dissenting. According to the evidence in this case, seven negroes who were in a drunken condition were riding together in a Ford car. According to the undisputed evidence the negro who was killed was the only one who had a weapon before the homicide. The evidence that the decedent was attempting to pass the cocked pistol behind him at the time that the weapon was discharged and his death resulted is not disputed, nor is the fact that there had never at any time been any difficulty, quarrel, or dispute between the deceased and the accused in any wise questioned. That the negro boy was killed by the discharge of his own gun is certain. All else in the ease is in doubt. There is no evidence that the accused would ever have had the pistol in his possession but for the fact that the deceased was either trying to throw or pass the pistol behind himself. No one saw the accused in possession of the pistol until after the death of the deceased. In a trial for crime the burden devolves upon the State to prove the guilt of the accused beyond a reasonable doubt; and where circumstantial evidence is relied upon, the evidence must be sufficiently certain to remove any other reasonable hypothesis tlian that of the guilt of the accused. If there is any reasonable supposition than that arising from the evidence which is consistent with the innocence of the accused, the humanity of the law requires that the theory consistent with innocence should prevail over that theory which is consistent with guilt. Penal Code (1910), § 1010.
Under the foregoing principles and the facts of this case, the ground of the motion for a new trial alleging that the verdict is contrary to the evidence and therefore contrary to law is well supported. A verdict based upon insufficient evidence is as thoroughly contrary to law as if it were based upon the most egregious error arising from erroneous instructions or the improper admission or rejection of testimony in the case. Looking to the statement of facts, the jury had nothing in this case upon which to base the verdict, except the fact that the defendant attempted to get a witness to testify that he saw the deceased reach over the back of *507the front seat as he handed or passed back the cocked pistol of the deceased. An inference of guilt may arise where one- accused of crime attempts to procure a witness to testify falsely; but in this case the State proved by another witness exactly what the accused asked the witness just referred to if he could not testify. The prosecution itself established the fact that the deceased himself took the pistol out of his inside blue coat pocket, and that it was discharged in attempting to pass or push it towards the rear of the ear. No attempt was made to impeach this witness. There was no claim that the prosecution was entrapped by his testimony, and the most that any other witness would testify in the attempt to rebut this positive testimony was that they did not happen to see how the pistol got behind the deceased and fell upon the floor between the two seats of the Ford car where it was found after the shooting. Granting that the accused made an equivocal statement to Mr. Cannon in saying that the deceased “threw the pistol and hit the back of the car and killed himself,” Mr. Cannon said in the same breath that “the defendant was pretty well drunk.” Under a well-settled rule, the exculpatory language of a defendant as to the nature of a homicide is not to be turned against him, in the absence of positive proof that the story of the accused is false, and not even then unless it is material to the issue. In this case, in the absence of any testimony that the accused ever had the pistol in his hand until the person alleged to have been murdered was dead, and considering the drunken condition of the defendant, it is absolutely immaterial to the question of his guilt or innocence whether the pistol hit the back of the car before it discharged or whether it discharged in the hand of the defendant when he may have caught at the pistol in order to protect himself from being shot, or whether it hit some one of the four negroes sitting on the rear seat, and was thus discharged. It is immaterial how the pistol was discharged until it be shown that it was discharged from the hand of the accused. Upon the State the law places this burden. All of the testimony of Cannon that the pistol would not be discharged no matter how hard it might be hit was entirely immaterial in this case, in view of the fact that the undisputed testimony was that the pistol in this case was cocked at the time the deceased released his hold upon it, whether it was merely passed backwards or thrown backwards by the deceased. The *508record shows that the accused, when all others but he had run away, stopped Mr. Cannon, who admits he would have passed by because he saw that Seaborn Hill, the accused, was drunk, and he supposed that John Starling Hill, the deceased, who was lying in the car, was also drunk, and he would have passed down the road as he was proceeding to do, except that the accused, shocked by the sudden death of his cousin, with whom he was on the most intimate terms, pointed to the deceased and cried out to him twice loudly, “He is dead, he is dead.” If there is any potency in the rule that positive testimony is to be preferred to mere negative testimony where the witnesses have equal opportunities and are equally credible, then the mere fact that two of the intoxicated witnesses for the State did not see how the pistol got to the rear of the car must, upon principle, yield to the positive testimony of the State’s witness, Charlie Hill, who testified, “I saw him [the deceased] hand it over the seat. I don’t know who took that pistol, but I seen it cocked, and I jumped out. I don’t know who took it; when I looked back in there it was lying on the floor. I saw the pistol come over the seat is what I mean to say, and then I made to get out of the car. . . The only one I saw with the pistol before it shot was John Starling Hill. It come out of his inside coat pocket. He handed it over the back of the seat there back there. That is all I seed; it came out of his pocket. I jumped on the running-board, and before I looked around it had done shot. Nobody got it then; they left it there; it was laying in the foot of the car.” Mr. Cannon, who came up almost immediately, found the pistol lying in the foot of the car, and no one as yet has testified that the accused had the pistol in his hand before the deceased was shot and killed.
The testimony in this case discloses no motive, no animosity, or anything but the best of feeling between these two cousins. ■ The State’s witness, Charlie Hill, after the sudden discharge of the pistol (for some of the witnesses thought it was a blowout of the tire) “went back and looked at it,” and it was “laying in the floor of the car.” It may be that this conviction is based upon the belief that the witnesses for the State had not told the entire truth about it; but conviction of capital offenses can not properly be sustained in a court of review except upon sufficient proof to authorize conviction and punishment as prescribed by law.