well as the other question above raised, was considered in People v. Munday, 280 Ill. 32, 117 N. E. 286, and such evidence was there held to be admissible. What is there said is conclusive of the question here. [3] It is further insisted it was error to permit proof to be made of the value of the assets from what they sold for in the regular course of the bankruptcy proceedings by those who conducted such proceedings, as those persons were not shown to have the knowledge as to the value of such property necessary to qualify them as witnesses. It was shown by certified copies of the bankruptcy proceedings of H. B. Hurd, who owed plaintiffs in error upwards of $80,000 that he became a voluntary bankrupt March 10, 1913, and that nothing was realized from his estate; by the trustee in bankruptcy of G. W. Greiner a relative of one of the plaintiffs in error, who owed upwards of $30,000, that his estate would not pay to exceed 10 per cent.; and by the attorneys for the trustee for plaintiffs in error and the referee in bankruptcy that many of the other assets of the bank, such as the indebtedness of plaintiff in error Hartenbower of over $112,000, D. H. Craig of $15,000, the J. C. Lambert Company of upwards of $48,000 and the Lowell Pottery Company of upwards of $68,000, were either entirely worthless or practically so. In fact, of scheduled assets totaling $551,648.55 more than $500,000 were practically worthless, and out of the vast amount of alleged "good assets," but about $42,751.39 were salable or had a market val ue. The property is shown to have been sold in the regular course of such bankruptcy proceedings and at a comparatively short time after plaintiffs in error were adjudged bankrupts, and it is inconceivable that marketable assets having anything like their face value could have shrunk that much in such a comparatively short time. As a matter of fact, a large portion of the assets was shown to have no market value and to be unsalable. Under the circumstances we think it was competent for the jury to have this evidence, in connection with the other evidence in the record, in determining the value of the property. This evidence was also proper for the purpose of showing that the deposit of Phelps was lost to him. [4] As to the competency of the testimony of the attorneys for the receiver and the referee in bankruptcy, they were each connected with the proper administration of the bankrupt estate, and by reason of such connection with the estate and from the books and papers of the bank they possessed special knowledge as to the contents of such books and papers and of the nature and condition of the assets of the bankrupt estate. The same may also be said of the testimony of the expert accountant, Le Clear, who had made an extensive examination of the books of plaintiffs in error and testified as to summaries made by him from such books. In many instances the books showed that the interest was not collected from many of the heaviest borrowers as their indebtedness matured, but was added to new notes given from time to time for such indebtedness, and that this practice went on from year to year, apparently without any effort on the part of plaintiffs in error to realize on such accounts, which they must have known were fully as worthless as they subsequently turned out to be. Where witnesses are familiar with the books, papers, and assets of the estate, and are possessed of special knowledge from such examination of the books, papers, and assets, they are competent witnesses as to such matters. Chicago & Western Indiana Railroad Co. v. Heidenreich, 254 Ill. 231, 98 N. E. 567, Ann. Cas. 1913C, 266; People v. Gerold, 265 Ill. 448, 107 N. E 165, Ann. Cas. 1916A, 636; People v. Munday, supra. There was no error in the admission of this evidence. It is further insisted it was error to permit special counsel to assist the state's attorney in the prosecution of plaintiffs in error and also error to overrule the motion of plaintiffs in error to quash the indictment, for the reason it appears that said special counsel, Lee O'Neil Browne, appeared before the grand jury in connection with the state's attorney, and assisted him in the examination of witnesses before that body in relation to the matters on which the indictment against them was returned. [5] As to the first contention, the power of the court to permit special counsel employed by private interests to assist the state's attorney in the prosecution of the accused has frequently been passed upon by this court, and in each instance the right of the court to do so has been sustained. Hayner v. People, 213 Ill. 142, 72 N. E. 792; People v. Blevins, 251 Ill. 381, 96 N. E. 214, Ann. Cas. 1912C, 451; People v. Gray, 251 Ill. 431, 96 N. E. 268; People v. Donaldson, 255 Ill. 19, 99 N. E. 62, Ann. Cas. 1913D, 90; People v. Strosnider, 264 Ill. 434, 106 N. E. 229; People v. Gerold, supra. In Hayner v. People, supra, it was held the act of May 15, 1903 (Hurd's Stat. 1917, c. 14, § 6a), which provides that the state's attorney shall not receive any fee or reward for any service within his official duties, and shall not be retained or employed, except for the public, in any civil case depending on the same state of facts on which a criminal prosecution depends, did not abridge this power of th court. We find nothing in this case that takes it out of the general rule above announced. [6] As to the second proposition, that is the principal ground urged for reversal of the judgment. The evidence with respect to this matter shows that Browne was employed by the trustee in bankruptcy to represent him in the examination of witnesses at the creditors' meeting before the referee in bankruptcy, held for the purpose of examining the bank grand jury at the same time. In the Latham Case a clerk in the district attorney's office appeared before the grand jury and took shorthand notes of the testimony. The indictment was returned in a federal court, and the practice in such matters is largely regulated by statute. The decision in that case is based largely on statutory grounds, and is neutralized by Wilson v. United States, 229 Fed. 344, 143 C. C. A. 464, where directly the opposite conclusion was reached on substantially the same state of facts. In the Viers Case the statute of Oklahoma provided that the county attorney may ap pear before the grand jury for the purpose of giving information or advice, and may interrogate any witness before them whenever he thinks it necessary, but that no other person shall be permitted to be present during their session except the members and the witnesses actually under examination. The decision in that case, quashing the indictment because a special assistant county attorney appeared before the grand jury and performed the duties of the county attorney was based upon the provisions of such statute. rupts and other witnesses with a view of dis- | mother were permitted to appear before the covering assets. In connection with this matter Browne made an examination of the books, papers, securities, and assets of the bank, and participated in the examination of plaintiffs in error and others before the referee in bankruptcy. In that way he be came familiar with the matter of the various transactions out of which plaintiffs in error's insolvency arose, the extent of their liabilities and assets, and matters of that character. After this hearing was concluded, and Browne had been paid in full for his services by the trustee, he was consulted by a number of creditors of the bank with a view of instituting criminal proceedings against the plaintiffs in error. Browne consulted with the state's attorney about the matter, and when the grand jury convened for the June term of the circuit court of La Salle county he was requested by the state's attorney, and also by the foreman of the grand jury, to appear before that body and assist in the examination of such witnesses as might appear before it in relation to such matter. Pursuant to such request Browne, in connection with the state's attorney and at his suggestion and under his direction, appeared before the grand jury and examined the witnesses who appeared before that body in connection with the charges preferred against plaintiffs in error. In this respect he acted as assistant to the state's attorney without being duly and regularly appointed to that position. It is not claimed that Browne was present in the grand jury room at any time when the grand jury were deliberating on the case or discussing any matters pertaining to it, or when they voted to return indictments against plaintiffs in error, nor is it claimed that he in any way tried to influence that body in their deliberations or urged them to return indictments against plaintiffs in error, or that he did anything more than interrogate such witnesses as appeared before that body under the personal direction of the state's attorney.ed States, L. R. A. 1916D, 1118; State v. In fact, the evidence clearly refutes any other conclusion. Notwithstanding the proof of the commission of the crime is clear and the guilt of the plaintiffs in error certain, it is insisted the judgment must be reversed because of the appearance of Browne before the grand jury. The cases mostly relied upon to sustain this contention are People v. Arnold, 248 Ill. 169, 93 N. E. 786; Viers v. State, 10 Okl. Cr. 28, 134 Pac. 80; Latham v. United States, 226 Fed. 420, 141 C. C. A. 250, L. R. A. 1916D, 1118; United States v. Heinze (C. C.) 177 Fed. 770; United States v. Edgerton (D. C.) 80 Fed. 374; State v. Salmon, 216 Mo. 466, 115 S. W. 1106; Wilson v. State, 70 Miss. 595, 13 South. 225, 35 Am. St. Rep. 664. In the Arnold Case we held it was not ground for quashing the indictment that the prosecutrix in an action for rape and her father and 119 N.E.-39 The above decisions, while they contain a very interesting and instructive discussion of the question under consideration, are not controlling here. In this state we have no statute prescribing who may appear before the grand jury and interrogate such witnesses as may appear before that body. The current of authority in other jurisdictions where no statutory regulations prevail, as well as the best-reasoned cases, clearly supports the view that the appearance of an unauthorized person before the grand jury, where he is not present during their deliberations and does not attempt to influence their action, will not invalidate the proceedings unless prejudice is shown. In this connection see note to Hartgraves v. State, 33 L R. A. (N. S.) 568; note to Latham v. Unit Brewster, 70 Vt. 341, 40 Atl. 1037, 42 L. R. 242 Ill. 284, 89 N. E. 1012; State v. Tyler, I was submitted to or incompetent witnesses 122 Iowa, 125, 97 N. W. 983. It has ever been the policy of this state that no indictment should be quashed or judgment set aside, on motion in arrest of judgment, for mere matters of form in the indictment or for other irregularities in the proceedings which do not affect the merits of the offense charged. Section 9 of division 11 of the Criminal Code provides: "All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment. No indictment shall be quashed for want of the words, 'with force and arms,' or of the occupation or place of residence of the accused, nor by reason of the disqualification of any grand juror." called before the grand jury, unless all of the evidence submitted or all of the witnesses who testified were clearly incompetent. People v. Bladek, supra; People v. Duncan, 261 Ill. 339, 103 N. E. 1043. The courts in other states where this question has been raised have refused to avoid indictments on this ground. Thus, in State v. Justus, supra, the court refused to set aside a judgment of conviction and quash the indictment because a person not authorized by law was present before the grand jury, at the request of the district attorney, and assisted in the examination of witnesses and in framing the indictment. It was there said: "At most, it is but an irregularity, but of that character which does not bring into question the qualifications of the grand jurors or their fairness toward the accused. Nor is it claimed that any injustice or wrong was done to the the trial. Upon authority it is clear the obprisoner by reason of this alleged error at jection cannot prevail." which will sustain this view. Upon a review of the cases we are satisfied that both the better reason and weight of authorities support the conclusion we have reached, and that the court did not err in refusing to quash the indictment. The language of this section is very broad, and the words "for any matter not affecting the real merits of the offense charged in the indictment" may well be held to apply to irregularities in the proceedings before the The same may be said of this case. To the grand jury which do not go to the merits of same effect is Blevins v. State, supra, where the offense charged and are not shown to it was held that the appearance of an attorhave operated to the prejudice of the accus- ney before the grand jury at the request of ed. Thus we held in Arnold v. People, supra, the state's solicitor, without permission of that the appearance of the father and moth- the court, and who participated in the exer with the prosecutrix before the grand jury amination of the witnesses, did not avoid the on an indictment for rape would not avoid indictment, it not appearing that he counselthe indictment. In People v. Nall, supra, we ed the finding of a true bill against the acheld that the appearance of a special attor-cused or expressed an opinion favorable to ney for the state before the grand jury its finding. Other cases are cited above would not invalidate an indictment. In People v. Bladek, 259 Ill. 69, 102 N. E. 243, we held that an indictment would not be quashed where it appeared the wife of the accused was called before the grand jury and compelled to testify against her husband, where the indictment showed other witnesses were before the grand jury, although the practice of calling the wife was highly improper, and would constitute reversible error if the indictment showed that it had been returned on her evidence alone. While the precise point involved in this case was not before the court in those cases, the matters involved in the decisions and the conclusions there reached clearly demonstrate that it is not the policy of this state that indictments shall be quashed or judgments set aside, on motion in arrest of judgment, for mere irregularities or informalities in the proceedings by which the charge was preferred, that do not go to the merits of the offense charged and operate to the prejudice of the accused. If the submission of highly incompetent evidence to the grand jury by the state's attorney will not invalidate an indictment, the submission of competent evidence under the examination of a special attorney acting under the direction of the state's attorney ought not to do so. The danger of prejudice to the rights of the accused is much more likely to occur in the former than in the latter case. We have uniformly held that an indictment will not be quashed because incompetent evidence [7] What we have just said also disposes of the further contention that the indictment should have been quashed because it appears that a transcript of the testimony of the plaintiffs in error given at the creditors' hearing was before the grand jury. While the record fails to show that this testimony was read to the grand jury or in any manner considered by them, it would not invali. date the indictment if it had been, the indictment showing that other witnesses were before that body on whose testimony such an indictment might have been returned. People v. Bladek, supra. [8] It is also insisted that reference was made in the opening statement for the prosecution concerning matters which the evidence introduced failed to justify, and that the court erred in not requiring the people to elect upon which counts they would rely before the conclusion of the taking of evidence. As to the first point made the record does not bear out the contention, while as to the latter, it is one resting largely in the sound discretion of the court, and will not be reviewed except in a clear case of abuse. Schintz v. People, 178 Ill. 320, 52 N. E. 903. [9] As to the other points urged, they have been considered, but we do not deem them of sufficient importance to require a discussion. While there is some evidence in the record the competency of which is doubtful, it was of such a character that it could not have affected the result, and when the character of the defense interposed is taken account of and the difficulty attending the proving of many of the matters in issue is considered, it is not surprising that some evidence of questionable competency should have been admitted. Scarcely a case of any importance is ever tried in which this does not occur. No question is raised as to the instructions. [10] On a careful review of the record we are satisfied the case was fairly and impartially tried, and the guilt of plaintiffs in error established beyond all reasonable doubt by the most clear and satisfactory evidence. The judgment of the Appellate Court is right and will be affirmed. Judgment affirmed. ed according to law, is the only one who ought to appear in the grand jury room to assist in the work of that body. Hurd's Stat. 1917, c. 14, § 5, p. 121. Such an officer is acting in a quasi judicial capacity, representing public justice, and should stand indifferent as between the accused and any private interest. People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann. Cas. 1916A, 636. He may be present to give advice, to question the witnesses, to draw such bills as the jurors are prepared to find, and to give such general instructions as to the law as occasion may require, but he must not attempt to influence or direct the actions of the grand jury in respect to their findings, nor be present when they are deliberating on the evidence, or when their vote is taken. Gitchell v. People, 146 Ill. 175, 33 N. E. 757, 37 Am. St. Rep. 147. Except as authorized by law, he should not delegate the functions or responsibilities of his office to any other person. McGarrah v. State, 10 Okl. Cr. 21, 133 Pac. 260. In this state the number of assistants to CARTER, C. J. (specially concurring). I the state's attorney must be determined by agree with the final conclusion of the opin- the county board, and then they can be le ion in this cause, but not with all that is gally appointed by the state's attorney. The said, and the way it is said, with reference county board of La Salle county, where this to Attorney Browne acting as attorney for indictment was voted by the grand jury, had the state before the grand jury. That body theretofore authorized the state's attorney of is organized for the purpose of protecting that county to appoint one assistant. This citizens against unfounded accusations. The assistant had been appointed and was acting theory of the organization of the grand jury as such at the time this indictment was votis that it is the best method by which per- ed. Apparently, however, such assistant had sons accused of public offenses may be nothing to do with this investigation before brought to trial and yet not be put to the the grand jury. If the state's attorney for expense and notoriety of a public trial un- any reason needs special assistants other less the accusation is based upon something than those authorized to be appointed, under more than a mere suspicion. The general the statute, by the authority of the county rule is that no person shall be required to board, the court has the power to appoint a answer for any of the higher crimes unless a special assistant. Lavin v. Cook County grand jury, consisting of not less than 16 nor Commissioners, 245 Ill. 496, 92 N. E. 291. more than 23 men selected from the body of Attorney Browne's appointment was neither the district, shall declare, after careful de- authorized by the county board, nor sancliberation under the solemnity of an oath, tioned, directly or indirectly, by the trial that there is good reason for the accusation court. He took no oath of office. It appears and trial. Charge to Grand Jury, 2 Sawy. that the foreman of the grand jury specially *667, Fed. Cas. No. 18,255. Neither the ac- requested that Browne be allowed to appear cused nor the accuser should be permitted to before that body and assist in the investigabe represented personally by counsel before tion. It also appears that Browne had been the grand jury. In re Gardiner, 31 Misc. employed by some of the creditors of this Rep. 364, 64 N. Y. Supp. 760. There should bank, prior to the grand jury investigation, not only be no improper influence in the to examine into the civil liability of the bank grand jury room, but in the investigation be- and its officials, and by this private employfore that body there should be no opportu- ment had become familiar with the business nity for, such improper influence to be ex- of the bank. Perhaps partly because of his ercised. Lewis v. Commissioners, 74 N. C. knowledge thus obtained, some of the cred194. In some states it is held that the mere itors desired him to assist in the criminal inpresence of a stenographer in the grand jury vestigation, and suggested to the state's atroom for the purpose of taking shorthand torney his employment for that purpose. Benotes, or the presence of a witness who is fore he accepted such employment Browne not testifying at the time while another wit- consulted with State's Attorney Wiley, of La ness is testifying, is reversible error. State Salle county, and, apparently with the sanev. Salmon, 216 Mo. 466, 115 S. W. 1106. The tion of the state's attorney, took charge of state's attorney of the proper county in this such investigation before the grand jury. state is the legal assistant of the grand jury, It is manifest from the record before us and he, or his representative properly select-that Browne practically controlled the entire no present estate shall pass to the trustee, is REMAINDER TO LIVING A deed in trust for grantor for life, with death among grantor's grandchildren living at direction to divide the property on the son's the son's death, is not void because not naming the remaindermen. 4. DEEDS 132-REMAINDERMEN -GRAND investigation and took entire charge of the, erate as a testamentary disposition, and that presentation of the evidence before the grand jury. Neither the foreman of the grand jury, nor the grand jury itself, nor the trial judge, nor the state's attorney, had any right to turn this investigation before the grand jury over to the creditors of the insolvent bank. While it is true that it is proper and legitimate for counsel to be employed to assist the state's attorney in open court in the prosecution of a criminal charge and the accused can there be represented by counsel, and everything is done in open court, yet even in the trial of a case in open court the state's attorney should control the prosecution. It seems to me highly improper for counsel employed by private parties to prosecute a case to go into a grand jury room, where the accused cannot be heard and has no one representing him. The investigation before the grand jury should be performed only by counsel who have been chosen, as required by law, to represent the public interests. Hartgraves v. State, 5 Okl. Cr. 273, 114 Pac. 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180; Wilson v. State, 70 Miss. 595, 13 South. 225, 35 Am. St. Rep. 664. To hold otherwise as a rule of law might subject innocent persons to vindictive persecution. No matter how honest and efficient the services of Attorney Browne may have been, his full knowledge of the case did not justify his substitution for the regular public official in the investigation before the grand jury. United States v. Rosenthal (C. C.) 121 Fed. 862. As stated in the opinion, objections which go to the mere form of the indictment on a writ of error should not be sustained for any matter not affecting the real merits of the offense charged in the indictment. If there were the slightest doubt of the clear guilt of each of the plaintiffs in error in this case, this judgment ought not to stand because of the error committed in permitting Browne to take control of the prosecution before the grand jury and on the trial of the case. The practice followed in the investigation of this case in permitting private counsel to control, in effect, the investigation before the grand jury is not consonant with justice or the principles of personal liberty, and should be strongly condemned. (283 111. 649) YOUNG et al. v. PAYNE et al. (No. 11887.) (Supreme Court of Illinois. April 17, 1918. Rehearing Denied June 6, 1918.) 1. WILLS 88(1)-TESTAMENTARY CHARACTER OF DEED. Statement in a deed that it is made in lieu of a will does not make an otherwise valid deed void as a testamentary disposition of property. 2. WILLS 88(3)-TESTAMENTARY CHARACTER OF DEED. Intent that a deed to one in trust for the grantor's son for life, and to divide the property among others on the son's death, shall op CHILDREN. and sole devisee of a son are remaindermen Neither great-grandchildren nor the widow under a deed in trust for a son of grantor for life, with remainder to grantor's grandchildren living at death of such son. Appeal from Circuit Court, McLean County; Sain Welty, Judge. Suit for partition between J. Warren Young and others and Belle Payne and others. From a decree for the former parties, the latter appeal. Affirmed. Jesse E. Hoffman, of Bloomington, for appellants. W. B. Leach and Barry & Morrissey, all of Bloomington, for appellees. CRAIG, J. This is an appeal from a decree of the circuit court of McLean county ordering partition of a tract of land embrac ing about 100 acres, situated in sections 14 and 15, in township 23 north, range 2 east, in that county. The sole question presented is as to the proper construction of the deed by which James B. Price conveyed the land to George W. Price as trustee, and to his successors in trust, for the benefit of Charles Luther Price, and upon his death to the grandchildren of the grantor living at the time of the death of Charles. The deed is dated December 12, 1877, and appears to have been duly executed, acknowledged and delivered. The material parts of the deed are as follows: "This indenture witnesseth, that the grantor, James B. Price, of the county of McLean and state of Illinois, desiring to make provision for the support and maintenance of his son, Charles Luther Price, after the death of said grantor, and moved by consideration of love and affection for his said son, Charles Luther Price, and of one dollar in hand paid by George W. Price, doth hereby convey and warrant to George W. Price, as trustee, and to his successors in trust, all of the county and state aforesaid, the following described real estate, towit: [Description of real estate, including that in controversy.] "It is intended by this deed to set apart, convey and vest title in said trustee and his successors in trust for the use, benefit and behoof of said Charles Luther Price, all that part of said tract of land which lies east and south of the La Fayette, Bloomington & Mississippi Railway, except the one acre for burial purposes and the three-fourths (34) of an acre deeded absolutely to George W. Price, and the title to the burying ground and the tract lying between the right of way of said L., B. & M. Ry. and the right of way of the I., B. & W. Ry., afore For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |