I have no serious disagreement with any principle of law stated in the foregoing opinion, but think the result should be a reversal of the judgment and remandment of the cause for a new trial. In my opinion the cumulative effect of the several errors pointed out was such as to deprive the defendant of a fair and impartial trial. This court should be very careful in the application of that principle whereby a judgment is affirmed, regardless of errors, where we think the defendant guilty and that the jury could not have arrived at any other verdict. Surely, if an obviously guilty person can be convicted by such prejudicial means, a person less obviously guilty, and possibly even one entirely innocent, if entrapped by suspicious circumstances, may find himself in the same position. The very application of the *Page 338 rule places this court in the position of weighing the evidence rather than reviewing the record for errors of law.
In the case at bar the defendant relied upon her own testimony as to her own intent which surely could have been known only by herself. This was the single and controlling issue before the jury, and on that issue she had a lawful right to a verdict by a jury, free from any prejudice against her. The errors pointed out in the opinion were of such a character as to tend to prejudice each juror's mind against the defendant and to prevent the jury, as a whole, from calmly, fairly and impartially weighing her testimony.
HERRICK, C.J., and FARTHING, J., concur in this dissent.