the defendant that Caruso made a down motion toward his back pocket of such a nature as to justify the shooting.

Several of the instructions given at the instance of the prosecution are criticised. The instructions were mostly abstract in form and apparently provided for use in every case of homicide without regard to the facts of the particular case. Instruction No. 9 was of that character and defined involuntary manslaughter. It was wholly inapplicable to the case, since under no phase of the evidence could it be said that the killing was involuntary manslaughter, even from the testimony of the defendant. The killing was accomplished by voluntary, intentional shooting, and as the instruction was based upon no evidence, the error in giving it would require reversal if it did not appear that the jury could not have been misled by it. We do not see how the jury could have been influenced to find the defendant guilty of killing Caruso without any intent to do so because of the definition of involuntary manslaughter, in the face of the testimony of the defendant that the shooting was intentional. While the purpose of instructions is to aid the jury in determining the issue in each case, it cannot be said that defendant was injuriously affected by the instruction.

Particular objection is made to instruction No. 13, which told the jury that the right of self-defense does not imply the right of attack in the first instance nor does it permit of action done in retaliation or in revenge, and if defendant shot Caruso in the spirit of utter disregard of human life or from motives of retaliation or revenge, the defense of self-defense would not be available to him. An instruction of that kind was condemned in Filippo v. People, 224 Ill. 212, and Foglia v. People, 229 id. 286, because in neither case was there any evidence tending to prove that the accused did make an attack upon the deceased, but in this case it was a fair inference from the testimony of Adamovitz that the defendant was the attacking party when he touched Caruso on the shoulder and invited him to come

off of the wagon, and the prosecution had a right to an instruction on the theory that such was the fact.

Instruction No. 12 is objected to because it told the jury that one acting in self-defense can only use such force as is absolutely or apparently necessary for his defense. The instruction was exactly in accord with the statute, which requires that the danger to the person killing another in selfdefense must be so urgent and pressing that the killing of the other is absolutely or apparently necessary in order to save his own life or to prevent his receiving great bodily harm. It was not error to give it.

Instruction No. 14 was one of the instructions abstract. in form in readiness for all cases and related to circumstantial evidence and the conditions under which such evidence would warrant a conviction. There was very little in the case to which it could apply, but there were the circumstances that Caruso was unarmed and that the defendant came down from his wagon and advanced to meet him, and the judgment could not be reversed on account of that instruction.

It is argued that instructions numbered 10 and 26 implied that the defendant assaulted Caruso, but neither instruction is subject to that objection. Instruction No. 10 required the jury to believe from the evidence, beyond a reasonable doubt, that the defendant did make an assault upon Caruso with intent to kill him; that such assault resulted in the death of Caruso, and that the defendant did not act in self-defense. Instruction No. 26 carried no implication that the defendant made the assault, but told the jury that the intent alleged in the indictment was necessary to be shown but might be inferred from facts and circumstances shown by the evidence.

The judgment cannot be reversed for error in instructing the jury.

It is objected that the court failed to restrain the State's attorney from making improper argument to the jury.

There was objectionable argument that the prosecution labored under very great difficulty in obtaining evidence, with particular allusion to the silence that prevailed in the Italian quarter in Twenty-second street with respect to similar cases. There was also some attempt to create prejudice as between native-born citizens and others, and the jury were exhorted to put an end to the wholesale killing. The conduct of the State's attorney was inexcusable but the court sustained objections to arguments of that character, and in view of the ruling the argument furnishes no sufficient ground for reversing the judgment.

There was a motion for a new trial trial based on an interview with the witness Walter Adamovitz by the attorneys for the defendant in which he said that he was promised money by Caruso's sister for testifying, and that the fact was that the first thing that attracted his attention was the people running to the place of the fighting where the two men were rolling on the ground, which was inconsistent with his testimony that the defendant went to Caruso's wagon, touched him on the shoulder and invited him to come down. He then gave an account of the fight which did not indicate in any way that the defendant acted in selfdefense or had any reason to believe that Caruso was about to draw a weapon. In fact, he said the first thing he saw was that the defendant struck Caruso and Caruso then struck the defendant, and according to his account of the affair at this interview the verdict was right. Counteraffidavits showed that no money was promised to the witness, and Adamovitz testified that no one told him to testify falsely, that no money was paid to him and that he told nothing before the jury which was not true. Assuming that Adamovitz was an untruthful and unreliable witness, the verdict was nevertheless the only one justified by the evidence.

The judgment is affirmed.

Judgment affirmed.

(No. 11365.-Reversed and remanded.)

T. B. MCGOVERN et al. Appellants, vs STEPHEN A. D. McGOVERN et al. Appellees.

Opinion filed December 19, 1917-Rehearing denied Feb. 6, 1918.

I. WILLS when decree dismissing bill to set aside deeds is not res judicata. A decree dismissing a bill to set aside certain deeds, which is affirmed upon the express ground that the deeds, which had been confirmed by will, could not be set aside unless the will was also set aside in the same proceeding, is not res judicata of the right of the complainants to maintain a suit to set aside the will and the deeds in one proceeding.

2. SAME―what tends to corroborate testimony that the testator lacked mental capacity. Evidence of a conversation between the testator and his attorney at the time of the execution of a codicil to his will indicating that the testator had left the business wholly in the hands of the attorney and was merely acquiescing in what his attorney suggested, tends to corroborate the testimony of other witnesses that the testator did not at that time have sufficient mental capacity to make a will, notwithstanding the attorney testifics that in his opinion the testator was competent.

3. SAME when verdict as to testator's mental capacity will be set aside. Where it is apparent from a careful consideration of the whole record, after giving the testimony of witnesses for the proponents the full credit to which it is entitled, that the verdict. of the jury that the testator had sufficient mental capacity to make a will is palpably against the weight of the evidence, the verdict will be set aside on appeal.

4. SAME when witness should be permitted to express opinion as to mental capacity of testator. A witness who has testified as to his long acquaintance with the testator, although he testifies to but one circumstance that he had noticed was unusual or peculiar in the testator's actions, should be permitted to give an opinion as to the testator's mental capacity.

CRAIG, J., took no part.

APPEAL from the Circuit Court of Knox county; the Hon. HARRY M. WAGGONER, Judge, presiding.

R. D. ROBINSON, WILLIAMS, LAWRENCE, WELSH & GREEN, JOHN B. BROWN, and J. E. MALEY, for appellants.

HARDY & HARDY, ROY M. MARSH, ARMOUR Moreland, and CARNEY, Carney & Nelson, for appellees.

Mr. JUSTICE COOKE delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Knox county dismissing for want of equity a bill filed to set aside the last will and testament of James McGovern, deceased, and to set aside two deeds executed by him in his lifetime.

James McGovern died at his home in Galesburg, Illinois, on July 15, 1913, leaving surviving him Terrence B. McGovern, Ella Greason and Julia Cavanaugh, complainants in the bill and appellants, and Stephen A. D. McGovern, Mary A. Lahey, Joseph E. McGovern and James W. McGovern, his children, and Frank, James and Edward Dunn and Mamie Markey, his grandchildren, as his only heirs-atlaw, and also as the only legatees and devisees mentioned in his purported last will and testament. The testator resided in Knox county for more than fifty years. From 1902 until the time of his death he resided in the city of Galesburg. Prior to that time he resided on his farm near the villages of Oneida and Wataga. His daughter Ella resided with him until she was about fifty years of age. We are unable to find from the record the date of the death of the second wife of the testator, but it appears that for many years, and until the year 1912, the daughter Ella, who was then unmarried, lived with him and managed the home. Prior to the execution of the deeds which will be hereinafter noted, and, as appellants contend, at the time of his death, the testator owned 327 acres of land in Knox county, Illinois, and 240 acres of land in Polk county, Iowa. He also owned the property upon which he resided in Galesburg and considerable personal property. On May 24, 1910, he executed the will in question, by which he devised to his son Stephen 127 acres, to his daughter Mary 110 acres and to his son James W. the remainder of the Knox county