tificial means in the exercise of the lawful right of drainage. The judgment of the county court is affirmed. (No. 11444.-Reversed and remanded.) THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. FRANK ZAMMUTO et al. Plaintiffs in Error. Opinion filed October 23, 1917. 1. CRIMINAL LAW-verdict of guilty must be supported by the evidence. The Supreme Court will not usurp the functions of the jury by substituting its judgment upon the weight and credibility of conflicting testimony in a criminal case; but a verdict of guilty must be supported by evidence, and where it is apparent that the verdict is not based upon evidence proving the guilt of the accused it is the duty of the court to set aside the judgment. 2. SAME when motive is an important element in determining commission of crime. If a deliberate criminal act is established by the evidence the People are not required to prove a motive for the act; but while a motive is not an essential element of crime, the presence or absence of anything which would lead the accused to commit the act is important and to be considered on the question whether he did commit it. 3. SAME-value of foot-prints in proving identity. Evidence concerning foot-prints may tend to prove the identity of the accused as the perpetrator of a crime, but such evidence is of no effect where it does not show any peculiarity of the foot-prints but only that the shoes worn by the accused substantially fitted therein. WRIT OF ERROR to the Circuit Court of Winnebago county; the Hon. JAMES S. BAUME, Judge, presiding. R. K. WELSH, and FRANK M. RYAN, for plaintiffs in error. EDWARD J. BRUNDAGE, Attorney General, WILLIAM JOHNSON, State's Attorney, and NOAH C. BAINUM, for the People. Mr. JUSTICE CARTWRIGHT delivered the opinion of the court: Joe Tarantola lived at 1222 Ferguson street, a street running north and south, in the city of Rockford, with his sister, Vitina Ingrassia, and her husband, Annunzio Ingrassia, in the second story of a building on the east side of the street. The first story was occupied by his brother and wife as living apartments and the basement was used by the brother as a bakery. The second story was reached by an outside stairway beginning somewhat back of the front of the building and running back to a platform at the southcast corner, entering the kitchen. A little before six o'clock, after dark, in the evening of January 2, 1917, Tarantola was killed by two men at the foot of the outside stairway by shooting him from behind. There were eight bullet wounds inflicted by two revolvers, one discharging a steeljacketed bullet and the other discharging a 38-calibre lead bullet, and a stiletto in his inside pocket was shattered by one of the lead bullets. Immediately after the murder the two men ran south in the roadway on Ferguson street to the intersection of Hulin street, which crosses Ferguson street about 150 feet south of the place of the murder, and there was an electric arc light burning at that intersection. The men then ran down the driveway of Hulin street, east to West street, and thence between the houses in an alley and disappeared. The ground was covered with about three inches of snow and slush. One of the men was larger than the other and wore a gray mackinaw and the smaller one wore a long black coat. The larger man fell down near the corner of Hulin and Ferguson streets and the other stopped and helped him up, and then they ran down Hulin street. Police officers were on the ground almost immediately and followed the course of the men. They met the plaintiff in error Philip Caltagerone at the corner of Winnebago and Loomis streets and arrested him for the murder. The plaintiff in error Frank Zammuto was arrested on the night of January 4, 1917, on his return from Chicago, and both were indicted for the murder and tried in the circuit court of Winnebago county. The jury returned a verdict finding the defendants guilty and fixing the punishment of Frank Zammuto at twenty-two years in the penitentiary and of Philip Caltagerone at fourteen years. Motions for a new trial and in arrest of judgment were made and overruled and judgment was entered on the verdict sentencing the plaintiffs in error to the penitentiary. There was no prejudicial error in the course of the trial but the motion for a new trial ought to have been allowed. It is the province of the jury to consider the evidence, and where it is sufficient to warrant conviction this court will not usurp the functions of the jury by substituting its judgment upon the weight and credibility of conflicting testimony. (McCoy v. People, 175 Ill. 224; Gilman v. People, 178 id. 19; People v. Deluce, 237 id. 541; People v. McCann, 247 id. 130.) But a verdict of guilty must be supported by evidence, and where it is apparent that the verdict is not based upon evidence proving the guilt of the accused it is the duty of the court to set aside the judgment based upon it. (Waters v. People, 172 Ill. 367; Keller v. People, 204 id. 604; Dahlberg v. People, 225 id. 485; People v. Bolik, 241 id. 394; People v. Rischo, 262 id. 596.) Whatever may have been the source or cause of the verdict in this case, it cannot be attributed to the evidence. The People not only failed to prove the defendants guilty of the crime with which they were charged, but the evidence in their behalf proved that they were not guilty. If a deliberate criminal act is established by the evidence the People are not required to prove a motive for the act, but while a motive is not an essential element of crime, the presence or absence of anything which would lead the accused to commit the act is important and to be considered on the question whether he did commit it. In this case the only evidence alleged to constitute a motive for the murder is the fact that in March, 1916, nine or ten months before the murder, the defendant Frank Zammuto was a watchman at the Trahern Pump Company's plant at Rockford and Tarantola came into the plant in the night time and was ordered out by Zammuto, who was making his rounds; that a short time afterwards Tarantola came in again by a back door and was ordered out, and that there was a shooting fray, in which Zammuto used a revolver that discharged a steel-jacketed bullet. The police who were called to the plant made inquiries and made no arrest of either party and there were no further relations between the parties. Zammuto testified that he sold the revolver soon afterward and that he did not know Tarantola. There was no evidence that Zammuto had or owned any fire-arms at the time of the murder, and there was nothing in the occurrence which would justify an inference of a desire to take revenge on Tarantola by killing him more than nine months. afterward. Under the evidence of the murder it was strange that the jury should fix a difference in the punishment where two men participated equally in the act, and if a difference can be accounted for on any rational basis whatever, it was because the jury gave weight to the occurrence in March, 1916, as the cause of the murder. When Caltagerone was arrested he was wearing a gray mackinaw, and the police took one of his shoes, which was a size eight or eight and a half, of a common make called the Walkover, and tried it in the tracks in the snow and found that it corresponded substantially with the foot-prints, They searched him and found nothing but an ordinary jackknife, and there was no evidence that he had or owned any revolver. Neither the wearing of the gray mackinaw nor the evidence as to the foot-prints tended to prove the mur der aside from other evidence of identity. It is true that evidence concerning foot-prints may tend to prove identity, as in the case of Schoolcraft v. People, 117 Ill. 271, where a toe turned inward, or in the manner of walking, as in Carlton v. People, 150 Ill. 181, where the defendant was lame and walked with a kind of hop and the foot he limped on corresponded with the tracks, but such evidence is of no effect where, as in the case of Dunn v. People, 158 Ill. 586, there was no peculiarity of the foot-prints. In the latter case the court said that any two persons wearing shoes |