ably to the rules of pleading, as though expressly denied. Plaintiffs in error are put on their proof. The plaintiffs in error having failed to prove the allegations of the bill, and to show the execution of the deed from Abram to O. J. Wilson, the question of fraud on the part of O. J. in the execution of his quitclaim deed to Abram becomes immaterial, there appearing to be a complete title in Boozel. Without such deed it would be improper to set aside Boozel's title, and subject the lot to sale for the payment of O. J. Wilson's debts.

"There only remains to determine whether the one-thousand-dollar note given by O. J. Wilson to John T. Wilson was given for a bona fide debt. The evidence on this point is quite voluminous, and we have examined it with care, but find nothing in it to convince us that the court below erred in holding that the note was given for a bona fide consideration. It would serve no purpose to canvass the evidence in detail, and therefore we omit to do so. The allowance of the claim, payable pro rata, is also proper under the circumstances. "We, upon the whole case, are satisfied with the decree of the court below. The decree is therefore affirmed."

From this decree an appeal was taken.

Bull and Strawn, for the appellant.

Mayo and Widmer, for the appellee.

By COURT. We have thoroughly examined the record in this case, and carefully considered the printed arguments filed on behalf of the different parties, and have thereupon determined that the judgment of the appellate court shall be affirmed. The foregoing opinion is approved and adopted as a sufficiently accurate expression of our views upon the questions arising upon the record.

Our statute gives the form of an acknowledgment of deeds, which it declares shall be sufficient, and it requires the officer to subscribe his name to the certificate (R. S. 1874, c. 30, sec. 26, entitled "Conveyances "), and the only safe rule is to require this in all cases of statutory acknowledgments: Marston v. Brashaw, 18 Mich. 81; 100 Am. Dec. 152. See also Freeman's note to Livingston v. Kettelle, 41 Id. 173, under the head of "Signing and Sealing by Officer."

Under the facts of this case, even the answer of Abram Wilson, made under oath, pursuant to a prayer of the bill, could not be read in evidence against his co-defendant, Boozel: Rust

v. Mansfield, 25 Ill. 297. To allow his default to have an effect which his answer under oath could not have, would be contrary to all principle. The decree pro confesso against him can affect no one else, because it is not alleged in the bill that in any view he has a present interest in the property that can be affected by the decree. The theory of the bill is, that, in equity, the property is that of O. J. Wilson, while the answer of Boozel claims that it is his. Abram Wilson was a mere conduit through which the title passed.

The fact that the evidence as to the consideration of the one-thousand-dollar note given by O. J. Wilson to John T. Wilson was given orally before the trial court is a material circumstance to be considered in a case like the present. The court can determine much from the appearance and manner of the witness while testifying as to his candor; and if John T. Wilson testified the truth, his note is bona fide, and he stands on an equal footing with other creditors.

The judgment is affirmed.

OFFICIAL CERTIFICATE. A certificate of acknowledgment to a deed is not valid unless subscribed by the acknowledging officer, and his name merely written in the body of the certificate is not sufficient: Marston v. Brashan, 18 Mich. 81; 100 Am. Dec. 152; note to Livingston v. Kettelle, 41 Id. 173.

GANNON V. PEOPLE.

1127 ILLINOIS, 507.]

CRIMINAL LAW. — CIRCUMSTANTIAL EVIDENCE considered and held to be sufficient to sustain conviction for murder.

CRIMINAL LAW. — EVIDENCE THAT A MOTHER, UPON BEING INFORMED OF THE DROWNING OF A CHILD, EXCLAIMED IN THE PRESENCE OF HER HUSBAND, ALFRED: "I knew it, I knew it; my heart has ached for two hours, O Alfred"; and that he then caught her and told her "to hush and not take on,”. is admissible on the trial of the husband for the murder of such child.

EVIDENCE.

CONVERSATION BETWEEN HUSBAND AND WIFE OVERHEARD BY A THIRD PERSON may be given in evidence by him, though neither of them would have been permitted to disclose it.

CRIMINAL LAW. - DENIAL OF INSTRUCTIONS CONCERNING THE SUPPOSED REMARKS OF COUNSEL, about which the record is silent, cannot be considered on appeal.

CRIMINAL LAW. — JUDGMENT OF CONVICTION FOR MURDER WILL NOT BB REVERSED, because the court in its instructions to the jury defined the crimes of voluntary and involuntary manslaughter, when the evidence showed the defendant either to be innocent of any crime or to be guilty of murder.

CRIMINAL LAW. - INSTRUCTION CONCERNING REASONABLE DOUBT is not erroneous because it limits such doubt to a reasonable doubt arising out of the evidence in the case.

CRIMINAL LAW. - A REASONABLE DOUBT IS ONE ARISING FROM a candid and impartial investigation of all the evidence, such as, in the graver transactions of life, would cause a reasonable and prudent man to hesitate and pause.

CRIMINAL LAW.-TO WARRANT CONVICTION ON CIRCUMSTANTIAL EVIDENCE, it is not essential that no inference or presumption should be indulged in by the jury that did not in their minds necessarily arise from the circumstances proved.

CRIMINAL LAW.. OMISSION OF THE COURT TO ASK DEFENDANT BEFORE JUDGMENT AND SENTENCE IF HE HAD ANYTHING TO SAY WHY sentence should not be pronounced against him will not warrant a reversal of such judgment.

CRIMINAL LAW. PLEA OF FORMER JEOPARDY MUST SHOW how and when the prisoner was put in jeopardy.

CRIMINAL LAW-FORMER JEOPARDY. — If a new trial is granted on the defendant's application, he may again be tried on the same or on an amended indictment.

CRIMINAL LAW - AMENDED INDICTMENT. -After a defendant has been tried and convicted, and a new trial has been granted at his request, a grand jury may find a new or amended indictment charging him with commission of the same crime, and he may be tried and convicted thereon before the first indictment has been actually discontinued or disposed of. INDICTMENT of Alfred Gannon for murder. He was convicted at the trial, and thereupon prosecuted a writ of error.

F. M. Guinn, and Henry and Fouke, for the plaintiff in error. Hunt, attorney-general, and James M. Alberts, state's attorney, for the defendant in error.

MAGRUDER, J. Plaintiff in error was indicted for the murder, on April 5, 1886, of Hansbrough McCaslin, in the county of Fayette. The indictment contains two counts. The first count charges the prisoner with having strangled the deceased; the second count charges him with having cast, thrown, and pushed the deceased into a creek or pond of water, whereby he was choked, suffocated, and drowned. The trial took place in March, 1888, before the circuit court of Fayette County, and resulted in the finding of a verdict of guilty. The jury, by their verdict, fixed the punishment at imprisonment in the penitentiary for a period of twenty years. Judgment was rendered on the verdict, and plaintiff in error prosecutes his writ of error from this court.

It is assigned as error that the verdict is not sustained by the evidence, which is entirely circumstantial in its character. The deceased, Hansbrough McCaslin, was a boy between

six and seven years old at the time of his death, and was the child of Ann Gannon, the wife of plaintiff in error. He was familiarly called Hank, and appears to have been an illegitimate child. On November 1, 1885, plaintiff in error, being then not over twenty-four years of age, married Ann McCaslin, the mother of this boy, who is said by the witnesses to have been between five and six years old at the time of the marriage. Some time in February, 1886, plaintiff in error, with his wife and her boy, took up his abode in a log-house containing one room, situated about two hundred yards east of Ramsey Creek, in Fayette County, and in a field of ten or twelve acres of cleared land.

On the morning of April 5, 1886, at half-past eight o'clock, plaintiff in error went with the boy from the house down to the creek for the ostensible purpose of fishing, leaving his wife alone at the house. He returned to the house on horseback, without the boy, at about twelve o'clock, making no inquiry as to whether his step-son had returned, and no remark as to his absence. There is no living witness, except himself, of what took place between him and the boy while he was gone. Upon his return, he found his wife's brother, Benjamin F. McCaslin, in the house. The latter had arrived on horseback about fifteen or twenty minutes before Gannon's return, had tied his horse to the fence outside of the yard, and was sitting in the room with his sister. Upon coming up, Gannon laughingly asked his wife if he could "get dinner and his horse fed." "She told him that she supposed he could." He and his brother-in-law at once went to the stable with their horses. When they came back into the house, his wife asked him where the fire-shovel was that he had taken away "in the morning with fire to set [on fire] some log-heaps that he was burning." He replied that he had left it at the creek, and "told the boy to bring it when he came up." He asked his wife, who was cooking the dinner, if he would have time, before dinner was ready, to go out and mend up some logheaps. She told him that he could go if he did not stay too long. He then invited his brother-in-law to go with him to see his "corn-ground," and they walked out together. They passed two log-heaps. McCaslin, who appeared to be uneasy about the non-appearance of his nephew, looked down the creek to see if the boy came. He asked Gannon where he had left the boy, "and he said he left him down below there fishing, and I made the remark, 'he hangs on well for a little

fellow."" Gannon then proposed that they go down and see what he was doing.

They crossed the fence at a point about fifty yards from the bank of the creek, went westward towards the bank, and then southward down the creek about one hundred yards. Gannon remarked, "that creek looks awful,-looks almost like a river." They discovered the boy's clothes on the ground. When they were twenty or thirty feet north of the clothes, Gannon said: "There is his clothes on the bank." "He appeared to be somewhat embarrassed over it." They passed about two feet east of the clothes, and southward down the creek thirty-nine feet, as was ascertained by a subsequent measurement. Here they found the lifeless body of the boy in the water.

A tree had fallen into the creek, whose roots projected above the surface of the water. The body, which was totally naked, had been caught in the roots, and was supported by them, so that it appeared near the surface, one shoulder being above the water. Gannon asked McCaslin if he could get the body out, but the latter declined to allow it to be touched, saying that a coroner's inquest must be held. Upon being told this, Gannon shed tears, and remarked that it would kill his wife.

The boy's clothes-pants, waist, shoes, stockings, caplay upon the east side of the creek, twelve and a half feet east of the edge of the water. There was an upper bank, with an abrupt descent therefrom to the sand below, before coming to the water. Two fish-hooks had been set. One fish-pole had been stuck into the bank at a point directly west of and opposite the clothes. Twenty feet south of this another fish-pole had been stuck into the bank. The shovel was sticking in the upper bank a little below the clothing. The ground was soft and muddy. The water of the creek was muddy, and the current was west of the place where the body was found, the water at that point being comparatively still.

McCaslin and Gannon went back to the house together. As they entered the door, Gannon fell back a little, while McCaslin told his sister that Hank was drowned. McCaslin says: "What he said was in response, I presume, to what his wife said. I came up on the door-step. I told her that the child was

drowned; she says 'I knew it, I knew it; my heart has ached for two hours, O Alfred,' and at that point he dodged in and caught her and told her to 'hush, not take on.'" McCaslin left Gannon with his wife, and went after two neighbors, Fish