ment was properly admitted. But the fact that no reference to any circumstance of poisoning was made by her in the written statements is significant. Still more important is the fact that, when she was specifically interrogated on that subject, the statement made by her in that regard was of so little consequence. All that was said by her on that subject was that she saw the defendant leaving her bedside, and thereafter she took a drink from the glass of water, whereupon she “was taken much worse, and continued to be worse from that time on." Whether she took a sip, swallow, or what quantity of water was drunk by her from the glass is not made to appear. It was shown by the physicians, and as stated by Wharton & Stille on Medical Jurisprudence, that "immediately after swallowing a poisonous dose of bichloride of mercury there is experienced a strong metallic taste, and a painful spasmodic contraction in the throat." And, as also made to appear, such taste is very pronounced and unusual. It is highly improbable that the deceased could have drunk a sufficient quantity of mercurially poisoned water to produce the claimed corrosive and poisonous effects and symptoms without noticing or detecting the metallic taste, or some unratural or unusual taste. Yet no word is said by her to the effect that she noticed anything unusual or unnatural about the taste of the water drank by her, nor is there anything said by her that after she drank it she experienced or felt any pain, or any discomfort, except that she "was taken much. worse."

There is considerable evidence to show that the defendant treated the deceased with extreme cruelty. But I cannot say that he shall be shot to death because he is not a good man, or because he was a wife beater. The state cannot legally demand the life of the vilest human creature except upon sufficient proof of his guilt of murder. Such proof I think is here lacking. While the state sufficiently demonstrated that the defendant struck and kicked the deceased, it just as clearly demonstrated by all the evidence in its behalf, including the testimony of its physicians, that the effects of the beating and kicking did not and could not have caused the death.

The evident theory advanced by its learned physicians was that the beating and kicking did not cause the death. So, too, did they testify that the poisoning alone did not cause it. When asked what did cause it, they asserted that it was caused by the combined and co-operating causes of both the kicking and the poisoning. When asked how the two could, and probably did, combine and co-operate so as to cause the death, they asserted that the beating and the kicking of the deceased so lowered her vitality that her system could not resist the corrosive and poisonous effects of the deadly poison, and, in effect stated that, if she had not been kicked and beaten and her vitality lowered, the poisoning probably would not have killed her. As well assert that, because of his reduced or lowered vitality, the victim could not resist the penetration of the bullet as it was shot from the gun into his body nor the destructive effects of the muscles and tissues, as it plowed its way through a vital organ. Fire burns. burns the tissues and the cells of a strong as well as of a weak body; and they alike must also yield to the corrosive and distructive effects of such a deadly poison as bichloride of mercury. I think this is a case of too much conjecture and not enough evidence. I am of the opinion that there ought to be a retrial.

It

In view of what has been said concerning the Shockley Case, I feel obliged to make but this observation. In that case the principal assigned errors related to the refusal of the court to submit to the jury the issue of self-defense, the rulings made against the defendant subjecting him to a crossexamination respecting past criminal transactions which were separate and distinct from that for which he was on trial, and the holding that immunity from answering such incriminative questions could only be claimed by the defendant himself, and not through his counsel. The majority members of the court held that there was no evidence to justify the submission of the case to the jury on the issue of self-defense, and that, therefore, the trial court committed no error in its refusal to submit the case to the jury on such theory. The dissenting member of the court was of a different opinion.

He held that reversible and prejudicial error was committed by the trial court in such refusal, and on that ground concurred in the judgment of reversal and in remanding the case for a new trial. The majority members of the court held that reversible and prejudicial error was committed by the trial court in the rulings respecting the cross-examination of the defendant, and in not permitting him to claim immunity, through his counsel, from answering incriminative questions relating to past criminal transactions which were wholly separate and distinct from that for which he was on trial. Because of such erroneous rulings the majority members reversed the judgment, and remanded the case for a new trial. On such holding on such ground the dissenting member did not concur. I thought then, and I think now, that the conclusion reached by the majority members was right. Our reasons therefor are stated in the prevailing opinion. The legal principles involved are very simple. They are: (1) When a defendant is a witness, immunity from answering incriminative questions relating to criminal transactions or crimes wholly separate and distinct from that for which he is on trial may be claimed through his counsel; and (2) while a conviction of prior and other offenses may be shown to affect credibility, or impeach the witness, a mere arrest, or specific acts, or past conduct, tending to show the commission of other offenses, may not be shown.

These principles are elementary, and are supported by the clear weight of authority. They were violated by the rulings referred to. No criticism is made of our conclusion holding them erroneous. The criticism made of the case is that we "gave not even one word's consideration to the question whether the alleged errors should have affected the verdict." The criticism does not fairly reflect the decision. We did not reverse the judgment regardless of the question of prejudice. In the prevailing opinion are stated our reasons why we thought the committed errors were prejudicial and harmful and affected the verdict. We there stated that, under our statute, "every person guilty of murder in the first degree shall suffer death, or, upon recommendation of the jury, may

be imprisoned at hard labor in the state prison for life, in the discretion of the court," and that it was held by the Supreme Court of the United States to be reversible error in the failure of the court to charge the jury the substance and effect of the statute. The verdict rendered by the jury in the Shockley Case was "Guilty of murder in the first degree," without any recommendation. Upon the court's refusal to grant the motion for a new trial, it became the imperative duty of the court to pronounce upon that verdict a judgment. inflicting the death penalty, which was done. In the prevailing opinion, and in speaking of the prejudicial effect of the erroneous rulings of the court referred to, we said: "Whatever deposition, if any, there may have been on the part of the jurors to make the said recommendation, may have been entirely overcome and removed by reason of these rulings of the court." That is to say, though the jurors upon all the evidence in the case were satisfied beyond a reasonable doubt that the defendant was guilty of murder in the first degree as charged in the information, and though upon all the evidence there was no substantial conflict on such question, yet, by reason of the improper cross-examination, the jury may have been improperly led to the conclusion that the defendant was also guilty of other separate and distinct criminal transactions and crimes of which there was no evidence, but which were so vividly and persistently referred to by the improper incriminative questions on cross-examination, and for that reason the jury may have refused to make the recommendation that the defendant be imprisoned at hard labor for life. That is the view we took of it, and for such reasons we held the erroneous rulings prejudicial and said so. Some may not agree with us on that, but a reading of the record in that case clearly shows that the improper cross-examination strongly tended to produce, and in all probability did produce, just such effect. After the court had overruled all and repeated objections interposed by the defendant's counsel to the incriminative questions, and held with the contention of the district attorney that the defendant must himself claim the privilege, and after the defendant had himself claimed

it, and had declined to answer the questions which in themselves were pregnant and teeming with inquiries respecting incriminative conduct and criminal transactions, the court not only permitted the district attorney, over objections, to further inquire of the defendant, and to compel him to answer whether he so declined on the ground that it tended to incriminate him, but the court itself turned to the defendant and demanded of him: "Do you claim that privilege and decline to answer the question on the ground that it tends. to incriminate you and subject you to punishment for a felony?" And when the defendant thereupon answered, “I decline to answer the question upon that ground," the district attorney, still not satisfied that the privilege and immunity had yet been sufficiently claimed, immediately asked the defendant, "Upon the ground it tends to incriminate you?" And so each time, on three or four occasions, when such incriminative questions were asked, such proceeding was substantially repeated; and, after the defendant had declined to answer such questions which were in themselves replete and freighted with inquiries respecting incriminating conduct and criminal transactions, the defendant was further compelled to answer, to the effect, that he did so decline because to answer the questions would incriminate him and subject him to the punishment for a felony. The baleful effect produced by such proceedings would be no worse had the court turned to the defendant, and said: "If you are guilty of the criminal conduct and offenses so clearly suggested by the questions propounded to you, you need not answer, but, if you are not guilty of them, you must answer. Now with this admonition, do you, or do you not, decline to answer?" The substance of all these matters referred to appears in the prevailing opinion. The criticism therefore made, that we did not consider the question of prejudicial effect of the erroneous rulings, is not founded on truth. Neither the grounds upon which we reached the conclusion that the rulings were erroneous nor upon which we held them prejudicial have, as yet, been criticised. The complaint made that we granted a new trial to a bad man, and did not hold any kind