Section 2 of article 2 of our constitution provides that private property shall not be taken or damaged for public use without just compensation. This is a provision of our constitution that no legislative act and no decision of any court of this State can nullify. The appellant has charged, and proved without question, that the structure of which he complains is a common law nuisance and that he has been damaged thereby in the sum of $500 or more. To deny him compensation for this damage is to deny him his constitutional right guaranteed by the constitution. There is no theory upon which it can be said that this damage was paid for in the consideration paid by appellee's predecessor to Pundsack. Pundsack sustained no such damage, as the coal chute was not erected until after he had parted with his title. The construction and operation of the coal chute occurred after appellant acquired and improved his property. He was entitled to the judgment and the Appellate Court erred in reversing it.

As appellant was not required to charge negligence in the construction or operation of the coal chute and was not required to prove that it was located in a populous part of the city, the finding of fact by the Appellate Court does not preclude this court from considering and settling the case on questions of law. Only questions of law were raised by appellee, which we have settled against its contention. Such questions of law were presented by instructions of appellee asking for a directed verdict in its favor, and asking the court by various instructions to hold that the declaration did not state a cause of action, and, in substance, that appellant was not entitled to recover under the facts. proved on the trial.

The judgment of the Appellate Court is therefore reversed and the judgment of the circuit court is affirmed. Judgment of Appellate Court reversed. Judgment of circuit court affirmed.

(No. 13898.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. PAUL WILSON et al.-(WILLIAM DEVITT et al. Plaintiffs in Error.)

Opinion filed June 22, 1921.

I. CRIMINAL LAW-intoxicating liquor is a subject of larceny although kept by owner for an unlawful purpose. Burglary or larceny may be committed where personal property which is the subject of ownership is taken, whether or not the property is kept for a lawful purpose, and whisky, although it is contraband under the national Prohibition act, is the subject of larceny whether or not it has a market value.

2. SAME statements in presence of accused charging his guilt are not admissible if denied by him. Statements made in the presence of the accused charging his guilt are admitted in evidence not because they were made in his presence but only on the ground that his conduct under the circumstances raises a justifiable inference that he has expressly or impliedly ratified and adopted the statements as his own, and the evidence is incompetent if the accused denies the statements at the time they are made.

3. SAME when failure to mark instructions as “given" is not ground for reversal. Where the court writes and gives to the jury every instruction asked, a failure to mark any of the instructions as "given" is not ground for reversal.

4. SAME-what should be embraced in instruction as to effect of possession of stolen property. An instruction that the possession of stolen property, the proceeds of a robbery or burglary, soon after the commission of the offense is prima facie evidence of guilt of the person in whose possession the property is found, should require the jury to find that a burglary had been committed, that the stolen property was in the possession of the defendant soon afterward, and that the possession was not explained by other evidence or the surrounding circumstances.

5. SAME when presumption of guilt from possession of stolen property will warrant a conviction of larceny. If the defendant's possession of stolen property is recent after the theft and there are no attendant circumstances or other evidence to rebut the presumption or create a reasonable doubt of guilt, the fact of possession will warrant a conviction of larceny.

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

EUGENE L. MCGARRY, (THOMAS E. SWANSON, of counsel,) for plaintiffs in error.

EDWARD J. BRUNDAGE, Attorney General, ROBert E. CROWE, State's Attorney, and EDWARD C. FITch, (Henry T. CHACE, JR., and EDWARD E. WILSON, of counsel,) for the People.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

An indictment was returned to the criminal court of Cook county charging the plaintiffs in error, William Devitt and Frank McDonald, together with Paul Wilson, Harry J. Sherman and George Colbeck, with burglary of the store of Samuel Fox and stealing there from ten cases of whisky. Wilson and the plaintiffs in error were tried, and Wilson was acquitted and plaintiffs in error were found guilty and sentenced to the Illinois State Reformatory.

Samuel Fox testified that the burglary was committed and several cases of whisky stolen which were of the value of $26.50 per case, and the first proposition of counsel in support of the errors assigned is that the evidence failed to support the charge of burglary, because whisky, being contraband under the National Prohibition act, has no value except where it is purchased and kept under a government permit, and is therefore not the subject of larceny unless the indictment charges and the proof shows that a permit has been obtained by the person in whose possession the whisky is kept. Burglary may be committed where personal property which is the subject of ownership is taken, and the fact that the property is kept for an unlawful purpose does not change the nature of the crime. This has been decided as to intoxicating liquors kept for sale contrary to the provisions of a statute, or property used for gambling purposes contrary to law, or a pistol the sale of which was forbidden. (State v. May, 20 Iowa, 305; Bales v. State, 3 W. Va. 685; Commonwealth v. Smith, 129 Mass,

III; Osborn v. State, 115 Tenn. 717; 5 Ann. Cas. 797; 17 R. C. L. 29.) The whisky had an actual value whether it had a market value or not and was the subject of larceny.

The principal complaints of rulings during the trial are that the court permitted the People to examine a witness as to his statements, made in the presence of the defendants, concerning the commission of the crime and unduly abridged the cross-examination of the same witness. The direct evidence of the commission of the crime consisted of the testimony of Harry J. Sherman, who was an accomplice and included in the indictment but was not on trial, and the objection is to evidence of statements made by him, in the presence of the plaintiffs in error, corresponding with his testimony at the trial. Such testimony is admitted not because the statement was made in the presence of the accused but because the conduct of the accused and the circumstances were such as to raise a justifiable inference that the accused expressly or impliedly ratified and adopted the statement as his own. A court should never admit such testimony unless it is made to appear that the evidence would justify a conclusion that the accused admitted the statement to be true. If the statement is made and the accused denies it the evidence is incompetent, both because there is no basis for an inference that he admitted its truth and because it would be a mere reiteration of the testimony of the witness as to the fact and the jury might give credit to the statement and discredit the denial. (People v. Pfanschmidt, 262 Ill. 411; People v. Schallman, 273 id. 564; People v. Jordan, 292 id. 514; People v. Seff, 296 id. 120.) In this case the rule of law was not disregarded by the People in the examination of the witness Sherman. On his direct examination nothing was said about any statement in the presence of the defendants and no evidence of that kind was offered. The three defendants were represented by different attorneys, and one of them on the cross-examination of Sherman brought out

the fact that he was called into a room in the police station, in the presence of the plaintiffs in error, and that he then told everything about the affair and McDonald said he was crazy. Another attorney cross-examined Sherman as to the same matter, and he answered that Devitt did not say that he was a damned liar but McDonald did say he was crazy. The evident purpose of these cross-examinations was to present to the jury denials by Devitt and McDonald. When the police officer who was present at the time of the statement was examined for the People, he said that when Sherman was taken back to his cell the witness asked McDonald what he had to say, and he replied, "Nothing at all." On his cross-examination the witness said that Devitt was taken back with Sherman and the witness talked to McDonald, and no objection was made when the police officer testified that McDonald replied, "Nothing at all." Devitt testified that when Sherman made the statement he told Sherman that "he was a damned liar" and McDonald said, "You are crazy." McDonald testified that he told Sherman, when the statement was made, that he was crazy and that Devitt said he was a damned liar. On motion the court struck out the evidence as against McDonald, as there was no contradiction of the fact that he told Sherman he was crazy, and there could be no inference of the truth of the statement so far as McDonald was concerned. The whole matter of the statement and replies having been brought out by the plaintiffs in error, Devitt cannot complain that the evidence went to the jury for consideration, whether there was a denial or admission on his part.

The other objection is that the court unduly abridged the cross-examination of Sherman designed to show that he had been offered immunity for his testimony, but there was no restriction in that respect. The abstract does not show that any question was asked that Sherman was not permitted to answer, and he testified that he had not been promised immunity.