Hurt, Judge.
This is a conviction for murder of the first degree, with life sentence in the penitentiary.
The indictment charges that defendant James Lightfoot did kill and murder George Pitman by shooting him with a gun. Two questions of fact are presented for our consideration: First, was George Pitman killed, or, in other words, was the body found in the lake on Coon creek the body of George Pitman? Second, was Pit-man shot and killed" with a gun, pistol or any other fire-arm?
Without entering upon an elaborate discussion of the evidence in this voluminous record, we simply say that there is great conflict in the evidence bearing upon the first question. A body was found in a lake on Coon creek, which had evidently been there for several days. The head and one foot were off, and the body far advanced toward decomposition. A part of the shirt and the pants still covered the body. One bone of one of the afras was broken, but how we are not informed. There were several holes in the breast, with the appearance as if made by buck shot. The body was white with no black spots on it, either on the exposed parts or on the parts covered by the clothing. The fish or turtles had torn the flesh from the calves of the legs.
George Pitman was a negro of dark copper color,— some of the [97]*97witnesses say a Mack negro. All of the witnesses agree that the body was white. Dr. Williams says, however, that he believed it to be that of a negro because of the kinky hair obtained from the scrotum. The wife of George Pitman, as well as Dr. Williams, identified the body by certain scars, and the wife by certain patches on the pants. The size and shape corresponded with that of George Pit-man. These are some of the facts showing identity.
On the other hand, all agreed that the body was white, like that of a white man. Dr. Cook exhumed the body and found straight hair. There were no black spots on the body, it being white all over.
While it may be true that, after sufficient decomposition, the epidermis may peel off, leaving the body of a negro white, still this would not likely occur beneath the clothing. How the coloring matter is not dissolved by the action of the water and carried off in particles. It is contained in the epidermis, and this must be removed to free the skin of its original color. Take, for instance, a blister produced by a scald or burn, remove the outer skin or epidermis, and the part left bare will be white, but the skin removed will be black if originally so. As above remarked, the coloring matter is not dissolved by the water, nor will the epidermis separate or fall free from that which is underneath because of decomposition. There must be some force applied to remove it. This may be done by the action of the current or any other force; but we cannot perceive how it was possible that the whole body, that beneath the clothing as well as that which was exposed, could have been stripped of the outer skin. There certainly would have been some portion of the body still covered with the epidermis, or there would evidently have been parcels or patches of the skin adhering to the inside of the pants.
The witnesses say that the body wTas white,— white all over. If a negro, this is passing strange indeed. For we venture the assertion that if it were possible to recognize certain scars produced by burns and blisters, most clearly decomposition had not advanced to such an extent as to completely destroy the epidermis. It seems that the hair around the scrotum was still adhering; this would leave the body with the epidermis. Hence we must conclude that portions of this outer skin must have remained, either attached to the body or clothing, and if that of a colored man indeed, this fact could have been easily discovered,— discovered not from uncertain facts and circumstances, such as scars, patches on the pants, and the opinions of witnesses.
[98]*98Dr. Cook, as before stated, exhumed the body, and it seems that he found straight hair. Dr. Williams says he obtained kinky hair from around the privates,— he calls it wool. It is not at all inconsistent with its being a white man for the hair from this part of the body to be kinky or curly. But on the other hand, it is absolutely impossible for a dark copper-colored negro to have straight hair on any portion of his body.
These are some of the conflicts in the testimony bearing upon the identity of the deceased, and we very seriously doubt, from the whole evidence, whether the body found was that of Pitman. And, notwithstanding the evidence of Dr. Williams and Mrs. Pitman, when viewed as a whole, my brother Wilson and I do not think the evidence sufficient to establish the identity of the body found in the lake as that of Pitman, the party charged to have been murdered. Our presiding judge, however, thinks it sufficient. '
The second question is, do the facts show that the body found came to its death from a gun or pistol shot wound. If not, this conviction cannot stand, for this being alleged it must be proved.
What is the evidence upon this point? Dr. Williams says “that there were six or seven holes in the breast; that he thinlcs that they were made by buck shot; went straight in; that he probed the holes with a stick six or seven inches,— penetrated into the lungs; that the stick met with no resistance; that there was a large hole about the pit of the stomach, where the buzzards had apparently picked or dragged out entrails. There were no holes on the back of the body, and if it was shot none of the holes came through; can’t say whether any of the ribs or the breast bone were broken or not. The balls could have passed through without breaking any bones;”
M. G. Cummings says: “I examined the body tolerably well. There were some holes in the breast; could not tell how they were made; the body had been dead a long time, and was soft enough for buzzards to have drjven their beaks through; don’t think any bones were broken. I sounded the breast to see if any bones were broken, and if any were broken I could not discover it. Ho holes were through on the back. If the holes were made with shot-gun, party shooting could not have been over ten or fifteen steps away, and if the holes had been made with a gun the shot certainly would have gone through, and would have broken the ribs and breast bone. This depends on the gun and the manner of its use,” etc.
M. Hicodemus says: “ There were two or three holes in the breast; don’t know how they were made; don’t know whether the buzzards could have made them or not; holes in the breast looked like bullet [99]*99holes, rather larger than bullet holes.” D. D. Hanks says: “There were what appeared to be holes in the breast. Can’t say how the body came to its death.” W. JVI. Pickel says: “There were some holes in the breast. Can’t tell how the body came to its death. Can’t say whether the holes in the breast were bullet holes or not. I could not tell from looking.”
Defendant’s witnesses testify as follows on that point: John Hallara (white): “I didn’t examine holes closely; looked at them; couldn’t tell how made.” John Landers: “Saw holes in the breast, but did not examine them.”
Here we have six or seven holes in the breast of the body; some of the witnesses thought they looked like they were made by buck shot, but the greater number could not say by what means they were made. In fact, the sum and substance” of this evidence is merely matter of opinion on either side.
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Hurt, Judge.
This is a conviction for murder of the first degree, with life sentence in the penitentiary.
The indictment charges that defendant James Lightfoot did kill and murder George Pitman by shooting him with a gun. Two questions of fact are presented for our consideration: First, was George Pitman killed, or, in other words, was the body found in the lake on Coon creek the body of George Pitman? Second, was Pit-man shot and killed" with a gun, pistol or any other fire-arm?
Without entering upon an elaborate discussion of the evidence in this voluminous record, we simply say that there is great conflict in the evidence bearing upon the first question. A body was found in a lake on Coon creek, which had evidently been there for several days. The head and one foot were off, and the body far advanced toward decomposition. A part of the shirt and the pants still covered the body. One bone of one of the afras was broken, but how we are not informed. There were several holes in the breast, with the appearance as if made by buck shot. The body was white with no black spots on it, either on the exposed parts or on the parts covered by the clothing. The fish or turtles had torn the flesh from the calves of the legs.
George Pitman was a negro of dark copper color,— some of the [97]*97witnesses say a Mack negro. All of the witnesses agree that the body was white. Dr. Williams says, however, that he believed it to be that of a negro because of the kinky hair obtained from the scrotum. The wife of George Pitman, as well as Dr. Williams, identified the body by certain scars, and the wife by certain patches on the pants. The size and shape corresponded with that of George Pit-man. These are some of the facts showing identity.
On the other hand, all agreed that the body was white, like that of a white man. Dr. Cook exhumed the body and found straight hair. There were no black spots on the body, it being white all over.
While it may be true that, after sufficient decomposition, the epidermis may peel off, leaving the body of a negro white, still this would not likely occur beneath the clothing. How the coloring matter is not dissolved by the action of the water and carried off in particles. It is contained in the epidermis, and this must be removed to free the skin of its original color. Take, for instance, a blister produced by a scald or burn, remove the outer skin or epidermis, and the part left bare will be white, but the skin removed will be black if originally so. As above remarked, the coloring matter is not dissolved by the water, nor will the epidermis separate or fall free from that which is underneath because of decomposition. There must be some force applied to remove it. This may be done by the action of the current or any other force; but we cannot perceive how it was possible that the whole body, that beneath the clothing as well as that which was exposed, could have been stripped of the outer skin. There certainly would have been some portion of the body still covered with the epidermis, or there would evidently have been parcels or patches of the skin adhering to the inside of the pants.
The witnesses say that the body wTas white,— white all over. If a negro, this is passing strange indeed. For we venture the assertion that if it were possible to recognize certain scars produced by burns and blisters, most clearly decomposition had not advanced to such an extent as to completely destroy the epidermis. It seems that the hair around the scrotum was still adhering; this would leave the body with the epidermis. Hence we must conclude that portions of this outer skin must have remained, either attached to the body or clothing, and if that of a colored man indeed, this fact could have been easily discovered,— discovered not from uncertain facts and circumstances, such as scars, patches on the pants, and the opinions of witnesses.
[98]*98Dr. Cook, as before stated, exhumed the body, and it seems that he found straight hair. Dr. Williams says he obtained kinky hair from around the privates,— he calls it wool. It is not at all inconsistent with its being a white man for the hair from this part of the body to be kinky or curly. But on the other hand, it is absolutely impossible for a dark copper-colored negro to have straight hair on any portion of his body.
These are some of the conflicts in the testimony bearing upon the identity of the deceased, and we very seriously doubt, from the whole evidence, whether the body found was that of Pitman. And, notwithstanding the evidence of Dr. Williams and Mrs. Pitman, when viewed as a whole, my brother Wilson and I do not think the evidence sufficient to establish the identity of the body found in the lake as that of Pitman, the party charged to have been murdered. Our presiding judge, however, thinks it sufficient. '
The second question is, do the facts show that the body found came to its death from a gun or pistol shot wound. If not, this conviction cannot stand, for this being alleged it must be proved.
What is the evidence upon this point? Dr. Williams says “that there were six or seven holes in the breast; that he thinlcs that they were made by buck shot; went straight in; that he probed the holes with a stick six or seven inches,— penetrated into the lungs; that the stick met with no resistance; that there was a large hole about the pit of the stomach, where the buzzards had apparently picked or dragged out entrails. There were no holes on the back of the body, and if it was shot none of the holes came through; can’t say whether any of the ribs or the breast bone were broken or not. The balls could have passed through without breaking any bones;”
M. G. Cummings says: “I examined the body tolerably well. There were some holes in the breast; could not tell how they were made; the body had been dead a long time, and was soft enough for buzzards to have drjven their beaks through; don’t think any bones were broken. I sounded the breast to see if any bones were broken, and if any were broken I could not discover it. Ho holes were through on the back. If the holes were made with shot-gun, party shooting could not have been over ten or fifteen steps away, and if the holes had been made with a gun the shot certainly would have gone through, and would have broken the ribs and breast bone. This depends on the gun and the manner of its use,” etc.
M. Hicodemus says: “ There were two or three holes in the breast; don’t know how they were made; don’t know whether the buzzards could have made them or not; holes in the breast looked like bullet [99]*99holes, rather larger than bullet holes.” D. D. Hanks says: “There were what appeared to be holes in the breast. Can’t say how the body came to its death.” W. JVI. Pickel says: “There were some holes in the breast. Can’t tell how the body came to its death. Can’t say whether the holes in the breast were bullet holes or not. I could not tell from looking.”
Defendant’s witnesses testify as follows on that point: John Hallara (white): “I didn’t examine holes closely; looked at them; couldn’t tell how made.” John Landers: “Saw holes in the breast, but did not examine them.”
Here we have six or seven holes in the breast of the body; some of the witnesses thought they looked like they were made by buck shot, but the greater number could not say by what means they were made. In fact, the sum and substance” of this evidence is merely matter of opinion on either side.
We have some evidence, not consisting of opinions merely, but of stubborn facts. All agree that, if shot, the balls remained in the body, for none went through. About the 1st of February, 1885, Dr. Cook, with Joe Richardson and Isadore Richardson, went to the grave and exhumed the body. We will let him tell the result of the examination. He says:
“Joe Richardson dug down until he struck the bones, and we took out carefully and examined with my fingers each and every spadeful of dirt carefully, and there were no bullets in there; there were no bullets there or we could have found them. The breast bones and all of the front ribs were perfectly sound; not a hole through them. On the back side one rib was broken, but could not have been done with a bullet; there was no sign of a bullet. If it had been broken by a bullet I could have seen the sign of it. The arm bone, I think, of the right arm about one or one and a half inches above the wrist joint was broken, that is, the inside bone. It was broken off diagonally.”
How here we have facts, not opinions or speculations, but stubborn facts, and if true, evidently the deceased was not killed by being shot. After a most careful examination no balls could be found, which ■ were unquestionably in the grave if the deceased was shot at all, for all agree that they did not pass out.
Again, notwithstanding Dr. Williams states that it is possible to shoot six or seven balls into and through the breast without breaking or cutting a bone or rib, we are equally confident that it is a physical impossibility; or, if possible, certainly not at all probable. We therefore believe that these facts, though of a negative char[100]*100acter, most clearly demonstrate, conceding that deceased came to his death by violence, that the means used to effect his death was not by shooting; and as the State has alleged this means, she is bound by it, and must prove the means as alleged.
[Opinion delivered December 16, 1885.]
We are therefore of the opinion that the verdict and judgment are not supported by the proof, and hence the judgment must be reversed and the case remanded for a new trial.
Reversed and remanded.