There was no error in this, however, inasmuch as the order in which evidence is to be received is largely within the discretion of the trial court, and no judgment will be reversed because of the order in which evidence was introduced unless there was manifest abuse of such discretion. People v. Wolf, 334 Ill. 218, 165 N.E. 619; People v. Rewland, 335 Ill. 432, 167 N.E. 10. While it is true that the principal evidence relied upon by the Government lay in the admissions of the co-defendant and also of counsel for appellant that no interest was in fact ever paid, there is enough other evidence aside from that of the parties to justify the court in allowing the case to go to the jury. Oscar Nelson, the real maker of the note, testified that he had received the money for the loan of which the note in question had been given, and that he had never paid any interest on it, nor could he recall that any demand had ever been made upon him for payment of either the principal or the interest.
The following cases are particularly illustrative of this view. Commonwealth v. Peach. 239 Mass. 575; Commonwealth v. Root, 191 Pa. Super. 238; People v. Black, 111 Cal.App. 90; People v. Rewland, 335 Ill. 432; State v. Campbell, 82 Conn. 671. Exception 7 is therefore overruled. Exception 8 is to the following portion of the charge: "Bear in mind also, that the Cranston Police Department is not on trial.
Again, it has been held that it is the duty and burden of defendant to request limiting instructions that the confession of a codefendant has no application to the defendant, ( People v. Bartz, 342 Ill. 56,) or that an admission of one defendant is not binding on another defendant. ( People v. Darr, 179 Ill. App. 130, aff'd 262 Ill. 202; People v. Rewland, 335 Ill. 432.) And, in like manner, where evidence of other crimes is admitted to prove the element of intent, it has been held the affirmative duty of the defendant to request instructions limiting the purpose of such evidence and explaining the legal theory under which it was admitted. See: People v. Smith, 18 Ill.2d 547; People v. Botulinski, 392 Ill. 212; People v. Bransfield, 289 Ill. 72; Glover v. People, 204 Ill. 170.
There was no error in giving People's instructions Nos. 16 and 25 on the question of confessions. It is admitted they correctly state the law and are applicable to People's exhibit No. 10. But defendants argue they should have distinguished between a confession and a statement containing incriminating admissions, which they say is all People's exhibit No. 11 amounted to. The answer to this contention is that defendants tendered no such instruction. It is not the duty of the court to prepare instructions for defendants. (People v. Hartwell, 341 Ill. 155; People v. Rewland, 335 id. 432.) The instructions criticized were correct statements of the law. If they did not apply to exhibit No. 11 but only to exhibit No. 10, defendants should have requested the court to so instruct the jury.
The defendant requested an instruction stating in substance that such intoxication as would make the driving of a car unlawful was that degree of intoxication which would render him incapable of giving that attention and care to driving that a man of prudent and reasonable intelligence would give. We have held that "drunk" and "intoxicated" are synonymous, ( People v. Rewland, 335 Ill. 432, ) and we are of the opinion that the term is of such elasticity as to require legal definition when applied to a criminal statute. Different persons' ideas as to the meaning of the term, if left undefined, would be such as to make the matter of guilt or innocence of a defendant entirely one of caprice.
People v. Hein, 315 Ill. 76; Gore v. People, 162 id. 259. The order in which testimony competent and relevant to the issues shall be admitted is largely in the discretion of the trial court, and a reviewing court will not reverse because of such order of admission except in case of manifest abuse. ( People v. Rewland, 335 Ill. 432; People v. Byrnes, 302 id. 407.) It is not error to allow a confession to be introduced in evidence before proof of the corpus delicti is made. People v. Wolf, 334 Ill. 218; Spies v. People, 122 id. 1.
People v. Thompson, 321 Ill. 594; People v. Zwienczak, 338 id. 237. It is also urged that the court should not have given twenty-three instructions for the People and only three for defendant. It appears from the record that the three instructions for defendant were prepared by the prosecutor at the instance of the court, as defendant's counsel had failed to prepare or offer any instructions. It has been repeatedly held that it is not the duty of the court to give or prepare instructions for one accused of crime. ( People v. Rewland, 335 Ill. 432; People v. Funk, 325 id. 57.) Any other rule would result in confusion, and a defendant charged with crime might thus take advantage of his own omission. It is not pointed out by counsel for defendant in this case in what respect the jury was misled by any of the instructions. The whole record shows that defendant had a fair and impartial trial even though his attorneys may have been neglectful in the matter of instructions. Taken as a series the instructions defined the crime and fairly stated the law.
In general, contributory negligence is not a defense in a criminal prosecution. ( Maxon v. State, 177 Wis. 379, 21 A.L.R. 1484, 187 N.W. 753; Keller v. State, 155 Tenn. 633, 59 A.L.R. 685, 299 S.W. 803; People v. Rewland, 335 Ill. 432, 167 N.E. 10; State v. Campbell, 82 Conn. 671, 135 Am. St. 293, 18 Ann. Cas. 236, 74 Atl. 927.) Defendant's proposed instruction in the language of the act, that no car shall be parked within twenty-five feet from the intersection of curb lines, etc., at an intersection of highways (Sess. Laws 1927, chap. 260, sec. 25, p. 493), was properly refused.
The report of proceedings of the trial together with the clerk's mandatory record constitute the complete record on appeal, not supplementable by affidavits. ( People v. Rewland, 335 Ill. 432, 167 N.E. 10; compare People v. Palmer, 3 Ill. App.3d 608, 278 N.E.2d 165.) This rule is a rigid one.
This was error. Shea v. LaCost, 16 Ill. App.2d 454, 460, 148 N.E.2d 484 (1958); Schwehr v. Badalamenti, 14 Ill. App.2d 128, 133-34, 143 N.E.2d 558 (1957); People v. Rewland, 335 Ill. 432, 436, 167 N.E. 10 (1929). In another peremptory instruction there was imposed on plaintiff as an element of her burden of proof, "that the plaintiff did not participate in procuring the intoxication" of the person who struck her. This is not the law and the giving of the instruction was error.