enjoyment at or after such death. The county court of Livingston county entered judgment in favor of the People of the State of Illinois against appellants for the taxes, and they appealed from the judgment.

Charles Ruff was the owner of 640 acres of land in Livingston county, on which there were five sets of improvements. He lived on what was called the home place, and the appellants, his four children, lived upon and farmed the other portions of the land, paying to their father two-fifths of the produce as rent. The understanding was that the children were to have the several tracts occupied by them at the death of their father and were to make improvements on the land. There was an incumbrance, and the father paid his living expenses from the rent and made payments on the incumbrance, and the children also made some contributions for that purpose. Ruff's wife died in November, 1919, and he had then been afflicted with diabetes three or four years, during which time he had suffered at intervals acute and severe attacks when he thought he was going to die. After such an attack on November 29, 1919, he executed four deeds conveying to the children portions of the land, stating at the time that he was making the deeds of what was coming to them when he died. The deeds were to the four children in nearly equal portions but not always of the same land which the grantees had occupied. He reserved a life estate in the lands conveyed and the grantees continued to pay him two-fifths of the produce of the farms as rent. The grantees had occupied the lands for many years under the arrangement by which they understood that they were to get the land upon their father's death. The father had severe attacks of his disease from time to time after the deeds were made and on these occasions thought he was going to die, and he died on December 16, 1920, at seventy-six years of age. There was a consideration of one dollar recited in each deed and it was paid, but there was no other consideration aside from the understanding which

has been stated. The grantor had no other property than the real estate and there was no administration of his estate.

The statute imposes a tax upon a transfer of property made by deed, grant, bargain, sale or gift in contemplation of the death of the grantor, vendor or donor or intended to take effect in possession or enjoyment at or after such death. (Laws of 1909, p. 311.) The age of the grantor, his physical condition, the existence of the disease of such a character as was practically certain to result in his death, and his apprehension that death was impending, make it certain that the deeds were made in contemplation of death. (Rosenthal v. People, 211 Ill. 306; People v. Carpenter, 264 id. 400; People v. Danks, 289 id. 542.) The deeds granted future estates to take effect in possession after the termination of the life estate at the death of the grantor, and the statutory conditions were fulfilled.

The objection offered to the imposition of the taxes is, that there was a valid and binding agreement between Charles Ruff and the appellants whereby the several tracts of land were to be conveyed to them, respectively, and that the agreement constituted a legal obligation based upon a valuable and adequate consideration which could be enforced by them. The objection is not supported by the evidence, which proves an understanding that the children were to have their tracts of land at the death of their father, and not that he would convey it to them at any time. The understanding would have been completely satisfied by a will devising the lands to the several grantees, and there never was a time when they could have compelled a conveyance. If the lands had been devised there would be no question of the liability to a tax, and it can make no difference that the deeds were made with precisely the same effect. The impelling motive for making the deeds was a contemplation of death by the grantor, and the estates granted were to take effect in possession after such death.

The judgment is affirmed.

Judgment affirmed.

(No. 14101.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. BERT CUNNINGHAM et al. Plaintiffs in Error.

Opinion filed December 22, 1921.

I. CRIMINAL LAW-when defendant may be cross-examined as to previous arrest on another charge. Where it has been brought out on the direct examination of the defendant by his counsel that he had previously been arrested on another charge and discharged by the trial court, it is not error to permit the State, on crossexamination, to ask questions of the defendant as to his previ

ous arrest.

2. SAME-order of admission of testimony rests in discretion of trial court. The order in which testimony is to be admitted is largely in the discretion of the trial court, and there is no abuse of such discretion where the court permits two police officers to testify for the State after the close of the defendants' evidence, the court and the defendants having been advised at the close of the State's evidence that such testimony would be offered as soon as the witnesses returned from service before the grand jury.

3. SAME when evidence of possession of revolver by defendant when arrested is admissible. Where defendants are being tried for a robbery which was proved to have been committed by parties armed with revolvers, it is not error to permit the admission of evidence as to a revolver being found on one of the defendants when he was arrested two months after the alleged crime was committed.

4. SAME when variance is not material. In a prosecution for robbery, a variance between the indictment and the proof as to the name of the owner of the property is not material unless it is made to appear to the court that the jury were misled by it or that some substantial injury was done to the accused thereby, so that he is unable intelligently to make his defense or is exposed to the danger of a second trial on the same charge.

5. SAME question of variance must be raised in the trial court. On a writ of error defendants convicted of robbery cannot avail themselves of any claim on the point of a variance between the indictment and the proof as to the name of the owner of the property, where no question of variance was raised in the trial court.

6. SAME-proof of participation as accessories will sustain conviction of defendants charged as principals. Although the proof in a prosecution for robbery with a dangerous weapon does not show that all the defendants were armed with revolvers, it will be suffi

cient to sustain the conviction of any who were not proved to have been armed if the evidence shows that they participated in the offense which was carried out by those who were armed, as accessories may be indicted and convicted as principals.

7. SAME-verdict of jury is not to be controlled by number of witnesses testifying. Where a conviction rests upon the identification of the defendants who have set up alibis as a defense the credibility of the witnesses is a question peculiarly within the province of the jury, and the jury are not compelled to be controlled by the number of witnesses testifying as to the alibis nor as to the identification of the defendants.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. HUGO M. FRIEND, Judge, presiding.

IRWIN R. HAZEN, and JOHN LUPE, (THOMAS E. SWANSON, of counsel,) for plaintiffs in error.

EDWARD J. BRUNDAGE, Attorney General, ROBERT E. CROWE, State's Attorney, and EDWARD C. FITCH, (EDWARD E. WILSON, CLYDE C. FISHER, and WILLIAM SCOTT STEWART, of counsel,) for the People.

Mr. JUSTICE CARTER delivered the opinion of the court: Plaintiffs in error were indicted, and after a trial before a jury were convicted, in the criminal court of Cook county of robbing B. N. Hunding and taking from him certain money, the property of the Hunding Dairy Company, a corporation. The cause has been brought here on writ of error for review.

The evidence shows that the Hunding Dairy Company has its offices and retail milk depot at 6949 Stony Island avenue, in Chicago. The sales room or milk depot is in front and the offices in the rear, and in order to enter the offices one must pass through the milk depot. The evidence shows that plaintiff in error Campbell came into the milk depot and purchased a bottle of milk in the late afternoon of November 27, 1920, paid for it and left the place. Immediately afterward plaintiff in error Cunningham, followed

by plaintiffs in error Crane and Jackson, came in, laid down a quarter and ordered a bottle of milk. He then pulled a revolver and thrust it in the face of Kirbeck, secretary of the company, and guarded him while Crane and Jackson rushed through the swinging doors into the inner office, covered Hunding and two of the women employees with a revolver and took from the table the returns of the company for the day, about $700 in United States bank notes and about $20 in silver. This took about two minutes' time, and Cunningham, Crane and Jackson ran through the doors and away with their plunder. Campbell, Cunningham and Jackson were arrested in or near a public garage at 4439 Grand boulevard on January 17, 1921, Campbell having a loaded revolver in his pocket at the time. The police officers testified that when Campbell was questioned about the revolver he said he got it from Cunningham, and Cunningham admitted to the officers that it was his. Kirbeck, secretary of the dairy company, testified that he identified all four of the plaintiffs in error. Jackson and Crane were identified by Hunding. One of the women employees identified Jackson, and the other identified both Jackson and Crane as the two men who entered the inner office and took the money from the table.

Some question was raised in the briefs of plaintiffs in error that venue was not proved by the record. On motion of the State's attorney an amended bill of exceptions was filed in which the venue is shown to have been proven.

It is contended by counsel for the State that the abstract prepared and filed by counsel for plaintiffs in error is not complete or correct, and they endeavor in their briefs to obviate this difficulty by referring to the proper pages of the record. Under rule 14 of this court it is provided that if opposing counsel think that the abstract presented is not accurate or sufficient for a full understanding of the questions involved for decision, the opposite party “shall file a further abstract making necessary corrections or additions.