(192 Ill. 101)

EGGLESTON et al. v. ROYAL TRUST CO. (Supreme Court of Illinois. Oct. 24, 1901.) APPEAL-SUFFICIENCY OF BOND-DISMISSAL WAIVER.

1. Under Prac. Act, § 69, providing that no appeal to the appellate court shall be dismissed by reason of any informality or insufficiency of the appeal bond if appellant shall, within a reasonable time to be fixed by the court, file a good and sufficient bond, to be approved by the court, where appellant attempts to perfect the appeal by filing a bond, which is taken and approved by the circuit court as a proper bond, in compliance with the order allowing the appeal. the appellate court cannot dismiss the appeal on account of the insufficiency of the bond, without giving appellant opportunity to file a proper bond.

2. Objection to the sufficiency of an appeal bond is waived by appellee's joinder in error, and the submission of the cause for decision on the errors assigned.

Error to appellate court, First district.

Action by the Royal Trust Company against Charles B. Eggleston and others. From a judgment of the appellate court dismissing defendants' appeal from an order denying a motion to set aside a judgment obtained against them, defendants bring error. Reversed.

N. M. Jones, for plaintiffs in error. Geo. I. Hicks (Hamline, Scott & Lord and W. L. Gross, of counsel), for defendant in er

ror.

CARTWRIGHT, J. On October 30, 1899, the circuit court of Cook county entered a judgment in favor of defendant in error against plaintiffs in error for $17,587.50. At the same term plaintiffs in error entered their motion in said court to set aside said judgment, which motion was continued to the next term, when it was heard and denied. Plaintiffs in error excepted to the ruling and order of the court, and prayed an appeal to the appellate court for the First district, which was allowed upon filing their appeal bond in the sum of $19,000, to be approved by the court, within 20 days, and their bill of exceptions within 60 days. The appeal was allowed on November 11, 1899, and the appeal bond was approved by the court and filed on November 27, 1899, in pursuance of the order allowing the appeal. The bill of exceptions was filed on December 7, 1899, within the time allowed by the order of the court. A transcript of the record of the circuit court, with an assignment of errors thereon, was regularly filed in the appellate court. Defendant in error appeared as appellee in that court, and joined in error; and the case was submitted to the appellate court for decision upon the errors assigned, and was taken under advisement by the court. Afterwards the appellate court dismissed the appeal on its own motion for want of jurisdiction, on the ground that the appeal bond recited the recovery of the original judgment and an appeal therefrom, instead of an appeal from

the order denying the motion to set aside the judgment. The writ of error in this case was sued out to review the judgment of the appellate court dismissing the appeal.

When an appeal is not within the jurisdiction conferred by statute upon the appellate court, that court can have no authority to hear and determine it, and in such a case, upon discovering its want of jurisdiction of the subject-matter, may dismiss the appeal. Jurisdiction of the subject-matter is given only by law, and cannot be conferred by consent; and, if an appellant has no right to an appeal in a particular case, the court may dismiss the appeal on its own motion. Wright v. People, 92 Ill. 596; Millard v. Board, 116 Ill. 23, 5 N. E. 533; Swift v. People, 160 Ill. 561, 43 N. E. 731; Evans v. Pierce, 163 Ill. 207, 45 N. E. 144; 2 Enc. Pl. & Prac. 336. The appellate court had jurisdiction of the general subject involved in the appeal to that court, and it acquired jurisdiction of the particular action by filing the transcript of the record. It had full jurisdiction to decide the case. A motion to dismiss was the proper remedy for appellants' failure to file the proper bond. The failure to file a bond in compliance with the order is ground for dismissing the appeal upon such motion. Carson v. Merle, 3 Scam. 168. If such a motion is made, the law does not intend that, where a party has in good faith attempted to taken an appeal, his appeal shall be dismissed without giving him an opportunity to file a good and sufficient bond. Section 69 of the practice act provides that no appeal to the appellate court shall be dismissed by reason of any informality or insufficiency of the appeal bond if the party taking such appeal shall, within a reasonable time to be fixed by the court, file a good and sufficient bond, to be approved by the court. In this case there was an attempt to perfect the appeal by filing the bond, and it was taken and approved by the circuit court as a proper bond, in compliance with the order allowing the appeal. The appeal could not be dismissed, on motion, on account of the insufficiency of the bond, without giving the appellants opportunity to file a proper bond. If a motion to dismiss on account of an insufficient bond is made, it must be presented in apt time. Price v. Railroad Co., 40 Ill. 44. In this case it was not made at all, and the judgment of the appellate court in dismissing the appeal was wrong. If there was any objection to the bond, it was waived by the joinder in error of the party for whose benefit the bond was given, and the submission of the cause to the court for decision upon the errors assigned. The conclusion of the appellate court that it was without jurisdiction of the cause was an error.

The judgment of the appellate court dismissing the appeal is reversed, and the cause is remanded to that court, with directions

master in chancery. Starr & C. Ann. St. 1896, p. 2353, c. 77, § 18. The determination of the question whether the interest in the premises which the defendant in error White held by virtue of his deed from Landis was title in fee, or but an interest as mortgagee, and was subject to an equitable right in plaintiff in error to make redemption therefrom, would have justified a resort to a court of chancery for a decree awarding redemption therefrom; but resort to chancery was wholly unnecessary to enable her to redeem from the sale under the foreclosure decree. Such redemption might have been effected through a public officer, -the master in chancery. It does not appear, however, from the face of the bill, that the plaintiff in error was ready and able to redeem from the master's sale at any time during the period of redemption allowed by the statute. On the contrary, it affirmatively appears from the bill that she had not the means to make such redemption, but that, if White had recognized her right to redeem the title or interest he received from Landis, she could have mortgaged the premises, and in that way have obtained the money necessary to enable her to redeem from the master's sale, and also to pay the amount which, as she claimed, the Landis title secured. There is no averment in the bill that her right to redeem from the foreclosure sale was questioned, or that she sought or desired to make such redemption otherwise than in connection with the redemption from the title held by Landis. The certificate of purchase issued to White ripened, under the statute, into an absolute conveyance, and the chancellor correctly held that the averments of the bill were insufficient to warrant a decree granting to the plaintiff in error rights of redemption other or further than those provided in the statute.

The decree is affirmed. Decree affirmed.

(192 1.1

KELLY v. PEOPLE. (Supreme Court of Illinois. Oct. 24, 1901.) CRIME AGAINST NATURE-EVIDENCE-SUFFICIENCY-STATUTORY CRIME-DESCRIPTION-BILL OF PARTICULARS.

1. On an indictment for the crime against nature, conviction may be had on the uncorroborated testimony of a boy between six and seven years of age.

2. The offense in Cr. Code, § 47, making punishable the "infamous crime against nature, either with man or beast," is not merely the common-law crime against nature, but includes other acts of bestiality.

3. Where an indictment charged defendant with the infamous crime against nature with and upon a certain person, he was not entitled to a bill of particulars; such bill being required only where the accused cannot prepare his defense without it.

Error to criminal court, Cook county; John Gibbons, Judge.

C. V. Kelly was convicted of the crime against nature, and brings error. Affirmed.

Jno. E. W. Wayman and Thomas J. Graydon, for plaintiff in error. H. J. Hamlin, Atty. Gen., Charles S. Deneen, State's Atty., and F. L. Barnett, Asst. State's Atty., for the People.

WILKIN, C. J. At the February term, 1901, of the criminal court of Cook county, plaintiff in error was convicted of the "crime against nature." His motions for a new trial and in arrest of judgment were overruled, and he was sentenced to the penitentiary at Joliet. By this writ of error he brings before us for review that record of conviction. Most of the grounds of reversal urged have been decided adversely to the contention of counsel for plaintiff in error in the late case of Honselman v. People, 168 Ill. 172, 48 N. E. 304.

It is first insisted that the evidence of guilt produced upon the trial is insufficient to justify the verdict of the jury. The indictment charged the crime, substantially in the language of the forty-seventh section of the Criminal Code, to have been committed upon and with one Lyle Patterson, averred in the first count to be "a man," and in the second and third "a male person." The proof shows that Lyle Patterson was at the time a boy between six and seven years of age. He was sworn, and testified upon the trial to acts of copulation by the defendant, first by means of his own mouth upon him (the boy), and then by means of the mouth of the boy upon defendant. If the testimony of the boy is to be believed, there can be no doubt but that, under the law as laid down in the Honselman Case, the crime was established. The defendant positively denied the charge and the acts sworn to by the boy. Other witnesses testified upon the trial, but we find nothing in their evidence which can be said to corroborate or contradict that of the prosecuting witness or the defendant as to the criminal acts. In view of the extreme youth of the boy, we have carefully scrutinized his testimony, and endeavored to apply to it all the rules for testing its truthfulness, and have reached the conclusion that there is no sufficient legal reason for discrediting it. motive to falsely accuse the defendant, either on the part of the child or others, can be discovered. His father and other parents who believed their children had been outraged and debauched by similar practices were anxious to discover the guilty party and have him punished, but there is nothing in the evidence from which we can perceive a motive to falsely charge this defendant. In some jurisdictions the uncorroborated testimony of an accomplice is never sufficient to convict one of a crime. But that is not the rule in this state. Besides, consent on the part of the boy in this case cannot be presumed, he being incapable of understanding the nature of the act. He was incapable of committing a crime. We are not unmindful of the fact that the crime is of a class easily charged and difficult to disprove, and that it should

No

therefore be established with clearness; but whether it was established in this case must depend upon whether or not the jury believed the testimony of Lyle Patterson. The court instructed the jury, on behalf of the defendant, "that the credibility of the witnesses is a question exclusively for the jury; that the jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent intelligence or lack of intelligence, their youth, and from all the surrounding circumstances appearing on the trial, which witnesses are to be worthy of credit, and to give credit accordingly." This instruction properly directed the jury as to the tests of credibility. No complaint is made of any of the instructions given on the questions of fact, and they were, to say the least, fair to the defendant. The testimony, then, on behalf of the people being competent and sufficient to justify a verdict of guilty if believed by the jury, and the finding being approved by the presiding judge, it is not for this court to interfere.

Counsel says that, if the crime set out in the forty-seventh section of the Criminal Code is the common-law crime against nature, the evidence does not make out the offense. That is conceded, but we have held that it is not the common-law crime. Honselman v. People, supra. Again, counsel says, "If the offense is a statutory one, and generic, as held in Honselman v. People, then the indictment is fatally defective, or the court erred in overruling defendant's motion for a bill of particulars." The indictment in the Honselman Case is exactly like the one here, and we held it sufficient. We did not say the definition of the crime was "generic," but did hold that, because of the abominable nature of the crime, it was not necessary to set forth in detail the manner in which it was committed, and also that under our Criminal Code, and the repeated decisions of this court, it was sufficient to allege the crime in the language of the statute, or so plainly that its nature might be easily understood by the jury. The manner of committing the offense being too indecent to be set forth in the indictment itself, we are at a loss to perceive how it could be consistently incorporated in a bill of particulars. It is only when it is made to appear that the defendant cannot properly prepare his defense without a bill of particulars that the court will require the prosecuting attorney to furnish it. In this case the indictment informed the defendant that he was charged with the crime against nature with and upon Lyle Patterson, and that was sufficient. Honselman v. People, supra. In short, we think counsel for plaintiff in error, throughout his argument, disregards the principal grounds upon which the indictment in the Honselman Case was held sufficient; that is, the fact that such a crime cannot be described without shocking the moral sensibilities. Blackstone says, speaking of this crime: "I will not act so disagreeable a part

to my readers, as well as myself, as to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to imitate the delicacy of our English law, which treats it, in its very indictments, as a crime not to be named." Volume 4, p. 215. While he does not say so, the argument of counsel for plaintiff in error inevitably leads to the conclusion that the Honselman Case does not correctly lay down the law, and should be overruled. This we have no disposition to do. We infer from statements in the argument of counsel for the people that a distinction has been attempted to be drawn between cases in which the defendant is charged with using his mouth upon another (which was the Honselman Case), and in which he uses the mouth of the other upon himself, and to maintain that, while he may be guilty in the former case, he cannot be held so in the latter. We find nothing in the argument of counsel for plaintiff in error to that effect. Even if such a distinction could be drawn, it would avail nothing to plaintiff in error in this case, because, as we have seen, the evidence proves both acts. We are, however unable to see upon what reasoning any such distinction can be based.

We find in this record no reversible error. The judgment of the criminal court will be affirmed. Judgment affirmed.

assess

1. Under the statute providing that the judgment of the appellate court is final in all cases in actions ex contractu when the amount involved is less than $1,000, exclusive of costs, the amount involved is the whole amount disposed of by the judgment, and not the amount affected by the error assigned; and therefore a judgment disposing of an insurance policy of $2,000, is not necessarily final, though no beneficiary secured more than $1,000 by the decree. 2. After assured had taken out an ment policy payable to his wife, he exchanged the certificate for one payable one-half to his wife and one-half to his heirs. Subsequently he applied to exchange his policy for a "natural life policy" payable to the same beneficiaries, but by mistake the exchanged policy was payable to the wife alone, and was received and deposited by assured until a short time before his death, when it was taken possession of by his wife with his consent. Held, that evidence of declarations of the assured was admissible to show that he was not aware of the mistake, and had not changed his intentions, though the wife was not present when the declarations were made.

Appeal from appellate court, First district.

Bill by Charles A. Towne and others against Annie Mary Towne to reform a life insurance policy by making one-half payable to complainants. From a judgment of the appellate court (93 Ill. App. 159) affirming a

judgment in complainants' favor, defendant appeals. Affirmed.

Fred H. Atwood, Frank B. Pease, and Charles O. Loucks, for appellant. Muir & Horgan, for appellees.

On

CARTWRIGHT, J. On December 13, 1884, Allan W. Towne obtained a certificate from the Chicago Guaranty Fund Life Society for the sum of $2,000, payable by assessment, at his death, to the appellant, Annie Mary Towne, his wife. On May 12, 1887, said certificate was exchanged by him for another one of the same amount, date, and number, and with the same beneficiary. The first certificate for which the new one was substituted was surrendered, and was marked canceled on said date,-May 12, 1887. On April 12, 1892, the second certificate was exchanged for a third one of the same amount, date, and number, and said second certificate was canceled and marked: "Surrendered for change of beneficiary. 1–12–92.” The purpose of this exchange was to make a change in the beneficiary, and for that purpose Allan W. Towne made a written request, dated April 11, 1892, for the new certificate, with beneficiaries as follows: "Payable to Annie Mary Towne, wife, one-half, and one-half to my heirs equally." Afterwards the society reincorporated, and provided for a change of policies from an assessment to what was called a "natural life policy," and provided for an exchange of old policies for new ones. August 30, 1898, Allan W. Towne, desiring to make such an exchange, signed an application therefor, setting forth that he was the holder of certificate 932 on the post mortem assessment plan, and wanted to exchange it for a natural life policy. The application provided, among other things, that the new policy should be for the same amount and with the same beneficiary or beneficiaries as the original certificate. Towne did not deliver his certificate to the society before the new one was made out. A clerk took the papers relating to the risk of Towne, which were in the possession of the society, and all pasted together, and filled up the new certificate. He did not notice the letter directing the change in the beneficiary, or that such beneficiary had been changed in the original certificate, but followed the first application, and inserted the name of appellant, Annie Mary Towne, as the beneficiary. The clerk mailed the new policy to Towne, with a letter stating that it was inclosed therewith, together with a receipt for the premium, and that he hoped Towne would find the same satisfactory. He added a postscript, as follows: "We inclose stamped addressed envelope, and will ask you to return your original certificate for cancellation." Upon the receipt of the new certificate, Towne mailed the old one to the society, and it was canceled. He placed the new certificate in a box in a

safety deposit vault, where it remained until a short time before his death, when, by his direction, appellant went to the safety deposit vault and got it, and retained it until after his death. Towne died April 11, 1899, leaving appellant, his widow, and the appellees, Charles A. Towne, Alvin G. Towne, and Katie M. Jones, his children and heirs at law. Appellees filed this bill against the society and appellant, praying for a reformation of the certificate so that it might read the same as the one for which it was exchanged, and be payable one-half to appellant and one-half to appellees, equally. The society paid the money into court, and was dismissed from the suit. The court ordered $1,000 paid to Annie Mary Towne and $300 to Katie M. Jones, and on final hearing a decree was entered that the remaining $700 be paid to appellees, as follows: "To Charles A. Towne, $333.33; to Alvin G. Towne, $333.33; and to Katie M. Jones, $33.34." The appellate court affirmed the decree.

No certificate of importance having been granted by the appellate court, appellees have moved to dismiss the appeal on the ground that the amount involved in the suit is less than $1,000. By statute the judgment of the appellate court is final in all cases determined therein in actions ex contractu when the amount involved is less than $1,000, exclusive of costs. The construction given to this statute is that the amount involved is the amount to be disposed of by the judgment or decree of the court, and not the amount affected by the error assigned. In this case the amount brought into court by the society to be disposed of, and which was disposed of, was $2,000. That was the amount involved in the suit in the superior court of Cook county, and this court has jurisdiction of the appeal. Longwith v. Riggs, 123 Ill. 258, 14 N. E. 840; Svanoe v. Jurgens, 144 Ill. 507, 33 N. E. 955; Voigt v. Kersten, 164 Ill. 314, 45 N. E. 543; McVeagh & Co. v. Roysten & Co., 172 Ill. 515, 50 N. E. 153. The motion to dismiss the appeal is denied.

The object of the last exchange of certificate by Towne was to obtain a new policy for a fixed premium, payable yearly or in quarterly installments, on the natural life plan, under the articles of reincorporation adopted January 4, 1895. It was to be for the same amount and with the same beneficiaries as the original certificate for which it was exchanged. There was no other certificate in existence than the one which Towne then held, payable one half to appellant, and the other half to appellees, equally. That certificate had been substituted for previous certificates which had been canceled. The original certificate bore the same date of December 13, 1884, and the same number it had always borne, but had been changed in respect to the beneficiary. The direction that the natural life policy should be for the benefit of the same beneficiaries as the original certificate could only refer to the certifi