BROWN, J.

The plaintiff in error was indicted for the murder of Owen Thompson, and tried and convicted at a Court of Oyer and Terminer held in and for the county of Albany. Several exceptions were taken by the prisoner's counsel in the progress of the trial, but I shall only examine those which were taken to the charge of the court. These present questions of some difficulty, and that they may be more clearly seen and apprehended it will be well to advert to the leading features of the case as disclosed by the testimony.

In September, 1864, there was at West Albany, in the county of Albany, a place called Bull's Head, kept as a tavern and cattle yard, where drovers and persons dealing in cattle were in the habit of congregating. During the afternoon of Thursday, the 15th of September, 1864, the deceased, Owen Thompson, who resided in the city of New York, arrived at the Bull's Head, his ostensible business being to purchase cattle. He remained there the next day (Friday, the 16th), and was seen on the stoop of the tavern or hotel as late as 20 minutes after 8 o'clock in the evening of the 16th, and was not seen again until the next morning at 7 o'clock, when he was discovered lying in a lonely place in a lane remote from the house, and within a few feet from the gate to cattle yard No. 35, having in the meantime received several severe wounds upon the back of his head, causing an extensive fracture around the base of the brain, and his pocket-book, containing a considerable sum of money, abstracted from his pocket on the inside of his vest. He died from these wounds two days afterwards, being unconscious and unable to speak during that time. On Friday morning, the 16th, a young man, a stranger, appeared at the Bull's Head inquiring whether a man had staid there who had driven in cattle from Saratoga county, and representing that he expected eighteen or twenty head of cattle which his uncle was driving in from Saratoga. He applied to the yard keeper to hire a cattle yard. He was offered several, and amongst others yard No. 14. He said it was too large. He finally hired No. 35, which is larger than No. 14 and more remote from the house. The cattle he spoke of did not arrive. He disappeared from the hotel some time during the night of the 16th, and did not return. The last seen of him was in company with the deceased, Owen Thompson, at 20 minutes past 8 o'clock in the evening, upon the stoop of the hotel. This was the last time Thompson was seen before he was found with his skull fractured. This person was seen a number of times in company and in conversation with the deceased during the day, and heard him speak of having a large sum of money upon his person, and saw him several times exhibit his pocket-book with apparently a large sum of money in it. The circumstances rendered it highly probable, and the jury would have been justified in the presumption (and this was the theory of the prosecution), that this man (whoever he was) could be no other than the murderer of Thompson. Eight witnesses were called and examined on the part of the prosecution to establish the identity of the prisoner as the same person who was last seen in company with the deceased at 20 minutes past 8 o'clock in the evening of the 16th of September. Five of them were persons attached to the hotel, and three others were cattle dealers, who had been in company with the suspected person at some time during the day. The man was a stranger to all of them, but some saw more of him than others, and had better opportunities for observation. Some spoke hesitatingly on the subject, and others with positiveness.

The keeper of the hotel testified: "I saw a man at West Albany on the day Thompson was killed, who looked like Gordon; I don't mean to swear positively that the prisoner is the same man I saw at West Albany September 16th." The cattle yard keeper testified: "The prisoner resembles the man." And on his cross-examination, "the young man did not appear as tall as the prisoner, and appeared fuller in the face; will not swear positively that the prisoner is the young man." A female servant employed in the house, testified: "The prisoner looks like that young man." The barber of the hotel, who saw the person repeatedly during the day, testified: "The prisoner is the man;" and on his cross-examination, "prisoner looks like the young man; I don't know as I can be positive that this person is the man I saw at West Albany September 16th; I recognized him as he was brought a prisoner to West Albany." A cattle dealer named Hoag testified that he "conversed with the young man about cattle coming in from Saratoga; the prisoner resembles that young man; my best judgment is that the prisoner is the same young man; have formed a conviction from my knowledge that this (the prisoner) is the man; will not swear positively that he is the man." A laborer employed in the hotel, named Welsh, and who was the person who last saw the young man and Thompson conversing together, testified: "The prisoner is the man; saw him on the car at Schenectady; I told the crowd there I thought he was not the man; I told the crowd so in order to get out of it; from the first time I saw him after his arrest I had made up my mind he was the man." A cattle dealer named Martin testified: "I think prisoner is the man; I won't swear positively he is the man." Another cattle dealer named Genter testified: "The prisoner is the man I saw at West Albany." This witness procured the arrest of Gordon at Schenectady, just four weeks after the homicide. He testified in substance, that he was going to his home at Fort Plain on the Central railroad cars. A person inquired of the conductor if he would be in Schenectady in time to take the train to Ballston. He thought he knew the voice, and turned round to see who it was, he recognized him (the prisoner) to be the same man he saw with Thompson at West Albany. "He smiled, and I returned it; he said, friend, I think I've seen you before; han't I seen you behind a bar? I told him I kept a public house at Fly Bush, also an eating saloon at Fort Plain; he said he had never been at Fly Bush, and I think he said he had never been at Fort Plain; then, said I, friend, I can tell you where you saw me, you saw me at West Albany; I said I was a cattle dealer, and he was the young man who said he had 18 two-year old steers coming from Saratoga from his uncle; he gave me no answer; I saw his color changed; he looked pale and looked out of the window; I could not get his eye again while he was in the car; I made up my mind he was the man I saw with Thompson at West Albany." On the arrival of the train at Schenectady he gave information to the police officers which led to the prisoner's arrest. This was the substance of the proof for the prosecution to identify Gordon as the same man who was at West Albany on the day and evening of the murder. There was also some attempt at identification by a defect in the front teeth, but the proof was of no great weight. The prisoner gave no evidence whatever, nor made any attempt to prove where he was on the 16th of September. Neither was there any proof to show affirmatively that if he was not the man he could have shown by any witness that he was at some other place. The evidence showed that he had been out of employment from the spring of 1864; that he did not live with his wife at Greenbush, opposite Albany; that he had no regular abiding place, boarding at obscure taverns in Albany for a few days at a time, and then leaving on being asked to pay his bills, and leaving them unpaid; idling away his time in the bar-rooms in Greenbush and Albany. Prior to the spring of 1864 his place of residence was in Greenbush, and after that he lived a few days at a time in Albany down to about the time of the homicide. It was upon this point of the identification of the prisoner with the person seen at West Albany on the 16th of September, and whom the evidence presumptively pointed out as the murderer of Thompson, to which the principal exception to the charge of the court was directed.

It was shown, also, that down to the time of the commission of the homicide the prisoner was wholly destitute of pecuniary means. That the morning following the murder, or rather the same evening, he appeared at Schenectady, when he purchased and paid for an entire new suit of clothes; and on the evening of Saturday, the 17th of September, was seen to have in his pocket-book $1,020 or $1,040 in money. As to how he came by this sudden wealth he gave various accounts to different persons. There was no evidence, however, except of very inconclusive character, identifying any portion of the money in his possession as ever having been in the possession of the deceased. The proof on this point was this: On the afternoon of the 14th September Thompson exchanged some uncurrent funds at the banking house of Morford Co. in New York, and received their check on the Park Bank for $750. This check was presented for payment on the morning of the 15th September by a person whom the teller of the bank did not know. The teller stated his impression that he paid the check in a $500 national bill, two $100 bills of the Park Bank and the rest in small bills, but had no recollection distinct from his impression as to the kind of money paid. About the 14th of October the prisoner purchased a pair of horses at Saratoga, and paid for them in part with two $100 bills of the Park Bank. This evidence failed to show that the $1,040 in the prisoner's possession immediately after the murder was the same description of money that the deceased had upon his person at the time of the murder. It showed, in connection with the evidence already referred to, the sudden change in the pecuniary condition of the prisoner, at or about the time of the homicide, from extreme poverty and destitution to comparative affluence and the possession of a very considerable sum of money; but nothing more. The prisoner offered no explanation of this change in his circumstances, nor did he attempt to show how or by what means he had suddenly acquired this sum of money. With this general view of the evidence we shall be able to estimate the force of the exceptions to the charge of the judge.

If we assume for the moment that the proof was not sufficient to establish the identity of the prisoner with the young man last seen with the deceased Thompson on the night of the 16th of September, then there was clearly not proof enough to justify a conviction, for the whole fabric of circumstantial evidence upon which the prosecution claimed a conviction fell to the ground. Until it was shown that the prisoner was in the immediate vicinity of the murder at the time it was effected, and thus had the opportunity to commit it, as the money could not be identified the material fact to authorize a conviction was wanting. But concede that the identity of the prisoner with the young man seen with Thompson at the time referred to, and the aspect of the case was changed, and the following fearful array of circumstances confronted the prisoner: 1st. The death of Thompson by violence by the gate opposite cattle yard No. 35, and the abstraction from his person of his pocket-book with a large sum of money. 2d. The last time Thompson was seen alive was in company with the prisoner at 20 minutes past 8 o'clock on the night of the murder. 3d. The prisoner's disappearance from West Albany, and his appearance at Schenectady the same night, where he purchased an entire new suit of clothes. 4th. His poverty and destitution for a long time before and up to the time of the murder, and his possession of $1,040 on the night after that event. 5th. His false representations as to the cattle he expected to come from Saratoga; his hiring cattle yard No. 35, which was in a lonely place remote from the tavern or hotel. 6th. His knowledge that Thompson had and carried upon his person at the time a large sum of money; and his omission to show where he received the $1,040, or to account for his changed pecuniary condition. The whole case, it seems to me, depended upon the question of the fact of the identity of the prisoner with the man last seen with Owen Thompson, and the existence of that fact was to be determined by the jury. In the charge, after stating the conclusiveness of the proof that Thompson came to his death by blows inflicted by some person, and that the main question to try was whether the prisoner inflicted the blows, the judge proceeded to say that "although many facts were proved, there was little contradictory evidence, and much of the testimony might be passed over rapidly, and the mind directed to the main fact that controls the case, viz.: Whether the prisoner was at West Albany on the 16th of September." He then went over the testimony given by the eight witnesses for the prosecution, on the point of identity, with some particularity, and closed the review in these words: "Is there any conflicting testimony here upon this question of identity? Questions of identity may be such as to require a very careful examination. But when it is in the power of a party, if he is not the man, to show where he was on that day, at some time of that whole day — the whole of Friday from 7 o'clock in the morning until half-past 8 in the evening — he living here in Albany, perfectly well known — living here for years, and yet he gives no sort of evidence of any character or description to show that he was not the man, that which before may have been regarded as highly probable ripens into certainty. If you believe, gentlemen, that this man living here in the city of Albany, perfectly well known here, if he had not been there on that Friday at all — that 16th day of September; if you believe that in that case he could have shown it by some witness, because the matter was soon called forth into notice, it being only a month from the time of the murder to the arrest; if he could have shown it by some witness, and has not done it, what was before not absolute then ripens into certainty." The counsel for the prisoner excepted, and the exception was overruled.

In another part of the charge the judge reiterates the same proposition, and particularly in its application to the money seen in the prisoner's possession, in these words: "You perceive this is a case controlled by circumstances. If the prisoner was not at West Albany on the day of that transaction he has had abundant opportunity to show it. He might in that case have called witnesses to prove he was not there, but elsewhere on that day, but he has not done it. He has had abundant opportunity, also, of showing where he got that money, but he has not done it. Circumstantial evidence of this sort, when left unexplained, if in the power of the prisoner to explain if not true, becomes of a conclusive character." There was also an exception to this part of the charge. When the judge told the jury, that if the prisoner was not at West Albany on the day of the murder, he had abundant opportunity to show it, and also that he had abundant opportunity of showing where he got the money. If he intended the jury to understand he had had an opportunity to examine witnesses on that point, it was well enough. But if he intended to be understood that it was in the power of the prisoner to show where he was and where he got the money, he assumed the existence of a fact which might be true, but which was not established by the evidence. But let that pass.

The points presented by the exceptions to the charge are not novel. They frequently arise in the trial of actions, both civil and criminal. A prisoner pressed by the force of accumulated circumstances may not unfrequently find himself in the position where he is required to account for his whereabouts on a given day, or to show how he became possessed of a given sum of money or article of personal property. The omission to produce such evidence has never been regarded as absolute and conclusive evidence of the fact in dispute. Neither the elementary writers nor the adjudicated cases furnish any such rule of evidence. The absence of such evidence, especially when it appears to be in the power of the prisoner to furnish it, creates a strong presumption of his guilt, a strong inference against him, and is a circumstance greatly corroborative of the truth of the evidence given upon the other side. In a doubtful case it would justify the jury in resolving the doubt against him. To this effect are the cases of The People v. Mc Whorter (4 Barb. S.C., 438); The People v. Bodine (1 Denio, 281); The People v. Dyle ( 21 N.Y., 578; vide also, 2 Stark., 6th Am. ed., 685; 3 Black. Com., 371); Braithwaite v. Coleman (4 Nev. Man., 654). We have been referred to no adjudicated case where the judge upon the trial of a criminal offense has instructed the jury that the absence of such proof converts what was before not absolute, but only inferential and circumstantial, into that which is certain and conclusive, and which instruction has been affirmed by the court in bank. Such a rule is unnatural and illogical, and fatal alike to innocence and to guilt. It is easy to imagine a case where it would be impossible for a prisoner upon his trial to show his whereabouts on a given day, and a case also where he is guiltless of the crime charged, and where prudence and safety in regard to other transactions might induce silence and suppression of the evidence of his presence or absence, as the case might be. But the rule which treats the omission to produce such evidence, as strongly corroborative, as strongly suspicious and inferential only, is reasonable as well as humane, and a safer and surer guide to a just result. When the learned judge, therefore, instructed the jury that Gordon's omission to show where he was on Friday, the 16th of September, rendered what was before not absolute into certainty, and that the circumstances given in evidence upon the trial unexplained (if in the power of the prisoner to explain) became of a conclusive character, we think he went further than the law of evidence will justify, and committed an error which might prejudice the prisoner. It was in effect saying that there was no longer any room for doubt or hesitation, for the terms certainty and conclusiveness can mean nothing less. In their application to the weight of evidence, they import little less than absolute verity. The law attributes no such consequences to the omission of a prisoner upon the trial of a capital offense to produce proof of his whereabouts upon the day when the crime charged was committed.

There is no line of distinction better defined in the constitution of our courts of criminal jurisdiction than that which separates the province of the court from that of the jury. Ad questionem juris respondeant judices, ad questionem facti respondeant juratores, is the law maxim which defines the line of separation. An intelligent and conscientious jury will look to the court, in the trial of a capital case, with confidence and reliance, for instruction and guidance as to the law of the case, and all things exclusively within his province. In addition to their obligation to accept the law as he pronounces it, they naturally trust to his superior knowledge and his larger experience. It was a part of the duty of the judge, in this instance, to speak to the jury upon the character and force of the evidence given upon the trial, and specially to direct their attention to the circumstances upon which the prosecution relied, in their due order and connection with one another and with the prisoner, and the degree of weight to be given to each particular circumstance. This was done, with a method and perspicuity seldom surpassed. Nothing, however, can be plainer and more indisputable, I think, than the proposition that the identity of the prisoner with the young man in company with the deceased Thompson on the night of the murder was a question not within the province of the court. It was one upon which it could utter no response and make no determination. It was a question addressed exclusively to the jury, to be answered by them upon their own responsibility, and also upon the proofs and circumstances adduced by the prosecution, and also upon those which the prisoner, in the nature of things, might have adduced, but did not. To hold otherwise would be to disregard a fundamental principle which obtains in the organization of the common law courts, and deprive the trial by jury of its principal virtue. When the jury were therefore told from the bench that the absence of the proof referred to (if it was in the power of the prisoner to produce it), rendered the evidence given by the prosecution upon the principal question certain and conclusive, there was nothing upon that point left for them to determine. For if the instruction given from the bench was right, the law had already determined it for them. They could have regarded it in no other way; and, accepting the evidence in the sense of certainty and conclusiveness, they decided the question of identity against the prisoner.

The judgment of the Supreme Court and the Court of Oyer and Terminer should be reversed, and a new trial ordered.

All the judges concurred, except PORTER, J., who took no part in the decision, and CAMPBELL, J., who dissented.