tion. Facts were alleged showing that the plaintiff, the Great Lakes Fruit Company and the defendant were all bound by the provisions of the Workmen's Compensation act of the State of Illinois, and that the plaintiff's injuries arose out of and in the course of his employment by the Great Lakes Fruit Company, wherefore it was averred that the plaintiff's right to damages for the injuries complained of was under the Workmen's Compensation act and this action could not be maintained. The plaintiff demurred to the special pleas, the demurrer was overruled, the plaintiff electing to stand by his demurrer judgment was rendered against him, and he has appealed directly to this court on the ground that a constitutional question is involved.

A railroad company engaged in intrastate commerce is subject to the Workmen's Compensation act. (Keeran v. Peoria, Bloomington and Champaign Traction Co. 277 Ill. 413; Friebel v. Chicago City Railway Co. 280 id. 76.) A railroad company engaged in interstate commerce is not subject to that act. (Staley v. Illinois Central Railroad Co. 268 Ill. 356.) To avoid liability under the act a railroad company engaged in both interstate and intrastate commerce has the burden of showing that the work being done at the time of the injury was in interstate commerce. (Payne v. Industrial Com. 296 Ill. 223.) It appears from the pleadings that in the occurrence in which the plaintiff was injured the defendant was engaged in interstate commerce and was therefore not bound by the provisions of the Workmen's Compensation act. Section 3 of that act provides that its provisions shall apply automatically to all employers and employees engaged in carriage by land or water, but, as held in Staley v. Illinois Central Railroad Co. supra, the Congress of the United States, by the Federal Employers' Liability act, has taken jurisdiction of the subject matter of the Workmen's Compensation act so far as it applies to interstate commerce and has excluded carriers engaged in interstate commerce from the provisions of that act.

The special pleas were based upon sections 6 and 29 of the Workmen's Compensation act. Section 6 provides that no common law or statutory right to recover damages for injury or death sustained by an employee engaged in the line of his duty, other than the compensation provided by the act, should be available to any employee covered by the provisions of the act or his legal representative or to anyone dependent upon him or otherwise entitled to recover damages for such injury. These provisions apply

only to the right of the employee against his employer and have no reference to the liability of third persons causing injury to the employee. By section 29, however, the rights of employees suffering injury or death in the course of or arising out of the employment, not proximately caused by the negligence of the employer but caused under circumstances creating a legal liability for damages on the part of some person other than the employer, are dealt with, and it is declared that if the person, other than the employer who is liable for damages for the injury or death, is bound by the provisions of the act, the right to recover damages shall belong to the employer and shall be limited to the amount of compensation payable under the act, but if the person, other than the employer, so liable for damages is not bound by the provisions of the act, then legal proceedings may be brought against such other person by either the employer or the injured employee. (Gones v. Fisher, 286 Ill. 606.) The act divides employers and employees who are under its provisions from employers and employees who are not under its provisions, and establishes a different rule in regard to the respective rights and liabilities of all employers and employees under the act from that which applies to employers and employees not under the act. (Kceran v. Peoria, Bloomington and Champaign Traction Co. supra.) In Vaughan's Seed Store v. Simonini, 275 Ill. 477, and Marshall v. City of Pekin, 276 id. 187, it was held that an employer might be subject to the provisions of the

Workmen's Compensation act so far as some part of his business was concerned and not subject to its provisions so far as another part of his business was concerned. If he was engaged in any extra-hazardous business of the character of those mentioned in the act then he would be subject to the act so far as his employees engaged in that business were concerned, but he would not be under the provisions of the act so far as other employees not engaged in the extra-hazardous business were concerned. The last two cases cited arose under the act of 1913 while this case is governed by the act of 1917, the provisions of which apply without election to all employees of employers engaged in any business declared by the act to be extra-hazardous. Being engaged in carriage by land, appellee is subject to the provisions of the Workmen's Compensation act so far as the intrastate business which he transacts is concerned, and would be subject to its provisions as to all his business as a carrier but for the fact that Congress having assumed jurisdiction to regulate his interstate business in this respect has excluded it from the operation of the Workmen's Compensation act. While the Federal Employers' Liability act has no application to the appellant or his injury, it does have the effect of excluding the appellee from the provisions of the Workmen's Compensation act as to the business in which he was engaged when the appellant was injured. Therefore, when engaged in interstate commerce the appellee and his employees so engaged are not bound by the act, and he is not entitled to the benefit of the provisions of section 29 in favor of employers who are bound by the act. The pleas did not state any defense to the action.

The judgment will be reversed and the cause remanded, with directions to sustain the demurrer.

Reversed and remanded, with directions.

(No. 14051.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. JAMES DELORENZO et al. Plaintiffs in Error. Opinion filed October 22, 1921-Rehearing denied Dec. 9, 1921.

I. CRIMINAL LAW-guilt may be established by circumstantial evidence. Guilt of a defendant charged with a criminal offense may be proved by circumstantial evidence if the circumstances proved are sufficient to produce a moral certainty of guilt beyond. a reasonable doubt.

2. SAME-jury must determine the credibility of witnesses. In trials before a jury, where the evidence is conflicting on questions of fact, it is the province of the jury to determine the credibility of the witnesses and to determine whether a fact alleged or crime charged has been proved.

3. SAME when, only, will reviewing court reverse judgment on the evidence. A reviewing court is not bound by the verdict and judgment of conviction in a criminal case, but it will reverse the judgment on the evidence only where it can say that from a consideration of the whole testimony there is a reasonable and well founded doubt of the defendant's guilt.

WRIT OF ERROR to the Circuit Court of Rock Island county; the Hon. EMERY C. GRAVES, Judge, presiding.

KENWORTHY, DIETZ, SHALLBERG, HARPER & SINNETT, and WILLIAM B. SCHRODER, for plaintiffs in error.

EDWARD J. BRUNDAGE, Attorney General, BENJAMIN S. BELL, State's Attorney, and FLOYD E. BRITTON, (EDWARD L. EAGLE, of counsel,) for the People.

Mr. JUSTICE FARMER delivered the opinion of the court: This writ of error was sued out to review a judgment of conviction of James Delorenzo and Dominick Delorenzo, who are brothers, for the murder of Angelo Frenchevilla. The dead body of Frenchevilla was found by his wife between one and two o'clock in the morning of the night of

August 24, 1920. He worked at the gas plant in Moline from one o'clock P. M. till 10:30 P. M. While returning home from his work the night of August 24 he was waylaid at a dark place in the railroad yards on his route home and shot to death. His wife becoming uneasy about his delay in returning home, went to look for him and found his body as stated. This was in the neighborhood of two o'clock in the morning. The condition of the body indicated he had been dead some hours. The body was slightly warm and rigor mortis had not set in. There were several bullet wounds in the body, most of which would cause death. Defendants were suspected of the crime, and on inquiry and search the police officers of Moline learned they had left for Beloit, Wisconsin, on an early train the morning after the homicide. The police of Beloit were requested by the police of Moline to apprehend defendants and take them into custody. They did so about noon, August 25, notified the police of Moline, and officers went to Beloit and brought them back to Moline. They were held in custody until their indictment and trial, in November, 1920. They were both found guilty by verdict of a jury and their punishment fixed at imprisonment for life.

Reasons assigned for a reversal of the judgment are, that the evidence was not sufficient to warrant a conviction, the court erred in ruling on the admissibility of testimony and in giving and refusing instructions.

Complaint is made that errors were committed by the court during the progress of the trial, but the argument of defendants is principally devoted to the claim that the evidence did not warrant the verdict and judgment. No one saw the homicide committed, or saw defendants, or either of them, in the vicinity where the body was found. Defendants are brothers and lived in Silvis, which is a division point on the Chicago, Rock Island and Pacific railroad, about seven miles east of where the body was found. James