After a more careful review of this record in connection with the motion for rehearing I am fully persuaded that the affirmance is wrong. The affirmance seems to be predicated upon a resort to"technicalities" by my brethren to get away from the force and effect of the bills of exceptions reserved by appellant. In other words, because the bills of exceptions are not in harmony with the strictest rule of technicalities, therefore the bills of exceptions must be excluded. The fundamental rule with reference to bills of exceptions seems to be well settled and understood, that is, that the bills of exceptions taken to the ruling of the court must be sufficient to bring before this court on appeal the questions to be revised and sufficiently so to make it intelligible and to manifest to this court the error. This court has not undertaken, as I understand the rule, to specify just the exact language or formula for a bill of exceptions or what it shall contain further than that it must recite sufficiently the matter of which complaint is made and the reasons why the complaint is made so that this court may readily comprehend the question at issue. The decisions might be scanned, criticised, reviewed and explored and here and there find some that are more technical in construction than others, but through them all runs the general proposition that if the bill makes sufficiently plain the matter sought to be reviewed so that this court can, without recourse to other parts of the record, intelligently understand the question, then the bills of exceptions are sufficient. This rule, as I understand, finds its strength and support in the further proposition that on the appeal the rulings of the trial court are supposed to be correct and the party assailing those rulings must manifest to this court in some appropriate way the supposed error and, at least, place *Page 271 it before this court in such manner that this court will understand the precise question about which the complaint is made. It will be observed in this case that the rulings of the majority is extremely "technical" in construing the bills of exceptions adversely to the accused.
Bill of exceptions No. 8 recites that after the witness Sam Craig had testified to different searches made, appellant moved the court to strike out the testimony of Mr. Craig in reference to finding the vest in the trunk the morning after defendant was arrested; also in reference to finding an undershirt and jumper at a second search of that trunk, after a first search had already been made and the articles were not in the trunk; also with reference to a third search when they found a truss after a first and second search had already been made, the defendant then being in jail in a different county during the time each and every one of these searches were being made, and, therefore, could not be responsible for the action of anyone else in going to and putting articles in the trunk in his absence; and if it was done it would lay a predicate for the purpose of manufacturing testimony against any man charged with a crime, and especially so when the defendant was in jail. Appellant excepted because the court would not withdraw all of this testimony from the jury.
Another bill recites that after the witness Adolph Krueger had testified in regard to the different searches made, the defendant, by counsel, moved the court to strike out his testimony and to strike out the testimony of Mr. Koch with reference to finding the vest at the first search the next morning after defendant was arrested and in jail in a different county; and further, to strike out the testimony in reference to finding a truss in the same trunk in which he found the vest some ten days or two weeks after defendant was arrested and in jail in another county, for the reason that defendant could not be responsible for the action of anybody else in going to and putting articles in the trunk in his absence, he being in jail at the time the searches were made. I think these bills sufficiently show that these articles were placed in the trunk after the defendant was arrested and carried away to another county and placed in jail and in his absence and after the testimony was all in the second bill asked the court to exclude the testimony of all these witnesses with reference to those subsequent searches that ranged from two or three days to ten days or two weeks after the first search and while the defendant was in jail. These bills are sufficient, though not fully in accord with strictest rules of technicalities. They fully manifest the error.
Again, the evidence, in my opinion, is not sufficient to support this conviction. There is the very slightest possible evidence of appellant having anything to do with this transaction if the searches and manufactured evidence above mentioned are eliminated. The evidence shows that the homicide occurred at night and the house was burned, thus destroying almost entirely the bodies of the two *Page 272 deceased persons. By circumstances the State was enabled to show that the deceased parties may have been murdered, or at least killed. The next morning there was a trunk investigated, supposed to be appellant's. One article was found that was supposed to have had blood on it. This was all the evidence they could find in the trunk. This occurred in Washington County. Appellant was arrested and carried to Lee County and placed in jail. While he was in jail the sheriff returned from Lee County and he and others went to a house where defendant lived and into the same trunk and found articles that some of the witnesses testified belonged to one of the deceased parties. This was criminative evidence against defendant if he had even been shown to have had any connection with the articles. That he placed them in the trunk can not be claimed; they were not in the trunk when he was arrested and he was carried away. Somebody else placed those things in the trunk after appellant's arrest. The State, of course, did not undertake to connect appellant with the fact that they were placed there; in fact, the evidence excluded any idea that he was connected with these articles. Here then we have coming from the State clear and unequivocal manufactured testimony of cogent character against the accused, manufactured by somebody and used by the State for the purpose of connecting this appellant with that homicide. This was not only inadmissible, as I think is sufficiently shown by the bill of exceptions properly reserved, but it is testimony upon which a conviction can not be predicated, although introduced. Manufactured testimony against an accused, where the facts show it to be manufactured, is not criminative against an accused person when it is beyond his power to have had anything to do with it. This testimony was, under this record, made up from some source against the appellant. Who placed these articles in the trunk may not have been shown, but it is definitely shown that appellant did not, and here the State is permitted to take advantage of its own wrong by the use of manufactured testimony to convict a man of murder and testimony with which he had no connection and with which the State positively showed that he did not. I do not care to amplify this matter. I do not believe it to be the law now or heretofore, or ought to be the law, that a man can be convicted on the manufactured testimony, incriminative of the accused, when it comes from his enemies, or the adverse party and when it is shown that it was impossible for him to have been connected with it. To sustain a conviction upon this character of testimony would authorize the conviction of any man, however innocent he may be, by reason of the fact that his enemies may have manufactured testimony against him. I, therefore, respectfully dissent. *Page 273