THE PEOPLE of the State of ILLINOIS, Defendant in Error, vs. HENRY SPENCER, Plaintiff in Error.

Opinion filed June 16, 1914.

I. CRIMINAL LAW-corpus delicti may be proved by circumstantial evidence. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the offense.

2. SAME—when action of trial court in admitting evidence can not be considered by Supreme Court. The action of the trial court in admitting evidence in a criminal case cannot be considered by the Supreme Court, where no question was raised on the trial by objecting to the evidence when offered, or by moving to exclude it, or otherwise.

3. SAME question of qualification of experts is largely within discretion of trial court. The question of the qualification of expert witnesses rests largely in the discretion of the trial court and will not be reviewed except where there is a clear abuse of such discretion.

4. SAME when it is not error to admit testimony as to what a third person said to the witness. It is not error to admit testimony by a police officer that a certain railroad employee stated to him, in the presence of the accused, that he recognized the accused as the man who came to the railroad station on a certain night with a lady and inquired about trains, even though the employee testifies on the trial that he was not sure he recognized the accused as the man but thought he looked like him, where the accused himself admitted he was there.

5. SAME when the statements of third persons are admissible. Statements made by third persons, in the presence of the accused, connecting him with the crime charged against him, and which he does not deny but by his own actions and statements at the time expressly ratifies, are admissible in evidence against him.

6. SAME-testimony of a witness who heard confession taken. down is admissible. A police officer who was present when the accused made a confession of his guilt, which was taken down in shorthand and afterwards transcribed in typewriting but not signed by the accused, may testify as to what was said by the accused with reference to the crime charged.

7. SAME when accused cannot complain that parts of his confession were excluded. The accused cannot complain that parts of his confession concerning his commission of other crimes not in

any way connected with or tending to prove the crime charged were not allowed to go to the jury, where his counsel not only ac-. quiesced in the action of the trial court at the time but demanded that the court should so rule.

8. SAME when part of confession relating to other crimes not admissible. Where the accused, in confessing the crime charged, also confesses numerous other alleged crimes having no connection with the crime charged, the part of the confession relating to such crimes, if severable from the part relating to the crime charged, is not admissible, and it is not error, after motions for new trial and in arrest of judgment are overruled, to refuse to allow the accused to introduce such part of the confession on the theory that it would show he was insane.

9. SAME when the People are not required to prove sanity of accused. Every man is presumed to be sane, and, in the absence of evidence of facts coming from either side which may raise a doubt as to the sanity of one accused of crime, the People are not required to prove his sanity.

10. SAME—what facts are not necessarily evidence that the accused was insane. The facts that the accused is shown to be of depraved character and abandoned habits and has committed an unnatural and atrocious crime do not necessarily amount to evidence of his insanity.

WRIT OF ERROR to the Circuit Court of DuPage county; the Hon. MAZZINI SLUSSER, Judge, presiding.

ANTON ZEMAN, OLIVER M. OLSON, and HARRY W. STANDIDGE, for plaintiff in error.

P. J. LUCEY, Attorney General, CHARLES W. HADLEY, State's Attorney, and GEORGE P. RAMSEY, (F. L. RATHJE, of counsel,) for the People.

Mr. JUSTICE CARTER delivered the opinion of the court:

At the October term, 1913, of the circuit court of DuPage county the grand jury returned an indictment against the plaintiff in error, Henry C. Spencer, for the murder of Mildred Allison, alias Mildred Rexroat. On a trial before a jury in that county a verdict of guilty was returned and his punishment fixed at death. After motions for new trial

and in arrest of judgment had been overruled he was sentenced to be hanged. The record is before us for review.

At about 8:23 o'clock in the evening of September 26, 1913, a freight train on the Elgin, Joliet and Eastern railroad running in a northerly direction was approaching Wayne, in DuPage county, when the engineer saw a dark object on the track ahead. He tried to stop the train but was unable to do so until after it had passed over the object. The train crew went back to the south to ascertain what they had struck, and a short distance south of the caboose they found the body of a woman cut in two just above the hips. On the upper part of the body was a blue jacket. A lady's large, blue hat and a pair of gold-rimmed spectacles were found in the vicinity, and a gold bracelet, marked "from W. H. A. to M. A.," was on one of the arms. The witnesses testified that the body was neither warm nor cold when found. They at once notified the officials of the railroad company and an undertaker at West Chicago. The undertaker, under direction of the coroner of DuPage county, took charge of the remains and removed then to his morgue at West Chicago. The next morning the coroner of the county found near the scene of the tragedy, close to the railroad track, a lady's white hand-bag turned inside out, with spots of blood on it. The Aurora, Elgin and Chicago Electric railway runs from Chicago westerly through various towns, and a little west of Wheaton, the county seat of DuPage county, one branch turns northwesterly towards Wayne. About thirty rods south-east of the station at Wayne it crosses on a viaduct over the tracks of the Elgin, Joliet and Eastern railroad. The dead body was just south of this viaduct. The remains were identified the day after they were found as the body of Mildred Allison Rexroat. She had been first married to W. H. Allison, by whom she had three sons. A few months before her death she had been divorced from Allison and shortly after married one Everett Rexroat. Allison's home was in

Chicago. Rexroat was from Macomb, Illinois, and the deceased had been with him there for a while but does not appear to have been living with him for some time previous to her death. Some time prior to September, 1913, and during that month, Mrs. Rexroat had been engaged as an instructor at a dancing academy owned by one Frank L. Oleson, at 459 East Thirty-first street, in Chicago. The evidence is to the effect that the plaintiff in error, Spencer, met Mrs. Rexroat at this dancing academy several days prior to September 26, 1913, he being at this academy taking lessons, and that he danced several evenings with Mrs. Rex-. roat as well as with some others there. Thursday evening, September 25, he was at the academy and danced almost exclusively with Mrs. Rexroat. Oleson, and at least two other witnesses, testified that on that evening, while Spencer and Mrs. Rexroat were together at the dancing academy, Mrs. Rexroat said, in Spencer's presence, that he had arranged for her to teach the tango to a class of young men which had been formed at Wayne. To one of these witnesses Mrs. Rexroat, in Spencer's presence, said that she was to receive $15 a night and her hotel bill, and this lady said that she would be glad to go as Mrs. Rexroat's assistant, but the latter replied that she did not need any just then; that Spencer was going to take one night in small towns, naming Wayne and several other places. At the close of the evening's dancing Spencer, Mrs. Rexroat and Carl White left the dance hall together and went to a neighboring cafe and drank four bottles of beer among them, and there again Mrs. Rexroat stated to White, in Spencer's presence, that the latter had arranged for her to teach a class in dancing out at Wayne. All of these witnesses identified Spencer positively.

Mrs. Rexroat was rooming, at this time, with Mrs. Ada Johnson, on Eggleston avenue, in Chicago. At about 3:30 o'clock P. M. on the day she met her death Mrs. Rexroat packed a rattan suit-case and left her boarding place. She

wore at that time a dark-blue suit, a new, large hat, short, white gloves, a bracelet, diamond ring, Tiffany setting, earrings, another ring with small stones, a small brooch, and spectacles. She carried a white hand-bag and the rattan suit-case. The diamond ring had been given her by Everett Rexroat, her husband, and he testified it cost him $300. The white hand-bag, hat, suit and bracelet found at the scene of the tragedy were identified by Mrs. Johnson as the articles Mrs. Rexroat wore or carried when she left her house the afternoon of September 26. About six o'clock the same evening a man and woman resembling, according to the witnesses' testimony, Spencer and Mrs. Rexroat, and carrying a rattan suit-case, appeared at the Fifth avenue station of the Aurora, Elgin and Chicago Railroad Company, in Chicago. The lady wore a large hat and a dark-blue suit. They were told by the man in charge of the six o'clock train that it did not stop at Wayne,—that the first train stopping there would leave at 6:30 P. M. This last mentioned train was in charge of Hugh Cargo and left at the proper time. Cargo testified that Spencer and a lady answering the description of Mrs. Rexroat were on his train on that trip and were seated in the third seat from the rear, in the first car. C. A. Goodwin, a resident of Wheaton, sat in front of them and heard them talking about the tango dance and how it should be taught, also about a diamond and about the will of the man's father. Cargo and Goodwin both identified this man as Spencer. About 7:25 P. M. the man came to Cargo, who was in the second car from the front of the train, and asked the latter to be sure not to carry him past Wayne. The conductor told him that it was then 7:25 and that they would be at Wayne at 7:45. The two rear cars of this train were cut off at Wheaton and the first car went on to Elgin with conductor Cargo in charge. The car arrived at Wayne on time and Spencer and the lady left the car there. Two other passengers got off the car, a man whose identity is