#### STATE v. CARL COFFEY.

(Filed 5 November, 1947.)

1. Criminal Law § 52a—

Where the State relies upon circumstantial evidence, the facts or circumstances adduced must be of such a nature and so connected or related as to point unerringly to defendant’s guilt and exclude any other reasonable hypothesis.

2. Same—

Circumstantial evidence which tends only to show an opportunity to commit the crime charged is insufficient to be submitted to the jury.

S. Same—

The introduction of testimony by the State of statements made by defendant does not preclude the State from showing that the facts are otherwise, but where the State offers no evidence tending to contradict the statements, the State presents such statements as worthy of belief.

4. Homicide § 25 — Circumstantial evidence held insufficient to show that defendant was the perpetrator of the homicide.

The State’s evidence tended to show that deceased died of head wounds inflicted by a blunt instrument during the night while he was guarding a wagon load of whiskey. The only evidence that defendant was at the scene of the crime was testimony of a statement made by him to the effect that others were at the scene and that “they” shot not only defendant but .also deceased. Testimony of other witnesses for the State tended to show the presence of others at the scene shortly before the homicide. The evidence disclosed that defendant had been shot in the leg and that he had blood on his trouser leg and on his sleeve. There was no evidence of record that there were no gunshot wounds on the body of deceased. De-. fendant made contradictory statements as to the manner and circumstances under which he was shot, his meeting with deceased and his activities during the time in question. There was evidence that a quantity *120of tlie whiskey was missing the morning after the homicide. Sel(L: The statement of defendant nncontradicted by other evidence for the State, placing him at the scene of the crime also tended to exculpate him, and taking all the evidence to be true it does not exclude a reasonable hypothesis of defendant’s innocence, and therefore defendant’s motion to nonsuit is allowed in the Supreme Court upon appeal from conviction of murder in the second degree. G-. S., 15-173.

5. Criminal Haw § 52a—

While evidence of motive is not necessary to sustain conviction, motive or the absence of motive is a circumstance to be considered.

Sea well, J., dissents.

Appeal by defendant from Olive, Special Judge, at May Term, 1947, of Caldwell.

Criminal prosecution upon indictment charging that defendant, late of Caldwell County, on 22 April, 1947, with force and arms, at and in the said county, feloniously, willfully, and of bis malice aforethought, and with premeditation, did kill and murder one Thomas J. Oliver, contrary to the form and the statute in such case made and provided, and against the peace and dignity of the State.

Defendant entered plea of not guilty.

Upon the calling of the case for trial, the Solicitor for the State announced in open court that he would not ask for a verdict against the defendant of guilty of murder in the first degree, but would ask for a verdict of guilty of murder in the second degree, or manslaughter, as the facts and law may warrant.

The evidence offered upon the trial by the State, as set out in the record on this appeal, tends to show this narrative of events and circumstances at and about the date of, and in .connection with the alleged homicide of Thomas J. Oliver, with which defendant Carl Coffey is charged:

Thomas J. Oliver, called Tom Oliver, resided with his wife, a son, Tom, Jr., and two daughters, Ruth, an adult, and Mareeline, of teen age, in a house located on the county line between Burke and Caldwell Counties, North Carolina, about 300 to 400 yards to the left of the highway from Lenoir to Morganton, in a community thickly populated on both sides of the highway in directions of both Lenoir and Morganton. The highway was much used, and traveled day and night by trucks and other vehicles. A private road ran from the highway at the county line to the Oliver house. There was also an old road from the highway which ran in the direction of the Oliver house, and around the field. Between the house and the highway there was a patch of woods, — a Y-shaped piece of woodland. This house was about one-half mile from the house *121in wbicb defendant resided, and about the same distance from the home of Eldridge Cannon. Defendant’s home was about one-fourth mile from the Cannon home, and on the same old road that it is. Defendant had been buying milk from the Olivers, and would come to the Oliver house to pay for it.

On Monday night, 21 April, this year, Tom Oliver, with the assistance of his son Tom, Jr., transferred from his crib to a wagon “between 20 and 25” pasteboard cartons of whiskey, and “moved wagon and all” down below the house, next to the steep bank, out in the edge of the woods, near the old road, and left the whiskey on the wagon. Tom, Jr., testified: “Dad and I stayed with it Monday night . . . April 21st, the night before he was killed.” Tom Oliver had his gun that night. Tom, Jr., left home to go to his work at factory in Lenoir about 6 o’clock, and was not at home on the afternoon of April 22nd, — but “went home about 11:20.”

Tom Oliver was at his home, says his daughter Euth, until 2 o’clock that day when he picked up the ax and went down in the woods. About that hour his wife, who was at home, saw him and defendant coming down through the woods. She says, “They walked to the wagon and stopped and were talking.” They were “up there” about 4 o’clock when the younger daughter came home from school. Later, between 6 and 6 :30 o’clock, the two daughters went out there in the woods to get the ax and to call their father to supper. At that time he and defendant were sitting on a log out in the woods, talking. The older daughter testified: “I saw somebody talking with him above the wagon, but I didn’t recognize the person. It was just a short distance above. It was more than one person. There was just one person with Father, a man.” She also testified that she knows defendant, and that she saw a person around the house that day, but was not close enough to recognize who it was. When the daughters called him to come to supper, Tom Oliver said “OK.” The younger daughter saw the Oliver shotgun out .there under the wagon — “but the older one did not see it.” Both of them saw cartons of whiskey out there. They got the ax off the wagon, and went back to their house. The younger daughter also testified: “Daddy looked like he was drinking some, and Oarl Coffey, too”; and that as she was going toward the house, quoting her, “I heard Daddy crying and I heard Oarl Coffey laughing, — it sounded like. Daddy was crying. I do not know whether Oarl Coffey was laughing or what ... I was out in the front yard and I could see them.” Tom Oliver was “drinking some” when he came to supper, about 6 :30 o’clock, — about “dusky dark,” in the language of his wife. He stayed 20 minutes to half an hour and “went back out there . . . about 7:30 o’clock.” That was the last time his wife and daughters saw him, they testified.

*122The next morning, Wednesday, about 5 :30 o’clock, Tom Oliver, Jr., found bis father below tbe wagon. He was in a dying condition, lying there with “his head beat up,” and “kind of down hill,” “bleeding and not conscious.” Blood had run down on his face and off and puddled on the ground, — about two feet long and one foot wide, and had congealed,— “clotted and kind of dried around the edges.” His body was stiff. He died in the' course of an hour or so, without regaining consciousness. There were four lacerations on his skull, (1) outside and above the left eye, (2) just above and behind the left ear, (3) along the crest of the ■left upper head, and (4) on top of the head, behind. His skull and lower jaw were fractured. In the opinion of medical expert these wounds were inflicted by some “blunt typed instrument,” and the fracture of the skull caused his death. “His head had been cleaned up when I saw him,” the doctor testified. The body was then at a funeral home.

At the time Tom Oliver was found on Wednesday morning the wagon was in the place it had been left Monday. His shotgun had been broken in two. The stock of it was on the ground about one and a half to two feet from his head, and the barrel, with trigger attached, was up in the leaves about four feet from the body, according to his son, Tom, Jr., and was down the hill below the wagon, on the old road about fifty feet from the body, according to Hallyburton, a neighbor, and the officers. There was an empty shell in the barrel. When Officer Duckworth picked it up with his handkerchief on the trigger, “it looked like blood on the barrel,” he says. Duckworth also testified: “I took the gun barrel and stock with me. I put it in my car and carried it to Morganton,” and he later turned it over to Officer Goble of Caldwell County, who says that then sticking to the gun hammer there was some “lint identical to the lint that was on Mr. Oliver’s light felt hat. The hat . . . had blood ... on the side that was lying in the edge of the puddle of blood.” . (Both the stock and the gun barrel were offered in evidence). At the point where Tom Oliver was lying there was no evidence of scuffling, but down where the gun barrel was found, fifty feet away, “the leaves and stuff had been torn up like a scuffle had taken place.” At the time and place there were cartons of whiskey of the same kind as those on the wagon Monday night. Some were stacked up on the wagon, or beside it, or above it, and covered up with “old quilts and things,” and some were scattered around up in the woods. About eight cases were broken open, and scattered and uncovered in the woods. Some of it had fallen out in the leaves. The witness Hallyburton says it looked like there were 18 to 20 cases. The officers took possession of the whiskey — but “didn’t count the cases.”

Defendant, according to testimony of Eldridge Cannon and his wife, came to the Cannon home “that night, April 22nd, between 8 :30 and 9 o’clock.” His wife came ten or fifteen minutes before he did. He came *123to' the window and called Cannon -“to come out there.” He said he was shot and wanted Cannon to take him to a doctor. “He seemed to be pretty drunk. He stumbled in the door and fell on the floor.” He had a double-barrel shotgun, and set it down in the corner and stated that there were not any shells in it, — saying, “My wife hid the shells.” His left pants’ leg was bloody. Cannon asked him to pull up his pants’ leg to see how bad he was shot, and he did so. “Blood was on his leg half way between his ankle and knee . . . and a hole about like a small shot or probably like a nail would make.” He wanted Cannon “to go and get the doctor and get some liquor.” “He said there was some liquor near the county line, and he wanted to get the Law and wanted the Law to clean up that liquor business. He said he went down to Mr. Oliver’s . . . that he met up with Mr. Oliver at the mail box, and that Mr. Oliver wanted him to come out and talk to him, said he was guarding some liquor, and he said he went out there and talked to him a while, and that when he started to leave, somebody shot him . . . that after he walked about 30 steps from the wagon somebody shot him,” — saying “he didn’t know who shot him.” His wife asked him if it was Mr. Oliver who shot him, and he said no, he didn’t think so. Upon Cannon declining to go and “get the Law,” defendant said he would see if he could get somebody else, and got up and went out, but did not take his gun. After about five minutes he came back, and again wanted Cannon to take him to the doctor, — and to get the Law. After Cannon examined his leg, he fell down on the floor. He said he had lost a lot of blood and was weak, — but he got up, and sat in a chair. Mrs. Cannon gave him some coffee, and after drinking several cups, he appeared to be more sober than before. “He got to talking,” according to testimony of Cannon, “and said the same thing over and over until just before he left . . . said there were 30 cases of whiskey down there at first, and then later said there were 40, and about 11 o’clock, just before he left, he told us that Mr. Oliver was shot down there. He said, ‘You don’t believe it. You don’t believe that, do you ?’ My wife said he probably was, that it could be so, and he said, ‘Well, he is. They shot him. I stepped over his body,’ and he said, ‘Mr. Oliver called to me and said “I am shot. I am dying,” ’ and he said, ‘You don’t believe that, do you?’ ... ‘If you don’t believe it, I will take you down there and show you; do you want to go ?’ I told him no, that I didn’t want to get mixed up in it. He did not tell me who ‘they’ were, he just said ‘they.’ He cursed . . . said ‘Those G-d-• s.o.b.’s shot me.’ He said he did not know who shot Mr. Oliver . . . He only told me who- Mr. Oliver told him the liquor belonged to. He told me that just before he left the second time. He was cursing pretty big ... It was about two hours from the time he came there when he told me that Mr. Oliver had been shot. He did not say a word about Mr. Oliver molesting *124anybody . . . He said Mr. Oliver was dead . . . After be left I went to my Dad’s . . . Carl Coffey never did say be bad any difficulty or altercation witb Oliver. He seemed to be drinking pretty heavy. Tbe place be showed me on bis leg, blood bad been flowing from it but not flowing at tbe time. Carl Coffey bad some scratches on bis forebead and one side of bis nose. I do not remember that be said bow they got there.”

Mrs. Eldridge Cannon gave similar testimony. She also stated that defendant said “Mr. Oliver was watching some whiskey”; that after defendant left their home tbe second time, be came back in probably ten minutes and got bis gun, which be bad left, and asked her for bis bat . . . “He only mentioned Clark’s name other than Oliver’s. He said it was Clark’s liquor.”

When officers arrested defendant about 8 o’clock on tbe morning tbe body of Tom Oliver was found, be told them that be bad some liquor covered up over in tbe woods and when be went to get it “some s.o.b. shot him, but that be did not know who it was . . . All be said was some s.o.b. shot him.” Later, upon being asked to tell everything that occurred from tbe time be ate dinner tbe day before, until tbe time tbe officers came to bis bouse, defendant said that in tbe middle of tbe afternoon of Tuesday, April 22nd, be left borne and went to bis mail box across tbe road; that be carried bis small ax and was going to chop a few sticks of wood or brush or something; that seeing some cases of something stacked up out in tbe woods, be stepped out there about 15 or 20 steps, where be could read tbe words “Schenley Whiskey”; that be was looking at that, and about that time somebody fired a gun and shot him in tbe leg and almost knocked him down and scared him; that tbe shot came down through tbe woods towards Oliver’s home, or tbe other way; that be went home and bis wife was not there, and be went up to Mr. Cannon’s and told him that someone bad shot him and wanted him to get tbe doctor and to get tbe Law — that if be would take him be would tell tbe officers and get them to come out there for tbe whiskey; but that Cannon did not take him; and be and bis wife went up and spent tbe night at home. Later defendant told tbe same officer that be bad been working on bis road, and two men came along and stopped and talked to him, and be worked until late, about 6 o’clock; that Oliver bad been working some for him, plowing or something, a few days before, and be bad not paid him, and be thought be would go out and pay Oliver, and went to tbe mail box and walked on out towards Oliver’s bouse, and when be got to tbe edge of tbe field, be saw Oliver’s wagon out to tbe left, and did not see anybody out there but saw tbe whiskey or something out there and started that way and somebody shot him; that be did not see Oliver in tbe woods on Tuesday the 22nd,- — did not see anybody; that it bad been two or three days since be bad seen Oliver, — said this a number *125of times; and that he went home and he and his wife spent the night at home.

When arrested the officers testified: “Carl was drinking; he appeared to be under the influence of whiskey, and in a very nervous condition,” and “had the odor of whiskey on his breath,” — though he said he had not drunk any whiskey in about four months. The officers also testified that when asked how he got the skinned place on his head and face, defendant said “he didn’t know,” and said, “I have been shot too,” and showed a place on his leg that looked like it had been made by a No. 6 shot; and that later, defendant said that he fell down, or ran into a tree when somebody shot him.

The officers also testified that defendant had some blood on his pants where he was shot, down on that leg, half way between his ankle and his knee, some also on the right leg, “about even with the leg up in front,” and a spot on the right sleeve between elbow and shoulder of the leather jacket he said he was wearing the day or night before.

One of the officers testified that later he searched the woods and all around for signs of shotgun shot in the timber, but did not find any.

Also there was evidence tending to show that Tom Oliver was about 50 or 60 years of age, and would weigh about 150 to 170 pounds, and that defendant was 42 years of age, about six feet tall and would weigh 200 or maybe 210 pounds.

The State also offered,- as a witness, a special agent of the State Bureau of Investigation, who testified, that he “had a talk with Carl Coffey in the Sheriff’s office last Friday.” What Coffey said is not shown.

At the close of State’s evidence, defendant reserved exception to the denial of his motion for judgment as of nonsuit. And thereupon defendant rested his case, and renewed motion for judgment as of nonsuit — to the denial of which he excepts.

Yerdict: “Guilty of murder, second degree.”

Judgment: Confinement in the State Prison at Ealeigh for a term of not less than twenty (20) years nor more than twenty-five (25) years.

Defendant appeals therefrom to the Supreme Court and assigns error.

Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.

Max Wilson and Mull Patton for defendant, appellant.

WiNBORNE, J.

Here the defendant stresses for error, in the main, and properly so, the refusal of the court below to grant his motion for judgment of nonsuit. G. S., 15-173.

*126A careful consideration of the evidence in the record of case on appeal, narrated above, taken in the light most favorable to the State, leads to the conclusion as a matter of law that the, evidence is insufficient to support a verdict of guilty on the charge against defendant as set out in the bill of indictment. There is no direct evidence to connect defendant with the commission of the crime. The evidence offered is circumstantial, conjectural and speculative. All that is shown may be true, and defendant be innocent of the crime. Hence, the motions of defendant for judgment of nonsuit should have been sustained.

In passing upon the legal sufficiency of the evidence, it must be borne in mind that when the State relies upon circumstantial evidence for a conviction of a felony, as in this case, “the rule is that the facts established or advanced on the hearing must be of such a nature and so connected or related as to point unerringly to the defendant’s guilt and exclude any other reasonable hypothesis,” Stacy, C. J., in S. v. Harvey, ante, 62, citing S. v. Stiwinter, 211 N. C., 278, 189 S. E., 868; S. v. Matthews, 66 N. C., 106. The evidence in its entirety tends to show no more than that defendant had the opportunity to commit the crime. And evidence of opportunity standing alone will not justify a finding that the act was done by the defendant. It is only a circumstance to be considered along with other evidence in the case. Stansbury on The North Carolina law of Evidence, Sec. 84, p. 157. S. v. Woodell, 211 N. C., 635, 191 S. E., 334. See also S. v. Jones, 215 N. C., 660, 2 S. E. (2d), 867.

The statement of defendant made to witness Cannon, and offered in evidence by the State, tends to put him at the scene of the crime, but it does more, it teiids to exculpate him. 'While the State, by offering in evidence a statement of defendant in a criminal action, is not precluded from showing that the facts were different, no such evidence tending to identify the defendant as the culprit was offered in the present case, and in this respect the State’s case is made to rest entirely on the statement of the defendant, which the State presented as worthy of belief. S. v. Todd, 222 N. C., 346, 23 S. E. (2d), 47; see also S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; S. v. Cohoon, 206 N. C., 388, 174 S. E., 91; S. v. Baker, 222 N. C., 428, 23 S. E. (2d), 340; S. v. Boyd, 223 N. C., 79, 25 S. E. (2d), 456; S. v. Watts, 224 N. C., 771, 32 S. E. (2d), 348.

The statement made by defendant to Cannon, considered as worthy of belief, tends to show that others were there, and that “they” shot not only defendant, but that they shot deceased. The evidence is clear that defendant was shot, and the record is devoid of evidence that there were no gunshot wounds on the body of deceased. The evidence of the doctor is confined to wounds on the head of deceased sufficient in his opinion to cause death. Moreover, there is other evidence from which it appears, or *127may be inferred that others were at the scene during the twenty-four hours preceding the finding of Oliver mortally wounded. According to his adult daughter, there was a person around the house that day, but not close enough to be recognized by her. Indeed, as we read her testimony, she says that when she, with her sister, went to call their father to supper, there was “more than one person” out there, but just one man with him. Moreover, the statement of defendant, offered in evidence by the State, is that the large quantity of whiskey described in the evidence was not the property of Tom Oliver, but of one Clark. Such a large quantity of whiskey in a dry territory under the circumstances detailed, leads to the inference that it was there for sale. And the fact that there were 20 to 25 cases on the wagon Monday night, and 30 to 40 cases according to defendant’s statement to Gannon, offered in evidence by the State, and only 18 to 20 there "Wednesday morning, it may be inferred that there had been sales made of the difference, and, if sales were made, it may be inferred that they were made at that place. The fact that several cases were broken open leads to inference that sales were made in less than case lots. If there were sales, it may be inferred that the fact that whiskey was there would have become known to others in the community and along the highway, and the difference in quantity may be accounted for even by hijacking. The fact that Oliver had his gun out there indicates he thought he might have occasion to use it. And from the fact that there was an empty shell in it Wednesday morning, it may be inferred that he had used it.

Moreover, the blood spots seen on the legs of defendant’s pants and on his leather coat sleeve are entirely accordant with his innocence. The State offered proof that defendant told Cannon that he was shot in the leg, and that Gannon had defendant pull up his pants’ leg to show the wound, and that the leg had been bleeding. From this it may be inferred that defendant had previously pulled up his pants’ leg to see and had seen the wound, and had gotten blood on his left hand, and had transmitted the blood from his left hand to his right sleeve, — in a perfectly natural way.

Furthermore, the evidence offered fails to show any motive for defendant to have killed Oliver. While not necessary to be proven, motive or the absence of motive is a circumstance to be considered. Oliver and defendant were neighbors. Defendant for some time had bought milk from the Olivers, and had been to the house to pay for it, and was known to the Oliver family. Oliver had previously plowed for defendant. They were together in the afternoon, sitting in the woods, and drinking together. And, while the little girl says she heard her father crying, before he came to supper, and defendant laughing, it is strange that there is no evidence that he appeared to have been crying when he came to supper.

*128The contradictory statements made by defendant to the officers when and after he was arrested, may point a finger of suspicion at him, but “The circumstances” here, as stated by Devin, J., in S. v. Penry, 220 N. C., 248, 17 S. E. (2d), 4, “may have been such as to excite suspicion, but the evidence does not exclude the rational conclusion that some other person may have been the guilty party,” citing S. v. Prince, 182 N. C., 788, 108 S. E., 330; S. v. English, 214 N. C., 564, 199 S. E., 920; S. v. Shu, 218 N. C., 387, 11 S. E. (2d), 155. See also S. v. Goodson, 107 N. C., 798, 12 S. E., 329.

■The defendant’s motion for judgment of nonsuit will be sustained here, G. S., 15-173, and judgment below is

Reversed.

Seawell, J.,

dissenting: 1. Theoretically, at least, a person convicted of crime through the instrumentality of circumstantial evidence does not escape punishment by showing in this Court that the intensity of proof in his ease was less in degree than that .required to convict beyond a reasonable doubt. I have the impression that in the main opinion there is a balancing of the evidence, pro and con, which involves the weight and the intensity of proof required to convict rather than the existence of evidence of guilt, which latter investigation should mark the limit of appellate review. A conclusion resting upon the theory that the circumstantial evidence offered has not excluded every reasonable hypothesis of defendant’s guilt and based upon a comparative analysis of the phases of the evidence which indicate guilt with other considerations more favorable to innocence, necessarily challenges the degree of proof rather than a conclusion reached without any evidence at all.

It is well enough as an aid to the jury in its dealing with circumstantial evidence, to instruct them that in order to convict of crime the evidence must exclude every reasonable hypothesis of defendant’s guilt. This is only an analytical converse of the rule that the evidence must be such as to convince the jury beyond a reasonable doubt of the defendant’s guilt. If it means anything more, it ought to be stricken out of the books. But, under constitutional and statutory methods of trial, where there is evidence of guilt, the process of comparing, appraising, weighing, and deciding whether conjecturable theories of the defendant’s innocence have been excluded is properly that of the jury. The Court has no right to thrust itself into the penetralia of the jury’s mental processes, — either at the trial or upon review, — and substitute its own thinking for that of the jury, because of any supposed difference between circumstantial evidence and direct testimony. The true test is whether, upon the consideration of the whole evidence, there is reasonable doubt of defendant’s guilt; and where there is evidence of guilt, I repeat, this is a matter for *129the jury, whether it is reached through the instrumentality of circumstantial evidence or the equally fallible means of so-called direct evidence or testimony.

Frankly, I think the Court, in its analysis and comparison of the several phases of the evidence in the instant case, and in the conclusion reached, has departed from traditional standards. And I respectfully suggest, — if the matter is indeed our responsibility at all, — that the reasonable hypotheses of innocence advanced by the Court as not having been excluded in the instant case appear to me to be dehors the evidence, unsubstantial, speculative.

Especially is this true of the suggestion that Oliver might have been the victim of “hijackers,” the mysterious “they” who murdered to rob, but forgot to take.

For the statement in the main opinion that the evidence does no more than raise a suspicion of defendant’s guilt, there is, of course, no answer except to challenge that appraisal, and direct attention to the rules which have been, as I think inadvertently, but nevertheless mistakenly, applied to its consideration. I am sure, however, that the cited cases, while they supply the formula, do not by any factual similarity support its application to the instant case.

2. There is in this record strong and compelling evidence of the defendant’s guilt, which fully justified his conviction by the jury, unless it is made unavailable by the rule advanced in the main opinion: “While the State by offering in evidence a statement of the defendant in a criminal action is not precluded from showing that the facts are different, nevertheless it presents the statement as worthy of belief.” Cited in support of this statement are, S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; S. v. Cohoon, 206 N. C., 388, 174 S. E., 91; S. v. Todd, 222 N. C., 346, 23 S. E. (2d), 47; S. v. Baker, 222 N. C., 428, 23 S. E. (2d), 340; S. v. Boyd, 223 N. C., 79, 25 S. E. (2d), 456; S. v. Watts, 224 N. C., 771, 32 S. E. (2d), 348.

In stating the rule it is pointed out that while in this case “the admissions in the statement of the defendant put the accused at the scene of the crime,” it tends to exculpate him; and the conclusion drawn is that the State, having introduced it, presents such matter as worthy of belief and is bound by it.

So stated, it is simply a case-hardened extension of the rule that the State may not “impeach” its own witness but may show the facts to be otherwise than stated. As applied to declarations of the defendant introduced through the State’s witnesses for the purpose of incrimination, it practically puts the defendant on the stand as a witness for the State, with all the privileges with respect to endorsement on the part of the prosecution that such a witness might have, without even the traditional *130right of the jury to scrutinize it in the light of the declarant’s interest and reject such part of it as may be unworthy of belief.

The State must choose one or the other of the horns of the dilemma, either to let the incriminating declaration alone or to be bound by the so-called exculpatory additions, although they may to reasonable minds appear to be a complete self-serving fabulation.

The prevailing rule and the only one which will serve the purpose of trial, which is to extract the truth from contradictory evidence, is that when the declarations of the defendant are introduced at all he is entitled to have them introduced in their entirety. Where the proffered statement is both integral and documentary as it was in S. v. Cohoon, infra,, this presents no problem; where it is oral the defendant may resort to cross-examination, or introduce independent evidence. But while the defendant is entitled to have the entire statement presented in the evidence, and when this is done it must be considered in its entirety, nevertheless it is left with the jury to accept such parts of it as they may deem worthy of credence and reject such parts as they consider unworthy of belief. Chamberlayne, Trial Evidence (Tompkins), pp. 411, 472. Even when the declaration is in written form, “the jury may follow certain portions and disregard the balance.” A full discussion of this subject may be found in Wigmore on Evidence, in Section 2100, reaching the same conclusion.

Analyzing the cases cited in the main opinion as authority for the rule as expressed therein, S. v. Fulcher, supra, has nothing in particular to do with the point in consideration. It deals with the evidence introduced by defendant himself and its significance on demurrer. In S. v. Cohoon, supra, the State relied solely upon the documentary statement or affidavit of the defendant and there was nothing whatever in that statement that indicated guilt. The same is true of S. v. Todd, supra; S. v. Baker, supra; S. v. Boyd, supra; and S. v. Watts, supra; The supposed exculpatory Statements in all these cases might have been stricken out altogether and the State would still have failed to make out its case.

The evidence ought to go .to the jury and be considered by them as objectively as possible without being weighted before it is weighed by the irrelevant circumstance of its presentation. If it means anything else, the ball should be carried back to the point where the Court stepped outside the bounds.

However this may be, the rule as advanced, however restrictive in its requirements, even if too well established to be dislodged, can have no reasonable application to the facts of this case. The declarations here are not one, but several; not made to one witness, but to a number of them; evasive, contradictory, incredible; and considered together the *131statements made by tbe defendant, assumed in tbe main opinion to be exculpatory, are, if possible, more damning than tbe admissions from wbicb they are supposed to relieve bim. And we bave to consider not 'only these statements but tbe manner and order of tbe revelations they contain and the conduct of tbe defendant immediately following tbe tragedy, wbicb is a matter of independent evidence. Amongst bis statements made to different witnesses are tbe following: Tbat be bad not seen Oliver that night or for several days, although be bad stated tbat be was at tbe scene of tbe killing, beard Oliver’s dying statement and stepped over bis dead body; tbat be bad started to Oliver’s bouse to pay for milk; again, tbat be owed Oliver some money for work done for bim and went over there to pay bim for it; and again, tbat be bad decided • to cut some wood and went over to tbe woods; tbat be bad discovered tbe presence of cartons of liquor in tbe woods but in leaving was shot by tbe mysterious “they.”

Tbe main indictment of guilt I find in tbe evidence is tbat be came from tbe scene of a bloody murder, with blood on bis garments and firsthand information of tbe murder, an exclusive secret with which be wás loath to part.

> “As I was walking all alane

> I beard twa corbies making a mane;

> Tbe tañe unto tbe t’other say,

> ‘Where sail we gang and dine to-day?’

> “ ‘In bebint yon auld fail dyke.

> I wot there lies a new-slain Knight;

> And naebody kens that be lies there,

> But bis hawk, bis bound, and lady fair.’ ”

> Twa Corbies; Palgrave’s Collection,

> “Golden Treasury.”

A person who has first-hand knowledge of tbe murder of a neighbor and is guiltless himself does not impart tbe information in tbe evasive and reluctant manner carefully chosen by tbe defendant.

Tbe defendant was near enough Oliver to bave witnessed tbe furious thudding assault tbat smashed bis skull and tbe bones of bis face; broke off tbe stock of tbe gun and left fibres of bis felt bat upon tbe hammer and blood upon tbe barrel; and knew tbe manner of bis death, yet be stepped over bis dead body and declared tbat Oliver bad been shot. Apparently be used every device tbat be could think of to induce somebody to go up to tbe scene of tbe killing and discover tbe body without implicating himself as tbe murderer. He wanted somebody to go up there to get liquor from a cache. He wanted somebody to go after tbe law *132because there was blockading going on; and failing in this and after over two hours expended in efforts of this kind, he hesitatingly inquired of the witnesses whether they would believe him if he would say that Oliver was lying up there dead in the woods.

The witnesses testified that Coffey exposed his leg to show them a puncture in it that might have been made by a small shot or a, nail. He called loudly for a doctor and on two occasions widely separated as to time and in the presence of prospective witnesses, collapsed, stating that it was because of loss of blood from this puncture, but quickly recovered. Impressive, indeed, but a clinical marvel. And here I might say that there was no evidence that the overflow of such quantity of the vital fluid had run down into his shoe.

I have gone into the evidence thus far in order to point out the charac-' ter of the evidence deemed exculpatory, and to pose the question r What part of it is the jury bound to-believe under the rule as stated in the main opinion? To believe it all is a mental, moral, and physical impossibility ; and to ask the jury to do so does not invite credence, but assumes credulity.

I might conclude by saying that so far as the evidence of guilt is concerned it does not make any difference how many persons were present in the woods prior to the time of the killing or whether whiskey was sold there by the carton or the bottle during the 24 hours preceding the murder. The defendant himself is fixed at the spot by his own admissions at the time of the killing, and by independent evidence shortly preceding it. It is perfectly true that opportunity to commit a crime is not alone sufficient to convict the accused; but no matter whether a motive may or may not be shown, his presence at the scene of the murder with nothing more definite as to the presence of others, together with his subsequent conduct and contradictory and evasive statements with regard to vital facts, have uniformly heretofore been regarded as sufficient.

My vote is to sustain the conviction.