dissenting.
With all due deference to my associates, I find myself unable to agree to the views hereinbefore expressed. A re-examination of' the record strengthens my convictions *195relative to the correctness of the conclusions first reached and announced in the opinion heretofore filed. Jahnke v. State, ante, page 154. It is now held in the majority opinion that the evidence is insufficient to support the verdict of guilty as found and returned by the jury sitting in the trial of the case in the court below. I can not but feel that the conclusion thus reached trenches on the prerogative of that body of men wlio are the lawfully constituted triers of fact. That instead of the jury’s finding, there is substituted the judgment of this court regarding purely questions of fact with reference to which there is much competent evidence both pro and con. I do not understand the law to be that a jury must disbelieve all of the testimony of a witness if uncorroborated, even though it may be shown that such witness has willfully sworn falsely upon the trial in a matter material to subject of inquiry. The jury are the judges of the credibility of the witnesses and of the weight to be attached to the testimony of each and all of them. Nor do I think the necessary inference from the record is that the witness Olson, the accomplice of the accused in the crime, if one was committed, willfully or purposely swore falsly regarding any matter material to the issue .raised by the defendant’s plea of not guilty. That he may have been mistaken in many of the details narrated by him and failed to with precision and accuracy state all the facts as they actually transpired is probably true. He was laboring under great mental strain and excitement naturally attendant on one in his situation. But there is nothing to indicate to my mind that he is a willful perjurer or that he deliberately and purposely warped his testimony and spoke falsely in order to convict the accused. He had no object in doing this, and in adhering under conditions of a most extraordinary character to what he asserts to be the truth, he has brought upon himself a sentence of confinement of long duration at hard labor in the penitentiary of the state. While it is asserted by counsel for the accused that Olson is insane or is an imbecile, the whole history *196of the case as disclosed by the record warrants no such conclusion. He is not a strong-minded man but rather the reverse. His will power can be overcome and it appears that he is easily influenced by others in whom he has confidence or with whom he is associated. He has not the strength of mind possessed by the average man of mature years. The case is a most extraordinary one in the criminal history of the state. That Michael Sirck was killed by a gunshot wound while the weapon, a shotgun, was held in the hands of Olson is beyond all peradventure of doubt. If the killing was done purposely there can be no reasonable doubt as to the accused’s guilty participation in the crime nor as to his being the one who planned the homicide and executed the plan through the instrumentality of Olson, who it is shown by the evidence was a pliant tool in his hands and wholly under his influence. It is stoutly asserted that the killing was purely accidental. There is much in the evidence tending to prove that the accused had conceived the idea of encompassing the death of Sirck for the purpose of pecuniary gain and advantage and that in carrying into execution this idea, his plans were to have it appear that when death did result, it should be under such circumstances as that it might be said it was accidental. In other words that while the homicide was to be caused by forces purposely set in motion, yet it was to be given the appearance of having been the result of an accident. It is not, therefore, at all unreasonable that the theory of an accidental killing should have some color of support in the evidence adduced to establish the crime. The witness Olson had no personal interest to subserve nor motive for making an effort to fasten guilt upon the accused contrary to the truth for he too must also suffer from the exposure. It is almost unbelievable that a person of the mental capacity of Olson can manufacture out of whole cloth the startling story he narrates in his testimony. It is said that fools and children always speak the truth and this saying is, I think, quite applicable to the testimony of Olson. There is to his testimony a simplicity and di*197tectness which carries conviction of his .effort to speak the truth of and concerning those things which his own senses have witnessed and experienced. In order to break down his testimony and to account for his change of attitude after the coroner’s inquiry where he testified that the killing was accidental, it is boldly intimated by the defense that the sheriff and prosecuting attorney, two sworn officers of the county who are honorable and reputable citizens so far as the record discloses .and presumably so till the contrary is shown, have violated their oaths and every principle of honesty and justice by conspiring together and with the witness for the purpose of convicting an innocent man by subornation of perjury. I unhesitatingly repudiate such thought as being altogether unsupported by any act or circumstance disclosed by the record and one which ought not even to have been suggested in proceedings of the gravity of those now under consideration. The evidence alone of the witness Olson covers, with objections, nearly 200 pages of typewritten matter in the bill of exceptions. The bill as a whole, in so far as it relates to the testimony of all the witnesses for the state and for the defendant, covers between 450 .and 500 pages of typewritten matter. It is quite difficult if not impossible to give even a fair epitome of the evidence found in the bill of exceptions without extending this opinion to an unwarranted length. The jury heard these several witnesses testify, noted their manner of testifying, and their demeanor while on the witness stand and were, in my judgment, far better qualified to judge of the truth of the matters in controversy than we can possibly be by reading the record in cold, lifeless type.
The rule is well established that a person accused of crime may be convicted on the uncorroborated testimony of an accomplice. The weight to be given the testimony of such a witness is for the jury to determine after a careful examination of the same in the light of all the otheir evidence in the case. Lamb v. State, 40 Neb. 312; State v. Sneff, 22 Neb. 481. As I view the record, the testimony *198of Olson is not only corroborated but, upon the whole, the record is bristling with facts and circumstances of a corroborative character all tending to strengthen and confirm the truth of his statements as to the essential facts and circumstances connected with the commission of the crime charged. I can only refer' briefly to some of the important events in the series of transactions testified to. As to the immediate transaction resulting in the death of Michael Sirck, the evidence as it presents itself to me-tends to disprove rather than to confirm the theory of an accidental killing. Manifestly, I think, the jury were warranted from a consideration of all the evidence in rejecting the accused’s testimony and the theory of the defense as to the shooting being the result of an accident. Quoting from the majority opinion, Avhich I think is a fair statement as to how the accident is supposed to have occurred, it is said: “That while deceased was sitting at the breakfast table, the Avitness 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 Avay struck the gun against the door frame AAdiich caused the discharge of the gun, thus inflicting the injury upon the deceased from Avhich he died.” The door in the partition opened into the room from which Olson was passing in going into the room where Sirck was sitting. Olson is a large man, being six feet four inches tall. The deceased was sitting at the table in the northwest corner of the room close to the partition wall and between it and the table with the door leading into the other room immediately to his right. The table was so close to the partition that there was just room enough to slip a chair betAveen it and the table, as testified to by Jahnke himself. Sirck occupied this chair and his back must, therefore, have been .almost against the wall. He was eating his breakfast and sitting with his face to the east. Jahnke, according to his testimony, was sitting at the end of the table facing the north and, according to Olson’s testimony, at the opposite side of the table from the deceased .and fac*199ing Mm. The partition door was so close to the deceased that, when the shot was fired as Olson came through the door, whether accidentally or otherwise, the burning of powder set fire to the clothing worn by Sirck. In no event could he have been more than three or four feet distant from the muzzle of the gun when the charge exploded. Jahnke says that at the time he was busy talking to Sirck and he did not look around at anything. “All at once” says he, “a shot went off and Mike (the deceased) fell against the wall. I heard Olson holler and looked round and he was out of doors, and T noticed the coats right there in this bed room door; they laid right in the center, three buffalo coats, and Oliver was out of doors.” According to Olson, the accused was to sit at the table, although he liad eaten his breakfast, and engage Sirck in conversation while Olson was to come through the door with the gun and have it accidentally discharged in order that the plan of killing might be successfully carried into execution. It is hardly to be wondered at finder the circumstances that the accused was busy talking to Sirck at the time and that Olson sprang out of the door under the excitement of the moment.
The testimony of the physician who examined the wound was that the shot penetrated the body about five and one-half inches to the right of the spinal column, penetrating - the vertebrae and shattering them and separating the ribs on either side from the vertebrae, some of the shot going inside of the thoracic cavity; that some of the shot had penetrated both lungs-in the back part; that the direction or course of the charge was slightly downward, striking five inches to the right and going in a direction so as to strike the vertebral column; that it was not quite parallel but slightly in towards the center of the body, possibly a half an inch inward. From this evidence it appears that the gun-barrel was held in a position nearly level when the gun was discharged and that it pointed in a direction parallel with the back of the body of the deceased and almost parallel with the partition by which *200he was sitting. Under these circumstances, the'jury might very well reject as inconsistent the testimony to the effect that the injury was caused by the gun striking the side of the door frame as Olson was carrying it in his arms with the coats when coming into the room where Sirck sat immediately to his left.
The course taken by the charge of shot when they penetrated the body is a circumstance altogether in harmony with the statements of Olson that he purposely held the gun in such a position as to point directly toward Sirck’s body with the gun-barrel on a level or approximately so, and low enough to strike Sirck where the shot entered his body, the range of the shot being parallel with the partition and the trigger of the gun pulled after the gun was clear of the door frame and opening. Concerning the alleged inconsistency or falsity of Olson’s testimony relative to the attempt to poison Sirck with corrosive sublimate much is said about his taking spoonful after spoonful on several different occasions of this poisonous substance. Whether Olson’s testimony of the purchase or the druggist’s denying the sale was to be accepted as true was purely a matter for the jury. The jury were not forced to believe the druggist and disbelieve Olson. There is evidence tending to show that the druggist did not keep a record of the sale of poisonous substances and to whom sold in every instance as the law required, and he may not have done so in this instance. Olson testifies that he bought five cents’ worth. He put only a portion of it in the sugar he says he thinks about half but that he poured a part of it in and made no effort to measure it. While he estimates it at a tablespoonful he, as I read the record, was referring to a teaspoon. He calls the spoon used to put- sugar in the coffee a tablespoon. Five cents’ worth of the poison would probably not exceed a half ounce. This could not be more than a teaspoon level full altogether. If I am correct in this respect, not over half of a level teaspoonful of the poison was placed in the sugar. He said he put it in the sugar bowl and then shook the bowl to mix the poison with *201the sugar. The weight of this substance or specific gravity is testified to be the same as that of lead and to be in a crystallized form. It may have all settled in the bottom of the bowl. It is, therefore, not wholly impossible, even though Olson did buy the poison and did. put it in the sugar, that'Sirck never got enough of it to produce fatal results nor more than enough to produce the nausea and sickness which Olson testifies followed the sweetening of the coffee which Sirck drank with the sugar taken out of this bowl. Wismiller, a witness for the state, testifies that he took the sugar that was in this bowl after the death of Sirck and that there was something in the bottom that looked like flour, and that the sugar had a queer taste and was thrown out. There is unmistakably in the record other evidence than given by Olson tending to prove that some foreign substance was found in the sugar bowl and that the sugar had an unnatural taste. Whether this was corrosive sublimate or whether Olson had been imposed upon by the druggist and something else given him instead of the poison and which he believed to be poison, or whether he was in error, is a matter of conjecture, but I do not think it can be said that he was willfully falsifying when he gave his testimony concerning this attempt on the life of Sirck. Concerning the revolver episode, there is evidence tending to prove that the accused and Sirck were engaged in a drunken debauch and the ridiculous attempt, as testified to, to terminate his life by the accidental discharge of the revolver in the manner testified to, may have occurred; and whether Olson’s testimony respecting what was afterwards said as to the probable fatal termination of the attempt may not have had reference in fact to the poison rather than to the shooting is not free from doubt. The incident at the well is not so incredible as to' compel the belief that there is no basis in truth for what is testified to have there transpired. The evidence establishes beyond reasonable doubt that Jahnke was instrumental and active in procuring insurance on the life of the deceased, and himself to be the beneficiary in a very large' *202sum of money in view of the situation of the parties, and in keeping the assessments paid in order to keep the insurance alive until after the death of Sirck. That he expected pecuniary profit and advantage therefrom can scarcely be doubted. Under the will which he was instrumental in having Sirck execute, he was the beneficiary of all of his property of whatsoever kind. Concerning the affidavit of Olson, made after the trial of the .case 'while confined in the penitentiary, retracting what he had before testified to, it is, to my mind, very satisfactorily shown that this affidavit was procured by coercion and intimidation and in fear of bodily injury and that Jahnke was at the bottom of the forces set in motion which resulted in such affidavit. An .affidavit by Olson’s father in the record, if these affidavits may be considered, ought to satisfy the most skeptical that the influences for evil exerted over Olson after his incarceration in the penitentiary by Jahnke were but a continuation of those exerted by him leading up to and culminating in the tragedy in which Sirck lost his life. The retraction of Olson can be satisfactorily explained only on the theory that the two county officers procured and conspired with him to have him testify falsely in order to convict the accused, and this view of the case is not to be thought of or given the slightest recognition. As to the holding in the majority opinion that evidence concerning the financial standing of the insurance company was erroneously excluded, I copy from the brief of counsel for the accused: “August Jahnke was fully aware that this company had already refused to pay a policy of insurance on the life of one Bean in March, 1902. Jahnke had called at Noleman’s office (one of the attorneys for the accused) and had fully discused the liability financially of this company. Noleman had told him that it was a mutual company and that it was unable to pay its losses; that it was started without money. He told him how he knew it and what the treasurer had told him. The accused knew full well that there would be no profit to him if Michael Sirck were to die.” Again it is said: “He (Jahnke) knew the in*203surance policies were practically of no value. See testimony of Noleman 700, 701.” The trial court, out of an abundance of caution, allowed the attorney to testify to all of these things just as narrated in the brief. I find ho serious complaint in the original brief as to the exclusion of the evidence on which error is predicated in the majority opinion. The evidence offered and excluded on which error is predicated went no further than to show that the mortuary fund of the association did not exceed $500, that the membership was about 300 and that there was a death claim against the fund of $2,000, and that Jahnke knew of such facts before Sirck’s death. The insurance company was a mutual concern doing business on the assessment plan and with assets consisting of the obligations of its members, and probably other available property, with power to assess its membership to pay losses as they would reasonably be expected to occur in the ordinary course of the business. For these reasons, the excluded evidence did not tend to show the company was not solvent and able to meet its liabilities on account of death losses as they occurred in the ordinary course of its business. -1 do not think that the exclusion of the evidence referred to affords any sufficient ground upon which to base a reversal of . the judgment of conviction. The conclusion announced in the majority opinion must, I think, logically result in an acquittal. In all reasonable probability the state has offered all the evidence that can be adduced in support of the charge made in the information.
Viewing as I do the record as disclosing evidence sufficient to support the verdict of the jury, and finding no prejudicial errors of law, I am constrained to adhere to the views expressed in the former opinion and to hold that the judgment of conviction should remain undisturbed. I, therefore, respectfully dissent from the views now expressed by my associates.