(dissenting.) Firmly convinced, as I am, from the record, that the defendant is guilty, I respectfully dissent from the reversing opinion of the majority.
No one can read this record and not be convinced beyond all doubt that this defendant took the life of Miss Thorsdale. I understand all to so concede. Against all the array of witnesses and testimony against the defendant, there is no word of evidence to the contrary, except that of the defendant himself, interested, impeached, and discredited as it is, not only by contradictory statements, but by his past life. As said in State v. Wegener, 180 Iowa 102, 127:
“Surely, therefore, in the light of our previous cases, we ought not to ignore the state of the record before us, with its overwhelming evidence of guilt. * * * If I am right in. saying that upon this record an acquittal or disagreement of the jury would have been a clear miscarriage of justice, will a reversal by us upon this ground be anything otherwise?”
Quoting again, from the opinion of one of the judges of the Supreme Court of the United States:
“The matter is one of gravity. The delays incident to enforcement of our criminal laws have become a national scandal, and give serious alarm to those who observe.”
Wrongly to reverse this case upon unsubstantial grounds may produce unfortunate consequences. It was one of the most brutal murders that could be imagined, and one of the most brutal ever committed in this state. I concede, of course, that, even so, the defendant is entitled to a fair trial. That is so in every case. That does not necessarily mean a perfect trial. There are few such. On the other hand, under this record, there ought not to be a reversal for a trivial or trifling error. In my *812opinion, the evidence upon which the case is reversed was admissible. The evidence abundantly shows a conspiracy between this defendant, on the one hand, and the sheriff and his office force on the other, to falsely accuse Davenport as the perpetrator of the crime, for the purpose of casting suspicion on some other person, and to shield the accused. For defendant to so falsely accuse is, of itself, always evidence of guilt. I think it ivas an afterthought on the part of defendant to charge Davenport with the offense. It was some little time after the murder was committed that it occurred to him to so claim. From that time on, defendant and the sheriff and others of his office force were in collusion, acting together, for the sole purpose, so far as this defendant was concerned, of shielding himself and diverting suspicion to some other person. I shall not refer to the circumstances tending to show a conspiracy to that end, in which the defendant participated, and of which he was, indeed, the instigator. It is set out in the majority opinion. It is enough to refer to the secret trap laid by defendant and the sheriff, and the furnishing of whisky' in the jail transaction. It is stated very positively in the majority opinion that this defendant knew nothing of the purpose of the sheriff to take Davenport out to the scene of the murder for the purpose of extorting a confession. To my mind there is a strong inference, from what had gone before, that the defendant did know, and that it was in furtherance of the prior plan. It is said by the majority that there was as much of a conspiracy against Davenport as against Williams, because afterwards Williams was taken out to the scene. But there is nothing in the record to show that the sheriff and Davenport were at any time acting together for the purpose of fastening guilt upon Williams. If the sheriff and the others had secured, as they expected, a confession from Davenport, there would have been no occasion to thereafter take Williams out. It may be that the sheriff “double-crossed” them both, and, having failed to secure a confession from Davenport, thereafter conceived the idea of adopting similar methods as to Williams. The evidence that such methods were used on Williams was not admissible, because there was no claim that any confessions or admissions were secured from Williams by these means. The State was greatly handicapped by the con-*813duet of the sheriff, aud was forced, by the attitude of the defendant, acting with the sheriff, to appear to be defending Davenport. The whole matter was opened and the bars let down by this defendant. It often happens that the defendant places on trial somebody else, who is not under indictment. The State had the right to show that this defendant, then on trial, was guilty. It is said that the prayer of a righteous man availeth much. Whether Davenport is a righteous man we do not know. In any event, his so-called prayer avails the defendant on.this appeal. Davenport, as a witness, after the outrageous midnight proceedings, under the solemnity of an oath, said precisely the same thing,- — that is, the same ultimate fact, — as he did in the so-called prayer: to wit, that he was not guilty. True, he did not say it in the same words; but his statements when, as he supposed, he was about to be lynched, were mere emphasis. We often hear witnesses on the stand-do the same thing, by stating, by way of emphasis, that they hope God will strike them dead if they are not telling the truth, or by calling God to witness that what they say is the truth. That is what a witness does when he takes the oath. Would any court reverse a case because a witness on the stand so emphasized his testimony ? Clearly not.
I think that, for the reasons given, and for those stated by Mr. Justice De Graff in his dissent, the evidence was admissible. But even if it were not proper, it was clearly without prejudice, because, among other reasons, Davenport testified to the same thing, as a witness on the stand, and the evidence clearly shows defendant guilty, and no other verdict could properly have been reached.
The rules of evidence are the same in criminal as in civil cases. Code Section 5483. As said in the majority opinion, we will not presume prejudice. The record must not only show error, but also that the complaining party was prejudiced thereby. McKenna v. Hoy, 76 Iowa 322; Fulmer v. Fulmer, 22 Iowa 230; 4 Corpus Juris 912.
Appellate courts have inherent power to decide that an error was harmless, and to refuse to disturb a judgment because of it, when they believe that a proper judgment has been rendered; and where the unsuccessful party is not entitled to sue*814ceed in any event, he cannot complain of error. committed at the trial. First Nat. Bank v. Fulton, 156 Iowa 734; Wetmore v. Mellinger, 64 Iowa 741; 4 Corpus Juris 909.
A judgment will not be reversed because of the erroneous admission of evidence, where it did not affect the result, or could not have done so, or where the legal evidence abundantly established the case,- or where it is apparent that the verdict would or must have been the same, had the evidence not been admitted. Garrow v. Toxey, 188 Ala. 572; Jefferson C. O. & F. Co. v. Pridgen, (Tex. Civ. App.) 172 S. W. 739; Whinnery v. Cundiff, (Iowa) 150 N. W. 659 (not officially reported); In re Will of Wiltsey, 122 Iowa 423; 4 Corpus Juris 970, 971.
The admission of improper evidence is without prejudice where not only the fact in question, but the whole of the prevailing party’s case, is amply sustained by competent evidence. Armour & Co. v. Skene, 153 Fed. 241 (82 C. C. A. 365); Baker v. Montgomery, 78 Neb. 98; 4 Corpus Juris 977. Otherwise where it is likely that the jury gave some weight to the erroneously admitted evidence, because the remaining evidence was in sharp conflict, or because the other witnesses were discredited or impeached. Larson v. Lammers, 81 Minn. 239; Brown v. Warner, 116 Wis. 358; In re Blair, 99 App. Div. 81 (91 N. Y. Supp. 378); 4 Corpus Juris 977.
Error in the admission of evidence is nonprejudicial where the complaining party himself adduces evidence to the same effect, or of the same kind. Miller v. Wagner, 160 Iowa 445; Weatherbee v. Byam, 160 Mich. 600; Herrick v. Holland, 83 Vt. 502; 4 Corpus Juris 972, 977.
The admission of evidence of statements by Davenport at the scene of the crime is harmless where, as here, there was competent evidence to the same effect, Davenport having testified, as a witness, to the same thing. Gulf, T. & W. R. Co. v. Dickey, (Tex. Civ. App.) 171 S. W. 1097; State v. Mitchell, 195 Iowa —.
Perhaps I should point out again that the evidence complained of herein was in rebuttal. Davenport’s evidence to the effect that he was not guilty had gone in before.
It is clear that no prejudice attaches to the erroneous admission of evidence where the fact involved has already been established by competent evidence, and the evidence erroneously *815received is merely cumulative, or subsidiary and corroborative. Holmes v. Rivers, 145 Iowa 702; Bratteho v. Tjernagel, 91 Iowa 283; Payne v. Waterloo, C. F. & N. R. Co., 153 Iowa 445; 4 Corpus Juris 977, 978; State v. Mitchell, supra.
All the circumstances referred to in the foregoing cases appear in the instant case. We do not understand appellant to claim that the State, in the lower court, in argument or otherwise, claimed anything for the statement of Davenport when the sheriff had the rope around Davenport’s neck. Davenport at that time made no statement of any fact against this defendant, unless it be, as stated by the majority, it was so indirectly. But Davenport was defending himself against proceedings which, as I think, were instigated and approved by this defendant, and for his own benefit and advantage. The trial court was in the thick of it, and saw and heard everything that transpired. In overruling the motion for new trial, he was of opinion that there was no prejudice from the matter now complained of, or from anything else that occurred during the trial. We have often said that we ought not to interfere with the discretion of the trial court in refusing a new trial under such circumstances. State v. Waterhury, 133 Iowa 135; State v. Norman, 135 Iowa 483.
Finally, it is inconceivable to me that a jury should, in a case involving the life of a human being, so far forget the obligation of their oaths, where the evidence is overwhelming, as to give any consideration to this evidence, whicli, so far as appears, was a mere incident in the trial. I would affirm.