¶1In the charge of the court the following instruction occurs: “If you believe the offense was committed, as alleged, in this county and State, and if you further believe the defendant was the party committing the same, you will convict.” It is complained that this charge is errone*442ous in that it permits the jury to convict upon their belief, independent of the evidence; in other words, that the charge does not restrict the jury, as it should do, in any belief or conclusion they might form to such only as is generated by or flows directly from the evidence adduced on the trial as testified to by the witnesses before them. We are cited to the cases of Parker v. Fisher et al., 39 Illinois, 164, where it was held that “an instruction which does not require the jury to ‘ believe from the evidence’ the facts assumed in it is objectionable, even if the law in the instruction is correctly stated.” Thompson, in his work on “Charging the Jury,” speaking of the relation of the charge to the evidence, says: “The judge opens any hypothetical statement with the formal words ' if the jury believe from the evidence.’ To use only the words ‘if the jury believe,’ without conveying to their minds that they are to found their belief on the evidence, is an objectionable way of giving an instruction; but, as juries are supposed to have some small trace of sense, there is a presumption that they know that they are to find from the evidence, and accordingly it is not necessary to repeat this expression at every turn in the charge.” (“Charging the Jury,” sec. 63, p. 88; “Instructions to Juries,” Sackett, page 33, section 36.)
¶2The oath administered to the jurors when they have been selected is that they “will a true verdict render according to the law and the evidence” (Code Crim. Proc., Art. 657), and it is but reasonable to presume that they, if suitable at all for the service required of them, must understand the nature and obligation of this oath. Still the better practice is the uniform one to remind them that their findings must be predicated alone upon their belief of the evidence testified to by the witnesses in the case.
¶3We have given the record in this case a most careful consideration, and we are not satisfied that the conviction should stand. When we consider the fact that the conviction rests alone upon the uncorroborated evidence of a single witness, and that, too, upon one whose testimony, to say the least of it, suspicion was cast by the proof of his own contradictory and conflicting statements upon more than one occasion and to different parties, we are inclined to the opinion that the evidence sought from the absent witnesses, as shown in defendant’s application for continuance, would have great weight in determining the question of his identity at the time and place of the alleged of*443fense, and that under the peculiar circumstances of this case a new trial should have been granted.
¶4The judgment is reversed and the cause remanded.
¶5Reversed and , emanded.
¶6Opinion delivered June 13, 1883.