the purchaser and his reasonable attorney's fees. The extent of the penalty for dealing in securities contrary to the provisions of the statute was a matter for the legislature to determine, and the declaring of all contracts made in violation of the statute void and authorizing the recovery of the purchase money, together with his reasonable attorney's fees, was within its power.

The appellee in his brief offers to remit the sum of $13.33 if in the opinion of the court there can be no recovery of interest. This remittitur will obviate the error, and the judgment will be affirmed as to the residue of $300 as of the date of the judgment of the county court. The costs in this court will be paid by the appellee.

Judgment affirmed.

Mr. JUSTICE DUNCAN, dissenting:

I concur in all that is said in the opinion of the court except what is said as to the validity of paragraph 3 of section 5 of the Securities act. This paragraph confers upon banks, trust companies or insurance companies or associations organized under any law of this State or of the United States, or doing business in this State under the supervision of the Department of Trade and Commerce, and others in that paragraph named, the special privilege of selling any and all securities whatever falling under class "C" or class "D" without qualifying for sales of such securities under sections 7 and 9 of the act. Not only does this paragraph permit such persons or associations to make sales of securities falling under classes "C" and "D" without complying with the requirements of the act, but it permits such persons and associations to sell in competition with those who have qualified to sell securities falling under classes "C" and "D" and have paid their fees, without having the securities in those classes somewhat discredited by a sworn statement on file in the office of the Secretary

of State, containing at their tops, in bold-face type, the expression, "Securities in class. ..... under Illinois Securities law. These are speculative securities. This statement is prepared by parties interested in the sale of securities herein mentioned. Neither the State of Illinois nor any officer of the State assumes any responsibility for any statement contained herein nor recommends any of the securities described below." They are not required to pay any fees for the privilege of selling securities in either class "C" or "D," as provided in section 26 of the act.

I have not time to elaborate or explain my position but only time to state my reasons for concluding this provision is invalid. After an agent, broker or issuer qualifies to sell securities in classes "C" and "D," such agent, broker or issuer is entitled, under our constitution, to have equal privileges with the privileged classes in selling securities in classes "C" and "D," and cannot be handicapped by having his securities in said classes classed as aforesaid and more or less discredited as aforesaid. The statute does not guarantee or give such equal rights, but allows the banks and the others of the privileged class to sell such securities as fall in classes "C" and "D" without paying any fees for the privilege and to sell them as they please, without any public information on record as to what class they belong to or that they are "speculative securities," etc. This provision violates section 22 of article 4 of the constitution, providing that the General Assembly shall pass no local or special law granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. I therefore respectfully dissent to the conclusion of the court with reference to the validity of this paragraph of the act.

(No. 14039.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. JOHN SHAW, Plaintiff in Error.

Opinion filed December 22, 1921.

I. CRIMINAL LAW-error in date in caption of indictment is not material. The caption is no part of an indictment, and where each count alleges that the offense was committed in 1920, an error in the caption which gives the date of the offense as 1901 is not material. (Duncan v. People, 1 Scam. 456, and George v. People, 167 Ill. 447, adhered to.)

2. SAME-variance must be objected to on the trial. An objection to a variance cannot be availed of on review in the Supreme Court where no objection was made on the trial.

3. SAME what proof is sufficient to establish venue. It is not necessary that any witness shall testify in so many words that a crime was committed in a certain county in order to establish venue, and in a prosecution for the confidence game the venue is sufficiently established by testimony that the crime was committed while the defendant was in a store in Watseka, Iroquois county.

4. SAME what evidence of similar transactions is admissible in prosecution for confidence game. In a prosecution for practicing the confidence game, evidence of similar transactions is admissible to prove guilty knowledge and criminal intent; and where the crime was committed by issuing a bogus express money order, it is proper to admit evidence that the defendant passed other bogus express money orders on the same day.

5. SAME when party issuing a bogus money order is guilty of confidence game. Under the statute the confidence game is committed whenever money or property is obtained by means or by use of any false or bogus check, and where the defendant is proved to have obtained money on a bogus express money order which he issued in payment for merchandise, he may be convicted of the confidence game even though the merchant who accepted the order testifies that he relied upon its genuineness rather than upon his confidence in the defendant, who was a stranger to him.

6. SAME-a new trial will not be granted to obtain testimony which is merely cumulative. The court is not required to grant a new trial for the purpose of obtaining the testimony of a witness who was unable to attend the trial, where such evidence, if produced, would be merely cumulative on the question of an alibi, to which other witnesses had testified, and is not conclusive.

Writ of Error to the Circuit Court of Iroquois county; the Hon. FRANK L. HOOPER, Judge, presiding.

STEPHEN C. MALO, and ROSCOE C. SOUTH, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, ELmer A. TAYLOR, State's Attorney, and SUMNER S. ANDERSON, for the People.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:

The plaintiff in error, Eugene O. Shaw, was indicted in the circuit court of Iroquois county under the name of John Shaw, alias A. W. Shaw, for obtaining money and property from Charles E. Edinger by means and use of the confidence game. The first and fourth counts charged, in general language, obtaining the money and property by means and use of the confidence game, and the second and third charged him with obtaining the money and property by means of a false and bogus express money order.

There was a motion to quash the indictment, which was overruled, and the objection to the indictment which is alleged in support of the motion is that the caption was to the March term, 1901, which was not within the Statute of Limitations. Whether or not it would make any difference if the date alleged in an indictment is beyond the Statute of Limitations, it is conceded that it has always been the rule of this court that the caption is no part of the indictment, as decided in Duncan v. People, 1 Scam. 456, and George v. People, 167 Ill. 447. Counsel are of the opinion that those decisions were wrong and should be overruled, but we are not convinced that they were incorrect, and the indictment in this case in each count alleged the commission of the crime on the 16th day of October, 1920. The court did not err in overruling the motion.

On Saturday night, October 16, 1920, at about eight o'clock, a man came to the store of Charles E. Edinger, in Watseka, Iroquois county, in an automobile with a woman, who drove the car away. The man entered the store and made a purchase of Edward Mayrand, a clerk, of a pair of No. 8 shoes for $5 and tendered an American Express Company order for $50 payable to John Shaw. Mayrand referred the man to Edinger, the proprietor, who did not have enough money to cash the order, but he obtained it from a friend next door and gave the man the shoes and $45 in currency. The man indorsed the order with the name "John Shaw," and it turned out to be a bogus order, which the express company refused to honor. The defendant was positively identified by Mayrand and Edinger as the person who committed the crime. He denied that he was the person who obtained the money and property or that he was in Watseka at the time, and he offered evidence of other witnesses to prove an alibi. He was a photographer engaged in the business of taking pictures of small children and exhibiting them at moving picture shows, and he lived at the Illinois Hotel in Danville, forty-six miles from Watseka, from October 12 to November 3, 1920, when he left and went to Tulsa, Oklahoma. He was arrested and brought to Danville and tried there upon a charge of passing bogus money orders at that place, but was acquitted and again arrested and taken to Watseka, where he was tried and convicted. Three employees of the Illinois Hotel at Danville testified to his presence there on October 16 with the exception of the time from about 6:30 in the evening to 9:30 or 10 o'clock. He also obtained from the post-office in Danville, between one and three o'clock in the afternoon of October 16, two packages, and there were no trains from Danville to Watseka that afternoon or evening upon which he could have gone to Watseka. A witness for the People testified that he had gone by automobile from Danville to Watseka in an hour and thirty-five minutes. L. S. Lund