interested, but the court indicated that it would not appoint an attorney outside of Edgar county, and upon being asked to submit the name of an attorney to act in that capacity, the name of Stewart W. Kincaid was presented by respondent and the court appointed him. It is charged that this appointment was procured in an attempt to prejudice Hutchison, for the reason, as he avers, that Kincaid was prejudiced against him. This is not borne out by the evidence. The evidence shows that at one time Kincaid represented parties who opposed Hutchison in a lawsuit. There is nothing in the evidence to indicate any reason or desire on the part of Kincaid to bring about the conviction of Hutchison on the charge of perjury. There is not a scintilla of evidence in this record that Kincaid was in any way prejudiced against or unfair to Hutchison in his acts as special prosecutor or that he bore him any ill-will. His appointment and services are by this record shown to have been but the orderly and impartial administration of the criminal law.

Respondent admits that he had the indictment against Hutchison prepared, but testifies that the preparation of it in advance was simply in accordance with the practice in his office to prepare indictments in advance for the purpose of saving time. In this respondent is subject to criticism. While it is commendable that the time of the grand jury, and therefore the public expense, be conserved, yet by securing the appointment of a special prosecutor and giving his testimony before the grand jury respondent did all he was required to do or should do. The record shows, however, that he was guilty of no improper conduct in securing the appointment of a special prosecutor.

It is urged, however, that the indictment was procured for the purpose of securing the dismissal of the charges. in this case by Hutchison. There is nothing in the evidence which bears out this charge. The record shows that attorney Frank T. O'Hair, who represented Hutchison in certain suits in which he was interested, and respondent's

counsel, Edward C. Craig, had several conversations concerning the compromise of the difficulties existing between Hutchison and respondent. There is, however, no evidence in the record of any proposition on the part of respondent or his counsel to dismiss the charge of perjury against Hutchison in consideration of his dismissal of the disbarment proceedings against the respondent. The record regarding conversations between O'Hair and Craig merely shows that they, as lawyers, realized the influence upon the bar and the community of the various lawsuits which apparently have arisen out of the enmity existing between these men. It is evident from the record that both Hutchison and the respondent have engaged the time and processes of the court of Edgar county in numerous suits in which they were in one way or another interested, which appeared to have in them the elements of waging a battle between them. Counsel are to be commended for taking the position that the time of the courts and public funds should not be devoted to the venting of personal spite nor for the purpose of jockeying for positions of advantage in a distinct and separate controversy. The record in this case does not disclose any attempt on the part of respondent to bring about a compromise of this information.

We are of the opinion that the evidence offered in support of the second additional count does not sustain the charges forming a basis for disbarment. The rule will therefore be discharged. Rule discharged.

THOMPSON, FARMER and DUNCAN, JJ., specially con

curring:

We concur in the decision of the court that the rule against respondent be discharged but we do not concur in all that is said in the opinion. Rule 40 provides that "in case an application shall be made to strike the name of an attorney from the roll, there shall be filed an information,

* signed by the Attorney General, a State's attor

ney, the president and secretary of a regularly organized bar association, * * or any person aggrieved by the misconduct of the attorney charged. Where the information is signed by such aggrieved person he shall verify it by an affidavit, upon which perjury can be assigned." The original information contained no count charging misconduct of respondent in any matter in which relator was concerned, and the State Bar Association, upon investigation, found that the proof did not sustain the charges contained in the information and recommended that the information be dismissed. The third original count of the information having been filed in violation of the rules of this court should not have been considered by the court, but should have been dismissed when an examination of the record showed that relator, a private individual, was not aggrieved by the alleged misconduct of respondent charged in that

count.

As to the second additional count of the information, we think respondent acted with moderation, that his conduct in the matter is commendable, and that he should in no way be criticised for presenting the evidence of perjury to the grand jury. Fourteen separate counts were filed in the original information, to all of which relator attached his affidavit. The grievance committee of the State Bar Association, after investigation and the hearing of testimony, found that the proof did not sustain the charges contained in any of these counts. Respondent would have been remiss in his duty as a citizen if he had not made an effort to secure the indictment and conviction of a man who he believed had committed willful perjury. The record shows that respondent applied to the Attorney General to send an assistant to take charge of the grand jury investigation of this matter. Failing to secure relief from this source respondent requested the circuit judge to appoint as a special State's attorney some reputable attorney of the State, but the judge refused to appoint any non

resident attorney. Respondent then filed his petition for the appointment of a special State's attorney, and, as stated in the opinion, a reputable member of the local bar was appointed. It is difficult to conceive of more moderate conduct on the part of respondent under the circumstances. This record is pregnant with proof that relator's prosecution of this information was to ruin the good reputation and high standing of respondent. If members of the bar cannot protect themselves from this sort of an attack without subjecting themselves to disbarment proceedings then practicing law is indeed a hazardous business. The greatest asset of an attorney is his reputation for honesty and fair dealing, and in our opinion he ought to be encouraged to protect this asset vigorously and without fear.

(No. 13184.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. ADAM PROCHOWSKI, Plaintiff in Error.

Opinion filed October 23, 1920.

CRIMINAL LAW-Parole law of 1899 is not invalid. The Parole law of 1899, in providing for an indeterminate sentence on a plea or verdict of guilty to a charge of burglary, is not invalid as violating the right to due process of law guaranteed by the fourteenth amendment to the Federal constitution. (People v. Joyce, 246 Ill. 124, and Dreyer v. People, 188 id. 40, followed.)

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. GEORGE Kersten, Judge, presiding.

A. L. GETTYS, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, MACLAY HOYNE, State's Attorney, and GEORGE C. DIXON, (EDWARD E. WILSON, of counsel,) for the People.

Per CURIAM: On January 27, 1917, an indictment in three counts was returned in the criminal court of Cook county against the plaintiff in error, Adam Prochowski, for burglary and larceny. The first count charged the forcible breaking and entering of a certain dwelling house of George M. Reynolds with intent to commit larceny. This count also charged grand larceny. The second count charged that he forcibly broke and entered said dwelling house with intent to commit larceny. The third count charged burglary of said house without force, the doors and windows being open, and with intent to commit larceny. No one of the three counts makes any charge that the burglary was committed either in the day or night time, or that at the time of the committing of the offense named in the indictment plaintiff in error was found with any deadly weapon, deadly drug or anæsthetic upon his person or in his possession. On March 7, 1917, plaintiff in error entered his plea of guilty of the crime of burglary "in manner and form as charged in the indictment." The court thereupon sentenced him to the penitentiary at Joliet for the crime of burglary "whereof he stands convicted, for a term of years not to exceed the maximum term fixed by statute for the crime whereof he stands convicted," etc. The judgment and order of sentence further provided, in the usual form, that he be delivered to the warden or keeper of the penitentiary, and that the warden or keeper be thereby required and commanded to take his body and confine him in the penitentiary according to law and until discharged according to law, provided such term of imprisonment shall not exceed the maximum term for the crime for which he was convicted and sentenced. Plaintiff in error has sued out this writ of error to review the judgment and sentence of the court.

Plaintiff in error states in his brief that his principal contention is that the Parole act of 1899, under which he was sentenced, is unconstitutional. He admits that the question of the constitutionality of the statute has already been deter