introduced. The error in admitting this testimony was not cured by the proof of the confession, for it was introduced to corroborate the confession.
If it be said that this evidence was harmless, for the reason that the jury may have reached the same conclusion from the testimony of the physician on this point, we must answer that they may have done so, but we are not able to say that they did do so. The testimony of one witness may make no impression, but that of another may carry conviction. We cannot look into the minds of the jury to discover what effect this testimony had upon their conclusions as to the guilt of the defendant; but, as it was incompetent, was admitted against the objection of appellant, and bore upon a material point in the case, we must hold that its admission was prejudicial error, and entitled the appellant to a new trial. Elliott's Appellate Procedure, § 632.
Instruction as to weight of confession.We are further asked to hold that the circuit judge erred in giving to the jury instruction No. 10;[1] but it is not necessary to pass on this question further than to say that a majority of the judges are of the opinion that such instruction would be better given in another form. It states among other matters that confessions, "when deliberately and voluntarily made, are deemed to be among the most effectual proofs of the guilt of the defendant." This portion of the instruction is taken from Greenleaf on Evidence, but the learned author, in making this statement, was not stating a rule of law, but was discussing the question as to what weight should be
- ↑ * NOTE.—Instruction No. 10, given at plaintiff's instance, is as follows: "The court instructs the jury that, while the law recommends caution in receiving confessions of guilt, yet, when deliberately and voluntarily made, they are deemed to be among the most effectual proofs of the guilt of the defendant; and if you believe from the evidence that the defendants, or either of them, confessed to the killing of W. F. Skipper, as charged in the indictment, and that both of the defendants participated in the killing, you may convict."
