¶1The defendant was indicted, tried, and convicted of murder, and sentenced to death.
¶2He appeals and urges several grounds, for reversal of his sentence, of which it will be necessary to notice but one.
¶3The State offered in evidence the coroner’s inquest, in which it is recited that an inquest was held upon the body of Lord Payne, and that it was found that he came to his death by a gun-shot wound in the abdomen, etc. That the wound was inflicted with a pistol in the hands of one Thomas Taylor, still at large. The defendant objected to the introduction of this document, on the ground that under the Constitution of the State (Art. 6) the accused had the right of being confronted with the witnesses against him, that said inquest was secondary evidence, inadmissible until it was shewn that the coroner and physicians' who made inquest could not be produced, as witnesses. The judge overruled the objections and admitted the proceedings on the inquest simply to prove, as stated by him in the bill of exceptions, the corpus delicti.
¶4In a precisely similar case, that of State v. Parker, 7 A. 84, this court, after full consideration, held that the inquest was admissible to prove the corpus delicti. The court say: “The deposition of the *367witnesses before the inquest, if taken in writing, should not, therefore, be given in evidence on the trial, much less should the opinion of the coroner and jury of inquest, given as the foundation of an order of arrest, that the death was caused by the accused.” ‘ ‘ The inquest in the present case,” say the court “contained the opinion that the accused fired the pistol which caused the death of the deceased, and that part of it should not have been read, or given to the jury. But as the court cautioned the jury, that no part of the inquest should have any influence upon their minds, except that which established the death, we do not feel ourselves authorized to reverse the judgment for such irregularity, considering the caution of the court, with which it was accompanied.”
¶5Did it appear in the case now before us, as in that just quoted, that the judge specifically charged and cautioned the jury that they were to give no effect to that part of the inquest in which it is stated that the accused inflicted the wound, we should follow our predecessors, in holding the irregularity not fatal to the verdict. But it does not so appear. The judge simply says that he admitted the paper, “ to prove the corpus delicti.”
¶6This might be true and yet the jury have been unadvised by him, that outside and beyond that purpose it must be disregarded. It is highly probable that the judge did so caution and instruct them, but it does not certainly appear by the record. If he did not, a grave injury was done to the accused, as the Constitution gives him the right to be confronted with the witnesses whose statements connect him with the death.
¶7The death may well be proved by the inquest, but the agency of the accused in the killing, can only be established by witnesses brought “face to face ” with him, and not by the opinion of a coroner’s jury.
¶8In so grave a case as this, where life is the forfeit, we must have certainty not probability. We must give the accused the benefit of the doubt, and grant him a new trial.
¶9Ordered accordingly.