delivered the opinion of the court:
This conviction rests upon the testimony of the prosecutrix alone. She is wholly uncorroborated in regard to any material contested question. The prosecution sought to sustain her testimony by showing that she made complaint. It j.s impossible to tell, from her testimony, when the alleged offense was committed. She first fixes the time at about two weeks before plaintiff in error sold the livery stable, which, fixing the latest date possible, by calculating from the time when possession changed, would not be later than May 23, 1902. She afterwards fixed it at two months prior to the time of the trial, and again at three or four weeks before the close of the school year. These two latter statements would fix the time some time between June 27 and July 10. She states that she did not tell anybody until the policeman came. It does not appear what policeman she referred to, when or where he came nor where she was at the time she told him about the matter, but she says, on cross-examination, that she told him that it was “Uncle Joe” that had done something to her, thereby referring to an employee in the livery stable by the name of Joe Keller. With the record in this condition, the People called one John Quinn, a police officer. He testified that he saw Bessie Lamb on the 31st day of July, 1902, at the Sheffield avenue police station, and at that time “she complained that she had intercourse,” but she did not definitely say anything in regard to the time or the date of the occurrence. It does not appear in the case at bar that the complaint which Quinn testified about was a complaint in reference to the occurrence for which plaintiff in error was then being tried, nor does it, in fact, appear that Quinn is the person to whom the prosecutrix says she related her wrongs. For aught that appears, Quinn may be the policeman to whom she stated that it was “Uncle Joe” that had done something- to her, while the jury may have concluded that the complaint which Quinn heard was a complaint of the conduct of the plaintiff in .error, —a conclusion wholly unwarranted by the evidence.
The prosecutrix further testified, in substance, on cross-examination, using language which it is unnecessary to set out here, that she might be mistaken about penetration having taken place. It appears from her testimony that the offense was committed in the daytime, in a livery stable on a public street; that she saw persons in the livery stable as she went in, and that theire was nothing to prevent such persons seeing her. None of these persons were called on the part of the People nor is their absence in anywise accounted for. Her testimony abounds iii uncertainties and contradictions about other material matters, less vital to the determination of this cause, however, than those herein above referred to.
On the part of the accused it was shown that he had resided in the same vicinity for several years, and it was proved by witnesses of unquestioned respectability and good standing that he had during that time been of good reputation as a law abiding" citizen. He testified in his own behalf and emphatically denied the charge made by Bessie Lamb, and his testimony was in no manner weakened or impeached. The failure of the prosecutrix to fix the time when the offense was committed put it beyond his power to account for his whereabouts or to show how he was engaged at the time when she claims the wrong was perpetrated. He presented as complete a defense to this charge as any man, however innocent, would ordinarily be able to present to an accusation of this character, surrounded, as this one was, with such uncertainty in regard to time and persons who were in the vicinity at the time of the alleged commission of the crime.- The uncertainties of Bessie Lamb’s testimony in these particulars, which ordinarily would weaken the cause of the prosecution, in this instance seem to have been a bulwark of strength, by making it impossible for the plaintiff in error to meet her testimony by any evidence save his own denial and proof of his previous good character.
While this court is to the fullest extent committed to the doctrine “that the jury, in their deliberations, are the judges of the facts and the weight of the evidence in all criminal cases,” yet this court will not hesitate to reverse a judgment of conviction -in a criminal case wheré the evidence on which it is based is of an unsatisfactory character, and where the evidence in the case so greatly preponderates in favor of the defendant that after a patient consideration thereof there remains such grave and serious doubt of the guilt of the accused as leads to the conclusion that the verdict of the jury is th'e result of prejudice or passion, and not of that calm and deliberate consideration of the evidence which the law requires. Mooney v. People, 111 Ill. 388; Clark v. People, id. 404; Campbell v. People, 159 id. 9; Waters v. People, 172 id. 367.
In our judgment the evidence contained in this record is not sufficient to support a verdict of guilty, and a new trial should have been granted.
The judgment of the criminal court will be reversed and the cause remanded to that court.
Reversed and, remanded.