dissenting, said:
It would seem to be beyond doubt that the power to punish for crime, possessed by all civilized communities, had its origin and source in the inherent right which belonged to every individual, in a state of nature, to secure himself against injury from his fellows, and that it was transferred, in course *878of time and in the progresé of civilization, from the individual to the sovereign power of the various communities as they came into being. Rutherforth’s Inst., chapter xviii; 1 Bish. Cr. Law, section 9; 4 Bl. Com., chapter 1, section 8.
And it cannot be doubted that the prompt and fearless exercise of this power, on all proper occasions, is absolutely essential to the safety and well-being, if not the life of all organized society. Nevertheless, as this right is confined to the use of such means and the imposition of -such penalties as the lawmaking power of the State deems necessary to prevent the recurrence of crime, it is obvious that the right to exercise this power never arises, and cannot be lawfully exercised until there has been a crime positively established, and the real criminal certainly found and legally convicted. The exercise of this right, therefore, in any case where there is reasonable doubt, either as to the crime or the criminal, especially in cases of murder, where the penalty is death, can never be justified, and is likely to work irreparable injury to the accused, the defeat of the real ends of punishment, and ten^ to a want of confidence in the humanity of the law and the due administration of justice. Hence it is, that to meet exactly such cases, the maxim “it is better that ninety-nine (that is an indefinite number of) guilty persons should escape punishment than that one innocent person should be punished,” has been wisely adopted. Johnson’s Case, 29 Gratt. 820; Smith’s Case, 21 Gratt. 818.
It must also he obvious, that as the only ends sought to be obtained by the infliction of punishment are, first, to prevent the criminal and others from the commission of like crimes; and, next, to amend the criminal, that the idea, sometimes advanced by the unthinking, that a person charged with a specific offence may be rightly punished for some other offence, or for general depravity, or that the offence actually committed, *879although separate and distinct from the one with which he is charged being equally heinous, he may be properly punished for the offence not charged, in order to rid the community of him, has no place in the criminal jurisprudence of this or any other country.
And as it is the bounden duty of each judge of this court, in every case, properly here, to carefully examine the proceedings of the lower court, and if he finds that there has been a mistrial or failure of legal justice, either because the prisoner has been denied any, even the least important of the safe-guards, which the law has justly and mercifully thrown around him, for his protection, or that the jury have reached an erroneous conclusion upon the evidence, or that he has been prejudiced in any other respect, so to declare, I shall offer no apology for dissenting in this, the first case in this court, so far as I can recall, in which a judgment of affirmance has been entered without at least three of the judges being able to agree in all the reasons by which their conclusion was reached, and shall proceed to state as briefly as I can the grounds which, in my judgment, clearly entitle the accused to a new trial.
The first error of which the accused has the right to complain, is the rejection of the juryman Larke. As appeared by the first bill of exceptions, after twelve veniremen, among whom was the venireman Robert W. Larke, had been examined upon their voir dire, and accepted by the court as competent jurors, but before the panel had been completed and before said jurors had been sworn to try the cause, the attorneys for the Commonwealth challenged the juror Larke, upon the ground that he had previously stated that he “would not under any circumstances convict a man upon circumstantial evidence.” And they then introduced, in support of their challenge, two witnesses, who testified in substance as follows: That in a conversation held with the juror a week or ten days *880before, begun about this case, but which had drifted into a talk about crime generally, the juror Larke made the remark above mentioned. Whereupon, Larke took the stand and stated, under oath, that he had forgotten about the conversation, and could not recall the words he had used. What “I meant,” said he, “by what I said was, that a man ought to be very slow and cautious in convicting a man on circumstantial evidence. If this case presented an unbroken chain of circumstantial evidence, fully proved, I would convict him, if I was convinced. I don’t remember having said that I would under no circumstances hang a man on circumstantial evidence. I didn’t intend to say that I wouldn’t convict a man in any case of circumstantial evidence, but I would be very cautious in doing so. I made the remark in a general way.” Now, it is undoubtedly well settled that no person who has conscientious scruples against the infliction of the death penalty, or who is conscientiously opposed to convicting in a capital case on circumstantial evidence, is a competent juror in any case where the penalty may be death, for the reason that every one, in order to be a competent juror, must.be in a condition of mind to find a verdict in accordance with the law and the evidence. To place any one entertaining such scruples upon a jury, and go through the forms of trial with the almost certain ■ result of a mistrial, would, therefore, be a mockery of justice and a prostitution of the law, which no court could for a moment 'tolerate. But this principle has little or no bearing upon the case of this juror. It is not pretended that this juror had any scruples against the infliction of the death-penalty, nor can it be claimed, upon any fair interpretation of his sworn statement, taken as a whole, that he has conscientious scruples against finding a verdict of guilty in a capital case on circumstantial evidence; for viewing his statement in the proper light, dt is nothing more nor less than a direct assertion that, although he would *881be slow and cautions in convicting in such a case, yet, that he would convict, if convinced of the guilt of the accused, by an unbroken chain of circumstances fully proven. It is true that in all likelihood he did make, in the course of a conversation, in which he was very properly combatting the propriety of forming an opinion upon newspaper accounts of the evidence, the remark attributed to him, but the evidently honest disavowal in open court of such a want of faith in the probative power of circumstantial evidence as the use of that language imputed to him, and contained in the declaration, “I didn’t intend to say I wouldn’t convict a man in any case of circumstantial evidence, but I would be very cautious in doing so,” would seem to imply, coupled with the fact that he had forgotten both the utterance and the occasion on which it was made, shows that it was nothing more than the inconsiderate remark of one who, in an idle moment, has given expression to a sentiment which he did not feel, and to a purpose which he never entertained. Of him, it may be said, as was said of another juror by the court in State v. Dicken, 35 La. An. 66, “his answers given under the sanction of an oath are certainly a better and a safer test of his competency as a juror than the thoughtless remark referred to.” It is not pretended that he was biased either for or against the accused, or that he had conscientious scruples against the infliction of the death-penalty. Unless, then, his views as to the way in which circumstantial evidence should be regarded are wrong, he was a competent juror.. That his views on this subject were not wrong seems clear from the following quotations. In Algheri v. State, 35 Miss. R. 584, the high court of errors and appeals of that State, held: 1st. That in the application of circumstantial evidence to the determination of a case, the utmost caution and vigilance should be used. 2d. That it is always insufficient, when assuming all to be proved, which the evidence tends to prove, some other hypothesis may still be true, for it *882is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth; and 3d. That where the evidence leaves it indifferent which of several hypothesis is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof, however great the probability may be. The second and third of these propositions, says Moncure, P., speaking for the whole court in Johnson’s Case, 29 Gratt. 817, were literally taken from 1st Starkie on Ev. 572, and correctly expound the law. In Dean’s Case, 32 Gratt. 912, this court held, as the syllabus of the case will show, that circumstantial evidence must always be scanned with great caution, and can never justify a verdict of guilty, especially of murder in the first degree, the penalty of which is death, unless the circumstances are of such a character and tendency as to produce upon a fair and unprejudiced mind, a moral conviction of the guilt of the accused beyond all reasonable doubt. And in that case, Christian, J., speaking for the court said: “We are painfully aware that this is a case of purely circumstantial evidence; and we have therefore given to it the most careful and anxious consideration. And looking with the closest scrutiny to all the facts and circumstances proved, we find them, when combined, utterly inconsistent with the innocence of the accused, but consistent with no other reasonable hypothesis but that of his guilt. When these things concur, the force of circumstantial evidence becomes as potent as that of direct evidence.”
And Wills, in his book on Circumstantial Evidence, quotes, with approval, the language of Mr. Justice Bayley, in Rex v. Downing, that “ Where there is nothing but the evidence of circumstances to guide you, those circumstances ought to be closely and necessarily connected, and to be made as clear as if there were absolute and positive proof.”
Such being the law in cases of this character, it must be *883perfectly apparent to every unprejudiced mind that Larke was a competent juror ; that he thoroughly understood the temper in which a juror should consider a case supported by evidence purely circumstantial, and that such was the peculiar frame of his mind that he was especially fitted to act as a juror in cases of that kind.
It is a matter of utter impossibility to accurately estimate or ascertain the value of such a juror, in such a case, especially if, as usually happens, the feelings of the public are deeply aroused against the supposed perpetrator of the crime. The exclusion of such a person from the jury is manifest error to the prejudice of the prisoner, and accordingly we find it, as we would naturally expect, laid down in Montague’s Case, that in every such case it is unnecessary to inquire whether the prisoner has been prejudiced by the illegal exclusion of the juror, “because, in the opinion of this court, where any legal right has been denied to a party on trial for a criminal offence, any of the safe-guards thrown around him by law for his protection has been disregarded, it is not for this court to say what might or might not have been the effect upon the case of the accused, but will reverse the judgment and remand the case for a new trial. And if it be necessary, to enable him to exercise his right to have the judgment of the court reviewed in the appellate tribunal, the law will intend prejudice, and will hold it impossible, in such a case, to say that a fair and impartial trial has been had.” And such is the settled law of this State ever since that case.
It is, however, contended that if the court did not have the right to exclude Larke from serving as a juror upon this ground that it did have the right to discharge him, because, after he had been challenged by the State, he stated to the court that he was over sixty years of age; that he had not remembered it when examined on his voir dire, and that if it *884was not now too late lie claimed his exemption from service on the jury on that ground. And such was my first impression, but subsequent reflection has satisfied me that I was entirely mistaken. Larke’s right to be exempted from jury duty on this ground was purely a personal privilege, which he had the right to exercise up to the time that he was accepted by the court. By his failure to claim his exemption before he was accepted I think he waived his right. Logically, his right to exemption ceased when the court accepted him, and his subsequent effort to get the benefit of an exemption which he had waived did not constitute such a cause as the court had the power to discharge a juror for. But, besides this, it is certainly a well recognized principle of law that courts, even while exercising their admitted functions, must so exercise them as not unnecessarily to prejudice the rights of the accused. In this case it distinctly appears that this juror was discharged in the presence of at least four persons who had been examined on their voir dire, and who subsequently served as a part of the jury without indicating, so far as this record shows, the ground of his dismission. Under these circumstances, it was the duty of the court to have stated the ground upon which he was discharged. The failure to do so was certainly well calculated to mislead at least these four jurymen, if not others who may have been present. Because, for aught that appears, each of those persons might well have supposed that Larke was discharged, not because of his claim to be exempt from jury duty, but because of the caution with which it was evident he regarded circumstantial evidence, and this may have caused them to scan less closely the circumstances of the case and to attach more importance to those circumstances than they would otherwise have done. To say the least, it is highly probable that the prisoner has been prejudiced by the failuré of the court to state the ground upon which he rejected the *885juror, and equally probable, nay, certain, in my judgment, that a person was excluded from the jury that tried the case who was eminently qualified to serve as a juror in just such a case as this is. In Montague’s Case, 10 Gratt. 769, this court reversed the judgment because it appeared that the lower court had discharged a juror because, being a neighbor of the wife and family of the prisoner, who lived on the lot adjoining his residence, he stated to the court that he was unwilling to trust himself under the circumstances, there being great intimacy between his and the prisoner’s family, although the juror stated at the same time that he had no prejudice for or against the prisoner, and could render a fair and impartial verdict on the evidence which might be adduced. In that case, the.court held that while the trial court may examine a juror on oath and in the exercise of a sound discretion discharge him, yet that if it shall appear that the court erroneously exercised its discretion in discharging such juror without good and sufficient cause, that it is matter of exception on the part of the accused for which the judgment of that court should be reviewed and reversed. And so I hold here upon what I conceive to be very much stronger ground.
But four cases are specially relied upon by the attorneys for the Commonwealth in their brief, and by Judge Fauntleroy in his opinion, as sustaining the action of the hustings court. After a careful examination of these cases, however, I can discover nothing in either or all of them which militates in the slightest degree against the views presented herein, as a brief reference to them will show.
In the first of these cases, 15 Tex. App. 534, the challenged juror admitted upon his examination in court that on the pre-» vious day he had had a conversation with the defendant with reference to his case, in which he said to him that he hoped or believed (he did not remember which word he had used) that *886he the defendant would come out all right. Whereupon he was challenged by the State for cause, and required by the court to stand aside. In that case the juror was evidently regarded as biased in favor of the defendant.
In the next case, Metzger v State, 18 Fla. 486, it distinctly appears that the juror was rejected in obedience to the express mandate of the statute of that State, which says that “no person, whose opinions are such as to preclude him from finding any defendant guilty of an offence, punishable with death, shall be compelled or allowed to serve as a juror on the trial of such an offence;” and the chief-justice in delivering the opinion of the court, after reciting the words of the statute set out above, said:
“ Here is an express statute disqualifying those whose opinions are such as would prevent them from convicting persons of capital offences from sitting on juries in such cases. Here two persons made oath in his presence (meaning the presence of the judge) that Hoke (the juror) had said that if he were on the jury he would not go for capital punishment; in other words, he would not be an instrument of inflicting the penalty of death, and he makes no denial of the charge that these were his opinions.” In that case the objection to the juror was that he was opposed to capital punishment, and he does not say before the judge either that his views had undergone a change or that he never meant what he had previously said. What similarity; may I then be permitted to ask, can there be between that case and this? What similarity can there be between a juror, who is opposed to capital punishment, no matter how cogent and full the proof may be and one, who simply says he will do, in a case of circumstantial evidence, what the law requires him to do in such a case—namely, scan the evidence closely and only find a verdict of guilty if the chain of evidence is unbroken and the proof full and convincing?
In State v. Ward, 39 Vermont R. 231, the juror, upon being *887interrogated in respect to his views of capital punishment, declared he had conscientious scruples against rendering a verdict of guilty in a case where the punishment was death, and that he believed the law inflicting the punishment of death was wrong. He was thereupon discharged, because the court did not regard him as an impartial juror. But what possible analogy can there be between the case of that juror and a juror who does not object to the death penalty, but only requires what the law exacts, an unbroken chain of circumstances directly connecting the accused with the ultimate fact to be proved—to-wit: the violent death of the person supposed to have been murdered—before he will render a verdict of guilty.
In Waller v. State, 40 Ala. 325, the juror was set aside for having a fixed opinion against capital punishment. The court, however, saying that to act or to decline to act in such a case as this is not error (meaning in the lower court). Thus in effect, saying that it would not have been error under the statute of that State for the lower court to have allowed the challenged juror to remain upon the jury, unless challenged by the State’s attorney for cause.
Having thus stated what, in my judgment, these cases really decide, it seems almost a work of supererogation to add that I am unable to perceive that they even tend to sustain the action of the trial court in this case. Neither one of them asserts the doctrine that a person would be incompetent to sit as a. juror merely because he would require convincing evidence before he would convict in a criminal case depending upon circumstantial evidence, and neither of them establishes the power of a court, in this State, to discharge a juror after he has been examined upon his voir dire, has answered satisfactorily and been accepted, merely because he says that he is over sixty years of age, and claimed his exemption from service on the jury on that ground, if it was not too late.
*888The next error committed, as I conceive by the court below, was the admission of what is known. in the record as the “Laura Curtis letter.” It is in these words:
“Richmond, Va., March 9th, 1885.
“ My Dear Lillie,—It is on business of sad importance I must write to you to-day, as you know mama, both mama and Aunt Mary have both been in wretched health for a long time, and both have been getting worse for some time, and the doctors say if Aunt Mary don’t leave here, and that soon, she cannot stand it long; so they advise papa to take her to Old Point, in order that she can take those sun-baths, which are proving so beneficial to consumptives. But she will not agree to go unless I go with her, which, of course, is out of the question, as mama is too ill for me to leave her, so we have been trying to persuade her to let some one else accompany her. So, at last, she agrees that if we can get you to come down and go with her, she will consent to go. Of course we told her you were teaching, but she begged we would try to get you to come and go with her just as company for her, as her nurse will go with her, who has been waiting on her all the time. She says the reason she wants you to be with her is on account of your being so quiet and gentle in your manners when you were visiting us, and she is so nervous she could not bear to have some one with her who was not gentle and kind. She told me to beg you please to grant her this request, as it was her last resort for momentary relief from her sufferings, as of course, we know she can never be well. My dear Lillie, imagine how it is with me, my dear mama and aunt both so sick. Mama is rapidly declining, I think, and aunt worse, I think; but if she can get to Old Point we hope she will get better. She will only stay there one week, as in that time the doctors think she will be better, if it will benefit her at all. *889Lillie, please come. Ask Mrs. Dickinson,, I say, please excuse you under these sad circumstances, just for a week, and she will do it, I know, as you wrote me she was so good and kind. Papa wishes me to say to you, if you will come and go with aunt, he will never forget your kindness, and, besides, he will pay all your expenses and $2 per day for every day you are with her. He is such a devoted brother to her he would do anything' in his power. Lillie, don’t get any dresses for the purpose, as you and myself wear the same clothes, and as we wanted, if possible, to attend the exposition, I have had made up a lot of new clothes for the purpose, but, of course, now we can’t go, but we were in hopes mama and aunt would get better, so we could go, but we have given it out now. Now, dear Lillie, we are in hopes to see you soon. If you will accompany aunt, come Thursday (12), either on the mail or express; we shall send to meet you; and please, dear Lillie, don’t disappoint us, for you know there is nothing I would not do for you. If aunt should get too ill to go, we will telegraph to you, so you will get it before time for you to start the 12th. If you will ask the lady you teach for to excuse you for just this short time, she will do it I know. All send much love; aunt is very nervous to-day.
“ Ever your loving schoolmate,
This letter is signed: “Laura M. Curtis.”
This letter is proven to be entirely in the handwriting of the deceased, and it is, admittedly, untrue in every line and sentence.
There is not one particle of evidence in the record to show that he ever saw or knew of it. And the proof, at the trial, establishes beyond a doubt that she did not go to Richmond for the purposes indicated in that letter. It was therefore, unless connected with the prisoner in some way—and the proscution’s efforts to supply such connection by presumption—nothing *890more nor less than a base forgery, conceived and executed .by the deceased, and palmed off upon Mrs. Dickinson, the lady with whom she was living, as an excuse for leaving her house.
It was admitted by the court, and allowed to be used by the prosecution as evidence to establish two things: first, a conspiracy between the accused and the deceased to deceive Mrs. Dickinson; and next, a deliberate purpose, on the part of the accused, to bring the deceased to Richmond, in ord&r that he might have an opportunity to murder her. That it prejudiced the accused, cannot be doubted. As the fifth bill of exceptions says, the court permitted “ the letter to be read as a part of the statement made by Miss Madison to the witness as explanation and preparation of leaving her home in Bath county for Richmond.” It was argued here that being the reason assigned by her for leaving Bath county, it was “the inducement to or the cause of coming” and so admissible as a part of the res gestee.
Now, the precise meaning of this language is not very clear. But that is immaterial, for it matters not in what aspect the argument for the State is viewed, it will be found to be unsustained by the authorities, even those cited for the State, as I shall now proceed to show. In vol. 1 Whart. Law ■ on Evid. sec. 258, that author says: “The res gestee may be therefore defined as those circumstances which are the wndesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of timé more or less appreciable. They may consist of speeches of any one concerned, whether participant or by-stander; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act, necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other *891words, they must stand in immediate causal relation to the act—a relation not’ broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself.”
In Hayden’s Case, 9 Reporter, p. 237, Park, C. J., in his charge to the jury, in substance said, that the declarations of the deceased that she was going to the place where she was subsequently found murdered, to take “quick medicine” to be given her by the accused in order to procure an abortion, made while in the act of going, are competent to characterize her act of going; and the declaration and the act thus united becomes a fact in the case. In this case the deceased, when found in the woods, had ninety grains of oxide of arsenic in her stomach and her throat cut; the jury, therefore, very properly concluded that the party, as the judge in his charge said, who administered it to her, must have met her by appointment, for he must not only have had the arsenic but a vessel of some kind in which it was prepared to be administered. This case is cited by Wharton in his book on Criminal Evidence in support of the doctrine, that evidence of the statements of the deceased, at the time of the attack or so soon afterwards, as to preclude the hypothesis'of concoction or premeditation, charging the defendant with the act, may be received. In Hadley v. Carter, 8 N. H. 40, which was a suit brought against a person for enticing away the servant of another, the court held that the declarations of the servant, made at the time of leaving, and showing he left of his own accord, were admissible as evidence. In the course of the opinion, Upham, J., said: “In this instance the servant at the time of preparation for leaving disclosed causes for such a design of a character strongly implicating himself and tending to negative entirely any suspicion of intentional misrepresentation of his ■true motive. He communicated this design in connection with the fact of asking advice, what course to pursue, and accompanied his declarations of the motive *892assigned with the act of leaving. The declaration, then, is so connected with the fact as to give character' to it, and the fact carries ■with it at the same time in the declaration evidence of the motive.”
In Hunter v. State, 11 Vroom, 495, the man, afterwards murdered, made statements to his son and wrote a note to his wife, a few hours before leaving home on the night of the murder, to the effect, that he was going to the city of Camden on business, and that the prisoner was going with him. In this case, the court held that such statements, both oral and written, were admissible as explanations and preparations of the act of going from home. In the course of the opinion Bersley, O. J., after saying that it was the usual information that a man about leaving home would communicate for the convenience of his family, the information of his friends or the regulation of his business, makes use of this language, which seems to have been omitted in the brief of the counsel for the Commonwealth : “At the time it was given such declarations could, in the nature of things, mean harm to no one; he who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that fox which they were obviously designed.” After quoting with approval Mr. Wharton’s definition of res gestee, he proceeds: “This definition obviously embraces the declarations now challenged, for they were immediate preparations for the act in question, and were certainly not produced by the calculated policy of the actor who gave utterance to them.” Again, at page 450, he says: “It is principally from the foregoing considerations that I find myself constrained to think that the declarations under discussion, even if they stood in the case unsupported or unaffected by other circumstances, were admissible, on general principles, on the single ground that they were the natural and inartificial concomitants of a *893probable act, which itself was a part of the res gestse. In such a status of the evidence I should think that the exception to the principle that rules out hearsay, had been carried to its extreme limit, but without transcending such limit.”
In this connection- it must be stated that both counsel and Judge Fauntleroy have entirely misapprehended the meaning of the word “preparation,” as used in their quotation from section 753 of Whart. Cr. Ev. The word is there with reference to preparation on the part of an accused for an attack, for example, as providing himself with a pistol, &c., as the cases cited in support of that statement in the note to the text will show. Now, these are the authorities relied on to sustain the admission of this letter, and yet it must be apparent to every dispassionate mind that they not only fail to justify its admission, but, by necessary implication, forbid it. Running through all of them may be seen the same general idea—that is, that such declarations constitute a part of the res gestx only "when they are the natural and undesigned incidents or concomitants of a particular act, the nature of which it is necessary to enquire into. This idea that the declaration must be truthful, and not fabricated, is illustrated with great force and clearness by several cases in this State. In Hill's Case, 2 Gratt. 594, the court, in discussing the admissibility of the declarations of the deceased, after citing the case of Rex v. Foster, and one from Skinner, said: “All that is necessary, according to these cases, to make the declaration part of the res gestx, is that it should be made recently after receiving the injury and before he had time to make up a story or devise anything for his own advantage. Tested by this rule, the statement referred to is clearly admissible.”
In Kirby v. Commonwealth, 77 Va. 689, Lewis, P., speaking for the court, said: “Here the declarations in question were not only made recently, but probably within two minutes after *894the shot was fired. And this, taken in connection with the declarant’s condition, mental and physical, produced by the unexpected, unprovoked and, as he supposed, fatal shot through the head, repels the idea that his declarations were fabricated. Indeed, under the circumstances disclosed by th§ record, it is hardly reasonable that they could have been fabricated, as both the time and capacity for reflection were wanting.”
In Wharton’s Cr. Evid., sec. 262, the author says: “Resgestee are events speaking for themselves through the instinctive words and acts of participants—not the words and acts of participants when narrating the events. What is done or said by participants under immediate spur of a transaction, becomes thus pai't of the transaction, because it is then the transaction that thus speaks.”
In Starkie on Evid., sec. 87, that author, speaking of declarations accompanying an act, says: “These, when the nature and quality of an act are in question, are either to be regarded as part of the act'itself, or as the best and most proximate evidence of the nature and quality of the act; their connection with the act either sanctions them as direct evidence, or constitutes them indirect evidence, from which the real motive of the actor may be duly estimated.” Hence it is that declarations, made by a trader at the time of his departure from his residence or place of business, are evidence of the intention with which he went. His real intention, in such a case, cannot be inferred otherwise than from external appearances—from his acts; and his declarations are collateral indications of the nature of his acts and his intention in doing them. Without further citation of authority, it seems to me to be beyond question that neither the statements of the deceased, nor the so-called Curtis letter were admissible in evidence, especially against the prisoner, whose lips were sealed.-- They do not furnish the real motive of her leaving Mrs. Dickinson’s, and cannot in any proper sense be *895said to characterize the act of going. This is not a case where the fact that the declaration was made, and not its truth or falsity, is the point in question; it is nothing more than a tissue of falsehoods, evidently concocted for the purpose of affording an excuse for her going to Richmond, and the prisoner should not have been prejudiced by its admission. To such a case every principle which excludes hearsay emphatically applies. The prisoner is not shown at any stage of the proceedings of the lower court to have been connected with it or even to have known of it. The suggestion made in the argument that it was written by her, sent to him, and by him remailed back again, seems to me to be nothing but the baldest conjecture. Looking at it in the light of the use that was made of it by counsel, after its admission as evidence, it is impossible to estimate how seriously the case of the accused was injured by it. Certainly its admission was such an error as entitles him to a reversal of this judgment. Payne's Case, 31 Gratt. 855; Smiths v. Shoemaker, 17 Wall. 639. This brings me to what I conceive to be the third and last error committed on the trial—namely, the refusal of the court to award the prisoner a new trial.
This is a case of purely circumstantial evidence, and in every such case it is admitted by all the text writers and all the cases, that all the facts and circumstances must be scanned with the closest scrutiny, and that if, upon the whole evidence, there be a reasonable doubt, either as to whether the deceased came to her death by criminal violence or as to who was the criminal agent, that such doubt must be resolved in his favor, and that he is entitled to an acquittal.
Now, with this simple statement of the law, and remembering that' the accused cannot be required to make any disproof of the charge made against him until the prosecution has established his guilt, beyond reasonable doubt, by proof both of the crime and criminal agent, I ask, is it proven, to the exclusion of every *896reasonable doubt, that the accused is a murderer? This, I repeat, is a case of circumstantial evidence, depending not upon the statement of any eye-witness of the occurrence, but depending upon mere inferences to be drawn from facts, few in number, and, to say the least, not closely connected. No one who has not read the record or seen the brief of the State, can begin to appreciate the controlling influence which the mere fact that the prisoner was the supposed seducer of this girl must have exerted over the jury upon the trial of this case. And the real difficulty in establishing that there is a fatal defect of proof as to the cause of the death of the deceased is attributable, not so much to any incriminatory evidence disclosed in the record (for it is certainly meagre and inconclusive) as to the fact that crim-' inal intimacy having been once established between the prisoner and the deceased, the natural impulse of those not conversant with criminal cases is to leap to the conclusion that the alleged seducer must, of necessity, be a murderer; and so, it seems to me to be apparent, that the fact that there is no necessary or inevitable connection between the alleged seduction and death of the deceased has been overlooked. It must be obvious to the humblest understanding that the proper function of this court is not to pass upon the question of the abstract guilt of persons charged with offences (for that can be seen alone by the eye of Omniscience), but to determine whether the legal guilt if such persons is established.
I have not the time to go into all the details of evidence in this case in order to develop the train of events which led to this poor girl’s death, and if I had, I would doubt the wisdom of doing so, as it could only result in casting, perhaps, undeserved suspicion upon the living, without furnishing conclusive evidences of the certainty of my conjectures. I shall therefore only say that I do not feel justified in saying, in the face of the testimony of the medical expert, that the medical facts are as con*897sistent with suicide as a death from violence exerted by another, that it is not established beyond a doubt that she came to her death by violence. It is perfectly evident to my mind that undue importance has been attached to the mere motive which the prisoner is supposed to have had to destroy the deceased; indeed, it seem to have been made the hinge upon which this case was made largely to turn in both courts, while no consideration seems to have been given to the powerful inducement this unfortunate girl had to destroy herself or to her declarations that she was anxious to die. To my mind the- motive she had to destroy herself was at least equal to any that the prisoner could have had to make way with her. But suppose that it .be conceded that the death of the deceased was caused by another, still the evidence does not even then establish beyond a doubt that the murderer was the accused. None of the tracks at the reservoir are shown to have been made by the prisoner. The only witnesses who testify with much distinctness to the character of the tracks left by the male person supposed to have been present at the time of her dt.ath, testify, in substance, that the tracks were those of a person wearing a coarse “broad-bottom shoe” or “brogan,” and the prisoner, although his whereabouts during the whole of the 13th of March are well known, is not shown to have worn such a shoe. If such had been the case, it seems to me, that it would have been easy for the detective, who is shown to have been so industrious in this case, to have hunted out the evidence of that fact. The main and, indeed, the only circumstance which tends to show that the accused was with the-deceased at the time of her death is the finding (if indeed it was ever lost) of the key, and this certainly is not inconsistent with the hypothesis of innocence.
Assuming, what is not positively proven, that it was his key, *898it may have been dropped there by the deceased to whom he may have loaned it, or, it may be, that it was the key which one of the witnesses thinks he saw on her bureau. It is not shown to have been left by any one in flight, for nobody testifies that such tracks, as must inevitably have been left by a person flying, have been found. If I go to the fullest extent which the evidence tends positively to establish, and admit that the man seen with the woman by Dr. Stratton on Reservoir street, on the night of the 13th of March, was the accused, he may yet have left her before she reached the reservoir. The shawl on Dunstan’s fence, in my opinion, was never left there by a person who had already perpetrated the crime of murder. To my mind it seems improbable that the perpetrator of such a crime would have been carrying around with him and distributing thus the evidence of his guilt. It is certainly far more reasonable to suppose that these articles; which seem to have been dropped at different places, were left by a woman crazed by trouble and anxious to seek, what she foolishly regarded as relief, in death. It is highly probable that this poor girl came to Richmond, after having first communicated her purpose to the accused, to make arrangements for getting rid of the child, with which she was pregnant, or to make arrangements for lying-in; and being foiled in her efforts, sought relief in the waters of the reservoir. Indeed, if we must indulge in conjecthre, the mere appearances of a scuffle may have' been partly made by one attempting to withhold the deceased from drowning herself as well as by one endeavoring to throw her into the reservoir. In any aspect in which we may contemplate the few ascertained facts in this case, they are certainly not absolutely inconsistent with the innocence of the accused of the crime of murder. I am therefore constrained to declare that I think the prisoner is clearly entitled to a new trial on each of three grounds, which I have indicated. If time *899served I could point to many cases in which this and other courts have taken a like view of cases where the evidence was stronger than it is here; as it is, however, I can only point to Grayson’s Case, 6 Gratt. and Smith’s Case, in 21 Gratt. and to remarks of Moncure, P., in Johnson’s Case, 29 Gratt., in commenting on Smith’s Case.
Judgment affirmed.