Mr. Justice Scott
delivered the opinion of the court:
It is not contended by plaintiff in error (called Bilik) that the proof is such that a reversal should be had on the ground that the evidence did not warrant the verdict. It is the theory of the prosecution, and the evidence tended to prove, that the relations between the plaintiff in error and Rosie Vrzal, the wife of Martin Vrzal, 'were illicit; that Bilik and Mrs. Vrzal entered into a conspiracy the object of which was to destroy the lives of Martin Vrzal and of all the children of Martin and Rosie Vrzal except the son, Jerry; that in pursuance of the conspiracy Martin Vrzal and four of the children were murdered by arsenical poisoning, and that it was also agreed between Bilik and Mrs. Vrzal, as a part of the same conspiracy, that the life of Bilik’s mother should be taken.
There was insurance upon the life of each member of the Vrzal family who died and against whom the conspiracy is alleged to have been aimed, and that insurance became payable to Mrs. Vrzal and was substantially all collected by her. The view of the prosecution is, that the conspirators desired to obtain the money that would be payable upon the insurance policies on the lives of the members of the Vrzal family who died, and that Mrs. Vrzal desired to add thereto the property which Bilik represented that he would sueceed to upon the death of his mother. He would then obtain a divorce from his own wife, and if the various members of the Vrzal family against whom the conspiracy was aimed were out of the way, he and Mrs. Vrzal would marry, take Jerry, the son of the Vrzals, go to Europe and ¡ live there. There is no reason to believe, from the evidence contained in this record, that Bilik’s mother possessed any property except a very small amount, and the conclusion to be drawn from the People’s proof is that Bilik never intended to take her life, but that he proposed doing so for the purpose of inducing Mrs. Vrzal to consent to the destruction of the members of her own family so that she might obtain the money payable upon the insurance policies, which Bilik knew that he in turn could obtain from her. The theory of the defense was that Bilik was in no way responsible for the death of any person, and that Mrs. Vrzal or some other person had caused the death of Mary and the others without his knowledge or connivance; that Mrs. Vrzal committed suicide either because of her guilty conscience and dread of coming punishment or because she feared an unjust accusation. He was convicted of the murder of Mary, the first of the children to die. The prosecution was permitted to prove various circumstances occurring after the death of Mary, including the death of three of the other children. The question of the competency of the evidence which tends to show that the three other children died as a result of arsenical poisoning, for which Bilik was responsible in whole or in part, is not presented. Plaintiff in error states that if the facts be as contended by the prosecution the poisoning of Martin Vrzal and his children was legally one transaction, and he regards the evidence as to the death of each as admissible. Therefore no question in reference to the competency of that proof will be considered by us.
Plaintiff in error contends, however, that in the course of the trial various errors intervened which necessitate a reversal of the judgment of conviction. The first ground relied upon is, that the court erred in admitting certain testimony of the boy, Jerry Vrzal, in reference to a statement made by Bilik pertaining to a prosecution against him for violating the laws of the State of New York by practicing fortune telling in that State. This alleged error has been obviated by an addition made to the transcript of the record, by leave of court, since the brief and argument of plaintiff in error was filed.
The prosecutor, without objection, interrogated Bilik, upon cross-examination, in reference to the death of a man by the name of York. It was so made to appear that while Bilik was residing in Cleveland, Ohio, Mr. York’s death occurred, and his widow came to Bilik’s house and told him that the insurance company did not want to pay the insurance on York’s life, and she desired to ascertain from him, in his capacity as fortune teller, whether she would get the money. The prosecutor then asked whether it was not before the death of York that Bilik was able to give her this information, and Bilik denied that she saw him until the time in question, after the death of her husband. He also stated that when he was in San Francisco he saw Mrs. York there; that she was in impoverished circum7 stances and sought to borrow money from him, which he was unable to lend to her. The prosecutor was also permitted, without objection, to prove by Bilik, on cross-examination, that while Bilik and his wife were in San Francisco she received a telegram from her brother stating that her mother, Mrs. Cermack, had just died in Cleveland, Ohio, and pursuant to that telegram Bilik and his family went from San Francisco to Cleveland.
At the request of the prosecution the court instructed the jury that the evidence admitted which tended to show the poisoning or death of any person other than Mary Vrzal could be considered by the jury only so far as the same tended to show (i) a motive to poison Mary Vrzal and whether Bilik was influenced thereby; (2) that the death of Mary Vrzal was not accidental, but was the result of a plan or design on the part of Bilik; and (3) whether a conspiracy existed between the defendant and Mrs. Vrzal to carry out certain unlawful plans, which included the murder of Mary Vrzal by poison. It is not urged that this instruction was erroneous in so far as it applied to evidence which was admitted showing the death of members of the Vrzal family other than Mary, but that it was erroneous for the reason, as is urged, that it authorized the jury to consider the evidence showing the death of Mr. York and the death of Mrs. Cermack, as tending to show a motive for the poisoning of Mary Vrzal, or as tending to show that her death was not accidental, or as tending to show that her death was the direct result of a plan conceived by Bilik. We think this criticism without merit. So far as Mrs. Cermack was concerned there was absolutely nothing in the proof updn which to hang any improper suspicion with reference to Bilik. As to Mr. York, while the evidence itself was improper, it was received without objection, and there .is nothing in it to indicate that Bilik ever heard of Mr. York until after his death. We do not think that the jury could have regarded this instruction as one which authorized them to consider the evidence with reference to the death of Mrs. Cermack and the death of Mr. York as tending in any degree to show that Bilik caused the death of Mary Vrzal.
In the second instruction given at the request of the prosecution the court advised the jury that- the instructions are simply as to the law of the case; that it is the duty of the jury to determine the facts without depending upon the opinion of either court or counsel, if any such opinion has been in any manner indicated; that.it is for the court to advise the jury as to the law; “it is for counsel to argue the case as to such counsel it may seem proper,” but it 'is for the jury to determine from the evidence what facts have been proven. It is objected that the quoted language gave to counsel for the prosecution too much latitude. That language is not an accurate statement of the.
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Mr. Justice Scott
delivered the opinion of the court:
It is not contended by plaintiff in error (called Bilik) that the proof is such that a reversal should be had on the ground that the evidence did not warrant the verdict. It is the theory of the prosecution, and the evidence tended to prove, that the relations between the plaintiff in error and Rosie Vrzal, the wife of Martin Vrzal, 'were illicit; that Bilik and Mrs. Vrzal entered into a conspiracy the object of which was to destroy the lives of Martin Vrzal and of all the children of Martin and Rosie Vrzal except the son, Jerry; that in pursuance of the conspiracy Martin Vrzal and four of the children were murdered by arsenical poisoning, and that it was also agreed between Bilik and Mrs. Vrzal, as a part of the same conspiracy, that the life of Bilik’s mother should be taken.
There was insurance upon the life of each member of the Vrzal family who died and against whom the conspiracy is alleged to have been aimed, and that insurance became payable to Mrs. Vrzal and was substantially all collected by her. The view of the prosecution is, that the conspirators desired to obtain the money that would be payable upon the insurance policies on the lives of the members of the Vrzal family who died, and that Mrs. Vrzal desired to add thereto the property which Bilik represented that he would sueceed to upon the death of his mother. He would then obtain a divorce from his own wife, and if the various members of the Vrzal family against whom the conspiracy was aimed were out of the way, he and Mrs. Vrzal would marry, take Jerry, the son of the Vrzals, go to Europe and ¡ live there. There is no reason to believe, from the evidence contained in this record, that Bilik’s mother possessed any property except a very small amount, and the conclusion to be drawn from the People’s proof is that Bilik never intended to take her life, but that he proposed doing so for the purpose of inducing Mrs. Vrzal to consent to the destruction of the members of her own family so that she might obtain the money payable upon the insurance policies, which Bilik knew that he in turn could obtain from her. The theory of the defense was that Bilik was in no way responsible for the death of any person, and that Mrs. Vrzal or some other person had caused the death of Mary and the others without his knowledge or connivance; that Mrs. Vrzal committed suicide either because of her guilty conscience and dread of coming punishment or because she feared an unjust accusation. He was convicted of the murder of Mary, the first of the children to die. The prosecution was permitted to prove various circumstances occurring after the death of Mary, including the death of three of the other children. The question of the competency of the evidence which tends to show that the three other children died as a result of arsenical poisoning, for which Bilik was responsible in whole or in part, is not presented. Plaintiff in error states that if the facts be as contended by the prosecution the poisoning of Martin Vrzal and his children was legally one transaction, and he regards the evidence as to the death of each as admissible. Therefore no question in reference to the competency of that proof will be considered by us.
Plaintiff in error contends, however, that in the course of the trial various errors intervened which necessitate a reversal of the judgment of conviction. The first ground relied upon is, that the court erred in admitting certain testimony of the boy, Jerry Vrzal, in reference to a statement made by Bilik pertaining to a prosecution against him for violating the laws of the State of New York by practicing fortune telling in that State. This alleged error has been obviated by an addition made to the transcript of the record, by leave of court, since the brief and argument of plaintiff in error was filed.
The prosecutor, without objection, interrogated Bilik, upon cross-examination, in reference to the death of a man by the name of York. It was so made to appear that while Bilik was residing in Cleveland, Ohio, Mr. York’s death occurred, and his widow came to Bilik’s house and told him that the insurance company did not want to pay the insurance on York’s life, and she desired to ascertain from him, in his capacity as fortune teller, whether she would get the money. The prosecutor then asked whether it was not before the death of York that Bilik was able to give her this information, and Bilik denied that she saw him until the time in question, after the death of her husband. He also stated that when he was in San Francisco he saw Mrs. York there; that she was in impoverished circum7 stances and sought to borrow money from him, which he was unable to lend to her. The prosecutor was also permitted, without objection, to prove by Bilik, on cross-examination, that while Bilik and his wife were in San Francisco she received a telegram from her brother stating that her mother, Mrs. Cermack, had just died in Cleveland, Ohio, and pursuant to that telegram Bilik and his family went from San Francisco to Cleveland.
At the request of the prosecution the court instructed the jury that the evidence admitted which tended to show the poisoning or death of any person other than Mary Vrzal could be considered by the jury only so far as the same tended to show (i) a motive to poison Mary Vrzal and whether Bilik was influenced thereby; (2) that the death of Mary Vrzal was not accidental, but was the result of a plan or design on the part of Bilik; and (3) whether a conspiracy existed between the defendant and Mrs. Vrzal to carry out certain unlawful plans, which included the murder of Mary Vrzal by poison. It is not urged that this instruction was erroneous in so far as it applied to evidence which was admitted showing the death of members of the Vrzal family other than Mary, but that it was erroneous for the reason, as is urged, that it authorized the jury to consider the evidence showing the death of Mr. York and the death of Mrs. Cermack, as tending to show a motive for the poisoning of Mary Vrzal, or as tending to show that her death was not accidental, or as tending to show that her death was the direct result of a plan conceived by Bilik. We think this criticism without merit. So far as Mrs. Cermack was concerned there was absolutely nothing in the proof updn which to hang any improper suspicion with reference to Bilik. As to Mr. York, while the evidence itself was improper, it was received without objection, and there .is nothing in it to indicate that Bilik ever heard of Mr. York until after his death. We do not think that the jury could have regarded this instruction as one which authorized them to consider the evidence with reference to the death of Mrs. Cermack and the death of Mr. York as tending in any degree to show that Bilik caused the death of Mary Vrzal.
In the second instruction given at the request of the prosecution the court advised the jury that- the instructions are simply as to the law of the case; that it is the duty of the jury to determine the facts without depending upon the opinion of either court or counsel, if any such opinion has been in any manner indicated; that.it is for the court to advise the jury as to the law; “it is for counsel to argue the case as to such counsel it may seem proper,” but it 'is for the jury to determine from the evidence what facts have been proven. It is objected that the quoted language gave to counsel for the prosecution too much latitude. That language is not an accurate statement of the. law, but it does not warrant reversal in the absence of a showing that the prosecutor made improper argument to which the court’s approval was given by this instruction. It is contended that the prosecutor may have argued that Bilik was responsible for the deaths of Mr. York and Mrs. Cermack, and that the murder done in the Vrzal family was a continuance of practices theretofore entered upon by Bilik. No such argument has been preserved by the bill of exceptions and we will not presume that such statements were made. In this connection it is perhaps best to treat of questions that arose pertaining to the argument of the prosecuting attorney. He made a statement to the jury in reference to the effect of a verdict for acquittal that was improper. To that statement counsel for Bilik objected. The court sustained the objection. Thereupon the speaker withdrew the statement, and said, in substance, that he yielded to the ruling of the court. It is said that the instruction now.under consideration was erroneous for the reason that it authorized the jury to consider this portion of the argument, which the court had already held to be improper. Inasmuch as the court had sustained the objection to that statement and the prosecuting attorney had withdrawn it, it seems clear that the jury would not understand that this instruction authorized them to consider it. While, as already stated, the remark in question was improper, it was immediately withdrawn upon án objection being sustained, and we do not think it was of such a character as to prejudice the cause of plaintiff in error, in view of the course pursued by the court and the prosecutor.
Instruction No. 4 given at the request of the People advised the jury that in determining the degree of credibility that should be given to the testimony of the defendant, the jury were at liberty to take into consideration the fact, if such was the fact, that he had been corroborated or contradicted by credible evidence or by facts or circumstances proven on the trial. It is contended that this instruction discredited the defendant by improperly directing the attention of the jury to the fact that in many respects his testimony was without corroboration. That, we think, is a misapprehension. The instruction, as a whole, merely directs the jury to apply the ordinary tests to his testimony, such as are applicable to the testimony of any witness in determining the. degree of credence to which it is entitled. The instruction, in substance, has been approved in the cases of Hirschman v. People, 101 Ill. 568, Rider v. People, 110 id. 11, and Maguire v. People, 219 id. 16.
The eighth instruction given at the request of the People is criticised for the reason that it advised the jury, among other things, that they were not at liberty to disbelieve as jurors if from the evidence they believed as men; that their oath imposed on them no obligation to doubt where no doubt would have existed if- no oath had been administered. Such an instruction was held proper by this court in Spies v. People, 122 Ill. 1, and in Watt v. People, 126 id. 9, and upon the authority of those cases the objection now under consideration must be regarded as without merit. It is also objected that .the instruction is involved, argumentative and misleading. The instruction is devoted to an attempt to assist the jury in understanding the term “reasonable doubt.” It contains several propositions, each of which is a correct statement of the law. • It is not argumentative but it is lengthy, ,and it is possible it would have been more easily understood by the jury had each proposition been embodied in a separate instruction. The fact that all are contained in one instruction, however, does not, in our judgment, make this particular instruction erroneous.
It is urged that the court erred in refusing instruction No. 15 and instruction No. 16 requested by plaintiff in error. Defendant in error contends, and we find upon examination of the transcript, that there was no instruction No. 16 asked and refused. The matter which appears from plaintiff in error’s brief and argument to have been included in his refused instructions Nos. 15 and 16 was, in fact, all included in his refused instruction No. 15. Counsel for plaintiff in error explains- by the reply brief that at the time he prepared the brief and argument he did not have access either to the transcript or to the original refused instructions, and treated of the matter which is contained in refused instruction No. 15 as he remembered it, namely, as having been covered by two separate instructions, No. 15 and No. 16. As above indicated, however, this was a misapprehension on the part of counsel. This instruction was designed to state, in a form satisfactory to plaintiff in error, the doctrine of reasonable doubt and the rule to be applied in determining the credibility to which the testimony of the defendant was entitled. It was very lengthy, and it is properly the subject of the only criticism made of the People’s instruction No. 8 to which any weight whatever could be attached. Plaintiff in error insists that if the instruction No. 8, just referred to, was proper, the rules authorizing it to be given make proper the refused instruction No. 15, now under consideration. Por example, People’s instruction No. 8 contained this language: “You are not at liberty to disbelieve as jurors if from the evidence you believe as men.” It is said that having so instructed the jury at the request of the prosecution, the court should then have instructed the jury, at the request of the plaintiff in error, in the manner following: “You are not called upon td say on your oath that you are morally certain as jurors if you have a reasonable doubt as men.” The proposition last quoted was contained in the defendant’s refused instruction No. 15, and other propositions of law contained in People’s No. 8 were likewise paraphrased in this instruction. The reasonable doubt which warrants an acquittal is a doubt which arises from the evidence or lack of evidence. The language above quoted from refused instruction No. 15 did not require the reasonable doubt to arise in that manner and for that reason the instruction was properly refused. The jury were fully instructed as to the doctrine of reasonable doubt by instructions 24, 26 and 27 given to them at the request of Bilik.
We have thus disposed of all the questions presented by the brief and argument filed on behalf of the accused. The record shows no reversible error. The judgment of the criminal court will therefore be affirmed.
The clerk of this court is directed to enter an order of this court fixing the period between nine o’clock A. M. and five o’clock P. M. of the 24th day of April, A. D. 1908, as the time when the original sentence of death entered in the criminal court shall be executed. A certified copy of that order will be furnished by the clerk of this court to the sheriff of the county of Cook.
okJudgment affirmed.