The following opinion on rehearing was filed June 22, 1905. Judgment of supreme court vacated. Judgment of district court reversed. Holcomb; C. J., dissenting:
2, Evidence of Accomplice. The evidence of an accomplice should be closely scrutinized. If it appears that such witness has willfully sworn falsely in regard to a material matter upon the trial, his evidence can not be sufficient, if uncorroborated, to support a verdict of guilty. Sedgwick, J.At the former hearing it was thought that the evidence of the witness Olson was sufficient to require the issue as to the defendant’s guilt to be submitted to the consideration of the jury, and that the jury having found the defendant guilty, the verdict was so far supported by the evidence as to require this court to affirm the judgment. It was said that the record is quite voluminous, and that there were nearly 300 assignments of error -in this court. No exhaustive analysis of the evidence was attempted. Upon the motion for rehearing the court having re-examined the evidence with great care, there was doubt in the minds of the court as to the sufficiency of the evidence and a rehearing was therefore ordered mainly upon that question. We have since this last argument again carefully reviewed the record, and are convinced that the evidence is not of such a character as to exclude all reasonable doubt of the defendant’s guilt. The whole case against the defendant rests upon the evidence of the witness Oliver Olson. It is claimed that there was evidence other than that of the witness Olson which tended to show a motive on the part of this defendant to commit the crime, but it is not contended that any other witness has testified to any fact or circumstance tending to show his guilt. The special motive for the crime is found in the fact that there were two policies of insurance on the life of the deceased amounting upon their face to $4,000. This insurance was payable to the defendant August Jahnke, *183and there was evidence that the defendant had assisted in procuring the insurance and'had made some payments to the company thereon. This insurance, however, was in a local company that had been in existence but a few. months. It was a mutual benefit association. Evidence was offered that there had been but one death in its membership since its organization; that upon his life there was a policy of $2,000, and that there was only $500 in the fund available for its settlement. It was also offered to prove that there was at the time of the death of the insured only about 300 members who could be assessed for the payment of the loss and that but a very small amount could be realized upon a policy of $1,000, and that defendant was aware of these facts. This evidence was excluded by the court and an exception was taken by the defendant.
The evidence shows that there had been a long-time friendship between the deceased and the defendant Jahnke, and there is no intimation in the record, outside of the evidence of the witness Olson, that there had ever been any misunderstanding between them, or any reason to suppose that the defendant had any designs upon the life of the deceased. This evidence in regard to the value of the policy, together with evidence that the defendant knew of the facts showing the worthlessness of the policy, ought to have been admitted; and if we consider it as in evidence, the proof of the motive under the circumstances for the murder of .a life-long friend is not very conclusive and in itself furnishes, of course, no evidence of the defendant’s guilt. It becomes then very important to carefully consider the evidence of the witness Olson, upon whose sole testimony this conviction rests. He testified upon- the trial that the defendant and himself had planned the death of the deceased for the purpose of obtaining the insurance upon his life. There were four separate attempts . on their part to carry out this plan before it finally succeeded.
The witness and defendant both resided in the town of *184Alliance. The witness testified that he had known Michael Sirck (the deceased) for ten or twelve years and that Sirck lived about fourteen miles northwest of Alliance in Box Butte county, Nebraska. That the witness and the defendant were at Sirck’s residence about the 4th . of March, 1902. The defendant Jahnke had a farm about two miles further from town than that of Mr. Sirck. The witness and defendant, started from Alliance in the morning and reached Mr. Sirck’s place about 1 o’clock in the afternoon. They found Mr. Sirck a,t home. They went out there “to take a pump out of Jahnke’s well.” They took dinner with Mr. Sirck, and then went up to Jahnke’s place “to get out the pump and pipe out of Jahnke’s well, and move it down to Mike Sirck’s.” After they had taken out the pump and pipe, the witness says:
“Well, there was a piece of pipe down in the well, and Jahnke he said, we will let Mike down there and let him get that piece of pipe and give it to him.”
The questions then asked and the answers given by the witness were as follows:
Q. Well, did you let Mike Sirck doAvn in the well?
A. We had a pulley and we put the pulley up in the tÓAver, and put a, clevis up there and let the rope on, and Ave put a board on one end of the rope and started in and let Mike Sirck doAvn as far as the rope went, and when he got doAvn to the end of the rope, as far as it woiild go, he said he was quite a ways from the Avater; and so we pulled him up again. Then Ave took a chain and put across from one post to the other and put the pulley on the chain, and then fixed the rope again and let him doAvn Avith another small rope and a hook, so he could fish around for the piece of pipe. .
Q. Well, after Mike got to the bottom of ihe well, what did you do?
A. Well, when he was doAvn there, Jahnke said, Now let’s hitch a team on the rope.
Q. Well, what did Jahnke say when Mike was in the bottom of the well?
*185A. He said, we will hitch a team on to the rope and pull Mike out, and when he gets pretty near to the top, we will cut the rope and let him down in the well.
Q. Did you hitch a team to the rope? •
A. Mr. Jahnke got his team and took them around there and we pulled the rope up so far, so that we could get the clevis on, we had a clevis that was a square shape like, and then he said, you can drive the team, and when we get so far, we will cut the rope and make it appear that the clevis cut the ropes. And I said, no, you take the team, they are used to you.
Q. What did you do further?
A. Mr. Jahnke told me, he said, Yes, I will drive out. I will drive out and when he gets pretty near to the top of the well, you make a motion, and I will cut the rope. And he had his knife in his hand when he started.
Q. Did you draw Michael Sirck to the top of the well?
Q. Tell the jury what you did with Michael Sirck?
A. Mr. Jahnke started with the team, and his knife in his hand, and when Mike got pretty near to the top of the well, I raised my hand and Jahnke made one cut at the rope, but I didn’t see how many times he cut, but he said he cut two or three times before the rope separated, he had one ply on one side of the clevis and two on the other, and Mike Sirck went down to the bottom of the well. And the water rebounded again and he remained on the curbing. There was curbing sticking out about a foot and a half from the well.
Q. Where did the defendant cut the rope?
A. He cut it close to the clevis.
Q. How close to the singletree that the horse was hitched to?
A. Right close up to the clevis that was on the whippletree.
Q. Now had you had any talk with August Jahnke prior to going out to Mike Sirck’s relative to letting him drop in the well?
A. Yes, sir.
*186Q. What was that talk?
A. He said he had a great scheme on hand.
Q. Tell if you can what he said the scheme was.
A. He said he had the life of Mike Sirck insured and a will made out in his favor.
Q. What did he say, if anything, that he intended or proposed to do with Mike Sirck?
A. He proposed to' me if I would assist him in killing Mike Sirck he would give me half of the insurance policy except to pay the doctor’s bill-and the funeral expenses.
This well, according to the witness’s testimony, was 3.10 or 115 feet in depth. He says he thinks that Sirck fell about 100 feet. Olson called to Sirck immediately from the top of the well and asked him if he was hurt, to which Sirck ansAvered that he was not. He was then assisted from the well and they all went to Sirck’s house together. They remained there over night. The deceased seems to have suffered no inconvenience from the fall. On the next day the defendant and Olson planned the second attempt on the life of Mr. Sirck. Olson’s account of this attempt, upon his direct examination, is as follows:
Q. What did Jahnke say to you about killing Sirck that night?
A. He said we had got to get rid of him some way, and Mike Sirck has an old revolver here, and there is something Avrong Avith it, and you are pretty handy fixing a revolver; I will get Mike to let you fix the revolver, then I will have Mike get some cartridges and you take the gun and make an accidental shot and kill Mike Sirck.
* * * * * * *
A. I put the cartridges in the gun as soon as Jahnke requested me, and Mike was staggering to one side of me, and. I held the gun in my left hand in this position, and slipped the thumb over the hammer and pulled the hammer back, and let the thumb slip off and the gun went off.
* * * * * * *
He testified that Sirck was not"over two feet from him when he fired the revolver. Sirck immediately said he *187was' not hit, bnt they both thought that he was, and after remaining another night at Mr. Sirck’s place, on their way home they discussed the matter between themselves and concluded that Sirck must have been shot in the' stomach and would die. Mr. Janke then said “he thought he had better go out and see whether Mike was dead or not; and I thought it would be a good idea.” Three days later Mr. Jahnke, according to this witness’s testimony, went out to Sirck’s place to see if he was yet alive, and having stayed over night, upon his return informed the witness that “Mike was not hurt a particle.”
The witness then procured some corrosive sublimate and this is the way he tells what they did:
Q. State what August F. Jahnke stated to you in that conversation at that time. ,
A. Why, he said he didn’t think a bullet would' kill Mike Sirck, and he thought poison would be the best thing; he thought Ave had better get some poison, strychnine or arsenic, but if we got that, why, he Avould suspicion us.
Q. Well, did you get any poison?
A. Yes, sir. I told him that corrosive sublimate was about as strong a'poison as there was.
Q. Did you get the corrosive sublimate?
A. Yes, sir. He told me to get the corrosive sublimate and I got it.
Q. Now, after you got this corrosive sublimate, what did you do?
A. Why, two or three days afterAvards We started out to Mike Sirck’s again, and we was going to bring the horses belonging to Jahnke.
Q. Well, did Jahnke — Who was it suggested if anyone did, the manner of using this corrosive sublimate to poison Mike?
A. August Jahnke.
* * * * * * *
A. When we got there we unhitched the horses and went to work and got dinner ready; and when we got *188done eating Mike stepped outside and Jah-nke said, I will go out and Avhile Mike and I are hitching up, you can put the corrosive sublimate in the sugar. And they went out and I put the corrosive sublimate in the sugar, part of'it.
* * * * * * *
Q. Go ahead now and state what happened at supper that night.
A. At supper that evening, after we had supper ready, Mike Sirck set dovra and eat supper and took two spoonfuls of that corrosive sublimate and sugar and put in his coffee.
Q. Wha.t effect, if any, did it seem to have on Mike?
A. The first cupful didn’t seem to have any effect on him. When he got that drank I poured another cup' and put in two more spoonfuls of corrosive. sublimate and sugar.
Q. What effect did that have on him?
A. He drank a little of it and said it tasted bad. * * *
Q. After Mike had taken the second cup of coffee, what effect did it have on him that you could see?
A. I couldn’t see any effect. After August said, my coffee don’t taste. good, and throwed it out, Mike said mine don’t taste good either, and he threw it out.
* * * * * * *
Q. Well, what did you do the next morning?
A. The next morning we got breakfast.
Q. What did Mike Sirck d<5, if anything?
A. Well, after we got breakfast, we sat down and eat our breakfast again. I poured the coffee out and Mike took two more spoonfuls of the corrosive sublimate and sugar and put in his coffee.
Q. What effect did it seem to have on him this time?
A. The first cup of coffee didn’t seem to have much effect on him, and after he drank that he took another cup and put two more spoonfuls of the corrosive sublimate and sugar in it.
*189Q. State if you know what condition Mike was in when you left.
A. After breakfast awhile, Mike said he thought that coffee was too strong for him, and so he took another small coffee pot and put some water in that and boiled some coffee that wasn’t so strong, and when he got that cooked to suit himself, he poured a cupful — he had a small dipper, and he poured the coffee in and took a tablespoonful of sugar and corrosive sublimate, and put some bread in it and eat that.
Q. What effect did that have on him?
A. That didn’t have any effect at all; it staid right with him.
* * * * * * *
Q. What did Mike Sirck drink for dinner that day?
A. Coffee.
Q. What did he put in the coffee, if anything?
A. He put some more of that corrosive sublimate and sugar in his coffee.
Q. State what was done if anything, with the sugar and corrosive sublimate when you left there that day?
A. It was left there. I think most of the corrosive sublimate was used.
The fourth attempt was successful. This is Olson’s version of it:
Q. State whether he said anything afterwards, relative to the killing of Mike Sirck.
A. A few days afterwards, he said, we will go out there again, and he said, you take your revolver along. I said my revolver wouldn’t be any good; I said the‘only thing that would be any good would be a shot gun, and I don’t know whether that would be any good or not.
Q. What did Jahnke say?
A. He said, I will get the shotgun, and we will pretend we are going out hunting, and when we get out there you make an accidental shot and kill Mike Sirck.
They then went out to Sirck’s place and-arrived there about 2 o’clock in the afternoon. They took dinner with him. The witness was asked:
*190Q. State why the shot wasn’t made that night, if you know.
A. Because Joe Wismiller came over.
.Wismiller was a cousin of Sirck’s. He stayed there about two hours in the evening. After he had gone the witness and Mr. Jahnke retired. They occupied the same bed. The witness was asked what the conversation was after they had retired and answered:
A. Well, he said, we can’t do it to-night, but in .the morning will do just as well.
Q. Who said that?
A. August F. Jahnke
Q. The defendant?
' A. Yes, sir.
Then comes the witness’s statement of the killing:
A. We went on and got breakfast, and when we had breakfast ready, we waited awhile, Mike Sirck didn’t appear; he had gone out after cattle. So we sat down and eat our breakfast, and we sat there probably five minutes before he arrived. While we were eating our breakfast, August Jahnke said, while Mike Sirck is eating his breakfast you can take the shot gun and accidently shoot him.
* * * * * * *
Q. State what, if anything, you did.
A. Well, after.Michael Sirck got his breakfast, or come back and set down to eat his breakfast, Jahnke was sitting on the east side of the table, and Mike on the west, and the boy was sitting in the room: And I went out in the bedroom and got the gun and come out through the door, and as I did so, I pulled the trigger of the gun and shot Mike Sirck.
Q. Where did you shoot him?
A. I didn’t know just exactly where it hit him at that time.
Q. Did you find out afterwards.
A. Yes, sir, he was shot in the back.
The fall in the well was something over 100 feet, but *191the consequences to Mr. Sirck were not serious. He went to his home that night as usual, a distance of about two miles, and next day was back at the well assisting in removing the pump and other materials. The attempt to kill him with a revolver was equally futile, although the weapon was supposed to have been discharged point blank against his body at a distance of less than two feet, and although both parties present felt confident that the bullet must have entered Mr. Sirck’s body; so confident that notwithstanding Mr. Sirck was around the next morning as usual, protesting that he had not been hurt, they still went home with the belief that he must die from the effects of the shot, and several days afterward took a special journey to his place to ascertain his condition, and yet Mr. Sirck was not hit. Expert witnesses testified that a tablespoonful of corrosive sublimate would contain from 400 to 480 grains and that ordinarily three to five grains would cause death. It is, as its name indicates, a corrosive burning poison. If it touches human flesh it will cauterize it. Olson testifies that he put a tablespoonful of this poison into Mr. Sirck’s sugar and that he believes the whole of it was used. That is, during about twenty-four hours Mr. Sirck must have taken from time to time in quantities sometimes larger and sometimes smaller enough of this poison to have killed at least 100 men, and suffered no injury from it except a slight vomiting which was very temporary in its nature. All of these three attempts upon his life together did not seem to have made any impression upon him. No one-was found who had ever heard him discuss it, and although these two men Avho had planned these attempts at murder afterAvards spent an evening in conversation vrith Mr. Sirck and his cousin Mr. Wismiller, none of these unsual circumstances were mentioned in that conversation. Mr. Wismiller was put upon the stand on behalf of the state, and an attempt was made to show that he had used some of the sugar that had been poisoned, and that it had but slight effect upon him, but no evidence was obtained of *192any admissions or statements of Mr. Jahnke or Mr. Olson during the evening’s conversation that they had with this witness and Mr. Sirck, nor was it shown that the unusual circumstances testified to by Olson were in any manner referred to during that conversation. If the unsupported evidence of an accomplice which furnishes so many indications of inherent weakness and incredibility is the only evidence of guilt, it becomes interesting, and important to discover whether that evidence has been in any respect corroborated or in any respect contradicted by other evidence. So far as corroborating testimony is concerned, it may be said that it was shown that Mr. Jahnke borrowed or hired the shotgun which was the instrument that caused the death of the deceased. But as this was in the hunting season and as the person from whom the gun was obtained was in that business, loaning, out, as he testified, three or four guns each day, this circumstance was as consistent with innocence as with guilt. There were some-other unimportant circumstances of a like nature, nothing that can be said to furnish any substantial corroboration of the evidence of Olson. So far as contradictions of this evidence are concerned, it may be noted that the witness himself has contradicted it as strongly as it is possible for human evidence to do. Before he testified in this case he was a witness before the coroner’s jury, and there in substance corroborated the testimony of the defendant and of his son Alfred Jahnke, who testified that the shooting was accidental; that while the deceased was sitting at the breakfast table the witness Olson came out of an adjoining, room with his arms full of heavy fur overcoats and the shotgun lying across them, and .as he passed through the door in some way struck the gun against the door frame which caused the discharge of the gun, thus inflicting the injury upon the deceased from which he died. Again after the trial when Olson was in the penitentiary he informed the officers there that he had given false testimony upon the trial .and that he wanted- to correct it. He made an affidavit in which he said:
*193“The testimony which I gave at the coroner’s inquest upon the remains of. Michael Sirck was the truth and was an accurate description of the manner the deceased met his death; I was coming out of the house, having three overcoats on one arm and a shotgun in the other hand; the gun struck on the frame of the door and was thus discharged; I did not know at the time the gun was loaded; my reason for changing my testimony at the trial "was that I was told if I did not, I would either he hanged or get a life sentence in prison; I was not placed in jail while I was awaiting trial, hut took my meals at a restaurant and slept in a hotel in charge of the sheriff; I did .as the county attorney and sheriff told me. I had typhoid fever in 1898 and never fully recovered, and at times I do not know what I am saying or doing; I have pains in my head nearly all of the time.
“I malee this statement to relieve my conscience and to right the great wrong I have done August F. Jahnke.”
And the officers having notified the attorneys, Olson again in the most solemn manner under oath detailed the circumstance of the accident, as he called it, corroborating his former evidence before the coroner’s jury and also the evidence of Mr. Jahnke upon the trial. In this sworn statement he explained that he had been induced to testify as he did upon the trial by promises and threats. He afterwards retracted this statement and again swore that the evidence he gave upon the trial was the truth.
If the testimony of an accomplice who can so readily change his evidence from time to time is alone sufficient to support a conviction of so serious a charge, still this record contains a conclusive reason compelling us to reject his testimony. The witness was not always explicit and positive as to his dates and other matters of that nature, but upon the question of the corrosive sublimate he was absolutely positive. He testifies that he bought five cents’ worth of corrosive sublimate for this purpose at the drugstore of Mr. Tillotson in Alliance. That he bought it on the Monday or Tuesday before Easter and carried it in his *194coat pocket from that time .until he used it in Mr. Sirck’s sugar. He shows in his testimony clearly that he knew when Easter was, and he was clear and positive in his statement of the time and place, when and where he bought this poison. Mr. M. R. Tillotson, the proprietor of this drug store, was upon the witness stand, and testified that Olson had not bought any corrosive sublimate at his store at any time during that year. He kept a record of poisons sold, and had always récorded each sale, and never failed to record the name of the purchaser except in one instance which was in the year before. The witness appears to be disinterested and reliable and his cross-examination rather strengthened than weakened his testimony. If this witness is to be believed, the statements of Olson in regard to the purchase and use of the corrosive sublimate must be false, and if he is false in regard to this attempt upon the life of Sirck he cannot be believed in his testimony in regard to other attempts. It is true that questions of fact are to be determined by the jury, and ordinarily, where there is substantial conflict in the evidence, the verdict of the jury must be conclusive, but it is a rule of law that a witness who has wilfully sworn in regard to some material matter upon the trial is not to be believed upon any matters unless his testimony is corroborated.
Under this rule of law the evidence of the witness Olson can not be believed and the verdict of the jury is therefore unsupported.
The former judgment of this court is vacated and the judgment of the district court is reversed and the cause remanded.
Reversed.