(dissenting). — I dissent. I do not think this is a case that should be reversed upon the question of fact. The record discloses no error. There was some corroborating evidence to support the testimony of George Rose, and *309it, with his testimony, was all before the jury for due consideration. Simply because reading the testimony now might not convince one of the guilt of the defendant, will not warrant a reversal. The jury had the advantage of seeing the witnesses upon the stand, and hearing them testify, and the jury’s judgment of the.facts is the safest to follow. It is going too far to say that there was no sufficient proof of guilt upon which a convictiou can be based. I think the evidence for the prosecution shown by the record will bear a more favorable statement than is given in the majority opinion; but, as the case is to be retried, it is perhaps best to refrain from any extended contra argument upon the proofs. However, the fact, if it is a fact, that none of George Nose’s statements wherein he charged the accused with the crime were entirely true, does not afford ground for reversing the case. He was a man of hardened and abandoned character, and, it seems, at no time repentant, but his conduct does not show that he was especially desirous of shielding himself, although at times such a desire may have operated upon his mind, and in this regard a plausible reason is given for his contradictory statements. That he implicated the others for the reason he is said thereafter to have given, that the officers would not believe him when he said he committed it alone, and insisted that he had assistance, is very unreasonable. At the trial he was kept upon the stand a long time, and was subjected to a rigid and lengthy cross-examination. His testimony in the main was consistent, and there is much that can be said in favor of the truthfulness of his statement as finally given ¡ but quite likely he was actuated at the last moment, when confronted with the solemnity of a trial of that kind, with a desire to shield himself and his father as much as possible, by showing no previous knowledge of his own, and imputing the actual killing to Edwards and Gibbons. The alibi the defense undertook to *310establish was not conclusive; most of the testimony relating thereto might have been true, as it probably was, and yet sufficient time left for the commission of the murders on the morning of January 30th, as alleged. These murders, if committed as claimed, were no doubt under previous consideration for some time by some of the parties. John B. Rose’s sickness might easily have been feigned. The corroborating testimony may all have been subject to some explanation compatible with innocence, but the jury had all of this before them, the judge was a competent and careful one, the defendant was assisted by able attorneys, and he apparently had a fair trial, and I do not think the verdict and judgment should be disturbed. Human tribunals are faulty at best, and it is impossible in a case like this to approach absolute certainty, but every protection is thrown around the accused under our system of criminal jurisprudence, and the liability to err against him upon the question of fact, while possible, is very remote. Only in extreme eases should the appellate court interfere to set aside a conviction upon that ground, and this is not such a case.