dissenting: 1. Theoretically, at least, a person convicted of crime through the instrumentality of circumstantial evidence does not escape punishment by showing in this Court that the intensity of proof in his ease was less in degree than that .required to convict beyond a reasonable doubt. I have the impression that in the main opinion there is a balancing of the evidence, pro and con, which involves the weight and the intensity of proof required to convict rather than the existence of evidence of guilt, which latter investigation should mark the limit of appellate review. A conclusion resting upon the theory that the circumstantial evidence offered has not excluded every reasonable hypothesis of defendant’s guilt and based upon a comparative analysis of the phases of the evidence which indicate guilt with other considerations more favorable to innocence, necessarily challenges the degree of proof rather than a conclusion reached without any evidence at all.
It is well enough as an aid to the jury in its dealing with circumstantial evidence, to instruct them that in order to convict of crime the evidence must exclude every reasonable hypothesis of defendant’s guilt. This is only an analytical converse of the rule that the evidence must be such as to convince the jury beyond a reasonable doubt of the defendant’s guilt. If it means anything more, it ought to be stricken out of the books. But, under constitutional and statutory methods of trial, where there is evidence of guilt, the process of comparing, appraising, weighing, and deciding whether conjecturable theories of the defendant’s innocence have been excluded is properly that of the jury. The Court has no right to thrust itself into the penetralia of the jury’s mental processes, — either at the trial or upon review, — and substitute its own thinking for that of the jury, because of any supposed difference between circumstantial evidence and direct testimony. The true test is whether, upon the consideration of the whole evidence, there is reasonable doubt of defendant’s guilt; and where there is evidence of guilt, I repeat, this is a matter for *129the jury, whether it is reached through the instrumentality of circumstantial evidence or the equally fallible means of so-called direct evidence or testimony.
Frankly, I think the Court, in its analysis and comparison of the several phases of the evidence in the instant case, and in the conclusion reached, has departed from traditional standards. And I respectfully suggest, — if the matter is indeed our responsibility at all, — that the reasonable hypotheses of innocence advanced by the Court as not having been excluded in the instant case appear to me to be dehors the evidence, unsubstantial, speculative.
Especially is this true of the suggestion that Oliver might have been the victim of “hijackers,” the mysterious “they” who murdered to rob, but forgot to take.
For the statement in the main opinion that the evidence does no more than raise a suspicion of defendant’s guilt, there is, of course, no answer except to challenge that appraisal, and direct attention to the rules which have been, as I think inadvertently, but nevertheless mistakenly, applied to its consideration. I am sure, however, that the cited cases, while they supply the formula, do not by any factual similarity support its application to the instant case.
2. There is in this record strong and compelling evidence of the defendant’s guilt, which fully justified his conviction by the jury, unless it is made unavailable by the rule advanced in the main opinion: “While the State by offering in evidence a statement of the defendant in a criminal action is not precluded from showing that the facts are different, nevertheless it presents the statement as worthy of belief.” Cited in support of this statement are, S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; S. v. Cohoon, 206 N. C., 388, 174 S. E., 91; S. v. Todd, 222 N. C., 346, 23 S. E. (2d), 47; S. v. Baker, 222 N. C., 428, 23 S. E. (2d), 340; S. v. Boyd, 223 N. C., 79, 25 S. E. (2d), 456; S. v. Watts, 224 N. C., 771, 32 S. E. (2d), 348.
In stating the rule it is pointed out that while in this case “the admissions in the statement of the defendant put the accused at the scene of the crime,” it tends to exculpate him; and the conclusion drawn is that the State, having introduced it, presents such matter as worthy of belief and is bound by it.
So stated, it is simply a case-hardened extension of the rule that the State may not “impeach” its own witness but may show the facts to be otherwise than stated. As applied to declarations of the defendant introduced through the State’s witnesses for the purpose of incrimination, it practically puts the defendant on the stand as a witness for the State, with all the privileges with respect to endorsement on the part of the prosecution that such a witness might have, without even the traditional *130right of the jury to scrutinize it in the light of the declarant’s interest and reject such part of it as may be unworthy of belief.
The State must choose one or the other of the horns of the dilemma, either to let the incriminating declaration alone or to be bound by the so-called exculpatory additions, although they may to reasonable minds appear to be a complete self-serving fabulation.
The prevailing rule and the only one which will serve the purpose of trial, which is to extract the truth from contradictory evidence, is that when the declarations of the defendant are introduced at all he is entitled to have them introduced in their entirety. Where the proffered statement is both integral and documentary as it was in S. v. Cohoon, infra,, this presents no problem; where it is oral the defendant may resort to cross-examination, or introduce independent evidence. But while the defendant is entitled to have the entire statement presented in the evidence, and when this is done it must be considered in its entirety, nevertheless it is left with the jury to accept such parts of it as they may deem worthy of credence and reject such parts as they consider unworthy of belief. Chamberlayne, Trial Evidence (Tompkins), pp. 411, 472. Even when the declaration is in written form, “the jury may follow certain portions and disregard the balance.” A full discussion of this subject may be found in Wigmore on Evidence, in Section 2100, reaching the same conclusion.
Analyzing the cases cited in the main opinion as authority for the rule as expressed therein, S. v. Fulcher, supra, has nothing in particular to do with the point in consideration. It deals with the evidence introduced by defendant himself and its significance on demurrer. In S. v. Cohoon, supra, the State relied solely upon the documentary statement or affidavit of the defendant and there was nothing whatever in that statement that indicated guilt. The same is true of S. v. Todd, supra; S. v. Baker, supra; S. v. Boyd, supra; and S. v. Watts, supra; The supposed exculpatory Statements in all these cases might have been stricken out altogether and the State would still have failed to make out its case.
The evidence ought to go .to the jury and be considered by them as objectively as possible without being weighted before it is weighed by the irrelevant circumstance of its presentation. If it means anything else, the ball should be carried back to the point where the Court stepped outside the bounds.
However this may be, the rule as advanced, however restrictive in its requirements, even if too well established to be dislodged, can have no reasonable application to the facts of this case. The declarations here are not one, but several; not made to one witness, but to a number of them; evasive, contradictory, incredible; and considered together the *131statements made by tbe defendant, assumed in tbe main opinion to be exculpatory, are, if possible, more damning than tbe admissions from wbicb they are supposed to relieve bim. And we bave to consider not 'only these statements but tbe manner and order of tbe revelations they contain and the conduct of tbe defendant immediately following tbe tragedy, wbicb is a matter of independent evidence. Amongst bis statements made to different witnesses are tbe following: Tbat be bad not seen Oliver that night or for several days, although be bad stated tbat be was at tbe scene of tbe killing, beard Oliver’s dying statement and stepped over bis dead body; tbat be bad started to Oliver’s bouse to pay for milk; again, tbat be owed Oliver some money for work done for bim and went over there to pay bim for it; and again, tbat be bad decided • to cut some wood and went over to tbe woods; tbat be bad discovered tbe presence of cartons of liquor in tbe woods but in leaving was shot by tbe mysterious “they.”
Tbe main indictment of guilt I find in tbe evidence is tbat be came from tbe scene of a bloody murder, with blood on bis garments and firsthand information of tbe murder, an exclusive secret with which be wás loath to part.
“As I was walking all alane
I beard twa corbies making a mane;
Tbe tañe unto tbe t’other say,
‘Where sail we gang and dine to-day?’
“ ‘In bebint yon auld fail dyke.
I wot there lies a new-slain Knight;
And naebody kens that be lies there,
But bis hawk, bis bound, and lady fair.’ ”
Twa Corbies; Palgrave’s Collection,
“Golden Treasury.”
A person who has first-hand knowledge of tbe murder of a neighbor and is guiltless himself does not impart tbe information in tbe evasive and reluctant manner carefully chosen by tbe defendant.
Tbe defendant was near enough Oliver to bave witnessed tbe furious thudding assault tbat smashed bis skull and tbe bones of bis face; broke off tbe stock of tbe gun and left fibres of bis felt bat upon tbe hammer and blood upon tbe barrel; and knew tbe manner of bis death, yet be stepped over bis dead body and declared tbat Oliver bad been shot. Apparently be used every device tbat be could think of to induce somebody to go up to tbe scene of tbe killing and discover tbe body without implicating himself as tbe murderer. He wanted somebody to go up there to get liquor from a cache. He wanted somebody to go after tbe law *132because there was blockading going on; and failing in this and after over two hours expended in efforts of this kind, he hesitatingly inquired of the witnesses whether they would believe him if he would say that Oliver was lying up there dead in the woods.
The witnesses testified that Coffey exposed his leg to show them a puncture in it that might have been made by a small shot or a, nail. He called loudly for a doctor and on two occasions widely separated as to time and in the presence of prospective witnesses, collapsed, stating that it was because of loss of blood from this puncture, but quickly recovered. Impressive, indeed, but a clinical marvel. And here I might say that there was no evidence that the overflow of such quantity of the vital fluid had run down into his shoe.
I have gone into the evidence thus far in order to point out the charac-' ter of the evidence deemed exculpatory, and to pose the question r What part of it is the jury bound to-believe under the rule as stated in the main opinion? To believe it all is a mental, moral, and physical impossibility ; and to ask the jury to do so does not invite credence, but assumes credulity.
I might conclude by saying that so far as the evidence of guilt is concerned it does not make any difference how many persons were present in the woods prior to the time of the killing or whether whiskey was sold there by the carton or the bottle during the 24 hours preceding the murder. The defendant himself is fixed at the spot by his own admissions at the time of the killing, and by independent evidence shortly preceding it. It is perfectly true that opportunity to commit a crime is not alone sufficient to convict the accused; but no matter whether a motive may or may not be shown, his presence at the scene of the murder with nothing more definite as to the presence of others, together with his subsequent conduct and contradictory and evasive statements with regard to vital facts, have uniformly heretofore been regarded as sufficient.
My vote is to sustain the conviction.