delivered the opinion of the court:
The law does not authorize an appeal in a criminal case, and whenever a motion to dismiss such an appeal has been made it has been allowed. In this case no motion of that kind "tvas made, but the appearance of the People was entered and there was a joinder in error. The cause was submitted for decision upon the errors assigned on the record, and inasmuch as everything essential to a hearing upon a writ of error is before us, we will treat the case as being here on writ of error. That was done in Berkenfield v. People, 191 Ill. 272, where the record was in the same condition.
As to the first objection, it need only be said that the record fails to show that appellant was prejudiced in any way by reason of the court disallowing the challenge, for cause, of jurors, inasmuch as the jurors were challenged peremptorily, and appellant was not' forced or compelled to keep any juror that was incompetent. Spies v. People, 122 Ill. 1.
As to the second error assigned, the evidence objected to, first, was that of the witness Mrs. Alexander, who was the wife of one of the defendants named in the indictment, and was permitted to testify in rebuttal, in corroboration of the testimony of her husband. Alexander had pleaded guilty before the beginning of the trial, and was not, so far as this record shows, a defendant, and we are unable to see why her testimony was not competent, the same as any other witness. In criminal cases, as a general proposition, a husband or wife cannot testify for or against one another, but here the wife was not testifying either for or against her husband. It is claimed, secondly, the court erred in permitting- O. C. Kemp, the insurance adjuster, to testify to alleged conversations with Joe Fish, at which neither appellant nor any of the persons named in the indictment were present. Fish was the representative of appellant and Alexander and went to Kemp with the proofs of loss, and in the conversations there does not appear to have been anything said except in relation to the making and delivery of the necessary proofs of loss, which Kemp declined to accept, and said he regarded the claim as fraudulent. Conversations, to be admissible in evidence in a case where the defendant is charged with conspiracy, need not be in his presence or in the presence of some one of the parties jointly indicted, so long as the conversation was in furtherance of the common design and by one engaged in the conspiracy, whether named in the indictment or not. Lasher v. Littell, 67 N. E. Rep. 373; Spies v. People, supra; VanEyck v. People, 178 Ill. 199.
As to the third contention, the indictment charged, “the personal goods, funds, money and property of the Buffalo German Insurance Company, a corporation organized and existing under and by virtue of the laws of the State of New York, * * * and property of the Rochester German Insurance Company of Rochester, N. Y., a corporation organized and existing under and by the laws of the State of New York,” etc. Appellant contends that it became necessary for the prosecution to prove that the corporation had been organized and incorporated as alleged in the indictment. Proof of the actual exercise and enjoyment of the corporate powers and functions was made by the witness Kemp, who was the agent of the companies. Section 613 of the Criminal Code provides “that in all criminal prosecutions involving proof of the legal existence of a corporation, user shall be prima facie evidence of such existence,” (Starr & Cur. Stat. p. 1402,) and where there is no countervailing proof, the proof of user sufficiently supports the allegations, and as wras said in the case of Kincaid v. People, 139 Ill. 213: “The language is broad and comprehensive, including all criminal prosecutions involving proof of the legal existence of a corporation, and it is not, as is supposed,—nor can it be, by any fair construction,—confined to proof of the existence of an Illinois corporation only.” Both corporations made and issued policies of insurance, and after loss, still acting in their corporate capacity, compromised and adjusted the same through their adjuster, with Fish, who was acting for and under the directions of appellant, and he received the money from the corporations as such. We think the evidence was ample upon this point.
Appellant’s fourth contention is, that the indictment in this case should have been under section 14 of division 1 of the Criminal Code, (Starr & Cur. Stat. par. 48, p. 1237,) which section makes it a felony to burn or set fire to, or cause to be burned, any building or chattels, etc., insured against loss by fire, with intent to injure the insurer, instead of under section 46 of the same statute, for conspiracy, which is a misdemeanor. The argument proceeds upon tfie theory of the merger of the lesser offense (the conspiracy) charged in the indictment with the felony, (arson,) which was not charged in the indictment but which was one of the overt acts pursuant to the conspiracy.
At the common law, because of the marked difference between felonies and misdemeanors, arising not only from the dissimilarity and extent of the punishment and the consequences to the accused but also the method of procedure, the theory of merger was evolved and generally obtained. Under an indictment for misdemeanor a person was entitled to the full privilege of counsel, to a copy of the indictment and to a. special jury, which, upon an indictment for a felony, he was denied. With these circumstances in view it was considered that a person could not be found guilty of a misdemeanor upon an indictment for felony, although the misdemeanor formed a constituent of the felony and was complete, as he would lose substantial advantages of the method of trial provided for the misdemeanor; and where the indictment was for a misdemeanor and the evidence necessary to establish it showed the commission of a felony, an acquittal would be directed in order that the prisoner might be indicted and tried for the felony. In such case the technically less crime of misdemeanor merged in the technically higher crime of felony, and it became a doctrine that where the same criminal act satisfied the definitions of misdemeanor and felony, the misdemeanor was merged and gone and the felony could alone be punished. It was also the rule at the common law that one charged with a felony could not be convicted of a misdemeanor, although the latter might be legally involved in the former, for by the law, as then administered, felonies and misdemeanors were classed as different things, and where there was an indictment for a felony, if the proof failed to show a felony but did show' a misdemeanor, the person was detained in custody, to be indicted and prosecuted for the misdemeanor. • So it has been held in both England and America that where an indictment was for a conspiracy to commit a felony, though the conspiracy would be a misdemeanor, if the object of the conspiracy was completed and a felony was committed, then the misdemeanor would merge in the felony. Commomvealth v. Kingsbury, 5 Mass. 106; People v. Mather, 4 Wend. 230; State v. Hattabough, 66 Ind. 223.
In the modern criminal law, by reason of legislation and decisions of the courts, the distinctions in the trials of felonies and misdemeanors have been abolished, and in this State it has long been the law that a person charged with an atrocious offense may be convicted of any constituent offense of a lower degree, provided such minor offense is substantially included in the description in the indictment or accusation, and even without regard to the technical line of demarcation between felonies and misdemeanors. (Herman v. People, 131 Ill. 594; Beckwith v. People, 26 id. 500; George v. People, 167 id. 447; Howard v. People, 185 id. 552.) Where, however, the conspiracy alleged in the indictment is a misdemeanor and the offense for the commission of which the conspiracy was formed is also a misdemeanor and is completed, it has been uniformly held, in this country, that there is no merger. And so the rule applies, if the conspiracy charged is a felony, and when the completed crime is a felony, there is no merger; or, in other words, the rule of merger does not apply where both the conspiracy for which the person is indicted and the completed offense are both felonies or both misdemeanors. (Orr v. People, 63 Ill. App. 305; Hamilton v. State, 36 Ind. 280; 10 Am. Eep. 22; Commonwealth v. McPike, 3 Gush. 181; 50 Am. Dec. 727; State v. Dowd, 19 Conn. 388; State v. Salter, 48 La. 197; Keefe v. People, 40 N. Y. 348.) And it would seem that in conspiracies the rule of merger is confined to those cases where the conspiracy charged in the indictment would be a misdemeanor, and the crime, when completed, as charged in the indictment, is a felony and the proof shows the completed crime. (United States v. Gardner, 42 Fed. Rep. 829; United States v. McDonald, 3 Dill. 545; State v. Murphy, 6 Ala. 765; 41 Am. Dec. 79; State v. Lewis, 48 Iowa, 579; 30 Am. Rep. 407.) And it is believed that by the greater weight of authority the rule of merger, as formerly existing at common law, has been to a great extent abrogated and confined to very narrow limits. (Bishop on New Grim. Law, secs. 791, 814, 815, 815a; Wharton on Grim. Law,—8th ed.—1343, 1344.) If the indictment be for a conspiracy which is a misdemeanor, and the conspiracy comprises.the doing of many things, and the proof shows that among the overt acts done pursuant to the conspiracy is a felony, it would seem the greater weight of authority is that a conviction may nevertheless be had for the conspiracy. Johnson v. State, 2 Dutch. (26 N. J. L.) 313; Commonwealth v. Blackburn, 1 Duval, 4; People v. Peterson, 60 N. Y. App. Div. 118; United States v. Rindskoff, 6 Biss. 265; State v. Grant, 86 Iowa, 217; 20 Am. & Eng. Ency. of Law, (2d ed.) 605; 3 Greenleaf on Evidence, sec. 90; State v. Murray, 15 Me. 100.
The crime, under paragraph 48, could be committed without any conspiracy, and the crime charged in the indictment could have been devised and committed without arson. It so happens that arson was one of the means selected for the commission of the crime charged, but it was only one of them. The proof shows that the conspiracy charged in the indictment was primarily to obtain from the insurer insurance greatly in excess of the amount of the loss. It involved an outlay of about §750 and the pressing of a claim for §3000. The fraud consisted in buying a small amount of goods, carrying a great portion of them away from the store, burning a small portion and presenting false invoices of goods purchased. The defendant Saméis, so far as the evidence discloses, was not a party to the conspiracy until after the arson, nor is it shown that he had any knowledge of the arson until after the fact. He could not have been indicted for arson, but only as an accessory after the fact, while he and all the others included in the indictment were, if the evidence is to be accredited, guilty of the crime charged in the indictment, and we cannot yield our assent to the contention that where a conspiracy is formed, including or requiring several acts for its consummation, and because one of the acts may be of the nature that it is classed as a felony, therefore the conspirator must be indicted for the felony and the conspiracy be disregarded. If the conspiracy charged were only to commit the crime of arson for the purpose of defrauding the insurance companies named in the indictment, then the contention made here would have much force. It is not shown that the details of the conspiracy were all developed or evolved at the inception of the conspiracy, which is the crime charged here, but that the plan grew with time, and after the arson the plan of increasing-the demand against the insurance companies by having Saméis, who had sold to Ettelson and Alexander cigars to the amount of about $700, prepare and present, for use in the adjustment of the loss, invoices of sales to the amount of §3000, seems to have been conceived. Saméis had not been paid for his goods, and he was told that in order to get his pay it was necessary that he present the false invoices, which he did, and which made him a party to the conspiracy.
A careful examination of the American authorities cited by appellant upon this proposition will disclose that the only on'e that may be fairly said to be directly in point and tending to sustain his contention is Commonwealth v. Kingsbury, supra. Prom a careful reading of that case it will appear that the conspiracy charged was to commit a felony and that it was carried into effect, and the real matter before the court was not the question presented to this court, as would seem to be contended. In that case the Massachusetts court remarks that the rule of merger applies both in respect to misdemeanors and to felonies. This announcement is so contrary to authority that the case cannot carry with it the weight it otherwise might. It appears that the rule announced in that case was subsequently departed from in the case of Commonwealth v. Walker, 108 Mass. 309.
Hoyt v. People, 140 Ill. 588, does not seem to us to be authority upon the point here presented. The question there was whether the indictment was double. . It charged a conspiracy to burn, and it also charged the burning of a certain building by the defendants. The indictment was held not double, but to be a good indictment for arson, and it was merely said in the discussion that “the conspiracy, in such case, is merged in the consummated act of burning.”
It is very earnestly contended that if this conviction be allowed to stand, appellant may be indicted and convicted of the crime of arson under said paragraph 48, as it is urged that the present conviction cannot be pleaded in bar to an indictment for arson. We do not feel called upon to pass upon the question as to whether this conviction can be pleaded in bar to a prosecution under paid paragraph 48. Whether it can or not does not furnish a sufficient reason for relieving appellant from the consequences of his own deliberate actions. If he has in fact committed two crimes that are so distinct that the conviction of one may not be urged in bar of the other, the misfortune must be his own.
Complaint is made that the trial court permitted Ben Ettelson, a co-defendant with appellant, after the People rested, to withdraw his plea of not guilty and enter his plea of guilty in the presence of the jury and during the progress of the trial. We are unable to see how error can be predicated upon this matter. The court had no more control over Ben Ettelson than did appellant. He had the unquestioned right to plead guilty if he saw fit to do so, and the only proper place for him to do so was in open court. It is not shown or claimed that the court had any notice of Ettelson’s intention to withdraw one plea and enter the other until it was done. Nor was it shown that the State had any notice of the intended action of Ettelson. It seems to have been upon the spur of the moment and to have been somewhat dramatic. It may be that it had some influence with the-jury, but neither the People nor the court was responsible for it. He was a co-defendant with the appellant and was being tried jointly with him, and there is no reason to assume that the court or the prosecution knew any more about his intended action than appellant. Be that as it may, and though it may have been an unfortunate circumstance for appellant, it was not one for which a blame can be attached to the court or to those representing the People. Appellant’s counsel now state that both the appellant and his counsel were so surprised that they were dumfounded, and it may be that they were greatly surprised; but they, doubtless felt, as the court must have felt, that however great the surprise, Ettelson was exercising a right that he unquestionably had, and unless there was over-indulgence by the court (which there does not seem to have been) or collusion by"those representing the State, (which is not shown,) the incident must be regarded as one of those unfortunate things that sometimes happen in the coúrse of a trial, for which no one in particular is to blame.
After Ettelson had pleaded guilty the court re-opened the case for the State and permitted the State to use Ettelson as a witness. The only objection interposed by appellant was upon the ground that the State had closed its case. It is admitted that it rested in the discretion of the court to re-open the case and permit the State to offer further evidence, but appellant now urges that he was surprised by the course Ettelson had taken and by the offered testimony. Whether he was surprised, in a legal sense, is not shown by the record, as he did not object to the evidence upon the ground of surprise or make any motion addressed to the court upon that theory. As far as the court could do so by instructions, the injurious effect, if any, of Ettelson’s conduct was repaired by appellant’s fifty-second and fifty-dhird instructions. The jury were told that the fact that Ettelson had pleaded guilty in their presence should not influence them in arriving at their verdict or be considered by them as any evidence of guilt of the other-defendants.
At the time of the adjustment, Alexander, one of the co-defendants, had a certain written statement made by himself and relating" to the value of the fixtures that were claimed to have been lost by the fire. This exhibit was admitted in evidence and is complained of by appellant. It was one of the efforts in the direction of the conspiracy by one of the conspirators, for the accomplishment of the given purpose. The evidence was that it was made at the instigation of and under the direction of appellant, and we are unable to see any ground upon which it was not admissible.
Complaint is made as to the giving and refusing of instructions. Those given were sixty-seven in number, and from a careful review of them, and taken as a series, we think they fully and fairly presented the law to the jury, and that those that were refused were covered by other instructions given.
Instruction 47 given for the People singled out and directed special attention to the evidence of Ben Ettelson. It told the jury that the testimony of an accomplice should be received with caution, and yet that a conviction might be had upon the uncorroborated testimony of an accomplice, and that if they believed, from the evidence, that the testimony given by Ettelson was true, they had the right to'act upon it as true; that it should be weighed by the jury like the testimony of any other of the witnesses, or that the testimony of an accomplice, like all other evidence in the case, was for the jury to pass upon. By instructions 44 and 45 given for appellant the jury were further and particularly cautioned to act with great caution and care, and subject to critical examination and scrutinization, in the light of all the other evidence in the case, the testimony of accomplices, and that they should not convict upon such testimony alone, unless, after a careful examination of it, they were satisfied, beyond a reasonable doubt, of its truth, and that they could safely rely upon it. It was error to have specifically pointed out the evidence of the witness Ettelson, and such action has been many times condemned by this court; but there was evidence of other accomplices to the same effect as Ettelson’s, though not so full, and there was ample evidence in the record to warrant the verdict found, and we would not feel justified in reversing this case for the error committed, as we are .unable to see that it resulted in harm to appellant.
Motion for new trial was made and partially based upon newly discovered evidence. The evidence claimed to have been newly discovered was but cumulative, and was not sufficient to require the granting of a new trial.
We find no reversible error in the record, and the judgment of the Appellate Court will be affirmed.
Judgment affirmed.