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and saw Mrs. Clarkson in the bed, leaning on her left forearm, which was on the pillows, looking through the door into the sitting room and calling to Bessie, asking if it was time to take her medicine. Pine from his position could see the witnesses and Mrs. Clarkson. He did not testify that Mrs. Clarkson did or could see the witnesses, but only that she was looking north through the door and they were north of her.
It is essential to a due attestation of a will under the statute that both the will and the witnesses shall be in the presence of the testator, so that he may, without effort or change of position, see both and the act of attestation. (Snyder v. Steele, 287 Ill. 159; Quirk v. Pierson, 287 id. 176.) Under the evidence it was a question of fact whether the will was attested in the presence of the testatrix, and the burden of proof on this question rested on the defendants, the proponents of the will. The evidence justified the verdict of the jury. No objection is made to the statement of the law on this question as contained in any of the instructions to the jury.
It is argued that the court gave a number of instructions as to the meaning of the phrase, “in the presence of testator,” and thereby the jury must have been led to believe that the judge regarded this as the deciding question in the case and the proponents' evidence as insufficient. It is not claimed that the law was incorrectly stated and there was no intimation as to the weight of the evidence.
Since the finding of the jury upon this issue required the decree which was rendered by the court, and since there is no error in the record for which this finding should be set aside, it is not necessary to consider the errors assigned as to other issues. The decree will be affirmed.
(No. 13066.— Judgment affirmed.) THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Er
ror, vs. John CONNORS, Plaintiff in Error.
Opinion filed February 18, 1920—Rehearing denied April 9, 1920.
1. CRIMINAL LAW—an indeterminate sentence is for the maximum term fixed by law. An indeterminate sentence "for a term of years, not to exceed the maximum term fixed by law” for the crime of which the defendant is convicted, is a definite sentence for the maximum term provided by law.
2. SAME-legislature has power to fix punishment for a crime. The only constitutional limitation on the power of the legislature to fix penalties for crimes is that all penalties shall be proportioned to the nature of the offense, and no one convicted of crime and given an indeterminate sentence can be discharged before the expiration of the maximum term except through the action of the executive department of the State.
3. SAME—the Parole law does not violate constitutional rights. The Parole law does not violate any right of a citizen guaranteed by the Federal or State constitution and does not increase the term of imprisonment fixed by law for the crime of which a defendant is convicted. (People v. Doras, 290 Ill. 188, followed.)
WRIT OF ERROR to the Criminal Court of Cook county; the Hon. MARCUS KAVANAGH, Judge, presiding.
CHARLES P. R. MACAULAY, for plaintiff in error.
EDWARD J. BRUNDAGE, Attorney General, MACLAY HOYNE, State's Attorney, EDWARD C. Fitch, and FLOYD E. BRITTON, for the People.
Mr. JUSTICE THOMPSON delivered the opinion of the court:
Plaintiff in error was sentenced by the criminal court to be imprisoned in the penitentiary "for a term of years not to exceed the maximum term fixed by law," on his plea of guilty to the crime of robbery. It is contended that the court erred in imposing an indeterminate sentence.
Our decision in People v. Doras, 290 Ill. 188, is controlling here. The sentence is a certain and definite sentence for the maximum term provided by law. (People v. Joyce, 246 Ill. 124; People v. Peters, 246 id. 351; People v. Nowasky, 254 id. 146.) The convict has no right to demand that he be discharged before the expiration of such maximum term. The legislature has authority to fix penalties for crime, and the only constitutional limitation on that authority is that “all penalties shall be proportioned to the nature of the offense.” The judgment of the court simply carries into effect the penalty prescribed by the legislature. The execution of this judgment is vested in the executive department of the State. That department is given authority to reduce the duration of imprisonment, subject only to the limitation that it shall not in any case be reduced to less than one year or the minimum term provided by law.. Unless the executive decides to shorten the term of imprisonment fixed by the judgment of the court the sentence does not end when the minimum term has been served. The executive is given authority to terminate the imprisonment, within the limits fixed by law, whenever in the judgment of that department of the government justice requires it. If for the purpose of discipline, education and training the executive department determines that the convict should be kept under the friendly supervision of the State outside the penitentiary, it cannot be said that this increases the sentence, so long as the term of supervision is less than the maximum term fixed by law. The Parole law does not by any of its provisions violate any right of a citizen guaranteed by the Federal or State constitution. The judgment of the criminal court is affirmed.
(No. 12975.-Judgment affirmed.) THE CHICAGO RAW HIDE MANUFACTURING COMPANY,
Plaintiff in Error, vs. THE INDUSTRIAL COMMISSION et al.-(HATTIE TOPHOVEN, Defendant in Error.)
Opirion filed February 18, 1920—Rehearing denied April 8, 1920.
1. WORKMEN'S COMPENSATION—employee's wife cannot testify to his statement as to cause of injury resulting in death. In a proceeding for compensation for the death of an employee the employee's wife cannot testify to what her husband told her concerning the cause of the injury, which finally resulted in his death.
2. SAME—when infection with anthrax is an accident arising out of the employment. Where an employee dies as a result of an infection with anthrax bacilli, evidence that he scratched a pimple on his neck while in the course of his employment as foreman in a tannery department, that in the ordinary period of inoculation the neck began to swell until death resulted, and that he was not at any place where he was likely to come in contact with anthrax except at the tannery, is sufficient to sustain a finding of the Industrial Commission that the employee contracted the disease by an accident arising out of his employment.
3. SAME—when notice of accident is sufficient. Where an employee in a tanning factory dies as a result of an infection with anthrax bacilli, a statement by the employee's wife to the employer on the day of the funeral, and within a week after the disease began, that her husband died of an infection from a poisoned hide, is sufficient notice of the accident under section 24 of the Compensation act.
Writ of ERROR to the Circuit Court of Cook county; the Hon. Oscar M. TORRISON, Judge, presiding.
GALLAGHER, KOHLSAAT & RINAKER, for plaintiff in error.
HENRY POLLENZ, for defendant in error. .
Mr. CHIEF JUSTICE DUNN delivered the opinion of the court:
This is a writ of error sued out to reverse the judgment of the circuit court of Cook county affirming an award by the Industrial Commission against the Chicago Rawhide
Manufacturing Company of compensation for the death of Charles T. Tophoven, and the only questions presented are whether there is any evidence in the record tending to show that the deceased met with an accident arising out of and in the course of his employment, and whether there is any evidence tending to show notice to the plaintiff in error within thirty days after the happening of such accident.
The plaintiff in error was engaged in the business of tanning hides. The deceased, Charles T. Tophoven, was employed as foreman of the chrome tannery department. His duties were to oversee the work in connection with the tanning of the hides and did not require him to handle the hides. On Saturday morning, December 12, 1915, Frank J. Dulinski, who was foreman of the halter department, saw Tophoven in the locker room, where he was changing his clothes to go to work. He asked Dulinski for a pin to open a small pimple back of and just below his left ear. Dulinski had no pin and Tophoven scratched the pimple off with his finger nail. It bled and Dulinski wiped the blood off Tophoven's neck with a towel. There was no scratch but it looked a little red. That evening, after supper, Tophoven's wife noticed, as she testified, a scratch about a halfinch long on the left side of his neck, and he told her that while he was looking through some hides that morning one fell back and scratched his neck. No one else saw the scratch and his statement was hearsay and incompetent. Sunday Tophoven spent at his home. Some visitors were there, they were playing music, and there is no evidence that Tophoven was sick though the visitors noticed the red spot on his neck. On Monday morning Tophoven went to work and during the forenoon went to the West Side Emergency Hospital, from which he returned with his neck bandaged and with some medicine to put on it. His neck was swollen. He went home about one o'clock for about an hour and then went back to work, coming home again about half-past five,—a little earlier than usual. On Tues