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any motive he could have had for committing the homicide, unless it be, as contended by the Attorney General, that the plaintiff in error caused the fires himself and was afraid Schaffner knew or suspected it and might give information at the fire marshal's office which would involve plaintiff in error in trouble.

Several errors are relied upon, among them that the evidence is insufficient, that the court erred in the admission of evidence, in refusing instructions asked by plaintiff in error, in permitting misconduct on the part of the State's attorney in the cross-examination of plaintiff in error, but the principal assignment of error discussed and relied upon is the action of the court in instructing the jury, on behalf of the prosecution, upon the subject of manslaughter. The third instruction given for the People is in the language of section 143 of the Criminal Code, defining manslaughter; the seventh instruction is in the language of section 144 of the Criminal Code, defining the circumstances of a homicide which would distinguish it or reduce it from murder to manslaughter; the sixteenth instruction told the jury that under the indictment they might find the defendant guilty of murder or of manslaughter, or not guilty; the thirtieth instructed the jury as to the forms of verdicts, and contained a form of verdict to be used in case the jury found plaintiff in error guilty of manslaughter. Plaintiff in error contends that there was not a scintilla of evidence upon which to base instructions upon the subject of manslaughter; that from the proof but two possible conclusions can be arrived at: either that the deceased committed suicide, or the plaintiff in error deliberately murdered him in cold blood.

If the evidence justified the conclusion that plaintiff in error committed the homicide, it must be conceded there was no proof of any circumstances to reduce the crime from murder to manslaughter. The instructions given on the subject of manslaughter stated correct propositions of law, and the objection to them is that there was no evidence upon which to base them. It is fundamental that upon the trial of an issue of fact it is erroneous to give instructions not based upon any evidence. Only such instructions should be given as are based upon legitimate evidence. If irrelevant instructions are given, correctly stating abstract principles of law calculated to mislead the jury, it will constitute reversible error. (Humphreys v. Collier, i Scam. 47; Coughlin v. People, 18 Ill. 266; Fidler v. McKinley, 21 id. 308; Healy v. People, 163 id. 372; Chicago, Rock Island and Pacific Railway Co. v. Rathneau, 225 id. 278.) It is the law that under an indictment for murder the defendant may be convicted of manslaughter, but this does not mean that a jury is authorized or warranted in finding a defendant guilty of manslaughter where there is no evidence tending to prove the commission of that crime, but where it is conclusively proven that if any crime was committed it was willful and deliberate murder. In Koser v. People, 224 Ill. 201, in discussing that subject, this court said: ' “Of course, the jury may,—that is, they have the power,—find a defendant guilty of manslaughter where the evidence proves a case of murder, but it is not the intention in granting this power to a jury that it will be abused and perverted by convicting of manslaughter in a case where the evidence shows a willful and malicious murder. It might be argued that because a jury has the power to acquit even where the evidence proves guilt, therefore the court ought not to instruct the jury that it was a duty to convict where the evidence proves guilt beyond a reasonable doubt. The law pronounces homicides committed with malice aforethought murder, and it is not error to embody all the elements of such crime in an instruction, and tell the jury that if those elements are proven beyond a reasonable doubt, the duty of the jury, under the law and under their oaths, is to convict of murder."

We have been referred to and have found no case in this State in which the precise question here involved was decided. In Belt v. People, 97 Ill. 461, defendant was indicted for murder. The homicide was committed in a fight in which defendant received a cut on the forehead, which a physician who examined it testified was in his opinion made with a metallic substance. Defendant claimed it was done with metallic knuckles. He was found guilty of manslaughter and judgment rendered upon the verdict sentencing him to the penitentiary. The trial court instructed the jury that under the indictment defendant could be found guilty of murder or manslaughter and what punishment was fixed by law for each of said offenses. That instruction was complained of in this court as conveying the intimation to the jury that upon the evidence in the case they could find the defendant guilty of either murder or manslaughter. The instruction was held not erroneous, but it clearly appears that there was evidence in the case upon which to properly base the instruction.

In Davis v. People, 114 III. 86, the defendant was indicted for murder and convicted of manslaughter. The killing occurred in the course of a heated quarrel and the evidence was conflicting as to the circumstances of the altercation and the provocation. The court instructed the jury as to the definition of manslaughter, in the language of section 143 of the Criminal Code. It was objected in this court that the instruction made no attempt to inform the jury as to what constituted involuntary manslaughter. This court said: “The case made by the evidence was either murder or voluntary manslaughter. It contained not a single element, other than the killing itself, of involuntary manslaughter, and had the court specifically defined involuntary manslaughter it would have answered no good purpose. It would have directed the attention of the jury to a principle of law not applicable to the facts of the case,

and the result would have been to confuse rather than to enlighten them on the issue they were to try.”

Barnett v. People, 54 Ill. 325, was an indictment for murder. The first trial of the case resulted in a verdict finding the defendant guilty of manslaughter. The verdict was set aside and a new trial granted. On the second trial he was convicted of manslaughter and his punishment fixed at imprisonment in the penitentiary for ten years. It was conceded by the prosecution on the trial that defendant had been acquitted of murder on the first trial and could only be convicted of manslaughter on the second trial. At the instance of the prosecution the court instructed the jury that if they believed, from the evidence, the defendant was guilty of murder that would not justify them in acquitting him of manslaughter. This court said in ordinary cases such an instruction would be erroneous but it was not so when considered in the light of the record in that case, from which it appeared that on a previous trial the defendant had been convicted of manslaughter and acquitted of murder, and could not, therefore, be convicted of murder on the second trial but he might be tried and convicted of manslaughter, and that although the proof might show the crime to have been murder the jury could not find him guilty of that crime, but might, under the condition of the record, find him guilty of manslaughter.

It would seem to follow that if it would be erroneous on the first trial of a defendant charged with murder to instruct the jury that even if they believed, from the evidence, defendant was guilty of murder they might find him guilty of manslaughter, it would be equally erroneous to instruct a jury in a trial for murder, where there was not the slightest evidence to indicate that the crime might have been manslaughter but where all the evidence showed that if the defendant committed the homicide it was willful and deliberate murder, the defendant might be found guilty of manslaughter. If there had been no instructions given on the subject of manslaughter but the jury had found defendant guilty of that crime, the judgment would not be reversed because the jury should have found the defendant guilty of murder. A reviewing court would not reverse a judgment of conviction of the lesser offense because it should have been, in the opinion of the court, for the greater offense.

But that is not the situation here presented. As we have said, all the proof shows if plaintiff in error committed the homicide he was guilty of murder, and there is not one particle of evidence to justify reducing the crime to manslaughter. The instructions on the subject of manslaughter were an intimation to the jury that if they were not satisfied plaintiff in error was guilty of the only crime the evidence tended to show he could have committed they might find him guilty of a lesser offense, notwithstanding there was no evidence to sustain the finding of guilt of said lesser offense. In State v. Punshon, 124 Mo. 448, State v. Hollingsworth, 156 id. 178, Virgil v. State, 36 Miss. 317, Dresback v. State, 38 Ohio St. 365, Coleman v. State, 121 Ga. 594, and Flynn v. State, 43 Tex. Crim. 407,--all indictments for murder, it was held erroneous to instruct the jury, where all the evidence tended to prove one offense, that the defendant might be found guilty of a lesser crime. It would have been clearly wrong for the court to have instructed the jury, at the request of plaintiff in error, that they might find him not guilty if they believed the killing was done in self-defense, and it would seem equally wrong, under the evidence in the case, to instruct the jury, at the request of the prosecution, that they might find plaintiff in error guilty of manslaughter.

We are of opinion the court erred in giving the instructions upon the subject of manslaughter, and for that error the judgment is reversed and the cause remanded.

Reversed and remanded.

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