majority"> Harris, J.

If Clarke, the defendant, was really guilty of burning the dwelling house of Newberry in the country, the testimony when taken together and carefully analyzed neither positively nor presumptively establishes the fact beyond a reasonable doubt. It is incumbent on the State to prove every accusation she makes; the testimony must convince the understanding beyond a reasonable doubt. This she failed to do in this case.

There is not only no positive testimony of Clark’s burning the house or participation in it — but the positive testimony of Burns that Clark and himself were, by military orders, kept behind, and a squad of Confederate soldiers whop names are given by witness, were ordered forward by Lieutenant Sibley in command, to burn the house for which act defendant was indicted and convicted.

A very important question could well have been sprung upon the Court in this case, which should have been decisive of it in my opinion, whether Clark burned the house or not.

The act was unquestionably one of war, against a supposed enemy; it was ordered by an officer in command, and the private could but obey. What else did he dare do? He cannot stop to question the authority of his superior! Obedience or death are the alternatives in military government in such cases. Military government is but another name for an absolute despotism; the subordinate almost always acts under coercion; his acts are the acts of others for which in the clear light of common sense, he cannot be held answerable in the municipal tribunals of the State.

*195If it be true that he burned the house of Newberry, but by the command of his superior officer in the usual course of prosecuting war, he should have been acquitted, not convicted. Let a new trial be had.

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