¶1dissenting.
¶2I respectfully dissent from the main opinion, reversing the judgment and sentence of 15 years to the penitentiary upon a verdict of the jury, returned October 11, 1933, finding the defendant guilty of murder in the second degree.
¶3The deceased was shot just before 11 p. m., July 3, 1933, while sitting in the basement room of his residence with John Rice and Millard Burress, and died a few hours later. Three shots were fired through the basement window, all going into his body, two going" clear through. His wife had just gone up to the living-room above the basement *545when she heard the three shots fired. The husband, with blood streaming from wounds in his chest and abdomen, got upstairs and laid down on the davenport, and said, “He got me this time.” His wife asked, “Who?” and Haning said, “Vinciquerra,” referring to the defendant in this case, who had formerly been her husband. She married the defendant in 1913, divorced him in 1920, remarried him in 1922, divorced him in 1926,-and married Earl Haning, the deceased, in 1928, and while they had been separated at times, the deceased living in Norton, Kansas, for a while, they had again been living together, at the place where the shooting occurred, for some months. She testified that about two years previously, in 1931, there had been trouble between the defendant and the deceased, in which both of them were wounded as a result of shooting between them. She testified that about this time, 1931, referring to the defendant: “He told me he would like to run across him and would like to have me tell him where he could find him, or if I could give him an idea where he could get him. I told him Mr. Haning had left the city of Omaha, and in fact the state of Nebraska; that he was staying in Kansas, just to get him off the track. … Q. Did he state in his conversation that he wanted you to tell him where he was at a definite time? A. Yes, sir. Q. What reason did he give? A. Because he wanted to kill him. He wanted to get even with him.”
¶4A. C. Anderson, chief of detectives, Omaha police department, reached the home of Louise Haning, at 2002 North Forty-eighth street, in response to her call, just after her husband had been removed to the hospital. He made a careful search of the basement, and found one bullet in the basement and three exploded shells outside the house from a .32 caliber automatic. The defendant later admitted to the detective that he was the owner of a .32 Colt automatic, and said it was at the store that he was conducting at Twenty-eighth avenue and Locust street. The defendant at that time told him that he did not want any first degree murder “rap” placed against him *546when Emmons was the man who fired the shot. The detective asked him how Emmons got possession of the gun, and he said he got it out of the drawer in his store, and was drunk at the time, and added that they would find the gun near the chicken house. An intensive search was made for the gun, both at the defendant’s chicken house •and the Emmons’ chicken house, at which place it was found in a hollow log. It had five cartridges in the magazine and one in the barrel, the gun holding nine when fully loaded. Several days after the shooting, while the defendant was under arrest, he was brought into Detective Anderson’s office, where a knife and shells were on the desk. The defendant noticed them, and said, “That is my knife and those are my shellsthe shells being of foreign manufacture. The detective asked him to tell about the shells, and he said, “I at one time bought a whole box of them.” The three bullets fired into the deceased were from this box of foreign manufactured cartridges, which are about 3/1000 of an inch smaller, but work in the gun all right.
¶5Roland McDonald, a member of the police force, assigned to the identification bureau, and being the ballistic expert of the department, made many tests with the gun, the shells, and the same kind of bullets fired from the same gun, and told of examining the bullet found in the body of the deceased with a microscope, together with marks of the firing-pin blows on the primer on the empty shells, and testified that the bullets had been fired from the defendant’s gun, and that the three empty shells found outside the basement window bore marks showing that they had been fired from the defendant’s gun.
¶6Clifford Bovee was a half block from the place when the shooting occurred, and when he got to the corner he saw a model A Ford coupé, of dark color, drive out of the driveway of the deceased’s house. The car had no lights burning at the time.
¶7A police officer went to the Haning home immediately after the shooting, and then to the store of the defendant, *547where they immediately arrested him, and his car, a model A Ford coupé, was parked outside; the radiator was still warm, and it was a dark colored car.
¶8The defendant in his evidence endeavored to show an alibi, and that he and Emmons were some place else, riding around in his car at the exact time of the shooting, but the jury failed to be impressed in any way by this attempted alibi.
¶9Vernon Clark, a filling station operator, testified that, between 10:30 and 10:45, a very few moments before the shooting, the defendant drove into the station for gasoline; that he acted queerly, and witness watched him carefully, as he thought he might be a holdup; that Emmons came from Riley’s café across the street and got in the car and they drove away.
¶10The deceased was sitting in the basement facing the window opening from which the three shots were fired into his chest and stomach. The window was open, there being no glass or anything to obstruct his view of the murderer, save the screen. The others in the room saw the light of the flashes; the deceased at once positively stated that it was the defendant who shot him. I find nothing in the evidence to make it impossible that the deceased, facing the window and, looking out after the first shot, did not see and recognize the defendant. He never wavered from this positive recognition during the six hours he remained alive. Exhibit No. 19 is a picture taken from the inside of the basement room of the aperture, showing the screen with the three bullet holes through it, and a very clear outline of a police officer standing outside the window, and this picture was taken the same night at 11:30 p. m. The evidence shows that when deceased was lying upon the operating table in the hospital, and the defendant was brought into the room, he made the statements set out in the main opinion, the last one being, “Sure, he is the man that shot me.” This evidence was given at the trial without objection, and was clearly proper under the authority of O’Hearn v. State, 79 Neb. 513, 25 *548L. R. A. n. s. 542. See, also, State v. Guffey, 39 S. Dak. 84; State v. Claymonst, 96 N. J. Law, 1.
¶11The defendant took the witness-stand and denied that he shot the deceased. He was asked when he had been at that house previously, and answered, “I never have been there for fifteen months, — that time I got shot with Earl Haning.” He testified that in 1929 or 1930 he married another woman, but that they were now divorced, and that he had' only been back at his place of business about 10 minutes when the officers arrested him the night of the shooting. When cross-examined about statements he made to the police the night he was arrested, he said: “I answered questions down there I never should have.” It is very rarely indeed that such definite, positive, and convincing evidence can be produced in a murder trial, as was given to the jury in this case, upon which to base their verdict of guilty.
¶12In the main opinion this conviction and sentence are reversed because the trial judge gave instruction No. 15 on circumstantial evidence, when he might have chosen a much better one. As printed in the defendant’s brief, it reads as follows:
“The evidence in this case is largely what is known as circumstantial evidence; that is, evidence of facts and circumstances tending to indicate guilt, rather than testimony of eyewitnesses.
“You are instructed that in considering- circumstantial evidence, if the circumstances tend to prove some fact equally consistent with defendant’s innocence or guilt, then you must find all such facts in favor of the defendant.”
¶13Defendant objects to the use of the word “largely” because defendant claims that the evidence was “entirely” circumstantial. This objection has little foundation, for a large amount of evidence is “direct” evidence of the most positive sort.
¶14It stands to reason that the trial judge, by giving more time and care, could have selected a very much better instruction upon circumstantial evidence, from the dozens *549of approved instructions on circumstantial evidence found in text-books on instructions to juries, but in the haste of the trial he dictated and gave the one above set out. Are there such vital defects and important omissions in the instruction as given as to have prejudiced the defendant, and to make it mandatory upon this court to reverse this verdict and sentence? I claim that the instruction as given was favorable to the defendant, and not prejudicial to his interests.
¶15Next, I claim that this court is positively forbidden to reverse this conviction and sentence by enactment of our legislature, being the last paragraph of section 29-2308, Comp. St. 1929, reading as follows:
“No judgment shall be set aside, or new trial granted, or judgment rendered in any criminal case on the grounds of misdirection of the jury, or the improper admission, or rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.”
¶16We find that this section was added to our law by an amendment introduced by Senator Walter V. Hoagland, an experienced trial lawyer, and, upon its passage, was approved by the governor April 8, 1921. It has been contended that, whenever this provision of our law conflicts with our Constitution, the legislative enactment fails.
¶17I admit that it must be applied cautiously, and that it is subject to sections 3, 6, and 11, art. I of the Constitution, and that no case could be affirmed under its provision if such decision was violative of any one of these three sections. In examining each of these constitutional provisions, it is my opinion, that the defendant in the case at bar was not deprived of his liberty without due process of law, as promised him in section 3, art. I of the Constitution, and he has been given a fair and impartial trial by a jury, as promised to him in section 6, art. I of our Constitution, and has faced the witnesses testifying against him, and been protected by the other provisions set out in *550section 11, art. I of our Constitution, and these witnesses who faced him at his jury trial gave such overwhelming and convincing evidence that the jury promptly returned a verdict of murder in the second degree against him.
¶18This last part of section 29-2308, Comp. St. 1929, was given an extended discussion in the opinion reversing Scott v. State, 121 Neb. 232, and extensive quotations were made from the leading English case of Makin and Wife v. The Attorney General for New South Wales, 17 Cox Cr. Cas. 704. Let us examine the Makin case, which is cited as a precedent for a reversal of criminal cases, in spite of the section of our statute cited above. Makin and wife were found guilty of the murder of Horace Amber Murray, being an illegitimate baby, under 10 weeks’ old, the child of a domestic servant, which the Makins had taken in to nurse upon the payment of a small sum, and upon their representation that they desired to adopt the infant as their own. During the trial of the case, evidence was introduced showing the finding of the bodies of other little infants under circumstances implying that Makin and wife might have been connected with their deaths also. The admission of such evidence was immediately attacked, and the trial judge, realizing the weight of the objection, reserved passing sentence on the prisoners. Lord Chancellor Herschell, in reviewing the case, said that the trial court was wrong in admitting evidence of the finding of the bodies of other infants, and set out that it was claimed there was no evidence of how the little infant came to his death, or that he was murdered by the defendants, but that if, without the inadmissible evidence, there was evidence sufficient to sustain the verdict, and to show that the accused were guilty, then there would be no substantial wrong, or miscarriage of justice. The final paragraph in this case reads as follows: “Their Lordships desire to guard themselves against being supposed to determine that the proviso may not be relied on in cases where it is impossible to suppose that the evidence improperly admitted can have had any influence on the verdict of the jury, as *551for example where some merely formal matter not bearing directly on the guilt or innocence of the accused has been proved by other than legal evidence.”
¶19Another English case referred to is that of Allen v. The King, 44 Can. Sup. Ct. 331. Allen, a private soldier, was tried for shooting his captain at Victoria, British Columbia, and sentenced to death, the defense being temporary insanity by reason of overindulgence in alcohol. In this long opinion of more than 30 pages, the Canadian provision, found in section 1019 of the Canada Criminal Code, is set out, and is very similar to the last paragraph of section 29-2308, Comp. St. 1929, under discussion in this case, and it is shown that in the trial of the case Allen was asked whether a witness, Corrigan, had not testified, in the preliminary hearing in the police court, of threats made by Allen against Captain Elliston, and a number of such very damaging statements testified to by Corrigan at the preliminary hearing were thus injected into the evidence, although at the time this was done Corrigan had left the army as a consequence of being afraid to stand cross-examination if called as a witness at the jury trial, and was not in the province when the trial was held. It is clear from this statement of the facts that substantial wrong was done to the defendant, Allen, by the admission of this highly improper evidence, and that the court was right in setting aside the conviction of Allen for miscarriage of justice although dissents were filed.
¶20These two cases were doubtless closely in point when applied to the facts in Scott v. State, supra, but can they be used with equal force as precedents in the case at bar, where the reversal is based largely on the fact that the court failed to give the jury a guide to determine the sufficiency of circumstantial evidence to warrant a conviction ?
¶21I believe the jury gave only the proper weight to the circumstantial evidence under the instruction given them, which told them that, if a fact was equally consistent with the guilt or innocence of the defendant, they must find all such facts in favor of the defendant.
¶22*552In our present state of unrest, resulting in a rising tide of lawlessness and crime, this court should, in my opinion, be very reluctant to reverse verdicts of juries unless the members of this court can say that a substantial miscarriage of justice has occurred, as required by section 29-2308, Comp. St. 1929.
¶23I adopt the language of Judge Rose in his dissenting opinion in Cooper v. State, 120 Neb. 598, and close this dissent with his words: “I made ‘an examination of the entire cause,’ and I say with conviction there was no prejudicial error or miscarriage of justice in the proceedings and sentence. Under the evidence a verdict of not guilty would have been a travesty on justice and a reproach to the law.”