taking out trains of freight cars at that end. The other operated an engine for an entirely different purpose one-half mile distant, at the other end of the yards, taking cars from side tracks on the south, and placing them on the north. There is no evidence in this record which can properly be said to be conclusive of the fact that the two crews co-operated with each other in the performance of their duties. Neither is it conceded or undisputed that their usual duties brought them into habitual association with each other. In other words, upon the facts and circumstances proved in this case, showing the relation of the two switching crews, their duties, and the manner of performing them, all reasonable minds would not agree that the members of the two crews were co-operating with each other in a particular business, or that their usual duties brought them into habitual association, so that they might exercise a mutual influence upon each other, promotive of proper caution. It is not for us to say how a jury would or should have found the facts material to the plaintiff's case if they had been submitted to them. We deal with the single issue, was there any competent evidence in the record properly tending to support the material allegations of plaintiff's declaration produced upon the trial? That question must be decided in the affirmative. It was therefore error for the trial court to take the case from the jury and enter judgment against the plaintiff below for costs, and the appellate court erred in affirming that judgment. The latter judgment will accordingly be reversed, and the cause remanded to the superior court for another trial. Reversed and remanded. (197 III. 169) LATHROP v. PEOPLE. (Supreme Court of Illinois. June 19, 1902.) RAPE-ASSAULT-EVIDENCE -SUFFICIENCY NEW TRIAL-NEWLY DISCOVERED EVIDENCE -DILIGENCE-CONDUCT OF COUNSEL. 1. On a prosecution for assault with intent to rape, prosecutrix testified that she plainly saw the face of her assailant in the light of an electric lamp, and that defendant was such assailaut. It was shown that defendant was of such appearance as the mau described by prosecutrix after the assault, and that she had identified him when arrested a few days later. One of defendant's attorneys, his mother, and his sister-in-law testified that prosecutrix had stated she did not know who assaulted her, and could not say whether it was defendant. It was shown that defendant, on the night of the assault, was seen in an intoxicated condition going towards the place where the assault occurred at about the time it occurred, and seen coming from that locality shortly after the time of the assault, and there were other circumstances corroborative of the identifying testimony. Held, that the evidence sufficiently identified defendant. 2 Under Cr. Code, div. 2, § 9, providing "Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused," evidence held sufficient to show an assault made with intent to rape. 64 N.E.-25 3. A new trial will not be granted for newly discovered evidence which is merely cumulative. 4. A new trial will not be granted for newly discovered impeaching evidence. 5. Au affidavit on a motion for a new trial on the ground of newly discovered evidence, which shows that defendant's attorney called at the home of the witness, and found her away, is no excuse for lack of diligence in failing to issue a subpoena. 6. Where, on a prosecution for assault with intent to rape, questions put to witnesses for defendant on cross-examination, referring to alleged conduct of accused in other transactions, and as to whether the witnesses had testified in some case of the same kind, were not ground for reversal, objections to the questions having been sustained, and the court in doing so having instructed the jury to disregard them. Error to circuit court, Knox county; Geo. W. Thompson, Judge. John Lathrop was convicted of an assault with intent to rape, and he brings error. Affirmed. This is a prosecution for assault with intent to commit rape. There were two trials of the case. Upon the first trial there was a disagreement of the jury. At the February term, 1902, of the Knox county circuit court there was a second trial, resulting in a verdict of guilty. A motion for a new trial was made, upon the hearing of which affidavits were introduced. This motion was overruled, and judgment was rendered upon the verdict, sentencing plaintiff in error to the penitentiary for a term of not less than one nor more than fourteen years, to be terminated on the recommendation of the board of pardons, as by statute in such case made and provided. The present appeal is prosecuted from such judgment of conviction. W. T. Smith and M. J. Daugherty, for plaintiff in error. H. J. Hamlin, Atty. Gen., A. J. Boutelle, State's Atty., and F. F. Cooke, for the People. MAGRUDER, C. J. In this case no errors are assigned in regard to the giving or refusal of instructions. It is not claimed by the plaintiff in error that the court below erred in giving any instruction which was given for the people, or in refusing to give any instruction which was asked by the plaintiff in error. Although there are assignments of error upon the record to the effect that the trial court admitted improper testimony over the objection of plaintiff in error and refused to admit proper evidence offered by plaintiff in error upon the trial, yet no point is made by counsel for plaintiff in error in regard to such admission or exclusion of evidence. Counsel for plaintiff in error do not state in their brief that there was any error committed by the court below in the admission or exclusion of testimony. The only alleged errors discussed by counsel for plaintiff in error in their brief are those hereinafter mentioned. 1. It is claimed on the part of plaintiff in error that the proof does not sufficiently identify plaintiff in error as the person who committed the crime charged in the indictment. The evidence shows substantially the following state of facts: Betsey Wilson, a Swedish woman 47 years old, resided with her son and her mother,-the latter being 80 years of age,-in a house in Knoxville, Knox county, which, from the testimony and plat introduced in evidence, would appear to have been located in a remote and sparsely settled part of the town. On the evening of September 17, 1901, about 8 o'clock, Mrs. Wilson went from her home to the business part of Knoxville to do some errands. Her home was the only house in a block, which fronted upon a street or alley called "Park Street." She walked south on Park street to North street, east on North street to Market street, and south on Market street to certain places of business upon the public square. She called at a doctor's office to consult with him, and went to a drug store to get some medicine, and to a meat market and to a grocery store to get some meat and groceries. Some time between 8 and 9 o'clock she started home, going north to North street, and walking west on North street. While she was walking along North street, she heard a man coming up behind her. She swears, as will be hereafter stated, that this man was the plaintiff in error, John Lathrop. She states in her testimony that plaintiff in error was intoxicated; that "he came up; smelled strong of liquor; he was not real drunk, but staggered"; that he walked behind her a part of the way, and then came alongside of her; that he asked her if she was a Swedish woman, and stated that he was a Swede; that he stated that he was going to his home near the fair grounds; that when she arrived at a certain corner she pointed out to him the road leading to the fair grounds, but he asked her where she lived, and when she told him that she lived in the next block he said that he sometimes went home that way himself. He talked to her in a maudlin way, saying that one Johnson had recommended her to him as a proper woman for him to marry. He said to her that he desired to marry her, and would give her $4,000. She says that she told him that she did not desire to marry him, and to look elsewhere for some other woman. When she reached the corner of Smith street and Park street, she turned north to go to her home, and he followed her. The evening was "dark and blustering." There seems to have been, between the corner of Park street and North street and her home, a hollow or depression in the ground. Park street had no sidewalks, and there was a wagon track in the middle of the street. A man named Lewis lived on the Galesburg road west of Park street, and southwest from Mrs. Wilson's home. Near Lewis' house was an electric light. Mrs. Wilson states that at this point, upon plaintiff in error making some remark to her, she turned and looked him in the face, and saw his face in the glare of the electric light. Further north, however, towards her home, the electric light failed to extend, so that the road was dark. When they were near the gate of her house, ue struck her, and knocked her down, and told her to keep still, or he would kill her. He pushed her against a bank, placing his hand upon her throat, and pulled her into the shadow of two or three trees standing north of the gateway. She states that she hardly knew what happened, but that he was on top of her, and had one hand on her shoulder, and one on her throat, when the footsteps of some one coming out of the gate of her yard were heard. This frightened him, and he arose, and went towards the north upon Park street. She then arose and went into her home. The evidence shows clearly that the next day there were bruises on her head and marks on her throat. Mrs. Wilson stated that the man who thus assaulted her was a man with a dark complexion and a dark mustache. She did not know Lathrop, and had never seen him before that evening. A few days afterwards he was arrested, and when he was taken into her presence by the officers who arrested him she identified him as the man who had assaulted her, and swore that he was the man. Witnesses were introduced by the defendant swearing, in substance, that the prosecuting witness stated to them that she did not know who assaulted her, and was not able to say whether it was plaintiff in error or not. The witnesses so testifying for the purpose of contradicting her were one of Lathrop's attorneys, a witness in this case, and his mother and his sister-inlaw. The jury saw Mrs. Wilson, the prosecuting witness, and they saw the witnesses whose testimony was produced for the purpose of contradicting her. It was for the jury to determine which of these witnesses was most deserving of credit. Many facts and circumstances confirm the testimony of Mrs. Wilson. It is shown by other witnesses that plaintiff in error was such a looking man as Mrs. Wilson described him to be before the officers produced him in her presence; that he was seen near the public square, upon Market street, and upon North street, and in the neighborhood of the stores where Mrs. Wilson went that evening; and that he was in an intoxicated condition. It is shown by the testimony of other witnesses than Mrs. Wilson that he was seen going towards the west just before or about the time when Mrs. Wilson was returning westward after finishing her errands. It is shown also by other testimony that plaintiff in error was seen coming from the west shortly after the time when Mrs. Wilson says that the assault was committed. When he fled northward on Park street after the assault, it was possible for him to have gone around the north end of the block, and, going south upon Henderson road on the east side of the block, he could easily have reached North street, and returned to the neighborhood of the public square, where he was seen shortly after the assault was committed. Many other circumstances might be named having a tendency to confirm the testimony of Mrs. Wilson identifying plaintiff in error as the person who committed the assault, but it is unnecessary to notice them. In the absence of errors of law, the court will not set aside a verdict unless it is manifestly erroneous. Gore v. People, 162 Ill. 259, 44 N. E. 500; Bromley v. Same, 27 Ill. 20. To justify this court in reversing upon the ground that the evidence is insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence. Steffy v. People, 130 Ill. 98, 22 N. E. 861, and cases cited. In Steffy v. People, supra, which was an indictment for an assault to commit murder, we said: "It is urged, first, as ground of reversal, that the verdict of the jury is contrary to the evidence. Whether the evidence warranted the verdict was a question of fact peculiarly within the province of the jury to determine, and great weight is to be given to their finding. Courts are reluctant to substitute their opinion for that of the jury upon controverted questions of fact. * * * It is only when this court is able to say, from a careful consideration of the whole of the testimony, that there is clearly reasonable and well-founded doubt of the guilt of the accused, that it will interfere on the ground the evidence does not support the verdict." See, also, Rafferty v. People, 72 III. 37. After a careful examination of the evidence, we are unable to say that the verdict in the case at bar is manifestly erroneous, or that the finding of the jury is palpably contrary to the decided weight of the testimony. 2. It is claimed on the part of the plaintiff in error that the testimony does not show an assault with intent to commit rape. The contention of counsel for plaintiff in error upon this branch of the case is that the assault may have been committed for the purpose of robbery or murder, or with some other object than that of committing rape. There is testimony in the record showing that the assault was made with intent to commit rape. Some of the witnesses testified that plaintiff in error, shortly before he began to follow Mrs. Wilson on that evening, was seen in an intoxicated condition going into and coming out of one or more stores fronting upon the public square. No objection was made to the proof as to his intoxicated condition, which is spoken of by nearly all the witnesses who saw him on that evening. Mrs. Wilson, as has already been stated, testified that he made a proposition to her to marry her. The nature of his conversation with her, and of his actions towards her, including the assault itself, and his conduct as above stated, show the temper of his mind, and that matrimony to him meant nothing more than sexual intercourse. It cannot be said that there is not evidence to show that the purpose of the assault made by plaintiff in error was to commit rape. Section 9 of division 2 of the Criminal Code contains the following provision: "Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused." Hurd's Rev. St. 1899, p. 621. Every sane man is presumed to intend the natural and probable consequences of his act, and the intent may be inferred from the acts of the person charged with crime, as well as by words and declarations. The intent with which the act is done is a question of fact, either to be shown by the declarations of the party or to be inferred from the character, manner, and circumstances of the assault. Crosby v. People, 137 Ill. 325, 27 N. E. 49. In Fitzpatrick v. People, 98 Ill. 269, where the indictment was for an assault with intent to commit rape, it was contended, as it is contended here, that the testimony failed to show the accused to be guilty of the crime for which he was indicted; and it was there said (page 273): "It is conceded a wanton assault was made on the prosecutrix. The intent with which the assault was made, of course, characterizes the crime, and determines whether it was a felony or a mere misdemeanor. Neither the accused nor his counsel have assigned any motive for the assault consistent with his innocence. If it was not done with the intent charged in the indictment, what possible motive could have induced the assault? The manner, time, and place of the assault were all elements to be considered by the jury in arriving at a conclusion as to the intent with which the assault was made upon the prosecutrix. * * It is a correct principle, and one applicable to the case, that it was not necessary to a conviction that it must be proved defendant expressed by words what his intention was in assaulting the prosecutrix. His intention, whatever it was, could be made to appear as well from proof of his acts as from spoken words." In the case at bar no motive has been assigned for this assault if it was not with the intention to commit rape. There is no evidence whatever showing or tending to show in the remotest degree that plaintiff in error assaulted Mrs. Wilson for the purpose of robbing her or of murdering her. The time and manner and place and all the circumstances go to show that the assault was made with the intent alleged in the indictment. 3. It is next contended by counsel for plaintiff in error that the trial court erred in refusing a new trial upon the ground of newly discovered evidence. The affidavits filed by plaintiff in error upon the motion for a new trial show that whatever evidence it was proposed to introduce upon another trial was merely cumulative and impeaching, and not conclusive in its character. Nor do these affidavits show that plaintiff in error was not guilty of negligence in not discovering and producing such evidence upon the former trial. These affidavits are mostly to the effect that Mrs. Wilson admitted in conversation with the parties making the affidavits, subsequently to the assault, that she did not know positively that it was the plaintiff in error who made the assault. This was the same kind of contradictory evidence which was introduced upon the trial, which resulted in the conviction of the plaintiff in error. Some of the other affidavits fixed the times when plaintiff in error was seen at different places on that evening as being different from the times stated by Mrs. Wilson in her testimony. Witnesses always differ more or less as to the precise time when a transaction occurred. The contradictions thus pointed out are not so material as to justify the discrediting of Mrs. Wilson's testimony. The affidavits with a view to showing diligence, and that the testimony was newly discovered, show in fact that the alleged new evidence was known to plaintiff in error or his attorneys at the time of the former trial. No subpoenas seem to have been issued to procure the attendance of the witnesses named in these affidavits upon the first trial. The mere fact, as stated in one of the affidavits, that counsel for plaintiff in error called upon one of these witnesses, and found her away from her house, and therefore was unable to see her, is no excuse for not issuing a subpoena to procure her attendance at the trial. A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative, and not conclusive. Adams v. People, 47 Ill. 376; Dyer v. Same, 84 Ill. 624; Bean v. Same, 124 Ill. 576, 16 N. E. 656. The practice is well settled in this state that a new trial will not be granted for the purpose of permitting the introduction of such additional evidence; otherwise it would be necessary to grant a new trial in almost every case, and few convictions would be permitted to stand. Gilmore v. People, 124 Ill. 380, 15 N. E. 758; Lilly v. Same, 148 Ill. 467, 36 N. E. 95; Burns v. Same, 126 Ill. 285, 18 N. E. 550; Williams v. Same, 164 Ill. 481, 45 N. E. 987. Newly discovered evidence which is in its nature impeaching will not authorize the granting of a new trial. Tobin v. People, 101 Ill. 121; Grady v. Same, 125 Ill. 122, 16 N. E. 654. In Spahn v. People, 137 Ill. 538, 27 N. E. 688, we sid (page 544, 137 Ill., page 690, 27 N. E.): "The rule is well settled that, to authorize a new trial on the ground of newly discovered evidence, it must appear that the evidence has been discovered since the trial, and that the party has not been guilty of negligence in not discovering and producing it on the former trial. Nor will a new trial be granted on the ground of newly discovered evidence where such evidence is * merely cumulative, and is not conclusive in its character." 4. It is said by counsel for plaintiff in error that the conduct of counsel for the people in cross-examining Susan Lathrop and May Lathrop, the mother and sister-in-law of plaintiff in error, was reprehensible, and calculated to inflame the passions of the jury, and should be regarded as good ground for reversing the judgment. These questions referred to alleged conduct on the part of plaintiff in error in other transactions, not involved in the case on trial, and sought to call out from the witnesses answers to the effect that they had given testimony in some case of the same kind as this on some former occasion. These questions were objected to when asked, and the objections were sustained by the court. In sustaining the objections the court carefully instructed the jury to disregard such questions, and draw no inference from them. We cannot see why the rights of plaintiff in error were not thus fully protected by the court. His case could in no wise have been hurt thereby. The authorities cited by counsel for plaintiff in error upon this subject are those where counsel for the people made improper remarks outside of the record in closing arguments to the jury, and where the defendant's counsel had no opportunity to reply. Such authorities have no application here. It is not claimed, nor does the record show, that counsel for the people made any improper remarks to the jury at any time during the trial of the case or in their argument to the jury. No error has been called to our attention which would justify us in reversing the judgment entered in this case. Accordingly, the judgment of the circuit court of Knox coun ty is affirmed. Judgment affirmed. (197 Ill. 378) REHM v. HALVERSON. (Supreme Court of Illinois. June 19, 1902.) LANDLORD AND TENANT-FORCIBLE DETAINER AGAINST SUBTENANT-SUING IN JUSTICE COURT-NECESSARY PARTIES-JURISDICTION -APPEAL PROSECUTION WITH EFFECT-ACTION ON BOND-SUING SURETY ALONE-EVIDENCE-MEASURE OF DAMAGES-PROCEEDING WITH ELEVEN JURORS. 1. In an action on a bond given on appeal from justice court, judgment was properly ren dered against the surety alone, the principal not being served,-as Rev. St. c. 76, § 3 (2 Starr & C. Ann. St. [2d Ed.] p. 2321), declares that "all joint obligations and covenants shall be taken and held to be joint and several." 2. Under the forcible entry and detainer act (2 Starr & C. Ann. St. [2d Ed.] p. 1973) § 2, el. 4, providing that "when any lessee of the lands or tenements, or any person holding under him, holds possession without right, after the determination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise," the person entitled to the possession may be restored thereto in the manner provided, the court was not without jurisdiction to proceed against a subtenant in adverse possession because the lessee, who had surrendered his lease, and under whom he entered, was not joined in the action. 3. The judgment of a justice of the peace in forcible detainer was for the entire building in question, while the judgment on appeal therefrom was for only the first floor and one-half the basement; and the conditions of the appeal bond were "if the said G. Z. [defendant] shall prosecute his appeal with effect," and "in case the judgment from which the appeal is taken is affirmed," etc. Held, that the appeal was not prosecnted with effect, within the meaning of the bond, which was given when the forcible entry and detainer act (2 Starr & C. Ann. St. [2d Ed.] p. 1985) § 14, authorizing judgment for a part of the premises where it appears that plaintiff is entitled to no more, was in force. 4. The conditions of a bond on appeal by defendant in forcible detainer before a justice were to "pay all rent now due, and that may become due before the final termination of this suit, and all damages and loss which the said plaintiff may sustain by reason of the withholding of the premises in controversy." Held, the value of the use and occupation of the premises while defendant withheld possession was the measure of damages. 5. In an action on a bond given on appeal by defendant in forcible detainer, a certified copy of the judgment of the circuit court was admitted, without requiring at the same time a certified copy of all proceedings in the case. Held proper to establish the identity of the judgment affirmed with that recited in the bond. 6. Inasmuch as Practice Act, § 19, permits assumpsit to be brought on a sealed instrument, and it is the well-settled practice in justice courts that plaintiff need not name his action, or, if misnamed, it will not affect his rights if on the hearing he appears entitled to recover, and the court has jurisdiction, the fact that suit on an appeal bond was docketed before a justice as a suit in assumpsit, and not as a suit in debt, cannot affect plaintiff's right to recov er. 7. No error can be predicated on the continuance of the trial in the absence of a juror, where counsel expressly consented in open court to proceed with the 11 present. Appeal from appellate court, First district. Action by Enock Halverson against William H. Rehm and another. From a judgment of the appellate court (94 Ill. App. 627) affirming a judgment for plaintiff, defendant Rehm appeals. Affirmed. This is a suit begun on April 12, 1899, by the appellee against the appellant and one Gabriel Zaccone upon an appeal bond dated February 21, 1898, executed by Gabriel Zaccone as principal, and William H. Rehm as surety, unto Enock Halverson, in the penal sum of $1,000, which bond was given upon an appeal to the circuit court from a judgment of restitution by a justice of the peace in a forcible detainer suit brought by appellee against said Zaccone, the principal in the bond. The jury rendered a verdict on January 22, 1900, assessing the plaintiff's damages at the sum of $200. Motion for new trial was entered by appellant and overruled. A motion in arrest of judgment was also made and overruled, and exception taken to the order overruling the motion. On February 3, 1900, judgment for $200 was entered upon the verdict of the jury in favor of the plaintiff below, the present appellee. Exception was taken to the judgment, and an ap peal was prayed to the appellate court. The appellate court has affirmed the judgment of the circuit court, and granted a certificate of importance. The present appeal is from such judgment of affirmance. On January 4, 1898, the appellee brought suit against Gabriel Zaccone before a justice of the peace, and on January 11, 1898, the justice rendered a judgment finding that the defendant therein, G. Zaccone, was unlawfully withholding from the plaintiff, Enock Halverson, the possession of the premises, described as No. 57 Grand avenue, in the city of Chicago. On the same day the defendant prayed an appeal, and his appeal bond was filed in the sum of $1,000. The case was taken to the circuit court of Cook county upon a bond approved by the justice, where, upon objections having been made to the bond, a new bond was given on February 21, 1898, signed by Zaccone and William H. Rehm, the appellant herein. The condition of the appeal bond so filed, and dated February 21, 1898, is as follows: "The condition of the above obligation is such that whereas the said Enock Halverson did on the 11th day of January, 1898, before Jarvis Blume, a justice of the peace for the county of Cook, recover a judgment against G. Zaccone for the restitution of certain premises described in the plaint, to wit, the entire building known as No. 57 Grand avenue, in the city of Chicago, county of Cook, and state of Illinois, and costs of suit, from which said judgment the said G. Zaccone has taken an appeal to the circuit court of Cook county and state of Illinois: Now, if the said G. Zaccone shall prosecute his appeal with effect, and pay all rent now due, and that may become due before the final termination of this suit, and all damages and loss which the said plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the judgment from which the appeal is taken is affirmed or appeal dismissed, then the above obligation to be void; otherwise to remain in full force and effect." Zaccone remained in possession of the part of the property hereinafter named from the time of the beginning of the forcible entry and detainer suit until August 1, 1898, a period of seven months. On November 21, 1898, the case was tried upon appeal in the circuit court before a judge and jury. The jury returned a verdict as follows: "We, the jury, find the defendant guilty of unlawfully withholding on January 4, 1898, a part of the premises described in the plaintiff's complaint filed in this case, to wit, the first floor and the one-half of the basement, containing one ice box, of the building No. 57 Grand avenue, in the city of Chicago." Upon this verdict the circuit court entered the following judgment, to wit: "This case coming on to be heard upon defendant's mo |