delivered the following dissenting opinion.
The theory of the state, in this case, against the father, was that the father participated in this killing to prevent his daughter eloping with the deceased. The theory of the defense was that the father had nothing to do with this killing, but that the deceased was killed by Richard Fowler and John Burnett, the son and son-in-law of the defendant, because the deceased had already had illicit relations with the daughter of defendant, and was seeking to continue them that night, and that he was not, therefore, killed to prevent their marriage; and yet the court below excluded the larger part of the testimony offered by the defendant in support of his theory, and in my judgment its action in this behalf was manifestly fatal error. There is *520no positive and direct proof in the case connecting the defendant with this killing. His conviction rests solely upon circumstantial evidence, and within the rules stating the certainty required in that sort of case, as laid down in Newman v. State, 72 Miss. 124, 16 South. 232, and the Browning case, 33 Miss. 47, it is perfectly clear to my mind that this conviction was wholly unwarranted.
The testimony of Bettie Fowler, defendant’s daughter, explains thoroughly many of the incriminating circumstances, as, for example, a pair of pants said to belong to the defendant, found hidden in a treetop a few hundred yards from defendant's residence, was sworn by Bettie Fowler to be the pants of her brother, Richard Fowler. It was shown that on Tuesday, after the killing on Sunday night, the defendant notified the coroner that a man had been killed and buried on his place; but he said that he had been killed by his boy. And it further appears clearly that it was necessary to get Richard Fowler to point out the exact spot where the body was buried, tending to show that the defendant did not know where the body was buried. It was shown that he had made a threat to kill “stave hikers;” but it is also shown that this threat was made before the marriage of another daughter, and that the threat, though with reference, clearly, to that marriage, never had been carried out; but, on the contrary, that this “stave hiker” was permitted to marry her at defendant’s own home, showing his threat to have been mere general bluster. It is perfectly manifest that all that is said about the bloody clothing, the pants, etc., is worthless against the defendant, since it is plainly shown that he was not present- at the time of the killing, but was staying-in his house. There is no testimony that at the time of the killing the deceased was seeking to- elope with the defendant’s daughter. She herself positively testifies that she had no engagement with him that night; that she was not looking for him; that she did not know he was coming; and that he (the deceased) was in the neighborhood without any preparation for *521an elopement; and there is an entire absence of any testimony in the record that the presence of the deceased at the house of the defendant at that time was in any way expected by the ■defendant. How, in reason, the state’s theory of an elopement can be maintained on this testimony, and this defendant convicted on that theory on this sort of testimony, purely circumstantial, passes my comprehension. I think the testimony of Bettie Fowler and Miles Barney shows conclusively *that this deceased was not near this defendant’s house, in the woods near ten o’clock at night, with any purpose of elopement whatever, but with a different and sinister purpose; and I think the whole testimony in the case shows that he was killed by the son and son-in-law of the defendant, because he had debauched the daughter, and was seeking to continue their illicit relations, of which illicit relations there is not a particle of evidence to show that this defendant had any knowledge whatever. It is entirely reasonable, under the testimony in this case, that the mother, and brother, and brother-in-law knew the daughter had been debauched, knew the contents of the letter of June 4th from the deceased to Bettie Fowler and that the father had no such knowledge. Neither the father nor the mother could read or write.- The mother, however, had intercepted a letter to1 the daughter from the deceased, and carried it to her married daughter, the wife of John Burnett, the son-in-law who helped do the killing, and it is shown that both John Burnett and the son, Bichard Fowler, knew of its contents; and it is also shown clearly that neither the father, nor Alice, the other single sister, knew anything of this letter. The very fact that the father suspected that they were about to elope for the- purpose of marriage, and that he had permitted the deceased to visit his daughter at his house, is the strongest sort of evidence against any knowledge on his part-, or suspicion on his part, that the daughter had been debauched.
It is shown that the deceased, after boarding at the home of this defendant, whilst making staves, had removed to Banner, *522iii Calhoun county, in January, but had returned to this neighborhood for a visit in March, and again in May. He was at the residence of the defendant in the afternoon of May 10, and was with his daughter Bettie. The defense offered to show that on that night Bettie absented herself from the house some time, so as to raise her mother’s suspicions. This is shown by the testimony of Alice Fowler. Tet the court excluded this evidence.' It should have been admitted. Soon after this visit, Bettie Fowler received from the deceased a letter, as is shown by the testimony of Alice Fowler, which letter she declined to read to her mother, stating as her reason that it would disgrace her. The letter was destroyed, and the court declined to admit any proof in connection with it. This was manifest error on the part of the court below. This letter was followed by another early in June, which also was intercepted by her mother, and was offered in evidence, but excluded by the court, as shown in the testimony of John Burnett, and the testimony of Alice Fowler. This letter was identified by the state’s witness Bettie Fowler, and defendant’s counsel sought to examine her with reference to that letter and its contents, which the court declined to permit. The action of the court in both these instances was manifest error, upon the theory of the defense. This last letter of June 4th unmistakenably points to> the deceased and Better Fowler having had illicit relations at a meeting referred to in that letter, and tends to' corroborate, however, remotely, the suggestion that there may have been an improper relation on the night of May 10, when her absence aroused the suspicions of her mother. The letter of June 4th requested Bettie Fowler to meet the deceased at night on July 3, at the same time and place he last saw her, and its contents point to nothing less than illicit relations on that former occasion.
Bettie Fowler’s testimony that she had never seen the deceased at night, and that she last saw him before this letter was written, in the daytime, in her father’s house, and in her mother’s presence, tends strongly to show the consciousness of *523guilt on her part as to what had occurred on the occasion of that first meeting, referred to in the letter of June 4. It must be remembered that Bettie did not get this last letter; it having-been intercepted; and, keeping this in mind, it must also be remembered that the deceased came back into this neighborhood on the afternoon of July 3, on the night of which day he had requested her to meet him, and stopped with his friend Barney; that he did go to the house of the defendant that night j that he returned there on the morning of July 4, he evidently not having accomplished his purpose, on account of his letter having-been intercepted; that he left defendants house, saying he would leave the community that day; that on the following-evening, Sunday evening, he had a telephone conversation with Bettie late in the evening, referring to some engagement which had been defeated, and saying: “I will see you to-day, and will send you a message like the one I sent you before, only it will be a little different.” And on that very night he left Barney’s house at 9 o’clock, wearing an old ragged coat and saying he was going in the other direction, to the home of Mr. Mars; but he did not go to the home of Mr. Mars, but turned up near the residence of the defendant at ten o’clock at night, making mysterious signals. These signals were heard by the brother and brother-in-law, who, having been put on guard by this same letter before referred to, had prepared to kill him, and did kill him; the defendant not being present and in no way participating in the actual killing. These circumstances are, to my mind, utterly inconsistent with the theory of the state that he was killed at the instigation of the father, to prevent the marriage.
It was offered to be shown by the testimony of John B'umett, Alice Bowler, and Bettie Bowler that this defendant had nothing to do with the burial, but advised against it, and tried to prevent it, and advised the persons who had done the killing to immediately give notice to the community of what they had done and let “the body be put away right.” The court excluded *524this testimony on the theory that it would be allowing him to' make testimony for himself. But this testimony was not offered with that in view at all, but to show the fact that at the very time the crime took place the defendant had tried to prevent the secret burial of the deceased. This error is greatly emphasized by the fact that this secret burial was urged by counsel for the state as showing the guilt of defendant, when the defendant had offered to show that he had nothing to do with the secret burial, and protested against it, which testimony had been excluded by the court. I think it was error to exclude this testimony. It was part of the chain of circumstances supporting the theory of the defense, and defendant certainly had the right to' have.the jury pass on that theory.
The defendant also attempted to show, by witness Walter Webb with whom the deceased lived in Calhoun county, after leaving the neighborhood where defendant lived, that the deceased tried to arrange to bring one of the daughters of the defendant to Walter Webb’s house, and Webb declined to permit it, unless he would get the consent of the parents or marry -the girl. There was some doubt as to which girl this was— Alice or Bettie; the deceased merely having said that it was the oldest of the girls. The defendant offered to show that it was Bettie, and not Alice, that he proposed to bring there, and that he was purposely deceiving Mr. Webb about it; and as a means of showing this the defendant offered to show that Bettie wrote a letter to the deceased, which fell into the hands of Mr. Webb, and, further, that Alice never wrote the deceased any letter at all, together with certain other matters, especially the statement of the deceased to Webb that he did not intend to marry Bettie Fowler. This, too, it seems to me, formed a link in the chain of circumstances maintaining the theory of the defense that deceased was really killed because he had debauched, and .was seeking to still further debauch, this daughter Bettie. All this testimony was excluded by the court below, erroneously, in my judgment.
*525I will protract this opinion no further than to note one other point. The court permitted Bettie Fowler to testify that her mother, about the time that the shooting occurred, told her it would not be good for her to say ánything about it. Now, since the gist of this whole controversy is whether the father knew of and was accessory to this shooting, such a remark by him would have been competent and of potent circumstance; but it is just as clear that this remark by his wife in his absence — - which was the fact — was as clearly inadmissible as any testimony could have been, and it is certainly evident that it was highly prejudicial to him. It was gross error in the court to •permit this statement to go to the jury.
There are other errors, but surely, with this case resting on purely circumstantial evidence, and in view of the clearing up of the state’s testimony'by the testimony of Bettie Fowler and Barney as to certain incriminating circumstances, and in view of the two entirely opposed theories of the state and the defense, these errors are fatal to this conviction, and this defendant is entitled to a new trial. This case should be looked at as a whole, with all the facts grouped, and particularly with the two theories of the state and defense placed in clear antagonism. When this is done it is perfectly manifest that the errors pointed out constitute fatal error, and that this defendant should have what he has not yet had, a fair trial according to the law of the land.