delivered the opinion of the Court:
The assignment of error first alleged is in overruling defendant’s motion to quash the indictment, which was based on the fact that defendant was taken from the jail and examined as a witness before the grand jury that found the indictment against him, and was compelled to testify before said grand jury regarding his guilt or innocence. That motion is supported by the affidavit of the defendant. The grand jury constitutes a part of the court, and their official acts in finding true bills or ignoring bills are borne on the records of the court, and witnesses sworn before that' body are sworn in open court, though not necessarily in the presence of the judge. (1 Bishop on Crim. Proc. sec. 868.) By section 10 of article 2 of the constitution of the State of Illinois it is declared: “No person shall be compelled, in any criminal case, to give evidence against himself.” When the disqualification of a defendant in a criminal case as a witness in his own case was removed by section 426 of the Criminal Code of Illinois, it was expressly provided “that a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” The provision of the statute and the positive inhibition of the constitution alike preclude the right 'of the grand jury, or any court, to call upon the defendant, and, in the first place, make him a witness, and require him to give evidence against himself. It is of the highest degree of interest, and most important, to preserve that peculiar excellence of the common law system which has never allowed a proceeding to establish guilt to be inquisitorial. The affidavits in the record show that the defendant was taken from the jail where he was held in custody, and taken before the grand jury, where he was examined' touching the very matte-r on which that grand jury found an indictment against him and on which he was placed on trial. A right of the highest character was violated, a privilege sacredly guaranteed by the constitution was disregarded, and a dangerous innovation in the uniform practice in this State made. A danger so great, if it once became a rule of law, that one ignorant of his rights, and, it may be, also of his danger, unattended by counsel and unprotected by a court, could be called before a grand jury and interrogated, and, as he may believe, compelled to answer charges made against him on a subject matter of investigation then before that body, in which his interest is vital, that we will not stop to inquire into the question as to whether the indictment was found oh that testimony alone, nor whether that testimony influenced the finding where, as here, the defendant is in custody charged with a crime, and whilst so in custody is taken from the jail to be examined about that subject matter, fit is sufficient that so important a right was violated and such a proceeding had where an indictment was found under such circumstances.
But were that otherwise, it does not appear that any other evidence was heard before that grand jury on which this indictment was found. We do not hold that where one is before the grand jury as a witness, and at that time is not charged with crime, and may incidentally be interrogated about a matter, to which he majies answer, and an indictment after-wards is found against him, would require the indictment to be quashed; nor do we hold that every case where one is before the grand" ju¡ry as a witness, and interrogated about a matter for whieh he may afterward be indicted, would be, of itself, sufficient cause to quash the indictment. But in this case it does not appear that the grand jury examined any other witnesses, nor does it appear the indictment was not found on the evidence of the defendant alone. No affidavits are filed by the State’s attorney on that question, and where, as here, the defendant charged with crime is taken from the jail and before the grand jury, and interrogated about the matter with which he is charged with crime, such an error must be held fatal to the indictment. It was error to overrule the motion to quash the indictment. The State v. Froiseth, 16 Minn. 296.
The entire scope and purpose of the evidence introduced against the defendant in seeking to show that the deceased, Sewell, apparently demanded money of Wenda,' and threatened him, and that Wenda subsequently paid the defendant money, and the defendant was in company with deceased the day and evening of the homicide, were for the purpose of showing the defendant himself was the chief actor in taking the life of Sewell and fired the fatal shot, and the admission of much of that evidence could only be justified on that theory. There was no attempt to show that there was any other actor,—no-evidence introduced on the part of the State to connect any one other than Wenda and the defendant, -either directly or indirectly, with the death of Sewell. Under this state of facts, as shown by this record, there was no evidence on which to-base the third instruction given at the request of the State’s attorney, and it was error to give it. The testimony of Divine as to the declaration of the defendant “that he knew the man who hired Sewell killed,” and the testimony of George Boone, a brother of the defendant, who testified to the defendant’s declaring that “he believed he would turn this thing up; if he kept it they would turn it on him; I know the man who said he killed Sewell,” and of Minnie Piles, who testified that on the morning after the killing she asked defendant if he did it, and he said no, and she then asked, “Don’t you know about it?” and he answered and said, “Keep still—I will make a hundred dollars, ” was, with the other facts and circumstances, before the jury. The testimony of Bagsdale shows that the defendant was aiding him in an endeavor to find the guilty party, requested him to overhear a conversation between Wenda and himself, and was assuming to act as a detective. The declarations of the defendant testified to by Divine, George Boone and Minnie Piles are all explicable when taken in connection ’ with the testimony of Ragsdale, and the part attempted to be acted by the defendant as a detective. Puffed up in his own conceit at the importance of the part he was taking he makes declarations of knowledge, but in all those declarations there is no admission of guilt on his own part. If, however, they were by the jury believed to be true, the jury might well believe he had a knowledge of the instigator of the crime, if nob of the crime itself, which he was concealing.
This being the state of facts, and the attention of the jury being erroneously called to a conspiracy to commit this offense as by the third instruction for the prosecution, the giving of the fourth instruction on behalf of the People was clearly erroneous. That instruction was:
“The court instructs the jury, that if you believe, beyond a, reasonable doubt, that the defendant shot and killed Sewell,, or that he aided or abetted any other person or persons, in pursuance of a conspiracy or agreement, it matters not that, such evidence is. circumstantial.”
The last clause of the instruction does not require that the’ conspiracy or agreement, in which the defendant aided any other person or persons, was one to kill Sewell, and left it to the jury to speculate as to whether the defendant was an accessory after the fact, and, like the third instruction for the People, there was no evidence on which to base it.
The remarks of the State’s attorney in his closing argument are brought into the record by the affidavit of one of the counsefor the defendant. It was held in The State v. Kring, 64 Mo. 591, where it was said in argument if the jury wronged the-defendant the wrong could be righted by the Supreme Court: “The statement that the higher court had the power to review the findings of the jury on the weight of the evidence, was calculated to induce the jury to disregard their responsibility." That language is cited approvingly by this court in McDonald v. The People, 126 Ill. 150. We have carefully examined the record'and fail to find that any objection was made by counsel for defendant at the time, or that the trial court was called upon to rule on that question. It can not be raised for the first time in this court, and that error is not well assigned.
From a careful examination of the evidence in this record it appears that on the night and at the time the shot was fired that killed Sewell it was very dark. All the witnesses say it was dark. Within a few moments after the shot, two men, at two different times, went within four to six feet of the body of Sewell,—one with a lantern,—and, although well acquainted with Sewell, were unable to recognize him. All the testimony agrees as to this fact, unless it be that of Mrs. Ida Divine, who says “it was a dark night, but the stars were out,” and Mrs. Divine claims to have recognized the defendant some distance away, both about an hour, before and a half an hour after the report of the gun. If the night was as dark as claimed by the witnesses, it is inconceivable how one could aim either a rifle or pistol with sufficient accuracy to shoot a man in the head at some distance away. If the shot was fired in close proximity, so as to require no aim, it is alike almost inconceivable that there would be no powder burn. These facts are prominent in this record, and no fact is more positively shown than that John Meredith was nearest the body of Sewell at the time of the shooting, and thought the report of the gun was in a different direction from that where Sewell was found. The evidence of the defendant’s guilt excites such distrust, from the facts appearing in the record, that the Attorney General is compelled t'o say, “I have serious doubts as to the sufficiency of the testimony to sustain the verdict below.” Without discussing all the fáets, we hold the evidence in the record is not sufficient to sustain a conviction, and it was error to overrule the motion for a new trial.
For the errors indicated the judgment must be reversed and the cause remanded.
Judgment reversed.