People v. Pfanschmidt (262 Ill. 411, 1914)

Mr. Justice Carter

delivered the opinion of the court:

/Kt the January term, 1913, of the circuit court the grand jury of Adams county returned four indictments against plaintiff in error, Ray Pfanschmidt, one charging him with the murder of his sister, Blanch Pfanschmidt; another with the murder of his father, Charles A. Pfanschmidt; a third with the murder of his mother, Matilda Pfanschmidtand a fourth with the murder of Emma Kaempen, a school teacher who boarded at his father’s home. On a trial' before a jury under the indictment for the murder of his sister, a verdict of guilty was returned and his punishment fixed at death- After motions for new trial"and in arrest of judgment had been overruled he was sentenced to be hanged on October 18, 1913. The record has been brought to this court for review.

In September, 1912, Charles A. Pfanschmidt, the father, was a farmer living about ten miles south-east of Quincy, Illinois, and from four to five miles north-west of Payson, on the northerly side, of a road running south-easterly from Quincy to Payson. His family consisted of himself, his wife, Matilda, the son, plaintiff in error, who was then twenty years of age, and the daughter, Blanch, fourteen years of age. Emma Kaempen, a young lady from Quincy, had entered the home as a boarder early in September, being a teacher .in .a country school in the neighborhood. During September, ^and for some weeks before, Ray, who prior to that time made his home with his parents, had been engaged upon a contract for excavating for a railroad switch and coal sheds upon the property of J. L. Frese, just north of the city of Quincy and about fourteen miles from the Pfanschmidt home. On the Frese premises he had established a camp of two tents in an open field about three hundred feet east of Twelfth street and a short distance north of the main line of the Burlington railroad. One tent was used for sleeping purposes by him and one of his men, the other being used for supplies. The Pfanschmidt farmhouse was a frame building two stories high, containing five rooms, and faced south. A narrow north and south hallway was in the center. A room opened into it on each side, both on the first and second floors, and the kitchen opened off the east room on the first floor. A one-room cellar was under the east room but did not extend beneath the hall or west room. The upper chambers were used as bed-rooms, the east room usually occupied by the parents and the west room by the daughter or guests of the family. The nearest neighbors were the Kaufmans, father and sons, about a quarter of a mile distant, on the opposite side of the Quincy and Payson road. Somewhat further away, to the north-west, were the Lehr brothers. Other neighbors lived at still greater distances. On the south side of the Quincy and Payson road, opposite the Pfanschmidt home, another highway led directly south. A lane, forming almost a direct continuation of this latter highway, ran north, passing several feet west of the house and continuing beyond it, there being no gate where it left the main highway and a fence on the west side only until the house was passed. The house "stood some, three hundred feet north of the highway, with an orchard between it and the road, and the barns, granaries and other outbuildings stood a short distance further to the north.

On Friday evening, September 27, 1912, Charles Pfanschmidt, his wife and daughter and Miss Kaempen were in Payson at a political gathering, going in a two-seated surrey drawn by two horses. At about ten o’clock the two young women were in the store of Flarvey Groce, where", they bought some candy, and all four left for home some time before eleven o’clock. All of them were apparently in good health and spirits and none of them were after-wards seen alive. The following day none of them were seen about the Pfanschmidt premises, although Henry Kaufman and his sons were working in a neighboring field, from whence they commanded a view of the house and its

approaches and for two or three hours were cutting weeds along the highway just west of the lane. Several persons driving along the road past the house on Saturday were attracted by a strong odor, which some of them said they thought came from burning flesh. In the opinion of all these witnesses the smell came from the Pfanschmidt place. This odor was noticed in the morning and became more pronounced later in the day. About eleven o’clock on Saturday evening one of the Kaufman boys (Gus) returning in a buggy from a call approached the Pfanschmidt prem- ' ises on the highway leading north to them, and opposite the lane he turned to the north-west on the Quincy and Payson road and thence to his home but saw no one about the Pfanschmidt place. E. M. Miller testified that shortly after, half-past eleven o’clock the same night, while driving a team of mules to Quincy, being at that time about eight or nine miles south-east of the Pfanschmidt place, he saw a fire in the direction of that -farm. Driving on through Payson and along the Quincy and Payson road he- found the residence, when he reached it, practically destroyed by the fire, only one corner post standing, the metal roof having fallen upon the burning debris. Several neighbors were already there, and one, whom he overtook, rode with him to the fire. The earliest arrival was Henry Schreclce, who saw the fire ten minutes after two o’clock from his farm wést of the Kaufman farm. Following him came the Lehr brothers and other neighbors. The horses and surrey used by the family Friday night were found in one of the barns, the horses in their usual places, unharnessed, and the surrey in the runway in the barn.’ No- attempt was made to extinguish the fire until the arrival of Henry Geisel, a brother-in-law of Charles A. Pfanschmidt, who had been telephoned to at his home about seven miles to the north-west, near the Quincy and Payson road, and who arrived with his son shortly before five o’clock. They then commenced pouring water upon the hot metal roof and burning debris covered by it. When it was sufficiently cooled the roof was removed and below were found four bodies, which were taken out and placed in a canvas and later in the day were taken to an undertaking parlor in Quincy, where a post-mortem examination was held by several physicians. The bodies of the three women were found in the west half of the house, the two younger women being side by side on a mattress. The fourth body was found in the cellar. -All of the bodies were badly burned and disfigured. The hands of Blanch Pfanschmidt were burned off and the arms were burned to the'elbow. Her feet were burned off and limbs burned almost to the knees. One side of the head was completely destroyed. Her hair, in two braids, was under the body. The remains of Emma Kaempen, found by her side, showed a fracture of .the bone over the left eye and another on top of the head. There was much-blood on the mattress upon which these two bodies were found. So little remained of the body found in the cellar that the physicians could not determine its sex. The flesh and bones of the head, arms, shoulders, upper trunk, legs and half of the lower trunk were all gone, but a part of one thigh and- one side of the lower trunk being unconsumed. The doctors testified this body had been dismembered before being burned, the flesh cut off with a knife and the thigh bone severed with a saw. The remains of the two young women were identified by several neighbors, and also by the plaintiff in error, before they were removed to Quincy. ’ While water was being poured upon the burning debris, two of the neighbors going into the barn yard found horse and buggy tracks which turned from the north-west into the Pfanschmidt lane from the Quincy and Payson road, going north past the house and turning to the east between the granary and chicken house and into the barnyard, there describing a circle with an inner diameter of about nine feet, then passing out again into the lane and thence to the main highway and to the north-west, apparently making no stop at any point within the premises. A light rain fell early Saturday evening and settled the dust, forming a light crust on the surface of the traveled roadways, but the evidence is to the effect that it made no mud. The buggy tracks in this crust or dust are described by some witnesses as flat and by others as somewhat rounded. Many of the witnesses who examined them that morning testified they were made by steel tires, while others testified they were made by rubber tires. The horses’ tracks were of a shod team of small horses, about which the great majority of the witnesses discovered no peculiarities on this Sunday morning. The tracks made by the horse and buggy driven by Gus Kaufman turning north-west in front of the Pfanschmidt residence onto the Quincy and Payson road were made before these tracks going in and coming out of the Pfanschmidt lane.

Plaintiff in error, though a minor, had been working for-a number of persons in blasting stumps, ditching and other work, using dynamite and other explosives, and was also carrying on a contract for excavating for J. L. Frese for a switch and coal sheds, as heretofore stated. Between half-past five and six o’clock on Friday afternoon, September 27, he left his camp at Frese’s with his team and buggy. This was a small team of sorrels, each with a white streak on its face and each weighing between goo and 1000 pounds. The buggy was an undercut buggy of standard tread, five feet and two inches wide. His camp was located a 'Short distance north of the Soldier’s Home, north of Quincy. He took in his buggy with him one of his employees. They drove through the grounds of the Soldier’s Home to the home of this employee in Quine}'-, where the latter got out, and plaintiff in error then drove to an office which he had in the shop of one Chadwick, in Quincy. There he left his team while he went to a restaurant for supper, and then drove out to the home of Daniel Reeder, some three or four miles south-east of Quincy. He had been for some time engaged to be married to Esther Reeder, a young lady of about eighteen years, who was living at home with her father, her mother having died. The son, Hugh Reeder, and his wife, and a hired man, Henry Brinkman, were also there at the time. They all agree that the young man stayed there until shortly after ten o’clock, when he stepped out with Miss Reeder upon the porch, parting with her in a few moments. She went immediately to her room and he went to his horses and buggy, and after making a slight repair drove off as the clock struck half-past ten. He states that he drove from the Reeder place to the city, falling asleep several times, in his buggy, and after he reached Quincy he stopped at Clutch’s lunch stand and had a lunch. Clutch denies his presence there on that night. He further testifies that he drove from that place to his camp at Erese’s, where he unhitched and went to bed in the tent; that on entering the tent he spoke to Willis Seehorn, who was sleeping there, but doesn’t know whether he answered or not; that shortly after going to bed he heard a Burlington passenger train go by west and saw its lights through the tent. It is shown that this train reached Quincy at 12:58 that night. See-horn, a few days later, in a statement made in the office of the attorneys of plaintiff in error, stated that plaintiff in error came to the tent shortly after midnight and spoke to him, and that he (Seehorn) heard the passenger train go by shortly thereafter. This statement was written down and a few days later taken to him and in the presence of Henry Geisel, after some changes, he signed it. On the trial Seehorn, while admitting signing the statement and that doubtless his memory was as good at the time he made the statement as it was at the time of the trial, testified to the effect that he waked up at half-past one o’clock that night, sat up in bed, struck a match, looked at his watch .and saw it was 1:3o and plaintiff in error not in; that he went to sleep, and was wakened about an hour later by plaintiff in error speaking to him and asking him if he was asleep.

About a half mile north of the Reeder residence is Melrose Chapel and a town hall, standing at the four corners made by Thirty-sixth street extended south, intersecting the Quincy and Payson road, running here east and west. A mile east of Melrose Chapel the Quincy and Pay-son road turns south for about a half mile and then runs irregularly in a south-easterly direction until it passes the Pfanschmidt home. Commencing nearly in front of the entrance to the Reeder home, and a half mile south of Melrose Chapel, a road runs east from Thirty-sixth street for a half mile and then diagonally south and east until it runs into the Payson and Quincy road about a quarter of a mile north-west of the Pfanschmidt residence. It is called the Pape Mill road. These two roads between these points average a distance of from one-half to three-quarters of a mile apart and run diagonally in the same general direction. The distance from where the two roads meet at Melrose Chapel to the point where they merge at the Pfanschmidt farm is about five miles. Plaintiff in error testified that after leaving the Reeder home he drove north of Melrose Chapel on Thirty-sixth street and did not turn -west at that place on the Quincy and Payson road.

Margaret Spindler, who lived in Quincy, was teaching a country school at this time about five miles south-east of Melrose Chapel. Chester Smith came Friday evening, September 27, in a single rig from Quincy to take her home. He reached her boarding place some time after nine o’clock that evening. At a time which they think to be between 9:30 and 10 o’clock the two started along the Pape Mill road. Smith says he traveled toward the city at the rate of about ten miles an hour. After passing the Reeder place and coming to Melrose Chapel they turned west on the Quincy and Payson road. Up to this point they had met no one on the road. Just after they turned to the west Miss Spindler testified that a team and buggy coming from the west passed them, driving rapidly, and as they passed, whoever occupied the buggy leaned forward and drew more tightly about him a lap robe. Her only description of the team was that it was small and that the buggy had side curtains on. She did not know which direction the team went after it passed her. While Smith in his testimony is not very certain, he testifies that he thinks a team and buggy passed him at or near the Melrose Chapel corner, turning south on the Pape Mill road. Neither of these witnesses attempted to identify the person or persons in the buggy, the buggy or the team. The theory of the State appears to be that the plaintiff in error, after leaving the Reeder place, drove north to the Melrose Chapel corner and then west on the Quincy and Payson road so as to avoid the suspicion of the Reeder family as to what he intended to do, or else desired to avoid meeting Smith’s hqrse and buggy, which he heard coming from the east on the Pape Mill road after he left Reeder’s, and that after he had driven a short distance he turned around and drove back, thus passing at the Melrose Chapel corner the Smith horse and buggy, driving then down the Pape Mill road to his father’s, where he committed the murders; that he then drove back, reaching his camp north of the Soldier’s Home about fourteen miles away, when Seehorn testified he came into the tent in the neighborhood of three o’clock.

A young man named Archie Pape, living in Quincy, tes- ' tified that on Saturday morning, September 28, while standing at Twelfth and Broadway, in Quincy, shortly after 2:15 A. M., he saw the team of plaintiff in error going rapidly north on Twelfth street. There was a rubber cloth in front of the buggy, preventing any view of the occupant or occupants. This is about a mile and a half south of plaintiff in error’s tents. Pape says that he was in a saloon a large part of the evening until after eleven o’clock and then went to see a lady friend, with whom he stayed until two o’clock, and then started home, when he saw the team and buggy. He says that he had seen the team on Wednesday evening before, when plaintiff in error called at his mother’s home in Quincy for Esther Reeder. Miss Reeder testified that she was at Pape’s mother’s home the Monday previous, and that plaintiff in error called for her with his team on Monday night and not Wednesday night. There is testimony in the record that some of the streets plaintiff in error would have to pass over if he took the direction sworn to by Pape on the night in question were undergoing repairs, and that the plaintiff in error, to drive through on those streets, would have had to take away some barriers placed there by the contractors to keep people off. Pape’s name was not on the back of the indictment ' as one of the State’s witnesses. The State’s attorney testified that he did not learn anything about this testimony until two days before Pape took the witness stand.

On Saturday, September 28, plaintiff in error got up about his usual time, about seven o’clock, and went out to where they were excavating for the switch track, stayed there for a time and then went down to his office to look after some business.- He afterward took his watch to the Odell jewelry store, in Quincy, for repairs. He met one of the jewelers there, (Mr. Weaver,) who testifies that the plaintiff in error entered the store in the same way that anyone else would bring in his watch to be repaired; that he said he had broken the watch by getting it caught in a wire the day before; that while they were talking about its repair, Weaver, who knew him, said, “What is the trouble with you? You are not looking as well as usual this morning,” and plaintiff in error replied it was on account of his work and loss of sleep, or something of that sort. The , contention of the State is that this watch was broken the night before, while he was committing the murder.

Plaintiff in error testified that on Saturday night, when he was .leaving his grandfather’s after supper, he asked his cousin, Howard Petri, to go and stay with him at his tent over night. Mrs. Petri also testified to the same effect. The reason Howard did not accept the invitation, as he had done at times before, was because they had visitors from Kansas and his mother thought it would not be polite for him to leave home. Plaintiff in error’s story is corroborated by all the witnesses that he remained in or near Quincy all that day until eleven o’clock, or a little after, on Saturday evening. He testifies that about 11:15, after leaving some young men with whom he had spent the evening, he untied his team and drove north to his camp on the Frese place, reaching there about midnight. Seehorn was not occupying the tent that night, and plaintiff in error does not claim that he saw anyone while going towards his home or on arriving at his camp until he was called, about 4:3o o’clock the next morning, by an uncle and one of his men, Ben Holeman, when he was told by them about the burning of the home and that the neighbors were unable to locate the family. At the time of telephoning the remains had not been discovered. A man named Jenkins stated that he saw plaintiff in error’s team tied on Seventh street until about 11 or 11 :i5 o’clock, when someone whom he could not recognize, untied it and drove south from that point. Walter Dingerson, who lived south-east of Quincy and south-west of the Pfanschmidt home, was in Quincy on Saturday evening. He went to several places and last to a theater. He left Eighth and State streets, in Quincy, with his horse and buggy about eleven o’clock, coming east to Twenty-fourth- street, then south to the Quincy and Payson road and thence east towards Melrose Chapel, on that road. Two or three blocks before reaching the four corners at the chapel he caught up- with and passed a team and buggy going east ahead of him at a walk. He testified that he drove along behind the buggy for two or three minutes, and noticed, in passing, that the buggy was undercut and drawm by two horses with white streaks on their heads. The back curtain was up and side curtains on, so that he could not see who was in the buggy. He identified the team and buggy as belonging to plaintiff in error. After passing the buggy he went on to his home, seeing no one else. Clarence Crubaugh on this same night drove in a horse and buggy with a young lady to her home on Cook avenue, about a mile north of the Soldier’s Home. He left her home on foot about ten minutes after one o’clock and walked towards town. As he approached the Twelfth street gate of the Soldier’s Home he heard a team coming over the gravel road towards the north. He did not recognize the team but saw they were small horses, and he could not tell what kind of a buggy it was, other than that it was a top buggy and looked to him rather high. He could not tell who was in the vehicle. At the rate he was walking he thought that when he saw this team it was between half-past one and two o’clock. The theory of the State is that the plaintiff in error on Saturday night, after ’ leaving, at a quarter past eleven, Seventh and Main streets, drove south until he reached the Quincy and Payson road and then went slowly east, where he was passed by Dingerson; that shortly thereafter he came to Melrose Chapel corners, where he turned south on the Pape Mill road and drove rapidly to his home, set the' building on fire, drove back along the Payson and Quincy road to Melrose Chapel and from there north and' west through the city, when he was seen by Crubaugh not later than about a quarter of two, near the Soldiers’ Home. John Lehr, one of the Lehr brothers who lived just north of the Pfanschmidt home, was in Quincy that Saturday night. He left Twenty-fourth and State streets at midnight with his horse and buggy, drove east to Forty-eighth street and then directly south until he struck the Quincy and Payson road a mile west of Melrose Chapel and followed that road to his home, which he reached shortly after two o’clock, about the time his brothers discovered the fire. He did not meet or pass anyone, to his knowledge, on the way home on the Quincy and Payson road. He testified that he had been drinking some. Thére is no testimony, however, indicating that he did not know what he was about. About a quarter to eleven on the same Saturday night Carl Mollenhauer and May Meyers left the EmpireTheater, in Quincy, took some sodas at a neighboring stand and walked six blocks west, to where their horse and buggy was left, and started homeward. They entered Thirty-sixth street at Harrison street, passed south along Thirty-sixth street to Melrose Chapel corners and then east and south along the Quincy and Pay-son road to within two miles of the Pfanschmidt home. From Thirty-sixth street to where they turned off the Pay-son and Quincy road is about six miles, and it was along this road on the night in question it is claimed by the State that plaintiff in error returned from his home to his camp. Miss Meyers and her escort saw nothing of plaintiff in error or his team. They thought they saw the fire about two o’clock. They both testified that they drove slowly while they were on the Payson and Quincy road,—most of the distance at a walk.

When plaintiff in error was wakened by Ben Holeman about 4:30 Sunday morning he told Holeman to hitch up the team and bring it down to his grandfather’s home. He dressed quickly and got in his uncle’s buggy and drove to his grandfather’s, near Twelfth and State streets, where the uncle left plaintiff in error. The latter there told his relatives of the burning of the home and the fact that the family were probably destroyed. His aunt, Mrs. Petri, requested him to wait, as she wanted to drive out with him. Holeman, on reaching the grandfather’s place, tied the team and left it. He testified that he did not find the horses sweaty or see any other signs of hard driving when he hitched them up. The man who- tended to the team Saturday morning. testified the same as to the condition of the team on that morning. As soon as Mrs. Petri was ready she and plaintiff in error drove rapidly out of the city, plaintiff in error urging his team under the whip by the way of Melrose Chapel along' the Pape Mill road until they came to the Pfanschmidt home, arriving there between six and seven o’clock. He .remained there until noon, when he drove to the Reeder home and took dinner with the fam- ■ ily, leaving there in the afternoon with Miss Reeder, going first to his grandfather’s home, where an early supper was eaten, and then on to his camp, thence through the Soldier’s Home ground to Twelfth street to the house of one Eakin, where Ben Holeman, plaintiff in error’s foreman, was boarding. Holeman was away. While they were waiting for him Eakin changed for plaintiff in error a dollar, which he thinks was a paper dollar. Plaintiff in error was trying to get some change to give to Holeman, and testified that he was uncertain whether the dollar was silver or paper, and Eakin himself was not certain that it was a paper dollar. Whatever its character, Eakin put it in a little bag with other money, and afterward found in that bag among the other paper dollars one with a spot on it, which he took to be a blood-spot. Plaintiff in error went from there with Miss Reeder to her home and remainéd there until Monday morning. There is nothing in connection with his actions thereafter, until his arrest a week later, that has any special bearing on his guilt or innocence.

The State claims, and there is evidence tending to support this contention, that plaintiff in error showed little or no feeling Sunday morning when notified of the death of his parents or while at the fire. According to the testimony of several witnesses he seemed entirely unconcerned. Miss Reeder came with her father about an hour or so after the plaintiff in error reached the Pfanschmidt home. When he met her he kissed her and then- took her with him, introducing her to several with whom he knew she was not acquainted, and' pointed out to her the bodies lying under the canvas, identifying each body. During this forenoon he met a young lady whom he knew and shook hands with her. She said it looked as if the murder had been, committed Friday night. He replied he thought not, because the stock seemed to have been attended to Saturday. The evidence tends to show, however, that the stock had not been fed nor the cows milked nor any of the farm chores done during Saturday.' Relatives of plaintiff in error testified that he, like his father, was accustomed to keep himself in restraint, not showing emotion, his aunt stating that she found him in a little smoke-house near the ruins Sunday crying, and she told him to hold himself in restraint and bear it as best he could. Shortly after this he asked one of the Lehr boys if he had any whisky, and one of them went home and got a bottle and brought it back and plaintiff in error took a drink from it. The testimony shows that he was not a habitual drinker of intoxicating liquors. Several of his relatives and Miss Reeder testified that after the funeral services were over and they were in the carriage returning home he broke down and cried violently. The aunt, Mrs. Petri, and the cousin, Howard Petri, testified that when he was stopping with them at the grandfather’s for several days after the fire and before his arrest they frequently found him crying when he had been alone, Howard Petri saying that as soon as he came near, plaintiff in error would try to straighten up and act as if nothing were the matter.

There were hundreds of people visiting the place that Sunday morning. Shortly after plaintiff in error’s arrival it was thought best to cover the buggy and horse-tracks in the dust where they turned around in the yard north of the house. This was done, several assisting, including the plaintiff in error. Later, plaintiff in error was talking with his uncle, Fred Pfanschmidt, about getting blood-hounds. Before this, plaintiff in error had gone to' the neighbors and called up on the ’phone the State’s attorney, Gilmer, and talked with him. At the time he was talking with his uncle about the blood-hounds it appears that Gilmer, as well as other public officials, was there at the premises. The uncle, after talking about'the blood-hounds, went and talked with the State’s attorney as to whether they could be used, and came back and said there was no need of keeping the tracks covered,—that the State’s attorney said they could not use blood-hounds to advantage. The uncle testified that he then told him to tell the Lehr boys to take those things off. The plaintiff in error thereupon told one of the Lehr boys and the ■ latter started to take the boxes and boards off the tracks, but he was told by a policeman from Quincy, who was there investigating the case, to leave them on. This is urged as evidence of guilt. The chief of police of Quincy, Peter B. Lott, was at the Pfanschmidt home at that time. He, with others, measured the buggy tracks and examined the foot-prints of the horses and also measured the distance between the wheels of plaintiff in error’s buggy, which was standing nearby.

A gasoline can was found by the plaintiff in error that forenoon in the debris of the burned house, near the front door. He says that he told the people that was a strange place for the can. Chief of Police Lott and the policeman testified that he said to them that was a strange can, and he was told to keep it. He put it in his buggy, but no one asked him any further about it, and so he left it in the yard and it was taken possession of weeks later by his uncle Fred. It is claimed by the State that this can was one that plaintiff in error had taken from Frese’s place, where he was working. Frese himself testified that he had a can very much like that but did not identify the can in "question. The testimony does not indicate clearly that this can was different from the cans that plaintiff in error’s father had on the home place.

The buggy and horse-tracks found in the barn lot back of the residence were examined frequently on Sunday, September 29, and the Monday and Tuesday following, by various people. On Tuesday afternoon several men went out from Quincy and took paraffine impressions of the horse-tracks found by them in this barn lot. We think it is clear that some of these men scraped out the tracks, which were seen very indistinctly at first that day, one of them getting an automobile pump and blowing the particles of dirt out of the track. Many witnesses testified that there was nothing peculiar about any tracks appearing in the dust in the barnyard on Sunday. The three tracks of which paraffine impressions were made had a peculiar mark on them that could have been made by a shoe of one of the horses of plaintiff in error. It is the contention of the plaintiff in error that the evidence tends strongly to show that if these horse-tracks were made in the mud they were undoubtedly made by plaintiff in error’s horse a week before, when he drove into the barnyard when visiting his home after a heavy rain, and were not the light impressions made in the dust after the light rain Saturday night. The State contends that the evidence shows that these tracks were made during Saturday night, when the house was burned. There is much testimony as to whether a buggy, if not undercut as was plaintiff in error’s, could make the short turn found in the barn lot. Witnesses differed about this, several testifying that they were certain that an ordinary buggy with a piano box and no undercut could make as short a turn as the one shown by the tracks.

On • Monday morning, eight days after the fire, near the tents of plaintiff in error, in an old vault under an outhouse which was filled almost to a level with the ground, a suit, which appears from the testimony to belong to the plaintiff in error, was found on the top of the debris and fecal matter in the front of the vault. A new out-house was being built and when the old one was torn down this suit was discovered. The vault had been examined a week before, on the Monday following the burning of the house, by George Koch, a former chief of police of Quincy, by looking through the holes in the seats, and nothing was found. The suit was of khaki, apparently one of four suits owned by plaintiff in error. It was found wrapped in a Quincy Journal of the date of September 27, 1912. The evidence shows that the Pfanschmidts took the Quincy Herald and not the Journal, and that the paper of that date was found in the mail at the Pfanschmidt home after the house was burned. The coat and pants of this suit had, besides stains coming from the fecal matter on which they were lying, certain spots which were afterwards found bj^ an expert to be blood-stains. The blood-stains on the suit were of no great number and if united would make a spot about two inches in diameter, some of them being very small. No blood-spots were on the tie and shirt found with the suit. The testimony of one or two of the employees of plaintiff in error is, that on Saturday morning when he went out to the work he did not wear a khaki suit, as he usually did, but a blue suit. Other employees thought he wore a khaki suit, and that is what plaintiff in error testified. His testimony is to the effect that on the day previous he wore the blue suit in question and took it off that day and left it at his grandfather’s, where it remained until after his arrest. The sheriff and Koch visited his tent on Sunday, the day after the fire, and testified that they found two complete khaki suits in his tent, to all appearances never having been worn. They also saw a part of a worn khaki suit lying in the tent at that time. Plaintiff in error says he put a new khaki suit on Saturday; that he wore it Saturday evening to his grandfather’s, and while there changed to a brown suit, and that the khaki suit was put away by his cousin, Howard Petri, according to* the uncontroverted testimony, and remained in the possession of relatives until the trial. A part of another khaki suit was given on Thursday evening before the fire to Ben Hole-man and was kept by him until after plaintiff in error’s arrest. On Thursday after the fire plaintiff in error’s uncle, Henry Geisel, went to take charge of his nephew’s possessions in the tent and found only one new khaki suit there. It is the contention of plaintiff in error that someone other than himself took one of these new khaki suits left by him in his tent and found there by the sheriff and Koch on Sunday and after Sunday placed it in this vault, while the State claims that the suit found in the vault was placed there by plaintiff in error on his return after committing the murders Friday night, and that for this reason he put on the blue suit the next morning when he went out to the work.

Bakin testified the bill with the spot on it was taken by his wife to Anch’s butcher shop, in Quincy. Neither Bakin nor his wife observed the number of the bill. The Anchs knew nothing of a bill with a blood-spot on it and were unable to state what was done with the bill that Mrs. Bakin gave them, but stated they did their banking at the Illinois State Bank. 'About a month after this crime the sheriff and a detective called, at the bank and inquired about this dollar bill with a small blood-stain on it. One teller looked through a package but found nothing, and he then told the officers to look over the pile, and they testified they found a dollar bill with a stain upon it about the size of a ten-cent piece. This was on the 31st of October, 1912. This dollar bill was taken by the officers, and the experts testified that the stain on it was made by human blood. Bakin stated that he thought the bill found at the bank was the one found among his bills the morning after he changed the money for plaintiff in error, but he did not identify it as the one given him by plaintiff in error.

A day or two after the fire, after the ruins had been visited by hundreds, if not thousands, of people, a little girl who was there with her father picked up from the ground, several -feet from the cellar wall, some of the inner mechanism of a clock, all of the woodwork of which had been destroyed. The child took it home and it was taken from her by the public officials some days later. Pfanschmidt had two eight-day clocks, from either of which this mechanism might have come. The State introduced this on the theory that by the use of fuses, wires, gasoline, matches and other material the premises were fired late Saturday night or early Sunday morning by means of the clock, wires being wound around the hands outside of its face. In support of this theory they offered the testimony of George Vas'en, who was an electrical contractor and kept a retail electrical store in Quincy. He testified that plaintiff in error called at his place about ten days before the fire and asked to look at some pocket flash-lights, at the same time asking him if he kept fuse for igniting powder. Va-sen answered no, and then Vasen volunteered that a thin German silver or iron wire could be used for that purpose. A few days later plaintiff in error called and purchased a small pocket flash-light of the kind usually sold in retail electrical stores. There is no proof that the plaintiff in error bought any wire of the kind they were talking about, or that any wire of that kind was found in the ruins of his father’s home or in connection with the mechanism in question.

About the time this trial began in the circuit court one of the Lehr brothers, in digging in the ruins in the cellar of the Pfanschmidt home, searching, as he said, for a key to the school house, which he thought was carried by Miss Kaempen, found the head of a small hand ax, with the handle burned out. This ax-head was submitted to Dr. Erickson, who found bright-red blood-stains on its surface which dissolved in water and glycerine without difficulty and showed well-developed blood corpuscles. Afterward, some of these blood-spots were analyzed and three on the ax-head were found to be made by human blood. The examination as to the blood on the cutting edge did not disclose what kind it was. Experts in metals who examined this ax-head found it had been subjected to a very high degree of heat, so intense that the surface of the ax scaled under it. The uncontroverted evidence is that a temperature of 170 will fix the blood to the surface of steel so that it cannot be scraped off, and that such a heat as would scale the surface would entirely burn or destroy any blood upon it. The testimony. tends to show that a similar ax was owned by the Pfanschmidts before the fire, being usually kept in the granary.

As tending to indicate the motive of the crime the State introduced testimony as to the business of plaintiff in error and the value of his father’s property. Plaintiff in error was indebted to the State Bank of Quincy on three notes, the amount being $950. None of them was due and all of them were secured, the father being surety on two and one of the uncles on the other. He also had an overdraft at the bank of $300. He owed the Cottrill Hardware Company $500 on- an open account for supplies purchased from time to time. The amount had varied from more than $800 to less than the amount due at the time he was arrested. There was no evidence indicating that the hardware company was pressing for the payment of this account. He had shortly before this made arrangements with a man named Chadwick to go' into partnership with him in selling the Rambler automobile on commission. He had made arrangements for one automobile and about $500 had been paid on it by him, and partial arrangements were made for another. Neither of these machines had been received at the time of his arrest. There is testimony tending to show that he was losing money on the Frese contract and the work was far from complete. It appears, however, that he had excavated 10,000 or 11,000 cubic yards at the time and had been paid only $200 on accoúnt, and there was about $900 yet due him for work done. The property of his family, including the small farm they lived on, personal property and life insurance of the father and mother, amounted approximately, all told, to $20,000. Daniel Reeder, the father of plaintiff in error’s affianced bride, testified that plaintiff in error at the time of his engagement told him he was no pauper; that when he was twenty-one years of age he was to have $3000 which was then in his father’s name in the bank. There does not appear to have been any basis for plaintiff in error’.s statement as to this $3000. The weight of the testimony is to the effect that plaintiff in error was on the best of terms with his father and mother and sister; that he and his father were great companions and that the relations between himself and his mother were most affectionate. The mother and sister had been in to see him in Quincy the Wednesday before the fire.

We have stated substantially all the evidence that bears on the guilt or innocence of plaintiff in error except that as to his alleged admissions and as. to the trailing of his horse by bloodffiounds, which we shall discuss later. We shall have occasion also-, in discussing the admissibility of evidence, to refer to some other items of evidence.

On February 3, 1913, plaintiff in error filed a motion, supported by his sworn petition, the affidavits of two of his attorneys, and 120 other affidavits executed by residents of Quincy and of seventeen other townships of Adams county, asking for a change of venue from said county. The motion was set for hearing on February 12, 1913. On that date the State’s attorney filed a denial of a portion of the matters set forth in the motion, supported by several •special affidavits and 2251 of a general character, in opposition to the change of venue. After a hearing the motion was denied. The sworn petition of the plaintiff in error, among other things, set out that a large number of inhabitants of the county subject to jury service had publicly stated that they believed he was guilty of the charge and ought to be hanged; that some of them had declared they would join in hanging him without trial; that many of the inhabitants of the county were so prejudiced that some had publicly declared that the attorneys defending plaintiff in error were subject to condemnation and should lose the patronage of the people; that the State’s attorney had made a public statement, which appeared in the newspapers, that plaintiff in error should have no change of venue because such change would cost the county $20,000; that the sheriff of said county had publicly stated that plaintiff in error was guilty of the charges against him and “the people have the goods on him,” which statement had been, widely circulated in the press of the county; that the said sheriff had stated to plaintiff in error that numbers of the inhabitants of said county had asked for the privilege of “springing the trap.” The special affidavit of one of the attorneys for plaintiff in error stated that there were published in Quincy three newspapers in English, with a circulation of 15,000 copies daily, which had printed numerous highly-colored statements and narratives about the crime and the plaintiff in error’s connection therewith; that said' attorney had on a number of occasions since the burning of the Pfanschmidt home been present at that place, and there were present at such times large numbers of the inhabitants of the county who conversed there with those who would be witnesses on the trial of the case; that there were present at least four thousand people at the auction of the personal effects of Charles A. Pfanschmidt, including large numbers of witnesses to be called by the People, who conversed with many others assembled there concerning material issues of the case; that affiant had during the previous ten days interviewed more than -one hundred inhabitants of the county concerning their feelings, of whom fully ninety per cent stated that they believed plaintiff in error guilty of the charges, and that substantially all of those with whom he talked believed plaintiff in error guilty; that with few exceptions the persons stated that if chosen as jurymen they could not begin the trial without believing him guilty; that many of them said that the plaintiff in error ought to be hanged, and many of them stated they did not believe he could have a fair and impartial trial in the county but that they would not sign affidavits to that effect because they desired to do nothing which would in any way help him. Affiant further stated that large numbers of the inhabitants of the county, as soon as he and his partner had been engaged in the trial of the case, had openly condemned them for undertaking such defense. Attached to the affidavit and made a part by reference was a letter from the editor of a newspaper published in Hendon township, in which he stated that the prejudice against plaintiff in error in that township was very strong, and that many people stated that he ought to be hanged without, a trial, and even hinted at lynch law; that he did not believe a jury competent to try the case could be secured in the township; that not one of the level-headed men of the place would affirm that they thought plaintiff in error could have a fair trial; that while the writer of the letter thought plaintiff in error guilty, he still believed that the trial should be had at some place out of the county, so that the boy could have a chance for his life, even if it did cost the county $20,000. Another of the attorneys of plaintiff in error said that he had made a special effort to ascertain the sentiment as to plaintiff in error and had interviewed between two hundred and three hundred persons in the county; that of the persons talked with, at least fifty signed affidavits stating that plaintiff in error could not have a fair and impartial trial in their circuit court, and of the remainder not signing about ninety per cent expressed an opinion that plaintiff in error was guilty, but a large number of these had seen the State’s attorney’s statement as to the expense and for this reason opposed a change of venue. This affidavit also set up the fact that to affiant’s personal knowledge large crowds had assembled at various times after the commission of the crime, at the Pfanschmidt home, where the evidence was openly discussed in the hearing of many persons who were to be witnesses at the trial. A. C. Heckle also made an affidavit that he had interviewed many people in various towns of the county and upwards of ninety per cent so- interviewed had settled opinions as to the guilt of plaintiff in error, and he stated that the same was true of their friends and acquaintances; that the great majority of those interviewed stated that the cost of a change of venue from the county was such that no change ought to be allowed; that others stated that they thought plaintiff in error could have as fair trial in that county as in any other county, as the feeling against him was widely spread, beyond as well as within the county. One hundred and nineteen other affidavits filed by the plaintiff in error stated, in general terms, that affiants did not believe plaintiff in error could receive a fair and impartial trial in Adams county because of the prejudice of the inhabitants.

The answer of the State’s attorney stated that the newspapers had not published all the evidence on the part of the People against plaintiff in error but that many facts and circumstances were known only to the State’s attorney; that he had conversed with many 'persons concerning the crime and was unable to find any sentiment or feeling against plaintiff in error; that the sentiment largely prevailing was that plaintiff in error could have a fair and impartial trial in the county; that he had not, for the purpose of prejudicing public opinion against plaintiff in error, stated. “or caused to be stated or to be widely published in the newspapers of that county that the said defendant should have no change of venue because such change of venue would cost the county $20,000; that said State’s attorney has publicly stated previously that irrespective of what the cost might be the defendant ought to have a fair and impartial trial,” etc. The answer further, stated that he had been informed by the sheriff that that official had not, while the motion for change of venue was' pending and for the purpose of prejudicing the plaintiff in error, stated that plaintiff in error “was guilty of the charge made against him.” This was sworn to by the State’s attorney and also by the sheriff as being “true to the best of his knowledge and belief.” The sheriff also made a separate affidavit, in which he said he had talked with many prominent citizens of the county and that hp could learn of no prejudice existing among them that would prevent plaintiff in error from having a fair trial, and “that ho more interest appears to be taken in this case than any other case of like character.” The sheriff’s affidavit also stated that up to the time of his arrest, on October 7, plaintiff in error had gone on the streets of Quincy unmolested and without any demonstration being rhade against him. A special affidavit from the manager of the telephone company was filed in support of the answer, which stated that the relatives of the plaintiff in error belonged to two of the oldest and most respected families in the county, and that he had never heard anything derogatory to either family but had heard discussed the approaching trial of plaintiff in error, and that he did not believe any feeling existed among the inhabitants that would prevent him from receiving a fair and impartial trial. There were special affidavits also by two street car conductors and by two deputy sheriffs, which ' stated that they thought that plaintiff in error could have a fair trial. C. C. Pfanschmidt, the grandfather of plaintiff in error, also gave an affidavit in support of the answer of the State’s attorney, that in his opinion he did not believe that any feeling existed among the inhabitants of the county prejudicial to plaintiff in error, and that “no more. interest appeared to be taken in the case than is usually taken in other cases of like character.” Affidavits to the number of 2251 from the inhabitants of many different townships in the county, worded in substance the same as the last affidavit, were presented in support of the answer, each of them containing the statement “that no more in-' terest appears to be talcen than in other criminal cases of like character.”

In discussing the statute on change of venue in this class of cases, this court, in Jamison v. People, 145 Ill. 357, stated (p. 372) : “Under the statute in relation to changes of venue on account of the prejudice of the inhabitants of the county, * * * the material issue to be tried upon the petition and affidavits filed by the accused and the traverse and counter-affidavits filed by the prosecution is whether there is, in fact, a prejudice in the minds of the inhabitants of the county sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial in the county.” (Price v. People, 131 Ill. 223; Hickam v. People, 137 id. 75.) An application for a change of venue on account of prejudice is addressed to the sound legal discretion of the trial judge, subject to review in this court. (People v. Donaldson, 255 Ill. 19; Chicago and Alton Railroad Co. v. Harrington, 192 id. 9; Gitchell v. People, 146 id. 175; People v. Turner, 260 id. 84.) By judicial discretion is meant sound discretion guided by law. It does not mean an arbitrary discretion. (9 Am. & Eng. Ency. of Law,—2d ed.—473; 14 Cyc. 384.) “Judicial power is never exercised for the purpose of giving effect to the will of the judge,—always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.” (Osborn v. United States Bank, 22 U. S. 738.) Deciding what is just and proper under the circumstances of a case is such judicial discretion. In all cases courts must exercise a'discretion, in the sense of being discreet, prudent and exercising cautious judgment. (Murray v. Buell, 74 Wis. 14; Abbott v. L'Hommedieu, 10 W. Va. 677.) A judicial discretion, in practice, is “the' equitable decision of what is just and proper under the circumstances.” (1 Bouvrer’s Law Dict.— 15th ed.—537; see, also, Black’s Law Dict.—2d ed.—375 ; 3 Words and Phrases, 2095, 2098; Trustees of Schools v. School Directors, 88 Ill. 100; 6 Ency. of Pl. & Fr. Fr. 819) Abuse of discretion does not mean only the decision of a case by whim or caprice, arbitrarily or from a bad motive, (Citizen’s Street Railway Co. v. Heath, 62 N. E. Rep. 107,) but it also means that the discretion has not been justly and properly exercised under the circumstances of the case. Murray v. Buell, supra.

The proper decision of the motion for change of venue cannot be made on the basis of the number of affidavits on each side or by the mere preponderance of the testimony. It was not necessary for plaintiff in error to show beyond a reasonable doubt or by a preponderance of the evidence that he could not receive a fair and impartial trial, but a change of venue should be granted if the showing was such as to raise a reasonable apprehension that he could not receive a fair trial. The statement in the 2251 general affidavits filed in support of the answer of the State’s attorney against the change of venue, that the case was exciting no more interest than is usually taken in other criminal cases of like character, must be taken with considerable allowance in view of the record before us. It is shown conclusively here, not only by the affidavits but by the evidence heard at the trial, that the case had aroused most intense interest all over the county. The uncontroverted testimony is that on Sunday after the Pfanschmidt homestead was burned and the bodies had been found hundreds of people visited the scene of the fire, some witnesses testifying that more than two hundred automobiles were there that day and several hundred buggies and wagons. It is apparent, also-, that for some time following, numerous visitors were there daily, and the curiosity or interest was such, as shown in the affidavits for this change of venue, that four thousand people, or more, were in attendance there at the sale of the personal effects of Charles A. Pfanschmidt. Rarely in any county, cr in any State, has there been committed so atrocious and revolting a crime,—the destruction of four human lives, the dismemberment and almost complete destruction of one of the dead bodies, and the burning of the house. Is it reasonable to say that such a crime, with all its attendant circumstances, would not arouse more than the ordinary interest of any trial for homicide?

The answer of the State’s attorney does not deny, in . terms, certain portions of the affidavits in support of the motion. It does not deny that many of the- people in the county were opposed to the change of venue on account of the cost. His answer is only to the effect that he did not make such a statement publicly for the purpose of prejudicing public opinion against plaintiff in error or cause the same to be widely published. None of the affidavits deny the statement made in support of the motion that many of the inhabitants of the county had openly condemned the attorneys of plaintiff in error for undertaking his defense. While the affidavit of the sheriff says that he did not, while this motion was pending, for the purpose of prejudicing the plaintiff in error, state that he was guilty of the charge against him, the affidavit plainly admits that he did make such statements and merely denies that he did so for the purpose of prejudice. Neither does he deny that the statement of plaintiff in error is true that he, the sheriff, has stated to plaintiff in error that numbers of the inhabitants of the ’county had asked for the privilege of “springing the trap” at his execution. These specific statements that were made in the affidavits in support of the motion cannot be fairly held to be denied by the statement found in the answer of the State’s attorney and the affidavits in support thereof, that they did not think the inhabitants of the county were so prejudiced against plaintiff in error that he could not have a fair trial in the county. If these statements were true, (and on this record they must be taken to be true,) surely such a situation would furnish a basis for a reasonable apprehension that the accused could not receive a fair and impartial trial in the county. We would be reluctant to believe that in an ordinary case of a trial for homicide such feeling or prejudice as shown here would be aroused in the county where this trial took' place or in any other county in the State. VVe have had our attention called to no case, and have found none, where a like situation showing the prejudice of the inhabitants has been presented. Under the circumstances of this case we are constrained to hold that the proper construction of this statute required that the motion for the change of venue from Adams county on account of the prejudice of the inhabitants should have been allowed to some county where such prejudice did not exist.

Plaintiff in error was committed to the county jail of Adams -county October 9, 1912, and was thereafter confined without bail until the trial. January 31, 1913, an indictment was returned against him, at the January term, charging him with the murder of his sister, Blanch. The cause was set for trial March 18, 1913, and the trial began on that date. After the motion for change of venue from the county was overruled the cause was set for hearing before another judge of the circuit, and on March 22 an order was entered that all motions pending and undetermined at the January term be continued and the court adjourned until term in course, except in this case, which was then on trial. Six jurors had been selected, but'no jury had been sworn to try the cause when the court convened in this cause on Monday morning following. A motion was then made that plaintiff in error be discharged and set at liberty. This motion was overruled. The statute requiring any person committed for “a criminal offense and not admitted to bail to be tried at some term of court having jurisdiction of the offense commencing within four months from the date of the commitment,” should receive a reasonable construction. This trial, on the showing of plaintiff in error, was begun at a term commencing within four months of the time he was committed. There is no force in the contention of counsel that the statute requires, under such a situation as presented here at the adjournment of the January term of the Adams county circuit court, that a criminal cause on trial should be continued, under the statute, until the next term of court. Such a construction of the statute would defeat its purpose. Under the construction heretofore given this statute, the motion to discharge the defendant and set him at liberty was properly overruled. Healy v. People, 177 Ill. 306; People v. Murphy, 212 id. 584; People v. Miller, 256 id. 88.

Counsel for the plaintiff in error further insist that the court improperly admitted many statements of officers and detectives alleged to have been made in the presence and hearing of plaintiff in error while in the custody of the sheriff. Joseph H. Uipps, the sher