¶1delivered the opinion of the court.
¶2We are not satisfied to affirm the judgment in this case. It is impossible for the mind to repose with any confidence on the verdict rendered on the testimony in the record. Both the eyewitnesses, the defendant and the witness Miller Shelly, make out a case favorable to the defendant. The state is driven to rely upon the physical facts, and the mere statement of the defendant that he had killed the deceased, without showing how or under what circumstances. The state itself, by a witness, shows that the defendant gave the same account of the killing immediately after it occurred that he did upon the witness stand a year later. Neither the defendant nor the witness Miller Shelly was impeached in any mode known to the law. In this very unsatisfactory condition of the record, we prefer to reverse this case on the facts and remand the cause for a new trial.
¶3If the witness Shelly is a witness not to be believed, the state may easily impeach him; and it may be, besides, that the state may be able to procure other testimony on another trial more satisfactory. We cannot, with both the eyewitnesses making out a case favorable to the defendant, and' the state offering nothing but a mere statement that the defendant had killed the deceased, and certain physical facts which in our judgment are of little value as showing guilt, get our consent to affirm this conviction of murder. The jury, it is true, are the judges of the credibility of the witnesses and the weight of the testimony; but there are cases, and this seems to us to be one of them, in which the jury have arbitrarily and without reason appearing in the record disregarded the positive testimony of an independent eyewitness. If we could find in the testimony of Miller Shelly anything which would warrant the jury in discrediting him, it would be different; but the witness testified with unusual intelligence for one of his race, and, so far as *873we can see from his whole testimony, seems to have delivered his testimony fairly and without any motive disclosed for falsification.
¶4Reversed and remanded.