The opinion
Walker, J.
The candid admission of the attorney general, who refused to defend the rulings of the court in this case, has not prevented us from examining the record, and though we think there is good reason for setting aside the judgment of the court below for error in law, other than that of our ruling, the . motion for new trial and the demurrer to the evidence, we feel it proper that we confine our remalles to matter appearing upon the statement of facts accompanying the record. We have, in at least one case at the present term of this court, *608 refused to disturb a verdict and judgment in the District Court,, where the members of this court were unanimous in the belief' that the court erred in refusing a new trial, because the verdict was found upon evidence of too doubtful and uncertain a character to be allowed to prejudice human liberty in a free country; and we did this rather than establish what we feared might be a bad precedent. But so strong was our conviction that gross injustice had been done, that we promptly united with the attorney general in a petition for executive clemency in behalf of the party whom we believe to have been injured. Our disposition not to disturb the verdicts of juries,, nor to exercise the discretion which should be exercised by the-District Court, can carry us no further.
In this case there was no evidence on which to predicate a. conviction. One witness, the prosecutor, swears to a state of facts in no -way inconsistent with the innocence of the appellant, whose own statement is proven by this witness for the State, and is in every way consistent with his innocence. Three witnesses are introduced by the appellant, all of whom testify to a state of facts going to establish his innocence beyond a doubt. The whole story is reasonable, candid, and, to all appearance, truthful, and the witnesses show no want of intelligence upon the stand.
A learned judge once said to a -jury who had rendered an. egregiously wrong verdict: “Mr. Clerk, that verdict is set aside. I want the people of Pennsylvania distinctly to understand that it takes thirteen men in this State to steal a man’s farm.” We think the learned judge should have said to the jury that tried Guy Brown, “ I want you, gentlemen, to understand that in the State of Texas it shall take thirteen men to-steal a man’s liberty.”
The judgment of the District Court is set aside and the-cause dismissed; and if the appellant is in custody he will be released, and the clerk of this court will notify the officer-having him in custody of this order.
Reversed and dismissed.