majority">Whitfield, O. J.,

delivered the opinion of the court.

After the most careful consideration of tbe evidence in this case, we are clearly of tbe opinion that the part of the skull exhibited to the jury in this case and the evidence as to the post-mortem examination should all have been excluded from the jury. This post-mortem examination occurred two years after the burial of the deceased. The evidence shows strongly the action of the elements of decay upon the skull. Only half of the head was brought before the jury, and that half in several fragments, requiring to be held together, as indicated by the evidence. The post-mortem examination was ex parte, without notice to the defendant. It is not a ease of a postmortem examination made within any recent time after burial, but one made, as stated, two years thereafter.

Three physicians were examined' — two for the state, and one for the defense — as to whether the condition of the skull was substantially the same at the time of its exhibition to the jury as it was when the deceased died, and there is anything but harmony between the physicians on this subject.' Dr. Turnipseed, speaking in response to the question, “Was it fractured to that extent when you made your examination?” replied: “No, sir; it was not. If it had been, I would have felt that giving away feel, and I didn’t do it.” He says again: “I pressed with great pressure over the wound, and could not detect any deformity whatever. I could not cause the bones to sink down — any sinking, giving away, or boggy feel. I could not detect any softness by palpating or pressing around the wound on the surface.” And again he said: “It seems to me like it would be a very easy matter to detect a fracture in this condition [i. e., the condition of the skull when exhibited to the jury]. It seems to me like most any child could detect the fracture in this case, and the slightest little *62pressure in such a fracture as that would produce a boggy feel, with pressure.” Dr. Coleman on the cross-examination very sensibly observed: “I will say this. It is unfortunate that you have not got the whole skull, because, as I understand it, this man has been buried two years,” Dr. Carnes testifies, in speaking of the condition of the body in the grave, that he found the skeleton lying there; that, of course, the flesh had all rotted; and that he separated the head from the body and lifted it out. lie says, further, that the skull was lying attached to the body, and was covered with mold and decayed matter, so much so that the breaking at first was not so apparent, but that on closer examination he found that the skull was crushed,' so much so that a little pressure there caused a little part of it to fall in. He says the whole skull was in a natural position at the time he found it, and that he separated the part of the skull exhibited to the jury with a bone saw, and removed the part that showed the effects of the injury, with the exception of about one-half an inch, where the cracked part ran so far back that he did not notice it until he had sawed through. He also stated that, from the general crushing of the bones on the left side of the head, it was necessary fo place cotton therein. He further says that the fractures were all broken out clear, so that, in examining the bone, those fractured parts dropped out, and that the part exhibited to the jury was all absolutely broken in, so that it fell out almost On touch, and that they were broken before the examination, and that, as he continued the examination, to see the extent of the fracture, all those pieces dropped in, and he took them out of the decayed matter inside of the head, so that he could place them back in position. He further says that the inner wall or lining was all decayed, and that that was the reason the parts dropped in.

It must be noted that we are not speaking of this testimony with respect to the single fact as to whether.the skull was the skull of the deceased, in other words, with respect to the iden*63tification of the skull. We are dealing solely with the question of the competency of this evidence, as showing with the clearness that it ought to have been shown that the skull, granting it to be the skull of the deceased, was in the same condition at the time of its exhibition to the jury that it was in at the time of the burial. On this proposition the rule is thus laid down in Wigmore. on Evidence, sec. 1154, subd. 6: “The present condition of an object may not be the same as at the time in issue, nor so nearly the same as to the proper evidence of its former condition. Accordingly, autoptic preference is allowable only on the assumption that the condition is the same or sufficiently similar.” That is the precise point. Was the evidence in this case, on this subject, proper evidence of the former condition of this skull? It must be admitted that this is a character of evidence quite likely to unduly weigh with the jury, and for that reason its admission should be most scrupulously guarded. All the proper preliminary evidence should be clear and satisfactory. It is said in 2 Wigmore on Evidence, sec. 1157, at p. 1354, after reviewing the cases: “There is a natural tendency to infer from the mere production of a material object the truth of all that is predicated of it. Second, the sight of deadly weapons, cruel injuries, etc., tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence.” All this applies with marked emphasis to the production before an average jury of the skull' of the deceased.

Weighing the matter carefully, we are constrained to think this testimony falls far short of measuring up on the point indicated to legal requirements, and for this error alone, not now passing on any other assignment, the judgment is reversed, and the cause remanded for a new trial.

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