Mr. Justice Scott
delivered the opinion of the court:
Anderson denied that he signed the written statement above set out. When it was ready to be signed, according to the evidence for the prosecution, the police sent out for persons not connected with the police department to witness Anderson’s signature, and brought in W. L. Norman-dine, a deputy sheriff serving in the, municipal court, and a man by the name of Campbell. The latter was not called as a witness and it appears that he was out of the State at the time the case was tried. Normandine was and testified that he was acquainted with Anderson and saw him in the police station on the occasion in question; that after he reached there he was given the statement and read it over; that Fitzgerald, the police officer who reduced the statement to writing, then asked Anderson to read it. Anderson said, “No; you read it.” Fitzgerald then read it aloud and asked Anderson if it was all right. Anderson answered “yes; that he made no objection to anything that was read and that it was his statement.” Normandine testified that, in response to questions asked by him at the time, Anderson said that he did not make the statement under any coercion; that he made it of his own free will; that he had not been promised immunity; that he had not been abused or treated unkindly by the officers at the station and that he made the statement because he wanted to. On cross-examination Normandine said that he asked these questions of Anderson because he thought probably the police “abused persons like that when they wanted a confession from them;” that Anderson, at the time, “was very cool and collected and there did not seem to be anything bothering him at all.”
In addition to that, Fitzgerald, Mulhearn," McSwiggen and filealy, police officers, testified in reference to the making and signing of this statement. It appears from their testimony that the statement was freely and voluntarily made and signed, without any promise of leniency on account thereof. Normandine, Campbell and two police officers signed as witnesses to Anderson’s signature. Anderson also denied the essential parts of the statement which he is said to have made to Day. Lemke swears positively that Anderson fired the fatal shot. Nothing else is consistent with the testimony of Davis and Dennin, and from Anderson’s statements, written and oral, it appears that this must be so. It is true that he says by his statements that he does not know whether the first shot he heard was from the revolver which he had in his hand, but McCagg did not then have a revolver in his possession. If the first shot which he heard did not come from the revolver which he had in his hand it could only have come from Callaghan’s revolver, and there is not the slightest indication in the case that the wound from which Callaghan died was self-inflicted. It necessarily follows that the shot which killed Callaghan was one of the shots which. Anderson fired. If Callaghan swung McCagg around in front of him for the purpose of using him as a shield when Anderson was firing, as Dennin testified, the result of this maneuver was to place McCagg with his back toward Anderson and to leave Callaghan with his face toward Anderson. In the course of this movement, if it was made, Callaghan was in a position to receive from Anderson’s revolver the shot in his abdomen and McCagg was in a position to receive from the same weapon the wound in his back.- Anderson’s statement that a “little fellow” came running down the avenue from the north, firing at the three men on the corner, and that he (Anderson) picked up the/revolver for the purpose of firing toward the little fellow., is manifestly a pure invention, made necessary on the trialr/for the purpose of explaining how Anderson came to have possession of the revolver which the polled had already found at the place at which Anderson had told them he had hidden it. According to Anderson’s testimony on the trial there was no purpose whatever in picking up the revolver and firing it except to repel the attack of the man who came from the north. No other of several persons who were eye-witnesses to - the shooting saw the “little fellow” shooting in Hoyne avenue. To us it is clear and certain, upon consideration of competent evidence offered against Anderson and upon consideration of testimony offered in his favor, that he (Anderson) fired the shot at Callaghan which killed the .latter, under circumstances which make the act of Anderson murder.
It is complained that the court erred in refusing to grant Anderson a separate trial. The only motion for a separate trial shown by the bill of exceptions is one made after the jury were sworn. It does not appear that it was based on any ground not known to plaintiff in error when the jury were called into the box. It is certain that in the absence of a showing that something had come to Anderson’s knowledge after the jury were sworn which afforded a basis for a separate trial, the motion was properly overruled on the ground that it came too late. (Hullinger v. State, 25 Ohio St. 441; State v. Mason, 19 Wash. 94; Nichols v. Territory, 3 Okla. 622; State v. McLane, 15 Nev. 345.) What the rights of Anderson would have been had it appeared that the motion was based on such newly acquired information is not for our determination.
While Dennin and Lemke were confined at the police station each made a written statement, which, in substance, was the same as the testimony of Lemke given on the trial and recited in the foregoing statement of facts, except that each of such statements made at the police station showed more clearly that when the four men were upon the street after leaving the room they were acting in concert for the purpose of obtaining money by highway robbery. These were admitted in evidence, and it is urged that this was error. Each of those statements tended to show guilt, as charged in the indictment, on the part of the man who made it, and both of the men who made the statements were on trial when the statements were offered. It is, of course, true that one of several co-defendants charged with a crime cannot make a statement exonerating himself and fastening the crime upon another co-defendant, and thereby make the statement admissible on the theory that it is a confession of the defendant making it. No man can confess for any one but himself. As above indicated, however, each statement contained admissions of fact which the jury might rightfully regard as tending to show the guilt of the man making the statement. If there was in either statement anything the effect of which was to indicate the guilt of Anderson without tending to show the guilt of the man making the statement, that part of the statement was not properly admissible in this case where Anderson was on trial. There is no part of either statement which could have been excluded on that theory. Each of the written recitals was properly admitted in evidence as against the man making it.
Dennin and Lemke both testified at the coroner’s inquest upon the body of Callaghan. The prosecution in this case proved what each said there, by taking the testimony of the deputy coroner who conducted the inquest and of a stenographer who took the testimony there. The prosecutor by the usual method showed this evidence to be within the rule announced in Lyons v. People, 137 Ill. 602, and that being so, it was proper to prove against either' of the two' men, Dennin and Lemke, what he had said before the coroner. Objection was interposed as to the manner in which proof was made in the criminal court of the statements which had been made before the coroner.
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Mr. Justice Scott
delivered the opinion of the court:
Anderson denied that he signed the written statement above set out. When it was ready to be signed, according to the evidence for the prosecution, the police sent out for persons not connected with the police department to witness Anderson’s signature, and brought in W. L. Norman-dine, a deputy sheriff serving in the, municipal court, and a man by the name of Campbell. The latter was not called as a witness and it appears that he was out of the State at the time the case was tried. Normandine was and testified that he was acquainted with Anderson and saw him in the police station on the occasion in question; that after he reached there he was given the statement and read it over; that Fitzgerald, the police officer who reduced the statement to writing, then asked Anderson to read it. Anderson said, “No; you read it.” Fitzgerald then read it aloud and asked Anderson if it was all right. Anderson answered “yes; that he made no objection to anything that was read and that it was his statement.” Normandine testified that, in response to questions asked by him at the time, Anderson said that he did not make the statement under any coercion; that he made it of his own free will; that he had not been promised immunity; that he had not been abused or treated unkindly by the officers at the station and that he made the statement because he wanted to. On cross-examination Normandine said that he asked these questions of Anderson because he thought probably the police “abused persons like that when they wanted a confession from them;” that Anderson, at the time, “was very cool and collected and there did not seem to be anything bothering him at all.”
In addition to that, Fitzgerald, Mulhearn," McSwiggen and filealy, police officers, testified in reference to the making and signing of this statement. It appears from their testimony that the statement was freely and voluntarily made and signed, without any promise of leniency on account thereof. Normandine, Campbell and two police officers signed as witnesses to Anderson’s signature. Anderson also denied the essential parts of the statement which he is said to have made to Day. Lemke swears positively that Anderson fired the fatal shot. Nothing else is consistent with the testimony of Davis and Dennin, and from Anderson’s statements, written and oral, it appears that this must be so. It is true that he says by his statements that he does not know whether the first shot he heard was from the revolver which he had in his hand, but McCagg did not then have a revolver in his possession. If the first shot which he heard did not come from the revolver which he had in his hand it could only have come from Callaghan’s revolver, and there is not the slightest indication in the case that the wound from which Callaghan died was self-inflicted. It necessarily follows that the shot which killed Callaghan was one of the shots which. Anderson fired. If Callaghan swung McCagg around in front of him for the purpose of using him as a shield when Anderson was firing, as Dennin testified, the result of this maneuver was to place McCagg with his back toward Anderson and to leave Callaghan with his face toward Anderson. In the course of this movement, if it was made, Callaghan was in a position to receive from Anderson’s revolver the shot in his abdomen and McCagg was in a position to receive from the same weapon the wound in his back.- Anderson’s statement that a “little fellow” came running down the avenue from the north, firing at the three men on the corner, and that he (Anderson) picked up the/revolver for the purpose of firing toward the little fellow., is manifestly a pure invention, made necessary on the trialr/for the purpose of explaining how Anderson came to have possession of the revolver which the polled had already found at the place at which Anderson had told them he had hidden it. According to Anderson’s testimony on the trial there was no purpose whatever in picking up the revolver and firing it except to repel the attack of the man who came from the north. No other of several persons who were eye-witnesses to - the shooting saw the “little fellow” shooting in Hoyne avenue. To us it is clear and certain, upon consideration of competent evidence offered against Anderson and upon consideration of testimony offered in his favor, that he (Anderson) fired the shot at Callaghan which killed the .latter, under circumstances which make the act of Anderson murder.
It is complained that the court erred in refusing to grant Anderson a separate trial. The only motion for a separate trial shown by the bill of exceptions is one made after the jury were sworn. It does not appear that it was based on any ground not known to plaintiff in error when the jury were called into the box. It is certain that in the absence of a showing that something had come to Anderson’s knowledge after the jury were sworn which afforded a basis for a separate trial, the motion was properly overruled on the ground that it came too late. (Hullinger v. State, 25 Ohio St. 441; State v. Mason, 19 Wash. 94; Nichols v. Territory, 3 Okla. 622; State v. McLane, 15 Nev. 345.) What the rights of Anderson would have been had it appeared that the motion was based on such newly acquired information is not for our determination.
While Dennin and Lemke were confined at the police station each made a written statement, which, in substance, was the same as the testimony of Lemke given on the trial and recited in the foregoing statement of facts, except that each of such statements made at the police station showed more clearly that when the four men were upon the street after leaving the room they were acting in concert for the purpose of obtaining money by highway robbery. These were admitted in evidence, and it is urged that this was error. Each of those statements tended to show guilt, as charged in the indictment, on the part of the man who made it, and both of the men who made the statements were on trial when the statements were offered. It is, of course, true that one of several co-defendants charged with a crime cannot make a statement exonerating himself and fastening the crime upon another co-defendant, and thereby make the statement admissible on the theory that it is a confession of the defendant making it. No man can confess for any one but himself. As above indicated, however, each statement contained admissions of fact which the jury might rightfully regard as tending to show the guilt of the man making the statement. If there was in either statement anything the effect of which was to indicate the guilt of Anderson without tending to show the guilt of the man making the statement, that part of the statement was not properly admissible in this case where Anderson was on trial. There is no part of either statement which could have been excluded on that theory. Each of the written recitals was properly admitted in evidence as against the man making it.
Dennin and Lemke both testified at the coroner’s inquest upon the body of Callaghan. The prosecution in this case proved what each said there, by taking the testimony of the deputy coroner who conducted the inquest and of a stenographer who took the testimony there. The prosecutor by the usual method showed this evidence to be within the rule announced in Lyons v. People, 137 Ill. 602, and that being so, it was proper to prove against either' of the two' men, Dennin and Lemke, what he had said before the coroner. Objection was interposed as to the manner in which proof was made in the criminal court of the statements which had been made before the coroner. This evidence could not be considered against Anderson and he was not injured by the method pursued in its introduction.
It is also insisted that the court erred in calling and examining- Lemke, and complaint' is made of certain questions propounded to and answers made by Lemke. No objection was taken in the trial court to this action of the court nor to any of the testimony of this witness.
In cross-examining Monaghan, the attorney for Lemke elicited the fact that he (Monaghan) was at the county hospital after McCagg was taken there and that he asked McCagg who shot him, and McCagg replied “Dave.” No objection was made and no motion was interposed to strike out the answer. Following that, when Captain Healy was on the stand he testified, in response to. questions propounded by the prosecutor, that McCagg, after he reached the hospital, stated that it was. Anderson who shot him. To this no objection was made and there was no motion to strike. Captain Healy also testified that thereafter Anderson was taken to the hospital and brought into the presence of McCagg; that the latter then stated, “That is Dave,— that is the man who shot me.” There was no objection and no motion to strike. Again, on cross-examination of Anderson the fact was elicited that he was taken to the hospital and into McCagg’s presence shortly before McCagg’s death; that he was ushered in between two police officers, to both of whom he was handcuffed; that a police officer inquired of McCagg, who was lying on his back, who the man was that shot him, and McCagg raised his hand and made a motion toward Anderson and the policemen to whom he was handcuffed, as though indicating them, or some one of them, in response to the question. Again no objection was made and no motion was interposed to strike. All the evidence taken tejidiug to show that McCagg said or indicated, after he reached the hospital, that Anderson shot him was highly improper, but it is scarcely necessary to say that in the absence of any question about the matter raised in the trial court there is nothing for us to consider. It may be observed that in this particular case there' is no basis for any presumption or contention that Anderson designedly shot McCagg. If he did, in fact, inflict a wound upon him it was evidently done in an attempt to shoot the officer. 1 • . When the confessions of Dennin and Lemke were offered, the court ruled, in substance, that the statement made by each was admissible only as to the charge against him and that the matter could be properly limited by instructions. The instructions, which were given to the jury at the request of the prosecution in reference to these statements were inaccurate and incomplete, and they were not cured by those given at the request of the accused.
People’s instruction No. 6o was to the effect that the law required a conviction where there was sufficient legal evidence to show the guilt of the defendant beyond a reasonable doubt, and that circumstantial evidence is legal evidence. It is said that the jury might, under this instruction, consider only the' evidence against defendant which might be sufficient to show his guilt and thereon found a conviction, although a consideration of all the evidence would leave in their minds a reasonable doubt as to his guilt. The jury were advised by several instructions that it was their duty to consider all the evidence' introduced by the respective parties. They were also instructed that after having considered the evidence on both sides of the case, if any reasonable doubt remained of the guilt of Anderson they should acquit him. We think the instruction, as one of the series, was not misleading.
It is also complained that the jury, should have been more carefully advised by this instruction in regard to the meaning of the term “legal evidence.” We think any man competent to serve on a jury ¡would understand that the term “legal evidence” meant any evidence that the jury had the right to consider.
The objection to the People’s instruction No. 61 was held in People v. Zajicek, 233 Ill. 198, to be without merit. People’s instruction No. 71 is questioned. It advises the jury that the intent alleged in the indictment may be inferred from the facts and circumstances shown by the evidence. The word “intent” does not appear in the indictment, and it is argued that the jurors cannot be said to have knowm what was meant by the word as it thus appears in the instruction. The indictment charges that the defendants “unlawfully, feloniously and of. their malice aforethought did kill,” etc. The jury were advised by other instructions that malice, as used in the indictment, meant a deliberate intention to unlawfully take away the life of a human being. It would seem that, considering the instructions as a series,.the jury would understand the meaning of the word “intent” as used in the instruction now under consideration.
It is also said that this instruction assumes that the assault charged in the indictment was made. An examination of the instruction leads us to the conclusion that this contention results from a misapprehension of its meaning.
Instruction No. 56 given on the part of the People reads as follows:
“The court instructs the jury, as a matter of law, that if two or more persons are engaged in the prosecution of a felony, the acts of each in the prosecution of such felony are binding upon all, and all are equally responsible for the acts of each in the prosecution of such felony.”
This states a fundamental principle often announced. We are unable to see any objection to it. It was pursuant to the law so stated that, the prosecution contended that Dennin and Lemke were guilty.
People’s instruction No. 58 advised the jury that notwithstanding the proof of Anderson’s good character he might be convicted if the jury were, from all the evidence, satisfied, beyond a reasonable doubt, of his guilt.- That instruction is identical in meaning wfith one which was approved by this court in Hirschman v. People, 101 Ill. 568.
For the purpose of expediting the trial and dispensing with the necessity of calling witnesses, counsel for Anderson and the prosecutor agreed that five witnesses, if present, would testify that Anderson’s reputation for “honesty, integrity and truthfulness” was good. It is said that the instruction just referred to was particularly harmful on account of evidence of the good character of the accused having been made to appear by stipulation instead of having been taken in the usual manner. What element of harm could have resulted from this situation is not pointed out.
Instruction No. 62 given for the People was a definition of reasonable doubt which received the approval of this court in Miller v. People, 39 Ill. 457. The instructions, as a whole, stated the law fully and accurately, except in reference to limiting the application of the confessions made by the various defendants. As above indicated, the competent evidence in this cas,e as to the charge against Anderson leaves no doubt of his guilt. It is therefore clear that the error in the instructions in reference to the limitations to be placed upon the various confessions was harmless. Such being the case, that error does not warrant reversal. Dacey v. People, 116 Ill. 555, and cases cited.
It is also urged that the court erred in unduly hastening the trial. The evidence was all taken in two days. During the course of the trial, on the second day, the court stated, “We are going to finish the evidence to-night.” When the hour of adjournment was reached, counsel for Anderson stated, in substance, that his evidence was all in, except that he wanted to put five character witnesses on the stand next morning. The court then stated that on account of the next day but one being Decoration Day he had desired to finish the evidence and he could go on at the time at which he was then speaking, but if counsel for Anderson desired he would adjourn until next morning. The prosecutor then offered to stipulate in reference to the testimony that the character witnesses would give. Counsel for Anderson accepted the offer, the stipulation was made and the court then adjourned until the next morning. Counsel who appear for Anderson in this court did not appear in this case in the criminal court. It is urged here that the court should not have permitted the stipulation to be made. In connection with this matter, and with the failure of counsel who' appeared for Anderson in the trial court to preserve in that court the rights of Anderson with reference to certain matters deemed by present counsel for Anderson to be material, it is argued that a judgment should not be affirmed, where the punishment is death, if it appears that through the ignorance or mistake of counsel in the trial court the rights of the accused have not been preserved in such manner that material questions can by the ordinary rule be reviewed here. Failure of counsel in the trial court to exercise great care and skill, if such failure occurs, will not change the law pertaining to the review of the records of nisi prius tribunals. Where parties enter into an agreement in reference to the course to be pursued in any particular litigation they will not afterwards be heard to complain that the court acted on the stipulation, except where, as the result of so doing, the court has exercised, or attempted to exercise, jurisdiction not given by law, as, for example, trying one charged with a felony without the intervention of a jury.
No error occurred in the trial court, that is open for consideration in this court, that could in any manner have influenced the jury to impose upon the defendant a severer penalty than that which they would have imposed had such error not intervened. The judgment'of the criminal court will be affirmed.
The clerk of this court is directed to enter an order fixing the period between nine o’clock in the forenoon and four o’clock in the afternoon of the yth day of May, A. D. 1909, as the time when the original sentence of death entered in the criminal court shall be executed. A certified copy of such order shall be furnished by the clerk of this court to the sheriff of the county of Cook.
Judgment affirmed.