#### Napoleon B. Miller v. The People of the State of Illinois.

Criminal law—discharge of prisoner on reversal. Where the evidence utterly fails to sustain, a conviction in a criminal case, and it is apparent from the record that no conviction can be had on another trial, the judgment will be reversed and the defendant discharged at once.

Writ of.Error to the Circuit Court of Lee countyj the Hon. William Brown, Judge, presiding.

Mr. D. D. O’Brien, for the plaintiff in error.

Per Curiam:

This is an indictment found by the grand jurors of the county of Lee, against Miller, charging him with an assault with intent to commit a rape upon the person of Edith Swabe. The accused was tried and found guilty in the circuit court of that county, and, after the overruling of a motion for a new trial, he was sentenced to imprisonment in the penitentiary upon the finding.

The whole of the evidence is set out in the record. After a careful examination of every part of it, we fail to find evidence to sustain the finding. It could profit no one to review it. It is sufficient to say, that taking every word of the testimony given against the prisoner as true, and taking as true every inference against the accused which can reasonably be deduced therefrom, the evidence utterly fails to establish the charge. The circuit court erred in refusing to grant a new trial. For this error the judgment must be reversed.

*410It is apparent from the record that no conviction can, upon any view of the case, be had on another trial. The case, therefore, is not remanded, but it is ordered that the prisoner, Napoleon B. Miller, be at once discharged from imprisonment.

Judgment reversed.