inflexible rule that the land owner cannot appeal to it for protection but must wait until the wrong and injury have been accomplished and then seek redress in an action at law? We believe no valid reason exists for the application of the rule in such a case. Unlike a case where the complainant's title is disputed, no possible injury could result to a defendant by enjoining him from doing an act which he had no right to do. We have held that when a municipality attempts to take possession of land to which it has no right, injunction is the proper remedy. (City of Peoria v. Johnston, 56 Ill. 45; Waller v. Village of River Forest, 259 id. 223; Rose v. Village of Elizabethtown, 275 id. 167.) The same rule was applied in Moore v. Gar Creek Drainage District, 266 Ill. 399, in which a bill was filed by a land owner to enjoin the commissioners of a drainage district from digging a ditch and laying a tile drain therein upon and along a public highway over land the fee to which was owned by the complainant. Upon a hearing the bill was dismissed. On appeal this court reversed the decree and remanded the case, with directions to grant the relief prayed. The court said: "Under the state of facts here disclosed appellant was entitled to injunctive relief. Where a municipality undertakes to take possession of a street to which it has no right the proper remedy is injunction. [Citing authorities.] There is no difference, in principle, between a municipality undertaking to take possession of a street to which it has no right, and a drainage district undertaking to take possession of a strip of ground for a ditch to which it has no right." The same rule must apply to a commissioner of highways.

The circuit court erred in dismissing the bill on motion without answer, and the decree is reversed and the cause remanded, with directions to overrule the motion and permit defendant to answer the bill if he shall be so advised. Reversed and remanded, with directions.

(No. 12933.-Reversed and remanded.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. EMIL STEIN KRAUS, Plaintiff in Error.

Opinion filed February 18, 1920.

I. CRIMINAL LAW-a deputy sheriff should not testify that defendant "admitted" certain things. A deputy sheriff who examined the accused before the trial should not be permitted to testify that the accused "admitted" that he did certain things which would implicate him but the officer should state what the defendant said, leaving the court and jury to decide whether or not any admissions or confessions were made.

2. SAME-defendant's statement that he had planned to commit another crime is not admissible. In a murder trial a police officer should not be permitted to testify to a statement by the defendant that he had planned, with others, to commit a robbery not connected with the crime charged; nor is such statement admissible to corroborate part of a conversation which one of said other persons has testified he had with such defendant, who does not testify in his own behalf.

3. SAME-ultimate facts must be alleged and proved. Ultimate facts must be alleged and proved, and the allegations of such facts are the material allegations of an indictment.

4. SAME―an instruction that every “material fact" need not be proved is not accurate. An instruction that it is not necessary that the jury believe that every "material fact" in evidence has been proved beyond a reasonable doubt if they believe that every material allegation in the indictment has been so proved is not accurate in using the words "material fact" instead of "incriminating fact;" but the giving of such instruction is not ground for reversal.

5. SAME-verdict of guilty of murder is sufficient without words "in manner and form as charged in the indictment." A verdict in a murder trial which recites that the jury finds the defendant guilty of murder means that the defendant is found guilty in manner and form as charged in the indictment though such words are not used.

WRIT OF ERROR to the Circuit Court of Randolph county; the Hon. J. F. GILLHAM, Judge, presiding.

JOHN W. TWEED, and JAMES A. McILWAIN, (A. E. CRISLER, of counsel,) for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, ALFRED D. RIESS, State's Attorney, and FLOYD E. BRITTON, for the People.

Mr. JUSTICE DUNCAN delivered the opinion of the court:

Plaintiff in error was indicted in the circuit court of Randolph county for the murder of Otis Welshan. In a trial by jury he was convicted of the charge, and the court, after overruling motions for new trial and in arrest of judgment, sentenced him for a term of forty years in the penitentiary. This writ of error is prosecuted to review that judgment.

The deceased, Otis Welshan, of the age of about sixteen years, Otis Lehnherr, of the same age, Lawrence Wylie, of the age of fifteen years, and plaintiff in error, of the age of about twenty years, were all friends just prior to the killing, living in Sparta, in Randolph county, and frequently met at the Lyle pool hall, located in that city. Plaintiff in error worked at that pool hall. The only testimony in the case tending to connect him with the murder in question was that given by two confessed accomplices, Lawrence Wylie and Otis Lehnherr, aforesaid, and James McGuire, the deputy sheriff of said county. Wylie and Lehnherr were both impeached by a number of citizens and business men of Sparta, who testified that they know the reputation of those boys for truth and veracity, that it is bad, and that they would not believe the testimony of either of them on oath. Both Wylie and Lehnherr, previous to the trial of plaintiff in error, plead guilty to the charge of murdering Welshan and were used by the State as witnesses against Steinkraus. Wylie was sentenced to a term of imprisonment in the penitentiary for twenty-five years and Lehnherr was sentenced to serve an indefinite time in the St. Charles Training School. Lehnherr first testified at the coroner's inquest, held immediately after the crime was

committed. He there admitted his own guilt and implicated Wylie, but positively testified that Steinkraus had nothing to do with the murder.

The substance of the testimony of Wylie on the trial of plaintiff in error is as follows: On the afternoon of July 20, 1918, witness had a conversation with Steinkraus in front of the pool hall, in which Steinkraus asked him how he would like to make a haul "like we talked about before," and "mentioned the McNulty and Braden matters that we had discussed." After supper witness went down to the pool room and met Steinkraus in front of it. Steinkraus told him that he had a date with some girls that night and for him to see Lehnherr and that Lehnherr would tell him the plans made that afternoon; that witness was to meet them between the Mobile depot and Burns' barn and was to keep Welshan out until Steinkraus got away from the girls; that he would get away from the girls as soon as possible. The witness left Steinkraus and went up to Hood's and talked to Hood about getting Welshan's job, as Welshan had quit working for Hood and was going to St. Louis to obtain another job the next day. From Hood's witness went to a drug store, where he met Welshan and talked with him a while. He afterwards met Steinkraus at the Candy Kitchen in that town, he being there with some girls and boys. The rest of the time before the killing witness and Lehnherr went from place to place with Welshan for the purpose of keeping him with them until Steinkraus should meet them, the last place they visited being the Mobile and Ohio depot, where they talked with Somers, the night man. They left there at 11:40 P. M., and witness fixes this time by the fact Somers looked at his watch as they were leaving and said that it was 11:40. From there they walked up the railroad track a short distance and then returned to the Burns barn, where the murder was committed. There Steinkraus came to them, and while they were standing looking over a fence and at a

trough there, Steinkraus walked to the southeast corner of the barn, where he had previously told witness he had placed a piece of iron pipe to use on Welshan, got the pipe and came up behind Welshan and hit him with it. Welshan uttered a loud cry but did not fall, and Steinkraus hit him again, knocking him to the ground. Lehnherr got Welshan's pocket-book out of his pocket and all three then left and went to James street, close by, and then turned south. Shortly afterwards Steinkraus said, "We can't let him get out of here," and all of them went back. They found Welshan on his feet, staggering about, and Steinkraus, while standing in front of him, took hold of him with both hands and said to witness, "I will hold him; get the pipe down at the corner." Witness then got the same iron pipe and struck Welshan over the head with it. Welshan went down, and then he and Steinkraus both beat upon the head of Welshan, Steinkraus kneeling over and hitting Welshan with a stone while witness used the iron pipe. On the body of Welshan they found a pocket-book and a picture of his mother. Steinkraus gave witness and Lehnherr each $10 of Welshan's money and kept the rest for himself, he did not know how much. They left Welshan dead, separated a short distance from there and all went home. Lehnherr's part in the conspiracy to rob Welshan was that he and Steinkraus planned it and Lehnherr was to tell Wylie about the plan. The plan was that Steinkraus would take his gun and make Welshan "hand it over."

Lehnherr, in his testimony at the trial, corroborated Wylie in the main part of his testimony against Steinkraus but denied positively that he got any of the money of Welshan, denied taking the pocket-book off Welshan, and testified positively that he absolutely knew nothing about the murder or holdup, or that there was to be such, until the first time that night they went to the barn. He also testified that they all agreed that night that they would not tell on each other, and gives that as a reason why he did not testify against