(dissenting). — I am compelled to dissent from the majority opinion, in this case. I think it was plainly the duty of the court to have instructed the jury to-acquit the appellant when the state closed its testimony, and the appellant moved the court so to do. From the careful examination which I have given this record I am unable to find any testimony introduced by the state which would support the verdict in this case. There is certainly none pointed out by the majority opinion which rises to the dignity of testimony. It is true, as the majority say, that it was proven that the deceased person was a brother-in-law of the appellant, and that there had been some interruption of the marital relations existing between appellant’s sister, Nellie Johnson, one of the defendants in this case, and her husband ; but certainly it cannot be maintained that it is sufficient testimony to warrant the conviction of a man for murder that the brother-in-law is afterwards found to have been murdered in the neighborhood.
The opinion also states that the other defendant, Charles-Wilson, was seen with the deceased about the time when, from the appearance of the body, he was killed. I think the majority are mistaken in this conclusion. The body was not found for more than a year after the deed must have been committed, and the testimony shows that it was in such a state of decomposition that it was impossible to tell with any degree of certainty just when the death had occurred. Neither did it appear in the testimony, nor does-it stand to reason, that a body under such circumstances, could be in such a condition, being buried three or four inches below the surface of the ground, and having been mutilated by wild animals, and exposed to the changes of the seasons for that length of time, that it could be easily recognized, or recognized at all, without there were some definite marks preserved in the frame of the body. The fact is, as shown by the testimony, that the body was only identified as that of Johnson by a ring, and some other trinkets which were found in the immediate vicinity of the body, and it is not shown that the appellant here was acquainted *411with these articles of jewelry, or knew that they were possessed by his brother-in-law, Johnson, the murdered man.
To sum up the testimony then, all there is upon which to base a conviction is the fact that the murdered man was found in the neighborhood about a mile distant from the house of the appellant; that he was the brother-in-law of the appellant; and that his relations with appellant’s sister had not been harmonious. Such a state of facts, if they warranted anything at all, could only warrant the slightest and vaguest suspicion. But under our law men should not be convicted of murder on suspicion, even where the suspicion is of a strong character, much less where it is of such a flimsy character as in the present instance. It is a principle of the law, as old as the law itself, that a defendant is presumed to be innocent until he is proven guilty. The burden never was placed upon him to prove himself innocent, and if the life of the citizen can be placed in jeopardy or sacrificed upon bare suspicions like these, no person is safe, and what we have always been taught about the tender solicitude of the law for the life or liberty of its citizens becomes hollow mockery, and it would seem that the policy of the law has been changed, and that its policy now is that it is better that ninety-nine innocent persons should be punished than that one guilty one should escape.
The court in this instance certainly should not have pronounced judgment upon the testimony offered, and it was, therefore, its plain duty, it seems to me, to have granted the motion asked for by the appellant. There is no question here of weighing the testimony and of this court substituting its judgment on the weight of the testimony for the judgment of the jury, for, as I have shown, there was no testimony to weigh. Consequently there was no room for the exercise of judgment. The state had absolutely failed to make out a case. The presumption of innocence had not in the least been disturbed at the time the state rested its case, and this presumption, which is guaranteed by the law to citizens charged with crime, is no meaningless thing, and is not to be arbitrarily disregarded by juries or by *412courts, and the judgment in this case can only be sustained by reversing the presumption and making the presumption of guilt attach upon the mere charge of the commission of crime, and placing the burden upon the defendant of proving his innocence.
But, going a step farther, even if the ruling that the appellant was rightly put upon his defense was correct, then all the testimony there was in favor of the state was the testimony of the appellant himself, and it must be accepted as true. I do not think I ever read the testimony of a witness which impressed me more forcibly with the idea that every word uttered was true, than the testimony of the appellant in this case, and if it was true then the act of the killing was justified. Here was this young man in a manly attempt to protect his sister from the violence of a malicious, half-crazed and irate husband, who came there, according to the testimony, for the purpose of compelling his wife to live with him or to kill her. The appellant was striving to lead him away from their home, and to persuade him to go out of the neighborhood and let his sister alone. He had succeeded in getting him about a mile from the house when, with the desperation of a madman, Johnson declared that he would go back. The testimony shows that he was a dangerous man ; that he had before attempted his wife’s life with a revolver, and had been interrupted in the attempt. It might be possible that the appellant did not pursue the best and most reasonable course, or such a course as a man would adopt in his cool and deliberate moments, but he was acting under the excitement of the moment, and believing that he could only protect his sister and prevent a tragedy by disabling the deceased, he struck him with a club. The appellant was unarmed and the deceased was armed. He says he did not intend to kill him, and that being all the testimony there was on the subject, there being no circumstances in my judgment to prove any intention otherwise, it must be conceded that he did not intend to kill him. However, I am not at all certain that under the provocation he had he *413would uot have been justified even in attempting to inflict upon him a fatal injury.
Again, it is true it would have been the exercise of better sense to have made known to the community the result of this encounter instead of clandestinely burying the body as he did, but this probably he would have done had he had time to reflect. It is hard to tell what the ordinary person would do under the excitement of the circumstances surrounding this encounter. Whether guilty or innocent, the more frequently probably when guilty than when innocent, a panic of fear is liable to seize and control a person’s mind and for a time dethrone reason. Being a stranger in the community, and feeling that his whole action and motive might be misunderstood and that he might be convicted of a crime of which he was not guilty (and the sequel of this trial, and of the action of the court in refusing to grant the motion of dismissal, on the conclusion of the state’s evidence, shows that his apprehensions were well grounded), he made the mistake of attempting to conceal, rather than' to expose, the whole transaction, and this, taking his own testimony, is the only iota of testimony which could in any degree be tortured into testimony tending to support the verdict in this case, and, as I have before said, I do not think this sufficient. I think, therefore, that the court erred in not granting the motion to-dismiss, and in the second place, that there was no testimony in the case which ean sustain the verdict. But, conceding that the jury had a right to believe a portion of defendant’s testimony and discard the rest, there is absolutely nothing that would support a verdict for anything more than manslaughter. The judgment should, therefore, be reversed with instructions to the court to grant the order asked for by the appellant.