Mr. CHIEF JUSTICE CARTER, dissenting:

I cannot concur in the conclusion reached in this case. I do not think there was any error committed on the trial for which the case should be reversed. The chief, if not the only, error for which the cause is reversed is the statements made by counsel for the State in their arguments to the jury. The court permitted the State's attorney, over objection, to comment on the fact that the plaintiff in error's alleged co-conspirators, Lorimer and Huttig, were not called by him to testify in the case. It seems clear from this record that throughout the trial the plaintiff in error endeavored in many ways to get into the case his claim that the indictment was based on and the whole trouble grew out of a political persecution of Lorimer, but so far as he succeeded in getting matters of that kind before the jury that were not properly in the record it did not justify the State's attorney in making improper remarks on the same subject. Still, it is almost the universal rule, as shown by the authorities, that in considering an objection made by a party to a suit it is always pertinent to inquire whether such party himself induced or provoked the act or remark that he complains of.

No case in this State has been called to my attention on the right of the State's attorney to comment on the failure of the defendant to produce as witnesses co-conspirators. who were indicted with him. It is the general rule that if a party has it within his power to produce a witness and does not do so, it is a subject of fair comment in the argument before the jury. The question here is whether that rule should apply in the case of parties indicted jointly with the defendant but not on trial. The statute forbids any comment by the State's attorney on the failure of defendant to testify, but that statute does not touch the question here under consideration. It is true that if plaintiff in error had brought Lorimer and Huttig to testify he could not have compelled them so to do had they claimed their privi

lege on the ground that their testimony might tend to incriminate them. Under circumstances somewhat similar to those found in this record, comment very like to that made here was held proper in People v. Yee Foo, 89 Pac. Rep. (Cal.) 450, State v. Madden, 170 Iowa, 230, and McElwaine v. Commonwealth, 142 S. W. Rep. (Ky.) 237.

If the State's attorney in this case had simply commented on the fact that Lorimer and Huttig had not been called to testify, under these authorities I think there could be no question that such comment would not have been error. But the State's attorney went farther than that. He said to the jury, in substance, that it was the duty of plaintiff in error to call those two witnesses. I agree with the opinion that the State's attorney did not state the law correctly on this point, but I do not think the jury were so prejudiced by this remark as to require a reversal of the case. In discussing this question the Appellate Court in its opinion states that in criminal cases counsel for both parties are permitted to read and argue the law to the jury; that plaintiff in error in this case fully availed himself of that privilege, and that it knew of no authority which held that a mistaken view of the law expressed by the State's attorney in his argument to the jury should be held reversible There is force in this argument of the Appellate Court. This court said in People v. Halpin, 276 Ill. 363, on page 380: "The plaintiff in error was denied none of his constitutional or statutory rights. The errors were errors of procedure, in the admission of evidence and instructing the jury. If the correction of the errors might reasonably be expected to result in a different verdict this judgment should be reversed. On the other hand, if the jury, acting reasonably on the competent evidence, under proper instructions, could have reached no other conclusion than that of guilt, the judgment ought not to be reversed so that a better record may be made on another trial,”— and the court refused to reverse that case because of the

error.

errors referred to. By the same line of reasoning it seems to me this judgment should be affirmed. This court has said: "Where the result reached by a judgment is clearly right it will never be reversed for errors which do not affect the substantial merits of the case." (Wilson v. People, 94 Ill. 299; Johnson v. People, 202 id. 53.) Again: "The position assumed by counsel is, that if error is found in the instructions the judgment must be then reversed whether such error operates to the prejudice of the defendant or not. Such is not the law. In many cases determined by this court the contrary doctrine is announced. *** He [the defendant] cannot be heard to complain if an error is committed that cannot operate to his prejudice. Absolute correctness of proceeding cannot be attained even in our very best courts, and the establishment of any other rule. would render the administration of the criminal laws practically impossible." (Dacey v. People, 116 Ill. 555; Dunn v. People, 109 id. 635; Glover v. People, 204 id. 170.) Again: "To reverse for every trivial error, without regard to whether it exerted an improper influence over the jury or not, would render our Criminal Code practically inoperative." (Lander v. People, 104 Ill. 248; Ochs v. People, 124 id. 399.) Again: "In cases where the evidence clearly justifies the finding and it must have been the same had not certain incompetent evidence been admitted, the error in its admission will be no ground for a reversal." (DuBois v. People, 200 Ill. 157; Jennings v. People, 189 id. 320; People v. Weston, 236 id. 104; People v. Cleminson, 250 id. 135.) We have also said: "A court of review will not always hold improper remarks, although not approved, to be reversible error where the evidence leaves no reasonable doubt as to the guilt of defendant." (Mash v. People, 220 Ill. 86.) To the same effect see Featherstone v. People, 194 Ill. 325.

It is difficult to lay down any general rule that will apply in all cases by which we can say that a given case

should be reversed for error, and another case, when a very similar error has been committed, should not be reversed. In my judgment the chief aim to be kept in view in deciding a question of this kind is to find out whether, on the whole record, the accused has had a fair and impartial trial. It is practically impossible for any trial judge, no matter how learned and impartial he may be, to conduct any sharply litigated case for weeks, such as this case was, without committing some slight error in procedure, but every such error should not necessarily reverse the case or no judgments in such cases would be affirmed.

It is manifest from these decisions that the courts will not reverse when they believe that on the main issues involved the defendant has had a fair and impartial trial, even though there have been errors of procedure which the court can say have not affected the substantial merits of the case or when the proof clearly justifies the verdict and on the record there can be no reasonable doubt of the guilt of the accused. The difficulty arises, as it does in this case, in attempting to apply these general principles of law to the special facts of the case. Law is not an exact science, and it is impossible, with the varying facts and conflicting cases that come before courts of review, for all the members of this or any other court to agree always as to when substantial justice has been done. With the members of a court, as with juries, there is often an honest difference of opinion. In this case it seems to me that no fair question can be raised as to the guilt of the accused and that the errors committed during the trial of the case did not in any way prejudice the jury or affect the substantial merits of the case. In my judgment the guilt of the plaintiff in error was shown so clearly on this record that I cannot see how an impartial jury could have reasonably reached any other verdict on the competent evidence, and therefore I do not think that the improper remarks of the State's at

torney in this case misled the jury or affected prejudicially the rights of plaintiff in error.

Mr. JUSTICE CARTWRIGHT, dissenting:

The plaintiff in error was proved guilty beyond any reasonable doubt by legitimate evidence unobjectionable in every respect. Errors occurred upon the trial but no different verdict could be reached by the jury upon a consideration of the evidence. If a judgment is not to be reversed on account of errors unless it is shown that a different result can be or ought to be expected upon another trial this judgment should be affirmed.

Mr. JUSTICE CRAIG, dissenting:

I concur in the dissenting opinion of Mr. Chief Justice Carter. There is a conflict in the authorities as to whether comments by the State's attorney on the failure of a defendant in a criminal case to produce his co-defendants as witnesses constitute error which is ground for reversal. The reason for this conflict is that every case must be decided ultimately on its own peculiar facts and the law applicable thereto. In the very nature of things, remarks or statements made in the presence of the jury or arguments. of the State's attorney that would be highly prejudicial in one case would be entirely harmless in another. In any case the questions to be determined are, first, are such statements improper; and second, if improper, are they prejudicial. The reasonable meaning of the statement that it was the duty of plaintiff in error to call his co-defendants is, that it was a duty the plaintiff in error owed himself in properly presenting his defense, as distinguished from a legal duty or obligation on his part, to call them to testify. In this case the plaintiff in error moved for and obtained a separate trial and a change of venue to another county. Thereafter, so far as his trial was concerned, under the circumstances, any comment on his failure to call his co