there never has been any change of the common law rule in criminal cases that such a conviction must be proven by the record. Gage v. Eddy, 167 Ill. 102.

We do not see how plaintiffs in error could expect any other or different verdict as to Louis Goodman when the evidence in this record is fully considered, although said erroneous instruction was given. We are not disposed to attach any importance to the giving of said erroneous instruction as to Louis Goodman in the absence of the other instructions from the abstract, and which might have been of such a character as to show that when all of the instructions were considered the erroneous instruction did him. no harm.

As to plaintiff in error Max Goodman, the showing against him in this record is quite different from that made against Louis Goodman. He established his good character by a number of witnesses,-bankers, farmers and various other business men. The only evidence in the record that tends to incriminate Max Goodman is the testimony of the burglar, Kaminsky. The substance of his testimony against Max Goodman is, that on the second day after the burglary he saw Max in the old barn where the stolen goods were stored, and that Max looked at a suit of the stolen clothes by the light of a flash-light in the hands of one of the burglars and said, "This is good goods and we'll take 'em;" that Max went away with his brother, Louis, without further examination or further words; that in the evening the burglars met at Louis Goodman's house for further conference about the trade, Max and Louis both being present; that Max there said, "I will agree to this business, but if there are arrests or anything I don't want you to interfere with me or mix me up in any way, as I do business right along;" that Max promised to buy Steinberg, Green and Kleiman an auto truck so they would not be bothered about a wagon to haul the goods; that he told them he was going to give them $800 for the whole job lot; that he could

only give $500 to his brother at that time; that he took $500 out of his pocket and gave it to his brother over a table, saying that as soon as they brought him the bill of lading Louis would pay them the $500 and that he would see that his brother got the other $300 from him later. Two daughters of Louis Goodman, aged seventeen and nineteen years, respectively, testified in the case that they heard the conversation that occurred at Louis Goodman's, and that Max Goodman made no such statements and that no money was paid or shown by Max; that no talk of buying and paying for the goods occurred there that night, and that no agreement of purchase was made either by Max or Louis Goodman. Their testimony in that regard is corroborated by two of the other defendants, Kleiman and Green, who testified positively that Louis Goodman was the party who bought the goods, and that they were bought down-town at a saloon and that Max Goodman was not known in the purchase. Max Goodman testified that he was called to Chicago on business by his brother, Louis, on Tuesday after the burglary, and that Louis told him, in substance, that he wanted him to meet some jobbers who had some goods to sell at a bargain; that they met the supposed jobbers at the saloon aforesaid and that they all went with Max and Louis Goodman to the old barn, and that as soon as he saw the surroundings and saw the goods he refused absolutely to have anything to do with them and said to his brother that whoever bought the goods would get into trouble. He denied positively the entire conversation attributed to him at Louis' home on Tuesday night. He at all times denied ever purchasing the goods or having anything to do with the purchase of them. The evidence shows that he is a dealer in dry goods and clothing at Gardner, Illinois, which is about seven miles from Essex, and that he owns another such store at Wilmington, Illinois. For the purpose, apparently, of trapping Max Goodman, Mantynband went to Essex after he had discovered his stolen goods and called

up Max at Gardner on the telephone and told him that he was the station agent at Essex and that there were some goods there for him at the Big Four station. Max answered him, in substance, that he had no goods at Essex and was not looking for any, and that he did not ship goods over the Big Four railroad or have them shipped to him. Besides Kaminsky's testimony, which was overwhelmed by the other witnesses, there are just two circumstances relied on to connect Max Goodman with the ownership of the goods, or the purchasing thereof, that were shipped to Essex in the name of L. Goodman: (1) The fact that he lived and did business at Gardner, only seven miles away from Essex; and (2) that while in Chicago on Tuesday after the burglary he loaned his brother, Louis, $200.

The evidence in this case is so unsatisfactory against Max Goodman that we think the court should have granted his request for a separate trial or should at least have granted him a new trial. It is absolutely certain that he was in no way connected with the burglary or larceny and knew nothing of it until after he was called to Chicago on Tuesday after the burglary. While it is permissible to try him on an indictment charging burglary, larceny and receiving stolen goods if tried alone, yet it is not proper practice for the State to try him along with the thieves and burglars when there is no evidence or claim of evidence to connect him with the burglary or larceny. By such action the State's attorney always takes the risk of a verdict against such a party being set aside whenever the evidence against him is unsatisfactory or where the evidence in the record discloses grounds for the claim that the party was prejudiced by being tried with the burglars and thieves. Where several defendants are tried together and convicted and the guilt of some is clear while that of one or more of them is on the evidence open to reasonable doubt, a new trial may be granted to such defendant or defendants, and should be granted where it appears that a separate trial of such

defendants will best serve the ends of justice. Clark v. People, 111 Ill. 404; Watts v. People, 204 id. 233.

The judgment of the criminal court will be reversed and the cause remanded as to Max Goodman and affirmed as to plaintiff in error Louis Goodman.

Reversed in part and remanded.

(No. 11894-Judgment affirmed.)

THE STATE PUBLIC UTILITIES COMMISSION ex rel. The Springfield Drain Tile Company, Appellee, vs. THE ILLINOIS CENTRAL RAILROAD COMPANY, Appellant.

Opinion filed April 17, 1918.

1. PUBLIC UTILITIES-fact that a connecting carrier is an electric railroad does not justify refusal to absorb switching charges. Where a steam railroad company absorbs switching charges on all connecting steam lines between it and shippers within a city, the fact that a connecting carrier is an electric railroad company does not authorize a discrimination against a shipper on said connecting line by the steam railroad company refusing to absorb connecting charges on the electric line.

2. SAME-absorption of switching charges is not matter of contract between carriers. Discrimination by a carrier against a shipper, consisting of the refusal of the carrier to absorb switching charges because the shipper is located on an electric instead of a steam railroad, cannot be justified on the ground that the carrier has no contract with the electric railroad, as the absorption of such charges is not a matter of contract between the connecting carrier and the carrier having the line haul.

APPEAL from the Circuit Court of Sangamon county; the Hon. E. S. SMITH, Judge, presiding.

JOHN G. DRENNAN, (BLEWETT LEE, and W. S. HORTON, of counsel,) for appellant.

EDWARD J. BRUNDAGE, Attorney General, George T. BUCKINGHAM, W. E. TRAUTMANN, and A. D. RODENBERG, for appellee the State Public Utilities Commission.

JAMES R. ORR, for appellee the Springfield Drain Tile Company.

Mr. JUSTICE COOKE delivered the opinion of the court:

This is an appeal by the Illinois Central Railroad Company from a judgment of the circuit court of Sangamon county affirming an order of the State Public Utilities Commission requiring appellant and certain other steam railroad companies to "cease and desist from applying a different rule governing the absorption of connecting line switching charges to or from the plant of the Springfield Drain Tile Company, situated upon the tracks of the St. Louis, Springfield and Peoria railroad, than they at the same time apply to or from industries similarly situated upon the tracks of steam carriers in the city of Springfield, county of Sangamon and State of Illinois." This order of the commission was made, after a hearing, upon the petition of the Springfield Drain Tile Company, setting forth, among other things, that petitioner was compelled to pay the St. Louis, Springfield and Peoria Railroad Company (referred to by the witnesses and in the briefs as the Illinois Traction System) a charge of ten cents per ton, with a minimum per car of $2 and a maximum per car of $4, for switching cars from the petitioner's plant to the respondents' lines, which switching charge the respondents refuse to absorb, and praying that the commission make such order in the premises as may seem meet.

The evidence taken before the commission shows that the plant of the Springfield Drain Tile Company is located near to and has a side-track connecting with the tracks of the Illinois Traction System, an electric railway, and that the Illinois Traction System has a switch connection with the tracks of appellant; that while appellant absorbs the switching charges for all cars delivered to it from plants in the city of Springfield located on the lines or side-tracks of steam railroads, it has refused to absorb the switching