#### Eleanor Harris, Appellee, v. August Lipman, Appellant.

Gen. No. 24,243.

1. Sales, § 226 * —when pawnbroker liable to owner of stolen goods. One whose diamond earrings were stolen by a Pullman porter, while a passenger on a Pullman sleeper, may maintain an action under section 243 of the Criminal Code (J. & A. ¶ 3896) against a pawnbroker in Whose possession the earrings were at one time after the theft.

2. Appeal and ebbob, § 1491 * —when exclusion of evidence is harmless error. In an action under section 243 of the Criminal Code (J. & A. ¶ 3896), against a pawnbroker, in whose possession the stolen earrings of plaintiff were at one time after the theft, the question of error in the exclusion of evidence on the part of *500defendant, that at some time previous to the trial he had seen two diamonds he had given another person in part payment for the earrings in the possession of one of the attorneys for plaintiff, was not reviewable where the record disclosed that upon the defendant’s attorney disclaiming his ability to show how or for what purpose the diamonds came into the possession of plaintiff’s attorney, the court ruled that this unconnected fact was immaterial.

3. Sales, § 226 * —what evidence is immaterial in action against pawnbroker to recover value of stolen goods. In an'action under section 243 of the Criminal Code (J. & A. ¶ 3896) against a pawnbroker, in whose possession the stolen earrings of plaintiff were at one time after the theft, evidence of defendant that some time before the trial he had seen two small diamonds which he had given another person in part payment for the earrings in the possession of one of the attorneys for plaintiff, was not material or relevant, especially where defendant pleaded no counterclaim or set-off, and in brief stated that he was “not seeking to recoup.’’

4. Sales, § 33 * —what constitutes fraudulent sale of diamonds exchanged for stolen diamond earrings. Even though one who had diamond earrings stolen by a Pullman porter while a passenger in a Pullman sleeper received exchanged diamonds from the porter, who had obtained them from another who had received them from a pawnbroker in exchange for the stolen diamonds, it was at most a fraudulent sale, voidable not at the instance of the pawnbroker but at the interest of the vendor.

5. Appeal and error, § 1473 * —when improper admission of evidence is harmless error. The admission of improper testimony relating to an undisputed matter is harmless error.

6. Costs, § 67 * -—when imposed because of dilatory appeal. The statutory penalty of costs for appeals prosecuted for the purpose of delay is properly imposed where the appeal is wholly without merit.

Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the March' term, 1918. Gertiorari denied by Supreme Court (making opinion final).

Affirmed with judgment here for delay and costs.

Opinion filed November 11, 1918.

Rehearing denied November 25, 1918.

Richard J. Cooney and John A. Verhoeven, for appellant.

Dent, Dobyns & Freeman, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McSurely

delivered the opinion of the court.

*501Defendant seeks the reversal of a judgment against him for $1,000 upon a verdict in the trial of an action brought under section 243 of the Criminal Code (J. & A. ¶ 3896), which gives the owner of stolen property a right of action against any person in whose possession the stolen property may be found.

There is little dispute as to the facts. In February, 1914, two diamond earrings belonging to plaintiff were stolen from her by the porter, Classberry, of the Pullman sleeper upon which she was a passenger. Classberry sent them by mail to his rooming place in Chicago, kept by Sarah Herron, a colored woman, who gave them to her son Willis. Willis Herron testified that he was a janitor at the time of the trial, but during the 10 or 12 years previous he had been in the saloon, pool room and barber shop business in Chicago, and also “in the diamond business as a side line.” He had a record of service in the penitentiary in Tennessee, was twice in the county jail here, and in the bridewell. Herron took the stolen diamonds to the defendant, a pawnbroker, with whom he had been doing business in diamonds, pawning and selling them, for over 10 years. The defendant gave him for the diamonds in question some money and two smaller diamonds, which Herron testified he gave to his mother; afterwards they came into the possession of Classberry and were on his person when he was arrested. It seems that subsequently, upon the trial of Classberry upon the criminal charge, these smaller diamonds were produced. The defendant testified that he had sold the two diamonds belonging to plaintiff which he had received from Herron, and that they had passed beyond his ability to recover them.

That plaintiff has a right of action has been decided and is conceded. Sharp v. Parks, 48 Ill. 511.

Defendant complains of the action of the trial court in refusing to permit him to testify that at some time previous to the trial he had seen the two small dia*502monds which he had given to Herron in the possession of one of the attorneys for the plaintiff. There was no reversible error in this, for these reasons: (1) The matter is not properly reviewable for the record shows that upon defendant’s attorney disclaiming his ability to show how or for what purpose the smaller diamonds came into the possession of plaintiff’s attorney, the court ruled that this unconnected fact was immaterial. (2) Defendant pleaded no counterclaim or set-off, and in his brief before us asserts that he is “not seeking to recoup.” There is therefore no reason in law making such evidence material or relevant. (3) Even upon the assumption that plaintiff got these diamonds from Classberry, it would be at most a fraudulent sale, voidable not at the instance of the defendant but at the instance of the vendor. Michigan Cent. R. Co. v. Phillips, 60 Ill. 190; Western Union Cold Storage Co. v. Bankers’ Nat. Bank of Chicago, 176 Ill. 260. It is a reasonable inference from the testimony that the incident concerning which the defendant tried to testify, was the production of the smaller diamonds in the Criminal Court at the time of the trial of Classberry.

It may have been technically erroneous to permit Herron to testify as to the details of the theft imparted to him by Classberry out of the hearing of the defendant, but this related only to the theft of plaintiff’s diamonds, which fact is not disputed by the defendant, hence the admission of the conversation does not require a reversal.

Plaintiff’s attorneys ask for the imposition of the statutory penalty for appeals prosecuted for the purpose of delay, and under the circumstances disclosed by the record we are of the opinion that the appeal is wholly without merit and comes within the statute. We shall therefore enter judgment in this court against the defendant for $100 as a penalty, in addition to *503the ordinary costs. The judgment of the trial court is affirmed, with judgment here for delay and costs.

Affirmed with judgment here for delay and costs.