Gantling v. State

41 Fla. 587 | Fla. | 1899

Lead Opinion

Taylor, C. J.:

The plaintiff in error was indicted for murder in the first degree of one Lilly Gantling, at a special term of the Circuit Court for Plamilton county held in October, 1896. He was tried upon this indictment at the Fall term, 1897, was convicted of murder in the first degree and sentenced to die. This judgment was reversed by this court on writ of error, in April, 1898, and the cause remanded for a new trial. Gantling v. State, 40 Fla. 237, 23 South. Rep. 857. He was again tried at the January term, 1899, of the Circuit Court for Hamilton county upon the same indictment, was again convicted of murder in the first degree, but, on the recommendation to mercy by the jury, was sentenced to life imprisonment in the State penitentiary, and from this judgment again comes here by writ of error.

At the trial Ike Coleman, a witness for the State, after testifying that he knew the defendant, and that he and the defendant had a conversation in the jail, in reference to the case, a short while before the defendant’s former trial, and that such conversation was perfectly free and voluntary on his part, was asked to state what was said by each of you? The defendant objected to the witness answering the question on the grounds that the answer was immaterial and irrelevant to the case, and because there had been no sufficient proof of the corpus delicti to authorize the introduction in evidence of a statement, admission or confession, or conversation of the defendant. These objections were overruled, the .ruling excepted to, and it constitutes the first assignment of error. The witness then testified, in answer to the question, as follows: “Me and him was talking-, and I was coming out on bond; he said Tke, we are both colored, and it stands we colored people to stand by each other.’ I said I would; he said, ‘if you will I will see that you don’t regret it;’ he says ‘go up in Georgia and write a letter to me, sign your name as my daughter; that letter will do me lots of good in my case;’ he said ‘sign Lilly’s name to the letter.’ He called me several times after I got out; I told him I did not have time; he finally sent me word to come, that he wanted to see me, and I went; he said Tke, have you attended to that business for me;’ I told him yes; he said that he had not got a hearing yet, and I told him that he would get one. This conversation occurred in the day time. I was in the jail at the time for fussing with a preacher.” The defendant after cross-examining- this witness, moved the court to strike out his evidence because it was not relevant or material to the issues in the case, and because there was no sufficient proof of the corpus delicti to authorize the admission of testimony of this character. The judge overruled the motion, to which exception was taken, and this ruling constitutes the second assignment of error.

Dick Hill, a witness for the State, after testifying that he knew the defendant, and that the defendant had made a statement to him at the defendant’s restaurant on the day the body was found that was supposed to be that of Lilly Gantling, and that such statement was made offers held by me to him, was asked by the State At-freely and voluntarily, and without any inducements or torney to state what he said to you? The defendant objected to the introduction of this testimony upon the ground that there had been no> sufficient proof of the corpus delicti to authorize the introduction of a confession in evidence against the defendant. The judge overruled the objection and permitted the question to be answered, to which the defendant excepted, and such ruling constitutes the third assignment of error. The witness then testified that the defendant in that conversation had confessed to him that he had killed his daughter because he had bigged her, and because she had told it around to white and black.

The admission in evidence, of the defendant’s confession to another witness for the State, Arch Thompson, was objected to by the defendant upon the same ground as that of the witness Dick Hill, but the objection was overruled, and such ruling was excepted to, and constitutes the fourth assignment of error.

There was ím error in any of these rulings, and the objection made that these. confessions were admitted without sufficient prior proof of the corpus delicti is without foundation. In the case of Holland v State, 39 Fla. 178, 22 South. Rep. 298, this court has held that the court must decide in the first instance whether the evidence of the corpus delicti is prima facie sufficient to authorize the introduction of a confession by the accused in evidence; that the corpus delicti need not be proven beyond 'a reasonable doubt as a basis for the' introduction of a confession of the accused; that if, 'when the confession is offered, there be already before the jury evidence tending to show that the offence tO' which the confession relates has been committed, the court should admit the confession, if freely and voluntarily made; that the corpus delicti of an offence may be proven as well by circumstances as by positive testimony. The State, prior to the introduction of these confessions, had introduced evidence tending tO' establish the following facts: The defendant had a daughter, Lilly Gantling, who was about grown, and who lived with him helping him in his business of keeping a restaurant. Prior to her disappearance she had become pregnant. She disappeared from her father’s restaurant suddenly about the first of August, 1896, and had not been seen alive or heard of since; that one dark rainy night about the first of August, 1896, between midnight and day, a witness, living near the swamp where the dead body was afterwards found, heard the voice of a girl screaming “O Lord,” and that it sounded as though she started to run; then she heard a man’s voice say to her “don’t go another step further,” and that in about a quarter of an hour later the witness heard the girl’s voice in the swamp, in the direction of where the body was afterwards found, still distressfully exclaiming “O Lord;” that some two months after this, or about the first of October, 1896, a dead body was found in the aforesaid swamp buried in the mud all but one leg. Upon being exhumed it was identified as being- the skeleton of a woman about the size of the defendant’s missing daughter. The clothing and hat found with the body were identified as being those worn by Lilly Gantling just before her disappearance, and the remains were further identified as being hers by the protruding teeth. At about the same time with' the finding of the skeleton, and some forty or fifty yards away from it, on the edge of the swamp, there was found a large oil-cloth that appeared to have been dragged some distance and then dropped, and the bushes between the oil-cloth and the dead body appeared to have been broken down. This oil-cloth was identified as being that of thej defendant. Several witnesses, among them the sheriff of the county, testified that they never heard of the defendant making any effort to find his daughter after her disappearance. It was shown further that the coroner, who held the inquest over the remains, on being informed that the defendant had a missing daughter, sent for him to view the remains and clothing found with it to see if he could identify them, and that he was tardy in responding to the message; and that he and his wife, who was the deceased’s step-mother, on going to the place disclaimed any recognition of either the remains or the clothing or hat found with them. This we think was sufficient to establish the corpus delicti, at least prima facie; and, under the rule laid down in Holland v. State, supra, went far enough to> justify the admission of the confessions, when shown to have been freely and voluntarily made. The testimony of Ike Coleman relative to the effort of the defendant, while in jail under this charge to get him to gx> up into Georgia, and from there to write a letter to the defendant over the name of the deceased, was pertinent and admissible, because it tended to show an attempt on the defendant’s part to conceal his crime by false and fraudulent means, designed to make it appear that his daughter was still alive.

The fifth and last assignment of error is the over? ruling of the defendant’s motion for new trial, upon the ground that the verdict was contrary to the evidence. There was considerable conflict in the evidence, but the jury, within their exclusive province, have settled those conflicts on the side of the evidence for the State, of which, when given credence, there was sufficient to sustain the conviction had, and this becomes more convincing since two juries have come to the same conclusion upon it.

Finding no errors, the judgment of the court below is affirmed.

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Dissenting Opinion

Carter, J.,

dissenting:

The indictment against plaintiff in error contained two counts, the first charging that the offence was committed with a razor, the second that it was effected in a manner and by means unknown to the grand jury. At the close of the testimony the State Attorney announced that he abandoned the first count and would rely upon the second count for a conviction. Aside from defendant’s alleged confessions the evidence was wholly circumstantial, and, to my mind, of the loosest and most uncertain character. As the opinion of the court states only what in its opinion the evidence tended to prove, and that in a very general way, I shall state the evidence with more particularity and point out the particulars wherein, in my opinion, the court has drawn improper conclusions. The defendant was a restaurant-keeper in the town of Jasper, and also kept teams for hire. He was a man of family consisting of his wife and several children, several of whom appear to have been grown, though their exact ages are not shown. One of his children, Lilly, a daughter by a former wife, was a waiter at his restaurant, but the only reference to her age in the record is that a witness “judged her to be then fourteen or fifteen, or possibly sixteen, years old.” In the northern edge of the town of Jasper there was a swamp, in size “about two hundred yards from east to west and about a quarter of a mile from north to south.” The Savannah, Florida & Western Railway ran through the east end of the swamp, and a wagon road ran along the east, and another along' the west side. Just north of the swamp a saw-mill was located, and among the hands were a good manj'- negroes. Persons going from the sawmill to Jasper on foot generally came the railroad. Mariah Cobb, a State’s witness, lived on the west side of the railroad just north of the depot and “right at the edge of the swamp,” and about a quarter of a mile from the spot where a dead body was found in this swamp. She says “about the first of August (1896) I heard something unusual; it attracted my attention; I heal'd someone screaming; it was between midnight and day; it seemed like a girl’s voice; it looked like she started to run, someone told her to come back. I heard the girl’s voice first; she hollered ‘Oh Lord;’ she struck for a run; one man said to the girl, don’t go another step further; they were about fifty yards south of my house then. About a quarter of an hour later I heard a voice on the other side of the house say ‘Oh Lord:’ it was a girl’s voice and was north of my house. The body was found northwest of my house, it was a dark, rainy night that I heard those screams.” She also stated that the mill hands, mostly darkeys, in going to Jasper would sometimes take the railroad, and sometimes the dirt road; that in going the railroad they would pass within sixteen or seventeen yards of her house. She further testified “I am well acquainted with Claib Gantling and with Lilly Gantling. I know their voices, but I did not recognize his or her voice on this night. I heard two men’s voices and one girl’s voice. I did not recognize any of their voices. The last hollering that I heard seemed like it was in the swamp, but was closer to me than where the body was found. It was north of my house.” She could not locate the time any more definitely than as being “about the first of August.” She knew it occurred “towards the last of the week,” but knew it was not on Saturday night. Another witness testified that he was night-watchman of the town of Jasper; that “on a dark, damp, rainy night,” about “the first of August,” he “heard some hollering like that of a woman; it sounded like it was smothered, and by a person in distress;” that he could hear it plainly, but could not tell which way it was “because he was partially deaf in one ear.” The only evidence besides defendant’s confessions as to' the pregnancy of Lilly Gantling was the testimony of Mariah Cobb, that “I knew Lilly Gantling. Sometime I would see her once or twice a week. I saw Lilly Gantling about two months or possibly longer before this body was found; she seemed to be in pregnancy;” and, on cross-examination, “Lilly Gantling was advanced in pregnancy about two, three or four months. I am not a midwife.” About the first of October, 1896, the remains of a dead’ human body were discovered in the western edge, and near the northern end, of the swamp mentioned above, about forty or fifty yards from the dirt road which ran along that side. One of the witnesses states that the swamp was “all swampy, the pond could not have been dry very long. I think there was some water in the swamp at the time in holes about.” Another witness says it had been raining from about the first of August until the finding of the body. When the body was discovered it was covered with mud except one leg. The testimony does not show how deep the body was covered, or whether it appeared to have been put in a hole dug for the purpose. One witness says “we saw part of the body sticking out of the mud, the balance of it was covered up.” Another says “I did see the dead body and the clothing that was on it before the body was moved. I moved the body. I first got a pitchfork, picked up the bones with it, put them in a box,” &c. On the same day a coroner’s jury was empaneled which sat from that day (Sunday) until Wednesday. A great many persons went down on Sunday, to view the remains and the 'place where found. One witness says “a great number of people went out to where it was found; it may have been up in the hundreds that went there that day; they were coming and going nearly all day, and in crowds from one to eight and more.” I concede that the evidence tended to show an identification of this dead body as that of Lilly Gantling by the clothes found upon it, and by certain peculiarities of the teeth, but there is not one syllable of evidence tending to show blood stains upon any article of clothing found with the body, or upon the oil-cloth hereafter referred to, or any marks of violence upon the remains, or of any struggles by the deceased, or even that the body was buried in the mud by human agencies. The coroner’s jury sent a message to defendant to come down and view the remains, but the message was not delivered. The defendant was, however, informed of the finding of the body, and that it was supposed to be that of his daughter, between two and three o’clock on Sunday; said he would go down and see the remains, but did not gO’ until about sundown, when several members of the coroner’s jury went up to see him. He was asked tó go two or three times by them before he did go, though he did not at any time refuse to go. He and his wife stated to every one that asked them about the matter that Lilly was missing and had been since about the last of July, or for about two months, and stated that they supposed she had run away. They described Lilly’s clothes, and the description given applied to those found upon the body. They went to view the remains and stated there was nothing there to prove that the remains were those of Lilly Gantling. On Monday morning an oil-cloth was picked, up twenty-five or thirty yards from where the body was found. One witness says “it looked as if it had been dragged a piece and dropped.” Another said “I saw the oilcloth that was said to have been found up there on Monday. I saw the place where it was said to have lain; it was damp, it was near the body, in about forty yards. I saw some broken bushes between the oil-cloth and the body, I suppose some six or eight extending about half way between them.” I concede that the evidence tended to show that this oil-cloth belonged to defendant. Several of the witnesses had never heard that Lilly Gantling was missing until the body was found; while several others had heard of it a month or more previous to the finding of the body; some of them from defendant or members of his family; some of them from other people; but to none did defendant represent that his daughter was not missing, nor was there any evidence of attempts to conceal the fact. There is no evidence that Lilly Gantling mysteriously disappeared. Several witnesses testified that they frequented defendant’s restaurant, taking meals there; that Lilly Gantling waited upon them until “about' the last of July,” or “about the first of August,” after which they did not see her any more until the dead body was discovered. No witness pretended to give the exact date of her disappearance, every one stating “about the last of July,” or “about the first of August,” except one who stated that he went there to board on July 25th, and that “after about a week after I first went there” he never saw her again, and that shortly afterward defendant’s wife stated that Lilly had run away.

The alleged confessions were made to Dick Hill, an unlettered negro herb doctor and fortune teller, who “tells a little something in the cards,” and Arch Thompson, a witness who had been convicted of larceny, but pardoned. Hill says that on the evening of the day that the body was found he and defendant were in a room together where there was nothing “but a table and a pint of whiskey,” and it seems a pack of cards. He says “when we got in the room he said he wanted me to look over some things for him, and I did, and I told him 'you see that card’ and he says yes; I says 'you are in trouble, tell me your trouble.’ He says T killed my daughter; not my wife’s child;T got to fooling with her and bigged her. I told her not to tell any one, and when the time came I would send her off.’ The card spoken of was a club; it was a spade spot.” This was his version on cross-examination; his statements upon the direct are given in the opinion of the court.

Arch Thompson testified that late in the afternoon of the same day he had a conversation with defendant which he relates as follows: “He says I tell you Arch I am in trouble, he says; if I tell you something will you tell it, and I said I didn’t know whether I would or not. He said well, I will tell you, and I asked him what was it, and he said I killed my daughter. I said no' you didn’t. He says yes I did, and I said no you didn’t; he said I had it to do, and I said no you didn’t; he said I carried her off; Dellegé held her hands and I cut her throat with my razor. Just at this time Peter Davis spoke and we jumped up.”

I have stated the evidence developed upon the part of the State thus minutely, omitting no circumstance proved, for the purpose of showing fully the state of the proof relating to the corpus delicti when the confessions were admitted. And I may say here that nothing further upon the subject was developed by the evidence given in behalf of defendant or the State’s evidence in rebuttal. The question is therefore squarely presented as to whether the corpus delicti was sufficiently proven to admit evidence of extra judicial confessions. I am clearly of opinion that it was not, and that a positive rule of law has been violated in admitting them. In this State confessions are not only insufficient to authorize a conviction without other proof of the corpus delicti, but they are not even admissible as evidence, until other proof of the corpus delicti has been given. The corpus delicti is made'up of two essential elements in homicide cases. First, it must be shown that a person is dead; second, that his death was caused by the criminal agency of another. There was evidence in this case tending to prove the first element of the corpus delicti, vis: that Lilly Gantling- was dead, but none, in my opinion, tending to show that her death was caused by the criminal agency of another. There were circumstances shown which might or might not according to other circumstances tend to prove this element, but the connecting circumstances are omitted from the proof in this case. A dead body is found in the edge of a swamp in the town of Jasper, within forty or fifty yards of a public road leading into the town. Not one single mark of violence is discovered upon the remains, not one blood stain is discovered upon the numerous garments found upon the body, not one lethal instrument is found, not one sign of a struggle is observed upon the ground or bushes about the.place where the body is found. The finding of the oil-cloth did not tend to prove violence toward the deceased. It was not found until Monday, after hundreds of people had been out to the spot the day before without observing it, though from its size (5x7 feet) and proximity to' the body it is difficult to see how it could have escaped the observation of so many people if it was there all day Sunday. It bore no signs of blood or other evidence that a murder had been committed. In fact there was nothing in the evidence tending to show when or how it came to be there, or how long it had been there. One witness said that the place where it zvas said to- have lain was damp, but whether the surrounding ground was damp or dry is not shown, so that the circumstance furnishes no inference as to how long the cloth had lain there. Besides, this statement of the witness is hearsay merely as he does not profess to know of his own knowledge whether the oil-cloth had lain there or not. Another witness says it looked as if the cloth had been dragged a piece and dropped, but whether this dragging appeared to be of recent occurrence is not stated. The broken bushes between the oil-cloth and the body did not indicate violence. They indicated the passage of some animate body between the two objects, but as it was not shown whether the bushes appeared to be recently broken or not, we can not assume that they were not broken by persons passing around during the coroner’s inquest. Besides all this, if we concede that the oil-cloth was carried out there at the time of Lilly Gantling’s death and the bushes broken at that time, it does not show that her death was caused by the criminal agency of another.. The cloth may have been carried by her for she had access to it as much as the owner and she may have dragged and dropped it, and she may have broken the .bushes between where it lay and her body and yet have died from natural causes or by her own hand. The facts attending the finding of the oil-cloth do not in the least degree tend to prove the second element of the corpus delicti, but merely the identity of the defendant. Much stress seems to be laid upon the fact that when found the body was partly covered, and upon the screams heard by Mariah Cobb and the night-watchman. If these circumstances were properly connected by others they would be entitled to weight; but they are not connected so as to raise an inference, but merely a bare suspicion that Lilly Gantling came to her death by violence. The body was found in a swampy place which could not have been dry very long, with holes about in it containing water. Part of the body was sticking out of the. mud and the rest was covered. It was, therefore, buried very shallow in the mud, so much so that a pitchfork only was used to uncover it. Wihether it was found in a hole which had previously contained water, or on a level spot is not stated. It certainly does not appear that there were any evidences that some person- had dug* a grave or hole to bury the body in, or that the mud was thrown on the body by any human agency. No digging implement was found there, no- evidences of any digging or other preparations for burying or concealing the body, no circumstance to show that at the time the body came there the mud was not soft enough to- permit the body to sink beneath it of its own weight. Every circumstance connected with the finding of the body and oilcloth are entirely consistent with the idea that deceased was a suicide by drowning, or other means, or that she came to her death by accidental drowning- or other means, or from natural causes. She was found in the edge of a swamp near a public road, not very far from her home. A call of nature or a thirst for water may have caused her to leave the public road, and a misstep may have precipitated her into a watery grave, or she may have been stricken with heart failure or some other instantly fatal disease. To prove the corpus delicti, the evidence must tend to rebut these reasonable hypotheses, and the evidence in this case does not do so. I do not mean to sa)r the evidence must exclude these hypotheses beyond a reasonable doubt, but it must tend to exclude them. •

Now, as to the screams: The testimony of the nightwatchman tends to corroborate that of Mariah Cobb; it does not tend to prove more. Mariah Cobb was well acquainted with the voices of defendant and his daughter. She did not recognize them on the night of the screaming. If she who knew the parties, could not identify them how can the court and jury do so? How can it be inferred that the screams heard that night proceeded from Lilly Gantling, from the mere fact that her body was found two months afterwards near the neighborhood and somewhat in the direction of the screams, especially when the party who- heard the screams could not identify them? Hearing screams of this nature at the particular time on a dark, rainy night was an unusual circumstance it is true, but neither this, nor the unusual circumstance that Lilly Gantling’s body "was found two months afterwards on the other side and northern end of the swamp' authorize the deduction that the screams proceeded from her. It is quite apparent that other circumstances must be proved in order to infer that Lilly Gantling screamed that night. She was a waiter at her father’s restaurant. She disappeared “about the last of July,” or “about the first of August.’*’ The screams were heard the latter part of the week (not Saturday, however,) “about the first of August.” I ask what is'meant by “about the first of August.” The first day of August, 1896, came on Saturday. Mariah Cobb says she did not hear the .screams on Saturday.- So- they must have occurred on the Thursday or Friday night either just before or just after August ist, vis: July 30 or 31, or August 6 or 7. But there is no circumstance in evidence from which we can fix the precise date. Lilly Gantling disappeared “about the first of August,” or “about a week after July 25th.” Can the court infer that these expressions mean July 30 or 31,.or August 6 or 7, and, if so, which? The argument runs thus: screams are heard at an indefinite time, and Lilly disappears at an indefinite time. These two facts form the basis for -an inference that the screams and disappearance occur at the same time, and another inference is drawn from tins inference that the screams proceeded from the party who .disappeared. Now other facts would authorize the inference drawn if they had been put in evidence, but they were not. For instance, if it had been shown that Lilly was in the neighborhood of the screams, shortly before or after they were heard, or that after that night she was never seen again. But there is no- such proof in the record, and none of the witnesses swear that they never saw her at her father’s restaurant after -the night of the screaming, but many do testify -that they saw her there up to “about the first of August,” which may have been after the screams were heard. There is nothing from which we can infer that Lilly died on the night of the screaming, or that she died a violent death at any time unless -wé reason thus: an unascertained person screamed about August ist. Lilly Gantling disappeared about August ist, and her remains'were found about October ist, in a swamp about a quarter of a mile away. The dead person was Lilly Gantling, therefore it is inferred that she is the person who* screamed, and because she screamed, we infer she was murdered. I am of opinion that the evidence of the alleged confessions should have been ruled out upon defendant’s objection, because there was no evidence from which the jury could reasonably infer that Lilly Gantling came to her death by the criminal agency of another. Pitts v. State, 43 Miss. 472; Smith v. Commonwealth, 21 Gratt. 809; People v. Palmer, 109 N. Y. 110, 16 N. E. Rep. 529, 4 Am. St. Rep. 423; Campbell v. People, 159 Ill. 9, 42 N. E. Rep. 123, 50 Am. St. Rep. 134; Conde v. State, 35 Tex. Cr. App. 98, 34 S. W. Rep. 286, 60 Am. St. Rep. 22; note to State v. Williams, 78 Am. Dec. 252 et seq.; State v. Laliyer, 4 Minn. 368.

II. I am equally clear that the evidence was wholly insufficient to support the verdict. By comparing my statement of the evidence in this case with the statement upon the former trial, Gantling v. State, 40 Fla. 237, 23 South. Rep. 857, it will be seen that a much stronger case was made upon • the former trial, than upon the present one. If the defendant is guilty as charged, he has committed a murder as unnatural and horrible as has ever been perpetrated in this or any other State, and there is not one mitigating circumstance in his favor. A father begetting' a child by his own daughter of less- than seventeen years of age, deliberately forcing her along a public road to a place of slaughter, making no attempt to confine her or to prevent her screams, carrying her across or around a pond and deliberately murdering her by cutting her throat with a razor, all because she told of his brutal lust to black and white, could surely claim no recommendation to mercy from any jury who believed him guilty beyond a reasonable doubt. I admit that there were conflicts in the evidence which it was the duty of the jury to- settle, but there were certain rules of law which applied with full force to the case, and against which this verdict stands out in bold relief. The charge of the court is not found in this record, but I assume that the instructions were correct. The rules of law I refer to are as follows: Confessions of the prisoner must be acted upon with great caution. . N.o matter how full they may be, there must be other evidence o_f the corpus delicti-, the jury must not only believe that the prisoner made the confessions, but they must believe the inculpatory parts to be true before they can act upon them; and the jury must be satisfied beyond a reasonable doubt, from all the evidence, of the guilt of the accused. The characters of Hill and .Thompson, as shown by their own- testimony and that of others, and the contradictory statements they had made, and the improbability of their stories upon the face of them, induce me to place little reliance upon what they say. The State seemed to concede that Thompson was unworthy of credit, for it abandoned that count in the indictment which was based" upon the alleged confession made to- him- — that is, that the killing was done with a razor. I have shown that there was no evidence tending to prove that Lilly Gantling came to her death by the criminal agency of another, and as defendant’s confessions alone could not supply that defect, an acquittal ought to- have been had. But should I admit that the evidence did tend! to prove that element of the corpus delicti, then, with the confession in, the whole evidence was insufficient to- produce conviction beyond a reasonable doubt. If we assume that the confessions were made, they are not corroborated in any essential particular. Defendant, as a witness, swears that he did not make them, and all the circumstances of the case tend to show that if he made them, they were untrue. His confession to Hill was that he killed his daughter because he had bigged her and because she told it around to white and black. Not one witness was produced to show that Lilly Gantling had told any one of her condition, or that defendant had ever mistreated her or spoken harshly to her about anything, or that any person except Mariah Cobb ever suspected that Lilly was pregnant. The fact that defendant was a married man; that his wife and children lived in the house with him, the extreme youth of Lilly, the fact that she was defendant’s daughter, all go to repel the idea of criminal intimacy between defendant and Lilly. No one supposed Lilly to be pregnant but Mariah Cobb, and she only judged from observation, and gave it as her opinion that Lilly was advanced two, three or four months. Common knowledge teaches us that no reliance can be placed upon testimony of this nature, and although many other witnesses were examined who saw the girl daily up to the time of her disappearance, not one of them ventured an opinion that she was pregnant, or even that she had that appearance. The confession to Arch Thompson is even more vulnerable. It was, that defendant killed his daughter; that he had it to do; that he carried her off; that Dellege held her hands, and he cut her throat with a razor. This confession is shown to be untrue by the finding of the body. If Lilly’s throat was cut with a razor, and her body then buried with the clothes upon it, why were not blood stains found upon the clothing? No circumstance is shown to account for the absence of blood spots, and their absence can not be accounted for upon this record on any theory other than that the throat was not cut. Not one statement in the confession is corroborated by any reliable evidence. There was no proof from which the jury could legitimately infer the criminal agency element of the corpus delicti, except the confessions which, as I have shown, were incredible, and these confessions do not, in connection with all the other evidence in the case, produce conviction to the mind beyond a reasonable doubt. Again I ask, granting that defendant committed murder, how was it effected? By what instrument was it accomplished? Was it by a razor ? If so how can defendant be convicted under the second count of the indictment when the first, charging the murder to have been effected with a razor, was abandoned? If it was effected in a manner and by means unknown, and not by a razor, where is the proof ? The circumstances fail tO' show that the girl was murdered at all. The confession admits the murder, but shows that it was effected with a razor. If the confession is true the defendant was guilty under the aban* doned count only; if it was not true he was not guilty under, either count. What reason had the jury to reject that part of the confession relating to the razor, and for believing the other? I admit the force of the fact that two juries have found defendant guilty. But, as I have shown, the evidence was not the same upon both trials. And it can make no difference how many verdicts have passed against the defendant, so long as rules of law are violated new trials must be granted, where injury results from such violations; and such I am convinced is the case here, and I think for the error in admitting the confessions, and because the evidence is insufficient to support the verdict, the judgment ought to be revérsed and a new trial granted.