Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
The only evidence there was before the jury to connect the accused with the crime of which he was convicted, consisted of (;a). the testimony for the Commonwealth concerning the instruments with which it is claimed the murder was committed; (b) the testimony of Jim Coleman; and (c) the testimony of other witnesses locating the place of the killing, according to the theory of the Commonwealth’s attorney, in close proximity to where the accused was shown to be on the night of the murder.
[1] (a) With respect to the instruments with which the crime was committed:
The evidence falls far short of identifying the pistol and club in evidence as having been, beyond a reasonable doubt, the instruments with which the deceased was slain. The evidence leaves it equally probable that the crime was committed with some other instruments.
[2] (,b) With respect to the testimony of Coleman:
That testimony, if true, was sufficient to support the Verdict of the jury. But it was the testimony of one to [643]*643whom the physical facts of the tracks of the shoes (owned by and found on his feet when he was arrested) pointed, not merely as an accomplice in the crime, but as the murderer. The narrative of the alleged confession of the accused which such testimony presented to the jury is so inherently improbable and well-nigh incredible in itself, and contains, in its repeated references to the dead body being “up the road,” such evidence of knowledge on the part of Coleman of the location of the body, which nothing the accused had then said gave him information about (furnishing, indeed, internal evidence, either of the guilt of Coleman of the crime, or of other knowledge about it on his part than that derived, as he claimed, from the accused), as to make such narrative doubly unreliable. Moreover, the circumstances of the repeated previous denials by Coleman of all knowledge on the subject (some of such denials made when being shot at by the mob, under threat of instant death if he did not disclose what he knew) make it almost unbelievable that his narrative aforesaid could be true and that he could have refrained from divulging some portion of it before he did. And further, there are the circumstances that, preceding the telling, Coleman took time to frame the story he told; that he was meanwhile having repeatedly impressed upon him, by the detective and others, the predicament he was in unless he could lay the crime upon some one else. These considerations convince us that the jury would not have given credence to the testimony of Coleman had they not been satisfied that he was corroborated by other evidence in the case connecting the accused with the commission of the crime.
There was absolutely no evidence before the jury to corroborate the testimony of Coleman, connecting the deceased with the commission of the crime, except the testimony of Daniel Harris, and the testimony with reference to the location of the place at which the deceased was killed.
[644]*644As to Daniel Harris’ testimony, it merely corroborated Coleman in his testimony, that while in the Lynchburg jail he asked the accused why the latter wore his (Coleman’s) shoes, and that the accused made no reply except to tell Coleman to shut his mouth. Harris’ previous statement to the contrary, and his intimacy with Coleman, and his being himself one of those who had been arrested and charged with the same crime, were circumstances which indicate that the jury would not have given credence to Coleman’s testimony upon the mere corroboration afforded, by this testimony of Harris.
(c) We come, then, to the consideration of the testimony with reference to the location of the place at which the deceased was killed.
If the fact was that the deceased was killed at the place within fifty yards of the house of Coleman (the evidence showing that the accused was in and about such house on the night of the murder and about the time the murder was committed), the accused, according to the evidence for the Commonwealth, may have been absent from the house, at some time, long enough to have done the killing, and possibly, at another time, long enough to have gone, wearing the shoes of Coleman, and carried the body from such place to the location in the road where the body was found; although the testimony for the Commonwealth failed to show affirmatively that the accused was at any time absent from Coleman’s house long enough to have so carried the body. That is to say, in such case the evidence would have shown that the accused may have had the opportunity to commit the crime and take the body to the place at which it was found in the road. Whereas, if the fact was that there was no proof of where the killing took place (the evidence showing that the deceased was not killed at the place at which his body was found), there was an absence of evidence to show that the accused had the opportunity to com[645]*645mit the crime and dispose of the body as aforesaid. In such situation, the fact that the deceased was killed at the place in close proximity to Coleman’s house was an essential link in the chain of the circumstantial evidence relied on by the Commonwealth to connect the accused with the commission of the crime.
Accordingly, as appears from one of the bills of exception in the case, the attorney for the Commonwealth, in his closing argument before the jury, made the following statement:
“* * * The facts are that George Dickerson was behind that house selling whiskey. Rickman went back there and bought whiskey from him and accused him of watering it, and they had a row about it. After Rickman left George Dickerson, he went back there and the difficulty was renewed. Of course we do not contend George Dickerson changed his shoes then; he didn’t have time, he chased him across that field, killed him, laid him over the fence and then came back to the house and put on Coleman’s shoes and then carried the body to where it was found in the road.”
To such statement of the attorney for the Commonwealth, the accused, by counsel, objected on the ground that it was not supported by the evidence and that there was no evidence in the case on which to base the statement; that it was an appeal to the prejudice and passion of the jury, and moved the court to tell the jury not to consider this statement; but the court overruled the defendant’s objection to said argument and declined to instruct the jury to disregard the same. This action of the court is made the basis of one of the assignments of error.
We are of opinion that this assignment of error is well taken.
There was before the jury absolutely no evidence of any probative value, even if it had been a civil case, that any [646]*646human being was killed at the place referred to in the statement of the Commonwealth’s attorney.
There was no evidence whatever of tracks made by the shoes of Coleman, making the nail prints, or of any other tracks, going from the alleged place of the killing to the place where the body was found in the road. There was no evidence explaining why such vestiges were not apparent on the ground, if they were looked for and were not found. And we find no evidence in the record of the existence of any fence, such as is referred to in the statement of the attorney for the Commonwealth.
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Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
The only evidence there was before the jury to connect the accused with the crime of which he was convicted, consisted of (;a). the testimony for the Commonwealth concerning the instruments with which it is claimed the murder was committed; (b) the testimony of Jim Coleman; and (c) the testimony of other witnesses locating the place of the killing, according to the theory of the Commonwealth’s attorney, in close proximity to where the accused was shown to be on the night of the murder.
[1] (a) With respect to the instruments with which the crime was committed:
The evidence falls far short of identifying the pistol and club in evidence as having been, beyond a reasonable doubt, the instruments with which the deceased was slain. The evidence leaves it equally probable that the crime was committed with some other instruments.
[2] (,b) With respect to the testimony of Coleman:
That testimony, if true, was sufficient to support the Verdict of the jury. But it was the testimony of one to [643]*643whom the physical facts of the tracks of the shoes (owned by and found on his feet when he was arrested) pointed, not merely as an accomplice in the crime, but as the murderer. The narrative of the alleged confession of the accused which such testimony presented to the jury is so inherently improbable and well-nigh incredible in itself, and contains, in its repeated references to the dead body being “up the road,” such evidence of knowledge on the part of Coleman of the location of the body, which nothing the accused had then said gave him information about (furnishing, indeed, internal evidence, either of the guilt of Coleman of the crime, or of other knowledge about it on his part than that derived, as he claimed, from the accused), as to make such narrative doubly unreliable. Moreover, the circumstances of the repeated previous denials by Coleman of all knowledge on the subject (some of such denials made when being shot at by the mob, under threat of instant death if he did not disclose what he knew) make it almost unbelievable that his narrative aforesaid could be true and that he could have refrained from divulging some portion of it before he did. And further, there are the circumstances that, preceding the telling, Coleman took time to frame the story he told; that he was meanwhile having repeatedly impressed upon him, by the detective and others, the predicament he was in unless he could lay the crime upon some one else. These considerations convince us that the jury would not have given credence to the testimony of Coleman had they not been satisfied that he was corroborated by other evidence in the case connecting the accused with the commission of the crime.
There was absolutely no evidence before the jury to corroborate the testimony of Coleman, connecting the deceased with the commission of the crime, except the testimony of Daniel Harris, and the testimony with reference to the location of the place at which the deceased was killed.
[644]*644As to Daniel Harris’ testimony, it merely corroborated Coleman in his testimony, that while in the Lynchburg jail he asked the accused why the latter wore his (Coleman’s) shoes, and that the accused made no reply except to tell Coleman to shut his mouth. Harris’ previous statement to the contrary, and his intimacy with Coleman, and his being himself one of those who had been arrested and charged with the same crime, were circumstances which indicate that the jury would not have given credence to Coleman’s testimony upon the mere corroboration afforded, by this testimony of Harris.
(c) We come, then, to the consideration of the testimony with reference to the location of the place at which the deceased was killed.
If the fact was that the deceased was killed at the place within fifty yards of the house of Coleman (the evidence showing that the accused was in and about such house on the night of the murder and about the time the murder was committed), the accused, according to the evidence for the Commonwealth, may have been absent from the house, at some time, long enough to have done the killing, and possibly, at another time, long enough to have gone, wearing the shoes of Coleman, and carried the body from such place to the location in the road where the body was found; although the testimony for the Commonwealth failed to show affirmatively that the accused was at any time absent from Coleman’s house long enough to have so carried the body. That is to say, in such case the evidence would have shown that the accused may have had the opportunity to commit the crime and take the body to the place at which it was found in the road. Whereas, if the fact was that there was no proof of where the killing took place (the evidence showing that the deceased was not killed at the place at which his body was found), there was an absence of evidence to show that the accused had the opportunity to com[645]*645mit the crime and dispose of the body as aforesaid. In such situation, the fact that the deceased was killed at the place in close proximity to Coleman’s house was an essential link in the chain of the circumstantial evidence relied on by the Commonwealth to connect the accused with the commission of the crime.
Accordingly, as appears from one of the bills of exception in the case, the attorney for the Commonwealth, in his closing argument before the jury, made the following statement:
“* * * The facts are that George Dickerson was behind that house selling whiskey. Rickman went back there and bought whiskey from him and accused him of watering it, and they had a row about it. After Rickman left George Dickerson, he went back there and the difficulty was renewed. Of course we do not contend George Dickerson changed his shoes then; he didn’t have time, he chased him across that field, killed him, laid him over the fence and then came back to the house and put on Coleman’s shoes and then carried the body to where it was found in the road.”
To such statement of the attorney for the Commonwealth, the accused, by counsel, objected on the ground that it was not supported by the evidence and that there was no evidence in the case on which to base the statement; that it was an appeal to the prejudice and passion of the jury, and moved the court to tell the jury not to consider this statement; but the court overruled the defendant’s objection to said argument and declined to instruct the jury to disregard the same. This action of the court is made the basis of one of the assignments of error.
We are of opinion that this assignment of error is well taken.
There was before the jury absolutely no evidence of any probative value, even if it had been a civil case, that any [646]*646human being was killed at the place referred to in the statement of the Commonwealth’s attorney.
There was no evidence whatever of tracks made by the shoes of Coleman, making the nail prints, or of any other tracks, going from the alleged place of the killing to the place where the body was found in the road. There was no evidence explaining why such vestiges were not apparent on the ground, if they were looked for and were not found. And we find no evidence in the record of the existence of any fence, such as is referred to in the statement of the attorney for the Commonwealth.
There was no evidence that the blood seen at this place was human blood; or that the tracks from the house across the open field made by some person wearing No. 5 shoes were made by the deceased, rather than by some other person wearing that size shoes. No peculiarity whatever about such tracks was shown in evidence.
Preceding the party, doubtless many fowls and likely some animals were killed to provide food which was sold, at the party. Tim whole of the testimony for the Commonwealth on the subject under consideration is entirely consistent. with the theory that the tracks of the' three or four persons seen across the open ground near the house (not merely of two persons, of the deceased and accused, according to the statement of the Commonwealth’s attorney) were the tracks of some persons chasing a fowl or a pig; that the' blood on the ground was the blood of a fowl, or of an animal, caught and killed there; and that the disturbance of the ground at that place was caused by a no more serious tragedy. And as to the club:' There were doubtless many such lying about that and other bodies of woods in the vicinity. There was no evidence that this club had struck across the body of any person or had been handled by human hands, recently before it was found. Indeed, the evidence fails to show beyond a reasonable doubt that the [647]*647wound in the back of the deceased was made with any club whatever. This wound may have been made, consistently with all of the evidence, by some other instrument, possibly by some automobile running over the dead body in the road. This hypothesis is consistent with the evidence as it appears in the record.
And the circumstances of the public disappointment which would naturally ensue if all of the many persons suspected of and charged with the crime should escape conviction rendered it peculiarly a case in which the jury were liable to be misled into drawing inferences and reaching conclusions touching the guilt of the accused not warranted by a calm and dispassionate consideration of the evidence.
It seems plain, therefore, that the action of the trial court in overruling the objection to the statement of the Commonwealth’s attorney and refusing to instruct the jury to disregard such statement, misled the jury into erroneously thinking that there was sufficient evidence before them to sustain the theory of the Commonwealth’s attorney that the killing took place in close proximity to the house in which the. accused was, as aforesaid; and that the testimony of Coleman was thus corroborated. And we are convinced by the considerations aforesaid that, but for being so misled, the jury would not have convicted the accused upon the other evidence in the case.
Because of such action of the trial court, the case must be reversed and a new trial will be granted to the accused.
Burks, J., concurs in results.
Reversed and new trial granted.