I think the record before us does not require a reconsideration of the law as it is announced in the Buick case. There the statement that was admitted in evidence was made by the victim and was unmistakably accusatory. In the case before us it is the view of the chief justice as well as my own that no statement was made to the defendant by Murphy or Rietow accusing him of or charging him with the murder of his wife. Nor did the defendant say anything on that occasion that by any fair inference could be construed as a confession of guilt. This, to my mind, is sufficient reason for the conclusion that it was reversible error to admit Murphy's testimony.
I am also in sympathy with the views of the chief justice regarding the effect of admitting, against the objection of the accused, incompetent and mischievous evidence. The subsequent exclusion of this evidence and the instruction to the jury to disregard it may have cured the error but there is no certainty that its effect upon the minds of the jury did not remain.
I have particularly in mind that portion of the testimony of Dr. Larsen, a physician of long residence in the community and of wide professional experience, in which he was permitted to express to the jury the opinion that Mrs. Corum was not the type of person who would commit suicide. Whether she did commit suicide was one of the important issues in the case. This testimony of Dr. Larsen, coming from the source it did, must have made a deep impression upon the jury and in spite of the fact that it was subsequently excluded by the trial judge and the jury admonished not to consider it, it is extremely doubtful whether its influence upon the jury was removed.
It is my view that under these circumstances the defendant's right to a fair and impartial trial was seriously jeopardized and that in the interests of justice he should *Page 187 be given another hearing. The failure of his counsel to move for a mistrial upon the exclusion of the evidence which was improperly received should not be construed as a waiver or abandonment of this right. The duty of the court to grant a new trial (in case of a sentence to death) when upon a review of the evidence it appears that the interests of justice require it is imposed by section 3563, R.L. 1935, in the following language: "In case of a sentence to death, the court shall review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is assigned as error or not."
I concur in the order of reversal.