It is contended by the State that the newly discovered evidence is purely cumulative of the claim that Mary C. Anderson is not telling the truth. It is not always easy to determine just what constitutes cumulative evidence. As a general rule it is held to be additional evidence of the same kind and to the same point. This rule, however, must not be understood as precluding a new trial in every case where the testimony relates to a point contested on the trial, for if it did so it would be seldom, if ever, that a new trial could be granted on such grounds.

Mary C. Anderson testified that she gave $500 to plaintiff in error and that she deposited $500 in the bank. There is no evidence in the record that she had any considerable amount of money prior to the theft in question, but the record discloses that she from time to time pawned what jewelry she had for small sums of money. She testified that she had not given any money to her husband for the purpose of buying cars, but it was disclosed on the examination on motion for a new trial that she had given her husband as much as $1100, portions of which were to be used for buying automobiles. This is newly discovered evidence which bears directly upon the question as to whether or not she had given the plaintiff in error $500, or any sum, and if true raises a grave question as to that material part of her testimony.

Defendant in error contends that there has not been proper diligence shown in this case. We are of the opinion that while it may have been that some of the evidence appearing in the affidavits might have been procured on the trial, yet by far the greater portion of the material evidence offered in the affidavits as new evidence could not well have been earlier discovered by plaintiff in error. While it is the general rule, as stated in People v. LeMorte, 289 Ill. 11, that courts do not favor new trials on newly discovered evidence and that unless the evidence appears to be such as would cause a different verdict new trials should not be

granted, yet where it appears likely that upon a re-trial such new evidence would change the result, courts should not hesitate to grant a new trial on account of new evidence. This case is to be distinguished from People v. LeMorte, supra, and others where the newly discovered evidence tended to deny the truth of the testimony of one of several witnesses to the same facts, or where the State's case rested upon the testimony of different witnesses and upon facts and circumstances which were not disputed. In this case, if Mary C. Anderson is not telling the truth as to the material parts of the charge against plaintiff in error the entire foundation of the State's case is gone, as the record is wholly barren of other evidence connecting him with the essential elements of the crime. If her evidence is destroyed no judgment of conviction against plaintiff in error can stand. The newly discovered evidence is such, if true, as would tend to destroy her evidence and if believed is likely to change the result on a re-trial. Newly discovered evidence showing that the principal witness for the State has testified falsely concerning certain material matters is not necessarily cumulative evidence, even though her testimony as to other material matters, and her veracity, may have been impeached. Where the State's case rests, as it does here, upon the truth of the testimony of an accomplice, and newly discovered evidence is offered to prove that in material matters she has testified falsely, such new evidence goes to the very foundation of the People's case and should be considered by a jury. The Anderson woman's testimony should be scrutinized closely. She was shown to have testified falsely. Upon examination of her on matters for new trial the trial judge declared that he would not listen further to her varying stories by reason of her untruthfulness. Her story, unimpeached, would be a most unusual one.

The reputation of the plaintiff in error in this case was shown by an abundance of evidence to have been good, and the evidence against him was of such a dubious character

that we feel that justice requires that a new trial should be granted in order that the newly discovered evidence, together with all the evidence to be offered, might be considered by a jury.

Numerous other errors are assigned and urged, but upon examination of the record we are of the opinion that such as are prejudicial will not likely occur on another trial of the case, and discussion of them is therefore unnecessary.

For the reasons herein indicated the judgment of the criminal court of Cook county is reveresd and the case remanded to that court for a new trial.

Reversed and remanded.

(No. 13880.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. ABE SCHWARTZ, Plaintiff in Error.

Opinion filed June 22, 1921.

I. CRIMINAL LAW—when it is a question for the jury whether circumstances show criminal negligence in driving an automobile. Where a driver of an automobile is charged with manslaughter, committed by running over a pedestrian, and the defendant admits that he was running at a greater rate of speed than is declared by the Motor Vehicle act to be prima facie evidence of negligence, it is a question for the jury whether such a rate of speed, together with a failure to keep such a lookout as would enable the driver to see persons crossing the street at the time and place where the accident occurred, constitutes such a wanton and willful disregard of the safety of the public as to amount to criminal negligence.

2. SAME when jury may consider flight as evidence of guilt. In a prosecution of the driver of an automobile who ran over and killed a pedestrian and did not stop to ascertain the extent of the injury he had caused, the jury may consider the flight from the scene as evidence of guilt although the defendant testifies he did not stop because of race prejudice, as the jury have a right to consider whether the action was controlled by consciousness of guilt or fear of consequences on account of the alleged prejudice.

3. SAME what jury must find before rendering a verdict of guilty of manslaughter in driving automobile-instruction. Before

rendering a verdict of guilty of manslaughter against the driver of an automobile who ran over a pedestrian, the jury must believe from the evidence that the defendant knew of the danger of collision and recklessly and negligently or wantonly ran down and collided with the deceased without using such means as were reasonably at his command to prevent such running down or colliding; and an instruction stating such proposition is not subject to the objection that it gives the impression that the merely negligent killing of a person is manslaughter.

4. SAME-definition of motive. Motive is an influence which tends to move the will toward some action.

5. SAME-absence of motive is not a circumstance in favor of innocence in prosecution for involuntary manslaughter. Involuntary manslaughter occurs without intention or will or motive to commit the crime, and in a prosecution of the driver of an automobile for running over and causing the death of a pedestrian, an instruction stating that the absence of motive to commit the crime is a circumstance in favor of innocence has no application to the case.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. MARCUS KAVANAGH, Judge, presiding.

O'DONNELL & TOOLEN, and CHARLES P. R. MACAULAY, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, ROBERT E. CROWE, State's Attorney, and JAMES B. SEARCy, (Edward E. WILSON, and HENRY T. CHACE, JR., of counsel,) for the People.

Mr. JUSTICE DUNN delivered the opinion of the court:

About 9:30 o'clock in the evening of November 30, 1918, Abe Schwartz, who had been a licensed taxicab driver for three years in the city of Chicago, while driving on Ashland avenue a short distance north of Nineteenth street ran his taxicab against two young women who were crossing the street, knocking them down and injuring one of them so badly that she died within three or four hours. Looking back and seeing that an accident had happened he increased his speed and disappeared without further inquiry.

The lamp on one side of his car was broken off by the collision. A police officer picked up the broken glass, put the pieces together and found the number. The defendant was arrested about 3:30 o'clock the same night at the garage of his employer. He was indicted for manslaughter, the various counts charging him with unlawfully, feloniously and willfully assaulting Cecelia Grabinski, running an automobile over her and causing injuries of which she died, with driving the automobile at a dangerous rate of speed, with driving it without watching for persons crossing the street and with failing to sound any signal. He was tried by a jury, found guilty and sentenced to the penitentiary, and he has sued out a writ of error claiming that the verdict was contrary to the evidence and that the court erred in instructing the jury.

There was no substantial conflict in the evidence. The deceased girl was a caller on the evening of the accident at the home of the other girl, Wanda Simbor. This was a house on the east side of Ashland avenue north of Nineteenth street. It was separated from the sidewalk by an iron fence and a gate, which was about seventy-five feet from Nineteenth street. Directly opposite, on the west side of Ashland avenue, was a butcher shop. Wanda's mother asked her to go to the butcher shop, and Cecelia said she would go along. Immediately south of the Simbor house is a church, which is on the corner and faces west on Ashland avenue. Across Nineteenth street, at the southeast corner of Ashland avenue, is another church, and there is an electric light at this corner on a pole. The butcher shop had two plate glass windows, and it was lighted and there was an arc light over the door on the outside. There was no light on the east side of the street near the Simbor house. There are double street car tracks on Ashland avenue. The two girls went out of the house, stopped a moment at the curb, looked south and north, then stepped out on the street and were struck by the taxicab, which was running on the