Mr. Justice Breese
delivered the opinion of the Court:
This was an indictment in the Circuit Court of Clark county for robbery. The prisoners were convicted and sentenced to the penitentiary. They bring the case here by writ of error, and assign for error the giving the third, sixth, eighth, tenth, "eleventh, thirteenth, fourteenth and fifteenth instructions on behalf of the people, in refusing the eighth instruction asked by the prisoners, in permitting the confession of Francis to go to the jury, and in overruling the motion for a new trial.
The record shows the confession of Francis was extorted from him by a high-handed act of violence and wrong and under circumstances of unfcsual cruelty. At about midnightf he was taken from his home by a body of armed and disguised men to a neighboring wood, and there hung upon a tree by the neck, when, taken down almost senseless, he confessed that he, with the other prisoners charged, committed the robbery, and detailed the circumstances.
The rule has been long settled in our law'that, while a free and voluntary confession of guilt is of the highest order of evidence, one extorted is never received. Unlike the laws of the polished and learned Eomans, the cruel provisions of which allowed criminals, and even witnesses in some cases, to be put to the torture, for the purpose of forcing a confession, ours, m. most commendable contrast, are fashioned in a spirit more justó, and humane.
The confession of Francis, against objections, should not have gone to the jury.
The eighth instruction asked by the defendants was the following:
“ It is essential, in all criminal prosecutions, that the name of the party injured should be proved as charged in the indictment. and if the proof shows that the robbery was committed on Isaac B. Randolph, and not on Isaac R. Randolph, as charged in the indictment, they must acquit the defendants.”
The indictment charges the robbery to have been committed on Isaac R. Randolph; it was proved it was committed on Isaac B. Randolph, to whom the stolen money belonged.
In support of this objection, the counsel for plaintiffs in error contends that, although it was unnecessary to insert the initial “R” in the name of the party robbed, yet, as it was inserted, and it was not proved he was as well known by the one name as the other, the variance is fatal.'
We are not of this opinion. The middle initial might, as counsel admits, have been wholly omitted in the indictment, and it would have been good if the real Randolph was intended to be named in it as the owner of the property stolen. In law, the middle letter of a name is no part of the name. It may be dropped and resumed or changed at pleasure, and the only inquiry is one of substance, was he the real party robbed Erskine v. Davis, 25 Ill. 251.
The third instruction given for the people is as follows:
“In determining the guilt or innocence of the defendants, the jury are to consider the entire evidence in the case, but they are at liberty to disregard the statements of such witnesses (if any there be) as have been successfully impeached either by direct contradiction, or by proof of general bad character, nnlp.HR the statements of such witnesses have been corroborated by other evidence which has not been impeached.”
We see no substantial objection to this instruction. It comes within the rule often announced by this court. Crabtree v. Hagenbaugh, 25 Ill. 233.
The following is the sixth instruction :
“In considering the case the jury are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural. A doubt to justify an acquittal must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case, and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an- abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.”
We think the law in regard to the nature of the doubt which a jury may properly entertain, is here correctly stated'. Pate v. The People, 3 Gilm. 644. It is a familiar doctrine of the law in criminal cases, that if a reasonable doubt of the guilt of the prisoner is entertained, the jury have no discretion, but must acquit. Reins v. The People, 30 Ill. 256. Where there is an abiding conviction of the truth of the charge resting in the minds of the jury, there cannot be, at the same time, in the same mind, a reasonable doubt.
The following is the eighth instruction:
“ While the law requires that, to find the defendants guilty in this ease, the evidence should show that they were acting in concert, still it is not necessary that it should be positively proved that they actually met together and agreed to rob Randolph. Such concert may be proved from circumstances, and if, from all the evidence, the jury are satisfied that the defendants acted together, each aiding in his own way, it would be sufficient.”
This instruction is wholly unobjectionable, and is expressed in appropriate language, and is the law of the subject embraced in it.
The tenth instruction is this :
“In this case, what in law is known as an alibi—that is the defendants were at another place at the time of the commission of the robbery, is in part relied on by the defendants. To render the proof of an alibi satisfactory, the evidence must cover the whole time of the transaction in question so as to render it impossible that the defendants could have committed the act. It is not enough that it renders their guilt improbable merely.”
The last clause of this instruction vitiates the whole. The frame of the instruction in the preceding clauses is proper, and expresses the true doctrine in respect to the proof of an alibi. The theory of an alibi is, that the prisioner was so far removed from the scene of the crime, at the time of its commission, as to make it impossible that he could have committed it, but he is entitled to the benefit of any reasonable doubt the jury may/ entertain on this point. Hopper v. The People, 31 Ill. 393.
Instruction eleven is as follows:
a If the jury believe from evidence that the defendants or either of them upon the trial of this case have attempted to prove an ábibi, and failed, it is a circumstance of great weight against them, and proper to be considered by the jury in determining their guilt or innocence.”
There is a slight objection to this instruction, and it is this : i Failing to prove an alibi should have no greater weight to convince a jury of the guilt of the prisoner attempting it than the failure to prove any other important item of defense. A prisoner is entitled to rely on the facts in his favor, he may suppose he is able to prove, and if he is so unfortunate as to fail in his proof, it should not, generally speaking, operate to his prejudice.
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Mr. Justice Breese
delivered the opinion of the Court:
This was an indictment in the Circuit Court of Clark county for robbery. The prisoners were convicted and sentenced to the penitentiary. They bring the case here by writ of error, and assign for error the giving the third, sixth, eighth, tenth, "eleventh, thirteenth, fourteenth and fifteenth instructions on behalf of the people, in refusing the eighth instruction asked by the prisoners, in permitting the confession of Francis to go to the jury, and in overruling the motion for a new trial.
The record shows the confession of Francis was extorted from him by a high-handed act of violence and wrong and under circumstances of unfcsual cruelty. At about midnightf he was taken from his home by a body of armed and disguised men to a neighboring wood, and there hung upon a tree by the neck, when, taken down almost senseless, he confessed that he, with the other prisoners charged, committed the robbery, and detailed the circumstances.
The rule has been long settled in our law'that, while a free and voluntary confession of guilt is of the highest order of evidence, one extorted is never received. Unlike the laws of the polished and learned Eomans, the cruel provisions of which allowed criminals, and even witnesses in some cases, to be put to the torture, for the purpose of forcing a confession, ours, m. most commendable contrast, are fashioned in a spirit more justó, and humane.
The confession of Francis, against objections, should not have gone to the jury.
The eighth instruction asked by the defendants was the following:
“ It is essential, in all criminal prosecutions, that the name of the party injured should be proved as charged in the indictment. and if the proof shows that the robbery was committed on Isaac B. Randolph, and not on Isaac R. Randolph, as charged in the indictment, they must acquit the defendants.”
The indictment charges the robbery to have been committed on Isaac R. Randolph; it was proved it was committed on Isaac B. Randolph, to whom the stolen money belonged.
In support of this objection, the counsel for plaintiffs in error contends that, although it was unnecessary to insert the initial “R” in the name of the party robbed, yet, as it was inserted, and it was not proved he was as well known by the one name as the other, the variance is fatal.'
We are not of this opinion. The middle initial might, as counsel admits, have been wholly omitted in the indictment, and it would have been good if the real Randolph was intended to be named in it as the owner of the property stolen. In law, the middle letter of a name is no part of the name. It may be dropped and resumed or changed at pleasure, and the only inquiry is one of substance, was he the real party robbed Erskine v. Davis, 25 Ill. 251.
The third instruction given for the people is as follows:
“In determining the guilt or innocence of the defendants, the jury are to consider the entire evidence in the case, but they are at liberty to disregard the statements of such witnesses (if any there be) as have been successfully impeached either by direct contradiction, or by proof of general bad character, nnlp.HR the statements of such witnesses have been corroborated by other evidence which has not been impeached.”
We see no substantial objection to this instruction. It comes within the rule often announced by this court. Crabtree v. Hagenbaugh, 25 Ill. 233.
The following is the sixth instruction :
“In considering the case the jury are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural. A doubt to justify an acquittal must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case, and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an- abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.”
We think the law in regard to the nature of the doubt which a jury may properly entertain, is here correctly stated'. Pate v. The People, 3 Gilm. 644. It is a familiar doctrine of the law in criminal cases, that if a reasonable doubt of the guilt of the prisoner is entertained, the jury have no discretion, but must acquit. Reins v. The People, 30 Ill. 256. Where there is an abiding conviction of the truth of the charge resting in the minds of the jury, there cannot be, at the same time, in the same mind, a reasonable doubt.
The following is the eighth instruction:
“ While the law requires that, to find the defendants guilty in this ease, the evidence should show that they were acting in concert, still it is not necessary that it should be positively proved that they actually met together and agreed to rob Randolph. Such concert may be proved from circumstances, and if, from all the evidence, the jury are satisfied that the defendants acted together, each aiding in his own way, it would be sufficient.”
This instruction is wholly unobjectionable, and is expressed in appropriate language, and is the law of the subject embraced in it.
The tenth instruction is this :
“In this case, what in law is known as an alibi—that is the defendants were at another place at the time of the commission of the robbery, is in part relied on by the defendants. To render the proof of an alibi satisfactory, the evidence must cover the whole time of the transaction in question so as to render it impossible that the defendants could have committed the act. It is not enough that it renders their guilt improbable merely.”
The last clause of this instruction vitiates the whole. The frame of the instruction in the preceding clauses is proper, and expresses the true doctrine in respect to the proof of an alibi. The theory of an alibi is, that the prisioner was so far removed from the scene of the crime, at the time of its commission, as to make it impossible that he could have committed it, but he is entitled to the benefit of any reasonable doubt the jury may/ entertain on this point. Hopper v. The People, 31 Ill. 393.
Instruction eleven is as follows:
a If the jury believe from evidence that the defendants or either of them upon the trial of this case have attempted to prove an ábibi, and failed, it is a circumstance of great weight against them, and proper to be considered by the jury in determining their guilt or innocence.”
There is a slight objection to this instruction, and it is this : i Failing to prove an alibi should have no greater weight to convince a jury of the guilt of the prisoner attempting it than the failure to prove any other important item of defense. A prisoner is entitled to rely on the facts in his favor, he may suppose he is able to prove, and if he is so unfortunate as to fail in his proof, it should not, generally speaking, operate to his prejudice. Proof of an alibi is a defense as legitimate as any other, and the court should not say, lest it prejudice the minds of the jury, that failing to establish it, should have great weight against the prisoner, for that is the import of thisi instruction.
The thirteenth instruction is as follows:
“ The jury has no right to presume or believe that other persons than those on trial might have committed the robbery unless such presumption or belief arises from the evidence given on the trial, and the fact that other persons might have committed the robbery does not necessarily exclude legal evidence of the guilt of the accused and upon which the jury would be bound to find the defendants guilty.”
This instruction is objectionable. It is not perspicuous, and, by giving it, the jury might have been confused and misled.
The fourteenth instruction has reference, we presume, to a portion of the testimony of several of the witnesses, as to the conduct of Miller when he was taken into custody. They testified that he, on that occasion, took a pocket-book out of his pocket and slipped it under his coat to his wife, standing behind him, and then said they might search him, he saying that he had nothing but pocket-change. The following is the instruction:
“The suppression, destruction or concealment of evidence against the accused is a circumstance from which the jury should draw the strongest inference of guilt, because if he were innocent he would have no interest in concealing, or destroying, or suppressing such testimony.”
The instruction should have omitted the ejoithet “ strongest,” and the reason or argument of the proposition. Such destruction or concealment of evidence might, doubtless, warrant the jury in unfavorable inferences against a prisoner who has done such an act, and be some evidence of guilt. We would not reverse á judgment by reason of the error in this instruction, but deem it proper to say that the attoñieys for the State should ask very few instructions, and those as plain and simple as language can make them.
The fifteenth instruction is not materially objectionable. If the word “ great ” was omitted it would be unexceptionable. It is as follows:
“If the jury believe from evidence that' Randolph was robbed by persons residing or staying in or near his immediate neighborhood, the circumstance of the description of the defendants by the evidence that there are no other persons staying in or near his neighborhood answering to that description are of great weight against such of the accused thus described.”
The remaining error assigned is in overruling the motion for a new trial, the verdict being, as alleged, contrary to the evidence.
We think the testimony of Randolph, with other facts, which were properly before the jury, to which the confession of Francis led, were sufficient to establish the guilt of all the parties, provided the jury discredited the testimony of the witnesses for the prisoners, which it would seem they were justified in doing by the testimony of the impeaching witnesses, and by the established facts of the case. But as we are unable to say what effect the extorted confession of Francis may have had upon the jury to lead their minds to the conclusion they have reached, connected with the other testimony, we are bound to reverse the judgment, on the principle that material evidence was before them, which was not properly there.
As to the misconduct of the officers in suffering individual jurors to separate from the panel after the case was committed to them, in the absence of undue influences upon them while so separate, we would not for that reason set aside a verdict otherwise proper. The officer deserves the punishment of the court, but there is no proof the prisoners have been prejudiced by his misconduct. Davis v. The People, 19 Ill. 78; Reins v. The People, 30 id. 256.
For the reasons given, the judgment must be reversed and the cause remanded, that a new trial may be had.
Judgment reversed.