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the death of such survivor leaving descendants, the trustees convey to such issue, in fee simple absolute, free from said trust, the whole of the residue real estate, such descendants to take per stirpes and not per capita; that in case Frank M. Witbeck or Gertrude H. Grice shall die leaving descendants and afterward the other shall die leaving no descendants, the trustees shall convey to the descendants of such first deceased the share of such last deceased in the undivided one-third of said real estate and also the original share of such last deceased in the residue real estate in fee simple absolute, free from the trust, such descendants taking per stirpes and not per capita, and in case both Frank M. Witbeck and Gertrude H. Grice shall die without leaving descendants, the trustees shall convey and deliver to John H. Witbeck and his heirs-at-law all the real estate forming a part of the residue estate of the testator in fee simple absolute, free from the trust.

These provisions of the decree do not purport to define the character of the estate of the appellees in the one-third of the real estate in controversy. The provision that it is held by the trustees upon like trusts and with the same powers and duties as provided in the will in respect to the original shares of the three grandchildren refers to the management and control of the one-third of the property in controversy by the trustees and not to the character or extent of the estate of the beneficiaries. The remaining provisions merely instruct the trustees in regard to the payment of the income and the conveyance of the property; but in these particulars, so far as the interest of the grandchildren was concerned, as was stated on the former appeal in this case, the result was the same whether their estate was a life estate or a determinable fee. Considered in the light of the former decree as to the character of the estate, its approval upon appeal and the purpose of the circuit court to conform to the views expressed upon the appeal as shown by the mandate, the decree must be re

garded not as modifying the former decree in regard to the extent of the estate but only as instructing the trustees as to their duties. Whether the estate was a life estate or a determinable fee, these duties were the same. The directions to the trustees were in conformity with the opinion on the appeal without reference to the character of the estate, and the general statement that the estate is held upon the same trusts and with the same powers and duties as the original shares is qualified and limited by the specification of the particular powers and duties, which are in conformity with the opinion upon the appeal and the mandate. The decree of the superior court will be reversed and the cause will be remanded, with directions to enter a decree for the appellant for her dower and damages. Reversed and remanded, with directions.

(No. 13874.-Reversed and remanded.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. HENRY WICKLIFF CRENSHAW, Plaintiff in Error.

Opinion filed June 22, 1921.

1. CRIMINAL LAW-when malice is express and when implied in commission of murder. Express malice is the deliberate intention to take the life of another, which is manifested by circumstances capable of proof, and malice is implied where no considerable provocation appears or where all the circumstances show an abandoned and malignant heart.

2. SAME-definition of manslaughter. Manslaughter is the killing of a human being without malice, express or implied, and without deliberation, and it must be either voluntary or involuntary.

3. SAME-definitions of voluntary and involuntary manslaughter. Voluntary manslaughter is the killing of a human being without malice but with a provocation apparently sufficient to make the passion irresistible, while involuntary manslaughter is the killing of a human being without intent to do so, in the commission of an unlawful act or a lawful act which might produce such consequences in an unlawful manner, where the unlawful act naturally tends to destroy life or where the involuntary killing is committed in the prosecution of a felonious intent.

4. SAME to constitute murder, death or great bodily harm must be the probable consequence of the unlawful act. Malice necessary to constitute murder is presumed where the act resulting in the killing of another is deliberate and is likely to be attended with dangerous or fatal consequences, and to constitute murder, death or great bodily harm must be the reasonable or probable consequence of the act.

5. SAME when killing another by blow with the bare fist is not murder. The striking of a blow with the bare fist on the side of the face or head is not likely to be attended with dangerous or fatal consequences where the assailant is not much larger or more powerful than his victim, and the fact that death results from such an assault will not warrant a conviction for murder, as the assailant is not presumed to have intended that death would be the natural consequence of his act, even though there is evidence that he threatened to kill his victim at the time he made the assault.

WRIT OF ERROR to the Circuit Court of Hancock county; the Hon. HARRY M. WAGGONER, Judge, presiding.

CLYDE P. JOHNSON, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, Lee SieBENBORN, State's Attorney, and ALBERT D. RODENBERG, (O'HARRAS, Wood & Walker, of counsel,) for the People.

Mr. JUSTICE FARMER delivered the opinion of the court: Henry Wickliff Crenshaw was indicted by the grand jury of Hancock county for the murder of Bertie L. Langford. The indictment charged the homicide was committed by defendant striking Langford with his right hand and clenched fist. Defendant pleaded not guilty. The jury found him guilty of murder in manner and form as charged in the indictment and fixed his punishment at imprisonment for fifteen years in the penitentiary. The 'court overruled a motion for a new trial and in arrest of judgment and rendered judgment on the verdict. Defendant has sued out a writ of error.

The homicide occurred August 25, 1920, while the parties were at a county fair at Carthage, Hancock county.

Defendant and the deceased had no personal acquaintance. They had attended the fair and accidentally met on the fair grounds about five o'clock in the afternoon. Deceased was with a party of men and women and they were proceeding to leave the fair grounds. Defendant was looking for the man he had come to the fair with, when he met deceased. He asked him if his name was Langford, and deceased replied it was. Defendant then asked deceased to step to one side with him, indicating a direction where there were very few people, and said he would like to talk to deceased. Deceased said he would rather meet him some other time and place. Defendant then asked Langford why he had been talking about him and threatening to kill him. Langford said he did not know he had done so. A number of witnesses testified defendant told Langford he had been talking about him, cursed him, called him a vile name and said if Langford would go with him to some other place he would kill him. Langford told defendant he was mistaken and turned to walk away. Defendant caught deceased by the arm, turned him partially around and said for two cents he would kill him right there. He immediately struck deceased on the side of his face or head with his clenched fist and knocked him down. Deceased was carried to an emergency hospital, where he died in a few minutes. A post-mortem disclosed a dislocation of the second and third vertebræ (or a broken neck) as the cause of death, and the proof shows that was attributable only to the blow struck by defendant. Immediately after striking deceased defendant walked away and mingled with the crowd.

It appears deceased and his wife were not living together and that she and defendant had been keeping company with each other. One witness testified on behalf of defendant that deceased had told him about a year before the homicide that if he knew defendant and found him he would have it out with him; that he would make him step some, and putting his hand on his right hip pocket said he

had the goods to make defendant step. Witness communicated the threats to defendant the same day they were made. Another witness testified that four or five weeks prior to the homicide deceased inquired of him if he had seen defendant, and said if he ever met him he would get defendant or defendant would get him; that at a subsequent time deceased said he hoped defendant would be at the fair; that he was going to get him, and showed the witness a 38-calibre revolver and said, "That is the baby that will get him." Witness said he told defendant of the threats, and defendant said he had done nothing to deceased and would let him alone as long as he let defendant alone. Another witness testified that the morning of the homicide, between nine and ten o'clock, Langford said that if he and defendant ever came together there would be trouble and that it wouldn't be very far off. This was not communicated to defendant before the homicide. Defendant testified in his own behalf and did not differ materially with the witnesses for the State as to the conversation between him and deceased, except as to calling deceased a vile name and saying he would kill him. He testified when deceased turned away from him he touched him on the arm and told him he wanted him to quit following defendant around; that deceased then turned toward defendant, threw his hand to his hip pocket and defendant then struck him. The same witness who testified to threats of deceased the morning of the homicide, and who is a brother of deceased's divorced wife, testified he saw the parties at the time of the altercation; that he could not hear anything they said, but he saw defendant tap deceased on the shoulder and saw deceased throw his hand to his hip, whereupon defendant struck him. It is highly improbable from the testimony that any such action of the deceased occurred. The testimony of a considerable number of disinterested witnesses. shows that deceased showed no anger and made no attempt to resent defendant's insulting language but started to get

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