by the name of William Davids. Plaintiff in error thereby admits that William David, Jr., and William Davids are one and the same person. The proof also sustains this averment, inasmuch as the witness W. A. Schafer has sworn that the plaintiff in error, who was seated at the time in the court room, is the same person who is designated as defendant in the suit; and that he is known both as William Davids and as William David, and is called by both names. (Feasler v. Schriever, supra). The evidence is clear that the person indicted and tried is the same person who is named in the indictment. (Bonardo

v. People, supra).

Second-The second error, assigned by the plaintiff in error, is the overruling by the trial court of his motion for a continuance of the cause, made at the January term, 1901. There was no error in overruling this motion for a continuance. It was based upon an affidavit setting forth that one Gregg, a surveyor and civil engineer, was a material witness and was absent from the State. The affidavit stated that Gregg had made a survey, and taken a series of levels and measurements, at the place where the crime is alleged to have been committed, a few days after the shooting took place, and that, from the survey and measurements thus made by Gregg, he would swear that the bullet could not have struck Gravelot in the manner stated by the latter in his testimony. The affidavit does not clearly show, that the survey and measurements, which the absent witness had made, could not be re-made by another surveyor or competent man. It is not claimed that Gregg was personally present, or knew anything about the facts of the difficulty. Again, the affidavit does not show diligence in the issuance of a subpoena for the witness. The subpoena was only issued a few days before the commencement of the trial, whereas more than four months elapsed between the return of the indictment and the time of the trial. Nor does the affidavit show in what the defense of plaintiff in error

consisted. But the main objection to the affidavit is its failure to show the materiality of the evidence of the absent witness. On the contrary, the affidavit shows that the evidence of the absent witness would not be material. This is an indictment for an assault with intent to commit murder. The alleged object of the testimony of the absent witness was to show that the bullet, discharged from the pistol by plaintiff in error, could not have struck the head of Gravelot. If a person fires a revolver at or towards another either with malice prepense, or with a total disregard of human life, he may be convicted of an assault with intent to kill and murder the person so attacked; and, in such case, it makes no difference whether such person was struck by the shot or not. (Conn v. People, 116 Ill. 458). If, therefore, plaintiff in error made the assault upon Gravelot with intent to commit murder, it was immaterial whether Gravelot was struck by the bullet discharged from the pistol or not.

Third-The third error assigned by the plaintiff in error is the refusal of the court to permit the prosecuting witness, Gravelot, to answer certain questions proposed to him upon his cross-examination by counsel for the plaintiff in error. Some of these questions were as

follows:

"Did you hear anything said, which would indicate to you, or did indicate to you, the feelings of those people surrounding Mr. David there, towards him?"

"You knew that, some short time before that, a mob of men had taken him from his home in the night time, and had maltreated him, did you not?"

"Do you know, do you have any personal knowledge as to what transpired at the time of this white-capping affair?"

"Do you know whether Mr. W. A. Schafer was a member of that gang?"

"Do you know whether Mr. David, from anything that was said before this trouble, *had any suspicion

*

or belief as to whether Mr. Schafer, who testified here yesterday, was a member of that mob?"

Each of these questions was objected to by counsel for the State, and the objection was sustained, and exception was taken by counsel for plaintiff in error. We are inclined to think that the trial court erred in sustaining the objections to these questions.

It is apparent from this record, that there was a strong feeling of animosity in the village of Chebanse against the plaintiff in error. About a year prior to this difficulty with Gravelot, certain persons had come to the farm of plaintiff in error and committed an assault upon him, spoken of by the witnesses as the "white-capping affair," and which is referred to more at length in the statement preceding this opinion. The difficulty, which led to this previous assault upon the plaintiff in error, had relation to a separation which had taken place between himself and his wife. The account, which Gravelot held against plaintiff in error, was made up of charges against him on account of goods purchased from Gravelot by his wife. Disputes had taken place between Gravelot and plaintiff in error in regard to this account several times during the course of a period, extending over more than a year prior to the difficulty of August 16, 1900.

Plaintiff in error, as is shown by the evidence, believed that some of the men, who attacked him on August 16, 1900, at the time he drew the pistol on Gravelot, were among those who had mobbed him previously in May, 1899. He swears that he recognized W. A. Schafer as one of the men, who were members of that mob in May, 1899. He also swears that Gravelot was there, and that Eyerley was there, and he declines to say whether Maas was there or not.

It is quite manifest that, among the persons who appeared upon the scene at the time of the difficulty with Gravelot on August 16, 1900, there were either some who had in the year previous been engaged in mobbing plain

tiff in error, or some who sympathized with the attack, which had been made upon him by that mob. In view of this fact, the first question of those above quoted was properly addressed to the prosecuting witness, Gravelot, and he should have been allowed to answer it.

The actions of the people, surrounding plaintiff in error at the time of his difficulty with Gravelot on August 16, 1900, and the declarations made by them at that time, were a part of the res gesta. Whenever it becomes important to show, upon the trial of a cause, the occurrence of any fact or event, it is competent and proper also to show any accompanying act, declaration or exclamation which relates to, or is explanatory of, such fact or event. Such acts, declarations or exclamations are known to the law as res gestæ. (Lander v. People, 104 Ill. 248).

“Declarations, to be a part of the res gestæ, are not required to be precisely concurrent in point of time with the principal fact if they spring out of the principal transaction, if they tend to explain it, are voluntary and spontaneous, and are made at a time so near it, as to preclude the idea of deliberate design; then they are to be regarded as contemporaneous, and are admissible." (People v. Vernon, 35 Cal. 49, and authorities there cited).

In Brennan v. People, 15 Ill. 511, the prosecution was permitted to ask one of the witnesses if he saw "any indication of a difference of opinion or purpose among the persons composing the crowd who rushed to the barn;" and we said in regard to this question (p. 515): "The question propounded to the witness was proper. It called for facts, and not for the opinions of the witness. It appeared from the evidence, that Story was followed by a crowd, and killed. It was important to show with what intent the crowd pursued him. This was clearly a part of the res gesta. It was competent to ascertain this intention by interrogating witnesses, who observed the operations of the crowd, whether they discovered any difference of purpose among those composing it."

Moreover, if an answer to the question had developed the fact, that the feelings of the people surrounding the plaintiff in error were hostile, such testimony would tend to show the apprehension of harm entertained by the plaintiff in error at the time of the difficulty.

Again, the witness Gravelot was the prosecuting witness, and a trial court should not prohibit a full crossexamination of a prosecuting witness. It is competent to show, on the cross-examination of such a witness, that he entertained feelings of ill-will and hostility towards the accused. (Tracy v. People, 97 Ill. 101). On the trial for an assault with intent to commit murder, the broadest latitude should be allowed to the defendant in the crossexamination of witnesses, who are active partisans in the difficulty leading to the assault, and who are hostile in their feelings against the defendant. (Sutton v. People, 119 Ill. 250).

In reference to the questions addressed to the witness about the "white-capping affair" and the maltreatment of the defendant in the night time in May, 1899, by a mob of men, it is to be observed that the witness, Gravelot, had referred to this "white-capping affair" in his direct examination by the People. Upon his direct examination, Gravelot said that, while he and plaintiff in error were in the store and before they went out upon the street, plaintiff in error said: "He would fix those fellows that white-capped him yet; that he had not dropped that matter." Gravelot testified that he "knew what he meant when he referred to white-caps." In view of the fact, that Gravelot had thus referred to this "white-capping" affair in his direct examination, it was surely proper and allowable for the defense to go into the matter fully, so that the jury might see whether, from the surroundings, the plaintiff in error had reasonable ground to fear that he might be killed, or that great bodily harm might be inflicted upon him, either by the prosecuting witness, or by any of the persons there present.