I respectfully dissent in this case, because I think- the circumstances shown by the evidence are fully as consistent with the theory of accidental shooting as with the theory of suicide, and, if such be the case, the law is well settled that the legal presumption is against suicide, and must prevail. With all deference to the opinion of the court, I must be allowed to say that there are important facts in the case which are not stated in that opinion. Some of these facts I will briefly state. In the first place, there was substantially no evidence of a previous suicidal intent. The deceased had never made a threat of suicide, so far as the evidence shows, nor does it appear that there was any substantial cause for unhappiness or despondency on his part. It is true that one witness testified that at some time in 1894, before the marriage of the deceased, he asked the witness if she thought life was worth living, and that he then appeared despondent; while another witness says that he seemed despondent in December just before the shooting, but the remoteness of the first-named incident, in point of time, as well as the utter absence of any other testimony indicating any thought of suicide, deprive it of any substantial weight, especially in view of the fact that there is considerable evidence given by his familiar friends to the effect that he had no financial troubles, and that he was always good natUred and happy, even up to the very day of the shooting. Certainly it cannot be said that suicidal intent or any reasonable cause for suicide appeared in the evidence. While not by any means controlling, absence of motive or previous suicidal intent is always an important consideration.
*228Again, the condition of the pistol with which the shot was fired is not adverted to in the opinion of the court. The pistol was brought into court, and was sent up with the record. It was a cheap self-cocking revolver called the American bull dog. By reason of some defect in its mechanism, the cylinder would easily turn in either direction while the hammer was down, so that the hammer would rest upon a loaded cartridge. When so turned, it seems unquestionable that, if the hammer was struck, the pistol would be discharged. The hammer was a projecting one, and, if the pistol fell, the chances of the hammer striking and exploding the cartridge upon which it might be resting seem to me very great. Now, it appears by the testimony of Mrs. Burgraff, who lived below, that just before the shot she heard “ a quick racket, as if some one had run against something like a chair,” and the witnesses who first came into the room after the shot all testify that there was a chair close to the deceased, partly overturned. These two pieces of testimony seem to fairly demonstrate that some accident happened with the chair before the shot. Did the deceased stumble over it or against it? We do not know. But certainly the theory that he did so would have strong evidence in its support. ■ N ow, if he did so while taking the revolver from his pocket to put in the commode before going to bed (as the evidence showed his custom was), does it not appear entirely possible and probable that it might have fallen and struck the hammer upon some part of the chair, and so discharged it?
Another fact comes in here. The evidence shows, without substantial contradiction, that the revolver was not held close to the head, but at least a foot from it. This is in part shown by the evidence of the physicians who performed an autopsy and removed the brain. They agree that there were no marks of powder or discoloration from burning in the brain, and they also agree that, if the pistol was pressed *229close against the skull, there must be such marks. The expert witness called by the defendant does not dispute this proposition. The fact is undisputed that there were no powder marks or burns on the face. The remaining cartridges were afterwards fired from the pistol, and it was found that, at a distance of a foot or fourteen inches, tissue paper and cotton batting would be powder burned. The conclusion is inevitable that the .pistol, when it exploded, was more than one foot from the face. Now, it is believed that, in case of deliberate suicide, the unhappy actor is far more likely to press the pistol against a vital part, in order to make sure work, than to- hold it awkwardly at a distance. But in this case the pistol was undoubtedly at a distance; and can it be said that it is more likely that it was held by the deceased at a distance, and deliberately fired, than that the deceased, by some mischance, fell over the chair, dropped the revolver, and that the hammer struck, and exploded it accidentally ? The fact that the bullet entered the head at right angles throws little light upon the question. It is a circumstance, of course, to be considered by the jury, but not controlling. It is not demonstrated by the evidence that the man was standing when the ball was fired. He may have been partly down, or falling, and no one is wise enough to be able to say that his head could not have been in the proper position to receive the shot in the way in which it was received, if it were accidentally fired. Again all the testimony of Mrs. Griffin as to what took place in their rooms that evening before the shot was fired, which tends to rebut the theory of suicide, is rejected as false.' I shall not go over it in detail, but simply say that, to my mind, it is entirely credible, and is not so completely overcome by the other evidence, or the inferences to be drawn from such other evidence, that the court can say that it must be rejected as incredible.
*230I have thus briefly referred to the principal additional facts which seem to me to make this case a proper case for the jury, within a line of cases numerous and well established, some of which I cite. Home B. Asso. v. Sargent, 142 U. S. 691; Stephenson v. Bankers' L. Asso. (Iowa), 19 N. W. Rep. 460; Travelers' Ins. Co. v. Nitterhouse, 11 Ind. App. 155. Under the reasoning of these authorities, some of which are more extreme in their facts than the present case, I cannot agree that the unquestioned presumption of accidental death was so negatived by the evidence in this case as to justify the court in taking the case from the jury. I have nothing to take back from what was said in the Rens Case, 100 Wis. 266. There is, in my judgment, no substantial similarity between the two cases, except that the death was the result of a pistol wound in each case. Not only was the suicidal intent proved to a demonstration in that case, but the deceased made an unsuccessful attempt to cut his throat the night preceding his death. He purchased the revolver and ammunition on the day of his death; and took them to his rooms, with the avowed purpose of suicide, and resisted attempts to take the weapon away, then went into a room alone, and shortly afterward the fatal shot was heard. The conclusion that the case was one of suicide was inevitable.
It is said in the opinion of the court in the present case that, if there is room for a reasonable inference under the evidence inconsistent with the theory of suicide, the case was one for the jury. This is but another way of expressing the principle that, if reasonable minds viewing the evidence may differ in their conclusions therefrom, the question should be submitted to the jury. Two members of this court, as well as the trial judge and the jury, who saw and heard the witnesses, have reached a different conclusion as to the inferences fairly deducible from the evidence from that reached by a majority of this court. Is it not an extreme statement *231to say, as is said in the opinion, that “ different minds cannot reasonably come to different conclusions from the evidence ? ”
Dodge, J. I concur in the views expressed by Mr. Justice JYiNslow.A motion for a rehearing was denied January 9, 1900.