(dissenting) :
When tbis case was called for trial, tbe prisoner being unable to employ counsel, tbe court assigned two members of tbe bar to conduct bis defense, and during tbe trial evidence in rebuttal introduced on behalf of tbe prosecution, in part given by a prisoner taken from tbe jail where she was held on tbe charge of tbe murder of her paramour, wholly irrelevant and of tbe most damaging character to tbe prisoner, was admitted; but to tbe rulings of tbe court during tbe trial, still more unfortunately for tbe prisoner, only one bill of exception was duly taken and made a part of tbe record, and that is to tbe action of tbe court overruling tbe prisoner’s motion to set aside tbe verdict of tbe jury because it was contrary to tbe law and tbe evidence, and bis motion in arrest of judgment. No ground was assigned for tbe motion in arrest of judgment, and tbe record presents no legal objections upon wbicb tbe motion could have been sustained.
In support of the contention that the court below erred in denying tbe prisoner a new trial, because the verdict is contrary to the law and the evidence, two grounds are relied upon, viz: (1) That the corpus delicti was not established; and (2) that the evidence was not sufficient to warrant the jury in finding that the prisoner was tbe perpetrator of tbe alleged crime.
The evidence and not the facts having been certified in the *863record, the rule of decision in this court in considering the evidence must he as on a demurrer to the evidence, and that rule has been so repeatedly stated in the decided cases as to render it needless to restate it here. Conceding that by this rule the judgment of the Circuit Court, in so far as it refused to set aside the verdict on the ground that the evidence was insufficient to establish the corpus delicti, must be sustained, although the concession cannot be made without misgivings as to the correctness of that finding, since the evidence for the prosecution, in my view of it, discloses facts and circumstances which are sufficient to create grave doubt in the mind of anyone freed from the bias and prejudice, which is unhappily and too often a controlling influence upon juries when dealing with the heinous and shocking crime of which the prisoner is accused, has he been identified as the perpetrator of the crime, “with that degree of certainty which the law in its wisdom has ordained” ? In considering this question it will be necessary to examine the facts and circumstances appearing in the evidence, in the light of which the statements of the two witnesses for the prosecution, as to the prisoner being the perpetrator of the crime, are to be considered.
It appears that on the 9th of September, 1906, about 8 o’clock P. M., Mabel Risley and her escort, Porest Gooding, having come over from Washington city in the afternoon, were together in a secluded and unfrequented wooded place, about 200 yards outside the grounds of Luna Park, a public resort between Washington, D. C., and Alexandria, Va., to which secluded place, according to statements made by witnesses for the Commonwealth, Gooding said he had carried Miss Eisley that she might respond to a call of nature; that Gooding left the place named and approached the guard at the park gate walking, and told the guard that somebody had taken his girl away from him, whereupon the guard went with Gooding, and when they approached Miss Eisley she called out, “Where is my intended ?” (meaning Gooding) ; and they (Miss Eisley and Gooding) then stated to the guard that they had been attacked *864by a colored man who had a pistol in one hand and a stick in the other, who struck Gooding on the back of the head and upon the shoulders. The girl said she had been assaulted, but went with Gooding to the Emergency Hospital in Washington, at once, where his wound, a cut about one inch long behind the left ear, was dressed, there being no other wounds or bruises on his body or face, and he and she left the hospital without any intimation to anybody there that a rape had been committed upon her, or that she was injured at all, except a bruise on her throat, upon which the doctor put some iodine. Ho physician was ever called to examine her, nor was any evidence offered that she had been examined; nor was there any evidence that she had been criminally assaulted, except her own statement, unsupported, unless it be by the statement of her sister with whom she was staying in Washington at the time, to the effect that she that night told witness and her husband of the assault and thereafter complained of “swelling in her private parts,” and there was some bruises on her legs. Gooding told none of the people whom he saw that night that Miss Sisley had been criminally assaulted, only said that “his girl had been taken from him,” and on the witness stand he stated that he told Miss Sisley not to tell her sister what had occurred, because her sister was sick in bed and it might throw her back; and that he had since the assault married Miss Sisley. Miss Sisley’s statement is that she did not tell of the assault at- once, as she wished to tell it first to her family doctor in Maryland.
Coming, however, more directly the evidence relied on as identifying the prisoner as the guilty party it is to be borne in mind that the prisoner was an entire stranger to both Mabel Sisley and her escort, Gooding, neither having ever seen him prior to the night that this alleged crime was committed, and that the only impressions they could then have gotten of his features or general appearance were gotten in the darkness of only a starlight night, nearly two hours after sunset, and when they had but a short while before come out from under *865the influence of the electric lights in Luna Park, where they had been attending amusements and sight-seeing, from sometime before the lights in the park were turned on till they left the park and went to a spring in the woods, beyond which the alleged assault upon her was committed. It is true that both Miss Eisley and Gooding described the general appearance of the negro, who it was charged had committed the crime, to Deputy Sheriff Fields' shortly after the occurrence, and Miss Eisley then said that “she could identify the negro anywhere, and that she could recognize his voice anywhere”; but Gooding says that when he first saw the negro crouching in the grass but a short distance from him he took the object to be a cow. The guard who accompanied Gooding to the secluded spot where Gooding had left Miss Eisley, makes the statement that ten minutes after he reached her he saw a black object running away, and another witness who went to where Miss Eisley was says it was dark and that he could not tell the kind of dress she had on. About a week after this alleged occurrence the prisoner was arrested and committed to jail in Washington city on the charge of having failed to pay over a few dollars of collections as his employer’s teamster, and on September 22, 1906, Miss Eisley, at the request of Policeman Wood, of Washington city, aceompanied Wood" to the city jail for the purpose of identifying, if she could, the prisoner as the person who had assaulted her. When they, accompanied by Gooding, reached the jail about 8 o’clock at night, six or eight prisoners were brought down for Miss Eisley to look at. They were arranged in a line and all were negroes except one, the white man standing in the rear of the line, and upon Wood and Miss Eisley going inside the enclosure of the jail where the prisoners were, a guard at each end of the line held up a lantern, and there was a light on the wall in front of and above the heads of the prisoners, but it was a dim light. Wood, testifying for the prosecution at the trial of the prisoner, after stating the facts just narrated as to Miss Eisley accompanying him to *866the jail, etc., says, that after Miss Eisley looked the prisoners over for several minutes, witness then said to her, “Are you satisfied?” and she said, “Yes”; whereupon witness said to her, “Step outside of the enclosure”; that Miss Eisley did not point at any of the prisoners nor did she speak to any prisoner or any guard, or say anything while inside the enclosure; that aftet going outside of the enclosure witness asked Miss Eisley if she saw among the prisoners the man who assaulted her, and she said, “Yes, the second man on the right is the man”; that witness said, referring to a negro named “Alabama Joe,” “Are you sure it was not the second man on the left?” to which she replied, “Ho, the second man on the left looks like him, but he is not the man”; that the second man on the right was the prisoner at the bar. This witness further states that as the prisoners were going back to their cells he told Miss Eisley he would have Wright (the prisoner at the bar) brought down, and he wonld talk to Wright in her presence, so she might hear his voice; that Wright was called back and witness in the presence of Miss Eisley talked to Wright, and she said she was sure he was the man; that she recognized him and knew his voice. On cross-examination the witness stated that he did not know that a reward had been offered for the arrest and conviction of the perpetrator of this alleged crime when he arrested the prisoner September 16, 1906, nor at the time when Miss Eisley identified the prisoner at the jail. As to what occurred at the jail in Washington the witness Wood is substantially corroborated by the evidence of both Miss Eisley and Gooding; and both the last two named stated at the trial that the prisoner was the man who committed the assault upon Miss Eisley. On the other hand, four of the officers, or guards, at the jail in Washington city testify that when the prisoner and six others were lined up before Miss Eisley, as stated by the witness Wood, she, after full and careful inspection, picked out another and different man, viz: Henry Johnson, alias “Alabama Joe,” who had been in jail for more than nine months. These four *867witnesses, without the semblance of interest or concern in the result of the trial, so far as can be gathered from the record, agree as to the failure of Miss Risley to identify the prisoner as her assailant, and avow that she at first selected and designated “Alabama Joe” as the man, and did not agree that'the prisoner was the man till after her conversation with Woods and the prisoner brought out to he questioned in her presence. It nowhere appears in the evidence that the prisoner was ever seen in or around Luna Park the evening of this alleged crime, and in this connection the following facts appearing in the record are worthy of serious consideration: First: All the witnesses agree that the assault upon Miss Risley occurred not earlier than 8 o’clock P. M., and, as we shall presently see, was after 8 :15 o’clock P. M.; second, the guard at Luna Park, who first met Gooding walking in search of help in rescuing Miss Risley from the situation and surroundings in which he had left her, testifies that ten minutes after he readied her he saw a black object running away; third, Captain Turner, colored, who had been arrested and kept in jail about a week on suspicion of having" assaulted Miss Risley, introduced as a witness for the prosecution, testified that he worked in the brick yard north of Luna Park, and had to pass Luna P ark on his way home in the evening after his work was over; that on September 9, 1906, and for some time prior thereto, after his work was over at the brickyard, he had a habit of stopping at the northeast corner of Luna Park and holding horses for people who drov'e to the park; that on Labor Day, September 3, 1906, he saw the prisoner on foot walking around where witness was holding horses, which was about 100 yards from the spring where Miss Mabel Risley claims she was assaulted, and that he saw prisoner once after that lying on the grass about 100 yards from the spring; that he recognized the prisoner by his features, and also by his patent leather shoes; that on the night of September 9 he met Mr. Gooding running from the direction of the spring; that Mr. Gooding said he had *868been struck by a man, and that the man had a gun; and Mr. Gooding wanted the witness to go down there, and witness replied that he did not want to go down there if the man had á gun.
Gooding lived in Washington on September 9, 1906, and for a short while prior. He testifies that he was never at Luna Parle but once before and then with some boys, and makes no mention of having met on the night of the assault the negro-Turner. On the contrary, his statement is that he, upon leaving Miss Risley, met first the guard at -(he park gate, who accompanied him back to where he had left her. Hor does Turner claim to have had any sort of an acquaintance with either Gooding or the prisoner. I am not, however, discussing the evidence of Turner with reference to its credibility, but to call attention to the circumstance of his acknowledged presence in the woods outside of Luna Park on the 9th of September, as accounting for the statement of witness Dye that he saw ten minutes after he got to Miss Eisley, a black object running away, and as a circumstance, when considered in connection with all others appearing in the record, of no little importance-to be considered in determining the question, whether or not' the proof of the identity of the prisoner is sufficient to justify the verdict of the jury and the sentence of the court that he be-hanged. Fourth. As remarked, all the witnesses agree that the alleged crime was committed not earlier than 8 o’clock p. m., and from their varied statements it was of necessity after that hour. The witness Dye states “it was after 8 o’clock,” though he could not say the exact time. Price says “about fifteen minutes after 8 o’clock, or it might have been 8 o’clock.” Field says that he went with the other officers (Dye and Price) to-where Miss Eisley was, and that he knew it was between 8:15 and 8:30 as he had taken notice of the time. According to the evidence, therefore, the black object running away was the guilty party, and this fact testified to by Dye could not have-occurred earlier than 8 :30 p. m.
*869In the afternoon, about 2 or 3 o’clock of the day of this alleged assault, the prisoner had, on an order from Thomas Nugent, his employer, hired a horse and a runabout in Alexandria city, and taken his paramour and also another colored girl out for a ride; and Nugent, a witness for the prosecution, testifies that the prisoner, about 8:30 or 9 o’clock p. m., drove up to his house with the horse and runabout; that the horse was “wringing wet with sweat and fagged out”; that a conversation between them followed, in which he told the prisoner that if he killed the horse witness would have to pay for it; that he told the prisoner not to take the horse back to the stable until the horse got dry; that he knew it was between 8:30 and 9 o’clock when prisoner drove to his house that night, because the clock was striking nine when witness went back into the house; and that he could drive from Luna Park to his house in Alexandria in twenty or twenty-five minutes. This statement fixes definitely the time at which the prisoner was at the house of Nugent, and allowing sufficient time for the calling out of Nugent from his house and for the conversation there had, which was in no way hurried, as it would seem, ending in time for Nugent to get back into his house as the clock was striking nine, it seems to me to be an utter impossibility that the prisoner could have been at the place of the alleged assault on Miss Pisley ten minutes after the witness Dye reached her, leaving wholly out of view the great improbability that one who had committed so shocking and brutal a crime would have left the place of its perpetration and driven with such speed along the public highways and the streets of a city as to put his horse in a “wringing sweat,” and a “fagged out” state, to the house of his employer and there call hkn out for a conversation on any subject. Yet to justify the affirmance of the conviction of the prisoner upon this record, it must be accepted as true that this is just what happened.
The locality of the crime is fixed in the woods outside of Luna Park and northeast therefrom the farthest point of the *870park from Alexandria city, and, according to the evidence just adverted to, the prisoner left the scene of the crime, went to-where he had left his horse and runabout, then drove at a high rate of speed along the public highways of Alexandria county to-the city of Alexandria, thence along the streets of the city to-the house of his employer, Nugent, and all this accomplished within the space of about twenty minutes time. For what reason the prisoner pursued such a course, unprecedented under the surrounding circumstances, is not suggested in the evidence.
I fully appreciate that it is a settled rule that the jury are the judges as to the credibility of witnesses and of the weight to be given their testimony, and that the rules governing the granting of new trials on the ground that the verdict of the jury is contrary to the law and the evidence, stated in Grayson’s Case, 6 Gratt. 712, and reaffirmed in a number of later cases, are firmly established; but this court has reiterated, that while the rule requiring that the case must, in an appellate tribunal, be considered as upon a demurrer to evidence, may and often does require the court to accept as true that which is capable of proof, though the preponderance of evidence be ever so great against it, cannot compel us to accept as true what in the nature of things could not have occurred in the manner and under the circumstances narrated; and this court has again and again awarded a new trial where it could be seen from the whole record that either injustice has been done, or that the evidence was plainly insufficient to sustain the finding of the jury as to the main issue, or as to some fact necessary to be established by clear and satisfactory proof, to warrant the conviction of one accused of a crime. McBryde’s Case, 95 Va. 818, 30 S. E. 454; Hairston’s Case, 97 Va. 755, 32 S. E. 797; Brown’s Case, 97 Va. 787, 34 S. E. 882; Bundick’s Case, 97 ,Va. 783, 34 S. E. 454; Goldman’s Case, 100 Va. 865, 42 S. E. 923; Harvey’s Case, 103 Va. 850, 49 S. E. 481; Johnson’s Case, 104 Va. 881, 52 S. E. 625.
*871Horrible beyond expression is the crime of which the judgment of the Circuit Court convicts the prisoner, but it would be still more baleful to endeavor to expiate it by taking the life of an innocent man, however humble and degraded in life he may be. Johnson's Case, supra.
In Goldman's Case, supra, the accused was convicted of buying and receiving railroad brasses, with intent to defraud, and the "pinion says: “It devolves upon the Commonwealth to prove, hr.it, the corpus delicti, that is, the fact that the crime charged has been actually perpetrated; and, secondly, that it was committed by the accused. To justify a conviction the evidence must be so convincing as to exclude every reasonable doubt of the guilt of the prisoner.” Again, “an adherence to the basic principles upon which the criminal jurisprudence of this Commonwealth has ever rested is far too important to justify a. departure from them in order to meet the exigencies of particular cases; and the hurtfulness to society of the class of offenses within the purview of the statute, affords no justification for the courts sustaining convictions in doubtful cases by way of prevention.”
If the well settled principles, so forcefully expressed in the language just quoted, constrained the court in that case to award the accused another trial, surely they appeal with much greater force for application in the consideration of the evidence in a case where human life is involved. Human life is involved in this case and the whole record, when carefully read, as it appears to me, does not afford proof of the identity of the prisoner as the perpetrator of the crime, for which his life is to be taken as a penalty, with that “degree of certainty which the law in its wisdom has ordained.”
Viewing the evidence from the standpoint of a demurrer to the evidence, the proof, in my opinion, is not only wanting to sustain the verdict of the jury, but, as was said in the opinion of this court in Harvey's Case, supra, constrains the belief that *872the natural horror of this particular crime diverted the attention of the jury from a proper consideration of the evidence.
For these reasons I have to dissent from the view of'the case taken by the court.