Lipscomb v. State

75 Miss. 559 | Miss. | 1897

Lead Opinion

Magruder, Special J.,

delivered the following opinion, favoring a reversal of the judgment appealed from:

At the March term, 1897, of the circuit court of Kemper county, the appellant, Dr. W. H. Lipscomb, was tried, convicted, and sentenced to be hanged for the murder of Charles P. Stewart, from which judgment and sentence he prosecutes this appeal. Stewart died on the night of January 21, 1897. Just before going to bed for the night, he bathed his feet and took a capsule of medicine and laid down upon his bed. In a few minutes thereafter he became ill, and in twenty or thirty minutes died in convulsions, manifesting the symptoms usual in cases of strychnine poisoning. His wife, who was in the room, a Mr. Duran, and also a negro man, who came in, made endeavors at ministration for his relief. Duran went out to send to Scooba, a village about three miles away, for a physician. Stewart called upon the old negro to pray for him. In the interval between the third and last convulsions, and just before he died, he said to his wife: “lam going to die. I have been dead. The good Lord has sent me back to tell you that Dr. Lipscomb has killed me, has poisoned me with a capsule he gave me to-night; that Guy Jack had insured his life, and had hired Dr. Lipscomb to kill him.” Only Mrs. Stewart and the negro were present. The statement was voluntarily made by the deceased, and without suggestion of any kind. He was a young man, who appeared to be strong and vigorous. On the day of his death he went to the village of Scooba on some business, and returned to his home about dark, fed his horse, and ate heartily at supper, apparently in good health and cheerful spirits. But it seems that he was being treated by Dr. Lipscomb for some disorder, and while in Scooba on that day Dr. Lipscomb prescribed for him. The prescription called for three capsules, to be compounded of quinine, antikamia, and strychnine, each capsule to contain one sixtieth of a grain of strychnine. After the prescription was written by Dr. Lipscomb at his office, which was at the drug store of Dr. Mohler, who was a professional partner of Lipscomb, it was taken in person by Lipscomb to the dl’ug store of Dr. Morney, about a square away, for the alleged reason that Dr. Mohler had no antikamia, Lipscomb telling Stewart he would get it for him. When the capsules had been prepared, manufactured tablets of strychnine of one-fiftieth of a grain each being used, they were placed in a box marked with directions, “Take one at night,” handed by the druggist to Dr. Lipscomb, who took the box and went out upon the street, found Stewart, and gave him the box, and instructed him to bathe his feet and to take one at bedtime. Stewart’s father was present when the box was handed to his son by Lipscomb, and, in a little while after parting from Dr. Lipscomb, Stewart, who had kept the box in his hand, opened it, and making some comment as to the size of the capsule, showed it to his father, who testified that there was but one capsule in the box. An analysis of the stomach of Stewart revealed the presence of one and one-half grains of pure strychnine, which had not been absorbed.

The foregoing is a brief statement of such of the facts as are deemed necessary to our understanding of the questions of law presented by this appeal. On the trial of the case, the wife of the deceased testified to the declaration above mentioned, made by her husband before his death. This testimony was admitted as the dying declaration of the deceased, over the objection of the defendant, Which ruling is assigned for error.

An autopsy was held by several physicians, including the appellant. The result of the autopsy was reduced to writing. It described the appearance and condition of the body and the various organs. It was written out by one of the physicians, and read over, section by section, in the presence of all, and, as he testified, it was his understanding and recollection that all, including Dr. Lipscomb, assented to it, and he thereupon signed his own and the names of the other physicians. This paper was admitted in evidence, and read to the jury, over defendant’s objection. When the jury retired to consider their verdict, the defendant requested that the paper be delivered to the jury, which the court refused. Exceptions were also talqen to the action of the court in granting or refusing certain instructions. These rulings of the court, among others, are now, on this appeal, assigned for error. We will first consider the instructions.

The second instruction given for the state is an effort to define a “ reasonable doubt. ” It is as follows: “ The court charges the jury that by a reasonable doubt is meant, not a mere speculative doubt or vague conjecture, mere supposition or hypothesis, but such a doubt as reasonably arises out of the testimony in this case — a doubt for which a reason can be given, in view Of the testimony or want of satisfactory testimony.” This instruction is not erroneous, for it does not embody an incorrect definition. It is no definition at all. It is mere tautology, stated with awkward circumlocution. The terms of the expression, “reasonable doubt,” import the most exact idea of its meaning, and are incapable of simplification, and there is no equivalent in phrase more easily understood. All such endeavor is futile and foredoomed, the usual result being a maze of casuistry, tending to confuse rather than to enlighten, often evolving incorrect propositions, as shown in the recent cases of Powers v. State, 74 Miss., 779; Hammon v. State, 74 Miss., 214; Williams v. State, 73 Miss., 822; Burt v. State, 72 Miss., 408; and Brown v. State, 72 Miss., 95. In all of these cases, besides the specific errors of the particular instruction considered, the practice of attempting such definition at all is criticized and deprecated, if not condemned.

The seventh instruction for the state contains a hypothetical statement of facts, of which the jury are told, "if they believe, ” constitute guilt, omitting the word, ‘ ‘ beyond a reasonable doubt,” and is consequently erroneous; but the error seems to be avoided by the subsequent instruction, which is nearly identical, and by others.

The ninth instruction for the state is in these words: “ Circumstantial evidence has been received, in every age of common law as competent evidence, and it may rise so high in the scale of belief as to generate full conviction. When, after due caution, this result is reached, the law authorizes the jury to act on it. ” “ Full conviction ’ ’ is not the criterion of the degree of proof necessary to a conviction. It is a loose phrase. It has no distinct legal import, and is without accuracy to the common understanding. It is vague, indefinite, and inexact. It may be the equivalent of sincere or conscientious belief. It may mean that full conviction when the facts proven satisfy the judgment as to the truth of the charge. There is but one rule and one law in this state as to the measure and sufficiency of proof which will warrant conviction. It is that the evidence must engender a certainty of belief beyond a reasonable doubt. This rule has prevailed without abatement, not only in the ages of common law, but it embodies an everlasting human right, coeval with all society. It is not enough that “ the jury should be satisfied from the evidence, as fair, reasonable or conscientious men, of the guilt of the accused” (Powers v. State, supra), or ‘ ‘ that they conscientiously believe him guilty." Burt v. State, and Brown v. State, supra; Hammond v. State, 74 Miss., 214.

In Williams v. State, 73 Miss., 822, the jury were instructed that ‘ ‘ if, after a careful consideration of all the evidence in the case, you can say and feel that you have an abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt, and your verdict should be guilty;” as to -which the court in that case says: “The second instruction for the state is erroneous in attempting to define ‘ reasonable doubt. ’ . ' . The concluding part of the charge expressly defines reasonable doubt by telling the jury that ‘ abiding conviction of the guilt of the defendant, or full satisfaction of his guilt, is the equivalent of belief beyond a reasonable doubt. ’ This is another of the many vain attempts to compute "that which is not number, and measure that which is not space.” It was held one of the errors for which that case was reversed. The hypotheses of that instruction, it will be observed, are, however, stated con-junctively. The statement is, “If you have an ‘ abiding conviction ’ of the guilt. .’ . . /c and ’ are fully satisfied of the truth of the charge.” “Full conviction” cannot certainly mean more than £ £ fully satisfied, ’ ’ but if, conj unctively, £ £ an abiding conviction of guilt ’ ’ and £ £ full satisfaction of the truth of the charge” be erroneous, as not equivalent to a belief beyond a reasonable doubt, it must follow that £ £ full conviction ’ is in less degree such equivalent. It is error.

The fifteenth instruction asked by the defendant, and refused, is as follows: "The court instructs the jury that the dying declarations of the deceased, made to his wife, are not entitled to the same credit and force as if the deceased was still alive and testifying in the presence of the jury, under oath; that it is a species of hearsay evidence, and is intrinsically weaker than if the declarant was present and subject to cross-examination; and the jury alone is the judge of its weight and force.” We all concur that if it be the true purport of the instruction that it is intended to point out, by way of precaution, the inherent qualities, which, by law, pertain to all dying declarations, and be held to refer to the source, rather than the matter, of the testimony, it would, in that view, not be upon the weight of evidence, within the meaning of the statute. In cases of perjury, seduction, and the like, requiring corroborative evidence as to certain testimony, and in cases involving the testimony of accomplices and evidence of admissions made by a party against his interest, and the like, it is entirely proper to point out to the jury the circumstances affecting the source or character of the evidence, which, according to settled rules, operate to its disparagement, being careful to leave to the jury the untrammeled right to consider the testimony, and give it what weight they may deem it worthy. Abstractly, it is true, as a matter of law, that a dying declaration is a species of hearsay testimony, and, of itself, is not entitled to the same force as if the witness was living and testifying, and subject to a cross-examination. Lambeth v. State, 23 Miss., 322. The question presented by this instruction involves a consideration of the law applicable to the admission of dying declarations, and the reasons upon which they are founded, and which determine the character of such testimony from a legal standpoint. Dying-declarations constitute the only exception to the constitutional right of the accused to be confronted with the witnesses against him, and be afforded the right to cross-examine them. In all trials and on all issues the cross-examination is the most effective means of eliciting and ascertaining the truth. While the solemnity under which they are usually made is deemed, in some sense, an equivalent for the sanctity of an oath, yet their admissibility rests upon the grounds of necessity and public policy, and upon the presumption that, in the absence of other proof, crimes might go unpunished. The rules which govern the admission of such testimony are familiar and rudimental: (1) They must be made under the realization and solemn sense of impending death, when the motive for falsehood may be presumed to be lost in the despair of life; (2) they must be the utterance of a sane mind; (3) they are restricted to the act of killing, and the circumstances immediately attending it and forming a part of the res gestae; (4) no declaration, or any part of it, is admissible, unless competent and relevant, if made by a living witness; (5) that great caution should be observed in the admission of such testimony, and the rules which restrict it be carefully guarded.

The authorities abound with discussion of the reasons and considerations upon which these rules are founded, looking to the conservation of truth and that justice might prevail. The circumstance that the declaration is hearsay, and is without the essential element of cross-examination, stands, facile princeps, the most important of these reasons, and incidentally and necessarily involves other considerations. 1 Greenl. Ev., sec. 162; 1 Phil. Ev., 300; People v. Sanchez, 24 Cal., 17. “ The admission of dying declarations as evidence, being in derogation of the general rule which subjects the testimony of witnesses to the two important tests of truth, an oath and a cross-examination, it is obvious that such evidence should be admitted only upon the grounds of necessity and public policy, and should be restricted to the act of killing and res gestee. ’ ’ Leiber v. Com., 9 Bush, 11; 2 Starkie, Ev., p. 366; Bell v. State, 72 Miss., 513.

There are other considerations which have been dwelt upon by law writers and judges. Statements made under the shadow of approaching death may come with the infirmity of inattention, when the mind is diverted to the thoughts of the future; the vigor of the mind may be impaired; facts may be but partially stated; inferences and opinions may be stated as facts; the passions of anger and revenge may linger, after all hope of life is fled, and affect the truth of the statement. It must come as the memory of those who heard it, subject to all the uncertainties of a-correct understanding of the speech as made, and of a correct reproduction by the memory of what was truly said. Mr. Roscoe says: ‘ ‘ Such considerations show the necessity of caution in receiving impressions from accounts given by persons in a dying state, especially when it is considered that they cannot be subjected to the power of cross-examination, a power quite as necessary for securing the truth as the 'religious obligation of an oath can be.” Rose. Cr. Ev., p. 35. The foregoing principles are repeated, iterum iterumque, in varying phrase, in numerous authorities and cases, and are the well-settled law of this state. Bell v. State, supra; Lambeth v. State, 23 Miss., 350; Nelms v. State, 13 Smed. &M., 501; Brown v. State, 32 Miss., 433; Merrillv. State, 58 Miss., 66; Montgomery v. State, 80 Ind., 338; Moore v. State, 12 Ala., 764; Binns v. State, 46 Ind., 311. In State v. Vansant, 80 Mo., 78, it is said: “ Besides, such declarations are afflicted with the common infirmity which attaches to all oral statements or verbal admissions reduced to writing or repeated by another, and are liable to be colored or deflected by the medium through which they are transmitted to the jury.” And in Lambeth’s case, supra, Mr. Justice Yerger said that a dying declaration was not entitled to the same weight and force as if delivered by a living witness.

In Brown v. State, 32 Miss., 442, it is said, after commenting upon the nature of dying declarations, that "it is, therefore, the dictates of reason and common sense that declarations of this character, in all cases, and under any circumstances, should be admitted with caution and weighed by the jury with the greatest deliberation.” 1 Greenl. on Ev., sec. 162. We all concur that it is clear that as to dying declarations it would not be objectionable if the jury be charged that while they are the sole judges of the weight and effect to be given to a dying declaration, and that it is to be determined like any other evidence, in the light of all the evidence of the case, and to caution them, in determining its effect, that they should weigh it with great deliberation and care, and take into consideration the circumstances of its being hearsay; that it is the statement of one not subject to cross-examination, or such other relevant circumstances in that regard as may exist in any given case; and that it is the duty of the court to lay before the jury, by precautionary instructions, when asked, the inherent elements of weakness which the law recognizes in certain classes of evidence, but in such form as not to invade the province of the jury. The majority of the court hold that this instruction is not upon the weight of evidence; that its true purport is cautionary, and refers rather to the source than to the effect of the testimony. For myself, I do not concur in this view. It embodies argumentative statements of the law abstractly correct, but so stated as to bear upon the weight of evidence, and, in my opinion, was properly refused. In Lewis v. Christie, 99 Ind., 377, an instruction which followed the text of the most authoritative writer in the language on evidence (Greenleaf) was condemned, and it was said that argumentative statements of the law, though correct; may not always be an accurate rule of guidance to a jury. 1 Thomp. on Trials, sec. 640. We find no error in the rulings of the court as to the other instructions.

We come next to consider the ruling of the court upon the admission of the dying declaration, in respect to which several propositions are contended for by the appellant, which may be formulated as follows: (1) The proof did not show that at the time of making the declaration Stewart realized that his days were numbered, and the solemn hour of his death was at hand; (2) that the statement itself, in its peculiar character, bore evidence of mental incapacity, of unbalanced reason, and that it was a mere hallucination of a disordered mind; (3) that the declaration was not the statement of a fact, as of his knowledge, but an opinion, a mere belief, a conclusion deduced and inferred from other collateral facts.

All of the above propositions involve questions of fact, to be ascertained and passed upon by the trial judge upon a preliminary investigation, and in that sense are commonly designated questions of law. 1 Rosc. Cr. Ev. (8th ed.), 61; 1 Greenl. Ev., 219; Whart. Cr. Ev., 689; 1 Phil. Ev., 3, 7, 573; Simmons v. State, 61 Miss., 243; State v. Burns, 33 Mo., 483; Kilgore v. State, 74 Ala., 1; Owens v. State, 59 Miss., 547; Ellis v. State, 65 Miss., 48; Bell v. State, 72 Miss., 510.

It is therefore pertinent to inquire what degree of proof in law is required as to the facts which constitute what is ordinarily termed the foundation for the admission of such testimony — whether they should be established to the satisfaction of the court, or to that higher degree of certainty which excludes all reasonable doubt — and to what degree of certainty must it appear to be competent as the statement of a fact; and, second, what rules should prevail in determining whether it is an opinion or a statement of a fact — whether the literal form of a statement is to control, or whether its true character is to be gathered from the statement, considered in connection with the surrounding circumstances.

Taking up the first proposition, we find that the authorities in this state establish the rule that in a preliminary investigation by the court, for the ascertainment of facts precedent and necessary to the competency of proposed evidence, the degree of proof should be such as to exclude all reasonable doubt as to the facts of such foundation; and this is certainly true when the competency of any testimony rests upon collateral facts, independent of the main fact proposed to be proved; and in this case the rule applies to the preliminary questions (1) whether Stewart realized he was in extremis; (2) whether he was at the time sane and rational. Bell v. State, 72 Miss., 510; Owens v. State, 59 Miss., 549; Simmons v. State, 61 Miss., 257; Holly v. State, 55 Miss., 430; Ellis v. State, 65 Miss., 48.

But the competency of a statement, whether one of fact or opinion, is a question of judicial interpretation as to its meaning, as indicated by its terms, viewed in the light of surrounding circumstances. The interpretation must rest upon the ascertainment as to what was the true purport of the declaration. It is the conclusion to be reached as to this fact which must control. If it bo a reasonable construction that a statement is one of fact, it ought to be admitted.

Tested by the foregoing principles, we are of opinion that the judgment of the court below was right in holding that the foundation was sufficiently laid (1) as to the fact that Stewart was in extremis when the statement was made, and that he realized that he was beyond the hope of recovery, and (2) that at the time he was not insane or delirious, but spoke with discernment, reason and intelligence. We think the evidence established both of these propositions beyond reasonable doubt. He was in the throes of death when the statement was made, and died shortly thereafter. He called upon a bystander to pray for him, and declared that he was going to die. As to his mental condition, there is nothing in the evidence to justify a doubt that he was rational, except the suddenness, violence and brevity of the attack — a condition not inconsistent with a sound mind. It is argued that the statement itself, in form and substance, res ipsa loguitw, is the utterance of a mind diseased — an illusion of a disordered imagination. We do not so view it. The words of the speech may be unusual, yet they are words of discernment and reason.

This brings us to the question as to the admissibility of the declaration itself as evidence. If, according to the rule announced, it is a reasonable and probable theory that the declaration, according to its just import, taken in connection with the surrounding and relevant circumstances, was a statement of a fact within the knowledge and observation of Stewart, then it is competent, and its credibility and value as evidence was properly submitted to the jury; but if such an interpretation be unreasonable, or involves an improbable theory as to any assumed fact, it was incompetent, and the ruling of the court erroneous. At the threshold of the question we are met with the contention that so much of the statement as refers to Huy Jack having insurance upon Stewart’s life, and. that he hired Lipscomb to kill him, are facts which are not of the res gestee, as immediately connected with the killing, and that part — “that he had been dead, and the Lord had sent him back to tell ” — is irrelevant, and consequently that the court erred in admitting the whole declaration which embraced these statements. That they were not a part of the res gestee, and are irrelevant, goes without saying, and, as such, were inadmissible. But, inasmuch as no specific objection was made to these particular parts of the declaration, but was to the whole statement, it is contended, on the other hand, that such objection,, according to familiar rules, will not avail if any part of the declaration was competent or relevant. Inasmuch as the decisions in this state are not apparently uniform as to the practice in applying the 'rule, it is deemed proper that a statement of the law as to this very familiar rule, as we all understand it, be made.

It is well settled, by numerous adj udications, that a general objection raises no issue, except it is as to whether the evidence would, under any circumstances or for any purpose, be admitted, and that a specific objection raises no other issue than the particular one tendered. If, under any circumstances of the case, testimony be admissible, a general objection would be properly overruled; and, conversely, it would be error to sustain a general objection if, under any view of the case, the evidence might be admissible. This rule applies with particular force in cases where the objection may have a twofold aspect, and may be put upon different grounds. It might go to the competency of the witness, to the mode of proof, to the insufficiency of the foundation, or to the relevancy or competency of the matter of the testimony. Testimony may be material and relevant, and still incompetent by reason of the method of proof or lack of some precedent predicate required by law to be first established, and vice versa. In Heard v. State, 59 Miss., 546, it is said: “When an objection is made to evidence which in its nature is such as may be obviated, it must be specific, so as to allow the party offering it an opportunity to supply its place if the objection is sustained, and, where this is not done, it will not be noticed m the appellate court." Morris v. Henderson, 37 Miss., 492; Brown v. State, 72 Miss., 95. The reason of the rule is said to be twofold: (1) To enable the trial judge to understand the precise question upon which he has to rule, that he should not be required to search for objections which counsel do not discover, or conceal; (2) to afford the opposite party an opportunity to obviate it if well taken. Decell v. Lewenthal, 57 Miss., 331; Heard v. State, 59 Miss., 545; 1 Thomp. Trials, sec. 693; Wesling v. Noonan, 31 Miss., 599; Morris v. Henderson, 37 Miss., 492; Brown v. State, 72 Miss., 95; Mills Co. v. Smith, 69 Miss., 299; Reynolds v. State, 68 Ala., 502; Archibald v. State, 122 Ind., 122 (23 N. E., 758); Dozier v. Jerman, 30 Mo., 216; Brown v. Weightman (Mich.), 29 N. W., 98; Moore v. Bank, 13 Pet., 302; Stone v. Oil Co., 41 Ill., 85; Gilbert v. Thompson, 14 Minn., 544 (Gil., 414); Rush v. French, 1 Ariz., 99 (25 Pac., 816).

A large number of cases to the same effect are collected in 1 Thomp. Trials, sec. 693. The rule also involves the particular proposition that a general objection is properly overruled to testimony a part of which is admissible and part not. But this particular rule has not been uniformly followed in this state. In Merrill v. State, 58 Miss., 66, and in Field v. State, 57 Miss., 474, statements were admitted in evidence parts of which were admissible and part were not. In both cases the ruling of the court was held to be erroneous, notwithstanding the objection was general. It is true the point was not made in either case invoking the rule that the objection was general. It has been well observed that a court might take cognizance of fatal error in proper cases to avoid injustice, notwithstanding, by inadvertence or accident, the objections were not made specific or properly framed. In view of the fact that the rule has not been strictly enforced in this state in all cases, by reason whereof some doubt may have prevailed as to the practice, it might be questioned whether it ought to be enforced in this case, especially as the record shows that the objection was argued by both sides, and presumably, of course, upon specific grounds. We do decide that Field’s case and Merrill’s case are not to be held as precedents for a different rule than that announced above.

Again, as preliminary to the question of the admissibility of the statement, it is important to first ascertain, as a rule of interpretation, whether the form of the statement — the literal sense of the words used — is to govern, for, if this controls the interpretation, there is no room for construction, for leaving out the figurative reference to the Lord, as is proper to do, the words of the statement, in their ordinary significance, literally interpreted, fairly import knowledge, and not opinion. We appreciate the force of the argument so ably made by counsel, for the state, which is supported by some precedents, that the face of the statement alone must be looked to for its purport in that respect. The proposition is not founded in sound reason, and is contrary to the great weight of authority. The ends of justice are to be attained only by ascertaining, as far as practicable, the very truth. The truth as to the purport of any speech — its true meaning — is to be gathered, not from the literal form of the phrase and irrespective of the nature of the'act narrated. The situation of the speaker; what of mental impulse, motive, inducement or emotion was evinced, and all the surrounding circumstances; the words used, their literal signification, as well as that in which, in common parlance, they are often employed; and the character and nature of the fact stated, are all to be considered in determining the truth as to the meaning of any utterance. They aro ‘ ‘ the light unto the path ’ ’ which leads to a true solution of every such problem.

It is of common experience that matters of information, and of belief or opinion, are generally expressed in a form importing personal knowledge. Fixed convictions, regardless of' the mental processes involved, take the form of dogmatic assertion, and suspicion is couched in terms of direct accusation. Even the cautious and learned do not discriminate, and give emphasis to their settled conclusions by declaring, "I know. ’ ’ In this case, an expert physician, who had heard all the evidence pertaining to the symptoms of Stewart’s malady, and the evidence of the presence of strychnine disclosed by analysis, when asked if he could state from these facts the cause of death, replied “ that the evidence makes me believe — I know; I believe I can say I know — that he died from strychnine poisoning. ” “1 know that my Redeemer liveth ’ ’ is the exclamation of an exalted faith, disclaiming all equivocation, and yet the thought traverses the realms of the unknown and the unknowable. Credo ut intelligam. The question is not one of the probability of the truth of the fact stated, or of the opportunities for knowledge, but what is the statement itself with reference to the fact? Is it an opinion or not? And the true rule, we have already announced, is that it should be given that construction in this regard which, under the circumstances, appears most reasonable. State v. Williams, 67 N. C., 12; Walker v. State, 39 Ark., 221; Jones v. State, 52 Ark., 345 (12 S. W., 704); Bell v. State, 72 Miss., 514; Nelms v. State, 13 Smed. & M., 500.

Cases could be multiplied all to like effect, that a statement is not to be held as one of fact because of the literal sense of its words, but is to be interpreted in the light of all the attendant circumstances. Applying these rules of interpretation to the dying declaration in this case, the majority of the court hold that a part of the declaration, to wit: that “Dr. Lipscomb has killed me, has poisoned me with a capsule he gave me to-night, ” is separable from the other parts of the statement, and is competent as a statement of fact. The other parts — the reference to “ the Lord sending him back to tell,” etc., “ that Guy Jack had his life insured, and hired Lipscomb to kill him ” — are, of course, inadmissible. Judges Whitfield and Thompson hold that no error can be predicated on the admission of the incompetent matter under a general objection. I dissent from the view that any part of the declaration was admissible. It seems to me that when the declaration, “ Dr. Lipscomb has killed me; he has poisoned me with a capsule he gave me to-night, ” is considered, not according to its literal terms, but in the light of all the circumstances and in connection with all parts of the statement and the nature of the act alleged and the mental processes necessarily involved, the conclusion is inevitable that the statement was not one of knowledge, but the expression of an opinion, a mere inference, a deduction, a conclusion. The very nature of the thing stated implies a process of reasoning by induction. Facts which the law recognizes as of knowledge must, be perceived through the senses. Cause and efficient agencies may be perceived and known as well as effect, but an agency or cause which is known only by subsequent effect, is not known in truth, but deduced, and the particular agency can only be inferred. Stewart knew he took a capsule. He did not know it was poison. He afterwards knew and felt certain sensations. They were subsequent effects. That they were the effects of poison he could not know, but only infer. He could not know any more, nor as much, as an expert physician, had one been present observing his condition, and what, in such case, would be observed by the physician and felt by Stewart, would be but symptoms to both, indications evidentiary in character, but which, from the nature of things, could only be the basis as facts from which other facts could be concluded. The facts known to Stewart pointed with unerring certainty to the truth. — that he was poisoned; yet, the truth still remains only an inference of fact. If he knew the capsule was poison, he knew it when he took it— an incredible theory. If he became convinced of it afterward, as well he may have done, then it was a deduction, logical and conclusive it may have been, but still a deduction, inferred from his symptoms, the taking of the capsule and the insurance upon his life. His assertion that Jack held insurance upon his life, and hired Lipscomb to kill him, though illegal evidence, throws a flood of light upon his meaning. It lays bear the processes of his mind. The capsule, the insurance and his dying condition, revealed to him to a moral certainty the motive and agencies of the foul murder, but the revelation came only through a process of reasoning by inference, and, at last, only as an opinion.

It is urged in argument that it is a “ fact ’ ’ that Stewart was poisoned, and as the evidence tends to show it was administered by Lipscomb, that it is also a “fact” that Lipscomb poisoned him, and that the declaration, therefore, states them as ‘ ‘ facts. ’ ’

The argument is in a circle. Of course a ‘ ‘ fact ’ ’ may be stated, but not in the sense that the statement makes the ‘ ‘ fact, ” for the fact exists independent of the statement, but in the sense that it asserts knowledge that a thing was done or an act come to pass. The question is. not whether the matters of the statement are matters of fact, of things or acts done, but whether the statement made in reference thereto is an opinion concerning the facts or an assertion of personal knowledge of the facts. A “statement of a fact,” as distinguished from hearsay or opinion evidence, means the testimony by a witness of his recollection of things observed and perceived by him. It is that knowledge which is derived through impressions made upon the senses by external objects and through subjective sensations. Without reference to the metaphysical theories of the processes of sensation, experience, acquired perception, intuitions, reflection, ideation, and the like, it is enough for the practical purposes of the law that the knowledge of which a .witness may testify is the ordinary perception and understanding of things seen or heard, or otherwise perceived through the senses, or subjectively.experienced through sensation, and whatever other facts these import are inferences.

The argument based upon the illustration that when one is seen to fire a pistol toward another, and that other feels the shock and pain of the wound, and in such case knows that he is shot, though not seeing the flight of the missile, is without analogy, and its fallacy is apparent. For in that case the very agency or cause of the hurt is seen. The act of the shooting and design is seen before and simultaneously with the effect, and the instrument used, according to universal experience and common knowledge, is a deadly weapon, and when fired produces a wound instantaneously and simultaneously with the shot, and a wound of a character as unique and universally known as are the outlines of a horse, by which we distinguish him from other animals.

Whenever poison is taken, and it be not known at the time, it cannot be known in a legal sense at all. It may be demonstrated as a certainty, and even that cannot be done absolutely, if the symptoms felt by the victim or seen by others be relied on. This is self-evident. It may be demonstrated beyond a reasonable doubt, but then only by inductive reasoning. If, besides the symptoms, an analysis is made, then the demonstration may become absolutely certain, but no one will say that the disclosure afforded by an analysis imparts knowledge of the cause of the death, as distinguished from conclusion.

It is argued that the nearness in point of time between the taking and the effect of poison, enables one to know that he is poisoned. The fact is, he knows nothing but the effect, and the cause, whether near or distant, stands in mental contemplation apart from it, and cannot be perceived by the senses, but must be reached by the reason. And this argument would concede that, if longer time intervened, it might not be ‘ ‘ knowledge, ’ ’ which demonstrates that it is only opinion in both cases, the difference being in the degree of certainty. Cause and effect are concepts of the relation of things. Both may be perceived and known, but where only one is known, the other can only be inferred. It is true that one may speak of his sensations and describe them as of his knowledge, and it would be competent if the statement meant only that he felt as if he was poisoned, for that would be but a description, however uncertain, vague and conjectural it might be. In my opinion no part of the statement is admissible. It is true the fact is stated by implication that he took a capsule which Lipscomb gave him, and if that stood by itself, it would be admissible. But it is not stated directly. It is stated by implication, sub modo, in the general charge that Lipscomb poisoned him with a capsule he gave him. The principal proposition of the statement is that Lipscomb poisoned him, and this is inadmissible. It is a charge which sentiment and imagination invest with potential effect. In its chief significance and the quality of its most effective import it is mere conjecture, and legally false. It cannot be made to do duty as evidence of the incidental fact implied that Lipscomb gave him the capsule.

Nor can I concur with the majority of the court that the statement can be separated in its parts, and to hold a part admissible and a part not. Even conceding, as held by the majority of the court, that so much of the statement, to wit: ‘‘ That he poisoned me with a capsule he gave me, ’ ’ is admissible, taken by itself, yet, it seems to me that the declaration is so related in its parts that the true meaning of any part cannot be had, except when considered in its connection. It should stand or fall as a connected whole.

The statement cannot be even constructed grammatically into different sentences. It embodies a continuity of thought and expression relating to a single fact, the cause of his death. The parts proposed to be rejected stand in the relation of emphatic qualification of the meaning of that proposed to be admitted, even to the extent of casting upon the whole suspicion and doubt. Is not the defendant entitled to the benefit of the absurdity involved in the introduction: “I have been dead, but the good Lord has sent me back to tell, ’ ’ etc. ? It goes to the discredit of the whole statement. So the concluding part: “Guy Jack had my life insured, and hired Lipscomb to kill me,” is a component part of the statement. It is manifestly the expressed reason and ground for the statement that Lipscomb had poisoned him. It is rejected as inadmissible because it is a palpable conjecture, but that very construction supports the theory that the whole statement is mere opinion, and in that respect tends to qualify it. To vary the weight and significance of the statement by arbitrary and artificial adjustment is to juggle with its sense. It is a grave injustice, to be remedied only by admitting the whole statement — a greater injustice.

An examination of all the cases cited by counsel, in support of their view of the dying declaration, and of many others, has been made, but none of them seem to me to support the proposition contended for. It is true that in Payne’s case, 61 Miss., which is followed in Powell’s case 74 Miss., the statement “shot me without cause,” and the case of Boyle, 105 Ind., where the statement was “he cut me without reason,” go to a further limit in holding such statements to be of fact than any other adjudications where the precise question is decided. For the decision in Payne’s case no reason is given. It was simply asserted that the statement was a fact and not an opinion — a petitio principii. But one authority is cited, and that is the case of Wroe v. State, 20 Ohio, which will be found upon examination to be doubtful authority for the principle announced. In the case of Boyle v. State, 105 Ind., 469, which follows Payne’s case, the dissenting opinion by one of the judges is an overwhelming demonstration of its error. Payne’s case rests upon Wroe’s case, and that upon Handy v. Commonwealth, 5 Crim. L. Mag. (Ky.), 47, and that, in turn, upon Rex v. Scaife, 1 M. & R., 551. Referring to these cases, we find that, in the case of Rex v. Scaife, “I don’t think he would have struck me if I had not provoked him, ’ ’ was admitted, after hesitation, by Coleridge, J., but upon the express ground that it was in favor of and not against the prisoner. And in Handy v. Commonwealth (Ky.), referring to Coleridge’s decision, supra, it is said: “That the general rule that declarations of deceased are admissible only when they relate to facts, and not to opinions, is subject to the exception that declarations of mere opinion of deceased are admissible when favorable to the accused, and explained the conduct of the deceased, ’ ’ and yet this case is cited in Wroe’s case, as authority for the proposition that the statement was one of fact. But that case of Handy v. Commonwealth is without any analogy to the cases of Wroe, Boyle, or Payne. The authority of that tribunal, however, in an exactly analogous case, condemns the cases mentioned. In Collins v. Commonwealth, 12 Bush (Ky.), 271, the declaration was, “Michael Collins killed me, and killed me for nothing; ” as to which Chief Justice Lindsay says: ‘‘ The statement that Collins killed the deceased for nothing was but the expression of an opinion, and was clearly inadmissible.”

In the cases of People v. Farmer, 77 Cal., 41; Richards v. State, 87 Wis.; Robert v. State, 5 Tex. App., 141; People v. Green, 1 Denio; Weight v. State, 30 Tex. Co. App.; State v. Terrell, 12 Richards, 330; State v. Belton, 24 S. C., 188, the question as to whether the declaration was one of "fact" or “opinion” was not raised. In the case of Walker v. State, 39 Ark., 22, the statement was, “Nick Walker shot me,” and though the evidence shows it was through an auger hole at night, it was admitted upon the theory that it was in the form of a statement of fact, and if, by any possibility, it could be known to the declarant, it was admissible; but this case was overruled practically in Jones v. State, 52 Ark., where a person was shot through a crack, and it was held impossible that he could know. In Brotherton v. People, 75 N. Y., 159, the deceased stated he did not recognize the prisoner until he commenced his pranks. The prisoner was disguised as a tramp, was the son-in-law of and well known to the deceased, and the testimony was clearly admissible as indicating knowledge from his personal observation. In the case of State v. Arnold, 13 Iredell, the declaration was that “A. B. has shot me, and none other.” It is contended that, from the situation of the parties at the time, deceased did not have an opportunity of knowing the fact so as to enable him to express more than an opinion on the point, which was held to go to the credibility of the statement. In State v. Giles, 8 Wash., 12, the declaration was, “They butchered me.” The indictment was for manslaughter for an unnecessary surgical operation. The court held that it no more expressed an opinion than the word ‘‘ killed ’ ’ used without qualification. Hackett v. People, 54 Barbour, 370, merely distinguishes between what is and what is not res gestae. In Commonwealth v. Matthews, 87 Ky., 287, the statement was that the accused and the deceased were engaged in playing, and that the shooting was an accident, and held admissible for the defendant. In State v. Clemons, 51 Iowa, 274, the declaration was, “Ed Clemons shot me; ain’t I right? ” The court says: ‘ ‘ The closing part is put in the way of an interrogatory, and may have been for the purpose of assuring himself, not that he was correct as a matter of opinion, but that his observation of the fact was correct.” In Sullivan v. State, 102 Ala., 142, “Jim Sullivan cut me; he cut me for nothing. I never did anything to him.” And to the objection made that the statement was one of opinion, the decision in the case made but a single reference to it, contained in two lines. It says, ‘ ‘ True, this statement was very general, but it is admissible as a collective fact,” citing Brickell’s Digest, 437. Certainly in this case the expression, “he cut me for nothing; I never did anything to him,” might well be held not an opinion, but a denial that the deceased made any overt act, in view of the circumstances shown for the state that, at the time he was stabbed, he was standing with both hands to his sides in a natural position, and made no movement whatever. But how the expression ‘ ‘ collective fact, ’ ’ whatever that may mean, tends to illustrate the difference between a fact and an opinion, is incomprehensible to me. In Jordan v. State, 81 Ala., 20, the statement was, "Jule shot me, and Handy cut me, and all for nothing, ’ ’ and the only objection urged to it in the appellate court was that no sufficient predicate had been laid, and this was the only question relating to the dying declaration decided by the court.

It will thus be seen that but few of the cases cited for the state are distinctly upon the question whether the dying declaration was a statement of fact or an opinion, or throw any light upon the precise question in this case. In but two of the cases where the question was a debatable one is any reason given for the conclusion that the statement was one of fact. In one (Sullivan v. State, 102 Ala., 142) it is put on the ground that the statement was of a "collective fact, ’ ’ and the other is Boyle v. State, 105 Ind. Says the court in that case: ££ £He cut me without reason ’ is an inference of facts from observed facts, ’ ’ an exact definition of an opinion, and is its own refutation. Like the struck eagle, it may

View its own feather on the fatal dart

That winged the shaft that quivered in its heart.

Several of the cases above referred to have been challenged and condemned.

Rice on Evidence, vol. 3, p. 536, refers to Wroe’s case, 20 Ohio St., 460, to Roberts’ case, 5 Texas App., 141; Payne v. State, 61 Miss., 161; People v. Abbott, 4 Whart. Rep., 422; Brotherton v. People, 75 N. Y., 159, as being opposed to the weight of authority, as precedents for the admission of opinion evidence, and referring to the dissenting opinion in Boyle v. State, 105 Ind., 469, says: "It is seldom, indeed, that any opinion is so critical in its analysis, so exhaustive in its citation, or so logical in its conclusions. Any discussion of this subject which omits a careful consideration of this case must be regarded as grossly imperfect. The principal opinion was delivered by Mr. Justice Elliott. It is a very ingenious argument in favor of the prevailing view. But while perfectly aware that my function as a text writer will not tolerate the least attempt to make a law, I submit the dissenting opinion of this exceedingly able court contains the statement of the better view both on principle and authority. ’ ’

Turning- now to the other decision, I think it will appear that the declaration in this case, as admissible evidence, is absolutely condemned by precedent. Of all the adjudications examined, but one has been found directly in point, where the facts are almost identical. In the case of Berry v. State, 63 Ark., the circumstances were that the prisoner had given to the deceased a drink of whisky; that shortly after he was taken ill, and died from the effects of poison. To the physician who was called to attend him, he stated “ that he had drunk the whisky; that the prisoner had given it to him; that he was poisoned; that the prisoner had given him his dose; that it tasted nasty when he drank it. ’ ’ It will be observed how much stronger is this case than the one at bar in favor of the theory that it was a statement of fact, for he not only experienced the sensations which he thought might be those of poison, but he stated that the whisky “tasted ” nasty, a fact which he perceived through one of his senses and that he drank the whisky which the prisoner had given him, yet the court, in that case, held the testimony to be incompetent, because it was but the expression of an opinion, and, in my judgment, rightfully so held.

The same principle is illustrated in many analogous cases. In Whitley v. State, 38 Ga., the statement was, that “it was hard to be killed for telling the truth; that God knew he told the truth, and Ed knew it was the truth,” and was excluded as an opinion. In Willaims v. State, 67 N. C., the statement was excluded as an opinion which was to the effect that Williams shot him, but “I did not see him,” though it was contended that he might have heard the prisoner, and identified him in that way. A witness cannot be allowed to state that the shooting was intentional. Montgomery v. State, 80 Ind., 328. In McPherson v. State, 22 Ga., 478, the declaration was, “Did not believe that accused intended to hurt him. ’ ’ This was excluded as an opinion, although in favor of the accused. People v. Washington, 3 W. C. Rep.: “ I think this man Washington was the man that shot me, ’ ’ was excluded as an opinion. In the case of Shaw v. People, 3 Hunt (N. Y.), 272, it is said that “ it is more important to exclude an opinion deelaratio in articula mortis.” In Chambers v. State, 87 Mo., 408, declarant said he thought he ivas about to draw something from his pocket— a knife or pistol — and that he followed him so that if he did draw a knife or pistol he could catch or knock it out of his hand before he could hurt him, and this was excluded upon the ground that it was an opinion. Moore v. State, 33 Ala., 421, the de-clarant, after detailing the circumstances of the homicide, said that defendant was the only slave on the plantation at enmity with him, was excluded. Of like effect is Jones v. State, 17 Ala.; Binn v. State, 37 Ala., 103; Loshbaugh v. Birdsell, 90 Ind., 466; Yost v. Conroy, 92 Ind., 464; Ferguson v. Hubbell, 97 N. Y., 507; Warren v. State, 9 Tex. Ct. App., 629; Moex v. State, 100 Ill., 240. In the light of these unchallenged precedents, on principle and justice, it is my conclusion that the dying declaration of Stewart was not'a statement of fact, but an expression of an opinion, and inadmissible as evidence.

It is assigned for error that the court refused the request of the defendant to deliver to the jury the paper containing a memorandum of the autopsy. Seeing that it was plainly required by the statute, it is not perceived upon what possible ground the request was refused. But as all the facts in the memorandum were testified to orally, and the memorandum read, the error is not deemed material. If the dying declaration was irrelevant and incompetent evidence, there can be no doubt, in view of its character and probable effect, as to the consequences of such error. It is conceded that such error must be fatal to any verdict, and for which, as well as for the error in the ninth instruction given for the state, I am of opinion that the judgment of the court below must be reversed.

The conclusions of the court are, all concurring:

1. That the court below erred in granting the ninth instruction given for the state.

2. Judges Whitfield and Thompson concurring, Magruder dissenting, that the court erred in refusing fifteenth instruction asked by the defendant.

.3. All concur that a part of the dying declaration is inadmissible. Judges Whitfield and Thomspon concur in holding a part admissible, to wit: “ Dr. Lipscomb has killed me; he has poisoned me with a capsule he gave me to-night,” and that this may be separated from the other parts of the statement. Judges Whitfield and Thompson hold that no error can be predicated of the admission of the dying declaration on the ground a part of it is incompetent, for the reason that the objection to its admissibility is general, and not specific. Magruder holds that no part of the dying declaration is admissible, and, from the character of the statement, is incapable of separation without injustice to the defendant. Judges Thompson and Magruder concur that the case should be reversed, for the reasons indicated in their respective opinions, and Judge Whitfield, notwithstanding the errors conceded by him as to giving the ninth instruction for the state, and the refusal of the fifteenth instruction for the defendant, hold the case should be affirmed.

I fully concur in the view stated by Judge Thompson as to the law which should govern the reversal of cases for error. It is not within the province of the appellate court, under our constitution and laws, to be the triers of fact and of guilt. Our duty is to lay down, with unswerving purpose, the law as we find and understand it. Questions of public policy belong to another forum. A legal trial is a trial according to the law, and a legal conviction is a conviction by a jury according to recognized procedure and principles of law. If, in any trial, an error of law be made, the case should be reversed, if it be so material or of such character as is calculated to influence, and probably did influence, the verdict. The case is not to be looked at from a judicial standpoint, and the guilt of the accused be so ascertained, or the materiality and consequence of the error be so determined, the question in all cases being, not what the jury ought to do, or might do, according to our judgment, but whether the error is of such character.as that the jury itself might have been influenced by it.

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Dissenting Opinion

Whitfield, J.,

delivered the following opinion favoring an affirmance of the judgment appealed from.

Beyond what immediately follows I do not desire to be understood as saying anything touching the rules of law applicable to the laying of the predicate for the admission of a dying declaration. There is certainly one thing of which the court should be satisfied beyond a reasonable doubt, which does enter into the general predicate necessary to be established before such declaration is competent, that the party had a sure and fixed belief that he was then about to die. It is true that no declaration by such declarant is competent as testimony unless it would be so competent were he living and testifying to the declaration; and that such declaration is only competent, as to its extent, so far as it relates to the act of killing and the res gestee of such act. But these last two features seem to me not so much elements of the general predicate, as going to the competency of the different parts of the declaration. For example, the court would exclude all which the declarant would not be competent to testify to if living and testifying, and it will limit his declaration to the killing and the res gestee of the killing; but these features do not go to the source of the testimony— the reason for its admission (which is, that the consciousness of •impending death is a substitute for an oath, the public necessity relieving from the need of cross-examination) — but rather to the general competency of the different parts of the declaration, the court to determine such competency as it would determine the competency of any other testimony not in the dying declaration.

Whether my view as to these two features is correct or not, I am sure that the question of the competency of a part of a dying declaration, turning on its being an opinion or a statement of a fact, forms no part of the preliminary inquiry of the court as to the existence of the predicate making the declaration competent. The reasons which make the dying declaration competent are reasons which go alone to the source of the testimony, its character and nature, as the deliverance of a party soon to die, conscious that he must die, speaking under the solemnity of this consciousness — the substitute for the oath— and, from his situation, not able to be subjected to cross-examination. Whether part of the dying declaration is opinion or the statement of a fact goes to its general competency as testimony, without regard to its source, and is admitted or excluded on precisely the same grounds as the statement of opinion or fact would be in the case of any other witness. Manifestly, therefore, when the court has decided as to the competency of such statement that it is opinion or the statement of a fact, the jury must accept it as being what the court declares it to be— opinion or the statement of a fact; or, rather, the court has the right, if it deems it opinion, to exclude it from the jury altogether, but, if it deems it a statement of fact, the jury must accept it as a statement of fact so far as its character is concerned, but are, of course, themselves the exclusive judges of what weight or credit they will give to the statement, treated as a statement of fact.

The question whether it is opinion or the statement of a fact is exclusively for the court in a dying declaration, just as it would be, and precisely for the same reason it would be, if such opinion or statement of a fact were testified to by any witness on any other subject. And so, I think it is for the court to determine what parts of such declaration relate to the killing and its res gestee, it being its duty to exclude all such parts as do not relate to the killing and its res gestee, just precisely for the same reasons it would be the duty of the court to exclude the testimony of any other witness which did not relate to the fact in controversy and the res gestie of that fact. And so, clearly, that which the court deemed not relating to the fact of killing and the res gestee of the killing would never reach the jury, and ought never to reach the jury. And, so, also, whether the statement in a dying declaration would be competent if the party lived and testified, is exclusively for the court as to its competency, and, if not competent, the court would exclude it, and it would never reach the jury, and ought not to. These three things — whether the testimony is the statement of an opinion or the statement of a fact, whether the declaration would be competent if the party were living and testifying "to it, and what parts of the declaration relate to the killing and the res gestee of the killing — -seem to me to be things which the court should determine, so far as their competency is concerned, just as it would determine the competency of any like testimony by any other witness or any other issue involved in a case, and that it is not necessary that the court should be satisfied on its rulings as to these things beyond a reasonable doubt of their competency. But the court ought- to be satisfied beyond a reasonable doubt that the party had a sure and fixed belief that he was about to die. It is such belief that he is abbut to die, and the fact that, so being about to immediately die, he cannot consequently be cross-examined, which, from public necessity, constitute the legal reasons for the competency of the declaration, looking to its source and nature. All the other considerations, it seems to me, are questions of general competency of the testimony in the particular respects indicated, applicable, equally and for the same reasons, to the like kind of testimony offered to establish any other proper issue in any given case.

In this case I think the legal predicate for the admission of the dying declaration was abundantly shown. And now as to the competency of the dying declaration. It is in these words: ‘ ‘ He said he had been dead, and that he was going to die, and the good Lord had sent him back to tell me that Dr. Lipscomb had poisoned him with a capsule he gave him that night, and Guy Jack had his life insured, and had hired Dr. Lipscomb to kill him.” I think that part of the declaration, that "he had been dead, and that the Lord had sent him back, ’ ’ ought to have been excluded on a specific objection to that end. Here are three statements: (1) “That Dr. Lipscomb had poisoned him with a capsule he gave him that night; ” (2) “ that Guy Jack had his life insured; ” and (3) “ that Guy Jack had hired Dr. Lipscomb to kill him.” Clearly, that Guy Jack had his life insured is the statement of a fact, and a fact of which he might well have had knowledge. Here is, at least, one clear statement of a fact reasonably within his knowledge. The statement that Guy Jack had hired Dr. Lipscomb to kill him is put in the form of a statement of fact, but it seems to me clearly an inference or opinion of the declarant, drawn from other facts probably within his knowledge. I am clearly of the opinion, after the most careful consideration of the authorities, that the statement “that Dr. Lipscomb had poisoned him with a capsule he gave him that night, ’ ’ is, in its entirety, the statement of a fact fully within his knowledge, and not, in any sense, an opinion. The suggestion in argument that if Stewart knew the capsule was poison, he knew it when he took it, is a manifest non aeqwitur to my mind, and a palpable confusion of. thought. It might just as well be said that one who knows he is killed by a shot from a pistol, did not know it because he supposed the pistol was loaded with a blank cartridge. Here, then, is a dying declaration, part of which is the statement of an opinion, and part of which is the statement of a fact, known to the de-clarant at the time. That part which was opinion was clearly incompetent; that part which was the statement of a fact, to wit, ‘ ‘ that Dr. Lipscomb had poisoned him with a capsule he gave him that night, ’ ’ is clearly competent. I cannot escape the conclusion that the statement “that Dr. Lipscomb poisoned him with a capsule he gave him that night,” is just as exactly a statement of fact as would be the statement of any declarant that some person had shot him or killed him. He knew that Lipscomb had given him this identical capsule. He knew he had it in his possession up to the time that he took it. He knew that he had taken it, and he knew its deadly effect just as much as one would know the deadly effect of a pistol bullet entering his person. He would know it better, as of his own personal knowledge, than any expert physician, who might testify on a hypothetical state of facts, that he had been poisoned with such capsule, because he himself felt, and from so feeling, through the sense of touch, knew, that the capsule was killing him, while an expert would be giving his opinion that it killed him, based on such hypothetical statement. Any process of reasoning which seeks to distinguish between the statement, “Dr. Lipscomb poisoned me with a capsule he gave me tonight, ’ ’ and "Dr. Lipscomb killed me or shot me, ’ ’ seems to me a refinement not only too uncertain and visionary to serve in the practical administration of justice, but essentially inaccurate. I do not think any amount of reasoning or form of statement can destroy or impair the common sense conclusion that such statement is necessarily the statement of a fact within the knowledge of Stewart, and 1 shall not pursue it further.

We are brought face to face, then, with the thoroughly established rule of evidence, supported by an overwhelming array of authorities set forth in the briefs of the learned counsel for the state, that where a part of a dying declaration is competent, as the statement of a fact, and part not so competent, the whole is properly admitted, unless the defendant, by specific objections, points out, and asks the trial court to exclude, the objectionable parts. In this case the objection was twice presented —once before the court on a preliminary investigation, and once when offered before the jury — and, in both cases, it was, clearly and indisputably, nothing more than the merest general objection to the whole of the dying declaration as incompetent, without the specification of a single ground of incompetency, and without pointing out the part which was objected to as incompetent. It will not do to say, because the jury retired, and the objection was fully argued before the court, that we can assume that, in that argument, counsel made specific objections on the ground of opinion or otherwise. We look, to see the specific objections urged to the testimony, not to the argument of counsel, but to the objections the record itself sets forth as having been made; nor would it help the appellant if we did look to the bare statement that it was argued, for the argument is not set forth, nor is it stated that in the argument any specific objections were made. The unequivocal declaration of the record is that the objection was made in the merest general form and argued as such. If this court is to supply the omissions of counsel to comply with the settled rule of evidence demanding that specific objections shall be made, so that the trial court may have a fair opportunity to deal with the objections, and so that this court may fairly review the rulings of such trial court on such specific objections, and imagine or conjecture that counsel, in their argument, presented to the trial court objections the record does not disclose, we upset the order of legal procedure, and embark on a most uncertain sea. It would never be possible to escape hereafter the point, when urged, that though,specific objections had not been made, as shown by the face of the record, yet the court should presume, when the record says merely that the objection was argued, that the trial court had the benefit of a specific objection, for the first time really disclosed in this court. I cannot assent to such a proposition.

In Lambeth v. State, 23 Miss., 322, it was held by the court, through Judge Yerger, that, if so grave a matter as the constitutionality of the competency of dying declarations was not presented in the trial court, this court would not regard it, when made here for the first time; and whether that be a sound declaration as to a constitutional objection or not, it is surely the most positive alignment of this court with courts elsewhere, which hold that, if the specific parts of a dying declaration, objected to as not competent, are not pointed out by specific objections in the court below, this court will not here regard such objection, disclosed here for the first time.

Merril’s case, cited in the opinion of my brother Magruder, was a case where the attorney-general confessed error, practically, and the point here discussed was not presented. We all concur in the rule that the whole of a dying declaration will be properly admitted, unless the parts of it which are objectionable are specifically pointed out in the court below, as the true rule. If it be possible that in some capital case in the future, to enforce the rule strictly would result in imposing the death sentence by the mere rule itself, where, from other testimony in the case, and the conduct of the trial, this court could clearly see that grave injustice would be done, in such rare and occasional case, in the future, the court might properly shrink from the enforcement of the rule, acting upon the doctrine that rules are made to secure and not to subvert justice; but in a case like this, where, as I view it, the testimony, aside from any dying declaration, shows the defendant to be guilty beyond every reasonable doubt, there can be no reason for departing from the rule. There is no reasonable hypothesis on the testimony in this case consistent with anything else than the manifest guilt of this defendant, and the enforcement of the rule, therefore, secures, and does not subvert, justice, protects society, and deters others from the commission of like offenses. To substitute the judgment of a particular court in the enforcement of this rule in an occasional case, even for the settled rule itself, is obviously dangerous practice.

It was said in Brown v. State, 72 Miss., 97 : "It is not permissible for one to experiment with the court by consenting by silence to all the evidence of a witness, and then move to exclude all the evidence because some part was incompetent. All the evidence was competent, except in the one particular already adverted to, and this, no doubt, the court would have excluded if attention had been called to it by a specific objection. To have excluded all the evidence would have been palpable error, and this is what the court was asked to do, as we suppose. ’ ’ In this case it is beyond supposition, it is a fact shown by the record, that the defendant asked the court to exclude all of the dying declaration, when, as I and my brother Thompson think, that part of it, to the effect that “ Dr. Lipscomb had po.isoned him with a capsule he gave him that night, ’ ’ was clearly competent as the statement of a fact. To the same effect, precisely, is Heard v. State, 59 Miss., 545. I think, therefore, there was no error in this case in the admission of the dying declaration, because the objectionable parts were not sufficiently pointed out, and because it is a case in which the guilt of the defendant is overwhelmingly manifest by the other testimony in the case.

I desire to add that 1 think the rule announced in State v. Williams, 67 N. C., 12, to the effect that the court should allow the dying declaration to go to the jury as the statement of a fact, and not of an opinion, where it is, from all the circumstances attending the declarant at the time of the killing, reasonably probable that he had knowledge of what he states as a fact, is a correct rule. The mere form of a declaration is not conclusive as to whether it is the statement of a fact or of an opinion, for that is form, and not substance. But where the circumstances attending the declarant at the time the facts occur about which he speaks, to wit, the killing and its res gestee, are such as reasonably and probably demonstrated that he was speaking from knowledge, and not from opinion, such circumstances are of substantial value in showing that the statement is one of fact, and not one of opinion. Grant that the circumstances established, showing that he probably had knowledge, are true — made out by the proof in the case- — they then are established realities, and declarant’s statement may be of a fact made known to him by these realities — as, for example, that he saw or heard, or in any other way identified, the party killing him. In the Williams case, for instance, the murderer had gone out a few minutes before the killing, from the house, but the other proof showed clearly that he was lingering about the house, in the dark, eavesdropping; that there was a brilliant light in the house; that the deceased was lying on his back, with his legs stretched out, on the floor, wide apart from each other, directly fronting the door, within about five feet from the door; that the door was open; that the light from within the house would disclose objects some distance from the door; that the defendant was shot through this open door, by the party standing only a few feet from the door, and was shot straight through the body, between the legs; and the court held that it was altogether probable that the deceased saw the party by the light in the room and the flash of the gun, and that he heard the party moving about. These circumstances were established facts in the case, and the court, looking to these established facts, said that it was altogether probable that the deceased did see and hear, and thus identified his murderer, and hence that the statement was one of a fact reasonably within his knowledge, and the rule announced was, that where the statement is one of a fact, shown by the surrounding facts, fully established, to have been reasonably within his knowledge, it is to be held as the statement of a fact, and not of an opinion. Altogether different is it as to the mere form in which a declarant couches his statement. In such latter case the form of statement should not control, and the reason why it does not control is that the court does look through the form to the substance, to wit, the circumstances showing whether he had reasonable knowledge of the fact he states. The very reason why the mere form of the statement is properly held not to be conclusive, is that the court sees that it is an opinion, and not a fact, by looking to the other established circumstances in the case. The very inquiry the court institutes for itself, in determining its admissibility, as to whether opinion or statement of fact, is, was such statement, notwithstanding its mere form, shown by the established circumstances in the case, to have been one of fact reasonably within the knowledge of the declarant, or one of opinion merely 1 It seems to me clearly beyond controversy, therefore, that it is the proper test precisely to ascertain whether the established circumstances in the case show that the statement was one of a fact reasonably within the knowledge of the declarant, or one of opinion merely, whatever the mere form of the statement may be. The form of the statement is form only. It may be falsely couched in the form of a statement of fact purposely, but the established circumstances go to the vital substance of the question whether the declarant, situated as the circumstances show him to have been situated as to the exercise of his senses, and his ability by the use of his senses to identify his assailant, did reasonably hare knowledge of the fact which he states as a fact.

I desire further to say that 1 take no part in the criticism of Payne v. State, 61 Miss., 161. The statement in that case was to the effect that the defendant £ £ shot him without any cause whatever,” and the criticism is of the court for holding that the words “without any cause whatever” is the statement of a fact, and not of an opinion. There is not in this case any statement by Stewart that Lipscomb killed him £ ‘ without any cause whatever; ” and, hence, the whole criticism of the opinion seems to me clearly beside the issue in this case. Stewart’s statement was that Lipscomb had poisoned him; that he killed him with a capsule he gave him that night; and this is like the statement of Hawkins in Payne v. State, 61 Miss., 161, that Payne had ££ shot him, ’ ’ and is the statement clearly of a fact within the knowledge of the declarant. For the reason, therefore, that the statement of Stewart does not contain the declaration that Lipscomb poisoned him ££ without any cause whatever, ’ ’ it seems to me foreign to the issue to discuss the question as to whether the words £ £ without any cause whatever ’ ’ is the statement of an opinion or of a fact.

Finally, I desire to say that I very.much doubt the correctness of the decision in Com. v. Matthews, 89 Ky., 287, and in Handy v. Com., cited in the opinion of my brother Magruder, in so far as they hold that the statement there, to the effect that the shot was an accident, was admissible for the defendant, but not for the state. Without committing myself one wajr or the other, definitely, as to whether the competency of any dying delaration is to be determined, in any case, by the consideration that it was for the defendant, and not against him, I will say that such a distinction seems to me untenable. I cannot see how the competency of a dying declaration, any more than the competency of any other testimony, is to be determined by whether it makes for or against the defendant. It would seem that, if it were competent, it should go to the jury, no matter against whom or in favor of whom it operated. I think the verdict would have been well warranted if there had been no dyino; declaration at all, and the essential part of the dying declaration— the statement that “Dr. Lipscomb poisoned him with a capsule he gave him that night” — was clearly competent, and should have gone to the jury, in any event.

I think the fifteenth instruction asked by the defendant should have been given, on the authority of Lambeth’s case, 23 Miss., 322. It might have been more felicitously phrased. It might have told the jury that, in considering the dying declaration, it was proper for them to remember that, as to its source and nature, it was the declaration of one not sworn and not cross-examined, but that, remembering this, they alone had the power to graduate its weight and effect as testimony; and this is what I think it does, though not as felicitously as it might have done. But I do not think the refusal to give it was reversible error.

The ninth instruction for the state, I think, is erroneous for the reasons given in Williams v. State, 73 Miss., 820 but I do not think that is reversible error, since the jury were abundantly instructed as to reasonable doubt and as to the value of circumstantial evidence. The giving of the instruction in the Williams case was not reversible error of itself alone— it operated as a mere make-weight. That case, as the reading of it discloses, was reversed for the admission of incompetent testimony.

It will thus be seen that I think two instructions — one refused the defendant and one given the state — are erroneous, but that I do not .regard these errors, singly or combined, as constituting reversible error; for the reason that I think the testimony, which was competent, overwhelmingly establishes the guilt of the defendant, that the right result has been reached on the facts and the law applicable to the case, as it went to the jury, and that np other result could be reasonably reached by any jury on another tidal, and hence that substantial j ustice has been done between the state and the defendant; and, wherever such is the case, I understand the rule to be settled beyond cavil, in this state and a majority of other states, that no new trial should be granted.

In 1 Thomp. Trials, p. 122, sec. 116, it is said: "In England and many American jurisdictions a paramount inquiry upon such objection is whether it has resulted in an unjust verdict. If not, the objecting party has sustained no injury, and a new trial will not be granted in order that public or private time may be consumed and the danger of other, irregularities incurrrd, where the same result must, on a just view of the evidence, be reached. Unless there is plain evidence of injustice done to the party complaining, the verdict shall be allowed to stand.” In 2 Thomp. Trials, secs. 2401, 2402, considering the express point here involved — the giving of erroneous instructions — it is said: “Courts of error do not sit to decide moot questions, but to redress real grievances. It is therefore a rule of nearly all the courts that no judgment will be reversed on account of the giving of erroneous instructions unless it appear probable that the jury were misled by them. Expressions of this rule could be multiplied almost without limit. Thus, it is said that instructions faulty or technically erroneous will not work a reversal of the judgment if the jury were not misled, or if, as a whole, the case was fairly presented to them, and especially if their verdict is obviously correct. Of course, it can never be said that the jury were misled by the giving of erroneous instructions where they have reached the correct result by their verdict. Accordingly, it is the. practice of most of the courts, before passing upon exceptions to instructions, to look into the evidence and see if the verdict is right, and, if it is found to be so, the court will look no further. The rule of these courts is that a good verdict cures all errors in the intermediate steps by which it was reached. In England it is no ground for a new trial that the judges misdirected the jury, unless it is shown that the jury was thereby induced to form a wrong conclusion. If the revising court sees that justice has been clone between tbe parties, they will not set aside the verdict nor enter into the discussion of the questions of law.” And Mr. Thompson in his notes arrays decision after decision from this court, showing this court to stand firmly on this rule as necessary to any practical administration of justice. I have examined every one of these authorities, and shall proceed to state what they hold, among them being decisions in criminal cases, and shall then add others from this court down to date.

In Magee v. Harrington, 13 Smed. & M., 406, the court say: “The verdict of the jury was correct, according to the law and the facts, and, if it were conceded that the court below erred in the instruction which it gave, we would not be authorized to disturb it, as there is no probability that a different result would follow upon another trial. ’ ’

In Brantley v. Carter, 26 Miss., 285, it is said: “It is well settled that a judgment will not be reversed for erroneous instructions to the jury, if it is apparent that the verdict is according to the law governing the case and the evidence before them."

In Hanna v. Renfro, 32 Miss., 131, it is said: “The instructions given to the jury upon the trial are very numerous and general in their character, and, in some respects, are not entirely accurate. So far as they are applicable to the material points involved under the facts of this case they appear to be correct, and we are satisfied that the verdict is well sustained by the law arising upon the evidence, and that the errors in the instructions are therefore immaterial. ’ ’

In Fore v. Williams, 35 Miss., 540, speaking of instructions, the court say: “This was obviously irregular and improper; but it appears that the jury came to a correct conclusion upon the subject, and, as the error in the court did not operate to the defendant’s prejudice in law, it was no ground for setting-aside the verdict and granting a new trial.”

In Wesley v. State, 37 Miss., 351 (a murder case), the court say: “But it is not for every error committed by the circuit courts in charging or refusing to charge the jury that this court will reverse. It is only after an examination of the whole record, and when it appears that the party complaining has either been injured, or may have been injured, by an erroneous instruction, that this court will interpose and correct the error. ’ ’

In Cameron v. Watson, 40 Miss., 209, after holding instructions to be erroneous, the court say: “But no injury was done by it, for the verdict is correct, notwithstanding the erroneous instructions. In such a case the error in the instruction is not ground for granting a new trial, where it is manifest the verdict is correct upon the facts appearing in the record. ’ ’

In Hanks v. Neal, 44 Miss., 227, 228, it is said: “Although this instruction, as a legal proposition, may not be correct, yet, as the evidence shows that the verdict is right, there is no error in overruling the motion for a new trial. The rule is that the verdict will not be disturbed when it is according to law and the justice of the case, though the instruction be erroneous.”

In Head v. State, Id., 752 — a murder case — the court said: “We would not disturb the verdict for any supposed error in the instructions, when the verdict is manifestly right on the evidence, and it does not appear that the accused was prejudiced by any one of the charges of the court. ’ ’

In Evans v. State, Id.., 775 — a murder case — the court said: ‘ ‘ It has been several times declared from this bench that all the charges are to be construed together, as of pa/ri materia, one as modifying another, so as to see whether, as an entirety, they correctly lay down the law, and, if so, although a single instruction may be too broad in its terms, a reversal ought not to take place. The rule as deduced by Wharton from American cases is, if the error be immaterial and irrelevant and justice has been done, the court will not set aside the verdict nor enter into a discussion of the questions of law.” Am. Cr. Law, sec. 3080. “ It finds full support in the adjudications of this court, ’ ’ citing authorities.

In O'Leary v. Burns, 53 Miss., 171, it was held, Simrall, C. J., speaking for the court, £ ‘ that, where there is competent evidence sufficient to support the finding, the judgment will not be reversed for an error in admitting testimony. ’ ’ The same doctrine precisely was announced in Witkowski v. Maxwell, 69 Miss., 66 the court saying: “ We cannot say that the verdict of the jury, by which it is settled this was done, is not supported by competent evidence from which this inference follows; ” and in Barnett v. Dalton, 69 Miss., 617, the court saying: lí We decline, moreover, to reverse, because another trial, properly conducted, could only result in a judgment for the appellees on the evidence before us.” Here are three cases holding that where the verdict of the jury is right on the law of the case, and the competent evidence in the case, it will not be set aside'. There is therefore nothing in the suggestion that this court, if it affirms a judgment where incompetent testimony has been admitted, but the verdict is right on competent testimony, is usurping the function of the jury to say whether the defendant is guilty or innocent. That function, of course, is primarily for the jury; but this court undoubtedly has the power, in ascertaining whether the verdict of the jury is right, to uphold that verdict as being right on the' competent evidence, under the law of the case.

In Cheatham v. State, 67 Miss., 341, this court well said: "The standard sought to be erected by counsel, by which to test a fair and impartial trial, to which one accused of crime is entitled, is too perfect and refined. It excludes not only appreciable error, but invades the field of metaphysics, and invites investigation of subjects with which neither courts nor juries are competent to deal. Courts must consider juries as bodies of plain men, imbued with an honest desire to perform with fidelity the duty imposed upon them of discovering the truth from the evidence submitted to them, in conformity with the instructions as to the law given them by the court. ’ ’

In Graham v. Fitts, 53 Miss., 307, this court said, through Campbell, C. J.: "Some of the charges given by the judge to the jury, given at the instance of the plaintiffs and the defendants, were erroneous. . . . We will not particularize, but will give our view of the case as made by the record as a whole. . We think that a proper result was reached in the trial, although by a different method from that indicated in this opinion; and as, upon the facts of the case, defendants in error were entitled to the judgment they obtained, it is affirmed.”

In Lamar v. State, 65 Miss., 95, 96, this court said: “But this was not the only infringement of the right of the defendant. In his concluding argument the district attorney, over the objection of the defendant, in spite of the twice - repeated direction of the court to desist, persisted in reading to the jury, as evidence against the accused, certain portions of the written testimony of a witness, which had not been put in evidence. Thus, each of the counsel for the state invoked against the accused prejudicial facts not in evidence. Such conduct deserves the severest censure, and should have drawn from the court an instant and sufficient correction.. For this palpable and serious error we are urged by the counsel for the appellant to reverse the judgment and award a new trial. ’ ’ But the court held that the defendant .was guilty on his own testimony, and affirmed the judgment, notwithstanding these serious errors. Exactly the same point is decided the same way in Allen v. State, 66 Miss., 388. These cases go upon the ground that this court should affirm the verdict of the jury finding a defendant guilty, where this court, passing upon the testimony of the defendant himself, sees that it makes him guilty. There can be no logical difference between thp power of this court to hold the verdict of a jury finding a defendant guilty right where his own testimony satisfies this court that he was guilty, and in affirming the verdict of a j ury finding a defendant guilty on other uncon-tradicted testimony in the case, this court believing him guilty on such uncontradicted testimony. I do not mean to say that, in this case, the testimony showing guilt, other than the defehd-ant’s own testimony, is not contradicted in some respects. I am speaking now of the power of this court to base its affirmance upon the fact that the defendant is guilty under the law, either on his own testimony or on other testimony showing his guilt beyond a reasonable doubt, though there be contradictions in the testimony. The various decisions which I have cited on this particular point indisputably show that this court has the right to look at the substantive case made by the competent testimony — the mountain in the landscape — and to uphold the verdict based on such competent testimony, under the law applicable to the case, though incompetent testimony may have gone to the jury improperly.

Again, it has been held, in Houston v. Smythe, 66 Miss., 123, Campbell, J., speaking for the court, that, where the right result has been reached, errors of law as to pleadings will not cause reversal. The court said: “The court erred m sustaining the demurrers, but the whole case was fully developed by evidence, and any other result than the defeat of plaintiff in replevin would not be tolerated. In such case it would be wrong to keep alive a controversy which, since, under the law, it could have but one end, had better at once be terminated. Therefore, following numerous precedents, we will not inflict upon the party ultimately losing the cost of further and useless litigation, by remanding the cause because of errors and rulings in the pleadings, since it is manifest that no harm was done by these rulings.”

See, also, supporting the general doctrine announced, Vance v. State, 62 Miss., 137; Cheatham v. State, 67 Miss., 341; and Vicksburg L. & T. Co. v. United States Express Co., 68 Miss., 149. With these authorities in our mind, this court has recently declared, in the case of Ellerbe v. State, ante, p. 523, the rule to be as follows: “So far as the lawful power of this court can be exerted in affirming convictions for violations of the law of the land, it shall be exerted; and mere technical errors, without intrinsic merit, where we can, after a careful and thorough examination of the whole case, confidently say that the right result has been reached, that substantial justice had been done, and that, on a new trial, no other result could be reasonably arrived at, will not avail here for reversal in civil or' criminal cases.” It must thus be clear, beyond all cavil, that this appellate tribunal is not a helpless prisoner, bound in the fetters of some supposed hard and fast rule requiring it to reverse cases where, first, erroneous instructions have been given; or, second, proper instructions have been refused; or, third, competent testimony has been excluded; or, fourth, incompetent testimony admitted; or, fifth, improper argument has been allowed; or, sixth, the trial court has erred in its rulings on the pleadings, on the ground, merely, that such action of the court, of the one kind or the other, constitutes error in law. merely. Every one of these propositions is laid down as settled law, and an overwhelming array of authorities, from this and other states, is cited in support of each in 2 Enc. Pl. & Prac., as follows: Paragraph 12, p. 499; paragraph 4, p. 534; paragraph 5, p. 537; as to improper remarks of court or counsel, Id.; as to errors in pleadings, paragraph 6, p. 542; as to improper rulings of, in admitting or excluding testimony, paragraph 7, p. 549; as to erroneous instructions or refusal of proper ones, paragraph 8, p. 567; and, finally, it is said (paragraph 10d, p. 587): “ Where it is clearly apparent that the verdict is correct upon the whole evidence, judgment will not be reversed for errors occurring in the trial; ” and in paragraph 8c, p. 400, it is declared: “There is no distinction in the application of the principle between civil and criminal cases. ’ ’

With all deference, it seems to me that my brethren have clearly confounded the primary function of the jury to pass on the evidence and find the defendant guilty, if satisfied beyond a reasonable doubt, and the power which this appellate tribunal exercises in reviewing that finding of the jury. When the court so reviews the finding of a jury in a criminal case, and reverses, as it repeatedly has done, on the sole ground that the evidence was manifestly insufficient to warrant the verdict of guilty, or affirm the jury’s finding of guilt when that verdict is clearly right on the law applicable to the case and the competent testimony in the case, as it has also repeatedly done, this court is not usurping the jury’s primary function, and passing originally upon the guilt or innocence of the defendant, but is manifestly exercising its undoubted appellate power of reviewing and upholding or vacating the finding of the jury, as the case made may demand, in accordance with settled rules of law governing appellate jurisdiction. The practical inquiry is the true inquiry, and the practical inquiry must always be, as stated in Eller by’s case, founded on all our other cases, sanctioned by the text of Mr. Thompson — itself a mere restatement of the decision in a majority of the states in this Union, and of the courts in England — that where this court, looking back through 'the whole record, notwithstanding such errors of law, can confidently affirm — as it has a right to affirm, and must of necessity have the right to affirm — that substantial justice has been done, and that the right result has been reached on competent testimony under the law applicable to the case, and that no other reasonable verdict could be rendered than the one which was rendered, a reversal should not follow. The administration of justice is a practical thing. It should be administered in a practical way, so as, while not denying to any defendant any substantial right to which he is entitled by the law of the land, to protect society from violators of the law, and to secure the punishment of guilty men properly convicted.

In_view of the fact that a majority of the court think this defendant should have a new trial, I refrain from any particular detailed statement of the testimony in the case, not wishing in any wise to prejudice him on the new trial. I say, only in vindication of my views, that on the testimony in this case, without reference to the dying declaration, he is, to my mind, shown overwhelmingly to be guilty, and that that part of the dying declaration, “Dr. Lipscomb poisoned me with a capsule he gave me to-night,” was the statement of a fact, and was competent to go to the jury, as it did go to the jury, and that Dr. Lipscomb’s conduct, as disclosed by the record, is, to my mind, utterly inconsistent with his innocence. Murder is bad enough in any form (assassination is one of' its worst forms), and the poisoning of a patient by his physician is a form of assassination darker in its type than I care to characterize. Mississippi wants no “Age of Poison.”

For these reasons I feel constrained to dissent from the conclusion reached by the majority of the court, that a new trial should be granted. I think the judgment should be affirmed.

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Concurrence Opinion

Thompson, Sp. J.,

delivered the following opinion, favoring a reversal of the judgment appealed from:

In reference to the questions pertaining to the dying declaration, I concur in Judge Whitfield’s opinion. The statement, a part of the dying declaration, “that [he Lord had sent him back to tell,” if objected to, was inadmissible, justas a declaration to a j ury by a living witness, to the effect that ‘ ‘ the Lord had sent him to tell them,” preceding a narrative of facts, would be inadmissible. The statement “that Dr. Lipscomb had poisoned him with a capsule he gave him that night” was, in a just and legal sense, the statement of a fact, and not the expression of an opinion, and it was admissible in evidence. The statement that “Guy Jack had his [the declarant’s] life insured ’ ’ was the statement of a fact, but it was not admissible in evidence, because not a part of the res gestee of the homicide. The concluding part of the declaration, “and [meaning Guy Jack] had hired Lipscomb to kill him” (the declarant), while, in form, the declaration of a fact, yet, in truth, as we find from all the surrounding facts and circumstances, was but the expression of an opinion, and was not a part of the res gestee of the homicide, and it was inadmissible.

In my opinion, the court below erred in granting the second and ninth instructions given for the state, and 1 concur in the opinion of Judge Magruder in so far as it points out the error of the ninth instruction. I think, too, that the court below erred in refusing the fifteenth instruction asked by the accused, and I concur in the opinion of Judge Whitfield approving this instruction and pointing out the error of the court below in refusing it. I am of opinio'n, because of these errors, the j udgment appealed from should be reversed. I cannot consent to an affirmance of the conviction of appellant with these errors, to his prejudice, apparent of record. Especially do I regard the action of the court below, in granting the ninth instruction for the state, as reversible error. Other convictions, because of like errors, have been vacated by this court, and I find no sufficient basis for a different result here.

It may be that public policy would be promoted by the existence of authority in the judges of this court to determine, in every criminal case, whether, upon the facts of the case, the appellant be guilty or innocent, and, if believed by them to be guilty, to affirm a judgment of conviction in spite of errors committed on the trial in the court below; but I do not understand such power or right to exist. I find no warrant for it in authority, and I do not believe that it ought to be brought into existence, if at all, save by legislation. I think the first inquiry in respect to every assignment of error should be, is it well taken — was error committed in the trial appealed from to the prejudice of appellant in the matter complained of? If this inquiry is answered affirmatively, then the second inquiry presents itself, and that is, was error calculated to and did it probably produce the result evidenced by the judgment appealed from ? If this is to be answered in the affirmative, then the case should be reversed. Appellate j udges, under existing law, cannot too carefully refrain from becoming themselves the triers of the fact of guilt or innocence in determining whether an error committed by the court below was calculated to and did probably produce the result there reached. The two questions are certainly separate and distinct. In this case I cannot see how it can be affirmed that the errors in the instructions (all agree that there are errors in them) were not calculated to and did not probably produce the conviction appealed from. Admitting, as a matter of law, that Lipscomb ought not to have been convicted unless, in the belief of the jury, his guilt was established beyond a reasonable doubt, and that “full conviction ’ ’ is something less than 'the degree of certainty of belief required to warrant a conviction, as has been decided by this court (Williams v. State, 73 Miss., 820), how can it be said with certainty that the instruction did not produce the verdict ? The instruction here is that £ ‘ when, after due caution, this result [meaning full conviction of defendant’s guilt] is reached, the law authorizes the jury to act [meaning to convict] on it.” In the Williams case, supra, the instruction which was condemned was: “If, after a careful and impartial consideration of all the evidence in this case, you can say and feel that you have an abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt,” etc. It will be noted that ££ abiding conviction ’ ’ and £ £ full satisfaction ’ ’ are conjointly, not disjointly, coupled in the instruction in the Williams case. If, as decided by this court, £ £ an abiding conviction, ’ ’ united with “full satisfaction” of a defendant’s guilt in the minds of his triers, falls short of the legal standard of certainty of proof required to authorize a verdict of guilty, surely a £ £ full conviction ’ ’ thereof does not measure up to the standard. I think Judge Whitfield is mistaken in the statement, in his opinion just read, that the instruction in the Williams case was not held to be reversible error. The Williams case, as I read it, was reversed because of the condemned instruction, as well as because of the admission of incompetent evidence.

As a matter of law, it cannot be said that the ninth instruction given for the state had no weight, because, as a matter of law, it is the duty of a jury to carefully consider and to be governed by the instructions of the court. Looking at the question as a matter of fact, it can be said such an instruction — one upon a vital question in the ease, not a mere collateral or incidental matter — did not probably produce the result only in cases where the state of the evidence is such as to justify, in civil cases, a peremptory instruction by the court — oases in which there is no conflict of pertinent evidence, and in which all the evidence is consistent with the result directed. In this case the testimony of the accused at least denied guilt, and, if believed by the jury, would have warranted an acquittal; and, besides, other witnesses testified to matters of fact which, if true, tended strongly to show appellant’s innocence. Lipscomb, therefore, has been convicted by a jury who were instructed by the court that a degree of proof of guilt less than the exclusion of every reasonable doubt was sufficient to warrant a verdict against him; his conviction was had when there was evidence offered on the trial which, if believed, would have warranted his acquittal — a state of evidence of which a court would not affirm that a verdict in his favor would have been without evidence to support it; and the question is, shall the judges of this court disregard the error, and themselves weigh and consider the evidence, without the advantages of observing the witnesses, and determine what would have been their verdict had they been on the j ury ? I can find no warrant for so doing. If the evidence, the whole of it, was so conclusively one way as to justify, in a civil case, a peremptory instruction, such an error as the one we are considering might not be cause of reversal; but in the state of the evidence here it must be, unless appellate judges are to be the triers of facts in cases brought before them.

I have carefully read and considered the several authorities cited in support of the idea that this court should affirm the conviction appealed from notwithstanding errors, but I do not think any one of them covers this case, and that this appeal is distinguishable from all of them.

The writer does not overlook the rule that the instructions in a cause are to be considered as a whole, but, looking at all of the instructions in this case, he cannot agree with Judge Whitfield that the jury were fully instructed on the subject of a reasonable doubt. The jury were told that the defendant could not be convicted unless his guilt was established beyond every reasonable doubt, but the ninth instruction said to the jury, in effect, that “full conviction ” was the equivalent of the exclusion of reasonable doubts, and it was in every just sense a modification, and an erroneous modification, of all the other instructions on the subject; and, if we give full scope to the rule that the instructions are to be treated as a whole, this erroneous ninth one, given for the state, must be read in the body of each of the others, relating to the question of the degree of proof requisite to a conviction.

After the delivery of the foregoing opinions a motion was made by attorneys for the state to vacate the judgment of reversal which had been entered by order of the court, and to substitute therefor a judgment of affirmance. The motion was argued by counsel.

Whitfield, J.,

delivered the opinion of the court on the motion.

On this motion to vacate the judgment of reversal heretofore entered, and substitute a judgment of affirmance, upon the ground that no two of the judges concur in a common ground of reversal, we have listened patiently to a full and extended oral argument, and' have carefully examined all the authorities cited for the state — the Phillips case, the Spivey case, and all the other cases. The facts of those cases clearly distinguish them from this one as to the point here presented for decision. Of course, anything said (and much was so said) as to whether the original holdings of the court were right or wrong, was proper to be made on a suggestion of error. All that, of course, we discard.

The judges remain of the opinions they originally severally entertained. My brethren thought then, and think now, that the ninth instruction for the state was error, and reversible error. I thought then, and think now with increased confidence, it was not reversible error. The only ground upon which, logically, the motion can proceed is that two judges of the court do not concur on one common ground of reversal. The case of Browning v. State, 33 Miss., 85, is an authority for reversal where the judges differ, though one of the judges for reversal predicates his judgment on one ground, and the other who may be for reversal predicates his judgment on an entirely distinct ground, and though there may be no two judges concurring in one common ground of reversal. Judge Handy’s opinion in that case is said to be a very powerful one, and it certainly is, and, in the j udgment of the writer, is the sound view. Without, however, deciding which is the better-view — whether two of the judges ought to concur in one common ground of reversal, or whether it be enough that one reached his conclusion that a particular case ought to be reversed on one ground, and another on another — it is sufficient here to say that, even if the opinion of Judge Handy were the law, my brethren here do concur on one common ground of reversal, and reach that common ground on the same line of reasoning. It is immaterial, therefore, whether the views of Judges Smith and Fisher are sound, or the views of Judge Handy. On either view this motion is not well taken, and must be overruled. It affords us at least some measure of satisfaction to be able to say that, however much we may have differed upon other grounds in the case, the court has unanimously reached the conclusion that this motion should be, and it is hereby, overruled.

L. W. Magruder and R. H. Thompson, special judges on the trial of the case and the hearing of the motion, presided in places of Judges Woods and Terral, disqualified.