We do not think that the court made any erroneous ruling on the introduction of evidence, or in refusing to allow defendant to prove that Specht had filed his claim against the bank in the bankruptcy court for the same funds or money the defendant is alleged to have embezzled. Such evidence had no tendency to contradict the testimony of Specht upon any material point or fact in the case. It was his right to file his claim against the bank and get his money, or what part of it he could, in that manner, as it is absolutely proved that the bank had his money, which was deposited there by his agent for him and for his use.

For the reasons aforesaid the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

(No. 14311-Decree affirmed.)

CALVIN R. MOWER, Appellant, vs. T. G. LEVINGS, Commissioner of Highways, Appellee.

Opinion filed December 22, 1921.

EQUITY-when bill to enjoin threatened trespass by a highway commissioner is properly dismissed. A bill to enjoin a threatened trespass by a commissioner of highways by interfering with fences built or being built by the complainant on property claimed by him to be his own is properly dismissed for want of equity where it alleges as sole ground for relief that the commissioner claims that the property is part of a public highway, as the legal right in such case must be determined by an action at law, and it must appear from the bill that the law will afford no adequate remedy before equity will interfere to prevent a trespass.

APPEAL from the Circuit Court of Winnebago county; the Hon. ROBERT K. WELSH, Judge, presiding.

B. A., W. D. & A. J. KNIGHT, for appellant.

FISHER, NORTH, Welsh & LINSCOTT, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

The circuit court of Winnebago county sustained the demurrer of the appellee, T. G. Levings, commissioner of highways of the town of Rockford, to a bill filed by the appellant, Calvin R. Mower, praying the court to enjoin a threatened trespass upon thirty-three feet in width of lands alleged to be owned by the appellant and claimed by the appellee to constitute a part of a public street named Harrison avenue. The bill was dismissed for want of equity, and this appeal was prosecuted.

It is impossible to determine from the abstract of the record the location of the lands described in the bill or the part or portion claimed as a public street. A plat was annexed to the bill as an exhibit but it is not shown by the abstract. The threatened trespass was by interference with fences built or being built by the complainant, and it was alleged that the fences and situation were shown by photographs annexed to the bill as exhibits and marked from E to K, inclusive, but none of them appear in the abstract. The inability to understand the situation, however, is immaterial, for the reason that the bill alleges no fact showing insolvency of the defendant, irreparable damage, a multiplicity of suits, or any fact that would take the case out of the established rule that an injunction will not be granted to restrain a mere trespass. The bill alleges a claim of the defendant that the thirty-three feet is a part of a public highway, and the case does not come within the rule where the defendant has no claim of right. Ordinarily, in such a case, the legal right must be determined in an action at law before a resort to a court of equity. Before a court will interfere to prevent a trespass, facts and circumstances must be alleged from which it may be seen that the law can afford no adequate remedy, and the bill fails to allege any such fact. Poyer v. Village of Desplaines, 123 Ill. 111;

Commissioners of Highways v. Green, 156 id. 504; O'Donnell v. Gearing, 291 id. 278; Abel v. Flesher, 296 id. 604. The decree is affirmed.

Decree affirmed.

(No. 14106.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. FRANK C. SCHULTZ, Plaintiff in Error.

Opinion filed December 22, 1921.

I. CRIMINAL LAW-what remark by the court is not prejudicial. On a trial for burglarizing a garage, where considerable evidence as to the numbers on the stolen car has been given and the admission of certain additional documents to prove such numbers is being contested, a remark by the court to the effect that the State's attorney had "enough besides that" is not prejudicial, as indicating that the court thought there was sufficient evidence to convict the defendant of burglarizing the garage.

2. SAME-trial judge should not conduct an extensive examination of witnesses. The examination of witnesses is the function of counsel, and the instances are rare which will justify the presiding judge in conducting an extensive examination, but as it is the duty of the judge to see that all the truth is brought out it is sometimes necessary for him to ask questions, although it is better practice to suggest to counsel what information is desired and let counsel question the witness.

3. SAME-trial judge should exercise care that his conduct does not influence the jury. It is necessary for judges presiding at trials to exercise the greatest care in what they say and do in the presence of the jury, lest they give the jury the impression that they favor one side or the other.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. JOSEPH H. FITCH, Judge, presiding.

JAMES F. FARDY, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, ROBERT E. CROWE, State's Attorney, and EDWARD C. FITCH, (CLYDE C. FISHER, EDWARD E. WILSON, and HENRY T. CHACE, JR., of counsel,) for the People.

Mr. JUSTICE THOMPSON delivered the opinion of the

court:

Plaintiff in error, Frank C. Schultz, was convicted in the criminal court of Cook county of the crime of burglary and sentenced to the penitentiary for an indeterminate period within the maximum provided by law. He seeks to reverse that judgment on the following grounds: (1) Erroneous rulings of the trial judge in the admission and exclusion of evidence; (2) improper remarks by the trial judge; (3) error by the trial judge in examining at length plaintiff in error while he was testifying as a witness; and (4) that the guilt of plaintiff in error is not established by competent evidence beyond a reasonable doubt.

The crime for which plaintiff in error was convicted was the larceny of an automobile from the garage of the Vulcanite Roofing Company. James W. Quigley, superintendent of the company, testified that this automobile, a 1920 model Dodge sedan, was in the garage of the company Saturday, April 17, 1920, and was gone the following Monday. He found the garage door open and found marks on the edge of the door made by some instrument used to force the door open. May 24 following, two police officers went to the home of plaintiff in error about three o'clock in the afternoon. At the rear of his premises they found a garage, in which they saw a car. The garage was locked. Plaintiff in error was not at home and the officers left. About 6:15 they returned and found plaintiff in error at his house. They called him out and asked him about the car in his garage. He replied that there was no car there. They told him that they had seen a car in the garage about three o'clock, and he replied, “Oh, yes; a man on the next street put a car there." When the officers inquired the name of the man and suggested that they go over to see him, plaintiff in error replied that he did not know his name and did not know just where he lived, but that he had gone to California and he did not know when he would be back.

They told plaintiff in error to unlock the garage, and he replied that he had left his keys in some overalls at a house some distance away. The officers insisted on seeing the car, and he helped them to pry open the back door of the garage, in which they found a 1920 model Dodge sedan. It bore no State license numbers. The officers looked for the engine number and found that the number on the motor block had been changed. The number then on the block was 485687. An inspection of the duplicate secret number, which is under one of the motor legs that holds the motor block in place, showed that the original number was 483685. The serial number of this car was 431597. The officers took the automobile and plaintiff in error to headquarters. The following morning the plaintiff in error told officers Maimes and Wolfe, the officers who had made the arrest, that he had worked for the Vulcanite Roofing Company from December to March and that he had seen this Dodge sedan in the garage of the company while he worked there. He told them that he wanted a nice closed car for his mother to ride in and that his fingers began to itch and that he went to the garage and took the car. The officers notified Quigley to come down to headquarters to identify the car. Quigley came down and identified the car by its general appearance and by the serial and engine numbers, a memorandum of which he had taken from the bill of sale. He was not told who was under arrest for the theft, but as soon as he saw plaintiff in error he recognized him as a former employee. He said to plaintiff in error, "I am surprised to see you here; did you take this car?" and plaintiff in error replied, "I did, but there will be others mixed up in it before I get through." Quigley directed that the car be taken to the Dasheel Motor Company, the agency from which his company purchased the car in February. Employees of the motor company identified the car by serial numbers as the car which they had sold and delivered to the Vulcanite Roofing Company about three months before.