delivered the opinion of the court..

The crux of this case was the query: Is the defendant the person who committed this crime ? The only evidence as to the identity of the defendant is certain testimony as to the tracks and the fitting of the shoes of defendant in some of these tracks. It was of the last importance to a fair trial that the question of identity should have been properly guarded by instructions. On this meager testimony as to the identity the appellant asked instruction No. 17, reading as follows: “The court instructs the jury that there is no presumption that defendant made tracks between his home and that of Madame Quick, or that he wore the shoes that made them. Before the tracks can be weighed against him, it must be shown by evidence that he made them, or wore the shoes that made them.” This was a perfectly correct instruction, peculiarly applicable on the question of identity, and should have been given as asked. The court refused to so give it, but gave it after adding this sentence: “Unless it appears from all the proven facts and circumstances in the case beyond a reasonable doubt that such was the fact.” This addition was improper. The principle the modification announced had already been covered, over and over, in the instructions, *666and defendant should have bad bis instruction on identity given ¡precisely as asked. This error, on tbe meager testimony, is fatal.

Reversed mid remanded.