¶1dissenting:
¶2The majority of the court have concluded to affirm this judgment; I cannot concur and do not stand alone in this nonconcurrence. The case was first argued at Pittsburg before a full bench; it was then affirmed by a majority of the court, but three judges did not join in the affirmance and two of them dissented of record. Justice Thompson, who was then a member of the court, wrote a dissenting opinion in which I joined, but the court thought best to order a reargument, which was had at this term. In the meantime, Justice Thompson’s term, as a member of this court, had ended, so that, in fact, three judges nonconcurred in the judgment first determined on but in fact that left then the affirmation of the judgment standing by the bare majority of one of the court that first heard the argument. Affirmance of the judgment is now concurred in by five of the court who heard the reargument. While the judgment is that of the court, yet especially in a case of the gravity of this one, involving life, it has not the weight that it would have had if it had been rendered by an undivided court.
¶3Our act of 1870, section 2, enacts, that “In all cases of murder in the first degree,' removed into the Supreme Court, under the provisions of the first section of this act, or now pending in the said court, it shall be the duty of the judges thereof to review both the law and the evidence, and to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” I am aware that this court has given a very narrow construction to these comprehensive words and has decided that they do not empower the court to review the question of the guilt or innocence of *524the prisoner. See Grant v. Commonwealth, 71 Pa. 495, and several cases following it. Still, the question in a case like the one before us involves an argument of what are the ingredients necessary to constitute murder of the first degree. This judgment depends wholly upon circumstantial evidence and the first question that suggests itself to my mind is : Was there sufficient evidence of the corpus delicti, that is, was the body of the offense proven clearly when the necessary ingredient of the offense was, that a murder had been actually committed? It was an “ingredient” absolutely necessary for the commonwealth to prove, that a death had occurred from poison and then, that the intention in administering the poison was to take the life of the deceased; if these be not ingredients under the act of assembly, I cannot conceive what are; therefore, the circumstances must, under the rules governing the application of circumstantial evidence, point to the guilt of the accused and must be inconsistent with any other theory or, to adopt another form of statement, the circumstances must be irreconcilable with any other reasonable theory than that of guilt. I think the circumstances are entirely reconcilable with the theory of innocence, that is, that first, the accused may have administered arsenic with the intention, under the advice of a quack doctor, of producing a condition of illness which would make intoxicating liquor entirely repugnant to him and bring about a reformation in his propensity to drunkenness or, second that there is no sufficient evidence that death was caused by any poison administered with the intent to produce death. I do not differ from Gibson, Chief Justice, in his masterly opinion in Commonwealth v. Harman, 4 Pa. 269, on the relative value of circumstantial and positive or direct evidence, but in arriving at a conclusion of guilt from purely circumstantial evidence, circumstances must be irreconcilable with any other reasonable theory than that of guilt. In this case,the evidence,to my mind, points very strongly to the conclusion of innocence. I concede, that there were some circumstances which tended to cast suspicion on the accused but they were not significant; ought not to have the weight which the jury gave them. They seemed, from their verdict, to have arrived at conclusions without an unbroken chain of circumstances pointing to but one result, but to have jumped to a conclusion *525of guilt from immaterial circumstances. As Lord Bacon says in Aphorism 45 of his Novum Organum, “There is a natural tendency in the human mind to suppose a greater order and conformity in things than actually exist.” This as is stated by Best on Presumptions, sec. 193, “May proceed in certain cases from indolence or aversion for the patient and accurate consideration of minute and ever-varying particulars. But perhaps the most common source of inaccurate reasoning .from facts in cases of moral conduct is precipitation produced or heightened by moral emotion. This is particularly the case where a great crime has been committed.” The evidence points, here, significantly and conclusively enough to the fact, that the accused was not a good woman and her conduct on many occasions was reprehensible, but we cannot say that a woman shall be hanged because she is not a good woman. She can only justly be hanged, according to law, if she is guilty of murder, and yet these facts, to my mind, show nothing further than that this was a rough, uneducated woman, goaded to bad conduct by the drunkenness of a worthless husband, ofttimes expressing the very feelings that an exasperated woman would have toward a husband who had worried and illtreated her and she may, at the suggestion of the quack doctor, when she consulted him as to her husband’s propensity for drunkenness and how to cure it, have administered the powders he gave her, and it is possible that these contained, with antimony, arsenic, but the essential ingredient of the offense, that she administered these powders, if they were poisonous, with intent to produce death, utterly fails; but not only does the proof of the felonious intent fail, but proof of the essential fact that the death was caused by poison fails. True, there was some evidence that arsenic was found in the body of the deceased after death but not sufficient to have caused death. The jury jumped to the conclusion that the death was caused by poison because a poisonous drug in a small quantity was found in the body after death, and then they jumped further, to the conclusion that because the accused had made wild and unkind declarations with reference to her husband, that she desired and brought about his death by the administration of this poison. Taking the wholes evidence, fact by fact, as proven, and massing them all together, they do not convey *526to my mind properly the conclusion of guilt and I cannot concur in the judgment. As I have already noticed, these two essential ingredients of the offense are lacking : First, proof that death was caused by poison, and second, proof of the felonious intent that the poison was administered by the accused with intent to produce death. I have read this evidence very carefully and in the light of two able arguments, I cannot bring my mind to concur with the majority. I can see how the jury may have conscientiously found their verdict: First, on insufficient evidence, they found a great crime had been committed; then, on insufficient evidence, that the wife of the deceased had committed this crime. The case was most zealously and most ably prosecuted by the commonwealth. Every circumstance, no matter how trivial, was held up before the jury as indicating guilt, but the main facts which are necessary to constitute ingredients of the offense were lacking.
¶4For that reason, I would reverse the judgment and order a new trial.