, no attempt has been made to show us wherein the inconsistency consists and our unaided efforts have not enabled us to discover the inconsistency. We are therefore forced to the conclusion that no question of the construction of the constitution is involved in the case, for the mere averment that such question is involved is of no importance where the record shows that no such question is involved, that the proposition presented is not fairly open to controversy.

The Practice act provides (sec. 118) that writs of error in criminal cases below the grade of felony shall issue from the Appellate Court but in all cases in which the validity of a statute or a construction of the constitution is involved shall issue from the Supreme Court. The writ of error should have been sued out of the Appellate Court for the First District, which has jurisdiction to review the judgment, and the cause will be transferred to that court.

Cause transferred.

(No. 13043.—Reversed in part and remanded.) CARRIE McAYEAL et al. Appellees, vs. JOHN HILLISON,

Appellant.

Opinion filed February 18, 1920..

1. DEEDS-old age and disease do not necessarily incapacitate grantor to execute a deed. While age and disease are proper elements to be considered on the question of mental capacity to transact business, the mere circumstance that the mental powers have been impaired by age or disease is not, alone, sufficient to invalidate a deed if the grantor fully comprehends its meaning and effect and is able to exercise his will in executing it.

2. SAME—what mental weakness will invalidate a deed. The mental impairment that will render a deed invalid must be to the extent that the grantor is incapable of comprehending what he is doing and of knowing the nature and effect of his act.

3. SAME-fact that third party suggests making deed does not affect its validity. Where a grantor, in making a deed during his last sickness, carries into effect a purpose he had in mind before he became ill, the fact that the making of the deed is first suggested by a third party does not affect its validity, if the grantor is able to comprehend his property and understand the nature and effect of his act.

4. SAMEburden is on complainants to establish invalidity of deed. The burden is on the complainants seeking to set aside a deed in a partition suit to prove the allegations in their bill that the grantor was mentally incapable of making the deed.

APPEAL from the Circuit Court of Champaign county; the Hon. FRANKLIN H. Boggs, Judge, presiding.

DOBBINS & DOBBINS, for appellant.

M. H. Cloud, and L. F. WINGARD, guardian ad litern,

for appellees.

Mr. Justice Farmer delivered the opinion of the court:

This was a bill for partition originally filed by Carrie McAyeal, as an heir of Thom Hillison, deceased, complainant, against John Hillison and other heirs of Thom Hillidelinquent by ravishing and carnally knowing her. His plea was not guilty, and upon a trial he was found guilty in manner and form as charged in the indictment. His motion in arrest of judgment was overruled and he was sentenced to two months' imprisonment in the house of correction at labor. He has sued out a writ of error, and alleges that the statute under which he was tried is unconstitutional, and that “the statute, indictment, verdict, judgment and sentence * * * deprive him of the protection of the constitution, of the law of the land and of due process of law.”.

The only provisions of the constitution mentioned in the argument are sections 2 and 10 of article 2, neither of which has the slightest application to the case. While it is said that this statute (Laws of 1915, P. 369,) is manifestly contrary to the constitution, contrary to the law of the land and contrary to due process of law, no attempt has been made to show us wherein the inconsistency consists and our unaided efforts have not enabled us to discover the inconsistency. We are therefore forced to the conclusion that no question of the construction of the constitution is involved in the case, for the mere averment that such question is involved is of no importance where the record shows that no such question is involved, that the proposition presented is not fairly open to controversy.

The Practice act provides (sec. 118) that writs of error in criminal cases below the grade of felony shall issue from the Appellate Court but in all cases in which the validity of a statute or a construction of the constitution is involved shall issue from the Supreme Court. The writ of error should have been sued out of the Appellate Court for the First District, which has jurisdiction to review the judgment, and the cause will be transferred to that c011

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I. DEEDS-old age and 03 grantor to execute a deed. " ments to be considered on the . act business, the mere circus been impaired by age or disease a deed if the grantor fully cuaren is able to exercise his will it e

2. SAME—what mental an.. mental impairment that will per extent that the grantor is .. is doing and of knowing the

3. SAME-fact that third par affect its validity. Where a golast sickness, carries into effectsbecame ill, the fact that the me by a third party does not affect to comprehend his property 21 of his act.

4. SAME—burden is on con deed. The burden is on the com deed in a partition suit to pre the grantor was mentally incze

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