I concur in the result reached. In view of the facts disclosed by. the record, I believe the defendant Pearl Belland is entitled to a new trial, subscribing as I do to many of the statements contained in the majority opinion, but I cannot agree with the view expressed that the testimony of the witness Solomon Jaber is indispensable to warrant the conviction of the defendant Belland. Nor do I concur with the statement contained in the opinion that “without the testimony of Jaber, the person who fired the fatal shot would not be identified, and neither would there be present anyone to indicate the circumstances under which the shot was fired; in other words, without the testimony of Jaber there would not be evidence sufficient to take the case to the jury.”
A reading of the evidence and consideration of the facts disclosed by the record, in my view, lead to the formation of opinion that the homicide was committed by the defendant Pearl Belland. The death of Matt Ulmer by gunshot on the morning of August 14, 1920, is proved and in my opinion there is sufficient evidence, independent of the testimony of Solomon Jaber, to present a ease for submission to the jury.
The witness John J. Lynch testified that two or three days before the homicide he met the defendant Pearl Belland, in company with Harry Robinson—on the 11th or 12th of August—and had a conversation with them at Pete Ulmer’s place, in the presence of Pete Ulmer and family; that Mrs. Belland asked the witness if he had a gun and the witness said he did not have one with him but had one over home, *551and the witness did not give them permission to use it. The gun referred to was always kept by the witness on top of the kitchen cabinet. It was a 32-automatic Colts, identified by the witness as State’s Exhibit 2, and the shells were identified as State’s Exhibit 3. The witness stated that he missed the gun the day after the killing.
The witness John C. Lynch testified that he had a conversation with Pearl Belland and Harry Robinson .the night of the 12th of August, two days before the homicide, and they asked him if he had a gun and he replied that he had not, but that there was one there that belonged to the boy. They then inquired of the witness if he thought the boy would let them have it, and the witness told them the boy would not loan his gun to anybody. Witness told them the gun was on top of the kitchen cabinet. It was a 32-Colts automatic. On the night following, and just preceding the day of the homicide, August 13, the witness again met Harry Robinson and Pearl Belland, and the defendant Pearl Belland asked the 'witness if he missed anything over there, and witness replied in the affirmative. Robinson thereupon exhibited the gun to the witness and asked witness about the safety and how it worked. The witness identified State’s Exhibit No. 2 as the gun belonging to his son, and that there were six shells in the revolver when he last saw it on the cupboard.
Wilfred Ulmer, ten year old son of the deceased, testified that he was at his father’s place at the time that his father and Harry Robinson had trouble on the day of the homicide and that Harry Robinson jumped off the wagon and engaged “in a ‘mixup’ with my papa.” “I couldn’t hear what they said very plain and I went behind the house and when I looked out again, Mr. Hinze and my father were on top of Harry; they began to fight and then Mrs. Hinze jumped off the wagon and I don’t know what she did; then she shot; then Hinze he ran into the house and I didn’t see him after a while, but I seen him run into the house and when I looked out again, I seen my father lying dead; nobody shot besides *552Mrs. Hinze or Mrs. Pearl Belland; I don’t know how far she was from my papa, when she shot at him; Harry Robinson and Mrs. Hinze they both jumped into the wagon and they began to run; the horses began to run; Harry was sitting on the box; I couldn’t see Mrs. Hinze; I didn’t see Mrs. Hinze shoot at all, but I heard'the noise of it; I did not see her have the gun in her hand; I did not see her point» something towards my papa; I could tell she shot my papa, because I heard the noise; * * * when Mrs. Belland or Mrs. Hinze and Mr. Robinson left, I went to my papa; he was dead.”
Gustav Hinze testified that the defendant Mrs. Belland was his former wife and that on the 14th of August, the day of the homicide, at about 10 o’clock in the morning, he was at the Matt Ulmer place, and that he saw the defendant Pearl Belland and Harry Robinson there at that time, and that from the south window of the house he observed the deceased and Harry Robinson lying on the ground in some kind of a struggle, Ulmer, the deceased, being partly on top. The witness ran out with a beer bottle and hit Harry Robinson over the head with it, and in the meantime heard a shot fired and then a second shot which came close to the witness. He did not know where the first shot was fired, though stated that Pearl Belland fired it. The witness did not have any gun when he went out the first time, nor did Matt Ulmer. When the first and second shots were fired, the witness was down on his knees by Harry Robinson and Matt Ulmer and at that time had struck Robinson with the bottle. As the witness got up, the defendant Pearl Belland. was standing right behind him, about eight feet away from the witness, when the accused, Pearl Belland, fired the last shot. Further, he testified: “I think she was about six foot from Matt Ulmer’s shoulder when she pointed the gun at Matt; I heard three shots fired altogether; the third one took effect; 1 didn’t hear that shot; I must have been in the house; all I heard was two shots; Harry Robinson and Matt Ulmer were still *553struggling when I went in; I went into the house and got the shotgun and came out with the shotgun and when I got out Pearl Belland was standing behind the. wagon and I didn’t look at Harry Robinson. I kept my eye on Pearl Belland; Matt Ulmer at that time was laying down on the ground; he had been shot; I could see on the clothes, where the bullet entered; up in the back; that shot took place while I was in the house; * * * Harry Robinson got into the wagon in about a minute or two; when I came out with the gun, it was'empty, but I didn’t know it at that time; so I opened the gun and looked at it, and there was no shell in it; it was a breech-loader, a shotgun; I goes back into the house where the cupboard was and put a shell into the shotgun and I seen that Harry Robinson was standing at the front wheel of the wagon; and I reached over and got a handful and then I ran out of the house and run north and watched the two, and the first thing I knew, Harry Robinson was hitting the horses and they was running the horses down the road; Mrs. Belland was laying in the wagon-box; # * * I didn’t go toward them; I didn’t see the .shot fired that killed Matt Ulmer; there was no other gun on the Matt Ulmer place except the shotgun; I did not shoot the shotgun off at all; I struck Harry Robinson with the bottle once; when I struck him with the bottle, Matt Ulmer was on top; neither of them was doing anything; as near as I can see, Plarry Robinson had Matt Ulmer by the throat; they had each other by the throat; that is about as much as they were doing; there was not exactly any bad feeling between myself and my wife at that time; I told Harry Robinson last winter to keep off the place; there was some bad feeling, between Harry Robinson and myself.”
And on cross-examination, witness testified in part as follows :
“When I went in- the house, Harry Robinson and Matt Ulmer were still fighting and Ulmer was on top of him; when I went the first time to get the shotgun, Matt Ulmer wasn’t dead; after that I don’t know what happened—between Harry *554Robinson, Matt Ulmer and Pearl Belland; when I went to the house, I saw her pointing the .gun at Matt Ulmer; I didn’t hear any shots fired then; all I saw was her point the gun at him; he was still alive at that time; from then on, I don’t know what happened between Matt Ulmer, Harry Robinson and Pearl Belland and I heard no more shots after that.”
And from the testimony of Dr. J. S. Almas, it appears that he performed the post-mortem on the body of the deceased, found a bullet wound therein, and extracted the bullet from it. He testified,:
“The wound of entrance was on what is known as the spine; the right scapula, a little below the center of the spine; the bullet wound was on top of the spine and went diagonally downward and a little forward to the left, the wound appearing about two inches to the left of the left nipple and about an inch above the left nipple; there was another wound in the arm, that ran slightly downward; the bullet laid about two inches below the skin of the arm; the bullet went through the body at the sixth dorsal vertebrae; it must have cut the • cord; this bullet wound was the immediate cause of death; a person would ordinarily live only a few minutes 'after receiving such a wound; in every other respect, his body seemed to be that of a healthy person.”
Witness Charles A. Sartain was. at the Matt Ulmer place immediately after the homicide and picked up some of the empty shells lying on the ground near the body, which were identified and introduced in evidence. He said:
“There was some evidence of a scuffle on the ground between the house and where the body lay; the hats were laying about a rod from the body, towards the house; you could see that the ground was kind of torn up all right where the people were scuffling; there was evidence of a scuffle there; they were lying pretty close together;'there was no evidence of scuffling further north where the hats lay; I picked up the shells right by the body; one of them was found about the middle of Matt’s body lying right by the side of him, not a *555foot away, and almost under Mm, and the other one was about a foot and a half or two feet away qn the east side of the body, I think, after the doctor came and turned him over; one shell was right under him; some one picked it up when the doctor turned the body over.”
Mrs. Pete Ulmer testified that on August 14, the day of the homicide, Mrs. Pearl Belland and Harry Robinson were at her house, and that the witness was at the time keeping a child for the defendant Pearl Belland; that Robinson and Pearl Belland came to the house of the witness about 11 o’clock of the forenoon, about the 12th of August, and that they remained there on the nights of the 12th and 13th of August, and that on the morning of the 14th they hitched up and left, starting north, and then came back between 10 and 11 o’clock of that day. Witness testified: “They told me they were going to get water and were intending to bring coal along, and said that Matt Ulmer held them up on the way and how the fight started; Mrs. Belland said that they were shooting but she didn’t know what happened; later Sam Jaber came along and said Matt was dead; later my husband came home and she asked Mm if he was dead and he said ‘Yes’; she didn’t say nothing but she laid right down on the bed and cried bitterly; she didn’t want to kill him; she said she was shooting, but she didn’t say who she shot; she didn’t say who she intended to shoot; she told me that she shot at Matt Ulmer, but she didn’t know if he was dead or not; she told me that she did not intend to harm anybody.”
And Peter Ulmer testified that about 11:30 on the day of the shooting Mrs. Belland and Harry Robinson were at his place upon his return from his brother’s (Matt Ulmer) place after the shooting, and the witness testified:
“Mrs. Belland asked me if my brother was dead; I said ‘Yes,’ and then she fell backward on the bed; she said it was an accident; she didn’t try to kill him; she said afterward she didn’t intend to kill Matt; she admitted that she shot him; *556she did not say who she intended to kill; she said she shot twice at Hinze but she missed him.”
Eliminating the testimony of Solomon Jaber entirely from consideration, as I have in this review of the state’s case, we have not the direct testimony of any eye-witnesses to the firing of the fatal shot, although we have the admissions made by the defendant Pearl Belland immediately after the shooting and the circumstances in connection with her possession of the pistol and discharging of at least two shots therefrom at the time of the struggle between the deceased and Harry Robinson, all of which I believe sufficient to warrant a case for the jury. All evidence is more or less circumstantial, whether consisting of facts which permit the inference of guilt, or given by eye-witnesses to the occurrence. It is generally understood and appreciated that even as to the testimony of eye-witnesses, the same is more or less circumstantial as to observations of persons, impressions and narrations of events; that it will differ even though all are in position to have the same perspective. There is a difference between evidence consisting of facts of a particular nature, and, hence, giving rise to presumptions, and evidence which is direct, consisting in the positive testimony of eye-witnesses; and the difference is material according to the degree of exactness and relevancy and the weight of the circumstances and credibility of the witnesses.
But, the circumstantial evidence admitted, coupled with the ■admissions made by the defendant Pearl Belland, in my view of this case, do not warrant a conclusion that the testimony of the witness Solomon Jaber is indispensable.