(specially concurring).
I concur in the conclusion that the cause should be reversed and remanded, and I am in agreement with the court upon the proposition that the case should be reversed because of the introduction in evidence of specific acts and difficulties elicited by the state from the defendant’s witnesses testifying to his good character as to peace and violence, and especially the testimony that developed the difficulty between the defendant and a white man which was manifestly so prejudicial to the defendant that it could not be cured by an instruction by the court to disregard the evidence after it had already been admitted .as legal evidence. I do not think that it was error for the court to permit a witness *661for the state to testify as to the appearance of the tracks found near the house of the deceased in comparison with the tracks and shoes of the defendant. This evidence has but small probative force, but in proper cases, coupled with other evidence, may be important in making out a chain of circumstances showing guilt of persons accused of crime.
I think it was reversible error for the court to permit the evidence of a comparison of a loaded shell which, contained nine buckshots and which was unloaded in the presence of the jury and used in evidence. I cannot see how this even tends to prove that the shell in the defendant’s gun was loaded with like shot, and it certainly was prejudicial because it happened to contain the. number of shot that went through the' screen of the window at the house of the deceased and into his body killing him. There are millions of shells manufactured yearly in factories, and shells manufactured by one concern usually have a general likeness in appearance and are loaded with various sizes of shots, and various numbers of shots. There may have been thousands of shells of the exact kind and appearance in the county or state, but certainly it does not tend to prove that the shell in the defendant’s gun was loaded with nine buck-shots. There is nothing in the evidence to show how. this particular shell was loaded, nor is there any testimony that all of the shells contained in the box from which the defendant was loaned one shell had nine buckshots, or how many they did have. It does not tend to prove that the shell in the gun was the identical shell borrowed more than a month before the killing from the state’s witness, and, before this would have any probative force as evidence these facts must appear.
I think the case should be reversed because the testimony is insufficient to support a verdict of guilt. Taking the testimony as a whole, it is insufficient for that purpose under well-recognized rules governing circum*662stantial evidence. The testimony in the record before us is persuasive, but not conclusive, and is therefore insufficient to measure up> to the standard of law warranting convictions upon circumstantial evidence. The rule governing circumstantial evidence is well stated in Algheri v. State, 25 Miss. 84, Morris’ State Cases, 658, in the headnotes, reading as follows:
“In the application of circumstantial evidence to the determination of a case, the utmost caution and vigilance should be used.
“It is always insufficient where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth.
“Where the evidence leaves it indifferent which of several hypotheses is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof, however ¡great the probability may be.”
The facts in the Algheri Case are incomparably stronger than the facts in the present case, yet the court held that the facts there established were insufficient to warrant a conviction. I have always thought the facts there established were very strong, and probably the court now would uphold a conviction on the identical facts shown in that case, but the rule of law there announced is the correct rule, and has been followed by this court since its announcement.
The facts in the case before us are much weaker, in my opinion, than those in several cases in which this court has held the facts to be insufficient. John v. State, 24 Miss. 569; Morris’ State Cases, 608; Caleb v. State, 39 Miss. 721; Morris’ State Cases, 1490. There were no tracks found at the house of the deceased, neither were there tracks traced from the house to the *663points where the tracks were found in the road by bloodhounds or any other means known to the law. The fact that the tracks were found in the road beyond the next house axxd had the appearance of being made by a person running is far from being sufficient to establish the fact that they were the tracks of the accused or of the person who killed the deceased. Again, the place where the horse was found to have been hitched is not connected with the tracks found in the road, nor, by any logical reasoning, connected with the person who may have fired the shot. The horse may have been hitched by another person, and for another purpose, and at another time, so far as the testimony shows. There is no logical connection between the facts so as to warrant a conclusion that they constitute connecting links in the chain of circumstances. Again, there is nothing conclusive about the fact that the horse was hitched to the tree, and nothing to show that it was the same horse whose tracks were measured in the road, and which tracks correspond to the tracks of the defendant’s horse. It further appears that there was another horse in the community which had a similar peculiarity in its hoof.
The fact that the piece of calico found on the bush in the woods where the horse was hitched corresponded in color to the piece of cloth on thn defendant’s bridle rein does not conclusively establish that they were from the same piece of cloth. It is quite likely that the bolt of cloth would be sold to many different parties; in other words, it is improbable that the defendant bought the entire bolt of calico, nor is it shown that he bought or possessed cloth of this kind in any unusual ^quantity, nor is it suggested that no other person in the community had similar cloth.
None of the facts introduced by the state connect so conclusively with other facts introduced by the state as to exclude every reasonable hypothesis, nor do all of them, taken together, exclude every reasonable hypothe*664sis of innocence. The contradictory statements of the defendant about the use of the borrowed shell has no affirmative probative value. Its only value is to discredit the defendant’s defense, but does not tend to establish the state’s contention.
The evidence shows that another person had similar shells which he used; that he lived in the community; that he had a horse which had a peculiarity similar to the peculiarity of the defendant’s horse. There is no sufficient development of the facts as applied to him to show that it was impossible for him to have committed the crime. The evidence may be insufficient to convict any person of crime, but, where it appears that there is some probability or some suspicious circumstances pointing to the guilt of more than one party, circumstantial evidence is insufficient unless the circumstances are so developed as to show affirmatively that only one hypothesis can logically be indulged by the reasoning mind.
The policy of the law is that it is better for many guilty persons to escape punishment rather than one innocent man should be punished. And it is especially important that the humble, ignorant, and poor should be protected in the courts by a strict conformity to the application of the evidence; for often they are unable because of ignorance and poverty to secure the aid of friends and the investigation of counsel needed to clear up incriminating appearances which may surround them in such cases.
I think it was error to admit evidence of a conversation which the defendant and the witness Bourn had at the county jail. It is manifest to the reasoning mind that the defendant was in jail at the time of the alleged tracking and swearing there testified about, and that the statement made to the witness Bourn was more a narration of the testimony against him on the preliminary hearing than it was of the fact; in other words, it did *665not amount to an admission of any incriminating fact, hut, taken in connection with other suspicious circumstances and the surroundings of excitement and horror at the assassination, was convincing to those who entertained suspicions of guilt. In admitting circumstances and statements not in themselves admissions of guilt, great caution should he used, and all doubt as to admissibility and competency of such testimony be resolved in favor of the defendant. Unless the state can materially strengthen its case on a new trial, I cannot believe that under calm surroundings the defendant will be convicted on the evidence in this record. Presumably the state put forth all of the evidence at its command on the first hearing. In my opinion, judgment should be entered here for the defendant.