(dissenting) :
In addition to the views presented by Judge Cardwell in his dissen ling opinion in this case, I wish to observe that I am in accord with the principle which forbids that a trial court, and a fortiori that this court, shall invade the province of the jury as triers of fact by granting a new trial in a case in whim the evidence, although conflicting, fairly establishes the guilt of the accused, because of mere difference of opinion of the court and jury on the weight of evidence. I likewise acknowledge the binding effect of the rule of practice which requires that errors in admitting or excluding evidence must ordinarily be made the ground of exception to be availed of on writ of error. Nevertheless, experience teaches that cases occasionally arise in which the proceedings in the trial court are so far out of the usual course as to render the ordinary rules of procedure in the appellate court inadequate to meet the exigencies of the particular case. When confronted with such conditions, my opinion is that it is within the competency of this court to deal with the situation in such manner as may be necessary to prevent a failure of justice. The due administration of the law would not be promoted by a too strict adherence to customary rules of procedure in such case, but the tendency would rather be to unduly hinder the court of last resort in the state in the discharge of important functions, and reduce it to the level of a mere moderator, to receive and record the will of the jury, even though the court may be satisfied that the verdict w^as founded, in part at least, upon evidence wholly inadmissible and irrelevant to the issue which the jury were sworn to try.
I am, therefore, of opinion that where this court is convinced *873by an inspection of the record that the irregularity in the trial of the case in the vital matter of admitting evidence renders it morally certain that in their finding the jury was materially influenced by incompetent evidence, although admitted without objection (a condition which indisputably prevailed in this instance), it ought, in the due exercise of its supervisory powers, -to set aside the verdict and remand the case for a new trial. Especially is this true in a capital case, where the greatest liberality is allowed in granting new trials.
I am constrained by the foregoing considerations and the -cogent reasons advanced by Judge Cardwell to withhold assent from the opinion of the majority of the court.