delivered the following opinion favoring an affirmance of the judgment appealed from.
Beyond what immediately follows I do not desire to be understood as saying anything touching the rules of law applicable to the laying of the predicate for the admission of a dying *600declaration. There is certainly one thing of which the court should be satisfied beyond a reasonable doubt, which does enter into the general predicate necessary to be established before such declaration is competent, that the party had a sure and fixed belief that he was then about to die. It is true that no declaration by such declarant is competent as testimony unless it would be so competent were he living and testifying to the declaration; and that such declaration is only competent, as to its extent, so far as it relates to the act of killing and the res gestee of such act. But these last two features seem to me not so much elements of the general predicate, as going to the competency of the different parts of the declaration. For example, the court would exclude all which the declarant would not be competent to testify to if living and testifying, and it will limit his declaration to the killing and the res gestee of the killing; but these features do not go to the source of the testimony— the reason for its admission (which is, that the consciousness of •impending death is a substitute for an oath, the public necessity relieving from the need of cross-examination) — but rather to the general competency of the different parts of the declaration, the court to determine such competency as it would determine the competency of any other testimony not in the dying declaration.
Whether my view as to these two features is correct or not, I am sure that the question of the competency of a part of a dying declaration, turning on its being an opinion or a statement of a fact, forms no part of the preliminary inquiry of the court as to the existence of the predicate making the declaration competent. The reasons which make the dying declaration competent are reasons which go alone to the source of the testimony, its character and nature, as the deliverance of a party soon to die, conscious that he must die, speaking under the solemnity of this consciousness — the substitute for the oath— and, from his situation, not able to be subjected to cross-examination. Whether part of the dying declaration is opinion or *601the statement of a fact goes to its general competency as testimony, without regard to its source, and is admitted or excluded on precisely the same grounds as the statement of opinion or fact would be in the case of any other witness. Manifestly, therefore, when the court has decided as to the competency of such statement that it is opinion or the statement of a fact, the jury must accept it as being what the court declares it to be— opinion or the statement of a fact; or, rather, the court has the right, if it deems it opinion, to exclude it from the jury altogether, but, if it deems it a statement of fact, the jury must accept it as a statement of fact so far as its character is concerned, but are, of course, themselves the exclusive judges of what weight or credit they will give to the statement, treated as a statement of fact.
The question whether it is opinion or the statement of a fact is exclusively for the court in a dying declaration, just as it would be, and precisely for the same reason it would be, if such opinion or statement of a fact were testified to by any witness on any other subject. And so, I think it is for the court to determine what parts of such declaration relate to the killing and its res gestee, it being its duty to exclude all such parts as do not relate to the killing and its res gestee, just precisely for the same reasons it would be the duty of the court to exclude the testimony of any other witness which did not relate to the fact in controversy and the res gestie of that fact. And so, clearly, that which the court deemed not relating to the fact of killing and the res gestee of the killing would never reach the jury, and ought never to reach the jury. And, so, also, whether the statement in a dying declaration would be competent if the party lived and testified, is exclusively for the court as to its competency, and, if not competent, the court would exclude it, and it would never reach the jury, and ought not to. These three things — whether the testimony is the statement of an opinion or the statement of a fact, whether the declaration would be competent if the party were living and testifying "to *602it, and what parts of the declaration relate to the killing and the res gestee of the killing — -seem to me to be things which the court should determine, so far as their competency is concerned, just as it would determine the competency of any like testimony by any other witness or any other issue involved in a case, and that it is not necessary that the court should be satisfied on its rulings as to these things beyond a reasonable doubt of their competency. But the court ought- to be satisfied beyond a reasonable doubt that the party had a sure and fixed belief that he was about to die. It is such belief that he is abbut to die, and the fact that, so being about to immediately die, he cannot consequently be cross-examined, which, from public necessity, constitute the legal reasons for the competency of the declaration, looking to its source and nature. All the other considerations, it seems to me, are questions of general competency of the testimony in the particular respects indicated, applicable, equally and for the same reasons, to the like kind of testimony offered to establish any other proper issue in any given case.
In this case I think the legal predicate for the admission of the dying declaration was abundantly shown. And now as to the competency of the dying declaration. It is in these words: ‘ ‘ He said he had been dead, and that he was going to die, and the good Lord had sent him back to tell me that Dr. Lipscomb had poisoned him with a capsule he gave him that night, and Guy Jack had his life insured, and had hired Dr. Lipscomb to kill him.” I think that part of the declaration, that "he had been dead, and that the Lord had sent him back, ’ ’ ought to have been excluded on a specific objection to that end. Here are three statements: (1) “That Dr. Lipscomb had poisoned him with a capsule he gave him that night; ” (2) “ that Guy Jack had his life insured; ” and (3) “ that Guy Jack had hired Dr. Lipscomb to kill him.” Clearly, that Guy Jack had his life insured is the statement of a fact, and a fact of which he might well have had knowledge. Here is, at least, one clear statement of a fact reasonably within his knowledge. The state*603ment that Guy Jack had hired Dr. Lipscomb to kill him is put in the form of a statement of fact, but it seems to me clearly an inference or opinion of the declarant, drawn from other facts probably within his knowledge. I am clearly of the opinion, after the most careful consideration of the authorities, that the statement “that Dr. Lipscomb had poisoned him with a capsule he gave him that night, ’ ’ is, in its entirety, the statement of a fact fully within his knowledge, and not, in any sense, an opinion. The suggestion in argument that if Stewart knew the capsule was poison, he knew it when he took it, is a manifest non aeqwitur to my mind, and a palpable confusion of. thought. It might just as well be said that one who knows he is killed by a shot from a pistol, did not know it because he supposed the pistol was loaded with a blank cartridge. Here, then, is a dying declaration, part of which is the statement of an opinion, and part of which is the statement of a fact, known to the de-clarant at the time. That part which was opinion was clearly incompetent; that part which was the statement of a fact, to wit, ‘ ‘ that Dr. Lipscomb had poisoned him with a capsule he gave him that night, ’ ’ is clearly competent. I cannot escape the conclusion that the statement “that Dr. Lipscomb poisoned him with a capsule he gave him that night,” is just as exactly a statement of fact as would be the statement of any declarant that some person had shot him or killed him. He knew that Lipscomb had given him this identical capsule. He knew he had it in his possession up to the time that he took it. He knew that he had taken it, and he knew its deadly effect just as much as one would know the deadly effect of a pistol bullet entering his person. He would know it better, as of his own personal knowledge, than any expert physician, who might testify on a hypothetical state of facts, that he had been poisoned with such capsule, because he himself felt, and from so feeling, through the sense of touch, knew, that the capsule was killing him, while an expert would be giving his opinion that it killed him, based on such hypothetical statement. Any process of *604reasoning which seeks to distinguish between the statement, “Dr. Lipscomb poisoned me with a capsule he gave me tonight, ’ ’ and "Dr. Lipscomb killed me or shot me, ’ ’ seems to me a refinement not only too uncertain and visionary to serve in the practical administration of justice, but essentially inaccurate. I do not think any amount of reasoning or form of statement can destroy or impair the common sense conclusion that such statement is necessarily the statement of a fact within the knowledge of Stewart, and 1 shall not pursue it further.
We are brought face to face, then, with the thoroughly established rule of evidence, supported by an overwhelming array of authorities set forth in the briefs of the learned counsel for the state, that where a part of a dying declaration is competent, as the statement of a fact, and part not so competent, the whole is properly admitted, unless the defendant, by specific objections, points out, and asks the trial court to exclude, the objectionable parts. In this case the objection was twice presented —once before the court on a preliminary investigation, and once when offered before the jury — and, in both cases, it was, clearly and indisputably, nothing more than the merest general objection to the whole of the dying declaration as incompetent, without the specification of a single ground of incompetency, and without pointing out the part which was objected to as incompetent. It will not do to say, because the jury retired, and the objection was fully argued before the court, that we can assume that, in that argument, counsel made specific objections on the ground of opinion or otherwise. We look, to see the specific objections urged to the testimony, not to the argument of counsel, but to the objections the record itself sets forth as having been made; nor would it help the appellant if we did look to the bare statement that it was argued, for the argument is not set forth, nor is it stated that in the argument any specific objections were made. The unequivocal declaration of the record is that the objection was made in the merest general form and argued as such. If this court is to supply the omis*605sions of counsel to comply with the settled rule of evidence demanding that specific objections shall be made, so that the trial court may have a fair opportunity to deal with the objections, and so that this court may fairly review the rulings of such trial court on such specific objections, and imagine or conjecture that counsel, in their argument, presented to the trial court objections the record does not disclose, we upset the order of legal procedure, and embark on a most uncertain sea. It would never be possible to escape hereafter the point, when urged, that though,specific objections had not been made, as shown by the face of the record, yet the court should presume, when the record says merely that the objection was argued, that the trial court had the benefit of a specific objection, for the first time really disclosed in this court. I cannot assent to such a proposition.
In Lambeth v. State, 23 Miss., 322, it was held by the court, through Judge Yerger, that, if so grave a matter as the constitutionality of the competency of dying declarations was not presented in the trial court, this court would not regard it, when made here for the first time; and whether that be a sound declaration as to a constitutional objection or not, it is surely the most positive alignment of this court with courts elsewhere, which hold that, if the specific parts of a dying declaration, objected to as not competent, are not pointed out by specific objections in the court below, this court will not here regard such objection, disclosed here for the first time.
Merril’s case, cited in the opinion of my brother Magruder, was a case where the attorney-general confessed error, practically, and the point here discussed was not presented. We all concur in the rule that the whole of a dying declaration will be properly admitted, unless the parts of it which are objectionable are specifically pointed out in the court below, as the true rule. If it be possible that in some capital case in the future, to enforce the rule strictly would result in imposing the death sentence by the mere rule itself, where, from other testimony in *606the case, and the conduct of the trial, this court could clearly see that grave injustice would be done, in such rare and occasional case, in the future, the court might properly shrink from the enforcement of the rule, acting upon the doctrine that rules are made to secure and not to subvert justice; but in a case like this, where, as I view it, the testimony, aside from any dying declaration, shows the defendant to be guilty beyond every reasonable doubt, there can be no reason for departing from the rule. There is no reasonable hypothesis on the testimony in this case consistent with anything else than the manifest guilt of this defendant, and the enforcement of the rule, therefore, secures, and does not subvert, justice, protects society, and deters others from the commission of like offenses. To substitute the judgment of a particular court in the enforcement of this rule in an occasional case, even for the settled rule itself, is obviously dangerous practice.
It was said in Brown v. State, 72 Miss., 97 : "It is not permissible for one to experiment with the court by consenting by silence to all the evidence of a witness, and then move to exclude all the evidence because some part was incompetent. All the evidence was competent, except in the one particular already adverted to, and this, no doubt, the court would have excluded if attention had been called to it by a specific objection. To have excluded all the evidence would have been palpable error, and this is what the court was asked to do, as we suppose. ’ ’ In this case it is beyond supposition, it is a fact shown by the record, that the defendant asked the court to exclude all of the dying declaration, when, as I and my brother Thompson think, that part of it, to the effect that “ Dr. Lipscomb had po.isoned him with a capsule he gave him that night, ’ ’ was clearly competent as the statement of a fact. To the same effect, precisely, is Heard v. State, 59 Miss., 545. I think, therefore, there was no error in this case in the admission of the dying declaration, because the objectionable parts were not sufficiently pointed out, and because it is a case in which the *607guilt of the defendant is overwhelmingly manifest by the other testimony in the case.
I desire to add that 1 think the rule announced in State v. Williams, 67 N. C., 12, to the effect that the court should allow the dying declaration to go to the jury as the statement of a fact, and not of an opinion, where it is, from all the circumstances attending the declarant at the time of the killing, reasonably probable that he had knowledge of what he states as a fact, is a correct rule. The mere form of a declaration is not conclusive as to whether it is the statement of a fact or of an opinion, for that is form, and not substance. But where the circumstances attending the declarant at the time the facts occur about which he speaks, to wit, the killing and its res gestee, are such as reasonably and probably demonstrated that he was speaking from knowledge, and not from opinion, such circumstances are of substantial value in showing that the statement is one of fact, and not one of opinion. Grant that the circumstances established, showing that he probably had knowledge, are true — made out by the proof in the case- — they then are established realities, and declarant’s statement may be of a fact made known to him by these realities — as, for example, that he saw or heard, or in any other way identified, the party killing him. In the Williams case, for instance, the murderer had gone out a few minutes before the killing, from the house, but the other proof showed clearly that he was lingering about the house, in the dark, eavesdropping; that there was a brilliant light in the house; that the deceased was lying on his back, with his legs stretched out, on the floor, wide apart from each other, directly fronting the door, within about five feet from the door; that the door was open; that the light from within the house would disclose objects some distance from the door; that the defendant was shot through this open door, by the party standing only a few feet from the door, and was shot straight through the body, between the legs; and the court held that it was altogether probable that the deceased saw *608the party by the light in the room and the flash of the gun, and that he heard the party moving about. These circumstances were established facts in the case, and the court, looking to these established facts, said that it was altogether probable that the deceased did see and hear, and thus identified his murderer, and hence that the statement was one of a fact reasonably within his knowledge, and the rule announced was, that where the statement is one of a fact, shown by the surrounding facts, fully established, to have been reasonably within his knowledge, it is to be held as the statement of a fact, and not of an opinion. Altogether different is it as to the mere form in which a declarant couches his statement. In such latter case the form of statement should not control, and the reason why it does not control is that the court does look through the form to the substance, to wit, the circumstances showing whether he had reasonable knowledge of the fact he states. The very reason why the mere form of the statement is properly held not to be conclusive, is that the court sees that it is an opinion, and not a fact, by looking to the other established circumstances in the case. The very inquiry the court institutes for itself, in determining its admissibility, as to whether opinion or statement of fact, is, was such statement, notwithstanding its mere form, shown by the established circumstances in the case, to have been one of fact reasonably within the knowledge of the declarant, or one of opinion merely 1 It seems to me clearly beyond controversy, therefore, that it is the proper test precisely to ascertain whether the established circumstances in the case show that the statement was one of a fact reasonably within the knowledge of the declarant, or one of opinion merely, whatever the mere form of the statement may be. The form of the statement is form only. It may be falsely couched in the form of a statement of fact purposely, but the established circumstances go to the vital substance of the question whether the declarant, situated as the circumstances show him to have been situated as to the exercise of his senses, and his ability by the *609use of his senses to identify his assailant, did reasonably hare knowledge of the fact which he states as a fact.
I desire further to say that 1 take no part in the criticism of Payne v. State, 61 Miss., 161. The statement in that case was to the effect that the defendant £ £ shot him without any cause whatever,” and the criticism is of the court for holding that the words “without any cause whatever” is the statement of a fact, and not of an opinion. There is not in this case any statement by Stewart that Lipscomb killed him £ ‘ without any cause whatever; ” and, hence, the whole criticism of the opinion seems to me clearly beside the issue in this case. Stewart’s statement was that Lipscomb had poisoned him; that he killed him with a capsule he gave him that night; and this is like the statement of Hawkins in Payne v. State, 61 Miss., 161, that Payne had ££ shot him, ’ ’ and is the statement clearly of a fact within the knowledge of the declarant. For the reason, therefore, that the statement of Stewart does not contain the declaration that Lipscomb poisoned him ££ without any cause whatever, ’ ’ it seems to me foreign to the issue to discuss the question as to whether the words £ £ without any cause whatever ’ ’ is the statement of an opinion or of a fact.
Finally, I desire to say that I very.much doubt the correctness of the decision in Com. v. Matthews, 89 Ky., 287, and in Handy v. Com., cited in the opinion of my brother Magruder, in so far as they hold that the statement there, to the effect that the shot was an accident, was admissible for the defendant, but not for the state. Without committing myself one wajr or the other, definitely, as to whether the competency of any dying delaration is to be determined, in any case, by the consideration that it was for the defendant, and not against him, I will say that such a distinction seems to me untenable. I cannot see how the competency of a dying declaration, any more than the competency of any other testimony, is to be determined by whether it makes for or against the defendant. It would seem that, if it were competent, it should go to the jury, no matter *610against whom or in favor of whom it operated. I think the verdict would have been well warranted if there had been no dyino; declaration at all, and the essential part of the dying declaration— the statement that “Dr. Lipscomb poisoned him with a capsule he gave him that night” — was clearly competent, and should have gone to the jury, in any event.
I think the fifteenth instruction asked by the defendant should have been given, on the authority of Lambeth’s case, 23 Miss., 322. It might have been more felicitously phrased. It might have told the jury that, in considering the dying declaration, it was proper for them to remember that, as to its source and nature, it was the declaration of one not sworn and not cross-examined, but that, remembering this, they alone had the power to graduate its weight and effect as testimony; and this is what I think it does, though not as felicitously as it might have done. But I do not think the refusal to give it was reversible error.
The ninth instruction for the state, I think, is erroneous for the reasons given in Williams v. State, 73 Miss., 820 but I do not think that is reversible error, since the jury were abundantly instructed as to reasonable doubt and as to the value of circumstantial evidence. The giving of the instruction in the Williams case was not reversible error of itself alone— it operated as a mere make-weight. That case, as the reading of it discloses, was reversed for the admission of incompetent testimony.
It will thus be seen that I think two instructions — one refused the defendant and one given the state — are erroneous, but that I do not .regard these errors, singly or combined, as constituting reversible error; for the reason that I think the testimony, which was competent, overwhelmingly establishes the guilt of the defendant, that the right result has been reached on the facts and the law applicable to the case, as it went to the jury, and that np other result could be reasonably reached by any jury on another tidal, and hence that substantial j ustice has been done between the state and the defendant; and, wherever such is the *611case, I understand the rule to be settled beyond cavil, in this state and a majority of other states, that no new trial should be granted.
In 1 Thomp. Trials, p. 122, sec. 116, it is said: "In England and many American jurisdictions a paramount inquiry upon such objection is whether it has resulted in an unjust verdict. If not, the objecting party has sustained no injury, and a new trial will not be granted in order that public or private time may be consumed and the danger of other, irregularities incurrrd, where the same result must, on a just view of the evidence, be reached. Unless there is plain evidence of injustice done to the party complaining, the verdict shall be allowed to stand.” In 2 Thomp. Trials, secs. 2401, 2402, considering the express point here involved — the giving of erroneous instructions — it is said: “Courts of error do not sit to decide moot questions, but to redress real grievances. It is therefore a rule of nearly all the courts that no judgment will be reversed on account of the giving of erroneous instructions unless it appear probable that the jury were misled by them. Expressions of this rule could be multiplied almost without limit. Thus, it is said that instructions faulty or technically erroneous will not work a reversal of the judgment if the jury were not misled, or if, as a whole, the case was fairly presented to them, and especially if their verdict is obviously correct. Of course, it can never be said that the jury were misled by the giving of erroneous instructions where they have reached the correct result by their verdict. Accordingly, it is the. practice of most of the courts, before passing upon exceptions to instructions, to look into the evidence and see if the verdict is right, and, if it is found to be so, the court will look no further. The rule of these courts is that a good verdict cures all errors in the intermediate steps by which it was reached. In England it is no ground for a new trial that the judges misdirected the jury, unless it is shown that the jury was thereby induced to form a wrong conclusion. If the revising court sees that justice has *612been clone between tbe parties, they will not set aside the verdict nor enter into the discussion of the questions of law.” And Mr. Thompson in his notes arrays decision after decision from this court, showing this court to stand firmly on this rule as necessary to any practical administration of justice. I have examined every one of these authorities, and shall proceed to state what they hold, among them being decisions in criminal cases, and shall then add others from this court down to date.
In Magee v. Harrington, 13 Smed. & M., 406, the court say: “The verdict of the jury was correct, according to the law and the facts, and, if it were conceded that the court below erred in the instruction which it gave, we would not be authorized to disturb it, as there is no probability that a different result would follow upon another trial. ’ ’
In Brantley v. Carter, 26 Miss., 285, it is said: “It is well settled that a judgment will not be reversed for erroneous instructions to the jury, if it is apparent that the verdict is according to the law governing the case and the evidence before them."
In Hanna v. Renfro, 32 Miss., 131, it is said: “The instructions given to the jury upon the trial are very numerous and general in their character, and, in some respects, are not entirely accurate. So far as they are applicable to the material points involved under the facts of this case they appear to be correct, and we are satisfied that the verdict is well sustained by the law arising upon the evidence, and that the errors in the instructions are therefore immaterial. ’ ’
In Fore v. Williams, 35 Miss., 540, speaking of instructions, the court say: “This was obviously irregular and improper; but it appears that the jury came to a correct conclusion upon the subject, and, as the error in the court did not operate to the defendant’s prejudice in law, it was no ground for setting-aside the verdict and granting a new trial.”
In Wesley v. State, 37 Miss., 351 (a murder case), the court say: “But it is not for every error committed by the circuit *613courts in charging or refusing to charge the jury that this court will reverse. It is only after an examination of the whole record, and when it appears that the party complaining has either been injured, or may have been injured, by an erroneous instruction, that this court will interpose and correct the error. ’ ’
In Cameron v. Watson, 40 Miss., 209, after holding instructions to be erroneous, the court say: “But no injury was done by it, for the verdict is correct, notwithstanding the erroneous instructions. In such a case the error in the instruction is not ground for granting a new trial, where it is manifest the verdict is correct upon the facts appearing in the record. ’ ’
In Hanks v. Neal, 44 Miss., 227, 228, it is said: “Although this instruction, as a legal proposition, may not be correct, yet, as the evidence shows that the verdict is right, there is no error in overruling the motion for a new trial. The rule is that the verdict will not be disturbed when it is according to law and the justice of the case, though the instruction be erroneous.”
In Head v. State, Id., 752 — a murder case — the court said: “We would not disturb the verdict for any supposed error in the instructions, when the verdict is manifestly right on the evidence, and it does not appear that the accused was prejudiced by any one of the charges of the court. ’ ’
In Evans v. State, Id.., 775 — a murder case — the court said: ‘ ‘ It has been several times declared from this bench that all the charges are to be construed together, as of pa/ri materia, one as modifying another, so as to see whether, as an entirety, they correctly lay down the law, and, if so, although a single instruction may be too broad in its terms, a reversal ought not to take place. The rule as deduced by Wharton from American cases is, if the error be immaterial and irrelevant and justice has been done, the court will not set aside the verdict nor enter into a discussion of the questions of law.” Am. Cr. Law, sec. 3080. “ It finds full support in the adjudications of this court, ’ ’ citing authorities.
In O'Leary v. Burns, 53 Miss., 171, it was held, Simrall, *614C. J., speaking for the court, £ ‘ that, where there is competent evidence sufficient to support the finding, the judgment will not be reversed for an error in admitting testimony. ’ ’ The same doctrine precisely was announced in Witkowski v. Maxwell, 69 Miss., 66 the court saying: “ We cannot say that the verdict of the jury, by which it is settled this was done, is not supported by competent evidence from which this inference follows; ” and in Barnett v. Dalton, 69 Miss., 617, the court saying: lí We decline, moreover, to reverse, because another trial, properly conducted, could only result in a judgment for the appellees on the evidence before us.” Here are three cases holding that where the verdict of the jury is right on the law of the case, and the competent evidence in the case, it will not be set aside'. There is therefore nothing in the suggestion that this court, if it affirms a judgment where incompetent testimony has been admitted, but the verdict is right on competent testimony, is usurping the function of the jury to say whether the defendant is guilty or innocent. That function, of course, is primarily for the jury; but this court undoubtedly has the power, in ascertaining whether the verdict of the jury is right, to uphold that verdict as being right on the' competent evidence, under the law of the case.
In Cheatham v. State, 67 Miss., 341, this court well said: "The standard sought to be erected by counsel, by which to test a fair and impartial trial, to which one accused of crime is entitled, is too perfect and refined. It excludes not only appreciable error, but invades the field of metaphysics, and invites investigation of subjects with which neither courts nor juries are competent to deal. Courts must consider juries as bodies of plain men, imbued with an honest desire to perform with fidelity the duty imposed upon them of discovering the truth from the evidence submitted to them, in conformity with the instructions as to the law given them by the court. ’ ’
In Graham v. Fitts, 53 Miss., 307, this court said, through Campbell, C. J.: "Some of the charges given by the judge to the jury, given at the instance of the plaintiffs and the defend*615ants, were erroneous. . . . We will not particularize, but will give our view of the case as made by the record as a whole. . We think that a proper result was reached in the trial, although by a different method from that indicated in this opinion; and as, upon the facts of the case, defendants in error were entitled to the judgment they obtained, it is affirmed.”
In Lamar v. State, 65 Miss., 95, 96, this court said: “But this was not the only infringement of the right of the defendant. In his concluding argument the district attorney, over the objection of the defendant, in spite of the twice - repeated direction of the court to desist, persisted in reading to the jury, as evidence against the accused, certain portions of the written testimony of a witness, which had not been put in evidence. Thus, each of the counsel for the state invoked against the accused prejudicial facts not in evidence. Such conduct deserves the severest censure, and should have drawn from the court an instant and sufficient correction.. For this palpable and serious error we are urged by the counsel for the appellant to reverse the judgment and award a new trial. ’ ’ But the court held that the defendant .was guilty on his own testimony, and affirmed the judgment, notwithstanding these serious errors. Exactly the same point is decided the same way in Allen v. State, 66 Miss., 388. These cases go upon the ground that this court should affirm the verdict of the jury finding a defendant guilty, where this court, passing upon the testimony of the defendant himself, sees that it makes him guilty. There can be no logical difference between thp power of this court to hold the verdict of a jury finding a defendant guilty right where his own testimony satisfies this court that he was guilty, and in affirming the verdict of a j ury finding a defendant guilty on other uncon-tradicted testimony in the case, this court believing him guilty on such uncontradicted testimony. I do not mean to say that, in this case, the testimony showing guilt, other than the defehd-ant’s own testimony, is not contradicted in some respects. I *616am speaking now of the power of this court to base its affirmance upon the fact that the defendant is guilty under the law, either on his own testimony or on other testimony showing his guilt beyond a reasonable doubt, though there be contradictions in the testimony. The various decisions which I have cited on this particular point indisputably show that this court has the right to look at the substantive case made by the competent testimony — the mountain in the landscape — and to uphold the verdict based on such competent testimony, under the law applicable to the case, though incompetent testimony may have gone to the jury improperly.
Again, it has been held, in Houston v. Smythe, 66 Miss., 123, Campbell, J., speaking for the court, that, where the right result has been reached, errors of law as to pleadings will not cause reversal. The court said: “The court erred m sustaining the demurrers, but the whole case was fully developed by evidence, and any other result than the defeat of plaintiff in replevin would not be tolerated. In such case it would be wrong to keep alive a controversy which, since, under the law, it could have but one end, had better at once be terminated. Therefore, following numerous precedents, we will not inflict upon the party ultimately losing the cost of further and useless litigation, by remanding the cause because of errors and rulings in the pleadings, since it is manifest that no harm was done by these rulings.”
See, also, supporting the general doctrine announced, Vance v. State, 62 Miss., 137; Cheatham v. State, 67 Miss., 341; and Vicksburg L. & T. Co. v. United States Express Co., 68 Miss., 149. With these authorities in our mind, this court has recently declared, in the case of Ellerbe v. State, ante, p. 523, the rule to be as follows: “So far as the lawful power of this court can be exerted in affirming convictions for violations of the law of the land, it shall be exerted; and mere technical errors, without intrinsic merit, where we can, after a careful and thorough examination of the whole case, confidently say that the right result has been reached, that *617substantial justice had been done, and that, on a new trial, no other result could be reasonably arrived at, will not avail here for reversal in civil or' criminal cases.” It must thus be clear, beyond all cavil, that this appellate tribunal is not a helpless prisoner, bound in the fetters of some supposed hard and fast rule requiring it to reverse cases where, first, erroneous instructions have been given; or, second, proper instructions have been refused; or, third, competent testimony has been excluded; or, fourth, incompetent testimony admitted; or, fifth, improper argument has been allowed; or, sixth, the trial court has erred in its rulings on the pleadings, on the ground, merely, that such action of the court, of the one kind or the other, constitutes error in law. merely. Every one of these propositions is laid down as settled law, and an overwhelming array of authorities, from this and other states, is cited in support of each in 2 Enc. Pl. & Prac., as follows: Paragraph 12, p. 499; paragraph 4, p. 534; paragraph 5, p. 537; as to improper remarks of court or counsel, Id.; as to errors in pleadings, paragraph 6, p. 542; as to improper rulings of, in admitting or excluding testimony, paragraph 7, p. 549; as to erroneous instructions or refusal of proper ones, paragraph 8, p. 567; and, finally, it is said (paragraph 10d, p. 587): “ Where it is clearly apparent that the verdict is correct upon the whole evidence, judgment will not be reversed for errors occurring in the trial; ” and in paragraph 8c, p. 400, it is declared: “There is no distinction in the application of the principle between civil and criminal cases. ’ ’
With all deference, it seems to me that my brethren have clearly confounded the primary function of the jury to pass on the evidence and find the defendant guilty, if satisfied beyond a reasonable doubt, and the power which this appellate tribunal exercises in reviewing that finding of the jury. When the court so reviews the finding of a jury in a criminal case, and reverses, as it repeatedly has done, on the sole ground that the evidence was manifestly insufficient to warrant the verdict of *618guilty, or affirm the jury’s finding of guilt when that verdict is clearly right on the law applicable to the case and the competent testimony in the case, as it has also repeatedly done, this court is not usurping the jury’s primary function, and passing originally upon the guilt or innocence of the defendant, but is manifestly exercising its undoubted appellate power of reviewing and upholding or vacating the finding of the jury, as the case made may demand, in accordance with settled rules of law governing appellate jurisdiction. The practical inquiry is the true inquiry, and the practical inquiry must always be, as stated in Eller by’s case, founded on all our other cases, sanctioned by the text of Mr. Thompson — itself a mere restatement of the decision in a majority of the states in this Union, and of the courts in England — that where this court, looking back through 'the whole record, notwithstanding such errors of law, can confidently affirm — as it has a right to affirm, and must of necessity have the right to affirm — that substantial justice has been done, and that the right result has been reached on competent testimony under the law applicable to the case, and that no other reasonable verdict could be rendered than the one which was rendered, a reversal should not follow. The administration of justice is a practical thing. It should be administered in a practical way, so as, while not denying to any defendant any substantial right to which he is entitled by the law of the land, to protect society from violators of the law, and to secure the punishment of guilty men properly convicted.
In_view of the fact that a majority of the court think this defendant should have a new trial, I refrain from any particular detailed statement of the testimony in the case, not wishing in any wise to prejudice him on the new trial. I say, only in vindication of my views, that on the testimony in this case, without reference to the dying declaration, he is, to my mind, shown overwhelmingly to be guilty, and that that part of the dying declaration, “Dr. Lipscomb poisoned me with a capsule he gave me to-night,” was the statement of a fact, and was *619competent to go to the jury, as it did go to the jury, and that Dr. Lipscomb’s conduct, as disclosed by the record, is, to my mind, utterly inconsistent with his innocence. Murder is bad enough in any form (assassination is one of' its worst forms), and the poisoning of a patient by his physician is a form of assassination darker in its type than I care to characterize. Mississippi wants no “Age of Poison.”
For these reasons I feel constrained to dissent from the conclusion reached by the majority of the court, that a new trial should be granted. I think the judgment should be affirmed.