(concurring). The question asked the witness Frazer, the ruling upon which is claimed to have been erroneous, was the following: “ State whether or not you saw the defendant leaving Medford for Ashland, *193on his way from visiting his brother at Jump-off-Jo, about the first of October, 1884; if so, state whether he had in his possession a double-barreled shot-gun, or not.” The question was objected to, and the objection was sustained. This court is of the opinion that the Circuit Court could very properly have allowed the witness to have answered the question, as the state has shown the defendant to have had the gun he obtained of his brother at two or three intermediate points between Jump-off-Jo and Medford; that it might be a circumstance tending to show that the defendant did not take the gun on to Ashland on the occasion referred to; but it is not considered that the ruling referred to was a material error. That the defendant procured the gun from his brother, in connection with the proof tending to show that it was the same gun found near the place of the homicide, was a very important circumstance in the case. But that he was seen to have had it at Rock Point, Gold Hill station, and Blackwell, was comparatively unimportant. That he had the gun when it was last seen in the possession of any one, was the fact that made that circumstance important. The defendant had an undoubted right to show that he disposed of the gun at Medford, or elsewhere, but the question had no tendency to show that. The witness, in his answer to the question, would have had no right to state anything except what he saw; and could, if he had been permitted, only have stated that he did not see the defendant have the gun in his possession at Medford. That would not have proved a disposal of it, nor have been a necessary preliminary inquiry to the making of s,uch proof. I am inclined to believe that a responsive answer to the question, of the most favorable character, would have been quite as damaging as beneficial to the defendant. If the witness had answered that he did not see the defendant *194have any gun in his possession while at Medford, it still might have been inferred, if it were the same gun before referred to, that he had secreted it during his stay at that place. I cannot see that the ruling upon the objection to the question, conceding it to have been erroneous, could have injured the defendant in the least. It did not controvert the evidence that he borrowed the gun, and of his having had it at the other places. The most that could have been claimed from the evidence, if the witness had answered as suggested, would be that the defendant did not openly carry the gun to Ashland, if he carried it at all. Assuming that the gun found near the spot of the homicide was the same one that the defendant obtained from his brother made a strong circumstance against him, unless he proved that he had, prior to that time, disposed of it to some other party, and I am unable to discover how the proof offered'could have weakened it in any degree.
The conclusion of the court that the error was harmless is formed, not from any other evidence in the case, but from the absolute weakness of the proposed evidence, viewed in the light of the general facts and circumstances disclosed by the record. This court is not unmindful of the fact that the defendant was on trial for his life, nor. unconscious of its duty to resolve, in so important a matter, every doubt upon the law in his favor. I am quite certain that if the court thought or believed that the evidence offered would, if it had been received, have tended,in the least degree, to have established the defendant’s-innocence, or to refute the proof .of his guilt, a new trial would be ordered. But the law under which the court is authorized to review adjudications in criminal proceedings provides expressly that it must give judgment, without regard to the decision of questions which were in the discretion of the court below, or to technical errors, de-*195fects, or exceptions, which do not affect the substantial rights of the parties. (Crim. Code, sec. 246.) The present case, however, affords a proper occasion to express our emphatic disapprovol of the application, in criminal cases, of a hard and fast rule in determining upon the admission of evidence which it is claimed will tend to the exculpation of the accused, and to discourage, as far as we may, illiberality in the admission of testimony, especially in cases of so grave a character as the one under consideration. No testimony having any bearing upon the issues involved in the charge or raised at the trial should be excluded. The person accused of an offense, however guilt/ in fact he may be, is entitled to a fair and impartial trial, and it is the judge in his private character, and not the law, which condemns, when its forms and rules have been disregarded. But this court has only the right and power to correct those errors which affect the substantial rights of the party, and it is because the error complained of herein is not, in the opinion of a majority of the court, of that character that the judgment of the court below must stand.