3. EMINENT DOMAIN (§ 172*)-PROCEEDINGS 17. EMINENT DOMAIN (§ 262*)-ASSESSMENT OF TO TAKE LAND-STATUTORY PROVISIONS. Under the express provisions of section 51 of the Local Improvement Act (Hurd's Rev. St. 1911, c. 24, § 557), authorizing cities to construct local improvements and condemn land therefor, the hearing in all cases arising thereunder, if in a county court, may be had at either a law or a probate term thereof, and this necessarily implies that the petition may be filed to the probate term and that all subsequent proceedings may be had at probate terms. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 470-472; Dec. Dig. § 172.*] 4. EVIDENCE (8 44*)-JUDICIAL NOTICE-CITY CLERK. Under Local Improvement Act (Hurd's Rev. St. 1911, c. 24, § 520) § 14, providing that there shall be filed with or attached, to the petition of a city for the ascertainment of the compensation to be made for private property to be taken or damaged for an improvement, a copy of the ordinance authorizing the improvement, certified by the clerk, and that if it shall appear that a copy of the ordinance has not been attached to or filed with the petition, on motion of any person whose real estate is to be taken, the petition and proceeding shall be dismissed, where the clerk's certificate to the copy of the ordinance merely recited and did not certify that he was city clerk, it was sufficient, since the county court is required to judicially know the persons holding the office of city clerk in the various cities within the county, and it was therefore unnecessary for the clerk to certify that he was city clerk. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 66; Dec. Dig. § 44.*] 5. EMINENT DOMAIN (§ 216*)-ASSESSMENT_OF DAMAGES BY JURY SUMMONING AND IMPANELING JURY. Under Hurd's Rev. St. 1911, c. 37, § 200, providing that unless otherwise ordered the jury for the law terms of the county court shall be drawn and summoned as is provided for the drawing and summoning of juries for the circuit court, that when a jury is not so summoned the court' shall on the first day of each term call the cases for trial on the docket, and that if a jury shall be demanded by either party to any suit it shall direct the clerk of the county court to issue a venire for 12 competent jurors and deliver it to the sheriff or coroner, who shall summon such jurors from the body of the county to appear at the term set for the return of the venire, where at a probate term of the county court on the return day of a summons to owners of property to be taken or damaged for a municipal improvement the court directed the issuance of a venire for 12 jurors, which was issued in accordance with the order and a jury impaneled, the jury was properly impaneled. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 554; Dec. Dig. § 216.*] 6. EMINENT DOMAIN (§_196*)—ASSESSMENT OF DAMAGES BY JURY EVIDENCE. DAMAGES BY JURY-REVIEW. The provision of Local Improvement Act (Hurd's Rev. St. 1911, c. 24, § 529) § 23, that, on an assessment by a jury of the compensation to be paid to owners of land taken or damaged for an improvement, the commissioners' report shall be prima facie evidence of the amount of compensation to be awarded, merely changes the burden of proof, and when the landowner introduces evidence as to his damages the commissioners' report ceases to have any weight as evidence, and hence where the jury awarded compensation for land taken greater than that allowed by the commissioners, but less than the value of the land as fixed by any witness, the verdict could not be upheld under the rule that, of the values fixed by the witnesses, and the where the amount awarded is within the range jury viewed the premises, the judgment will not be disturbed on the ground that the damages are contrary to the weight of the evidence. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 681-686; Dec. Dig. § 262.*] 8. EMINENT DOMAIN (§ 220*)-ASSESSMENT OF DAMAGES-DISREGARD OF EVIDENCE. A jury, in assessing the damages in a condemnation proceeding, cannot disregard the testimony of the witnesses and base their verdict upon their view of the premises. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 558, 559; Dec. Dig. § 220.*] Error to Winnebago County Court; Louis M. Reckhow, Judgę, Proceeding by the City of Rockford against remanded. B. A. Knight, of Rockford, for plaintiff in error. David D. Madden and C. W. Ferguson, both of Rockford, for defendant in error. COOKE, J. The city of Rockford passed an ordinance for the making of a local improvement, consisting of a system of sewers in a portion of the city and an outlet sewer outside of the city, the terminus of which is Rock river. Thereafter, on June 7, 1912, the city filed its petition in the county court of Winnebago county, describing the private property which would be taken and damaged by the construction of the improvement (including property of Calvin R. Mower, the plaintiff in error, located outside the city), and praying that steps be taken to ascertain the just compensation to be made for the private property to be taken or damaged for the proposed improvement and to ascertain what property would be benefited by the improvement and the amount of such benefits. Under Local Improvement Act (Hurd's A copy of the ordinance providing for the Rev. St. 1911, c. 24, § 529) § 23, providing that improvement and authorizing the filing of the the jury in a proceeding to condemn land for a petition was attached to and filed with the local improvement shall ascertain the just compensation to be paid to the owner of each lot, petition. Upon the filing of the petition the etc., to be taken or damaged, and also whether court appointed commissioners, as required any lot assessed in the proceeding for which by section 14 of the Local Improvement Act objections to the assessment have been filed has of 1897 (Hurd's Rev. St. 1911, c. 24, § 520), been assessed more than it will be benefited by the improvement, no other questions can be who on November 16, 1912, filed their report of submitted to or determined by the jury, and the compensation to be made to the respective hence evidence that the city acted in bad faith owners of the property to be taken or damin constructing the improvement across the de-aged and the amount of benefits to each tract fendant's land was properly excluded. [Ed. Note.-For other cases, see Eminent Do- of real estate which would be benefited by main, Cent. Dig. §§ 529-534; Dec. Dig. § 196.*] the improvement. Thereupon summons was issued and served upon the persons named in said report as owners of property to be taken or damaged, including plaintiff in error; the summons being returnable December 9, 1912. On the return day plaintiff in error appeared and entered a motion to dismiss the proceedings on the ground that the copy of the ordinance attached to and filed with the petition was not certified to by the city clerk, as required by statute. This motion was overruled. Thereupon plaintiff in error filed another motion to dismiss the proceedings on the ground that the court was without jurisdiction because the petition was filed at a probate term of the court and the cause had been set for hearing at a probate term, and on the further ground that the Local Improvement Act of 1897, under which the petition was filed, does not authorize the city to condemn private property for an outlet sewer. This motion was also overruled. The court then directed the clerk to issue a venire for 12 jurors, returnable January 7, 1913, for the trial of the cause, and a venire was issued in accordance with this order and a jury impaneled. Plaintiff in error filed a challenge to the array on the ground that the jury had not been called in accordance with the provisions of the statute, which challenge was overruled. He thereupon filed a crosspetition, claiming damages to property not taken. A trial was had before the jury, and resulted in a verdict finding that plaintiff in error was entitled to $500 as compensation for land taken and to $4,500 as damages to land not taken. After overruling motions for a new trial and in arrest of judgment, the court rendered judgment in accordance with the verdict of the jury, and Mower has sued out this writ of error to reverse that judgment. [1, 2] It is first contended that the court had no jurisdiction to proceed with the condemnation of the land of plaintiff in error: First, because the Local Improvement Act of 1897, under which the proceedings were had, contains no provision for the condemnation of land outside the limits of a city; and, second, because the proceedings were brought to a probate term of the county court and the summons against plaintiff in error was returnable to a probate term. While the 'Local Improvement Act of 1897 does not, by express reference to land lying outside the limits of a city, contain any provision for the condemnation of the same, we have held, under a similar statute, that in the absence of such provision the power to condemn such land for the purpose of securing a suitable outlet for sewers within a city was necessarily implied, and was conferred upon the city by provisions similar to those contained in section 13 of the Local Improvement Act of 1897. Maywood Co. v. Village of Maywood, 140 Ill. 216, 29 N. E. 704. Plaintiff in error insists, however, that the Legislature, in 1905, by the addition of section 4 to of authorities of cities and villages with power to construct, maintain and keep in repair drains, ditches, levees, dykes and pumping works for drainage purposes by special assessment upon the property benefited thereby" (Hurd's St. 1911, c. 24, § 336a), and in 1910 by an act entitled "An act to authorize cities, villages and incorporated towns 100,000 population and under to construct outlet sewers," etc. (Laws 1910, p. 41), made express provision for the condemnation of land for an outlet sewer, and the implied power therefore no longer exists. The act first above mentioned does not apply to the construction of sewers or to the condemnation of land for the purpose of obtaining an outlet therefor, but applies to the construction of drains, etc., for the purpose of providing a system of drains for the lands within the corporate limits of a city, village, or town. The act of 1910 above mentioned makes provision for the condemnation of land outside the limits of a city for an outlet sewer when such city has a sewerage system but has no adequate outlet therefor, but does not, by its terms, apply to a case such as this one, where the outlet sewer is to be constructed at the same time and as a part of a system of sewerage within the limits of the city. But were it otherwise, the proceedings to condemn land for an outlet sewer under the act of 1910 are governed by the provisions of the Local Improvement Act of 1897, which were followed in this case. The proceedings were properly instituted and prosecuted in accordance with the provisions of the Local Improvement Act of 1897. [3] With reference to the contention that a proceeding for the condemnation of land under the Local Improvement Act of 1897 must be brought to a law term of the county court and not to a probate term, section 51 of the act provides that "the hearing in all the cases arising under this act, if in the county court, may be had at either a law or a probate term of said court." The decisions relied upon by the plaintiff in error in support of his contention that the county court was without jurisdiction to entertain proceedings brought to a probate term were rendered under statutes which contained no provision similar to that found in section 51, supra. People v. Brown, 218 Ill. 375, 75 N. E. 989. Under the present statute, by virtue of said section 51, the county court, at a probate term, has jurisdiction to hear the cause, and this necessarily implies that the petition may be filed to a probate term and all subsequent proceedings had at probate terms. The court did not err in overruling the motion to dismiss on the ground that it was without jurisdiction to proceed with the cause for the reasons assigned by plaintiff in error. [4] It is also urged that the copy of the ordinance which was attached to and filed by the city clerk, and that because of this, tended to show bad faith on the part of the alleged defect the court was, by section 14 city, such proof would have had no bearing of the Local Improvement Act, required to upon any of the issues before the jury. Secdismiss the proceedings upon motion by tion 23 of the Local Improvement Act, under plaintiff in error. The basis for this con- the provisions of which the jury were imtention is the fact that in his certificate paneled in this case, provides that the jury to the copy of the ordinance the city clerk "shall ascertain the just compensation to be does not certify that he is city clerk, but paid to the owner of each lot, block, tract by way of recital only describes himself or parcel of land to be taken or damaged as city clerk in and for the city of Rock- in said proceeding, and shall also determine ford. This certificate was sufficient. The whether or not any lot, piece or parcel of county court took judicial notice of the fact land assessed in said proceeding, for which that the person making the certificate was objections have been filed, has been assessed the city clerk of the city of Rockford, and it more than it will be benefited by said imwas unnecessary for the clerk to certify to provement." These are the only questions that fact or for the city to offer proof of which can be submitted to or determined by his official character. We have held that a a jury impaneled under section 23 of the court will take judicial notice of who are Local Improvement Act. Thomas v. City of justices of the peace and notaries public for Chicago, 204 Ill. 611, 68 N. E. 653. The only the county in which the court is held (Shat issue submitted to the jury in this case was tuck v. People, 4 Scam. 477; Stout v. Slat- the amount of compensation to be paid tery, 12 Ill. 162; Hertig v. People, 159 Ill. plaintiff in error for the land to be taken 237, 42 N. E. 879, 50 Am. St. Rep. 162; Gil- or damaged by the construction of the outbert v. National Cash Register Co., 176 Ill. let sewer, and, as the questions propounded 288, 52 N. E. 22); that a court will take to the city engineer by plaintiff in error had judicial notice of the several officers of the no bearing upon this issue, the objections county in which it holds its sittings (Dyer thereto were properly sustained. v. Flint, 21 Ill. 80, 74 Am. Dec. 73; Thielmann v. Burg, 73 Ill. 293); and that a court is presumed to know all public officers in civil affairs within its jurisdiction (Thompson v. Haskell, 21 Ill. 215, 74 Am. Dec. 98); and in Brackett v. People, 115 Ill. 29, 3 N. E. 723, we held that a county court would take judicial notice of the official character, as city collector, of one to whom a warrant for the collection of a special assessment had been issued. Following these decisions, a county court is required to judicially know the persons holding the office of city clerk in the various cities within the county in which the court is held. The motion to dismiss the proceedings on the ground that the ordinance attached to the petition was not certified as required by statute was properly denied. [5] It is urged that the method followed in obtaining the jury in this cause was not in accordance with the statute; but as the method followed was that provided by section 200 of chapter 37 of Hurd's Statutes of 1911 for obtaining a jury for the trial of causes in the county court, either at a law or probate term, the contention is wholly without merit. [6] Plaintiff in error complains of the action of the court in sustaining objections to certain questions propounded by him to the city engineer, for the purpose, as stated by plaintiff in error in his argument, of showing that the city could equally as well obtain an outlet for the sewerage system by other routes which would not cross the land of plaintiff in error; it being contended by it being contended by plaintiff in error that this proof would have shown that the city acted in bad faith in locating the outlet sewer over his land. If Other objections are urged to rulings of the court upon the admission of evidence; but there was no material error in any of these rulings, and the questions raised with reference thereto are not of sufficient importance to warrant any discussion thereof. [7,8] Plaintiff in error contends that the verdict of the jury was contrary to the evidence. The tract of land belonging to plaintiff in error through which it is sought to condemn a right of way for the outlet sewer contains approximately 108 acres. It is located on Rock river and is underlaid with sand and gravel of a merchantable quality. The report of the commissioners contains no description of the land sought to be taken for right of way and allows no compensation therefor. It merely contains a description of the 108-acre tract and fixes the damages thereto at $500. The city offered this report in evidence and then rested its case. The plaintiff in error offered the testimony of several witnesses who were engaged in the sand and gravel business, and who testified that they had examined the premises of plaintiff in error and test pits which had been sunk thereon, and that the chief value of the land lies in the sand and gravel deposits. These witnesses fixed the value of the land taken at amounts ranging from $2,000 to $20,000, and the damages to the land not taken at amounts ranging from $700 to $50,000. No evidence was offered by defendant in error in rebuttal upon the question of value or upon the question of damages. Defendant in error invokes the rule that, where the amount awarded is within the range of the values fixed by the witnesses and the jury view the premises, this court will not disturb the judgment on the ground that the (260 I11. 84) PEOPLE v. TURNER, (Supreme Court of Illinois. Oct. 28, 1913.) 1. CRIMINAL LAW (§ 1208*)-PUNISHMENT SENTENCE. As the parole law applies only to crimes punished by imprisonment for not less than one year, where the verdict in a prosecution for incest did not assess the punishment, which the statute merely declares shall not exceed 20 years, and the sentence was for an indeterminSt. 1911, c. 38, § 498), the judgment must be ate term under the Parole Law (Hurd's Rev. reversed and remanded for new trial. [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. §§ 3281-3287, 3289, 3295; Dec. Dig. § 1208.*] WITH [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 687; Dec. Dig. § 301.*] 3. INDICTMENT AND INFORMATION (§ 137*)— MOTION TO QUASH SELECTION OF GRAND JURY. While a grand jury can only be selected at a meeting of the board of supervisors lawfully was no request in writing, by at least one-third held, a certificate by the county clerk that there of the members of the board addressed to the clerk, requesting a meeting at which the grand jury indicting accused was selected, will not it did not show that the meeting was not an adauthorize the quashing of an indictment, where journment of the regular meeting. of the evidence. In this case, however, the amount awarded as compensation for the land taken was $500, while the lowest value fixed by any of the witnesses was $2,000. The report of the commissioners cannot be regarded as evidence either upon the question of value or upon the question of damages. While it is true that section 23 of the Local Improvement Act provides that such report "shall be prima facie evidence, both of the amount of the compensation to be awarded, and of the benefits to be assessed," we held in Chicago Terminal Transfer R. Co. v. City of Chicago, 217 Ill. 343, 75 N. E. 499, in considering the constitutionality of that provision, that the effect of the pro2. CRIMINAL LAW (§ 301*)-TRIAL DRAWAL OF PLEA. vision was merely to change the burden of Where accused filed a formal motion to proof. In discussing this question we there quash without assigning any reasons therefor, said: "Statutes giving prima facie weight and, upon it being overruled, entered a plea of to facts or to official certificates are prop-court, after granting two continuances, to refuse not guilty, it is discretionary with the trial erly regarded as rules of procedure changing accused permission to withdraw his plea of not the burden of proof. In the absence of this guilty and file a new motion to quash. statute, the city, in the case at bar, would have been required, in the first instance, to assume the burden of producing proof relative to the amount which the appellant company would be entitled to receive by way of compensation for so much of its right of way as would be also occupied by the proposed public way. The statute does no more than to declare that this amount shall be inferred or assumed from the report of the commissioners until evidence to the contrary is introduced." When plaintiff in error introduced evidence upon the question of the value of the land sought to be taken and upon the question of the damages to the land not taken, the report of the commissioners ceased to have any weight as evidence, and it was then incumbent upon the city to meet the evidence offered by plaintiff in error upon these questions, unless the city was satisfied with the values and damages fixed by the witnesses for plaintiff in error. It is apparent that the jury either considered the report of the commissioners as evidence or ignored the testimony of the witnesses and based their verdict entirely upon their view of the premises. That the jury have no right to disregard the testimony of the witnesses and base their verdict upon their view of the premises is well established in this state. Atchison, Topeka & Santa Fé R. Co. v. Schneider, 127 Ill. 144, 20 N. E. 41, 2 L. R. A. 422; Sanitary District v. Loughran, 160 Ill. 362, 43 N. E. 359; East St. Louis, Columbia & Waterloo Ry. v. Illinois Trust Co., 248 Ill. 559, 94 N. E. 149. The court should have granted the motion for a new trial on the ground that the verdict was contrary to the evi dence. The judgment will therefore be reversed, and the cause remanded to the county court for new trial. Reversed and remanded. [Ed. Note.-For_other_cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.*] 4. GRAND JURY (§ 8*)-SELECTION OF GRAND JURORS-CERTIFICATE OF SELECTION. The certificate of the county clerk to the clerk of the circuit court of the selection of grand jurors by the board of supervisors need not be under an official seal. [Ed. Note.-For other cases, see Grand Jury, Cent. Dig. §§ 16-20; Dec. Dig. § 8.*] 5. CRIMINAL LAW (§ 126*)-CHANGE OF VENUE-PREJUDICE OF INHABITANTS. One accused of an infamous crime, as incest, does not show prejudice of the inhabitants of the county by showing that in the selection of the jurors a juror indicated that he had a greater prejudice against the crime of incest than other penitentiary offenses. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. § 126.*1 6. CRIMINAL LAW (§ 361*)—EVIDENCE-RELE VANCY. In a prosecution for incest, begun after accused's daughter wrote to her maternal aunt complaining of the occurrence, evidence that the aunt received the letter is admissible, where accused claimed that the prosecution was the result of the aunt's conspiracy and it was shown that the aunt accompanied the girl when she made her complaint. Criminal [Ed. Note.-For other cases, see Law, Cent. Dig. §§ 802, 803; Dec. Dig. § 361.*] 7. CRIMINAL LAW (§ 1169*)-APPEAL-HARMLESS ERROR. In a prosecution for incest committed with accused's eldest daughter, testimony by the younger daughter, who was called in to witness the act of intercourse, that it was about the time accused began on her is no ground for reversal, when it was not responsive to the question, and it and all other intimations that accused had been having intercourse with the younger daughter were stricken. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*] another trial. People v. Hartsig, 249 Ill. 348, 94 N. E. 525; People v. Afton, 258 Ill. 292, 101 N. E. 557. [2] The assignment of errors includes numerous other alleged grounds for a reversal of the judgment, some of which cannot arise upon another trial, and others probably will 8. CRIMINAL LAW (§ 372*)-PROSECUTION-Ev- not, but some of them must be considered other offenses. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.*] 9. CRIMINAL LAW (§ 678*) - ELECTION BETWEEN ACTS-DISTINCT OFFENSES. In a prosecution for incest, where the state relied on the acts on a certain date, the fact that accused had intercourse with his daughter three times on that night does not render him guilty of three distinct offenses, and so no election between the several acts could be required. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. 8 678.*] 10. CRIMINAL LAW (§ 507*)-EVIDENCE-AC COMPLICES-INCEST. Under the statute declaring that if a father shall rudely and licentiously cohabit with his own daughter, he shall be confined in the penitentiary not exceeding 20 years, the daughter cannot be an accomplice; and so a charge that the daughter's testimony should be received with caution because she was an accomplice is properly received, though she admitted she enjoyed the sexual intercourse. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1082-1096; Dec. Dig. § 507.*] Error to Circuit Court, Logan County; Thomas M. Harris, Judge. Irvin H. Turner was convicted of incest, and he brings error. Reversed and remanded. C. F. Mortimer, of Springfield, Evan Worth, of Lincoln, and Beach & Trapp and Humphrey & Anderson, all of Lincoln, for plaintiff in error. Patrick J. Lucey, Atty. Gen., and Everett Smith, State's Atty., and King & Miller, all of Lincoln, for the People. CARTWRIGHT, J. Irvin H. Turner, the plaintiff in error, was found guilty by a jury, in the circuit court of Logan county, of the crime of incest with his daughter, Grace B. Turner, and was sentenced by the court to imprisonment in the penitentiary. [1] The court failed to observe that the punishment for incest is imprisonment in the penitentiary for a term not exceeding 20 years, so that the parole law (Hurd's Rev. St. 1911, c. 38, § 498), which provides that the term of imprisonment shall not be less than one year, does not apply. The jury did not fix the term of imprisonment, and the sentence was for an indeterminate period under the provisions of that law. For that error the judgment must be reversed, and the cause remanded to the circuit court for and decided, either because sustaining them would be fatal to the prosecution or to its further prosecution in Logan county, or because they will doubtless arise upon another trial. One of these is that the court erred in not permitting an amendment of a motion to quash the indictment and quashing it. The indictment was returned by the grand jury at the January term, 1912, when a formal motion to quash was made without assigning any grounds therefor. The motion was overruled, and the defendant pleaded not guilty. The cause was continued, on his motion, to the May term, 1912, and upon his motion was again continued until the September term, 1912, when he asked leave to withdraw his plea of not guilty and to amend the motion to quash, for the purpose of raising the question whether the meeting of the board of supervisors at which the grand jurors were selected was a lawful meeting. The grand jurors were selected on December 8, 1911, at a meeting of the board commencing on December 4, 1911, and the motion to amend was accompanied by a certificate of the county clerk that there was no request in writing by at least one-third of the members of the board, addressed to overruled the motion to withdraw the plea the clerk, requesting the meeting. The court or disallow the motion was within the disand amend the motion to quash. To allow cretion of the court, and inasmuch as the motion did not present any question concerning the sufficiency of the charge, but only sought to raise a question having no relation to the merits, and there had been two continuances, on motions of the defendant, while the statute of limitations was running, and the facts had been a matter of public record during that time, the discretion was properly exercised. [3] A grand jury can only be selected at a meeting of the board of supervisors lawfully held, when the board could exercise the power given by law to select grand jurors. Marsh v. People, 226 Ill. 464, 80 N. E. 1006. But the certificate of the clerk did not show that the December meeting was not legal. It was silent as to whether there was an adjournment of the regular September meeting to December 4, 1911. The court could not have quashed the indictment upon such evidence. [4] It was alleged that the certificate of the county clerk to the clerk of the circuit court of the selection of the grand jurors was not under seal, but there is no requirement that it shall be under an official seal. |