(No. 14036.-Reversed and remanded.)

WILLIAM J. JACKSON, Receiver, Appellee, vs. LOUIS L. EMMERSON, Appellant.

Opinion filed October 22, 1921-Rehearing denied Dec. 9, 1921.

This case is controlled by the decision in Armstrong v. Emmerson, (ante, p. 54.)

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

EDWARD J. BRUNDAGE, Attorney General, (CLArence N. BOORD, and JAMES W. GULLETT, of counsel,) for appellant.

GEO. B. & GEO. M. GILLESPIE, (HOMER T. DICK, of counsel,) for appellee.

Mr. JUSTICE CARTER delivered the opinion of the court:

This is a bill filed by appellee, as receiver of the Chicago and Eastern Illinois Railroad Company, in the circuit court of Sangamon county, for an injunction to restrain the appellant, the Secretary of State, from paying over to the State Treasurer $9080.55 paid by appellee to the appellant under protest for the annual franchise or license fee, under the provisions of the general Corporation act of Illinois. A general demurrer filed by appellant was overruled and the court entered a decree permanently enjoining him from paying $3547.17 of the amount in question to the State Treasurer and ordering that said sum be forthwith returned to the railroad company. From this decree the Secretary of State has appealed to this court.

The allegations of the bill and the questions of law involved in this proceeding are practically identical with those involved in Armstrong v. Emmerson, (ante, p. 54.) The briefs filed by appellee in this case are identical with the briefs filed in the case just referred to, and the facts are

identical except as to the amount of money involved and the amount as to which the decree restrains payment to the State Treasurer. The opinion of this court in that case disposes of all the legal questions involved in this case and will control here. This leaves it unnecessary to discuss further any questions raised in the briefs.

The decree of the circuit court will be reversed and the cause remanded, with directions to dismiss the bill. Reversed and remanded, with directions.

(No. 14016.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. EDWARD WALINSKY, Plaintiff in Error. Opinion filed October 22, 1921-Rehearing denied Dec. 9, 1921.

I. CRIMINAL LAW-each party to a conspiracy is a party to all acts in furtherance of the common design. Every person entering into a conspiracy, or a common design which has already been formed, is deemed in law to be a party to all acts done by any of the other parties before or after the time of his entering into the conspiracy, if such acts be in furtherance of the common design.

2. SAME what is proof of participation in larceny. Evidence that certain parties entered into a conspiracy for the stealing of certain goods, that one of them sent a message to the defendant to meet him for the purpose of furthering the act of stealing the goods, that the defendant in pursuance of the call met said party and conspired with him and the others to find a place in which to secrete the goods, is sufficient to show the defendant's participation in the larceny.

3. SAME when parties agree to commit a felony, which is consummated, all are guilty. Where two or more persons agree generally to commit a felony, and a felony is committed pursuant to such agreement, all are guilty.

4. SAME when instruction may assume that goods were stolen. An instruction on the law concerning accessories before the fact is not objectionable because it assumes that a larceny was committed, where such fact is clearly established by the evidence and the only question is as to the defendant's participation in the crime.

5. SAME-Court should avoid giving impressions to the jury as to guilt of accused. In a criminal case the trial court must exercise

scrupulous care to avoid giving any impression to the jury concerning the guilt of the accused that will in any way influence the verdict.

6. SAME when cross-examination of a witness is not unduly restricted. Refusal of the trial court, on cross-examination of a codefendant who is testifying for the People in a prosecution for larceny, to allow the defendant to show that the witness' employer signed his bond is not error, in the absence of any proof connecting the employer with the prosecution of the case or of any promise of immunity on his part to the witness.

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

JOHN R. MCCABE, (THOMAS E. SWANSON, of counsel,) for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, ROBERT E. CROWE, State's Attorney, and JAMES B. SEARCY, (E. E. WILSON, of counsel,) for the People.

Mr. CHIEF JUSTICE STONE delivered the opinion of the

court:

The plaintiff in error seeks to review the record of a conviction for larceny against him in the criminal court of Cook county under an indictment charging him, together with certain other persons, with larceny and receiving stolen property. There were six co-defendants, all of whom pleaded guilty and were called as witnesses for the State. Plaintiff in error contends that the proof did not show him to be guilty of larceny, as found by the verdict of the jury, and that errors were committed in instructions to the jury and in the conduct of the trial.

It appears from the testimony of the State's witnesses that on July 4, 1920, Edward Kelso, Robert McGowan and August Krause, co-defendants, conspired to steal and dispose of certain property which Kelso was to haul for the Dixon Transfer Company on July 6 following, such prop

erty being certain bundles and boxes of woolen goods. The plaintiff in error was not at this meeting. It also appears from such testimony that during the last week in June next preceding, plaintiff in error met Kelso during the noon hour at the place where Kelso fed his horses and suggested to Kelso that he was in the habit of buying goods from teamsters; that he was a good fellow and no one need fear getting in trouble by dealing with him; that later on that day plaintiff in error rode on the wagon with Kelso and talked with him about property which Kelso might have on the wagon in the future, Kelso testifying that plaintiff in error told him to call him up on the 'phone and ask for "Morris," and that on July 6 he called up plaintiff in error at the telephone number given him. In this he is corroborated by Julius Friedman, who testified that he received the call, stating that Dixon's driver wanted plaintiff in error at Union and Quincy streets, and that he delivered the message to plaintiff in error. Kelso also testified that on that day he had on his wagon the woolen goods involved in this case; that he saw plaintiff in error at Clinton and Market streets; that plaintiff in error gave him a signal, from time to time, as to the direction in which to drive; that Kelso later got off the wagon and went into a hallway and met plaintiff in error, who asked him what he had, and he replied he had some woolens but didn't know how much; that plaintiff in error said he did not have a place to put the woolens but would see a friend and see if he could get the stuff into a barn or house; that this was at about eleven o'clock in the forenoon. In this Kelso was corroborated by Krause and McGowan, who stated that they met plaintiff in error on Van Buren street between Halsted and Green streets on July 6, and that he went to find a place to put the stolen goods and came back stating that he could not find such a place. It also appears from the testimony for the State that the goods were later stored in the barn of one Dumke; that later plaintiff in error came to Dumke's

place in company with another man and met Krause and McGowan, and an agreement was made whereby he was to take the goods and pay Kelso, McGowan and Krause the sum of $2050, and that he would return the next morning for the goods, with the money. It appears, however, that he did not return. A portion of the goods was disposed of and the rest returned to the transfer company upon the arrest of the guilty parties. Plaintiff in error denied this. testimony and also denied having known or seen the other defendants, and stated that he was in Waukegan on July 6 from early morning until late in the evening. In this he is partly corroborated by the witness Alexander Hoffman, who testified that he went to Waukegan with plaintiff in error on the morning of July 6, arriving there at 9:30 A. M., but that he did not return to Chicago with plaintiff in error, having separated from him upon their arrival at Waukegan.

We are convinced that the jury were justified in believing that plaintiff in error met Kelso and the other codefendants at the time the stolen goods were on the wagon and assisted in secreting them and later returned and agreed to purchase them. Plaintiff in error contends, however, that this does not constitute larceny; that as he had no connection with the original conspiracy to steal the property, which was entered into by the co-defendants Krause, Kelso and McGowan on July 4, and the larceny having actually taken place when the goods were converted on the truck, it is not possible that he could have been guilty of conspiracy or accessory before the fact to the crime of larceny, and that if the record shows anything it shows an attempt on his part to receive stolen property knowing the same to be stolen.

It is the rule in this State that in order to be guilty of conspiracy one need not be present at the time of the consummation of the act which has been planned. Every person entering into a conspiracy or common design which has already been formed is deemed in law to be a party to