¶1— The only poisoning charged in this'case is that by phosphorus. If there was no poisoning by phosphorus, then it is not pretended that there was any poisoning at all. In my opinion, the preponderance of evidence supports the conclusion that there was no phosphorus poisoning. The indications of such poisoning were lacking. There was no garlicky odor on the breath before death, and there was no luminosity apparent when the test of the Mitscherlich process was applied after death. The garlicky odor, if apparent in the portion of the stomach and intestines subjected to examination after death, may be accounted for by two circumstances. Such odor is usually made apparent by the decay of the human body, and this decay had commenced when the portion of the. stomach and intestines were taken from the body (to which the process above mentioned was applied) some seven or eight days after death. The other circumstance is this: that for some fifteen or twenty days prior to the death of Mrs. Bowers a compound containing phosphorus had been given to her by the physician or physicians in charge. These two facts account for whatever garlicky or alliaceous odor may have been perceived after death.
¶2The evidence tends strongly to show that Mrs. Bowers died from disease indicated by the symptoms which manifested themselves during her illness and by the conditions of the body after death; this was the opinion of some of the physicians who testified upon the trial.
¶3Upon a full consideration of the evidence in the case, I am of opinion that the preponderance of evidence sustains the conclusion that Mrs. Bowers did not die of phosphorus poisoning, and that, in the judgment of men of average intelligence and discretion, the evidence would establish the conclusion that the defendant could not be held to be guilty beyond a reasonable doubt. Where ■this is the case, there should be no conviction.
¶4For the foregoing reasons, I am convinced, that--the *419verdict ought not to stand, and that the judgment and order should be reversed, and the cause remanded for a new trial.
¶5McFarland, J., dissented,