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races before they had been furnished to the pool rooms, provided he would bet on the horses and divide the winnings with plaintiff in error. The story then detailed by this witness discloses the same scheme by which Kirby claims he was defrauded out of $20,000, and as a result of this scheme Pinkhard claims he lost $5000.

The record discloses other evidence strongly corroborating Kirby's testimony, but we deem it unnecessary to make any specific reference to the same.

Neither plaintiff in error nor any of the persons charged to have been connected with him in the alleged scheme testified in this case. The defense consisted of an attempt to show that the defendant Snarley, whom Kirby testified he saw in the room at 1710 Michigan avenue on both occasions when he was there and whom he says he heard addressed as Judge Mahoney, at that time had a beard and was in Springfield on October 29, and certain documentary evidence showing that November 2, 1912, a petition in bankruptcy against Kirby was filed in the United States District Court for the Northern District of Illinois; that in the bankruptcy proceedings both Kirby and his wife were adjudged guilty of contempt of court for failure to turn over assets of the bankrupt's estate to the trustee in compliance with an order of court and were committed to the county jail, and were on April 29, 1913, indicted for concealing assets from the trustee in bankruptcy. No attempt was made to directly contradict any of the testimony given by the witnesses for the People, except the testimony of Kirby that he saw the defendant Snarley in the room at 1710 Michigan avenue on October 28 and 29..

The contention that the verdict is not sustained by the evidence is based upon the assumption that there is no proof that any of the representations made by plaintiff in error to Kirby which induced him to bet $20,000 on "Lucky George" were false, and that consequently the corpus delicti of the crime with which plaintiff in error was charged was

not proven. It may be conceded that there is no direct evidence showing the falsity of the statements and representations made by plaintiff in error to Kirby to induce him to bet on Lucky George at the alleged pool room, and that it was necessary to prove the falsity of such statements or representations in order to establish the corpus delicti of the crime, still it was not necessary to prove such matters by direct evidence. The corpus delicti may be proven by circumstantial evidence. (People v. See, 258 Ill. 152; People v. Hotz, 261 id. 239.) The circumstances disclosed by the evidence in this case fully warranted the jury in believing that the various statements and representations made by plaintiff in error to Kirby concerning his connection with the Western Union Telegraph Company and his ability to learn the results of horse races before such information was communicated to pool rooms were false. In our judgment the evidence conclusively shows that Kirby was the victim of a fraudulent scheme, in the execution of which plaintiff in error took an active, prominent part; that as a part of this scheme the rooms at 1710 Michigan avenue were arranged by plaintiff in error and his associates to represent a pool room where bets could be made upon the results of horse races, but that the apparent bet there made with Kirby was, in fact, a swindling operation, in which advantage was taken of the confidence reposed by Kirby in plaintiff in error. No attempt was made by plaintiff in error to explain any of the circumstances which, in the absence of explanation, inevitably lead to the conclusion that plaintiff in error is guilty of the crime of which he was convicted.

It is urged that the court erred in permitting the witness Ewen Pinkhard to testify to an offense committed by plaintiff in error other and distinct from the offense charged in the indictment. The testimony of Pinkhard, the substance of which has been set out above, shows that plaintiff in error had previously used the same confidence scheme to obtain money from Pinkhard that he used to obtain the money

from Kirby. Such evidence was competent for the purpose of showing guilty knowledge. Juretich v. People, 223 Ill. 484; People v. Weil, 243 id. 208; People v. Donaldson, 255 id. 19.

Plaintiff in error also complains that the court, over his objection, permitted four witnesses whose names were not indorsed on the indictment to testify on behalf of the People. In People v. Weil, supra, we said: "And it is within the sound legal discretion of the court to allow a witness to be called whose name is not indorsed on the back of the indictment, (Logg v. People, 92 Ill. 598,) and the exercise of that discretion will not be reviewed by this court unless it appears that the defendant has been taken by surprise, (Gifford v. People, 148 Ill. 173,) and the burden is upon the defendant to show that he was surprised." It appears from a colloquy between the State's attorney and the attorney for plaintiff in error that the former had, two days before the trial, furnished the latter with a list of witnesses to be called by the People upon the trial of this case and that the names of these witnesses were upon that list. No attempt was made by plaintiff in error to show that he was surprised by the action of the State's attorney in calling these witnesses, the only objection interposed being that the names of these witnesses were not indorsed upon the indictment. Under such circumstances there was no abuse of discretion on the part of the court in permitting these witnesses to testify.

The court admitted in evidence, over the objection of plaintiff in error, an order of the United States District Court for the Northern District of Illinois made June 4, 1913, finding Patrick O'Donnell, James Rosenthal and Francis Houlihan not guilty of obstructing justice. None of these parties were witnesses in this case, but it had developed during the trial that they were attorneys and represented Kirby and his wife in various proceedings taken against them in the bankruptcy matter on the charge of

concealing assets from the trustee of the bankrupt's estate. Proof that in the bankruptcy proceedings they had been found not guilty of obstructing justice was wholly irrelevant in this case and could have been of no assistance to the jury in arriving at a verdict. While the admission of this order in evidence was error it was harmless error, as it could not have influenced the jury in returning a verdict of guilty against plaintiff in error.

As hereinbefore stated, Kirby positively identified the defendant Snarley as one of the persons present in the rooms at 1710 Michigan avenue on October 28 and 29, and testified that Snarley at that time did not have a beard. Plaintiff in error offered to prove by several witnesses that Snarley during the latter part of October had a beard, and further, that on October 29 he was in Springfield. The court refused to permit this proof to be made, and in this particular erred. The evidence offered was competent for the purpose of discrediting the testimony of Kirby, if the jury should have seen fit to give to it that effect. The admission of this testimony, however, could not have affected the verdict. The story detailed by Kirby was in so many particulars confirmed by the testimony of various other witnesses, that in the absence of any evidence offered by plaintiff in error to deny or explain the material parts of Kirby's testimony connecting plaintiff in error with the crime the jury must necessarily have found him guilty, notwithstanding they may have disbelieved Kirby's testimony regarding the presence of Snarley at the alleged pool room on the occasion when Kirby was there.

There are no such errors in the record as require a reversal of the judgment. The judgment of the criminal court is affirmed. Judgment affirmed.

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. MORRIS MENDELSON et al. Plaintiffs in Error. Opinion filed June 16, 1914-Rehearing denied October 7, 1914.

I. CRIMINAL LAW-intent is part of charge of burglary. The crime of burglary, under the statute, consists of willfully and maliciously breaking and entering a building with intent to commit larceny or a felony, and not only must the entry be charged and proven, but also the intent to commit larceny or a felony.

2. SAME what essential where the charge is burglary with intent to commit larceny. In an indictment for burglary, where it is charged that the breaking and entry were with intent to commit larceny, it must be alleged that the intent was to steal the property of some person.

3. SAME what constitutes separate and distinct offenses. An indictment charging the breaking and entering of a building with intent to steal the goods of named persons who were tenants of a certain floor of the building, charges an entirely different offense from an indictment charging the same defendants with breaking and entering the same building with intent to steal the property of other named persons who were tenants of another floor.

4. SAME what not admissible to sustain plea of former acquittal. The record of the indictment, trial and acquittal of the defendants of the charge of breaking and entering a certain building with intent to steal the goods of "Korach & Stickler" is not admissible to sustain a plea of former acquittal on the trial of the same defendants for breaking and entering the same building with intent to steal the goods of "Goldstein, Harris & Guthman."

5. SAME when instruction as to testimony of policeman or detective is faulty. An instruction informing the jury that the business of a policeman or detective is a lawful one, and when such persons possess information bearing upon the question of guilt or innocence of a party on trial charged with crime it is their duty to appear and testify if called, which statement is then followed by a statement of the rule for judging their credibility, is faulty in singling out and calling attention to the testimony of particular witnesses; but the giving of such instruction is not necessarily ground for reversal.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. CHARLES A. MCDONALD, Judge, presiding.

LOUIS GREENBERG, for plaintiffs in error.

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