#### The People of the State of Illinois, Defendant in Error, v. Thomas Kennedy et al., Plaintiff in Error.

Gen. No. 14,844.

Evidence—when confession insufficient to establish corpus delicti. Confessions, unsupported by evidence or by circumstances tending to corroborate the facts contained in such confessions (but on the contrary denied in toto by each defendant), do not constitute prima facie proof of the corpus delicti without which no conviction can be sustained.

Criminal prosecution for arson. Error to the Criminal Court of Cook county; the Hon. William H. McSubely, Judge, presiding.

Heard in this court at the October term, 1908.

Reversed and remanded.

Opinion filed October 25, 1909.

W. G. Anderson, for plaintiffs in error; George H. Sugrue, of counsel.

John J. Healy, for defendant in error; John T. Fleming and James J. Barbour, of counsel.

Mr. Presiding Justice Holdom

delivered the opinion of the court.

The writ of error sued out in this cause brings before us for review a judgment of conviction against all the plaintiffs in error and one Dempsey, and we are asked to reverse such judgment as to plaintiffs in error. The defendants were jointly indicted, with said Dempsey, for a conspiracy to commit arson. The indictment charges, inter alia, that defendants “did unlawfully, feloniously, fraudulently and wilfully, with the fraudulent and malicious intent to then and there wrongfully and wickedly commit a felony, to-wit, arson, conspire and agree together with each other to set fire to and bum a certain building known and described as No. 762 West Lake street, in the city of Chicago, there situated, the property of Oscar M. Brady and Oscar F. Brady, owners in common of said building, contrary to the statute and against the peace and *572dignity of the same people of the state of Illinois.” Motions for a new trial and in arrest of judgment were made and overruled. Dempsey was summarily disposed of with a fine, which he paid, and his co-defendants, now before us, were sentenced to serve an indeterminate term in the penitentiary, according to the statutory provisions for those found guilty of such crime. The State concedes that the defendant Mack should have been granted a new trial, and makes no objection to the reversal of the judgment of the Criminal Court as to him. We have no disposition to thwart the purpose of the State as to the defendant Mack and shall therefore, in this opinion, treat him as eliminated from the case, notwithstanding it will clearly appear hereafter that were the State pressing for an affirmance as to Mack, still the judgment as to him must be reversed.

Three grounds are urged as necessitating a reversal of the convictions: First, that the indictment is defective, second, that the evidence is insufficient to establish the corpus delicti, and, third, error in instructions to the jury. A careful analysis of the indictment convinces us that it sufficiently charges a conspiracy to commit a felony. The testimony of the State is limited to the alleged confessions of the defendants, made to certain police officers who swore to them categorically, but all of which the defendants firmly, positively and unequivocally denied when testifying in their own defense. There was no independent evidence of the conspiracy to support these confessions sworn to have been made by them to the police officers. Nor is there any evidence aside from these confessions that any conspiracy was entered into at any time or place by the defendants, or any two of them. There is testimony as to two fires at the building set forth in the indictment, one each in the months of October and December, 1907, but there is no proof of any character that either of the defendants were in the vicinity of the burned premises at any date near or remote from the times *573when the fires occurred, and no evidence as to the origin or cause of either of the fires. Nor are there any circumstances inferable from any proof, aside from the claimed confessions, that any conspiracy was entered into or that either of the defendants had any part in causing the fires which took place on the premises mentioned in the indictment. No criminality is imputable to any of the defendants from the mere fact that fires occurred, without any evidence connecting them in some way or manner, directly or inferably, with those occurrences. Lacking proof of a conspiracy, the evidence is insufficient to support the conviction.

. The confessions, unsupported by evidence or by circumstances tending to corroborate the facts contained in such confessions (but on the contrary denied in toto by. each defendant), do not constitute prima facie proof of the corpus delicti, without' which no conviction can be sustained. The court say in Campbell v. The People, 159 Ill. 24: “It is, however, familiar law, frequently recognized by this court, that extra-judicial confessions of the commission of crimes, where such confessions are relied on to establish guilt, are not sufficient to authorize a judgment of conviction without other proof of the corpus delicti; but the corpus delicti should first be otherwise established, not, however, necessarily by direct evidence.” We regard this as a clear statement of the rule obtaining in this jurisdiction. Applying the test of such rule to the evidence in the record, it is apparently insufficient to support the judgment of conviction. South v. People, 98 ibid. 261; Williams v. People, 101 ibid. 382, 386; Bergen v. People, 17 ibid. 426.

So far as concerns these instructions which had in them some reference to the confessions of the defendants as proof of their guilt, or as tending to prove their guilt, they are erroneous, because they lacked supporting proof and were therefore improperly admitted in evidence.

The conviction of the plaintiffs in error not being *574warranted by the evidence, the judgment of the Criminal Court is reversed and the cause remanded for a new trial.

Reversed and remanded.