THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. ANDREW A. STRAUCH et al. Plaintiffs in Error.

Opinion filed April 23, 1909.

I. APPEALS AND ERRORS-instructions not objected to in Appellate Court cannot be attacked in Supreme Court. Under the rule that a party removing a cause from the trial court to the Appellate Court must point out in his brief all errors relied upon for reversal, instructions to which no objections are made in the brief filed in the Appellate Court cannot be attacked in the Supreme Court.

2. CONSPIRACY-when party introducing principal actors in conspiracy is guilty. One who, with the intention of bringing together other persons for the purpose of forming a conspiracy, introduces such persons, who thereupon enter into the unlawful agreement contemplated, is guilty of conspiracy.

3. SAME-party aiding and encouraging forming of conspiracy is guilty. One who aids, assists and encourages two other persons to enter into an unlawful agreement to prevent competition in the letting of a public contract is equally guilty with the two who actively participated in the unlawful agreement and executed it.

4. SAME-what constitutes a conspiracy to prevent competition in letting a public contract. Where a person who has knowledge that a certain public contract will not be let if there is but one bidder goes to the sole intending bidder and arranges to put in a fictitious higher bid, thus enabling the real bidder to get the contract instead of having the letting thereof go over to a future time, there is conspiracy to prevent competition in letting the contract.

5. SAME matter of loss to public is not material in conspiracy to prevent competitive bidding. It is the making of the unlawful agreement to prevent competition in the letting of a public contract which constitutes the offense of conspiracy, irrespective of the matter of loss to the public, and the fact that one of the parties to such an agreement objected to the amount of the bid and succeeded in having it reduced is not a circumstance to be considered in mitigation of his offense.

6. SAME-concurrence in a conspiracy is sufficient without an agreement to concur. All who, with knowledge of the facts, take part in a conspiracy after it is formed and while it is in execution, and concur in the plans and aid in executing them, are fellowconspirators, and such concurrence, without proof of an agreement to concur, is conclusive against them, as they commit the offense of conspiracy when they become partners to the transaction to further the original plans.

7. NEW TRIAL-proof of bias of juror must be clear. To justify setting aside a verdict and awarding a new trial because of previously expressed opinions of a juror indicating bias or prejudice, the proof of such bias or prejudice must be clear and satisfactory.

8. TRIAL-Counsel may comment on what is fairly inferable from facts proven. What is proven by direct testimony or is fairly inferable from facts and circumstances proven and which has a bearing upon the issues may be a fair subject for comment by counsel in the argument to the jury, and if such deductions or inferences tend to fix upon a defendant the wickedness of the crime charged against him, it is within the scope of proper argument to denounce him accordingly.

9. INSTRUCTIONS-when an instruction to the effect that party signing receipt is presumed to know its contents is not misleading. An instruction holding that if the jury believe, from the evidence, that one of the defendants in a conspiracy case signed a certain receipt then it is presumed he knew the contents thereof when he signed, is not misleading in failing to state whether such presumption is conclusive or rebuttable, where other instructions state that if such defendant did not know the contents and purport of the receipt when he signed it, it could not be considered against him.

WRIT OF ERROR to the Appellate Court for the Second District;-heard in that court on writ of error to the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding.

O. M. GROVE, and W. H. A. RENNER, (E. E. WINGERT, of counsel,) for plaintiffs in error:

It is a familiar doctrine in criminal cases that if a reasonable doubt of the guilt of the prisoner is entertained the jury have no discretion but must acquit. Miller v. People, 39 Ill. 457; Carle v. People, 200 id. 500; Johnson v. Pcople, 202 id. 60.

Acts done innocently, though tending to further the object of a conspiracy, will not render their author a co-conspirator. (6 Am. & Eng. Ency. Law, 840.) Knowledge of the conspiracy and intent to participate therein are essential.

Although an objection is sustained to unwarranted remarks of counsel in his closing argument to the jury and

they are withdrawn, their effect has been produced upon the jury and remains with them. Counsel may not thus violate all proper rules to be observed in arguments to the jury and escape the consequences. Wetzel v. Meranger, 85 Ill. App. 457.

How much did it avail for the court to tell the jury that the remarks of counsel were improper? His words had found lodgment in the minds of the jury, spent their force and subserved the purpose for which they were uttered, and it were idle to talk about removing their effect upon the jury by a mere declaration from the court that they were improper. Quinn v. People, 123 Ill. 333.

In other jurisdictions, as well as our own, courts of review have criticised severely language of the public prosecutor in criminal trials similar to that used in this case and held the same to be ground for reversal. Raggio v. People, 135 Ill. 533; Bonardo v. People, 182 id. 420; People v. Mitchell, 62 Cal. 411; State v. Fischer, 134 Mo. 460; Magnuson v. State, 41 N. E. Rep. 545.

The object of a conspiracy must be proved as laid in the indictment, and in order to show conspiracy something more is required than proof of the mere passive cognizance of an illegal action intended or desired by others. There must be something showing active participation of some kind by the parties charged. Evans v. People, 90 Ill. 384; People v. Mather, 4 Wend. 229.

An instruction which singles out and gives undue prominence to certain facts, ignoring other facts proved and of equal importance in a proper determination of the case, is improper. Calef v. Thomas, 81 Ill. 178.

While a jury may convict upon the uncorroborated testimony of an accomplice, such testimony is to be subjected to the same tests applied to the testimony of other witnesses, and courts should proceed upon such testimony with great caution. Campbell v. People, 159 Ill. 9; Hoyt v. People, 140 id. 588; Friedberg v. People, 102 id. 160; Earll v.

People, 73 id. 329; Cross v. People, 47 id. 152; Gray v. People, 26 id. 344; Collins v. People, 98 id. 584.

W. H. STEAD, Attorney General, and F. J. STRANSKY, State's Attorney, for the People:

In all cases of conspiracy, and in all prosecutions for crimes perpetrated in pursuance of a conspiracy, it is proper to show the entire history and plan of the conspiracy in so far as may be necessary to connect the defendants with the crime charged and to explain their acts and motives, although the defendants may be thereby implicated in numerous overt acts constituting distinct indictable offenses and although the conspiracy may be disclosed in numerous indictable aspects. Roscoe on Crim. Evidence, secs. 92, 93; Ford v. State, 34 Ark. 649; State v. Greenwade, 72 Mo. 298; Bloomer v. State, 48 Md. 521; Carroll v. Commonwealth, 84 Pa. St. 107; Tarbox v. State, 38 Ohio St. 581.

A conspiracy is proven either expressly or by the proof of the facts from which the jury may infer it. It is seldom proved expressly, nor can a case easily be imagined in which that is likely to occur, unless where one of the persons implicated in the conspiracy consents to be examined as a witness for the prosecution. In nearly all cases the conspiracy is proved by circumstantial evidence, viz., by proof of facts from which the jury may fairly imply it. Archbold on Crim. Pl. & Pr. 619; Ochs v. People, 124 Ill. 421.

In order to constitute the crime of conspiracy it is not essential that each conspirator should know the exact part to be performed by the other conspirator in the execution of the conspiracy. 8 Cyc. 622, and cases cited.

A person may be liable for a conspiracy notwithstanding the part he takes is a subordinate one and was to be executed at a remote distance from the other co-conspirators. 8 Cyc. 643.

To render a person criminally liable as a conspirator it is not necessary that under the scheme he should have any

pecuniary benefit in the matter or have joined with a view of obtaining pecuniary benefit. 8 Cyc. 643.

It is immaterial whether persons indicted for conspiracy designed to procure the money for the purpose of sharing it or merely for the benefit of one of their number. Stinson v. People, 43 Ill. 401.

In the reception of circumstantial evidence in conspiracy cases great latitude must be allowed. The jury should have before them every fact which will enable them to come to a satisfactory conclusion. 8 Cyc. 678; United States v. Wilson, 60 Fed. Rep. 890.

It is not essential to the formation of a conspiracy that there should be a formal agreement between the parties to do the act charged. It is sufficient if the minds of the parties meet understandingly, so as to bring about an intelligent and deliberate agreement to do the acts and commit the crimes charged, although such agreement be not manifested by any formal words. McKee v. State, 111 Ind. 378.

When two or more conspire together to commit an actionable wrong, everything said, done or written by any one of them in execution or furtherance of their common purpose is deemed to be said, done and written by each one and is a relevant fact against each. Hamilton v. Smith, 39 Mich. 231; Lasher v. Little, 202 Ill. 551; Cooley on Torts, 127; United States v. Cassaday, 66 Fed. Rep. 693; Spies v. People, 122 Ill. 228; Doremus v. Hennessy, 176 id. 608; Hawarden v. Coal Co. 111 Wis. 545; Accident Co. v. Horn, 206 Ill. 493; Franklin Union v. People, 220 id. 376.

Mr. JUSTICE VICKERS delivered the opinion of the court:

Andrew A. Strauch, Oswald Strauch and Hubert E. Hughes were jointly indicted in the circuit court of Carroll county for unlawfully conspiring for the purpose of preventing competition in a public letting of contracts for the construction of certain bridges which were to be constructed