the declarations and conduct of the testator in respect of the subject-matter being considered, and in breaking in upon the portions as fixed by his will, from which an inference of his intention in making the gift can be logically and legitimately drawn, are competent to be considered, whether contemporaneous with, or prior or subsequent to, the gift. Richards v. Humphreys, 15 Pick. 133; Houze v. Mallett, 4 Jones, Eq. 194; 1 Pom. Eq. 564. Again, the rule sought to be invoked by appellant is based upon the presumption against double portions, and cannot be invoked to create a double portion. It will not be presumed that the testator intended to give one of the objects of his bounty, where he owed a like obligation to all, a double portion. If, then, the application of the rule would produce the effect it is intended to prevent,-that is, diminish the proportion of the daughters, and give the son a double portion,-the court will not apply it. As we have seen, the effect of the application of the rule in this case would be to give to the son of the testator the $5,000 devised to the daughters, after he had received the full amount of the portion intended to be bestowed by the common donor. This would be a subversion of the rule, and lead to the result which its adoption was intended to prevent. this transaction and the gift to the daughters that would tend in any degree to show a change of intention on the part of the testator. And it is apparent that, in the general plan adopted by the testator for the distribution of his estate by himself, he regarded the proceeds of the land sold to Lazenby as belonging to the daughters, for which he had made ample provision and compensation for taking from their shares for the benefit of the son. That this was In respect to the measure of proof required so understood seems apparent. When the will to rebut the presumption, it will be sufficient was opened, and it was found that there was a if it satisfactorily appear that the testator in-devise of the W. of the N. E. of Sec. 34 to tended the legacy to be subsisting, or so con- the son, he said, in substance, that it was a missidered it, notwithstanding the subsequent ad- take; that he had got all the land his father invance. 1 Roper, Leg. supra. tended him to have. We think, giving full It was entirely proper for appellant to show, effect to the equitable presumption before conand for the court to consider, as tending to sus-sidered, that the circumstances proved satisfactain the presumption of satisfaction, that a por- torily and effectually rebut the presumption of tion of the land devised to the son had been the intention of satisfaction, and that the $5,000 sold to Lazenby, and the proceeds thereof used legacy to the daughters remained, and is, a subby the testator in making the gift to the daugh- sisting charge upon the land, and that the rule ters, so far as it tended to illustrate the inten- contended for has therefore no application. tion of the testator in making said advance. However, looking into the dealings of the testator in respect of his estate and its distribution among his children, who alone are the objects of his bounty, it is seen that in lieu of the 80acre tract taken from the devise to the son, there had been taken from the devise to the daughters a much larger amount of land, both in quantity and value, which was given to the son. By the deed of April 7, the W. of the N. W. of Sec. 34, and another tract, devised to the daughters, of equal value, so far as we can see, with the tract sold to Lazenby out of the devise to the son, was given to the son. Thereby he was given a tract of equal value,though the value perhaps is not important,and permitted to enter into the enjoyment thereof without being postponed until the death of his father. It must be remembered that the fact to be ascertained was the intention with which the gift to the daughters was made. The right of the donor to substitute one tract for another is not questioned. There can be no question that on the 8th of March, 1882, when the testator, as parts of the same transaction, conveyed the residue of the lands devised to the son and other tracts of lands to him, and conveyed the 80-acre tract mentioned, with other lands, to Lazenby, that he intended the legacies to the daughters to continue a subsisting charge upon that portion of the land against which the bill in this case seeks to enforce the same. In the most solemn manner he expressly stipulated in his deed that the son should take the land subject to that charge. It is beyond controversy that he then had no intention that his conveyance of the land to Lazenby should in any way affect the charge upon the land to the son. He had given, and was then giving, to the son, as a largess, substantially 100 acres more land than he would have derived under the will. And it is not unreasonable, in view of the facts, that the charge in favor of the daughters should be retained. It is said that 1. the particular tract originally included in the devise to the son was worth over $5,000; but it is equally apparent that the testator had taken from the devise to the daughters a much larger amount of land and given it to the son. Noth- 2. ing occurred in the month intervening between It is also objected that the court admitted incompetent evidence. Without pausing to discuss the relevancy or competency of all the evidence adduced or admitted, it is sufficient to say that a reversal will not be had because incompetent evidence may have been heard in chancery causes, if there is in the record sufficient competent evidence to sustain the decree. The presumption is that the chancellor considered only such evidence as was proper under the issues. The decree of the circuit court is, in our judgment, fully warranted; and the judgment of the appellate court will be affirmed. Decree affirmed. WABASH, ST. LOUIS, & PACIFIC R. V. Isaac MCDOUGALL et al. Attorneys employed to represent a It was error for the court to permit defendants to prove damages occasioned by the action of the water in making the opening. involving more damages, is made after | & N. W. R. Co. v. Chicago & E. R. Co. 112 Ill. damages have been assessed or settled by agree- 589; Illinois & St. L. R. & Coal Co. v. ment, the owner of the land may demand a new Switzer, 5 West. Rep. 176, 117 Ill. 399. assessment, the inquiry being whether the land, as a whole, is damaged more by the railroad on its present plan than as it was first constructed; if so, the amount ascertained will be the damage. 3. Evidence of injury to houses and levees by water through an opening in the embankment is inadmissible on a new assessment of damages on change of plan of constructing a railroad, unless limited in its effect to the force of the water. 4. On a new assessment for damages caused by a change in the plan of constructing a railroad across land, it was error for the court to confine the question of injury to the land below the railroad, where there was some evidence tending to show that the land above the road was benefited. The damages as to lands injured, but not taken, is the difference in the value of the property, as a whole, before Lafayette, B. & M. R. Co. v. Winslow, 66 Ill. 219. The court should have permitted evidence that the opening had not been adopted as a permanent feature of the road, but that the trestle had been put in as a temporary structure until such time as the action of the water might determine what change should be made. Page v. Chicago, M. & St. L. R. Co. 70 III. 324; Shawneetown v. Mason, 82 Ill. 337; Green v. Chicago, 97 Ill. 370. The verdict of the jury is fatally defective in not finding the compensation for the land taken, and the damages to the land not taken separately, and in failing to give a description of the land. Messrs. N. W. Branson and Edward Laning, for defendants in error: and after the construction of the road. 5. In a proceeding for reassessment of Hayes v. Ottawa, O. & F. R. V. R. Co. 54 damages on a change in a roadbed crossing a farm, where a bridge has been main-Ill. 373; Peoria & R. 1. R. Co. v. Bryant, 57 Ill. tained as part of the structure for nearly three 473; Illinois Western Extension R. Co. v. Mayyears, and a petition is filed to condemn, making no rand, 93 Ill. 591. averment of an intended or proposed change in the construction, it was not competent for plaintiff to prove merely that it did not intend the opening bridged to remain so permanently. 6. In a proceeding to reassess damages caused by a change in a railroad grade crossing defendants' lands, where there is no proof of an agreement which would vest in the defendants an interest in an embankment erected by the plaintiff, it was error for the court, under its instructions, to permit a recovery, not only for the injury to defendants' land, occasioned by the construction and operation of the railroad built on the plan adopted by the change, but for loss resulting to defendants from the removal of such improvement put on the land by the plaintiff. 7. No recovery can be had on the ground that the change in construction was a wrongful or negligent act, on a new assessment of damages caused by a change in the grade of a road passing over defendants' land. 8. Where evidence is excluded, and subsequently the objection is withdrawn, and the testimony, for aught that appears, could as well have been introduced thereafter, no excep tion can be taken to such exclusion. 9. In a proceeding to condemn a right of way, the statute does not require the finding of compensation and damages separately, nor that the land should be described. (September 27, 1888.) The stipulations of the attorneys as to the temporary character of the embankment was not within their authority to execute. Robinson v. Murphy, 69 Ala. 543; Moulton v. Bowker, 115 Mass. 36, 15 Am. Rep. 72, and authorities cited. The stipulation as to the temporary character of the grade, not being offered until the case was called for trial, could not be insisted on as an amendment to the petition. Chicago, St. L. & W. R. Co. v. Gates, 8 West. Rep. 705, 120 Ill. 90. The verdict fixing the amount of the compensation for the premises taken or damaged at a gross sum is proper. Peoria, P. & J. R. Co. v. Peoria & S. R. Co. 66 Ill. 174; Illinois Western Extension R. Co. v. Mayrand, 93 Ill. 591. Wilkin, J., delivered the opinion of the court: plaintiff in error seeks to obtain a right of way This is a condemnation proceeding by which over defendants' land. Before the filing of the petition another company had constructed and put in operation a railroad over the land sought to be condemned, which railroad plaintiff had purchased and was then operating. Defendants, by cross-petition, claimed damages for injury to adjacent lands, averring that the rail ERROR to review a judgment of the Me- road divided a farm of about 500 acres diag nard Circuit Court, Epler, J., against plaintiff on a new assessment of damages caused by reason of a change in the plan of construction, in a proceeding to condemn a right of way over defendants' land. Reversed. The facts are stated in the opinion, and in the opinion on former hearing,-6 West. Rep. 321. Mr. G. B. Burnett, for plaintiff in error: lations from the file. Jacksonville & S. R. Co. v. Kidder, 21 Ill. 131: Elgin v. Eaton, 83 Ill. 535; Chicago & A. R. Co. v. Joliet, L. & A. R. Co. 105 Ill. 388; Chicago onally, leaving 160 acres northeast, and the remainder southwest, thereof; that the grade of the roadbed acted as a dam against water flowing from the 160 acres, thus overflowing and submerging it; that by reason of openings and bridges in the grade, the lands southwest thereof were washed, overflowed, etc.; and that by inconvenience in passing from one part of said farm to another, caused by said grade and the operation of said railroad, all of said lands were damaged. A trial on the original and this cross-petition resulted in a verdict and judgment for defendants for $4,134.50, from which plaintiff prose cuted a writ of error to this court. The case is reported in 6 West. Rep. 321, 118 Ill. 229. On that hearing the record showed that at the time the road was built the title to all the lands in question was in one Bennett, but that after plaintiff became the owner of the road, and after defendants purchased the land of Bennett, a break some 350 feet in length in the embankment was caused by an overflow, and that, instead of refilling the same so as to restore the roadbed to its original construction, plaintiff caused a bridge to be put in said opening, which it has since maintained. On that record it was held that whatever damage was done to the lands described in the crosspetition, by reason of the original construction of the road, accrued to Bennett, and not the defendants, his subsequent grantees, as held in the court below; and for that reason the judgment was reversed. It was, however, there decided that inasmuch as it appeared that a change in the plan of construction in the grade had been made after the title vested in defend ants, they could recover for any increased damages caused by the change; and the cause was remanded for further proceedings in accordance with that decision. The verdict is for a gross sum, and contains no description of land to be taken or injured. The amount found by the jury is $3,570. Motion for a new trial being overruled, judgment was rendered on the verdict, and plaintiff again prosecutes its writ of error to this court. The errors assigned are: 1. The court erred in striking plaintiff's stipulation from the files. 2. The court erred in admitting improper testimony on behalf of defendants. 3. The court refused to admit proper testimony offered by plaintiff. 4. The court gave improper instructions at the instance of defendants. 5. The court refused to give proper instructions asked by plaintiff. 6. The court erred in overruling plaintiff's motion for a new trial. 7. The verdict of the jury is defective. The paper denominated a stipulation was properly stricken from the files. It was not in any sense an amendment to the original petition, as contained in argument, nor was it filed as such. It was not a plan or proposed plan of construction proper to be incorporated in the record, and therefore Jacksonville & S. R. Co. v. Kidder, 21 Ill. 131, and other like cases cited, have no application. it by their agreement as to the plan of constructing its road. It is not claimed that they were given any such special authority. Defendants thereupon filed an amended cross-petition, basing their entire claim for damage to lands not taken on the change. In No argument or citation of authorities is it they aver ownership to all the lands described needed to show that attorneys employed to repin the original cross-petition, and allege gener-resent the company on the trial could not bind ally that it is injured by the alteration; but the specific claim is that so much of the same as lies below or southwest of the grade is thereby overflowed, covered with drift, etc.; that levees theretofore constructed thereon were washed out, and the building of others made impracticable. Plaintiff then filed a statement in writing, purporting to be an agreement on its part to restore the embankment to its original plan, and so maintain it. It was signed in plaintiff's name by the attorneys appearing for it on the trial. On defendants' motion this paper was ordered stricken from the files. The evidence which plaintiff sought to introduce for the purpose, as is claimed, of showing that the opening was not intended to be permanent, was incompetent as offered, and the court ruled properly in excluding it. No offer was made to prove by proper evidence that the company intended to change the plan upon which the road is at present constructed. For anything appearing in the offer of proof the company may have intended, after ascertaining the action of the water, to leave it just as it now is, or even so change it as to increase the injury. Having built the bridge, and maintained it as a part of the structure of its road for nearly three years, and having filed its petition to condemn,-making no averment whatever of an intended or proposed change in the construction,— it was not competent for plaintiff to prove Defendants were allowed to prove, over merely that it did not intend the opening to be plaintiff's objection, that by reason of the open- and remain permanent. If it had amended its ing in the grade a small house on the land be-petition so as to properly aver that it proposed low the grade was carried off by the water, and a levee built by them destroyed. The bill of exceptions shows that plaintiff made an offer of proof as follows: "We offer to prove that the structure put in the opening was put there temporarily until such time as it could be ascertained, from the action of the water there and the effect upon the surrounding country, as to what change should be made;" but the court held such proof incompetent. to readopt the original plan of construction, and had supported it by the introduction of plans Witnesses on behalf of defendants having to be incorporated in the record, the question testified that by reason of the change the land as to whether or not the opening should be below was flooded, and thereby damaged, they treated as a permanent part of the construction were asked by plaintiff's counsel, on cross-would have been raised. On the present state examination, if the change did not benefit the of the pleadings no such issue is presented. 160 acres above the grade; but an objection The evidence introduced by the defendants, thereto was sustained. Plaintiff also offered to prove an injury to their house and levees, to prove in rebuttal the same fact, but the was calculated to lead the jury to believe that evidence was held incompetent and excluded. such injuries were proper elements of damages Afterwards, however, counsel for defendants to be considered in making their verdict, and withdrew the objection to this last proof, and should therefore have been excluded. If the the court then offered to allow the evidence, sole object of its introduction was to illustrate and gave counsel for plaintiff an opportunity the force with which water passed through the to introduce it; but they declined. To each of opening, as is now contended, it should have the above rulings proper exceptions were taken. I been so limited when offered. There was manifest error in refusing to allow plaintiff to show that the alteration benefited the 160 acres above the grade. There is nothing, however, in the record to show that the testimony on that question could not have been introduced as well after the objection was withdrawn as when it was first offered. Therefore if injury resulted to plaintiff for want of such evidence, it was self-imposed, and it cannot complain. The question raised on the assignment of errors, as to giving and refusing instructions, involves a decision as to the correctness of the rule adopted by the trial court for the measure of damages. The lands in question border on the Sangamon River, and are, and always have been, subject to frequent overflow. There is no proof as to their value immediately prior to the construction of the railroad; but it does appear that Bennett, the grantor of defendants, purchased the entire tract from the county, as overflowed land, for $1,000; and it is clear from all the proof that without levees to protect it against the frequent freshets from the Sangamon River it is of but little value. After defendants purchased, and before the break in the grade of the roadbed, they built a single line of levee from a point of high ground on the west, near the river, extending in an easterly direction to and connecting with the railroad embankment; whereby they effectually leveed 280 acres of that part of the farm situated below or southwest of the road. On this trial defendants confined their proof of damages to this 280 acres; and all the witnesses who make any estimate as to the amount of damages do so by giving their opinion as to the difference in value of that 280 acres before and after the change complained of was made, or, with the above-mentioned levee and without it. For instance, the defendant Hamilton, in his evidence, says: "The fair market value of the land below this railway embankment, and within the line of our levee at the time the opening in the embankment was made, I think is $25 an acre. After the opening was made I do not think it was worth more than $10 an acre. I figure this difference upon 280 acres, and the difference per acre was $15." On cross-examination as to this estimate, he says: "I took into account the levee, then, and its connection with the embankment, and our use of the embankment as a part of the levee." While it is true that some of the witnesses speak of the increased force with which water is thrown upon the land below, and the impracticability of making levees with the opening in the grade, as elements of damages occasioned by the change, they make no estimate on that basis, nor do they furnish such facts as would enable a jury to do so, except on the theory adopted by Mr. Hamilton. The court charged the jury in the third and fourth instructions given on behalf of defendants that "the proper measure of damages for land damaged, but not taken, is the difference between the market value of the land before and after the act of the railroad company which occasioned the damage;" that "the damages to be awarded to the defendants is the difference between the value of the land so damaged before, and the value of said land after, the break was made." Plaintiff asked an instruction numbered 6 in its series, which would in effect have informed the jury that in assessing defendants' damages they should not take into consideration the fact that but for said opening defendants might maintain a levee by attaching the same to the railroad embankment, and use it as a part of such levee to protect their land' from overflow; but the court refused to give it. From the evidence, and the giving and refusing of the abovementioned instructions, it is manifest that defendants were allowed to recover, not only for the injury to their land occasioned by the construction and operation of a railroad built on the plan adopted by the change, but for loss resulting to them from the removal of an improvement put on the land by the plaintiff or the company from which it purchased. Something is said in the argument about a contract by which defendants had a right to use the railroad embankment as part of their levee; but there is no proof of an agreement between them and the plaintiff which would vest in them an interest in the embankment, or a legal right to compel plaintiff to maintain it, nor did the law, in view of the circumstances under which it was built, give them as owners of the land any right of property therein. Chicago & A. R. Co. v. Goodwin, 111 Ill. 273; Ellis v. Rock Island & Mercer County R. Co. 14 West. Rep. 372. There is no claim on behalf of defendants that the change in construction was a wrongful or negligent act; and if there was, there could be no recovery by them in this proceeding for such wrong or negligence. It will be seen, by reference to the former opinion herein, that the case on this trial is to be treated simply as a proceeding for a reassessment of damages as to the land not taken, but injured; and that the measure of defendants' damages is the increased or additional injury, if any, caused by the alteration. In an original proceeding to condemn, the measure of damage is the difference between the value of the land, as a whole, before and after the construction of the road built according to the plan proposed. Chicago & P. R. Co. v. Francis, 70 Ill. 235; Page v. Chicago, M. & St. P. R. Co. Id. 329; Eberhart v. Chicago & St. P. R. Co. Id. 347; Dupuis v. Chicago & N. W. R. Co.1 West. Rep. 656, 116 Ill. 98; Chicago, B. & N. R. Co. v. Bowman, 11 West. Rep. 598, 122 Ill. 595. As to these lands, such damages accrued to Bennett as heretofore decided. If, after damages have been assessed or settled by agreement, a change in the plan of construction involving more damages is made, the owner may demand a new assessment as to such increased damages. Mills, Em. Dom. 219. To the same effect is the holding of the former decision herein. The proper inquiry on this trial was whether or not the lands in question, as a whole, were damaged more by the railroad built on its present plan than they were as it was first constructed; and if they were, to determine the amount of such increased damages. We think the giving of defendants' third and fourth instructions, and the refusal of plaintiff's sixth, was error. The giving of defendants' first instruction was also error. By it the jury are instructed that if they find that the alleged change was made, and that by means thereof the lands of defendants below and adjoining the railroad were damaged, then the defendants are entitled to just compensation for the damages so done to their said land. There is some evidence in the record tending to show that the 160 acres above the road was benefited by the change; yet this instruction takes the consideration of such benefits from the jury entirely, and confines their inquiry to the 280 acres which were damaged. As already stated, and as will be seen from Page v. Chicago, M. & St. P. R. Co. 70 Ill. 329, and other cases above cited, the measure of damages in such a proceeding, as to lands injured but not taken, is the difference in the value of the property as a whole, before and after the construction of the road; and therefore, even if it had been proper to allow defendants damages for being deprived of the use of the embankment as a levee to the 280 acres, the benefits to other portions of the farm should have been considered in reduction of such damages. The amended cross-petition did not have the effect of confining the inquiry to the lands below the road, as counsel assume. The trial below seems to have been conducted throughout as a proceeding in the nature of an action for damages resulting to the 280 acres by reason of a negligent or wrongful failure on the part of plaintiff to properly maintain its embankment, rather than a proceeding to ascertain just compensation under the eminent domain laws of this State. Under the last assignment of error, it is insisted that the verdict is fatally defective, because it finds a gross sum to be paid defendants, instead of compensation and damage separately, and in failing to describe the land. The au thorities cited in support of this position are not in point. They simply hold that the verdict in such proceedings must conform to the requirements of the law under which it is had. We find nothing in our present statute requiring a more definite or specific finding by the jury than is here returned. The verdict is sustained by Peoria, P. & J. R. Co. v. Peoria & S. R. Co. 66 Ill. 174; and Illinois Western Extension R. Co. v. Mayrand, 93 Ill. 591. For the errors indicated, the judgment of the Circuit Court must be again reversed, and the cause remanded. William BUTLER et al., Plff's. in Err., v. PEOPLE of the State of Illinois. 1.Where the criminal liability arises from the act of another, the act done must be in furtherance of the common design or in prosecu tion of the common purpose for which the parties were combined. 2. Rioters cannot be convicted for the fending himself from an assault by the rioters in resisting arrest. ERR (September 27, 1888.) RROR to review a judgment of the McDon ough Circuit Court, Scofield, J.. on convic tion of defendants for manslaughter on an indictment for murder. Reversed. The facts are stated in the opinion. It was error for the court to instruct the jury that if any of the defendants were in the act of assaulting Conrey, and in defending himself he by accident killed Butler, then the parties engaged in assaulting Conrey would be guilty of the killing of Butler. Com. v. Campbell, 7 Allen, 541; 1 Bish. Cr. L. § 637; Lamb v. People, 96 Ill. 73. Mr. H. C. Agnew, State's Atty., with whom were Messrs. Tunnicliff & Tunnicliff, for the People: Whenever one person, in pursuing an unlaw. ful end, forces another, as an irresponsible agent, to kill an innocent person, the one who recklessly forces on the act is guilty, and pubishable accordingly. 4 Bl. Com. 183, and note 6; 1 East, P. C. 231; 1 Hale, P. C. 39, 475; 1 Str. 481; Gibbons v. Pepper, 1 Ld. Raym. 38; Com. v. Hare, 4 Pa. L. J. 257; 2 Clark, 467; 2 Whart. Cr. L. SS 999, 1000; 2 Bish. Cr. L. §§ 657, 686, 687, 692; Reg. v. Pitts, Car. & M. 284; Reg. v. Handley, 13 Cox, C. C. 79; Reg. v. Marriott, 8 Car. & P. 425; Reg. v. Towers, 12 Cox, C. C. 530; Reg. v. Salmon, 14 Cox, C. C. 494; Reg. v. Davis, 15 Cox, C. C. 174; Mayes v. People, 106 Ill. 306; Adams v. People, 109 Ill. 444. A crime may be committed through the instrumentality of an innocent agent. Com. v. Hill, 11 Mass. 126; Rex v. Mazeau, 9 Car. & P. 676; Reg. v. Bannen, 2 Moody, C. C. 309; Reg. v. Clifford, 2 Car. & K. 206; Reg. v. Saunders, 2 Plowd. 473; People v. chester County Sheriff, 1 Park. Cr. Rep. 659. West In Com. v. Campbell, 7 Allen, 541, the slayer was a responsible and voluntary agent, not forced to act in his necessary self-defense; and a clear distinction can be traced between the two cases. The rule deducible from the cases cited and the principle announced in the case of Lamb v. People, 96 Ill. 73, are not in conflict. The facts in the latter case are entirely different from those in the case at bar; and the opinion is based upon principles not at all applicable to the facts in this case. ful act, and death happens in the prosecution If several persons conspire to do an unlawof the common object, all are alike guilty of homicide. Brennan v. People, 15 Ill. 511; Hanna v. Peodeath of one not connected with the af-ple, 86 Ill. 243; Spies v. People, 10 West. Rep. fray, resulting from the act of an officer in de 701, 122 Ill. 226. NOTE.-Confederates in common design; liability, Howell, 9 Car. & P. 437; Reg. v. Cruse, 8 Car. & P. 546; Although confederates in a common design are Rex v. White, Russ. & R. 99; Rex. v. M'Makin, Russ. equally liable for the acts of each in furtherance of & R. 333; Reg.v. Price, 8 Cox, C. C. 96. And so, if the the common design, yet for collateral crimes the participation is after the crime is completed. Reg. rule is otherwise. State v. Stalcup, 1 Ired. L. 30;v, King, Russ. & R. 332. If the act committed has Watts v. State, 5 W. Va. 532; People v. Knapp, 26 no connection with the common object, the party Mich. 112; United States v. Jones, 3 Wash. C. Ct. 209: committing it is alone responsible for its conseReg. v. Skeet, 4 Fost. & F. 931; Rex v. Collison, 4 quences. Frank v. State, 27 Ala. 37; People v. Car. & P. 565; Rex v. Murphy, 6 Car. & P. 103; Reg. v. Leith, 52 Cal. 251; Heine v. Com. 91 Pa. 148. |