TIONS BY STATE'S WITNESS.

questions by the state's attorney to his witness, Defendant may not complain of improper objections to them having been sustained, and it being impossible to say he was not acting in good faith under the belief he had the right to make the proof. Criminal

see

[Ed. Note. For other cases, Law, Cent. Dig. § 1693; Dec. Dig. § 730.*] 5. CRIMINAL LAW (8 787*)-FAILURE OF DEFENDANT TO TESTIFY-INSTRUCTIONS.

The instruction on the trial of B. and N., of whom B. only testified, that a defendant may testify or not, as he pleases, and that when a defendant testifies the same rules are to apply to him as to other witnesses, cannot be complained of by N. as a violation of the statute against reference to or comment on the subject of a defendant not testifying.

not disputed, but are also such that there can | 4. CRIMINAL_Law (§ 730*)—IMPROPER QUESbe no difference in the judgment of reasonable men in the inference to be drawn therefrom. Nall v. Taylor, 247 Ill. 580, 93 N. E. 359; Illinois Central Railroad Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368; Waschow v. Kelly Coal Co., 245 Ill. 516, 92 N. E. 303. The evidence in this case shows that the runway was permitted to become so piled with brick that there was only a space about 5 feet in width at the place where appellee was required to pass his colaborers, and that when the empty wheelbarrow was placed as close to the pile of brick as it could be placed there was less than 3 inches in space between the trays of the wheelbarrows for passing, and the wheeler was but about 15 inches from the unguarded edge of the platform or runway. Under these facts and circumstances as proven it might fairly and reasonably have been found by the jury that the scaffold or runway on which appellee was required to work was permitted to become unsafe and of insufficient width to afford adequate protection to the men at work thereon, and that such condition was the proximate cause of appellee's injury.

(Supreme Court of Illinois. June 16, 1914. Rehearing Denied Oct. 7, 1914.)

1. CRIMINAL LAW (§ 510*)—AccOMPLICE TES

TIMONY-NECESSITY OF CORROBORATION.

A conviction may be had on the uncorroborated testimony of an accomplice if it be of a character to satisfy the jury, beyond a reasonable doubt, of the guilt of accused. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1124-1126; Dec. Dig. 510.*]

2. CRIMINAL LAW (§ 1036*)—APPEAL-OBJECTION BELOW.

Testimony, not objected to when offered, may not be complained of on appeal as incompetent.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1902, 1903; Dec. Dig. § 787.*]

6. CRIMINAL LAW (§ 721*)-FAILURE OF DE

FENDANT TO TESTIFY-ARGUMENT OF STATE'S
ATTORNEY.

The statute forbidding reference to or comment on the fact of a defendant not testifying ment to the jury, presenting the state's evidence does not preclude the state's attorney, in arguon a certain fact to the jury, as wholly uncontradicted.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*] 7. ARSON (§ 41*)-MISLEADING INSTRUCTIONS. struction that if the jury believed any defendThat an instruction, if open to the conant caused the burning the jury should convict all the defendants, was not misleading is shown by the acquittal of one of them.

[Ed. Note.-For other cases, see Arson, Cent. Dig. 88 77-80; Dec. Dig. § 41.*]

8. CRIMINAL LAW (§ 761*)—HARMLESS ERROR -CONSTRUCTIONS.

Assumption in the instruction of the commission of the crime, is harmless; its commission being proved beyond doubt.

[Ed. Note.-For other cases, see Criminal

Law, Cent. Dig. §§ 1731, 1738, 1754–1764, 1771, 1853; Dec. Dig. § 761.*]

9. ARSON (§ 22*)-INDICTMENT-DESCRIPTION OF BUILDING.

It is sufficient, if the building be occupied, that the indictment for arson alleges the building to be the property of the owner, lessee, or occupant.

[Ed. Note. For other cases, see Arson, Cent. Dig. 88 45-49; Dec. Dig. § 22.*]

Error to Criminal Court, Cook County;
Chas. M. Walker, Judge.

Nathan Spira was convicted of arson, and
Affirmed.

[Ed. Note.-For other cases, brings error. see Criminal Law, Cent. Dig. §§ 1631-1640, 2639–2641; Dec. Dig. § 1036.*]

3. CRIMINAL LAW (§ 511*)-SUFFICIENCY OF EVIDENCE-TESTIMONY OF ACCOMPLICE-COB

ROBORATION.

Evidence in an arson case, though resting chiefly on the testimony of an accomplice, with facts shown tending to discredit him, held in view of corroboration, sufficient to sustain a conviction of defendant, as the person who hired the accomplice to set the fire.

Arthur C. Bachrach, of Chicago, and Francis J. Sullivan, of New York City (Oscar Blumenthal, of Chicago, of counsel), for plaintiff in error. P. J. Lucey, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, C. H. Linscott, of Springfield, and Frank Johnston, Jr., and Everett Jennings, both of Chicago, for the People.

CARTWRIGHT, C. J. The plaintiff in erDec. Dig. ror, Nathan Spira, his brother, Benzoin Spira, David Rice, and Max Feilschmidt were

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; 511.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-16

Sunday morning, May 7, 1911, at about 1:30 o'clock, the fourth floor of a four-story building owned by Albert Dickinson, at Nos. 16-22 South Peoria street, was burned, together with a stock of hats, caps, and children's dresses, the property of Benzoin Spira; doing business under the name of B. Spira & Co. The stock of merchandise was insured for about $17,000 and about $15,000 was collected. Nathan Spira was not one of the owners of the property, nor interested in the business, but was an insurance adjuster, and the whole matter of the insurance was turned over to him after the fire. The fire was of incendiary origin, and was started on the third and fourth floors of the building by the use of gasoline, with which the goods on the counters and tables were saturated and which ran off on the floor along the aisles, and burned the floor in streaks at the sides of the tables.

indicted in the criminal court of Cook county | the office of Max Feilschmidt, a fire insurfor arson, in burning, or causing to be ance adjuster, in the Roanoke Building, in burned, on May 7, 1911, a building used and Chicago, and met him frequently for a numoccupied by divers persons for store and fac- ber of weeks, until in February, 1911, Nathan tory purposes in the county of Cook, the Spira asked him to do a job of burning for property of Albert Dickinson. The defend- him, saying that he did not want the fire to ant David Rice could not be found. Max originate in his brother's place, but on the Feilschmidt was not put upon trial, and was floor below, to avoid suspicion. Fink agreed a witness for the people. The jury found to do the job for $400, and Spira said that Nathan Spira guilty, and he was sentenced they would go and look over the premises to confinement in the penitentiary for an in- when the hands were all away, and they determinate period Benzoin Spira was ac- went one evening at about 6:30 o'clock and quitted. met Benzoin Spira on the fourth floor. It had been agreed that Fink should say he wanted to get children's dresses, and was to look around and see how much gasoline would be needed. He followed the directions and looked around the place and told Nathan Spira that he would need 50 gallons. Nathan Spira told him that his brother was in very bad circumstances and would like to get a fire and pay up his creditors; that he had not got enough insurance and to wait until he had got more insurance, and Fink was to wait for an answer from the insurance company. A week before the fire Nathan Spira told Fink he had got the necessary amount from the insurance company and was ready, and Fink said he had got the gasoline over in his shed and would haul it over three or four days before the fire. Nathan Spira told him he would get a key to the third floor, and the fire should be started on that floor a few minutes ahead of time. On Friday night It was satisfactorily proved that the fire Fink engaged an expressman named Schneiwas set by Ben Fink, a witness in the case, der to haul the gasoline to the premises, and who was shown by the defendants, in his Fink and the defendant David Rice took cross-examination, to have been engaged in four 10-gallon cans of gasoline out of Fink's the business of setting fires for other persons coal shed, and the three rode on the wagon for as much as 31⁄2 years, and had been in- to the premises, where they unloaded the dicted in a great many cases for setting such gasoline. Nathan Spira was there, and they fires. He gave a full account of the means carried the gasoline upstairs to the fourth by which and the manner in which he set floor and put it in a big sample trunk about the fire, and the only evidence directly con- four or five feet wide and seven feet long, tradicting him was the testimony of three and Fink put rags over the cans, and moth witnesses from Indiana, who said that on the balls to cover up the smell of the gasoline. night of May 6, 1911, they played poker for On Saturday afternoon, which was a half money with him in Brazil, Ind., from be- holiday, Fink and Rice went up on the fourth tween 8 and 9 o'clock in the evening until floor. Nathan Spira was present, Benzoin between 2 and 3 o'clock in the morning. The having gone to Paw Paw Lake. Fink and jury gave no credit to their statements; and, Rice laid out the goods, and put papers, ravafter reading their examination and cross-elings, linings, and other articles along the examination, we think the conclusion of the aisles to keep the gasoline from dripping upjury was right. Fink had no interest in the on the floor. There was a paper box factory business or the property burned, and sus- on the third floor, and Fink scattered cliptained no relation to the owner that would ings from the paper boxes around the elecause him to burn it, and it cannot be doubt-vator on that floor. Fink and Rice remained ed that in following the business in which and played cards until about midnight and he was engaged he set the fire at the instance then got ready for the fire by pouring gasoof some other person and for some compen- line over the goods and on the litter on the sation. The question before the jury was third floor. Fink used three fuses-one on whether Nathan Spira and Benzoin Spira the third floor and two on the fourth-setwere his employers, and the jury found that ting them so that those on the fourth floor Nathan Spira was, but that Benzoin Spira, would start the fire on that floor about two who was at the time in his summer residence minutes after it started on the third floor. at Paw Paw Lake, Mich., was not. The fuses were set on fire and then Fink and Rice went out of the window, down the fire

The facts, according to Fink's testimony,

than Spira gave Fink $200, and paid him the balance of $200 about six weeks later, in the office in the Roanoke Building.

criminal, and also to some extent by a transaction which occurred in the early spring of 1913, while he was in jail in South Bend, Ind., charged with arson in connection with what was called the Kahn fire. There had been many fires in Chicago believed to be incendiary, and an effort was made to get information concerning them from Fink. He claimed that his family was destitute, his wife sick, his doctor's bills unpaid, and that the arson ring had threatened to cut him off, and he had been in jail 13 weeks and wanted $2,000. On a promise of the money he made a statement of alleged incendiary fires in Chicago, and an attorney representing various insurance companies, by the advice of the state's attorney, went to South Bend, and, after the statement was made, paid Fink $2,000. Fink was released from the South Bend jail and brought to Chicago in the custody of an officer, and from April 7, 1913, he was kept in the custody of an officer at a hotel or hotels in Chicago at the expense of the county of Cook, amounting at the time of the trial in December, 1913, to $2,038.25. The statement made at South Bend, however, did not implicate Nathan Spira in any way or relate to this fire, and no such statement was made until Fink went before the grand jury, and the indictment in this case was returned on October 23, 1913. After being brought to Chicago he was kept in the custody of the officer for the purpose of securing his attendance and making use of him as a witness, and he was promised im

Max Feilschmidt, whose office was in the Roanoke Building, testified that he had been an insurance adjuster for 14 or 15 years; that he had known Nathan Spira about 20 years; that Nathan Spira asked him to assist him in getting insurance on his brother's place, because the insurance companies were canceling insurance; that he introdued Nathan Spira to a friend, through whom insurance amounting in the aggregate to about $5,000 was obtained; that he had a talk with Nathan Spira in his office about a previous conversation with Fink, in which he upbraided Nathan Spira for not telling him what he intended to do, and told him that Fink had been there and said he was going to have a job in the brother's place; that Nathan Spira was indignant and called Fink a vile name, but asked Feilschmidt to be quiet and be a good fellow, and said that he did not intend to tell Feilschmidt, but if Fink had told him he would not deny it; that Nathan Spira and Fink came up to the office three or four days before the fire and asked him whether he had a friend in the express business; that Fink said he wanted to haul some goods from his office to his new residence; that the witness called up a friend in a neighborhood where there were a lot of expressmen, and Fink afterward said that he got an expressman; that after the fire the expressman was arrested, and Feilschmidt told Nathan Spira of the fact and asked him to pay for his law-munity from any crimes concerning which yer because he hauled the goods over to the fire, and Nathan Spira said the man got paid for the job and let Fink settle it up; that a couple of months after the fire Nathan Spira brought him $75 for helping him get the insurance, and they had an unfriendly talk, but the witness took the money, as it was all he could get.

justify the jury in the belief that his testimony was true.

he might testify. Max Feilschmidt, who had been an insurance adjuster, had been employed by the board of underwriters of the insurance companies as an investigator of fires and had received $125 a month for several months, and he had been kept for a short time before the trial at a hotel in the custody of an officer, at the expense of Cook [1] Ben Fink, who set the fire, was an ac- county. In view of the character of Fink, complice of some other person. He could not his acknowledged complicity in the alleged gain anything from the commission of the crime and the facts shown on the trial tendcrime unless the benefit came from some one ing to discredit him, we would be unwilling interested in some way in having it commit- to affirm the judgment if it rested on his tested. The testimony of an accomplice is al-timony without such corroboration as would ways acted upon with the greatest caution, and is frequently given under the strongest motives to escape punishment and fix the crime upon another. Hoyt v. People, 140 Ill. 588, 30 N. E. 315, 16 L. R. A. 239; Campbell v. People, 159 Ill. 9, 42 N. E. 123, 50 Am. St. Rep. 134; Conley v. People, 170 Ill. 587, 48 N. E. 911; Cochran v. People, 175 Ill. 28, 51 N. E. 845. A conviction may be had, however, on the uncorroborated testimony of an accomplice if it is of a character to satisfy the jury, beyond a reasonable doubt, of the guilt of the accused. Honselman v. People, 168 Ill. 172, 48 N. E. 304; Kelly v. People, 192 Ill. 119, 61 N. E. 425, 85 Am. St. Rep. 323; People v. Feinberg, 237 Ill. 348, 86 N. E. 584. The credibility of Fink was affected by the fact that he was a degraded

[2, 3] There was evidence corroborating Fink, both as to the fire and the connection of Nathan Spira with it. The evidence of a large number of firemen tallied exactly with his account of the manner in which the gasoline was applied and the places where it was used. William Schneider, the expressman, stated the facts concerning the hauling of the gasoline on a dark and rainy night, on a Friday. He thought it was a week before the fire, and he did not mention Rice as being with Fink, and did not see Nathan Spira, who was said to be at the building. He had no particular occasion to remember the time of the fire more than a year and a half afterward, and there is no reason to question the

So far as there was any evidence fairly tending to contradict that which was given on the part of the people it has been related. It will be seen that most of the material evidence was not contradicted, and we regard it as sufficient to sustain the verdict.

fact that he hauled the gasoline. After the only in the trunk Saturday forenoon while fire he went to the office of A. A. Arnold, the employés were there, and there was no who had the paper box factory, and was les-evidence that the trunk was opened or looksee of the entire building and under whom ed into every day. There was an inventory Benzoin Spira was a sublessee, and asked after the fire, showing a total of $12,470.92 Arnold for his pay for the job, which was merchandise and $8,280 fixtures, machinery, $1.50. He told Arnold that Fink hired him, etc. Hyman Golbstreich assisted in making and said the boss would pay him. Com- the inventory, and was one of the witnesses plaint is made that this testimony was in- who saw no cans in the trunk. There was competent. Schneider testified to his conver-evidence of two witnesses that he had adsation with Arnold, and Arnold afterward mitted that the schedule was a false one and testified to the same conversation. No objec- the items overvalued and items in it which tion was made to the testimony of either on were not there at all, and that the defendthat subject, and there was no ruling by the ants had given another witness, connected court. Arnold thought, from Schneider's with making the schedule which the other manner, that he was connected with the fire, witness had said was a crooked one, $25 to and when the state's attorney began to in- get out of town. quire of Arnold about steps taken to have the fire attorney meet Schneider to entrap him, objection was made and the court sustained it. Schneider was arrested, and Feilschmidt urged Nathan Spira to help him, as before stated, and Spira gave Schneider $25 to pay for a lawyer, saying that he did not hire him, but would take care of him if he would be a good fellow. Bertha Fink, wife of Ben Fink, testified that she had a conversation with Nathan Spira when her husband was in jail in Indiana, and said she needed money, and he said he would give her money that was coming to her, and gave her $25 a week, paid her rent, which was $35 a month, and gave her in all $225, and told her if any one came down from the state's attorney, to say she was sick, and if, any nurse came around, or they sent a doctor or nurse to take care of her, she should say she had her own doctor, and to say nothing. Nathan Spira went to South Bend when Fink was in jail and gave Fink about $15 to buy cigarettes or for expenses in jail, and told him his family had plenty of money, and that his wife was getting plenty of money. Mollie Zar, a witness for the defendant, testified that Mrs. Fink applied to her for help, and Nathan Spira said he would help her and gave her $10 in the presence of the witness, but she said that the money given Mrs. Fink was collected from a person named Rosenberg, who paid about $200, and said that was all he owed Fink. Mollie Zar's husband had confessed to crimes of arson, and she was kept with him for a time at a hotel, and also testified that Fink told her at the hotel that unless Nathan Spira got in line and helped him, he would put him in bad. This was denied by Fink, but seems probable in view of the fact that Fink made no disclosure about this fire as long as Nathan Spira was help ing him.

[4] There are a number of complaints of rulings by the court. One is that the court erred in permitting questions to be asked of the witness Mollie Zar. Her husband had been a member of the firm of Spira, Zar & Brown, of which Nathan Spira was a member, and her husband had made a confession, as above stated. The witness had come from Memphis, Tenn., to testify and had been on terms of much intimacy with Nathan Spira, and had written to him from Memphis, saying that she wished he was there, and that she missed him dreadfully. Questions were asked designed to ascertain whether there were immoral relations between them, and when asked, the attorney for defendants first objected, and then said, "Go ahead," and if the state's attorney did not show it, he wanted him punished for contempt. The attorney was objecting, consenting, and protesting, and complaining that the state's attorney was insulting to the witness. She denied there were any immoral relations, and in view of what she had already stated the questions were not improper. The state's attorney also inquired of Mollie Zar about the connection of Nathan Spira with other fires, and if he was not implicated with the other fires confessed by her husband, and whether it was not a fact that Rosenberg, who she said furnished the money paid by Fink, also had a fire loss. The questions were improper, but objections were sustained to each, and we cannot say that the state's attorney was not acting in good faith under the belief that he had a right to make the proof. There were frequent bickerings beThree employés of Benzoin Spira gave evi- tween the attorneys at the trial all of whom dence tending to discredit Fink's testimony were combative, and there were retorts and that the gasoline cans were in the trunk. insinuations which were improper, but the They testified that the trunk contained furs rulings of the court were correct. It is true used in trimming hats; that it was looked that the court confined participation in the into from time to time, and they did not dis- trial to merely sustaining or overruling objeccover any odor of gasoline or see any cans. tions and did not exercise proper authority,