It is first contended by plaintiffs in error that the evidence does not establish their guilt beyond a reasonable doubt. They contend that the fact that the jury acquitted Benson when the evidence pointed more strongly to his guilt than to theirs shows that the jury did not give the evidence in the case the careful consideration which the law requires. We are unable to understand how the jury made the distinction, unless they thought that Benson was being used by plaintiffs in error to help them in their scheme to dispose of stolen cars. Regardless of why the jury permitted one of the guilty parties to escape, their failure to convict him is no reason for granting his accomplices a new trial. No attempt was made to explain any of the circumstances which, in the absence of explanation, inevitably lead to the conclusion that they were guilty of the crime of which they were convicted.

It is next urged that the court erred in permitting a police officer to testify that Paltz picked out the instrument board and running-board as his property and took them away with him. Paltz testified that he found parts of his car at detective headquarters, and the testimony of the officer only tended to identify the property claimed by Paltz as the property found by the officers in the barn. There was no error in receiving this testimony.

It is also contended that it was error to permit the officer to testify that the key found on the person of John Mirabella fitted the lock on the barn where the car was found. We think this evidence was clearly competent against both plaintiffs in error because it was shown that they were acting together in dealing in automobiles. The weight of this testimony was for the jury. It was also competent for the court to admit testimony of what was found in this barn.

It is further contended that the court should not have permitted the witnesses to testify that the pieces of paper taken from the coat pocket of John Mirabella, pieced together, constituted the note signed by Abrahamson, on the

ground that it was not the best evidence. The officer who took the note from the prisoner stated that it had been lost and that he was not able to produce it. We think the evidence was properly admitted.

It is further contended that the court erred in giving to the jury an instruction which stated in part: "The jury are instructed that from anything the court has said or done in this case you are not to understand that he has any opinion upon the facts of the case. It is the duty of the jury to find and determine the facts of this case from the evidence, and, having done so, to apply to such facts the law as stated in these instructions. The court further instructs the jury that these instructions are given and should be considered together as one entire series, and each instruction should be considered in connection with all other instructions bearing upon the same subject."

The instruction went on to caution the jury against considering any argument not based on the evidence or any offered evidence denied or stricken out by the court. The objection to the instruction is that it is against the plain language of the statute, which provides that the jury shall be the judges of the law as well as the facts. While the instruction is inartificially drawn, we see no error in giving it. (Davison v. People, 90 Ill. 221; People v. Campbell, 234 id. 391.) The purpose of the instruction was to caution the jury to consider only those matters properly before it. If plaintiffs in error desired that the jurors be further instructed on their right to ignore the court's instructions they should have submitted such an instruction.

Complaint is also made of the People's third instruction, which told the jury "that possession of stolen property, the proceeds of a larceny, soon after the commission of the offense, unless explained, is prima facie evidence of the guilt of the person in whose possession the property is found." This instruction is not applicable to the offense of receiving stolen property, for which plaintiffs in error were con

victed, and it should have been limited to the larceny count in the indictment. (State v. Bulla, 89 Mo. 595; State v. Richmond, 186 id. 71.) Notwithstanding the error in failing to limit this instruction to the larceny count, we are convinced that there is abundant evidence in the record to justify the conviction of plaintiffs in error of the offense charged in either count of the indictment and that the jury could not reasonably have returned any other verdict than one of guilty. Taking this view of the record, we hold that the omission was not reversible error.

We have examined all of the errors urged for a reversal of this conviction. The evidence standing in the record undisputed clearly justified the verdict. Plaintiffs in error have had a fair trial conducted without substantial error. The weight of the evidence was for the jury, and we find that the evidence clearly justified their verdict. The judgment of the criminal court is affirmed. Judgment affirmed.

(No. 13330.-Reversed and remanded.)

GLEN H. MCBRIDE et al. Appellees, vs. CECIL CLEMONS et al. Appellants.

Opinion filed June 16, 1920-Rehearing denied October 8, 1920.

WILLS-when future interests of grandchildren are indestructible. A devise of all the testator's property to his wife for her life and "at her death to be divided, share and share alike," among his five named children, "or their descendants in case of the death of any of the above five named children before the death of" the wife, "in which case the children of each heir are to receive only their parent's share," is a devise of vested remainders to the children subject to an executory devise over in the event any of them die before the death of the life tenant, and the future interests of the grandchildren are indestructible. (Lachenmyer v. Gehlbach, 266 Ill. 11, followed.)

APPEAL from the Circuit Court of Piatt county; the Hon. FRANKLIN H. BOGGS, Judge, presiding.

CARL S. REED, guardian ad litem, for appellants.

HERRICK & HERRICK, and LEONARD W. INGHAM, for appellees.

Mr. JUSTICE FARMER delivered the opinion of the court: Appellees, Glen H. McBride and his wife, Lea, filed their bill in chancery in the circuit court of Piatt county for partition of real estate therein described. A decree for partition as prayed was granted, and the minor defendants to the bill, by their guardian ad litem, have appealed to this court.

The land sought to be partitioned belonged to David T. McBride in his lifetime. He died testate August 13, 1918, and his will was duly admitted to probate, and the correctness of the decree for partition depends upon the construction to be given the second paragraph of the will.

The testator left surviving him his widow, Laura E. McBride, and five adult children, Jesse H. McBride, Bert W. McBride, Olive V. Clemons, Hattie A. Bartison and Glen H. McBride, his only heirs-at-law. The will was executed the day before testator's death, and the second paragraph is as follows:

"Second-After the payment of such funeral expenses and debts, I give, devise and bequeath all my property, both real and personal, of which I may be possessed at the time of my death, to my beloved wife, Laura E. McBride, for her use during her natural lifetime and at her death to be divided, share and share alike, among my five children, Jesse H. McBride, Bert W. McBride, Glen H. McBride, Olive V. Clemons and Hattie A. Bartison, or their descendants in case of the death of any of the above five named children before the death of Laura E. McBride, my wife, and in which case the children of each heir are to receive only their parent's share."

The bill for partition alleged the five children of the testator took by the will title to the real estate in fee simple but that a question had arisen as to the character of their estate and whether their interest was contingent upon their surviving the widow; that on August 6, 1919, the widow and the five children of testator, with their respective husbands and wives, had joined in a conveyance of the premises by warranty deed to J. B. Rinehart; that thereafter, on the next day, the widow and the five children made another warranty deed conveying the premises to the same grantee, in which it was stated that it was the intention of the grantors to convey the reversion in fee to the grantee and that the particular estate owned by him. should merge with the reversion in fee thereby conveyed and be prematurely destroyed and he be vested at once with the fee simple title in possession and all contingent interests of any kind or character be thereby destroyed. August 7, 1919, Rinehart and his wife conveyed the same land by quit-claim deed to appellee Glen H. McBride, who conveyed the undivided four-fifths thereof to his brothers and sisters and then filed his bill for partition. All of the five children of the testator at the time of his death were married and all had one or more children except Glen, who has no child or children, and all of said grandchildren of the testator were with their parents made defendants. The grandchildren were all minors except one. None of the defendants answered the bill except the minor defendants, who answered by their guardian ad litem, and set up the claim that the devise to testator's five children was of a fee, subject to the life estate of the widow, determinable, however, upon the death of such children prior to the death of the widow, in which event the share of a deceased child would go to his or her descendants under the will. The answer alleged the interest of the minors under the will was indestructible and was not affected by the deeds mentioned. The cause was referred to the master in chancery