hearing the circuit court, following Franklin v. Westfall, 273 Ill. 402, rejected ballots cast by women and counted only the ballots cast by men. The court found and decreed that Bowles received 878 legal votes and Brinkman 876; that Bowles was elected by two plurality, and the petition was dismissed. Brinkman excepted and prayed an appeal to the Supreme Court, which was allowed on condition that he file a bond in the sum of $500 in thirty days, with surety to be approved by the court, and he was given sixty days from the date of the decree, October 28, 1916, "in which to present, settle and have signed, sealed and filed his certificate of evidence herein."

Judge Baldwin of the circuit court of Cook county presided at the hearing and entered the decree on October 28, 1916. On December 19, 1916, Judge Windes, one of the judges of the circuit court of Cook county, indorsed the certificate of evidence, "Presented Dec. 19, 1916—Thomas G. Windes, Judge," and on the same date entered an order or decree reciting, in substance, that the certificate of evidence was presented to him with a motion that it be then settled, signed and sealed by the judge who presided at the hearing, or in case said judge (Judge Baldwin) was by reason of disability or absence from the State unable to hear and pass upon, allow, sign and seal the certificate of evidence, that any other judge of the court should pass upon, sign and seal such certificate of evidence, which was made up from the evidence taken down in stenographic notes and transcribed. The order recites that the certificate of evidence is now presented to said other judge of the court, who finds and orders that it is true said judge before whom the cause was tried "is by reason of inability,—that is, absence from this State on account of sickness,-unable to hear said motion and pass upon and allow and sign and seal a certificate of evidence," and the further consideration of the motion to settle, sign and seal the certificate of evidence was taken under advisement by Judge Windes until January 15, 1917. On January 13, 1917, a decretal order was entered by Judge

Windes, reciting that the parties appeared by their solicitors; that said judge had petitioner's certificate of evidence, which was presented to him December 19, 1916, under consideration since that time, and having considered and approved the same, finds petitioner duly presented the certificate in apt time; that the delay since its presentation has not been due to any acts or omissions or faults of the petitioner; that Judge Baldwin,-the judge who heard the case,—is sick and unable to act, and that Hon. Thomas G. Windes, "a judge of this court, acts herein." It was therefore ordered by Judge Windes that the certificate of evidence be and it is signed and sealed by said judge and filed "all nunc pro tunc as of December 19, A. D. 1916.” Bowles in apt time moved this court to strike the certificate of evidence from the record and that the decree of the circuit court be affirmed. This motion was taken with the case and has been argued by counsel on both sides in separate briefs from the briefs on the merits.

We are referred to section 81 of the Practice act for the authority of Judge Windes to sign the certificate of evidence. Said section in part reads as follows: "And in case the judge before whom the cause has heretofore been, or may hereafter be tried, is, by reason of death, sickness, or other disability, unable to hear and pass upon a motion for a new trial in a case at law, and allow and sign a bill of exceptions, certificate of evidence or report of trial, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such case has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion in a case at law, and allow a true bill of exceptions, certificate of evidence, or report of trial, shall pass upon said motion, in a case at law and allow and sign such bill of exceptions, certificate of evidence or report of trial; and his ruling upon such motion in a case at law, and allowance and signing such bill of exceptions, certificate of evidence, or re

port of trial, shall be as valid as if such ruling and allowance and signing had been made by the judge before whom such cause was tried; but, in case said judge is satisfied that owing to the fact that he did not preside at the trial, or, for any other cause, he cannot fairly pass upon said motion, in a case at law and allow and sign said bill of exceptions, certificate of evidence, or report of trial, then he may, in his discretion, grant a new trial to the party moving therefor." That act does not apply, except where made applicable by express statement or clear implication, to cases in chancery. The procedure in chancery is governed by "An act to regulate the practice in courts of chancery." (Hurd's Stat. 1916, p. 185; Moore v. Tierney, 100 Ill. 207.) Section 81 does not purport to apply to suits in chancery, but the provisions we have quoted (which are the provisions relied upon by appellant) are expressly limited to cases at law, and the use of the term "certificate of evidence," in connection with bill of exceptions or report of trial, is not of such significance as to justify a construction that said section was intended to apply to cases in chancery. (Miller v. Anderson, 269 Ill. 608.) An action to contest an election is to all intents and purposes a chancery proceeding, and, except as otherwise provided, is governed by chancery rules. Conway v. Sexton, 243 Ill. 59, and cases cited.

In our opinion section 81 of the Practice act cannot be construed as authority for a judge other than the one who heard the case to settle and sign the certificate of evidence in an election contest, and the motion to strike the certificate of evidence is allowed.

If the error alleged as to the legality of votes cast in the seventh ward is raised by the common law record we are of opinion appellant's position is untenable. All other errors assigned depend on the certificate of evidence. That being stricken from the record they cannot be considered. The decree is affirmed. Decree affirmed.

(No. 11342.-Reversed and remanded.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. CHARLES B. MUNDAY, Plaintiff in Error. Opinion filed June 21, 1917-Rehearing denied October 5, 1917.

I. CRIMINAL LAW-what is necessary before jury can consider failure of accused to call witnesses. Failure of the accused to call as witnesses those who may know the facts raises no presumption of law that if called they would testify unfavorably to him, and reference should not be made to such failure either in argument or in an instruction; and before the jury can consider such failure as a circumstance in determining the guilt of the accused it must be manifest that it is within his power to produce such witnesses and that they are not accessible to the People.

2. SAME―the accused is not required to call any witnesses. It is the privilege of the accused in a criminal case to produce witnesses and make a defense or not, as he chooses, and he cannot be required to produce witnesses who are equally accessible to the State and who are supposed to be in possession of facts having a bearing upon the truth or falsity of the charge against him.

3. SAME what error is prejudicial regardless of the state of proof. Where the court erroneously holds, as a matter of law, that it is the duty of the accused to produce his co-defendants as witnesses and permits the jury to indulge in the presumption of guilt because of his failure to do so, the error is prejudicial regardless of whether the record tends to show that the jury could have reached no other conclusion from the evidence admitted than that the accused is guilty.

4. SAME-prosecuting attorney should not comment on the numerous objections raised by accused. The jury have no concern with the rulings of the court on the admission of evidence during the progress of the trial, and the prosecuting attorney, in his argument, should not be permitted, over objection, to comment on the numerous objections raised by the accused during the examination of the witnesses.

5. SAME when prosecuting attorney may comment on the fact that accused secured a change of venue. Generally it is error for the prosecuting attorney to refer to the fact that the accused has secured a change of venue, as it must be presumed when a change is granted that such action was necessary in order to secure a fair trial, but where the counsel for the accused open the subject for discussion in their argument they cannot be heard to complain when the prosecuting attorney answers.

6. SAME―motion to quash indictment after plea is filed cannot be considered unless plea is withdrawn. A motion to quash an indictment after a plea of not guilty is filed cannot be considered unless, upon leave obtained, the plea is first withdrawn.

7. SAME-whether State shall be required to furnish bill of particulars rests in discretion of court. Whether or not the State shall be required to furnish a bill of particulars, and the character of such a bill, rests in the sound legal discretion of the trial court, and it is only in cases where it is clear that there has been an abuse of this discretion that the denial of a motion for such bill is error.

8. SAME when State's attorney may be required to elect which count will be relied on for a conviction. The right to require the State's attorney to elect upon which count of an indictment he will rely for conviction is confined to cases where the offenses charged in the different counts of the indictment are distinct from each other and does not extend to counts charging separate objects of the same general offense.

9. SAME-State's attorney is not required to fill panel of four jurors after accused excuses a juror. Under section 21 of the act concerning jurors, all that is incumbent upon the State's attorney is to secure a panel of four jurors acceptable to him and tender them to the accused, and if, upon examination by the accused, a juror is excused for cause the State's attorney is not required to fill the panel, as he has the right to waive the privilege to challenge for cause and accept any juror he sees fit.

10. SAME-what evidence tends to show that officers of a bank accepted worthless securities. Where the officers of a bank are charged with conspiracy to defraud the bank's customers and the public, the testimony of the bank's receiver that he was unable to collect certain securities among the assets is admissible as tending to show that the securities were worthless when taken, where the bank had been doing business only a short time, as evidence of neglect of the maker of a note to pay it according to its terms is proper upon the question of value, as tending to show inability of the maker to pay.

II. SAME-specific objection must be made to raise the question of best evidence. In order to raise the question that the evidence introduced is not the best evidence a specific objection must be interposed.

12. SAME-carbon copies of letters of a bank, constituting part of bank's records in hands of a receiver, are admissible as original records. Where the officers of a bank are charged with conspiracy to defraud the public, carbon copies of the letters of the bank, con