(dissenting.) It will be readily seen from a perusal of the statement of facts in the opinion of the Chief Justice that the only direct evidence of crime is the repudiated statements of the accused man and the accusing woman. The circumstances adduced in evidence are at most only corroborative of these statements. The woman having in her testimony at the present trial denied the truth of her former statements and declared that no assault had been made upon her person, her testimony is without any probative force whatever. Her former statements can not be received as substantive evidence of the commission of a crime. The only purpose of admitting it is to discredit her present testimony by showing her former contradictory statement; and; since her present testimony tends to prove nothing, the former statement is valueless. 2 Wigmore on Ev., § 1136. Nor can her former statement be received in evidence as part of the res gestae. Her statement to the officers soon after she returned from the scene of the alleged crime is too remote, and is but a narrative of a past event and not a part of the transaction itself. Baker v. State, 85 Ark. 300.
The alleged incriminating circumstances prove nothing of themselves, for their relation to the commission of the offense depends entirely on the truth of the woman’s former statements to the officers. The torn garment, the tracks and evidences of a struggle on the ground in the public park, without other evidence connecting them with the crime, have no tendency towards proving the crime of rape or assault with intent to rape.
This leaves nothing in the case except the repudiated confession of appellant himself. Appellant’s offer, while in jail, to pay the woman money to withdraw the accusation adds nothing to the strength of the evidence, as it is but a tacit confession of guilt, and certainly amounts to no more than his direct confession.
The authorities cited in the opinion of the Chief Justice seem to sustain the conclusions expressed therein that the confession of an accused person made to a justice of the peace in an examining trial is a judicial confession, and may be sufficient to sustain a conviction without other evidence of the commission of the alleged crime. I do not dissent from that conclusion. But, aside from the legal insufficiency of the evidence, it is far from convincing that any crime has been committed. The undisputed evidence of a previous plan between this man and woman to simulate the commission of the crime, their intimate and friendly association with each other, both immediately before and after the alleged crime, her frequent visits to and conferences with him in jail and her narrative on the witness stand of their weird scheme to simulate the commission of ’the crime so that he might expiate it on the gallows as a voluntary sacrifice of his life, convince me that no crime was in fact committed, but that the plan was born either of fanaticism or a vitiated taste for notoriety. I am so thoroughly convinced by the testimony that no crime was committed that I cannot consent for the conviction of the accused to stand.
The court gave, over appellant’s objection, the following instruction, which is assigned as error:
“4. If you find from the evidence that the defendant made a confession that he had committed the crime of rape on the person of Margaret Irene Taylor, that alone would not be sufficient to authorize you to convict; but the confession of -the defendant, if made, accompanied by proof that the offense was actually committed, will warrant a conviction; and if you find from the evidence, beyond a reasonable doubt, that the defendant made the confession of the crime, and 'that the crime was committed, you should convict.”
The instruction is criticised on the ground that it invades the province of the jury in passing on the weight of the evidence. Duckworth v. State, 83 Ark. 192. The language of the instruction is ambiguous, and Mr. Justice Hart and I are of the opinion that it was calculated to mislead the jury, when it is considered in the light of the very weak evidence in the case, even if the evidence should be held to be legally sufficient to sustain the verdict.
The other judges think that the concluding words of the instruction save it from condemnation because the jury are in effect told that they must, in order to convict, find beyond a reasonable doubt, in addition to. the confession, that the crime was committed by the defendant. While it is possible to place this construction upon the form of expression employed, it is ambiguous to the average mind, and calculated to induce in the minds of the jury the idea that, if they believe that the defendant made a confession, it was their duty to convict him. It was therefore misleading and prejudicial.
It is proper for trial courts to instruct juries, in the language of the statute, that a confession- not made in open court will not warrant a conviction unless accompanied with other proof that the offense was committed; but it is improper to give the converse of the proposition unless it be coupled with the further statement or qualification that the evidence as a whole must satisfy the jury beyond a reasonable doubt of the guilt of the accused. In that form it is not improper, but without the above qualification it is an instruction on the weight of the evidence.
I am unable to escape the conclusion that the jury must have been misled by this instruction, for I cannot find any evidence which would satisfy a jury beyond a reasonable doubt that appellant made an assault upon, the woman with intent to rape her. It is, to my mind, preposterous to say that under this evidence the commission of the crime has been proved beyond a reasonable doubt. Therefore I dissent.
Mr. Justice Hart concurs.