(Dissenting.) The defendant was convicted of the murder of his infant daughter, at a Circuit Court, held in the county of Tioga, in October, 1856. He now moves for a new trial upon, a bill of exceptions.
It is claimed on the part of the defendant that the judge who presided on the trial erred in refusing to instruct the jury that the defendant could not be convicted of murder, for the reason that there was no direct evidence of the death or murder of his infant daughter; and.in charging that the *462jury might infer, presume and find, without direct proof, the death and murder, of the infant daughter.
The proof shows that the defendant’s infant daughter and its mother disappeared very mysteriously from the defendant’s residence, in Tompkins county, in June, 1845, and that neither of them has since been found or heard of, although the most diligent search and inquiry have been made for that purpose by the people of Tompkins county and the relatives of the absent daughter and mother, on the mother’s side.
The defendant’s conduct, before and at the time the daughter and its mother disappeared from his house, and subsequently thereto, was such as to create a very strong suspicion that they are both dead and that he murdered them ; and from such conduct, and other facts and circumstances disclosed by the evidence in the case, the jury have found him guilty of the crime of murdering his daughter, for which only he was tried.
The evidence is such that it is barely possible, though highly improbable, that the defendant’s daughter is still alive. It is, however, so strong against the defendant on every point which it was necessary for the people to establish to show him guilty, that if a conviction for murder should be allowed in any case without certain evidence that the person supposed to be murdered is dead, we ought not to disturb the finding of the jury that he is guilty.
Should a conviction for murder be permitted in any case without direct and certain evidence that the person is dead whom it is supposed has been murdered, is the only question presented for our consideration in this case.
It is settled, both upon principle and authority, that the body of the murdered person need not always be found to authorize a conviction of the accused. Proof that the prisoner threw a person overboard from a vessel at sea, under such circumstances that it would be impossible for him to escape drowning, has been held sufficient evidence of the *463death of the person so thrown overboard to warrant the conviction of the prisoner without finding the dead body. So proof that the prisoner had cast a person into a blazing furnace, from which he could not escape, the heat thereof being sufficient to entirely consume the body, would render it unnecessary for the prosecutor to give evidence of the finding of the body of the person thus destroyed. The evidence in such cases being direct and certain that the absent or missing person is dead, establishes the basis of the corpus delicti; and then whether the throwing of the person into the-sea or casting him into a blazing furnace was murder or manslaughter, or done in self-defence, may be inferred from circumstances.
The rule laid down by Lord Hale is, that he “ would never convict any person of murder or manslaughter unless the fact be proved to be done, or at least the body found dead,” and judges have seldom violated this rule without committing judicial murder. It is not to be denied that innocent persons have been convicted of murder when the bodies of the murdered persons were found; but this fact should admonish us against relaxing Lord Hale’s rule, instead of inducing us to sustain a conviction where, conceding that all the witnesses whose testimony is relied upon to establish the death of the absent person supposed to be murdered have told the truth, the whole truth, and nothing but the truth, and still it be possible that such person is living. I cannot concur in establishing the doctrine that human life may be taken for an alleged murder when the conclusion that a murder has been committed is drawn from the sudden and unaccountable disappearance and long continued absence of the person supposed to be murdered, or from other circumstances, which may be all true and yet no homicide have been committed by any person. „
The evidence that the person whom it is alleged has been murdered is dead must be certain, and it must be such as to leave no room for the existence of any doubt whatever that *464such person is dead, before a conviction for the murder of such person can safely be permitted. It will not do to presume from circumstances that an absent person is dead, and then build the further presumption upon it that such person has been murdered. Persons accused of murder must be proved to be guilty, by certain and reliable evidence, before they can be lawfully convicted. “ The case must be such as to exclude to a moral certainty every other hypothesis but that of the guilt of the party accused.” The case does not do this when there is the least uncertainty as to whether the person alleged to be murdered is dead. It is infinitely better for society that guilty persons should sometimes escape deserved punishment than for courts to establish a precedent that may be used to deprive innocent persons of life.
I cannot concur in sustaining the verdict in this case, because the evidence is such that it is possible that the defendant’s daughter is yet living. That-it is extremely improbable that she is living will not do. . Thé evidence must be certain that she is dead before the defendant can be lawfully convicted.
I.think the judge should have instructed the jury to acquit the defendant, and that for his refusal to do so the verdict should be set aside and a new trial granted to the defendant, to be had at the Tioga Circuit.
New trial denied.