The opinion
Moran, P. J. It appears from the opinion of Mr. Justice Bailey filed in this case, that we were not able to agree with regard to the propriety of the admission by the trial court of the evidence relating to what may be termed the Frazer-Wren and Walker-Wren matters.
Concurring as I do with the views Judge Bailey has expressed on other points, I deem it just to state briefly my view with regard to said evidence. I regard said evidence as inadmissible, for the reason that in my opinion it did not tend to prove the issue. It did not prove or tend to prove an attempt to obtain money from Cook County by false pretenses.
It tended to prove simply that Wren falsely pretended in the one instance that Walker had sold an article to the county; and in the other instance that. Frazer had sold an article to the county, when the truth was that in both instances Wren had furnished the article to the county himself. The clearest proof of an agreement between all the defendants to accomplish by concert of action what was accomplished in these two transactions, would not sustain the charge of conspiracy laid in the indictment, but would only show a conspiracy to enable the County Commissioner to deal with the county in violation of the statute.
The evidence was injurious to the defendant Wren, as it tended to prove him guilty of a crime other than the one for which he was on trial, and furnished the basis of a denuncia" tion of him as a forger and perjurer by the assistant State’s Attorney in his speech to the jury.
I am unable to say that the evidence did not improperly affect the result. The admission of illegal evidence directly hurtful to the defendant, particularly where it is availed of in argument against him and pressed upon the attention of the jury as evidence of his general depravity, ought to vitiate the verdict.
As only two members of the court have taken part in the consideration of the case, a difference between us as to any question arising on the record operates to affirm the judgment. Two Judges must concxxr in order to reverse. Personally I feel relief in the reflection that a case so important to the people and the defendants may receive the considex-ation of the Supreme Court and there reach a final and authoritative determination.