dissenting.
1 am unable to concur in the conclusion of the majority of the court as to Brennan and HcCarle, or in the reasoning upon which it is based. The importance of the case in its bearing upon the purity of the ballot, seems to demand a statement of the reasons for my dissent.
If Brennan and McCarle knew that the false personation charged in the indictment was attempted or going on, and were engaged as accessories or co-conspirators with others, carrying out or assisting to carry out such common purpose, they were rightfully found guilty under the counts of the indictment upon which they were convicted. The allegations of the indictment in this respect are “ fully supported by proof that another did that which is directly alleged to have been done by the accused, if it be shown the accused was present, and as in this case aided, advised, encouraged and assisted such other to do the prohibited acts.” Lionetti v. The People, 183 Ill. 253-255.
Is there room for a reasonable doubt of the guilt of Brennan and McCarle as charged, and as found by the jury before whom they were tried ? The reversal as to Brennan is based upon the view that the witness, Barrett, did not tell the truth, is not worthy of belief, and is not corroborated as to material matters; and it is claimed that the only direct evidence connecting Brennan with the common purpose charged in the indictment is Barrett’s testimony. This is cast aside and characterized as unworthy of belief against the denials of Brennan, the alderman of fourteen years’ service, whose veracity is said not to have been questioned or assailed at the trial. But Barrett’s is not the only evidence so connecting Brennan, and the veracity of the latter is in my judgment successfully assailed and impeached by other reliable evidence. He is so connected with the common purpose and its performance by the evidence of the witness Lowry. The latter testifies to seeing the defendant Kent in Brennan’s saloon talking to several men. Kent held a cardboard containing printed slips of names on it. He had a pad and a pencil in his hand and was checking off names. He called out numbers and “ occasionally a man would come up and accept the number ” and receive directions, with a slip from the pad on which Kent wrote items of information for guidance in answering questions of judges of election. The witness also saw Brennan in the polling place holding a cardboard similar to the one Kent had. Several times the witness saw Brennan “ just outside of the polling place door and in the polling place door talking to Mr. Kent. Each man held up the cardboard for the inspection of the other man, and made pencil marks.” This evidence tends to show them working together for the common purpose. They were afterwards seen talking together in the rear part of Brennan’s saloon. Brennan’s veracity is' moreover directly assailed and impeached by the testimony of Waseca, conceded to be a reputable citizen entitled to credence, whose evidence I shall refer to in another connection.
But why should Barrett’s testimony be thus cavalierly disregarded and declared unworthy oí belief as against that given by Brennan in his own defense ? The witness Barrett it is true, frankly admitted that he had been for a considerable time a victim of the habit of intoxication. From a once prosperous man, he had reduced himself to a condition where it was difficult for him to obtain or retain employment. He had been and still is a newspaper reporter. Ho charge of crime has been made against him so far as appears, and he has nex7er been in prison. He xvas, at the time he was induced to obtain fifty cents by fraudulent voting, in receipt of free board and lodgingfrom the Salvation Army. He had not heard of the rexvard offered b}7 the nexvspaper referred to in the majority opinion, until after he had voted in Veneman’s name. 1 am unable to find in the record anything that would warrant court or jury in disregarding his testimony. The jury and the trial court believed him, and refused to believe Brennan in his denials of what Barrett had sworn to, and their finding on such a question should be deemed conclusivo. A fair consideration of the testimony of the two shows more reason to doubt Brennan’s veracity than Barrett’s. The former contents himself with merely denying specifically7 the incriminating features of Barrett’s statement without attempting to make any explanation of other evidence against him. This he had a right to do, but in the attempt to ascertain what exddence is trustworthy, a careful scrutiny is full as favorable to Barrett as Brennan. There is nothing against Barrett so far as appears except his habit of drinking and his connection with the present case, which he seems to have gone into as much at least from a nexvspaper reporter’s standpoint as from a criminal intent. He xvent at once after voting, and told the facts at a nexvspaper office, and then and there made an affidavit of the matters to which he testified. He, with Bait, another reporter, xvent back to the polling place. There Bait voted in the name of Flysen, and then xvrote up the stor}7 for his newspaper. In Collins v. The People, 98 Ill. 584, 594; it is said by Mr. Justice Scholfield, speaking for the Supreme Court: “We must recognize the fact, in considering cases of this kind, that honest men and women rarely, and then only casually, are in the company of thieves and burglars, and are still more rarely admitted into their confidence, and hence that witnesses of their guilt, of nécessity must very often be taken from those who are no better than themselves.” If the example to be set in this case is followed generally, hereafter no evidence which is obtainable in cases of this kind will be considered worthy of belief yvhen denied by the party indicted for the offense; and crimes of this character may go unpunished if the views stated in the majority opinion are to obtain in courts of review. The point is made that Barrett is the only one who testifies to Brennan’s alleged conduct, although in all likelihood others must have seen it. The record shows that at least one other witness was called, who was present in the polling place, but who refused to testify on the ground that it might tend to incriminate himself. It is at least reasonable to suppose from this record, that others best informed as to what transpired were “ tarred with the same stick,” and would, in like manner, refuse to testify, and for the same reason.
The statement in the'majority opinion that the testimony relating to the charge of procuring and assisting in the false personation of Yeneman bv Barrett “connects Brennan in no way with the charge of procuring and assisting in the false personation of Flysen by Bait,” seems to me not warranted by the evidence. There is evidence tending to show that the defendants were all working together for a common "purpose,which purpose was carried out no less when Bait was procured and assisted in the false personation of Flysen than when Barrett was procured in the same way by Brennan in person to falsely personate and vote in the name of Yeneman. The evidence discloses the defendant Kent and a young man whose identity is not shown, operating together with a man named Foley. The place is the saloon of the defendant Brennan. Folejr makes the arrangement with Barrett, whom he is informed is not registered, to go down and vote, promising that he will earn a “ half case,” and that there is no risk, that everything is fixed up. Foley brings in the unknown, saying to the latter, “ This is one of our people—-belongs upstairs and he will go through; he is all right.” The unknown looks over a list and writes on a pad in his hand the name “ John Veneman, 126 Madison Street.” In reply to Barrett’s question “ Where do I get the coin ? ” he answers, “ The old man will fix you inside as soon as you have voted.” The defendant Kent stands by at the time conversing with the unknown. When Barrett gets into the line of voters at the polling place he discovers four men ahead of him in the line with slips similar to that be has in'his own hand. In the case of four of the men in line Barrett sees the defendant McCarle go into the voting booth with them, and as the men come out and give their ballots to the election judges, Brennan takes his hand from his pocket and passes it “ you know that way (indicating).” Barrett gets a ballot and the defendant Brennan plucks him by the elbow and takes him into the second booth from the window, saying “ You don’t know how to mark this ballot—make out this ballot, do you?” to which Barrett answers “No.” Brennan marks the ballot, folds it up for Barrett and tells the latter to put it in the box. This is done, and as Barrett approaches, the defendant Brennan again draws his hand from his pocket and Barrett receives two quarters of a dollar. I'f other men went into the line of voters with slips of paper like that given to Barrett, if McCarle went with them into the voting booths as Brennan did with Barrett, and if when they had voted Brennan’s hand went in and out of his pocket in the same manner as when Barrett became the recipient of a half dollar, if subsequently Bait, piloted b)T Barrett, procures from the defendant Kent a slip of paper bearing the name of William Fijasen and similar to that given Barret having the name of Veneman, if when Bait gets a ballot and goes into the voting booth McCarle again turns up, this time to mark Bait’s ballot, and if McCarle hands out to Bait the half dollar after he has voted, as Brennan had to Barrett, then the conclusion is amply justified that Foley and the unknown and the defendants Kent and Brennan and McCarle were working together for the same common purpose, a part of which was to procure not only Barrett to falsely personate and vote in the name of Veneman but Bait also to falsely personate and vote in the name of Fly-sen, which purpose was accomplished. Such evidence connects all three of the defendants with procuring and assisting in the false personation of Veneman by Barrett and of Flysen by Bait.
Reference is made to the evidence of the witness Waseca, which it is contended by counsel for the defendants was erroneously admitted in rebuttal. This evidence is strongly corroborative of Barrett and directly contradicts Brennan, in a matter important to the latter’s defense, volunteered by him on cross-examination. If it is a fact, as Brennan states, that he did not go into the voting booths that day except with his own vote, then Barrett's whole testimony with reference to Brennan is vitally discredited. Waseca testifies that he voted that day in the twenty-seventh precinct of the eighteenth ward about seven o’clock in the morning; that Brennan was there and went into the polling-booths with two men, and that Brennan also asked the witness if he knew how to mark his ballot. It was urged by counsel for plaintiff in error that the testimony of this witness was not in rebuttal of any evidence of Brennan’s on his examination in chief; that the trial court admitted it under an erroneous impression in that regard; that it does not contradict Brennan’s statement on cross-examination that he did not enter the voting booths with voters and mark their ballots for a certain specified candidate; that it does not bear directly on the charges contained in the indictment, but tends to prove an unlawful act not so charged; and that this testimon}7 by a respectable citizen was highly prejudicial to Brennan. But prejudicial or not it was properly admitted, and entirely competent. Brennan had testified not only that he did not go into the voting booth and mark Barrett’s vote, as the latter says he did, but to strengthen his case had gone to the extent of denying that he went into the booths at all except when he himself voted. The evidence of Waseca that he saw Brennan go into the voting booths with two men not only tended to corroborate Barrett’s testimony in chief, but it also tended to contradict Brennan’s statement that he went into the polling place merely to get away from a mob clamorous for drinks, and that he was not doing there any particular thing. In this view the evidence of Waseca was strictly proper rebuttal. But whether so or not its admission rested in the reasonable discretion of the trial judge and is not properly subject to review here. In Thompson on Trials, vol. 1, sec. 346, it is said that “ the admission or exclusion of evidence not strictly in rebuttal is a matter resting in the discretion of the trial court, the exercise of which discretion is not subject to review except in case of gross abuse,” the better view being “ that where the plaintiff’s prima facie case is vigorously assailed he should be allowed to introduce in rebuttal additional corroborative evidence.” . As to what constitutes corroborative evidence the generally accepted doctrine is that it extends to facts which connect the defendants with the offense. Bishop on Criminal Law, vol. I, sec. 1170. That the admission of this evidence was within the discretion of the trial judge, is supported by adjudicated cases in this and other states. The language used in Collins v. The People, 98 Ill. 584, 595, is applicable here : “ Some objection was urged against the testimon}7 of Geraty on the ground that it was not rebutting. The order of admission of evidence is largely discretionary with the trial judge. The defense were not denied the right to rebut any matter testified to by Geraty, which they claim was original testimony; and we cannot, even conceding that it be true that some of his testimony was such as should have been given in chief, perceive the defendant has been injured. Ho such abuse of discretion is apparent as would require a reversal of the judgment.” In Wright v. Foster, 109 Mass. 57, it was held that admission of evidence to corroborate the plaintiff’s testimony in chief affords the defendant no ground of exception. The court said that “ it corroborated the plaintiff in material parts of the transaction to which he testified, and would have been admissible for him in chief. Being so, it was within the discretion of the presiding judge to admit it at any stage of the trial.” In Commonwealth v. Moulton, 4th Gray (Mass.), 39, a trial for larceny, where objection was made to the testimony of a witness called after the Commonwealth had closed, it is said: “ This objection is only to the order of introducing evidence, which must always be regulated by the discretion of the presiding judge.” In Cushing v. Billings, 2 Cushing (Mass.), 158, Chief Justice Shaw says : “ We take it to be well settled that the order in which witnesses shall be called is a matter of discretion with the court;” and further that “it is competent for the judge according to the nature of the case to allow a party who has closed his case to introduce further evidence * * * within the absolute discretion of the judge.” To the same effect are A. & E. Encye. of Law, vol. 15, 384, 385; Robinson v. Kirkwood, 91 Ill. App. 54, 57; Bussey v. Hemp, 48 Ill. App. 195, 198; Maxwell v. Durkin, 185 Ill. 546, 551. The testimony in question has an important bearing upon the credibility of Barrett, whom it corroborates, and of Brennan, whose veracity it impeaches.
The guilt of the defendants should be established beyond a reasonable doubt. This is defined as meaning in law “ a serious, substantial and well-founded doubt, and not the possibility of a doubt; and neither court nor jury have a right to go outside the evidence to search for or hunt up doubts (in order to acquit the defendant) not arising from the evidence or want of evidence.” Earle v. The People, 73 Ill. 329, 334. I cannot see that upon the showing made in this record the character and conduct of Barrett do not compare favorably with that of the defendant Brennan, who explains his presence in the polling place by the excuse that he was pursued by a mob clamoring for drinks—itself a significant fact on an election day—from which he sought refuge there. In my judgment the guilt of Brennan as well as that of McCarle is established beyond a reasonable doubt by evidence worthy of credence, and the verdict of the jury and the judgment of the trial court are fully justified and ought not to be interfered with.