The facts have been quite fully stated in the opinion of Mr. Justice Clark, but I think a little more should be said about the mental condition of Michael Murphy, whom the defendant has been convicted of murdering. While the evidence shows that he came to his death by strangulation, and that Mary Murphy, the defendant, may have caused his death, I think it is at least as probable that he committed suicide. The evidence shows beyond question that he was afflicted with senile dementia and of suicidal tendency.
For a time he had been an inmate of St. Ann’s Home, an institution in the city of Rochester, and had become so unmanageable that on the 20th of June, 1916, he was committed to the State hospital for the insane in that city. One of the medical examiners who made the certificate upon which he *178was committed, testified upon the trial that he had delusions of persecution; that theie was poison in his food; he refused to eat; had religious delusions and threatened to commit suicide. His testimony is corroborated by the certificate of the two physicians who made the .examination and the facts stated in the petition upon which he was committed.
One of the physicians at the hospital testified that .his case was diagnosed as one of senile insanity; that he had paranoid ideas and wanted to die, and was considered very suicidal while he was in the hospital, so much so that he was confined all the time in the section where patients of the old, senile, arterio sclerotic types, particularly if they showed suicidal tendency, were confined; that while he never attempted to commit suicide, that was because he never had an opportunity, and that in the senile type there is no chance of permanent recovery, although his condition was so far improved that after six months .he was paroled to the care of his brother Dennis and permitted to leave, but against the advice of the management of the hospital and upon the express responsibility of the person to whose care he was committed, the superintendent requiring the brother to sign a written agreement to that effect, as was usual in such cases.
From the 20th of November, 1916, the date of his parole, up to the time of his death on the 21st of May, 1918, he lived with his brother Dennis, who testifies that some days he would be all right and other days he could not do anything with him, and gave specific instances of abnormal acts, such as getting on a chair with his beads around his legs and making a grab and saying: “ There comes the devil.” That he used to pray outdoors any place where he was sitting and talk to himself and rub his hands until they would draw blood.
The learned district attorney contends that the strangulation was not by suspension, but by drawing the wire through the loop tightly around the neck. That may be so, but if Michael intended to commit suicide he could draw the wire together himself and accomplish self destruction. While he was somewhat feeble and blind, he had sufficient strength to do the act. It is true that both Dennis and his wife stated that he hung himself, calling attention to a particular rail and to marks on the rail which indicated to them had been made *179by the wire, but neither claims to have seen him suspended. Each of them testifies that Michael was lying under the stack of rails with the wire around his neck.
If the defendant c'ontinitted the crime and wanted to make it appear that Michael had hung himself it would not have been difficult for her to have hung up the body after she had strangled him. The defendant’s conduct ■ immediately after the tragedy is consistent with innocence rather than guilt. Even if we disregard her testimony about calling her husband, concededly she went to the road immediately after the tragedy and told- Toomey about it. While she and Toomey, an adverse witness, do not agree upon just what was said, there is nothing to indicate that she was attempting to conceal anything. Toomey says she wanted him to come and see old Mike; that he replied he would have nothing to do with old Mike; that she said, “ Old Mike is dead and it’s a good thing,” and he replied, “ It may be good for you.” Both she and .her husband willingly gave information, made statements and voluntarily gave testimony before the coroner. So far as I have been able to discover there is nothing to indicate that there was the least concealment upon their part.
If the defendant wanted to kill this old man it is hard to believe that she would put a wire around his neck, strangle him to death, carry his body and put it under the rails, and do all this in broad daylight within the view of her neighbors or any one passing along the road. It is said that Michael’s happy frame of mind in the morning before he was strangled indicated that he was not contemplating suicide.
An expert witness, whose business was that of a micro-chemical investigator, as he said, gave evidence of the- condition of the body, of the rails, of the ground, and of the general surroundings, and also made an examination of the contents of Michael’s stomach eight days after his death for the purpose, as it was claimed by the prosecution, to show the mental condition of Michael just before he was strangled. It is unnecessary to relate the various opinions the witness expressed; they cover a wide range. I think very little of the testimony of the witness serves any useful purpose, and some, I think, was improper and may have done harm. The contents of the stomach, according to the testimony of this *180expert, consisted of eight fluid ounces of semi-solid food, remains of cooked egg and potatoes and some fatty liquids, all in a semi-digested condition. Just what inference the jury was to draw from this is not clear. If it was intended to show that just before his death Michael was in a happy, contented state of mind it falls far short of establishing that he did not commit suicide.
Dr. Walker, a physician connected with the Rochester State Hospital, interrogated upon that subject, testifies that the mere fact that the patient shows apparent cheerfulness does not indicate that a suicidal plan is not present; that he had had patients under his care apparently looking very happy, and within an hour they would make a bad attempt at suicide, and that the mere fact that a patient had eaten a hearty meal carried with it no presumption that within a short time he would not attempt to commit suicide, or was not possessed of suicidal mania. He further testified that their efforts to commit suicide are sometimes extremely ingenious and that he would not infer from the mere fact that there is physical improvement over a period of months or years in a person affected with senile insanity, that the fits of recurring suicidal impulse are removed.
It is said that the defendant was harsh and cruel to Michael; that she scolded him and struck him. I have no doubt she used language that seems harsh, but it should be remembered that these people were uncultured and unaccustomed to polite society. There is no doubt that the defendant is boisterous and unrefined. As for striking him, the only evidence, aside from what she herself seems to have said boastingly, is that upon one occasion she struck his hat from his head; he picked it up and she repeated it. I think many incidents disclosed by the evidence have been given undue importance as tending to prove this crime. I call attention to but one as typical of others.
The witness Jennie Smith testifies that in the fall of 1917 she saw the defendant breaking sprouts from the branch of a tree; that she asked the defendant .whether she was going to whip a carpet; that the defendant replied no; that she had been giving the old man a whipping, and when she whipped him he calls for mercy, and that when he did she gave him *181some more. The witness says she thought she might be joking, but the expression of her face was rather stern; that at first she thought perhaps the defendant might be telling it for the benefit of the neighbors because she was a great woman to talk. She was asked whether she thought she really meant it;. she said she did not know, and finally says that she was not so sure that she did not mean it.
While the defendant seems to have been a garrulous, ignorant woman, there is nothing, up to the time of this accusation, to indicate that she was criminally inclined. She had been married twice, had had twelve children, and evidently worked hard, both in her house and outdoors. Witnesses were called upon the question of her general character, who stated that her reputation was good. Others were called for the prosecution, who stated it was bad, but upon cross-examination it developed that their opinion was founded largely upon the accusation of which she was on trial and upon what people had stated who were unfriendly to her.
I have no doubt that her conviction was largely brought about by denying what she had said to others and contradicting former statements made by her. If she had been as frank as her husband in her testimony the result might have been different. But merely because she may have made misstatements and been lacking in frankness, should not convict her of this crime.
While the charge of the learned trial judge was eminently fair and clear, I think the evidence is lacking in probative force to establish the defendant’s guilt. The jury was instructed, in substance, that the evidence must exclude, to moral certainty, the hypothesis that the deceased committed suicide. I think the evidence is quite to the contrary. The judgment of conviction should be reversed upon the law and the facts and a new trial ordered.
All concur, except Hubbk and Clark, JJ., who dissent in an opinion by Clark, J.