device, besides the use of false or bogus checks, which comes within the meaning of what is commonly called the "confidence game." The object of the rules embodied in the maxim, "Noscitur a sociis,"—that is, that the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated, is to ascertain and carry out the legislative intent, and not to defeat such intent. The rule will not be applied where its application would contravene the plain meaning of a law. 23 Am. & Eng. Enc. Law, pp. 439, 442. "General words will be construed, even as against defendants in penal statutes, more broadly than the specific, where such appears clearly to have been the meaning of the legislature." Bish. St. Crimes, § 246. Although statutes imposing penalties and fines are strictly construed, yet the construction must not be so strict as to defeat the legislative intention; and accordingly we have held that, even in the case of such statutes, it is proper to apply the principle of interpretation laid down in section 1 of the act in regard to the construction of statutes (Rev. St. c. 131, par. 1; 2 Starr & C. St. p. 2329, c. 131, par. 1), which provides that "all general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the legislature may be fully carried out." Hankins v. People, 106 Ill. 628. It being the evident intention of the statute to punish the obtaining, or attempting to obtain, money or property by any means, instrument, or device commonly called the "confidence game," it would be a very narrow construction of the statute to restrict its meaning to such devices as consist only in the use of false or bogus checks, or other commercial paper of like character. The generic or family characteristic by which other means, instruments, or devices are included within the same genus as the device specifically mentioned, is not so much indicated by the word "checks" as by the words "false or bogus." The obtaining of money by means or use of what is false or bogus is the offense aimed at. This is further apparent from the designation, in section 99, of the victim as "the person defrauded or attempted to be defrauded." It is difficult to give a definition of what is comonly called the "confidence game." In Morton v. People, supra, we said: "The nature and character of the so-called 'confidence game' has become popularized in most of the cities and large towns, and even in the rural districts, of this broad Union, and is well understood." But no attempt was made to give any definition that should be applicable to all cases. On the contrary, speaking there of the devices referred to in section 98, we said: "As these devices are as various as the mind of man is suggestive, it would be impossible for the legislature to define them, and equally so to specify them in an indict

ment.

Therefore, the legislature has de clared that an indictment for this offense shall be sufficient if the allegation is contained in it that the accused did, at a certain time and place, unlawfully and feloniously obtain or attempt to obtain the money or property by means and by use of the confidence game, leaving to be made out by the proof the nature and the kind of the devices to which resort was had." The popular idea of the confidence game, as understood "in most of the cities and large towns, and even in the rural districts," of the Union, is best expressed in the definition thereof in Webster's International Dictionary, and is as follows: "Confidence game is any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler." We think that the facts of this case show a swindling operation in which advantage was taken of the confidence reposed by the prosecuting witness in the plaintiff in error, who is unquestionably shown to have been a swindler. We are therefore inclined to think that, under the proofs here, the offense committed by plaintiff in error was within the meaning of the language used in section 98.

3. Objection is made to the first instruction given for the prosecution upon the alleged ground that it calls the attention of the jury to what counsel calls "irrelevant matter." The matter said to be irrelevant is the element of "false representation and encouragement," which was united with the trick at cards, in order to induce the prosecuting witness to part with his money. We think that all the facts together constituted the "swindling operation." When plaintiff in error represented that he was a commercial traveler, and had advertising cards or circulars to distribute, he was guilty of false representation. He was equally guilty of false representations when he induced plaintiff in error to believe that Anderson was a disinterested outside party, anxious to become acquainted with the scheme in hand, and that he himself had a check in his pocket, and would go to the bank and get it cashed, in order to return to the prosecuting witness his money. In all this there was an element of false representation. So, when plaintiff in error offered to pay the prosecuting witness for distributing the cards or circulars, and interested him in the scheme of drawing the cards so as to get a card calling for so much money's worth of clothing or jewelry, he encouraged him to part with his money. These elements of false representation and encouragement were mingled with the trick of the cards in such a way as to gain the confidence of the victim, and throw him off his guard.

Counsel say that, by the use of the words "false representation" and "trick at cards,” the first instruction confounds the offenses described in sections 97 and 100 with the offense named in section 98. Section 97 refers

to false representations in writing of his own respectability, wealth, or mercantile correspondence or connections, whereby the offender gains credit, and thereby defrauds his victim. The instruction cannot be understood as referring to false representations of this nature. Section 100 refers to games or devices by the fraudulent use of cards, as explained in Blemer v. People, 76 Ill. 265. There was here no such game of chance or trick with playing cards as is intended by section 100.

We find no error in the record which would justify us in reversing the judgment. Accordingly, the judgment of the circuit court is affirmed. Affirmed.

1. Where the transcript on appeal does not show whether process was served on one of defendants, but a supplemental record filed by leave of court shows that since the first transcript was certified the sheriff's return was amended so as to show service on such defendant, it will be presumed that such amendment was properly made, and that service was made as therein stated.

2. The fact that a final decree was taken without answers from certain defendants, who were duly served, without entering their defaults, cannot be assigned as error by other defendants.

3. Under Rev. St. 1893, c. 51, par. 2, § 2, which provides that no party to any civil action may testify when any adverse party sues or defends as representative of a decedent, unless called as a witness by such adverse party, a defendant in a chancery suit whose interest is the same as that of the complainants, and whose codefendants defend as executors of a decedent, cannot testify for the complainants.

4. Under Rev. St. 1893, c. 51, par. 5. § 5, which forbids husbands and wives to testify for or against each other, except in certain cases, when they "may testify for or against each other in the same manner as other parties may," a husband cannot testify for his wife, even in one of the specified cases, if they are both parties and there are adverse parties defending as representatives of a decedent; since in such case he could not testify even though his wife were not a party. Treleaven v. Dixon, 9 N. E. 189, 119 Ill. 548, followed.

5. It is improper to ask an expert witness a question which, instead of embodying an hypothetical stateinent of the facts, calls on the witness, in view of the evidence, to pass on the whole issue.

6. The verdict of a coroner's jury is prima facie evidence of the cause of death.

7. It is proper to refuse cumulative instructions.

8. An argumentative instruction which also gives unfair prominence to portions of the testimony should be refused.

9. In a will contest it is error to instruct the jury that in determining the question of sanity they may consider whether the provisions of the alleged will are consistent with the testator's previously expressed intentions. Rutherford v. Morris. 77 Ill. 397, followed.

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

Appeal from circuit court, St. Clair county; Benjamin H. Canby, Judge.

Bill by Mary Pyle and others against Joseph Pyle and others to set aside an alleged will of Harrison Thompson, deceased. Complainants obtained a decree. Defendants appeal. Reversed.

The fourth, sixth, and ninth instructions given at the request of the complainants were as follows: "(4) The court instructs the jury that, if you believe from the evidence that about seven years before the execution of the paper in question Harrison Thompson was insane, and was treated by his family physician for insanity, and that the cause of such insanity was the bringing of a lawsuit against him, Harrison Thompson, in court, and that said lawsuit was not finally settled and determined until after the execution of the said paper in question, and during the time said suit was pending and undetermined in the court the said Harrison Thompson was an old man; and if you further believe from the evidence that said Harrison Thompson worried over said suit, to the extent that it unbalanced his mind, and finally caused him to commit suicide,-then, if you also believe from the evidence that the suit in question had dethroned the reason of Harrison Thompson at the time of the execution of the supposed will in question, and that said Harrison Thompson was of unsound mind and memory when he executed the same, then it is your duty to find the paper in question to be not the will of Harrison Thompson, and your verdict should be in favor of the complainants." "(6) The court instructs the jury that, in determining whether the paper in question offered as a will is entitled to be so regarded, the paper itself may be considered, in connection with all the other evidence in the case, in determining the question of sanity or unsoundness of mind. And if the jury believe, from the evidence, that the deceased, Harrison Thompson, before executing the said pretended will, had expressed any fixed purposes and intentions regarding the disposition of his property at variance with the provisions of the alleged will,-that is to say, if the said Harrison Thompson had, previous to executing the paper in question, expressed his intention of doing equally by his children in his will, when in fact he did not distribute his property in his will equally,— then the jury may consider whether or not the provisions of the will are inconsistent with sanity itself, and with his previously expressed and fixed purposes; and if the jury find that they are so, then these facts, also, may be weighed by the jury in determining the question of sanity or unsoundness of mind of the said Harrison Thompson at the time of executing the paper in question.” “(9) If you believe from the evidence that, some years before his death, Harrison Thompson was bitten by a horse, and immediately thereafter had a severe attack of sickness, and also met with business troubles, in consequence of which he lost his reason and became insane; and if you

believe from the evidence that he continued insane, and finally committed suicide while insane, and if his will was made but eight months before such death from suicide; and if you believe from the evidence that he was insane at the time of making said will,-then your verdict should be against the will, and in favor of the complainants."

Fred B. Merrills, guardian ad litem, and Wilbur N. Horner, for appellants. Hamill & Borders, for appellees.

BAKER, J. This is a bill in chancery filed by Mary Pyle and others against Joseph Pyle and Charles Pyle, executors of Harrison Thompson, deceased, and against the several devisees and legatees under the will of said Thompson, for the purpose of setting aside said will and the probate thereof, and having said will declared void and of no effect, and not to be the last will and testament of the said deceased. The charges in the bill are: A want of mental capacity in said Harrison Thompson to make a will; and undue influence. The issues joined between the parties were submitted to a jury, and the jury returned a verdict that the instrument of writing produced was not the last will and testament of Harrison Thompson, deceased. tions for a new trial were overruled, and the court rendered a final decree against the validity of the supposed will, and setting aside the same and the probate thereof, and declaring the same to be null and void. Thereupon this appeal was taken. Joseph Pyle and Charles Pyle, the executors, have assigned errors, as have also Millard Thompson, Willard Thompson, and Samuel Thompson, infants, by their guardian ad litem.

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First. It is objected that Edward Rogers, a minor, was a necessary party to the suit; that, although he was made a party to the bill, yet he was not served with process; and that the fact that a guardian ad litem was appointed and answered for him does not cure the error. In the transcript of the record certified by the Iclerk of the circuit court of St. Clair county on the 17th day of April, 1894, it does not appear whether the summons dated August 8, 1893, was or was not served on said Edward Rogers. But it appears from the amended or supplemental record certified by said clerk on the 7th day of May, 1894, and filed herein by leave of court, that said summons was duly served on said Edward Rogers on the 9th day of August, 1893. The clerk certifies the summons and return contained in said amended transcript "to be a true and correct copy of the summons issued to the September term, A. D. 1893, and the sheriff's return thereon as amended since certifying to the original record in this cause, as the same now appears on file in my office." It must be presumed that the amendment to the sheriff's return was properly and lawfully made, and that said Edward Rogers was duly in court when his guardian ad litem was appointed and answered.

Second. It is assigned for error both by the appellants Joseph Pyle and Charles Pyle, executors of Harrison Thompson, deceased, and by the appellants Millard Thompson, Willard Thompson, and Samuel Thompson, that a final decree was rendered in the cause without any answers being filed by or for the defendants James Thompson and Mamie Thompson, or either of them, and without any default being taken against them or either of them. It is undoubtedly an error of which a defendant may avail himself, that a final decree was entered against him without his having answered the bill, and without entering his default, and taking the bill as confessed. Blair v. Reading, 99 Ill. 600; Wilson v. Spring, 64 Ill. 14; Crabtree v. Green, 36 Ill. 278. But James Thompson and Mamie Thompson are not here assigning errors. They have not appealed, and are not complaining of the decree. The rule is that appellants cannot allege errors which relate exclusively to parties who are not complaining and are not before the court. Tibbs v. Allen, 27 Ill. 119; Richards v. Greene, 78 Ill. 525; Clark v. Marfield, 77 Ill. 258; Van Valkenburg v. Trustees, 66 Ill. 103. At the most, there was simply judicial error, of which James Thompson and Mamie Thompson alone could avail; and they having been duly served with summons, the court had jurisdiction of their persons, and the decree against them was not a nullity. Town of Lyons v. Cooledge, 89 Ill. 259.

Third. James Rogers was examined as a witness for the complainants. This was done over the objection of the solicitors for both the executors, and for Millard, Willard, and Samuel Thompson, that he was a party to the suit, and also the husband of Ellen Rogers, who is one of the heirs and also a devisee under the will. It is suggested that James Rogers had no interest in the suit other than an inchoate right of dower, and that such interest would not disqualify him from testifying as a witness. The first of the objections urged against his competency was not that he was inter ested in the result of the suit, but that he was a party to the suit. If the only objection to his competency had been his interest in such result, then, since his interest by way of an inchoate right of dower was uncertain, remote, and contingent, and not a present, certain, and vested interest, it would seem that such objec tion would not have been well taken, either at common law or under the statute. 1 Greenl Ev. (15th Ed.) § 390. But the rule of the common law is that a party to the record, in a civil suit, cannot be a witness either for himself or for a cosuitor in the cause. Id. § 329. And under sections 1 and 2 of the act in regard to evidence and depositions in civil cases (Rev. St. 1893, c. 51), no party to a civil suit can be allowed to testify therein when any adverse party sues or defends as the executor, devisee, or legatee of any deceased person, unless when called as a witness by such adverse party so suing or defending. It is true that such witness was called by the complainants,

ceased persons from the assaults of strangers, and relates only to proceedings wherein the decision sought would tend to reduce or impair the estate, or deprive the heirs of it, and has no reference to the relative rights of the heirs at law, as among themselves. In the subsequent case of Brace v. Black, 125 Ill. 33, 17 N. E. 66, the deceased devised a considerable portion of his property to his grandchildren, and to one of his children he devised nothing. At the trial the complainants in the bill were offered as witnesses to prove the insanity of their father; but the court, upon the objection of the guardian ad litem for the minor grandchildren, who were devisees, refused to allow them to testify. The action of the circuit court in the premises was sustained by this court, and it was said: "The object of the suit is not merely to adjust rights between heirs at law, as in Pigg v. Carroll, 89 Ill. 205. It is to take the estate from the legatees, some of whom are not heirs at law, and vest it in the heirs at law. There was, therefore, no error in refusing to allow these parties to testify." The said case of Brace v. Black cannot, in principle, be distinguished from the case at bar. Here the appellants Millard Thompson, Willard Thompson, and Samuel Thompson, as well as several other of the grandchildren of the deceased, were devisees under the will. And, as we have already seen from Treleaven v. Dixon and other cases, a husband can testify only "in the same manner as other parties may under the provisions of the act"; and other parties to suits cannot testify as against executors, heirs, or devisees of a deceased person, unless when called as witnesses by such executors, heirs, or devisees; and therefore a husband cannot testify in a suit where his wife is a party or is directly interested, and there are executors or devisees whose interests are adverse to those of the wife, and the husband is not called as a witness by such executors or devisees. We are satisfied that it was error to permit James Rogers to testify as a witness in the case over the objections of appellants; and there can be no question but that his testimony was material and important, and in all probability it largely influenced the jury to return the verdict that they rendered.

Fourth. We think that some of the questions put to Dr. Kell, Dr. Campbell, and Dr. Keeley, and permitted to be answered by them over the objections of appellants, were improper. It is not the proper practice to ask of a witness called as an expert a question which does not embody a hypothetical statement of the facts, but which directly calls upon the witness to put himself in the place of the jury, and in view of the evidence submitted pass upon the whole issue. City of Decatur v. Fisher, 63 Ill. 241; Chicago & A. R. Co. v. Springfield & N. W. R. Co., 67 Ill. 142; Railroad Co. v. Moffitt, 75 Ill. 524; Railway Co. v. Shires, 108 Ill. 617; 1 Greenl. Ev. 440. The ruling in Schneider v. Manning, 121 Ill. 376, 12 N. E. 267, does not sustain the action of the circuit court in this case. Here there

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was a conflict in the evidence, and the experts had heard testimony on both sides of the case, and they were called upon to give their opinions upon the evidence that they had heard. On the other hand, in Schneider v. Manning the medical expert, Dr. Hays, was called as a witness by the proponents of the will, and testified that he had heard all the evidence introduced by the contestants. was then asked this question: "Having heard that evidence on the part of the contestants, state whether or not, in your opinion, from a medical standpoint, from that evidence, Hugh McGlennon was of sound or unsound mind on September 6, 1879." It was held that it was not error to overrule an objection to that question. It was, in substance, assuming the truth of the facts testified to by the witnesses for the contestants, and asking the opinion of an expert upon the case thus made. The better and proper practice, however, is to put a question to the witness reciting the supposed facts hypothetically upon which the opinion of the expert is wanted.

Fifth. It was not error to admit in evidence the verdict of the coroner's jury at the inquest held on the body of Harrison Thompson, deceased, for the purpose of showing, prima facie, that he committed suicide. Insurance Co. v. Vocke, 129 Ill. 557, 22 N. E. 467.

Sixth. It was not error to refuse the second and sixth of the instructions offered by appellants. The propositions of law contained in them were embraced in other instructions that the court gave.

Seventh. Complaint is made of instructions 4, 6, and 9 given for appellees. Instruction 4 is argumentative; and it also gives an unfair prominence to fragmentary portions of the testimony introduced by the complainants in the bill. It should have been refused. And instruction 9, which is substantially like it. should also have been refused. An instruction substantially like instruction 6 was condemned by the judgment of this court in Rutherford v. Morris, 77 Ill. 397, 419-425.

For the errors indicated herein, the decree is reversed, and the cause remanded. Reversed and remanded.

PARKER v. ORR.1

(158 III. 609)

(Supreme Court of Illinois. Nov. 1, 1895.) ELECTION-AUSTRALIAN ELECTION LAW-MARKING BALLOTS.

1. 3 Starr & C. St. p. 570, c. 26, § 23, which says that the voter shall prepare his ballot by making in the appropriate margin or place a cross opposite the name of the candidate of his choice, is merely directory, and does not render invalid ballots which show on their face that the voters attempted to make a cross in the proper place, but did not fully succeed in doing so. Parvin v. Wimberg (Ind. Sup.) 30 N. E. 790, distinguished.

2. Writing the word "Yes" or "Get" in the square on the margin of an affirmative vote for a

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.