delivered the opinion of the court:
As will be seen from the statement of the case, no direct or positiye evidence was produced showing that the child of Nancy Cook was dead, or, if dead, that its death was caused by the criminal agency of plaintiff in error. If Nancy Cook’s testimony be taken as true, the child, though of premature birth, was born alive. She testified that she felt it move and heard it cry; that it moved again when plaintiff in error cut the cord. Whether it survived that operation or not the evidence is silent. But she testified that he was the father of the child, and had told her that if she would not pester him he would take the child where she would never be bothered with it or see it again; that he cut the cord and wrapped the child in the piece of quilt on which it was born, took it away, carried it out of doors between ten and eleven o’clock at night, and returned in about half an hour afterward without it; that she never saw the child when it was born nor had she seen it since; that she did not know what he did with it, nor whether it was dead or alive; that he never gave any account of it; that she had no conversation with him about it and could never get a secret talk with him afterward. Search was afterward made about the premises, by others, but no trace of the child or of its remains was ever found. As a witness in his own behalf he denied all of the incriminating testimony given by her, and his testimony was, in some of its most material parts, corroborated by the testimony of other witnesses. But the weight of the evidence will be discussed at another place. ' '
Counsel for plaintiff in error contends, in the first place, that if it be taken as true that the accused did all that the prosecuting witness testified that he did do, the conviction must fail for lack of sufficient • proof of the corpus delicti. It has been said that in murder the corpus delicti consists of two elements, viz., the fact of death, and the criminal agency of another as the cause of the death. (Ruloff v. People, 18 N. Y. 179; 4 Am. & Eng. Ency. of Law, 309.) Counsel concedes that the identity of the deceased and of the accused may be proved by circumstantial evidence, or that, when the fact of the death of the person alleged to have been murdered is properly established, the criminal agency of the accused may be shown by any competent evidence, whether direct or circumstantial, but it is insisted that the fact of death must be established by direct or positive evidence, and cannot be established by indirect or circumstantial evidence. It is contended that this was the rule at common law, and is therefore the rule in this State. It is conceded on behalf of the People that this was the general rule at common law, but it is insisted that the rule was subject to exceptions, and that the rule itself has been modified and changed by the later authorities, and that now, by the great weight of modern authority, it is established that the corpus delicti may be proved like any other fact—by presumptive or circumstantial evidence.
Lord Hale said: “I would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead, for the sake of two cases—one mentioned in my Lord Coke’s P. C., cap. 104, p. 232, a Warwickshire case; another that happened in my remembrance in Staffordshire, where A was long missing, and upon strong presumptions B was supposed to have murdered and to have consumed him to ashes in an oven that he should not be found, whereupon B was indicted and convicted and executed, and within one year after A returned, being indeed sent beyond sea by B against his will; and so, though B justly deserved death, yet he was really not guilty of that offense for which he suffered.” 2 Hale’s P. C. 290.
Lord Stowell, in Evans v. Evans, 1 Hagg. Con. 105, said: “When a criminal fact is ascertained, presumptive proof may be taken to show who did it,—to fix the criminal,— having there an actual corpus delicti; but to take presumptions in order to swell an equivocal and ambiguous fact into a criminal fact would, I take it, be an entire misapprehension of the doctrine of presumptions.”
In Regina v. Hopkins, 8 Car. & P. 591, a young woman was indicted for the murder of her bastard child, alleged in some of the counts by drowning, in others by suffocation. The child had been put to nurse after its birth, and at the age of sixteen days she took it, as she said, to take to her father, who lived on the bank of the river Wye. She was seen with the child as late as six o’clock in the evening of April 8, but between eight and nine o’clock she arrived at her father’s without the child. The body of a child was found in the river Wye, but did not correspond with the description of the child in question and was found not to be the same. Lord Abinger, C. B., instructed the jury that the prisoner could not be called upon by law to account for the child or to say where it was unless there was evidence to show that it was actually dead.
Many other early cases are reported sustaining the rule contended for by plaintiff in error. In Ruloff v. People, 18 N. Y. 179, (decided by the New York Court of Appeals in 1858,) the court reviewed the authorities on this subject, and came to the conclusion, with one judge dissenting, that there could be no conviction of murder unless there was direct proof either of the death, as by the finding and identification of the body, or of criminal violence adequate to produce death, and exerted in such a manner as to account for the disappearance of the body; that when the death is proved by direct evidence, the criminal ag'ency of the accused in producing the death may be established by circumstantial evidence. This, it was there held, was the rule at common law, and it was adhered to in New York by the courts until, at a later period, a statute was enacted which prohibited a conviction “unless the death of the person alleged to have been killed, and the fact of the killing by the defendant, as alleged, are each established as independent facts, the former by direct proof and the latter beyond a reasonable doubt.” And in People v. Palmer, 109 N. Y. 110, it was held that the statute was simply declaratory of the common law, and that it was not intended by the statute to so change the rule as it existed at common law, as to require that the identity of the deceased should also be proved by direct evidence only. In the opinion of the court in that case, to show that it was not intended by the statute to limit the proof of the identity of the deceased to direct evidence, it was said in argument, that “a murderer may always escape if only he shall so mutilate the body of his victim as to make identification by direct evidence impossible, or shall so effectually conceal it that discovery is delayed until decomposition has taken away the possibility of personal recognition; and it will follow that the tenderness of the Penal Code has opened a door of escape to that brutal courage which can mangle and burn thef lifeless body, and has put a premium upon and offered a reward for that species of atrocity.” This argument would seem to be equally as forcible against the supposed rule that the fact of death can be proved only by direct evidence.
We are satisfied that the strict rule contended for by plaintiff in error has been modified by many authorities, and that the weight of authority now is that all of the elements of the corpus delicti may be proved by presumptive or circumstantial evidence. It was said by Jeremy Bentham, that “were it not so, a murderer, to secure himself with impunity, would have no more to do but to consume or decompose the body by fire, by lime, or by any other of the known chemical menstrua, or to sink it in an unfathomable part of the sea.” (3 Smith on Judicial Evidence, 234.) In King v. Burdett, 4 Barn. & Ald. 95, (6 Eng. Com. L. 358,) Best, J., said,.in speaking of circumstantial evidence: “Until it pleases Providence to give us means, beyond those our present facilities afford, of knowing things done in secret, we must act on presumptive proof or leave the worst crimes unpunished. I admit, where presumption is attempted to be received as to the corpus delicti, that it ought.to be strong and cogent.” (See, also, Wills on Circumstantial Evidence.) In a copious note to Rippey v. Miller, 62 Am. Dec. 177, Freeman says: “But while it is established that the death of the person whom it is charged the prisoner has killed may be proved by circumstantial evidence, it is everywhere held to be necessary to prove this fact by the most convincing evidence that the nature of the case will admit of. In Smith v. Commonwealth, 21 Graft. 809, it was decided that the death of the person charged to have been murdered must be proved by the most cogent and irrefutable evidence.” And he there further says : “To require the discovery of the body in every case would seriously interfere with the administration of justice. It is therefore clearly settled that the fact of death may be inferred from such strong and unequivocal circumstantial evidence as renders it morally certain and leaves no room for reasonable doubt.” (Ibid, note to p. 184.) See, also, to the same effect, State v. Williams, 7 Jones’ Law, (N. C.) 446; 78 Am. Dec. 248. In an elaborate note to this case, in which many cases are cited, at page 253 it is said: “Direct and positive evidence is unnecessary to prove the corpus delicti. * * * It may be proved by circumstantial evidence, if it be strong and cogent, and leave no room for reasonable doubt. * * * This rule is now clearly established, and it would be unreasonable to always require direct and positive evidence. Crimes, especially those of the worst kind, are naturally committed at chosen times, in darkness and secrecy. Human tribunals must therefore act upon such indications as the circumstances of the case present or admit, or society must be broken up. The cases just cited show that the jury may find a verdict of guilty upon circumstantial evidence, and that the corpus delicti may be proved by such evidence, as well as any other part of the case, and that this rule applies in cases of mnrder and manslaughter as well as in all other crimes.” And at page 257 it is further said: “But of the various forms of criminal homicide, that of infanticide (by which is popularly understood the murder of a recently born infant for the purpose of concealing its birth) perhaps presents the greatest difficulties in the establishment of the corpus delicti. No universal and invariable rule can be laid down with respect to it. Each case must depend upon its own peculiar circumstances, and, as in all other cases, the corpus delicti must be proved by the best evidence which is capable of being adduced, and such an amount and combination of relevant facts, whether direct or circumstantial, as establish the imputed guilt to a moral certainty, and to the exclusion of every other reasonable hypothesis.”
To this general statement of the law we assent. So strict a rule as contended for by plaintiff in error would, as pointed out by many authorities, operate, and especially in cases of infanticide, to completely shield the criminal from punishment for the most atrocious crimes. The complete destruction of the body of a newly born infant might not be difficult. To say that in such a case, while every one would admit that the body could be completely destroyed by animals, by fire, or other destructive agencies, circumstantial evidence, though of the most cogent and convincing character, would not be admissible to show the fact of death, as well as the criminal agency of the accused in producing it, would be to say that there is a class of the most atrocious crimes which, when committed in secret, as most crimes usually are, and by persons of sufficient capacity and skill to destroy the body, must go unpunished, because the law has closed all avenues but one leading to detection, and has permitted the criminal himself to close that one. We are not prepared to so hold. It is, however, familiar law, and frequently recognized by this court, that extra-judicial confessions of the commission of crime, where such confessions are relied upon to establish guilt, are not sufficient to authorize a judgment of conviction without other sufficient proof of the corpus delicti, but that the corpus delicti should first be otherwise established, not, however, necessarily by direct evidence only. Andrews v. People, 117 Ill. 195; Williams v. People, 101 id. 382; South v. People, 98 id. 261; May v. People, 92 id. 343; Bergen v. People, 17 id. 426; Gray v. Commonwealth, 101 Pa. St. 380; 47 Am. Rep. 733; State v. German, 54 Mo. 536.
It is undoubtedly true that where there is no direct or positive evidence of the death of the person who is charged to have been murdered, great caution should be observed in acting upon presumptive or circumstantial ■evidence; but that the fact of death may be so proved, when it is the best evidence obtainable, we have no doubt. It would unnecessarily extend the length of this opinion to review the authorities at length. Many of them will be found cited in the notes to the following cases : State v. Williams, 78 Am. Dec. 248, and Rippey v. Miller, 62 id. 177. See, also, 4 Am. & Eng. Ency. of Law, 309, and notes; 9 id. 728; Burrill on Circum. Evidence, 680; Kerr on Law of Homicide, 539; Wills on Circum. Evidence, 179; Wharton on Crim. Evidence, secs. 325, et seq; United States v. Gibut, 2 Sumn. 19; State v. Keeler, 28 Iowa, 551; Johnson v. Commonwealth, 81 Ky. 325 ; Stocking v. State, 7 Ind. 326; McCollough v. State, 48 id. 109; Lancaster v. State, 91 Tenn. 267; Gray v. Commonwealth, supra.
We have examined the record with much care, and cannot find that the trial court committed any error in the admission and exclusion of evidence, or in giving or refusing instructions to the jury. Complaint is made by plaintiff in error of the ruling of the court respecting the instructions, but we find no error in this respect. The instructions applicable to both sides of the case were full, and unusually free from error.
The only question remaining to be considered is whether or not the evidence is sufficient to sustain the judgment. While it is the province of the jury to determine what weight should be given to the testimony, and whether or not the testimony of any particular witness should be believed or not, and while the trial judge and the jury have better facilities' for coming to a correct conclusion upon all such questions than we possess, still the responsibility is at last cast upon this court, when the question is presented, as it is here, to determine whether or not the evidence contained in the record is sufficient to support the judgment of conviction. The record contains but little circumstantial evidence tending to establish the guilt of plaintiff in error. The facts and circumstances proved, independently of the direct testimony given by Nancy Cook, were as consistent with the theory that the child, whether dead or alive, was disposed of by her as that it was murdered by him with her consent and connivance, so that at last the conviction must stand or fall upon her own uncorroborated testimony. When she testified she was in jail, jointly indicted with him for the alleged murder. By her own testimony she was a willing accomplice. It is true that judgments of copviction of crime may be properly based upon the uncorroborated testimony of an accomplice, and this court has frequently so held; but it has always been said that in such cases trial courts should proceed with the greatest caution. Hoyt v. People, 140 Ill. 588; Friedberg v. People, 102 id. 160; Earll v. People, 73 id. 329; Cross v. People, 47 id. 152; Gray v. People, 26 id. 344; Collins v. People, 98 id. 584.
In Hoyt v. People, supra, Mr. Justice Scholfield said (p. 595): “But the authorities agree, and common sense teaches, that such evidence is liable to grave suspicion, and should be acted upon with the utmost caution, for otherwise the life or liberty of the best citizen might be taken away on the accusation of the real criminal, made either to shield himself from punishment or to gratify his malice.”
It will be noticed that in the great majority of the cases where this question has arisen for discussion, the testimony of the accomplice was corroborated by other evidence, direct or circumstantial. Still it is undoubtedly the rule in this State, as stated in Rider v. People, 110 Ill. 11, that “whatever the law may be in other States with respect to the right of a jury to convict upon the uncorroborated testimony of an accomplice, it is well settled the right exists here, and convictions upon such testimony will not be disturbed by this court on that ground alone.” In addition, however, to the suspicion which must attend the testimony of an accomplice, it is, of course, to be subjected to the same tests which are applied to determine the reliability and force of the testimony of other witnesses. In the case at bar, the accomplice, upon whose unsupported testimony the plaintiff in error was convicted of the murder of her newly born babe, was an ignorant and depraved woman, who did not know the nature of an oath, and had no conception of any punishment to which she would subject herself for testifying falsely. It is evident from the testimony that she felt that she had been greatly wronged by the marriage of the plaintiff in error, and was exceedingly jealous of his wife, whom she accused of trotting back and forth carrying stories to her mother, and of being the cause of all the trouble. At a time previous to her trial she had been arrested on the complaint of the wife of plaintiff in error for concealing the death of her bastard child, and on the examination testified as a witness in her own behalf, but did not, in such testimony, in any way implicate plaintiff in error in the disappearance of her child. She had told Thomas Campbell, a witness for the defendant, (if he is to be believed,) that the child was born as dead as a stick of wood, and that if John and his wife testified that it was born alive they would swear to a lie; that it was only a little wad of something, and had no life. She complained to this witness that plaintiff in error had prevented her from getting bond and being released from custody. Monroe Crouch, the officer who arrested her, testified that as he remembered her statements to him she said the child came dead. She stated, when on the stand, that she understood from what had been said to her or in her presence, that if she testified for the People her testimony would not be used against her and that she would be protected—that she testified with that understanding. We think it clear that this woman had the strongest motives that could operate upon the human mind to so testify as to inculpate the plaintiff in error and exculpate herself, —to obtain her own release and freedom from punishment •and at the same time strike a blow at those whom she thought had wronged her.
It may, however, be said that this was a question for "the jury—that it was for them to say whether the witness was worthy of belief or not; and that this court, in accordance with uniform precedents, will not interfere in such ■a case to set aside the verdict of the jury. In this case, however, the attendant circumstances, with so many per■sons in such close proximity, as testified to by her, tended to weaken such force as her testimony might otherwise have. Besides, other witnesses, including plaintiff in •error, gave testimony contradicting the testimony of the prosecutrix as to what he did on the night in question, which testimony, if true, left no evidence upon which a verdict of guilty could be sustained. The evidence •showed that while she made contradictory statements in and out of court, the defendant told the same story from the beginning. There is doubtless a possibility of his •guilt, but we are constrained to say that the evidence is insufficient’ to establish his guilt beyond a reasonable doubt. We think it would be establishing' a precedent fraught with much danger to sustain this judgment upon the evidence set out in this record. Upon another trial -other facts and circumstances may possibly be shown which may tend to' dissipate the doubts which must arise in any candid mind upon reading the evidence as now presented.
The judgment of the circuit court is reversed and the cause remanded to that court.
Reversed and remanded.