concurring:
I concur in the reversal of this case, but not upon the grounds given in the opinion of the majority of the court. The first part of the eighth instruction was, in substance, by the court, in its charge, properly submitted to the jury. The clause, “They should not convict unless the proof is so full and convincing that it excludes or disproves every reasonable hypothesis, except that the defendant-is guilty,’” was not, either in form or substance, given to the jury. Refusing to give this in substance, as requested, was in my opinion error. The authorities on this point, it seems to me, are conclusive, and for this reason I am of the opinion that the case is properly reversed: Commonwealth v. Webster, 5 Cush. 295, 319;. Roscoe’s Crim. Ev., 7th ed., 16, and note.
The last request of the defendant, which is not numbered, was properly refused. Had it been given, the jury would have been, instructed that “rumor is not evidence,” but not told what “ rumor ” is, or what particular evidence or • testimony was thereby referred to; they would have been left to guess, or determine as best they could, what if any rumor *217there was in evidence. Sucb an instruction, instead of giving liglit and guidance as to the particular evidence sought thereby to be brought into question, would have tended to mystify, confuse, and involve all the evidence in perplexity and confusion; and therefore was properly refused. What is rumor, might have been, under the circumstances of the case, a question, in the mind of the jury, of great difficulty; and the words, “nor are the declarations of the deceased not known to have been made to or in the hearing of the defendant,” do not necessarily make clear to the jury what particular testimony or words are struck at by the proposed instructions. “ When instructions are asked, they should be precise and certain, to a particular intent, that the point intended to be raised may be distinctly seen by the court, and that error, if one be made, may be'distinctly assigned United States v. Bank of Metropolis, 15 Pet. 377-406; McKinney v. Snyder, 78 Pa. St. 497; Talbert v. Mearns, 21 Mo. 427-431; Rollins v. Cate, 1 Heisk. 97.
It is the province and duty of the court to decide upon the admissibility of evidence, and if improper evidence is admitted, it is error, for which the party thereby aggrieved has a remedy; but when once admitted, it is for the consideration of the jury until withdrawn by the court; and when the court undertakes to withdraw such evidence, it should be so clearly and distinctly described as to leave no room for doubt or conjecture.
The question whether the court below erred in refusing to caution the jury as requested by counsel for the defendant, as to the testimony of Bracken, is one upon which I express no opinion, except that the testimony is near the boundary line between what is included as the res gestee upon one side and hearsay upon the other.