| Ill. App. Ct. | Nov 28, 1902
delivered the opinion of the court.
In every criminal trial the defendant is presumed to be innocent until' he is fully proven to be guilty. A mere preponderance of the evidence, as is the rule in civil cases, is not sufficient. Every material allegation in the indictment must be proved beyond a reasonable doubt. Unless a different rule is established by statute, this is the universal rule in criminal cases, whether they be felonies or be misdemeanors. Stewart v. State, 44 Ind. 237" date_filed="1873-11-15" court="Ind." case_name="Stewart v. State">44 Ind. 237; Fuller v. State, 12 Ohio St. 433; 1 Starkie on Ev., 451.
The General Assembly has made the abandonment of his wife by a husband a misdemeanor (Secs. 489 and 490, Ch. 38, Hurd’s R. S. 1901), and as to the evidence required in such cases, it provides by the next following section (491) that
“Ho other evidence shall be required to prove the marriage of such husband and wife * * * than is or shall be required to prove said facts in a civil action, and such husband or wife shall be a competent witness to testify * * * to any and all matters relevant thereto, including the facts of such marriage.”
A majority of the court are of the opinion that this last section does not change the rule as to the quantum of evidence necessary for conviction in criminal cases; that it applies to the quality of proof in such cases. This being so, the instruction above quoted states the law incorrectly, and the giving of it to the jury is reversible error.
As this case must go to another jury, we refrain from commenting upon the evidence before us.
The judgment of the Criminal Court is reversed and the cause is remanded.
I can not agree with the majority of the court in the construction of said section 491. I think it relates to the quantum of proof, and that therefore the instruction excepted to was properly given.