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PAGE. People v. Michael. (Farmer, J.).. People v. Munday. (Cooke, J.). People v. Olson. (Dunn, J.)....,
610 People er rel. v. Stitt. (Carter, C. J.).
553 People v. Stoyan. (Cooke, J.)..
300 People ex rel. v. Sweitzer. (Craig, J.)....
436 People ex rel. v. Toledo, St. L. & New Or. R. R. (Cooke, J.). 495 People v. Union Trust Co. (Cooke, J.).
170 People ex rel. v. Woodruff. (Duncan, J.).
472 People v. Zammuto. (Cartwright, J.)...
225 Phillips v. Leininger. (Craig, J.)......
132 Pittsburgh, Cin., Chicago & St. Louis Ry. v. Gage. (Cooke, J.) 639 Pool ads. Rollo. (Cartwright, J.)...
517 Ravenscroft v. Stull. (Cartwright, J.).
406 Ravenswood Hospital v. Maryland Casualty Co. (Craig, J.).. 103 Read v. Adams. (Duncan, J.).......
142 Remmers v. Remmers. (Cartwright, J.).
93 Reynolds v. Town of Elkhorn Grove. (Cartwright, J.)...... 273 Rollo v. Pool. (Cartwright, J)......
607 Russell ads. Hinshaw. (Carter, C. J.)....
S Schuettler ads. Epoch Producing Corporation. (Duncan, J.).. 310 Sherman v. Town of Jefferson. (Farmer, J.).
206 Snyder v. Snyder. (Cooke, J.)......
467 Sprague Electric Co. ads. Cedar Rapids Ry. Co. (Dunn, J.).. 386 State of Illinois v. New. (Farmer, J.).
393 Stitt ads. People ex rel. (Carter, C. J.)..
553 St. L., I. M. & So. Ry. ads. East Side Levee Dist. (Farmer, J.) 222 Stoll ads. Gillespie. (Farmer, J.)..
130 Stoyan ads. People. (Cooke, J.)..... Stubbs v. Industrial Board. (Farmer, J.).
208 Stull ads. Ravenscroft. (Cartwright, J.).
406 Sweitzer ads. People ex rel. (Craig, J.)..
PAGE. Tiedemann v. Tiedemann. (Cooke, J.)...
534 Tippy ads. Wrestler. (Craig, J.).....
124 Toledo, St. L. & N. O. R. R. ads. People ex rel. (Cooke, J.).. 495
w Wallace ads. Meldahl. (Duncan, J.)...
421 Way v. Geiss. (Farmer, J.)......
152 Westfalls Storage, etc. Co. v. City of Chicago. (Carter, C. J.) 318 White v. Van Patten. (Carter, C. J.).
215 Willard ads. Grove. (Duncan, J.)...
247 Wolkau v. Wolkau. (Duncan, J.)....
298 Wolpert v. City of Chicago. (Carter, C. J.).
187 Woodruff ads. People ex rel. (Duncan, J.).
472 Wrestler v. Tippy. (Craig, J.)....
Z Zammuto ads. People. (Cartwright, J.)..
ARGUED AND DETERMINED
SUPREME COURT OF ILLINOIS.
(No. 11328.— Judgment affirmed.) THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Er
ror, vs. EDWARD H. MICHAEL, Plaintiff in Error.
Opinion filed June 21, 1917-Rehearing denied October 9, 1917.
1. CRIMINAL LAW—the accused cannot complain of error in his favor. Failure of the court, on sentencing a person convicted of bigamy, to impose any fine in addition to imprisonment in the penitentiary for an indeterminate term is error in favor of the accused, of which he cannot complain in a court of review.
2. SAME-neglect of accused to testify should not raise any presumption against him. Neglect of one accused of crime to testify should not raise any presumption against him, and he is entitled to have the jury instructed to that effect.
3. SAME--error which is not prejudicial is not ground for rez'ersal. Error which is not prejudicial to the party complaining is not ground for reversal, but the weight of authority is that prejudice will be presumed unless the record shows the contrary.
4. Same-when court will not give effect to presumption that error was prejudicial. Error in refusing to give an instruction stating that the neglect of the accused to testify should not raise any presumption against him is not ground for reversal, where the bill of exceptions does not contain any of the evidence and the record merely shows the existence of the error without showing
there was any conflict in the testimony or anything from which the jury might, as reasonable men, have reached a different conclusion had the instruction been given.
5. SAME-—when giving of instructions may be questioned without setting out all the evidence in record. Where the record states that the evidence tended to prove the issue but was conflicting, the propriety of giving and refusing instructions may be fairly presented without setting out the evidence in full.
WRIT OF ERROR to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
CANTWELL & Smith, and CHARLES P. R. MACAULAY, for plaintiff in error.
EDWARD J. BRUNDAGE, Attorney General, Maclay HOYNE, State's Attorney, and Noah C. BAINUM, (JAMES O'Brien, and GEORGE C. Bliss, of counsel,) for the People.
Mr. JUSTICE FARMER delivered the opinion of the court:
Plaintiff in error was tried in the criminal court of Cook county under an indictment charging him with the crime of bigamy. He was convicted, and after motions for a new trial and in arrest of judgment had been overruled he was sentenced to an indeterminate term in the penitentiary and has sued out this writ of error to review the judgment.
The punishment for bigamy is imprisonment in the penitentiary from one to five years and a fine not exceeding $1000. By their verdict the jury found plaintiff in error guilty of bigamy in manner and form as charged in the indictment but did not fix or impose any fine. The court sentenced him to an indeterminate term in the penitentiary. It is insisted this was error. Conceding it was, it was error favorable to plaintiff in error, of which he can not complain. Ilarmison v. City of Lcavistown, 153 I11. 313; McQuoid v. People, 3 Gilm. 76.
We think there is no merit in the argument that if the jury had imposed a fine it might have tended to shorten plaintiff in error's term in prison because the board of pardons would have considered that in considering an application for parole.
The bill of exceptions does not contain any of the evidence heard at the trial but contains a statement that plaintiff in error did not testify. He requested the court to instruct the jury that he was under no obligation to testify in his own behalf and that his neglect to do so should not raise any presumption against him. The constitution provides that no person shall be compelled in any criminal case to give evidence against himself. At common law a defendant in a criminal case was not competent to testify on his own trial. Our statute has removed the disqualification, and provides that a defendant in any criminal case “shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him.” (Crim. Code, par. 426.) In so far as the refused instructions stated that plaintiff in error's neglect to testify should not raise any presumption against him it stated the law correctly and should have been given. The question thén arises whether the error requires a reversal of the judgment.
Courts no longer adhere to the technical rule that a judgment must be reversed where the record shows that error was committed on the trial. It is, we believe, universally agreed by courts now that only error prejudicial to the complaining party requires a reversal of the judgment. Courts are not agreed, however, that if there is error apparent upon the face of the record it must be presumed to have been prejudicial unless the whole record affirmatively discloses the contrary. That appears to be the prevailing view in most jurisdictions, but there are a considerable number of respectable courts which hold that the record must not only show error but that it must also show that the com