let the court rule on them. right. The court was stitution of the state of Illinois and the Constitution of the United States. The Constitution of the United States provides that excessive bail shall not be required nor excessive fines imposed nor cruel nor unusual pun [11] It is urged that the court erred in giving instructions to the jury, and the material objection is that the instructions stated the statutes relating to the sale of intoxicat-ishments inflicted. Const. U. S. Amend. S. ing liquors, including the giving away or delivering liquor or other shift or device for the purpose of evading the law, sales by a clerk or servant, and the provision of the Criminal Code (Hurd's Rev. St. 1913, c. 38) as to accessories. The objection is that many of these provisions were not applicable to any evidence. The defendants had bartenders who made sales as clerks or servants of the defendants. One witness called for ginger ale and was served with whisky (which is a favorite shift or device), and one witness who did not buy liquor but helped to unload liquor was given a glass of whisky in exchange for his labor. The instructions were applicable to the case, and stated the law in the language of the statutes. There was no error in ruling on the instructions. But that provision does not apply to legislation by the states. It is restricted exclusively to the federal government, its courts and officers. Barron v. Baltimore, 7 Pet. 243, 8 L. Ed. 672; Spies v. Illinois, 123 U. S. 166, 8 Sup. Ct. 21, 31 L. Ed. 80; In re Kemmler, 136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519; McDonald v. Commonwealth, 173 Mass. 322, 53 N. E. 874, 73 Am. St. Rep. 293; 12 Cyc. 963; 6 Am. & Eng. Ency. of Law (2d Ed.) 961. Our Constitution does not contain that provision, but the provision of our Bill of Rights is, "All penalties shall be proportioned to the nature of the offense." The provision is directed to the lawmaking power, which alone can determine what acts shall be regarded as criminal and how they shall be punished. The provision requires that the penalty prescribed for a criminal offense shall be in proportion to the nature of the offense, and while it is incumbent upon the courts to maintain and give effect to the constitutional requirement, there must be a clear violation of the provision to justify holding an act invalid. An act was held in violation of the constitutional provision which provided for forfeiture of franchises of a railroad company on account of discrimination on its part. Chicago & Alton Railroad Co. v. People, 67 Ill. 11, 16 Am. Rep. 599. On the other hand, laws and ordinances imposing been held not to violate the constitutional requirement. Chicago, Rock Island & Pacific Railway Co. v. People, 217 Ill. 164, 75 N. E. 368; People v. Baltimore & Ohio Southwestern Railroad Co., 246 Ill. 474, 92 N. E. 934. [12] It is contended that the evidence did not support the verdict, but that is not so. The evidence introduced by the people was uncontradicted. The defendants occupied premises at No. 245 East Main street, in the city of Decatur. Near the front of the room there was a cigar case, back of which the bar extended. The back part was partitioned off, and there was a door to the saloon which was kept locked. The defendant Elliott was usually at the cigar case, and when customers came they would knock on the door. Elliott looked them over, and if he thought it safe to admit them, he pulled a string, which un-penalties quite severe in their nature have locked the door and admitted them to the bar, where both defendants and the bartenders served them with beer or whisky. If some person came to the door who was not regarded as a safe customer, Elliott would tell him to get out, that there was "nothing doing," and if an undesirable person got into the barroom and was detected, or one was doubted, he was not permitted to have any liquor. Whenever one came to the door, either Elliott at the cigar case or some person who came from behind the bar would inspect him and admit him or not, as it was considered safe or unsafe. More than 100 sales of intoxicating liquors were directly proved, and witnesses who bought liquor testified that there were large numbers of persons lined up at the bar, drinking or standing there and talking, and one witness said he had seen 50 or 60 people drinking there at different times. Elliott would not sell to one witness, saying he would not take any more chances on him, and there is neither any question about the guilt of the defendants, nor that they were convicted on only a portion of the offenses committed against the law. [13-17] It is argued that the punishment inflicted upon the defendants was cruel, unusual, and excessive, in violation of the Con In the case of City of Arcola v. Wilkinson, 233 Ill. 250, 84 N. E. 264, the city of Arcola by ordinance imposed a penalty of $200 for each offense of selling intoxicating liquor, and it was held the penalty was not disproportionate to the nature of the offense. The Criminal Code prescribes imprisonment in the penitentiary for a term of not less than 5 years nor more than 20 years for the crime of burglary. The Legislature enacted a statute providing for an indeterminate sentence, which should be a sentence for the maximum term in every instance, and this court held that such a sentence was not disproportionate to the offense. People v. Illinois State Reformatory, 148 Ill. 413, 36 N. E. 76, 23 L. R. A. 139. The penalty prescribed by the Legislature for the sale of liquor in anti-saloon territory is a fine of not less than $20 nor more than $100, or imprisonment in the county jail for not less than 10 days nor more than 30 days, or both. in the discretion of the court. The sentences against the defendants were for both fines and imprisonment on each count, which was a matter resting within the discretion of the court and authorized by the law. If the statute was valid the punishment was not disproportionate to the nature of the offense. There was no reason whatever for any leniency toward the defendants, who were knowing and willful violators of the law. The only reason that the fines aggregate a large sum and the imprisonment is for a long period is because there were so many violations of the law prosecuted under one indictment, but the punishment under each count must be considered by itself. The state may join misdemeanors of the same character in the same indictment, and the court may fix separate punishment upon each count on which there is a conviction. Borschenious v. People, 41 Ill. 236; Kroer v. People, 78 Ill. 294. This practice has been approved by this court rather than to require separate indictments for each offense. The constitutional provision does not apply in any manner to the aggregate of the punishments inflicted for different offenses. In the case of State v. O'Neil, 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 557, the defendant was found guilty of 307 offenses of selling liquor. The punishment was $6,140, made up of $20 for each offense, and one month's imprisonment. It was contended that the sentence violated a constitutional inhibition of cruel and unusual punish ment and excessive fines. The court said that if the defendant had subjected himself to severe punishment it was because he had committed a great many offenses; that it would scarcely be competent for a person to assail the constitutionality of a statute prescribing a punishment for burglary on the ground that he had committed so many burglaries that if punishment were inflicted for each he might be kept in prison for life, and that the mere fact that cumulative punishments may be imposed for different offenses in the same prosecution was not material. [18] If section 11 of the Bill of Rights, requiring that penalties shall be proportionate to the offense, is equivalent to a prohibition against cruel or unusual punishments, courts have never held a punishment author. ized by the Legislature to be either cruel or unusual or not proportioned to the nature of the offense unless it was a barbarous punishment not known to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. It was held in People v. Whitney, 105 Mich. 622, 63 N. W. 765, that the statute providing 'a fine of not less than $50 nor more than $200, or imprisonment in the county jail not less than 20 days nor more than 6 months, for the first offense of an illegal sale of liquor, and for every subsequent offense a fine of not less than $100 nor more than $500 and imprisonment in the state's prison for not less than 6 months nor more than 2 years, did not impose excessive fines nor cruel and unusual punishments. Punishment for violation of the Local Option Law of Ex Missouri by a fine of $300 and imprisonment for 365 days is not cruel and unusual. parte Swann, 96 Mo. 44, 9 S. W. 10. A fine and costs amounting to $4,000, which would cause imprisonment for 12 years for nonpayment, is not a cruel and unusual punishment. Ex parte Brady, 70 Ark. 376, 68 S. W. 34. Also in the following cases the punishment was held not cruel and unusual: Two years in the county jail. State v. Dowdy, 145 N. C. 432, 58 S. E. 1002. A fine of not less than $100 nor more than $500, or imprisonment in the county jail not less than 90 days nor more than 1 year, or both, for an illegal sale by a druggist. Luton v. Palmer, 69 Mich. 610, 37 N. W. 701. A fine of not less than $100 nor more than $500, and imprisonment in the county jail not less than 60 days nor more than 6 months, for an illegal sale. State v. Becker, 3 S. D. 29, 51 N. W. 1018. A maximum term of imprisonment for 1 year and a fine of $300, and on failure to pay the fine, imprisonment not to exceed 3 years. State v. Hodgson, 66 Vt. 134, 28 Atl. 1089. A fine of $300 and 90 days in the county jail for an illegal sale. v. Barnes, 3 N. D. 319, 55 N. W. 883. A fine of not less than $50 nor more than $250, and imprisonment in the county jail for not less than 6 nor more than 12 months, for entering a place where liquor is sold, except a drug store. State v. Woodard, 68 W. Va. 66, 69 S. E. 385, 30 L. R. A. (N. S.) 1004. streets for 30 days. Loeb v. Jennings, 133 A fine of $500 and a sentence to work on the Ga. 796, 67 S. E. 101, 18 Ann. Cas. 376. State [19-22] If the punishment prescribed by the Legislature for the illegal sale of liquor is not proportionate to the offense, the law itself is void because prohibited by the Bill of Rights, and no punishment at all can be inflicted for the offense. In such a case the vice is in the law itself, and, the law being void, the sentence cannot be modified on appeal so as to remove the objection or make the law valid. Weems v. United States, 217 U. S. 349, 30 Sup. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705. In view of the decisions of other courts, and especially of the decisions of this court in City of Arcola v. Wilkinson, supra, that a penalty of $200 for each unlawful sale is not disproportionate to the nature of that offense, and in People v. Illinois State Reformatory, supra, that a sentence for the maximum term of imprisonment for any offense is not disproportionate to the nature of the offense, it is clear that the statute under which the defendants were sentenced does not infringe the constitutional provision. The statute prescribing a penalty for unlawful sales of liquor is valid, and the validity of the sentences is not affected by the fact that there were numerous violations and cumulative penalties. The statute being valid and the sentences within its terms, the judgment cannot be reversed on the ground that this court would have imposed less se vere sentences, but we regard the sentences | tion that the court enter a proper judgment as unnecessarily severe for the accomplish- on the verdict. ment of the purposes of the law. Reversed and remanded, with directions. (272 111. 508) CONZET et al. v. HIBBEN et al. (No. 10585.) (Supreme Court of Illinois. April 20, 1916.) EST. 263-PROBATE-PARTIES-INTER The executors of a widow, to whom a testaviously probated, are interested in an applicator had devised his property in fee by a will pretion for the probate of an alleged subsequent will which gave the widow only a life estate and were proper parties to the probate proceedings, der the will offered for probate. though not heirs of the husband or legatees un [Ed. Note.-For other cases, see Wills, Cent. by such executors setting up the probate of the 3. WILLS The judgments of the Appellate Court and [23, 24] So far as the fines are concerned, circuit court are reversed, and the cause is the sentences were correct under the rule of remanded to the circuit court, with leave Borschenious v. People, supra, where it was to the state's attorney to move for, and diheld that such a judgment is a several judg-rection to the court to enter, a judgment in ment upon each count of the indictment. accordance with the rule established by this Objection is made to the sentences on the court as above stated. ground that the term of imprisonment on each count should have been so fixed that the imprisonment on the several counts should commence at the expiration of each succeeding term. The sentence as to imprisonment of each defendant was that he should be con-1. WILLS fined in the county jail of Macon county for a period of 10 days on each of the first 70 counts and a period of 20 days on the last or seventy-first count, and that the jail sentences should run consecutively, making a total of 720 days in jail. The rule established by this court is that where a defendant is sentenced upon different indictments or different counts of the same indictment, the correct method of entering judgment is not for the total time in gross, but for a specified time under each count, the time under the second to commence when the first ends, and so on to the last. Mullinix v. People, 76 III. 211; Stack v. People, 80 Ill. 32; Fletcher v. People, 81 Ill. 116. No particular form is required to constitute a judgment. Wells v. Hogan, Breese, 337; Foster v. Jared, 12 Ill. 451; Minkhart v. Hankler, 19 Ill. 47. The provision that the sentences shall run consecutively is equivalent to providing that they shall run successively, but the rule heretofore stated is that it shall be expressly stated in the sentence that one shall begin at the expiration of the previous one. There was no error in the record up to the imposition of the sentence, and it is beyond question that the court intended to sentence each of the defendants to imprisonment in the county jail for separate terms of 10 days on each of the first 70 counts and 20 days on the seventy-first count. As there was no error except in the imposition of the sentence, the cause should be remanded for a proper of a will who consented to the probate are esParties to the proceedings for the probate sentence, as was done in Johnson v. People, topped to ask for the probate of a later will, unsupra. In that case there was an indict-less their consent was procured by mistake or ment containing 24 counts for selling liquor to minors, and there was a verdict of guilty on 22 counts. The court, in sentencing the defendant, fixed the day and hour when the imprisonment should commence upon each count upon which the defendant was found In proceedings to probate a subsequent will guilty. The court said that contingencies after the former one had been probated by conmight arise which would render it imprac-parties to such property was given by mistake sent of all parties, proof that the consent of the ticable to carry such a judgment into effect, or through fraud is competent either in the proand one had actually arisen in that case by bate court or in the circuit court on appeal. granting a supersedeas. The court stated [Ed. Note.-For other cases, see Wills, Cent. the correct method of entering the judgment, and, having found no error up to the time the sentence was pronounced, reversed the judgment and remanded the cause, with a direc 423-PROBATE SUBSEQUENT WILL-REVOCATION OF FORMER PROBATE. Where a will had been admitted to probate tion by some of them for the probate of an allegby consent of all interested parties, an applicaed subsequent will revoking the former will should be joined with an application to set questions of estoppel and fraud can be deteraside the probate of the former will so that the mined as well as the execution of a subsequent will, and where no application was made to set aside the probate of the former will the admission of the subsequent will to probate was properly denied. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 911-913; Dec. Dig. 423.] 4. ESTOPPEL 68(2)-INCONSISTENT CLAIMS -PROBATE-SUBSEQUENT WILL. fraud. Cent. Dig. §§ 166, 169; Dec. Dig. 5. WILLS 68(2).] 292-PROBATE-ADMISSIBILITY OF EVIDENCE-PROBATE OF FORMER WILLFRAUD OR MISTAKE. Dig. § 665; Dec. Dig. 292.] BURDEN OF 6. WILLS 288(1) PROBATE PROOF-PROBATE OF FORMER WILL. In proceedings to probate a subsequent will the burden is on parties who consented to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-20 the former will to prove that their consent was] and Howard D. Conzet, the former being a obtained by mistake or through fraud. [Ed. Note.-For other cases, see Wills, Cent. Dig. §8 651, 652; Dec. Dig. 288(1).] Appeal from Circuit Court, Cumberland County; Walter Brewer, Judge. sister of Charles Conzet, deceased, filed their petition in the probate court of Cumberland county to have probated an instrument bearing date June 18, 1907, as the last will and testament of Charles Conzet, deceased. By Proceedings by Eliza F. Conzet and others the terms of this instrument the widow, Louagainst Nett Hibben and others for the pro-isa C. Conzet, was given a life estate in the bate of an instrument alleged to be the last | property of her husband, and the remainder will and testament of Charles Conzet, de- at her death, after the payment of debts that ceased. From a judgment of the circuit might then be owing by her, was to go to the court denying a probate on appeal from the testator's brothers and sisters in equal parts. probate court, the proponents appeal. Af- The testator's brother John Conzet and his firmed. sister Eliza Conzet were named executor and W. E. Redmon, of Decatur, and W. H. Me-executrix, respectively, of the will, which Donald, of Greenup, for appellants. Levi N. was witnessed by Hallie Brady and Daisy D. Brewer, of Toledo, Edward C. Craig and Himes. The matter of the probate of said inDonald B. Craig, both of Mattoon, for appel-strument came on to be heard September 6, lees. FARMER, C. J. This is an appeal from a judgment of the circuit court of Cumberland county affirming a judgment of the county court of said county refusing the probate of an instrument alleged to be the last will and testament of Charles Conzet, deceased. 1915, when the executrices and executor of the will of Louisa C. Conzet, deceased, appeared and upon leave granted were made parties and filed a paper denominated a plea, setting up the will of Charles Conzet, deceas ed, dated February 21, 1896, and the order admitting the same to probate at the January, 1913, term, and the record of the court with reference to the probate of said will; also the death of Louisa C. Conzet, testate, a Copy of her will showing the appointment of Nett Hibben, Bonnie Kelly, and Ed. E. Elstun as executrices and executor thereof, and reciting said executrices and executor have Charles Conzet died December 10, 1912, leaving surviving him a widow, Louisa C. Conzet, and Edward Conzet, J. C. Conzet, John Conzet, Eliza Conzet, and Henrietta Meeker, his brothers and sisters, as his next of kin and only heirs at law. At the January, 1913, term of the county court of Cum-accepted said office and were then executing berland county an instrument bearing date said will and testament. The "plea" also reof February 21, 1896, was admitted to pro- cited the filing of the suit in the circuit court bate as the last will and testament of Charles to contest or construe the will of Louisa C. Conzet, deceased. By the terms of such will Conzet, in which proceeding all the brothers all testator's property was given in fee sim- and sisters of Charles Conzet, deceased, were ple to his widow, Louisa C. Conzet. The made parties defendant; that the order adwidow was named as executrix without bond, mitting the will of Charles Conzet, dated but she waived her right so to act and the February 21, 1896, to probate at the Janucourt appointed Ed. E. Elstun to act as ad-ary, 1913, term, had never been set aside, ministrator with the will annexed. The wid- and that the time within which the order alow and all the brothers and sisters of testa-lowing the probate of such will could be set tor, being all the heirs at law and next of aside on appeal to the circuit court or by a kin, filed in the probate court their written bill filed in the circuit court to contest the appearance and consent that the will be pro- same had gone by, and that there could not bated at that term without further notice to be two last wills and testaments, and therethem. The estate was administered by said fore the paper presented bearing date of June Elstun, his final report filed and approved, 18, 1907, should not be admitted to probate. and he was discharged November 9, 1914. The probate court, after a hearing, in which The widow, Louisa C. Conzet, died testate proof was made of the facts set forth in the September 9, 1914. Her will was admitted to alleged "plea," entered an order refusing the probate and her executor and executrices are probate of the said instrument, and therenow settling her estate. At the June, 1915, upon an appeal was taken to the circuit court term a bill was filed in the circuit court of of said county. The "plea" of the executricCumberland county to "set aside or construe es and executor of the last will and testathe will" of Louisa C. Conzet. All the broth- ment of Louisa C. Conzet, deceased, filed in ers and sisters of said Charles Conzet, de- the probate court, was allowed to stand in ceased, together with the heirs of said broth- the circuit court over the objections of apers and sisters who had died since the death pellants that the same should be stricken on of said Charles Conzet, were made parties the ground that such executrices and executo such proceeding. The court sustained and tor were not proper parties in the proceedconstrued the said will of Louisa C. Conzet, ing to probate the will, being neither heirs at the terms and provisions of which need not law nor legatees under the will, and that the here be noticed. circuit court, on appeal from the county court, August 13, 1915, appellants Eliza Conzet had no jurisdiction to hear or try any mat ter except the question whether the paper the courts that decided those cases are recogproduced was the will of Charles Conzet, de-nized as courts of great ability, we are not ceased, and properly executed by him. On sufficiently impressed with the reasoning in the hearing in the circuit court Daisy D. support of the conclusions reached as to be Himes testified to the execution of the instru- willing to adopt the rule laid down in those ment dated June 18, 1907. The other sub- cases. scribing witness, Hallie Brady, was dead, but six or seven witnesses testified the signature appearing on the instrument was her signature. The record of the probate court admitting the former will, dated February 21, 1896, to probate, was introduced in evidence by the executrices and executor of the will of Louisa C. Conzet. The circuit court denied admission of the 1907 will to probate, and this appeal is prosecuted from such order. [1, 2] The executrices and executor of the will of Louisa C. Conzet were interested in the application to probate the 1907 will, and it was not improper to allow them to be made parties. Mosser v. Flake, 258 Ill. 233, 101 N. E. 540, Ann. Cas. 1914B, 425. Whether the so-called plea was a proper pleading or not, it worked no injury to appellants. The record of the probate of the former will could have been called to the court's attention without filing the plea. [3] The appellants' view of the law and the procedure in cases of this character is, that they were not required to first procure the setting aside of the probate of the prior will nor to ask that the prior judgment admitting the prior will to probate be set aside in the same proceeding in which admission to probate of the second will is asked, but that when they made proof of the execution of the later will in accordance with the requirements of the statute it was the duty of the probate court to admit it to probate, and then by another proceeding, either by motion in the probate court or by bill in chancery, they could have the prior order of probate annulled and set aside. If appellants are correct in this position the judgments of the probate and circuit courts are erroneous. So far as we are advised the question has never been passed upon in this state. In Schultz v. Schultz, 10 Grat. (Va.) 358, 60 Am. Dec. 335, the question was discussed at considerable length. It. was held in that case that where a later will contains an express clause of revocation of a former will or makes a disposition of the testator's property incompatible with a former will which has been admitted to probate, the probate court should admit the later will, leaving it to have such effect as the law would necessarily attach to it, without by some proceeding first setting aside the probate of the prior will. In Cousens v. Advent Church of Biddeford, 93 Me. 292, 45 Atl. 43, it was held that the prior probate of an earlier will does not preclude the probate of a later will, and if the later will revokes the former upon its probate, the court authorized to admit wills to probate has authority to revoke the former decree so far as to give effect to the last will. While It is not contended by appellants that the simple admission to probate of the later will ipso facto revokes the judgment of probate of the former will, but it is conceded some other action would be required to be instituted, either by motion in the probate court or by bill in chancery, to revoke the former judgment of probate. Here the will sought to be probated not only makes a disposition of the testator's property inconsistent with the prior will, but it contains an express revocation of all former wills made by the testator. The two wills could not stand at the same time. If the estate is to be administered under the later will, then the probate of the former must be set aside, and it seems to us the better practice would be to ask that the former judgment of probate be set aside at the same time the application is made and passed upon for the probate of the later will. This question was passed upon by the Supreme Court of Rhode Island in Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49. The court said: "Now it would seem to be quite congruous with the statute mode of conferring this power of revoking the old probate, to wit, as incidental to the power of taking probate of the later will when discovered, for the court to exercise this power of revocation, as incidental to the new grant of probate, rather than to make it necessarily the subject of preliminary and separate action. delay and expense of double proceedings, and Such a practice would save the enable the court to revoke or modify the old probate, as the old will utterly conflicted, or was capable of partially standing with the new one. Notice of the petition for the probate, or for filing and recording of the new will, must necessarily be given to the parties interested under the old one; and the prayer of such a petition incidentally involves the revocation of the probate of the will of prior date, so far as such will conflicts with the provisions of the will of later date. We can perceive no danger of confusion or injustice in allowing this double, but dependent, duty to be performed by the court upon a mere petition for the probate of the later will; and its simplicity and directness commend it, as a matter of practice, in other respects, to our favor." [4] The rule laid down in the above case and the reasoning in support of it appeal more strongly to our judgment than the rule in the cases first referred to. The determination of the correct rule in this respect is of the utmost importance in this case, for in our view the decision depends upon that question. All of the next of kin and heirs at law of Charles Conzet, the testator, were made parties to the proceeding for the probate of the prior will. They entered their appearances in writing in that proceeding and consented to the probate of the will. They now ask to be relieved from the effect of the judgment they consented to. If they knew of the existence of the later will at the time |