delivered the following opinion, favoring a reversal of the judgment appealed from:
In reference to the questions pertaining to the dying declaration, I concur in Judge Whitfield’s opinion. The statement, a part of the dying declaration, “that [he Lord had sent him back to tell,” if objected to, was inadmissible, justas a declaration to a j ury by a living witness, to the effect that ‘ ‘ the Lord had sent him to tell them,” preceding a narrative of facts, would be inadmissible. The statement “that Dr. Lipscomb had poisoned him with a capsule he gave him that night” was, in a just and legal sense, the statement of a fact, and not the expression of an opinion, and it was admissible in evidence. The statement that “Guy Jack had his [the declarant’s] life insured ’ ’ was the statement of a fact, but it was not admissible in evidence, because not a part of the res gestee of the homicide. The concluding part of the declaration, “and [meaning Guy Jack] had hired Lipscomb to kill him” (the declarant), while, in form, the declaration of a fact, yet, in truth, as we find from all the surrounding facts and circumstances, was but the expression of an opinion, and was not a part of the res gestee of the homicide, and it was inadmissible.
In my opinion, the court below erred in granting the second and ninth instructions given for the state, and 1 concur in the opinion of Judge Magruder in so far as it points out the error *620of the ninth instruction. I think, too, that the court below erred in refusing the fifteenth instruction asked by the accused, and I concur in the opinion of Judge Whitfield approving this instruction and pointing out the error of the court below in refusing it. I am of opinio'n, because of these errors, the j udgment appealed from should be reversed. I cannot consent to an affirmance of the conviction of appellant with these errors, to his prejudice, apparent of record. Especially do I regard the action of the court below, in granting the ninth instruction for the state, as reversible error. Other convictions, because of like errors, have been vacated by this court, and I find no sufficient basis for a different result here.
It may be that public policy would be promoted by the existence of authority in the judges of this court to determine, in every criminal case, whether, upon the facts of the case, the appellant be guilty or innocent, and, if believed by them to be guilty, to affirm a judgment of conviction in spite of errors committed on the trial in the court below; but I do not understand such power or right to exist. I find no warrant for it in authority, and I do not believe that it ought to be brought into existence, if at all, save by legislation. I think the first inquiry in respect to every assignment of error should be, is it well taken — was error committed in the trial appealed from to the prejudice of appellant in the matter complained of? If this inquiry is answered affirmatively, then the second inquiry presents itself, and that is, was error calculated to and did it probably produce the result evidenced by the judgment appealed from ? If this is to be answered in the affirmative, then the case should be reversed. Appellate j udges, under existing law, cannot too carefully refrain from becoming themselves the triers of the fact of guilt or innocence in determining whether an error committed by the court below was calculated to and did probably produce the result there reached. The two questions are certainly separate and distinct. In this case I cannot see how it can be affirmed that the errors in the instructions *621(all agree that there are errors in them) were not calculated to and did not probably produce the conviction appealed from. Admitting, as a matter of law, that Lipscomb ought not to have been convicted unless, in the belief of the jury, his guilt was established beyond a reasonable doubt, and that “full conviction ’ ’ is something less than 'the degree of certainty of belief required to warrant a conviction, as has been decided by this court (Williams v. State, 73 Miss., 820), how can it be said with certainty that the instruction did not produce the verdict ? The instruction here is that £ ‘ when, after due caution, this result [meaning full conviction of defendant’s guilt] is reached, the law authorizes the jury to act [meaning to convict] on it.” In the Williams case, supra, the instruction which was condemned was: “If, after a careful and impartial consideration of all the evidence in this case, you can say and feel that you have an abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt,” etc. It will be noted that ££ abiding conviction ’ ’ and £ £ full satisfaction ’ ’ are conjointly, not disjointly, coupled in the instruction in the Williams case. If, as decided by this court, £ £ an abiding conviction, ’ ’ united with “full satisfaction” of a defendant’s guilt in the minds of his triers, falls short of the legal standard of certainty of proof required to authorize a verdict of guilty, surely a £ £ full conviction ’ ’ thereof does not measure up to the standard. I think Judge Whitfield is mistaken in the statement, in his opinion just read, that the instruction in the Williams case was not held to be reversible error. The Williams case, as I read it, was reversed because of the condemned instruction, as well as because of the admission of incompetent evidence.
As a matter of law, it cannot be said that the ninth instruction given for the state had no weight, because, as a matter of law, it is the duty of a jury to carefully consider and to be governed by the instructions of the court. Looking at the question as a matter of fact, it can be said such an instruction — *622one upon a vital question in the ease, not a mere collateral or incidental matter — did not probably produce the result only in cases where the state of the evidence is such as to justify, in civil cases, a peremptory instruction by the court — oases in which there is no conflict of pertinent evidence, and in which all the evidence is consistent with the result directed. In this case the testimony of the accused at least denied guilt, and, if believed by the jury, would have warranted an acquittal; and, besides, other witnesses testified to matters of fact which, if true, tended strongly to show appellant’s innocence. Lipscomb, therefore, has been convicted by a jury who were instructed by the court that a degree of proof of guilt less than the exclusion of every reasonable doubt was sufficient to warrant a verdict against him; his conviction was had when there was evidence offered on the trial which, if believed, would have warranted his acquittal — a state of evidence of which a court would not affirm that a verdict in his favor would have been without evidence to support it; and the question is, shall the judges of this court disregard the error, and themselves weigh and consider the evidence, without the advantages of observing the witnesses, and determine what would have been their verdict had they been on the j ury ? I can find no warrant for so doing. If the evidence, the whole of it, was so conclusively one way as to justify, in a civil case, a peremptory instruction, such an error as the one we are considering might not be cause of reversal; but in the state of the evidence here it must be, unless appellate judges are to be the triers of facts in cases brought before them.
I have carefully read and considered the several authorities cited in support of the idea that this court should affirm the conviction appealed from notwithstanding errors, but I do not think any one of them covers this case, and that this appeal is distinguishable from all of them.
The writer does not overlook the rule that the instructions in a cause are to be considered as a whole, but, looking at all *623of the instructions in this case, he cannot agree with Judge Whitfield that the jury were fully instructed on the subject of a reasonable doubt. The jury were told that the defendant could not be convicted unless his guilt was established beyond every reasonable doubt, but the ninth instruction said to the jury, in effect, that “full conviction ” was the equivalent of the exclusion of reasonable doubts, and it was in every just sense a modification, and an erroneous modification, of all the other instructions on the subject; and, if we give full scope to the rule that the instructions are to be treated as a whole, this erroneous ninth one, given for the state, must be read in the body of each of the others, relating to the question of the degree of proof requisite to a conviction.
After the delivery of the foregoing opinions a motion was made by attorneys for the state to vacate the judgment of reversal which had been entered by order of the court, and to substitute therefor a judgment of affirmance. The motion was argued by counsel.
Whitfield, J.,delivered the opinion of the court on the motion.
On this motion to vacate the judgment of reversal heretofore entered, and substitute a judgment of affirmance, upon the ground that no two of the judges concur in a common ground of reversal, we have listened patiently to a full and extended oral argument, and' have carefully examined all the authorities cited for the state — the Phillips case, the Spivey case, and all the other cases. The facts of those cases clearly distinguish them from this one as to the point here presented for decision. Of course, anything said (and much was so said) as to whether the original holdings of the court were right or wrong, was proper to be made on a suggestion of error. All that, of course, we discard.
The judges remain of the opinions they originally severally entertained. My brethren thought then, and think now, that *624the ninth instruction for the state was error, and reversible error. I thought then, and think now with increased confidence, it was not reversible error. The only ground upon which, logically, the motion can proceed is that two judges of the court do not concur on one common ground of reversal. The case of Browning v. State, 33 Miss., 85, is an authority for reversal where the judges differ, though one of the judges for reversal predicates his judgment on one ground, and the other who may be for reversal predicates his judgment on an entirely distinct ground, and though there may be no two judges concurring in one common ground of reversal. Judge Handy’s opinion in that case is said to be a very powerful one, and it certainly is, and, in the j udgment of the writer, is the sound view. Without, however, deciding which is the better-view — whether two of the judges ought to concur in one common ground of reversal, or whether it be enough that one reached his conclusion that a particular case ought to be reversed on one ground, and another on another — it is sufficient here to say that, even if the opinion of Judge Handy were the law, my brethren here do concur on one common ground of reversal, and reach that common ground on the same line of reasoning. It is immaterial, therefore, whether the views of Judges Smith and Fisher are sound, or the views of Judge Handy. On either view this motion is not well taken, and must be overruled. It affords us at least some measure of satisfaction to be able to say that, however much we may have differed upon other grounds in the case, the court has unanimously reached the conclusion that this motion should be, and it is hereby, overruled.
L. W. Magruder and R. H. Thompson, special judges on the trial of the case and the hearing of the motion, presided in places of Judges Woods and Terral, disqualified.