Opinion.

The appellant and one "William Hutchinson were convicted of murder on the indictment in this cause at the August term, 1880, of the Circuit Court of Lee county. The verdict of the jury at that time was, “guilty of murder, and we, the jury, affix the punishment at imprisonment in the penitentiary for the period of seven years.” On motion this verdict was set aside by the circuit judge, and appellant was admitted to bail in the sum of $500. She was again tried at the February term, 1881, of the said Circuit Court of Lee county, and again found guilty of murder, and the punishment fixed by the jury to be imprisonment for life. Appellant .again made a motion for a new trial, and from a judgment overruling it she prosecuted this appeal. The evidence, in short, is to the effect: Appellant, for some mouths preceding the murder with which she is charged (and for which William Hutchinson has been convicted and executed), was a member of Hutchinson’s family, living in open and shameless adultery with him. There was, as would naturally be inferred, enmity between appellant and the wife of Hutchinson, and there were probably a number of difficulties between them, in which Hutchinson took part against the wife. On the night of, or preceding the homicide, Hutchinson and appellant slept together, the wife and her daughter, a girl of some fourteen years, occupying another bed in the same room. During the night there was a rain; about daylight in the morning, Hutchinson’s wife was discovered at or near an old stable, dead; her skull was crushed and there was blood where she was found and a larger quantity some yards nearer the residence; between the points where the blood was found there were some tracks, made since the rain, of a single person, made by a shoe not less in size than a number 1; a dry club was found near the stable, and on it there was blood; there was also some blood on some logs which were near the stable. About daylight, or a little before, Hutchinson went to the house of his employer and fed the stock; a few minutes after he had left appellant also appeared there and stated to the em*109ployer (Mr. Pratt) that Martha (the deceased) 'was dead;' that she had fallen out of the stable and killed herself. She also soon afterwards went to the house of another person living in the vicinity and made the same statement. These neighbors soon appeared at the scene of the homicide, when the indicia of crime above stated were found, except that the body of the deceased had been carried from the place where it was found to the house. Hutchinson and appellant were then arrested, and Hutchinson remarked, “You can’t prove it.” He and- appellant looked at each other and smiled.

The daughter of the deceased was examined as a witness on the trial before the committing court, and also on both trials in the Circuit Court; her testimony differed in some material particulars on each trial. On the last examination she stated, in addition to the fact that there had been several difficulties between appellant and deceased, that on the night of the killing appellant and deceased were quarreling; that they all went to sleep, and some time during the night appellant got up and went to the bucket to get water; she did not know at what hour this occurred. Witness then went to sleep, and a little before daylight was awakened by her father, who came into the room, took off his shoes and put on a pair of boots; he then went to the bed where appellant was and asked her where he could get another pair of trousers, and on being informed where they were he took them and put them on in place of those he then wore; he then sent witness after water, which was some distance away, and when she returned the accused had prepared breakfast, and told witness to call her mother to breakfast; witness called her mother, but, receiving no answer, asked accused where her mother was, to which deceased replied that she was down at the stable getting some boards with which to build a chicken coop; witness then went down to the stable and there found the body of her mother; accused then told witness to call her father,' which she did, and the three carried the body from the stable to the house.

Another witness stated that in the fall preceding the killing there was a fight between appellant and deceased, in which Hutchinson took part against deceased, knocking out one of her teeth, and that at this time accused said to him, “If you don’t do what you promised, I will.” It was also proved that Hutchinson wore a number I shoe; appellant, No. 5.

*110Admitting all the evidence to be true as given, and deducing therefrom all reasonable inferences, it is insufficient to establish that certainty of participancy in the crime by the appellant which the law requires. That murder was done there is no lack of proof; that it was done by the husband the evidence leaves no doubt, but the evidence fails in any manner to connect the appellant with the killing, or even to show that she had any knowledge of the homicide until the discovery of the body of the deceased by her daughter. Every fact proved by the evidence, or which may reasonably be inferred from it, except that of the unlawful intercourse between appellant and the husband, is as consistent with an hypothesis of her innocence as her guilt. The fact that she sent the daughter to the stable to find the deceased may have been either from a belief that she was there engaged in the occupation stated, or it may have been done with a design that the daughter should be put forward as the first discoverer of a secret crime; so the calling of the neighbors may have been in good faith the communication of the fact of the death of the deceased, and the method of her death may have been honestly believed, or it may have been a mere subterfuge to divert suspicion; no circumstance proved points necessarily to the guilt of the appellant; they are, it is true, consistent with her guilt, but they are not inconsistent with her innocence. The most unfavorable evidence is that which shows her unlawful intercourse with the husband of the deceased, but this does not warrant a conviction for another and distinct crime, nor withdraw from her the protection of that shield which the law permits every person, no matter how debased, to interpose against crime charged, the presumption of innocence, until the accusation is sustained by competent and sufficient proof.

The judgment is reversed and new trial awarded.