#### The People of the State of Illinois, Plaintiff-Appellee, vs. Fred L. Agnew, Defendant-Appellant.

(No. 67-73;

Fifth District

August 3, 1971.

Morton Zwick, Executive Director Illinois Defender Project, of Chicago, (Matthew J. Moran, of counsel,) for appellant.

Robert H. Rice, State’s Attorney, of Belleville, for the People.

Mr. JUSTICE MORAN

delivered the opinion of the court:

Fred L. Agnew, defendant-appellant, was convicted of the crimes of rape and armed robbery in a jury trial in the circuit court of St. Clair County in a case that was very close on the facts.

He claims in this appeal that the trial court committed reversible error in giving the following instruction:

> 'The Court instructs the jury, that a doubt to justify an acquittal must be reasonable, and it must arise from a candid and impartial consideration of all the evidence in the case; and 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.

> *2If, 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.”

In People v. Cagle, 41 Ill.2d 528, the Supreme Court held the giving of this instruction in almost identical language to be reversible error. See also, People v. Manley,—Ill.App.2d—, 5th District, filed July 16, 1971.

For the foregoing reasons the judgment of the circuit court of St. Clair County is reversed and this case is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and CREBS, JJ., concur.