VOL. 60.]

Willerton v. Shoemaker.

and if the telegraph company wishes its patrons to be bound thereby it should take some efficient means of bringing the matter to their notice.

The third objection is that the damages were assessed too high. We are not so impressed by the proof.

It is apparent that by a blunder of the defendant the plaintiff was damaged in the manner and to the extent substantially as he claims. We think the judgment is right on the merits and that it violates no technical rule of law. It will therefore be affirmed.

William Willerton v. Reuben Shoemaker.

1. WAIVER-Defects in Service-Taking an Appeal.-A defect in the service of a summons in an action before a justice of the peace is waived by taking an appeal.

2.

PRACTICE-Objections Must be Made in the Court Below.-An objection that the complaint in an action of forcible detainer before a justice of the peace is not sufficient, should be made before going to trial. It can not be made for the first time in the Appellate Court.

3. SAME-Informal Complaints.-A defective complaint in forcible detainer, which is merely informal, is sufficient if no objection is made at the proper time in the court below.

4. DEMAND-When Unnecessary in Forcible Detainer.-Where a tenant holds over after the termination of a lease for a definite period, under the statute no demand is necessary to terminate the tenancy.

Forcible Detainer.-Appeal from the Circuit Court of Morgan County; the Hon. CYRUS EPLER, Judge, presiding. Heard in this court at the November term, 1894. Affirmed. Opinion filed June 3, 1895.

STATEMENT OF THE CASE.

This was a proceeding in forcible detainer, instituted by appellee against appellant for the recovery of the possession of forty acres of land situate near Jacksonville, in Morgan county, Ill. The case was originally brought before a justice of the peace, where a motion to dismiss was made, because the purported copy of the summons left with appel

Willerton v. Shoemaker.

lant was not a true copy. The motion was overruled, judgment given for Shoemaker, and Willerton appealed to the Circuit Court, where the motion to dismiss was renewed but overruled. The case was heard by the court, a jury being waived. Judgment was given for plaintiff and defendant appealed to this court.

OSCAR A. DELEUw, attorney for appellant.

MORRISON & WORTHINGTON, attorneys for appellee.

MR. PRESIDING JUSTICE WALL DELIVERED THE OPINION OF THE COURT.

The first objection urged is that the court should have dismissed the suit because of the defect in the service of the summons before the justice of the peace.

This defect was waived by taking the appeal.

As was said in Swingley v. Haynes, 22 Ill. 214, "When the defendant files his appeal bond he thereby enters his appearance to the cause in the Circuit Court, and by so doing waives all defects in the process, the want of process, defects in the service or want of service before the justice.'

The rule so stated was based upon Sec. 66 of the act in relation to justices and constables, as it then was-Sec. 72 of the present act-and has been repeatedly approved in subsequent cases.

The second objection is that the complaint is not sufficient. This objection should have been presented to the trial court, and the special ground thereof pointed out, so that it might have been obviated by amendment.

Going to trial waived the objection, and it can not be presented for the first time in this court. The evidence made out a case under the statute, and, while the complaint may be informal, we can not reverse for that reason. Had the defect been suggested below, the necessary amendment could have been made.

The case cited by appellant, Stolberg v. Ohnmacht, 50 Ill. 442, is not in point. There the fault was that no affidavit

had been filed, and under the statute, as it then read, the court held that an affidavit was necessary to give jurisdiction of the subject-matter.

Here the defect is that the complaint is informal.

So it may be, but it is sufficient to give the court to understand what the cause of action is, and under it, without objection or suggestion of informality, the plaintiff was permitted to prove a case within the statute.

The point must be overruled.

The third objection is that there was no demand for possession before suit was brought.

The case was one where the tenant held over after the termination of his lease, which was for a definite period, and under the statute no demand was necessary to end his tenancy. C. & St. L. R. R. Co. v. Wiggins Ferry Co., 82 Ill. 233; Schreiber v. C. & E. R. R. Co., 115 Ill. 345.

Nor was it necessary under the forcible detainer act to make demand in such a case before bringing suit. Had the plaintiff's case been within the fifth or sixth clause of Sec. 2 of that act, a demand would have been necessary. This objection must be overruled.

The point fourthly made, that there was a variance between the complaint and the proof, is disposed of by what has been said in reference to the second objection.

We find no error, and the judgment will be affirmed.

60 128

160s 582

Harry L. Strohm v. The People of the State of Illinois.

1. CRIMINAL LAW-Selling Prohibited Publications-Sufficiency of Indictment.-Under the first section of the act of June 30, 1889, to suppress selling, lending, giving away or showing to any minor child any paper or publication principally devoted to illustrating or describing immoral deeds, an indictment which alleges that the defendant "did unlawfully sell, give away and show, and did unlawfully have in his possession, with intent to give away and show to one Burt Damon, who was then and there a minor child, a certain newspaper known as the Sunday Sun, a certain publication purporting to be published in the city of Chi

Strohm v. The People.

cago and State of Illinois, which said newspaper was then and there devoted to the publication and principally made up of criminal news, police reports, and accounts of criminal deeds and stories of deeds of bloodshed, lust and crime, contrary," etc., is sufficient.

2. SAME-Sufficiency of the Indictment Under Section Three of the Act. -Under the third section of the act aforesaid, providing that it shall be unlawful to hire, use or employ any minor child to sell or give away, or in any manner to distribute any book, pamphlet, magazine, newspaper, story paper or publication coming within the description of matters mentioned in the first section of the act, an indictment which charges that the defendant did unlawfully and knowingly hire, use and employ one Burt Damon, who was then and there a minor child, to sell, advertise and distribute a certain newspaper, known as the "Sunday Sun," a certain publication purporting to be published in the city of Chicago and State of Illinois, which said newspaper was then and there devoted to the publication and principally made up of criminal news, police reports and accounts of criminal deeds, contrary, etc., is sufficient.

3. CRIMINAL PLEADING-Publications Describing Immoral Deeds.— The rule of criminal pleading making it necessary to set out obscene matter in an indictment, unless it is in the hands of the defendant, out of the power of the prosecution, or is too gross to be spread upon the records of the court, either of which facts, if existing, should be averred in the indictment as an excuse for failing to set it out, when applied to indictments under the act of June 30, 1889, entitled "An act to suppress selling, lending, giving away or showing to any minor child any paper or publication principally devoted to illustrating or describing immoral deeds," must admit of a further exception where the quantity of the matter to be shown makes such incorporation impracticable; but such additional exception will not excuse the failure to incorporate enough of the publication to enable the defendant to understand with reasonable certainty what particular publication is intended, and to prepare his defense.

4. SAME-Sufficient Description of Prohibited Publications.-In an indictment under the act to suppress selling, lending, giving away or showing to any child any paper or publication principally devoted to illustrating or describing immoral deeds for the purpose of identifying the paper or publication intended, it is sufficient to state its proper name, its place of publication, its business or the occupation to which it is devoted, its character, that of which it is principally made up, and the particular use to which it was put with reference to the minor in question.

5. PRACTICE-In Criminal Cases-Reading Opinions to the Jury.The reading of a judicial opinion from a newspaper to the jury in a criminal case is improper, but unless there is something in the opinion prejudicial to the defendant it is not reversible error.

6. CONSTRUCTION OF STATUTES-Suppression of Publications Illustrating Criminal Deeds.-The act of June 30, 1889, to suppress selling, lending, giving away or showing to any minor child any paper or publication

VOL. LX 9

principally devoted to illustrating or describing criminal deeds, by a proper construction embraces pictures of such deeds with or without stories, and stories of such deeds with or without pictures.

Indictment. Selling, etc., to a minor child, papers devoted to illustrating and describing criminal deeds. Error to the Circuit Court of Macon County; the Hon. EDWARD P. VAIL, Judge, presiding. Heard in this court at the November term, 1894. Affirmed. Opinion filed June 3, 1895.

PALMER, SHUTT, DRENNAN & LESTER, attorneys for plaintiff in error.

I. R. MILLS, State's Attorney, for defendants in error.

MR. JUSTICE PLEASANTS DELIVERED THE OPINION OF THE COURT.

Plaintiff in error was convicted on the first and fifth counts of an indictment under the act of June 30, 1889, entitled "An act to suppress selling, lending, giving away or showing to any minor child any paper or publication principally devoted to illustrating or describing immoral deeds." (3 S. & C. Stat., p. 364.)

The first section, upon which the first count was framed, enacts: "That it shall be unlawful for any person to sell, lend, give away or show, or have in his possession with intent to sell or give away, or to show or advertise or otherwise offer for loan, gift or distribution to any minor child, any book, pamphlet, magazine, newspaper, story paper or other printed paper devoted to the publication or principally made up of criminal news, police reports or accounts of criminal deeds, or pictures and stories of deeds of bloodshed, lust or crime."

* *

any

Section 3, on which the fifth count was framed, declares : "It shall be unlawful to hire, use or employ any minor child to sell or give away or in any manner to distribute * book, pamphlet, magazine, newspaper, story paper or publication coming within the description of matters mentioned in the first section," and prescribes the penalty for the violation of any of its provisions.