The evidence contained in this record has been examined with the utmost care, and more so, perhaps, because of the fact that on two separate trials the accused was found guilty. What evidence was given on the first trial does not, of course, appear in the present record, as the ver'dict was set aside by the trial court. It must be borne in mind, the evidence which it is insisted establishes the all important fact in the case that the deceased came to his death by reason of wounds and injuries inflicted by defendant, is all circumstantial. It is not deemed necessary now to enter upon any analysis of what is insisted upon as the criminating evidence. It is sufficient to say it is not of a satisfactory character, and a majority of the court are of opinion it did not warrant the present conviction.
Recognizing to the fullest extent the rule of law that the jury, in their deliberations, are the judges of the facts and the weight of the evidence in all criminal eases, yet the law has imposed upon the court the solemn and responsible duty to see to it that no injustice is done by hasty action, passion or prejudice, or from any other cause, on the part of the jury. This duty the court may not omit in any case. In view of the character of the evidence, both as to the guilt of the accused and his mental condition at the time of the alleged killing, a majority of the court are of opinion the present judgment ought to be reversed, and the case submitted to another jury, that it may be fully and carefully tried by them, under the direction of the circuit court. To this end the circuit court should have granted a new trial and submitted the cause to another jury, and for the omission so to do, the judgment will be reversed and the cause remanded.
Judgment reversed.
Mr. Justice Walker, dissenting.