ment to the bill of exceptions, so as to present all the proceedings as the same transpired upon the trial of the cause. The Appellate Court refused to grant leave to file the petition. In the original case the court denied the motions of appellant for a writ of certiorari, a continuance and an extension of time to file a complete record, abstract, and brief, and sustained the motion of appellees to strike the bill of exceptions from the files. Appellant presented a bill of exceptions to the Appellate Court embodying all its motions and affidavits, the rulings of the court and exceptions thereto, and asked the court to sign and seal the same, which the court refused to do. Appellees moved the court to affirm the judgment of the county court for a failure to file abstracts, brief, and argument in accordance with the rules of the court, and the motion was allowed and the judgment affirmed. Appellant asked for a certificate of importance, and prayed an appeal to this court, and the certificate of importance was made and the appeal granted and perfected.

As we interpret the record, the appeal was taken from the judgment of the Appellate Court affirming the judgment of the county court, and that case may properly be considered. A bill of exceptions was essential to the presentation and determination of the assignment of errors, and the only question involved in this appeal is whether the Appellate Court erred in striking from the transcript the bill of exceptions which was filed after the time fixed in the order allowing the appeal. The appeal was granted upon condition that the appellant should file its bill of exceptions on or before 35 days, and it was signed and sealed by the judge of the court 7 days before the expiration of the time allowed, so that the failure to file it was not due to any neglect or delay of the judge in signing and sealing the same.

Counsel for appellants say that, when a bill of exceptions is signed and sealed, it "in legal contemplation is lodged with the clerk, and whether, in fact, it be in his actual possession or not, it should be, and in legal contemplation is, in his possession, and whether he performs the ministerial act of affixing his file-mark at the date it became a part of his record, or later, makes no difference." That is saying the law contemplates that a bill of exceptions is filed when it is not filed, and we cannot give our assent to a proposition so absurd.

Counsel further say that a bill of exceptions becomes a part of the record in a case without being filed by virtue of the statute, which provides as follows: "If, during the progress of any trial in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception, and sign and seal the same, and the said exception shall thereupon become a part of the record of such cause."

It would make no difference in this case if a bill of exceptions becomes a part of the record without being filed, for the reason that the appeal was granted on condition that the bill of exceptions should be filed within the time limited. The provision in question, however, has been in force since the first practice act was adopted in the state, and is intended to provide for a method of making matters a part of the record which otherwise Iwould not be. It was doubtless enacted in view of the common law, which required exceptions to be taken at the time of the ruling or decision excepted to, and the bill to be presented, settled, signed, and sealed before verdict or before the jury was discharged. Hake v. Strubel, 121 Ill. 321, 12 N. E. 676. The early practice in this state was the same as at the common law, but it was never understood that a bill of exceptions, although signed and sealed in open court during the progress of the trial, became a part of the record without being left in the office of the clerk, where the other papers and proceedings in the trial were deposited. In 1838, in the case of Holmes v. Parker, 1 Scam. 567, it was alleged by the appellee that the bill of exceptions had been interpolated by the person who transcribed the record, and a writ of certiorari was awarded to the clerk of the court below to send up a true record. In response to the writ the clerk certified that the appeal bond and the bill of exceptions, regularly signed and sealed by the judge, were among the papers in the case, but were not marked "Filed." It was held that the bond and bill of exceptions were not a part of the record, and the appeal was dismissed. In Railway Conductors' Benefit Ass'n v. Leonard, 166 Ill. 154, 46 N. E. 756, it was said that the certificate of evidence did not become a part of the record until it was placed on file, and that counsel filing the certificate might have procured an order to file it as of a date within the time fixed for filing. It is settled by numerous decisions that, if a bill of exceptions is presented to the trial judge at such time that it can be filed within the time allowed by the order of the court, if it is then signed and sealed, the party presenting it will not be prejudiced by any delay or neglect of the court. If the date of presentation appears on the bill, an order may be made whenever it is afterwards signed and sealed to file it nunc pro tunc as of the date of such presentation to the judge. Hawes v. People, 129 Ill. 123, 21 N. E. 777; Ferris v. Commercial Nat. Bank of Chicago, 158 Ill. 237, 41 N. E. 1118; West Chicago Street Railroad Co. v. Morrison, Adams & Allen Co., 160 Ill. 288, 43 N. E. 393. A bill of exceptions on its face purports to be signed at the time the exception is taken in the course of the trial, whether it is presented then or afterward; but, if it is presented within the time as extended by the court and that fact is shown on the bill, it may be afterward filed of that date within a reasonable time

after it is actually signed. This case does not come within that rule, but the failure to file the bill of exceptions was chargeable solely to the attorney who had possession of it.

The Appellate Court did not err in striking the bill of exceptions from the files, and the affirmance of the judgment, under the rules of the court, for failure to file abstract, brief and argument, followed as a matter of

course.

What we have said will have the effect of disposing of the other suit for mandamus. As there was no legal bill of exceptions, there was nothing to amend. The Appellate Court did not err in refusing to sign the bill of exceptions showing what occurred in that court, since the practice act does not apply to courts of appellate jurisdiction.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(231 Ill. 193)

PEOPLE v. LEMEN.

(Supreme Court of Illinois. Dec. 17, 1907.) 1. ASSAULT AND BATTERY-CRIMINAL LIABILITY-TRIAL-INSTRUCTIONS.

A direction to find a defendant guilty should never be given except as a result of finding from the evidence beyond a reasonable doubt all the facts necessary to establish his guilt; and it was error for the court to direct the jury to find the defendant guilty if they find he committed an assault with a deadly weapon with intent to do a bodily injury, without finding either that no considerable provocation appeared, or that the circumstances showed an abandoned or malignant heart, where one or the other element was necessary to the crime charged, and the evidence in relation thereto was in conflict. 2. SAME-VERDICT.

A verdict must be responsive to the issues and contain either in itself or by reference to the indictment every material fact constituting the crime; and, in a prosecution for assault, where the jury found in their verdict that the defendant committed the assault with a deadly weapon with intent to do a bodily injury, but failed to find that no considerable provocation appeared, or that the circumstances showed an abandoned or malignant heart, where one or the other of these elements was necessary to the crime as charged, the verdict was insufficient.

Error to Appellate Court, Fourth District, on Error to Circuit Court, St. Clair County; R. D. W. Holder, Judge.

Julius Lemen was convicted of assault with a deadly weapon with intent to do a bodily injury, and, from a judgment of the Appellate Court affirming the conviction, he brings error. Reversed and remanded.

Winkelmann & Ogle, for plaintiff in error. W. H. Stead, Atty. Gen., and F. J. Tecklen berg, State's Atty. (B. H. Taylor, of counsel), for the People.

CARTWRIGHT, J. On December 17, 1905, Josie Voisin, a widow, lived with her two minor children, aged 11 and 13 years, respectively, on a farm in St. Clair county, and her house stood about 30 or 40 feet west of

a public highway running north and south along the east side of the farm. In the evening of that day Ben Detienne, a married man, who lived in the neighborhood at some distance from Mrs. Voisin, was at her house from 8 to about half-past 9, when he started to go home, and she went out on the porch with him. On the east side of the road was a strip of timber containing eight or ten acres, belonging to one Bowler. While Mrs. Voisin and Detienne stood on the porch, she heard a noise in the timber across the road, and asked Detienne for his revolver. He gave it to her, and she fired two shots in the direction of the noise. She then handed the revolver to Detienne, who fired three shots in the same direction. He then reloaded the revolver, and the two went in the direction of the noise, through the front gate, to the middle of the road. As they reached that place, two shots were fired with a shotgun from the timber bordering the east side of the road, about 45 feet away. Fourteen of the shot struck Mrs. Voisin in the left leg and arm, but did no serious injury. Julius Lemen, plaintiff in error, was charged with the shooting, and was indicted in the circuit court of St. Clair county. The indictment contained six counts-two charging him with assault with intent to commit murder, two charging an assault with a deadly weapon with intent to inflict bodily injury, no considerable provocation then and there appearing, and the remaining two charging an assault with a deadly weapon with intent to do bodily injury, the circumstances showing an abandoned and malignant heart. Upon a trial the jury returned the verdict hereinafter set forth, and the court sentenced the plaintiff in error to pay a fine of $200. sued out a writ of error from the Appellate Court for the Fourth District, and, that court having affirmed the judgment, a writ of error was sued out of this court to review the

judgment of the Appellate Court.

He

The night was very dark, but Mrs. Voisin and Detienne both testified that after the shots were fired the defendant stepped from behind the tree where the firing was done and went down the road, and that they recognized him by his general outline, cap, and long overcoat, and by a peculiar swagger in his walk. They said that, when he stepped out, Mrs. Voisin said, "There he goes! shoot him!" and Detienne shot at him three times, but did not hit him. Their testimony was that they then went back toward the house, and when Mrs. Voisin got inside the gate she fainted. Immediately after the occurrence Detienne went for a doctor, and his testimony as to the identification of the defendant was weakened by the fact that, while on his way for the doctor, he told Horace Bowler, about 40 minutes after the shooting, that Mrs. Voisin was shot, and that he did not know who did it. He admitted making that statement, but said that he made it from fear of the defendant, from which he had re

circuit court are reversed, and the cause is remanded to the circuit court. Reversed and remanded.

(231 III. 198)

KOSHINSKI v. ILLINOIS STEEL CO. (Supreme Court of Illinois. Dec. 17, 1907.) 1. EVIDENCE-OPINION EVIDENCE-COMPETENCY OF EXPERT-MEANS OF KNOWLEDGE.

Where a person testifies as to the effect of mixing metal in a steel converting vessel, the fact that his knowledge is the result of laboratory experiments, and not of experience in the steel business, only affects his credibility.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2356.]

2. MASTER AND SERVANT-INJURIES TO SERVANT-ACTIONS-NEGLIGENCE-QUESTION FOR

JURY.

In an action for injuries to an employé caused by the explosion of a steel converter, whether the employer was negligent in managing the converter held, under the evidence, for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, 88 1001, 10321035.]

3. TRIAL-INSTRUCTIONS-MODIFICATION.

An instruction to find for defendant if the evidence is evenly balanced, or if it preponderates in favor of defendant, "or if you are in doubt as to its preponderance," was modified by making the last clause read, "or if you are unable to determine as to its preponderance." Held, that the modification was not erroneous, though the instruction was not objectionable as originally presented.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 665, 668-670.] 4. SAME.

An instruction that the jury were bound by their answers to questions asked upon their voir dire examination, and that, by their oaths as jurors to try the case, they were bound to try it as to the facts upon the evidence produced upon the witness stand, and the law as given in instructions by the court, being argumentative, was properly modified to state that it was the juror's duty to try the case as to the facts upon the evidence produced upon the witness stand, and the law as given in instructions by the court.

5. SAME REFUSAL OF

REQUESTS-INSTRUC

TION EMBRACED IN OTHERS GIVEN.

A refusal of instructions embraced in others given is not error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Will County; Frank L. Hooper, Judge.

Action by Lawrence Koshinski against the Illinois Steel Company. From a judgment of the Appellate Court for the Second District affirming a judgment for plaintiff, defendant appeals. Affirmed.

Garnsey & Wood (Knapp, Haynie & Campbell, of counsel), for appellant. Barr, Barr & Barr, for appellee.

CARTWRIGHT, J. On October 16, 1905, between 10 and 11 o'clock at night, the appellee, Lawrence Koshinski, while working for the appellant, Illinois Steel Company, in its converting mill at Joliet, was injured by

an explosion in a converting vessel known as No. 3, and brought this suit in the circuit court of Will county to recover damages for his injuries. He had a verdict for $2,500, upon which judgment was entered, and, an appeal being taken to the Appellate Court for the Second District, the judgment was affirmed, and a further appeal was taken to this court.

The assignment of error which is chiefly urged in argument is based on the refusal of the trial court to direct a verdict of not guilty at the close of all the evidence. The position taken by counsel is that the cause of the explosion is absolutely unknown; that some unforeseen agency produced it; that the vessel was not negligently managed; and that the explosion was of such a nature that it could not reasonably have been foreseen by the exercise of ordinary intelligence and prudence, and therefore the defendant was not liable. In order that the argument may be understood, it seems necessary to make a somewhat extended statement of the facts. There was no controversy at the trial concerning such facts, and they are as follows: The defendant, Illinois Steel Company, manufactures steel by the Bessemer process, by which the ore is first melted, part in a cupola and part in a blast furnace, and the two are then mixed in a molten state and put in what are called "vessels." These vessels are great iron pots, and vessel No. 3 was 11 feet in diameter at the center or largest place, and 10 feet in diameter where the bottom was joined on. The top was cone-shaped, with an opening about three feet in diameter, and the bottom was rounded and fastened on with hangers about two feet apart, each capable of sustaining twenty tons' weight. The vessel was suspended upon trunnions connected with a band around it, and it could be turned upon the side by means of hydraulic pressure, either to the north or south, in a semicircle. In the bottom there were pipes or openings called “tuyeres," made of fire clay, with 71⁄2-inch holes to blow air into the vessel. It would hold from 75 to 80 tons of molten iron, but it was called a 12-ton vessel, and that was the proper charge when making steel. When molten iron was to be run into the vessel, it was turned over toward the north on its side and the iron was run in, making a depth of 12 to 14 inches for 12 tons. That was called a "heat," and the vessel was then turned up vertically, and, before turning, the air was turned on at the bottom and forced through the tuyeres. When the vessel was upright, the force of the air was sufficient to keep the metal from running down through the tuyeres. The forcing of the air through the molten metal increased the heat until the carbon and other impurities were burned out. The "steel blower," who stood on a platform about one hundred and fifty feet away, could tell by the color of the flame at the top of the vessel when the heat was