of mayhem upon the person of Charles Smith by tearing or cutting off the ear of the prosecuting witness. The defendants were all tried together, and the jury returned a verdict finding John Conners and Edward Donovan guilty as charged in the indictment and fixing the punishment of each at imprisonment in the penitentiary. The other defendants were found not guilty. After overruling a motion for a new trial and in arrest of judgment the court pronounced sentence upon Conners and Donovan in accordance with the verdict. John Conners alone has sued out a writ of error from this court and assigns numerous errors upon the record.

It is first contended by plaintiff in error that the court erred in not granting a new trial because the evidence is not sufficient to sustain a conviction. The evidence on behalf of the State shows that on September 6, 1909, at about the hour of nine o'clock in the evening, the prosecuting witness, in company with a friend by the name of Mike Cyrulik, left a boat called the C. W. Watson, upon which they were employed, and together they visited a number of saloons in South Chicago, in which they took several drinks. About eleven o'clock in the evening they went into the saloon at 9390 Ewing avenue, which was known as Cannavan's saloon. At Cannavan's they had one or more drinks of beer and then engaged in a game of pool with some men who were unknown to them. The evidence shows that some controversy came up as to which man should pay for the drinks. This dispute was finally settled by Cyrulik paying for the drinks. There was also some animated argument in reference to the speaking of the Spanish language, in which plaintiff in error criticised Smith's Spanish and told him that his Spanish was more like Mexican than anything else. There was nothing said by Smith or Cyrulik in either of the arguments that was offensive or calculated to provoke an assault. It was shown that all of the persons indicted were members of the Marine Firemen's Un

ion and that they were on a strike, and that Donovan was the leader in charge of the strike and exercised some sort of control over his co-defendants in regard to their conduct while on the strike. From this circumstance it is suggested that the prosecuting witness and his friend, Cyrulik, may have incurred the ill-will of the plaintiff in error and the other members of the Marine Firemen's Union because Smith and Cyrulik were working on the C. W. Watson without being members of the union or because they were working contrary to the strike orders of the union. The testimony in regard to the labor troubles and the two trivial controversies already referred to is all the testimony in the record which tends to disclose any motive for the alleged assault made upon Smith and Cyrulik. The testimony on behalf of the State shows that about the time Smith and Cyrulik were leaving Cannavan's saloon someone struck Cyrulik in the face and at the same time plaintiff in error and Donovan were making an attack upon Smith. Smith was knocked to the floor, and he testifies that he heard Donovan say, "Kill him!" and that plaintiff in error and Donovan then kicked and stamped Smith until he became unconscious. The evidence shows that Smith was then carried and dragged to a vacant lot adjoining Cannavan's saloon and was thrown into a hole five or six feet lower than the sidewalk. Smith was next seen in another saloon at 9401 Ewing avenue about 12:05 A. M., which was fifteen or twenty minutes after the assault was made on him. He was in a dazed condition and his head was covered with blood. His left ear was severed from his head and it was afterwards found in the hole where he had been thrown. A physician was called and the police were notified and Smith was then sent to the hospital. He did not regain consciousness until the following morning. The police made inquiries in the different saloons in the neighborhood to find out where Smith had received his injuries. A police officer asked Cannavan if there had been any trouble in his

place, and Cannavan said no. Afterwards the police re

ceived information which led them to examine Cannavan's place, which they did, and discovered blood on the floor about the place where Smith is shown to have fallen when he was knocked down. The police officers received information that a number of men had been seen leaving Cannavan's place after the difficulty and going into a hall on the opposite side of Ewing avenue, which is shown to have been the headquarters of the Marine Firemen's Union. About an hour and a half after the assault was committed the police officers went to the hall of the Marine Firemen's Union and found Donovan there and the other defendants, all of whom, excepting Donovan, were arrested and locked up in the police station. The next morning Donovan, while sitting in the police station waiting for the case against the other defendants to be called, was identified by Cyrulik as one of the persons who had participated in the assault upon himself and Smith the night before in Cannavan's saloon, whereupon Donovan was placed under

arrest.

The evidence is clear and convincing that the prosecuting witness was assaulted and maimed, as charged in the indictment, in Cannavan's saloon on the evening of September 6, 1909, as above stated. The defense relied upon is, that the plaintiff in error was not one of the parties in Cannavan's saloon on the night in question and that he had nothing whatever to do with the alleged assault. All of the parties charged with this offense deny that they were in Cannavan's saloon or that they had anything whatever to do with assaulting the prosecuting witness. This claim is supported by the testimony of John Kenney, Paddy Thompson and Cannavan, who claim to have been in the saloon at the time the difficulty occurred, and they testify that plaintiff in error was not present and that the blows received by Smith were struck by another man whose name is not given. According to their testimony this unidenti

fied stranger is the only person who struck either Smith or Cyrulik. As already stated, Smith and Cyrulik positively identify Donovan and plaintiff in error as the persons who committed the assault on Smith. These witnesses had been in the saloon for a considerable length of time. They had played four games of pool with plaintiff in error and Donovan and had an opportunity to become acquainted with them. Cyrulik testifies that after Smith had been knocked down and kicked and beaten on the floor of the saloon, Donovan and Conners,-Conners on the right and Donovan on the left of Smith,-took him out of the saloon, each of the parties supporting him by his arms. When the three parties left the door of the saloon Smith was in the middle, with his head leaning forward and blood streaming from his head and face. When the three parties reached the sidewalk they turned in a northerly or north-westerly direction. At this point the testimony of two other witnesses, Clyde Wennestone and Arthur Herrick, is brought to bear upon the situation. These two witnesses were on the sidewalk and saw the three men come out of the saloon. They identify Donovan as one of the parties who was supporting the injured man, and by their testimony. they locate Donovan on the left of Smith. They testify that there was another man on Smith's right, but they did not have a fair look at his face and cannot identify him. It is to be noted, however, that so far as these two witnesses were able to identify the persons composing the trio that came out of the saloon they corroborate the testimony of Smith and Cyrulik. In this state of the proof the identity of plaintiff in error as one of the parties who committed the assault upon Smith was a question of fact for the jury to determine. There are thus four witnesses who testify to Donovan's presence and participation in the assault, against three who testify that he was not present. If the jury saw proper to believe the testimony of the witnesses for the People rather than those who testified for the de

fendant, it is not the province of this court to set aside a conviction under such a state of facts as is disclosed by this record. Whether the evidence was sufficient to warrant a verdict of guilty was in the first instance to be determined by the jury. In criminal cases the rule which has often been announced and constantly adhered to by this court is, that a verdict of a jury will not be set aside unless the finding is so palpably against the weight of the evidence as to indicate that the verdict is based upon passion or prejudice. Cronk v. People, 131 Ill. 56; People v. Deluce, 237 id. 541; People v. Lutzow, 240 id. 612.

Plaintiff in error contends that the court erred in not setting aside the verdict because the jurors were not regularly drawn in the manner provided by the statute. This question was not raised until after the verdict had been rendered. Without indicating what our view would be if this question had been raised before the trial was entered upon, it is a sufficient answer to the contention of plaintiff in error that he waived all right to question the manner in which the jurors had been drawn, by his failure to challenge the array and accepting the jury to try his case. A challenge to the array is the only manner in which the question now under consideration can be preserved for review. (Borrelli v. People, 164 Ill. 549; Bruen v. People, 206 id. 417.) A prisoner on trial has no right to sit by and allow irregular proceedings to occur without objection, and afterwards seek to have a judgment against him set aside because of such irregularities. When plaintiff in error accepted the twelve men to try his case, his acceptance was an expression of satisfaction on his part with the jury, and he cannot, after an adverse verdict, seek to reverse his action in accepting the jury and have the verdict set aside for some irregularity which existed at the time the jurors were accepted.

Again, plaintiff in error insists that a new trial should have been granted on account of newly discovered evi