Opinion
No. 36861.
Filed November 15, 1968.
1. Criminal Law: Evidence. Circumstantial evidence is not sufficient to sustain a verdict unless the circumstances proved by the evidence are of such nature and so related to each other that the conclusion reached by the fact finder is the only one that can fairly and reasonably be drawn therefrom. 2. ___: ___. The test by which a jury shall determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt.
Appeal from the separate juvenile court of Douglas County: SEWARD L. HART, Judge. Reversed and remanded with directions to dismiss.
Frost, Meyers Farnham and Duane J. Dowd, for appellant.
Donald M. Knowles and J. Thomas Rowen, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This action was initiated in the separate juvenile court of Douglas County, Nebraska, to declare 16-year-old Michael Steven Guy a "delinquent" child. The basis for the action was a charge of breaking and entering a grocery store. Guy was adjudicated delinquent and ordered committed to the Boys' Training School at Kearney, Nebraska.
On September 8, 1967, at approximately 2:45 a.m., Mrs. Mostek was awakened by the sound of glass breaking. Her home is approximately half a block from the Vey's Foodland Grocery Store. When she looked across the street, she observed "two boys" who both entered the store. One was blond and one had dark hair, and one was shorter than the other. She called the police. She again looked at the front of the store and saw both boys come out of the store. Later the boy with the blond hair went back into the store, and the boy with the dark hair was walking up and down in front of the store. After 2 or 3 minutes, the unidentified boy in front of the store ran south on Sunshine Drive toward Drexel Street. She watched him until some trees blocked her view. She could not see as far as the intersection of Sunshine Drive and Drexel Street. After a short period of time, she observed the police arrive with "a figure" in the car.
Meanwhile, two police officers in a cruiser had received the call to proceed to the store to investigate the burglary. The call was received at 2:50 a.m. The officers were proceeding west on Drexel Street, with the lights turned out. As they neared Forty-second Street, they observed someone running east on the sidewalk on the north side of Drexel Street. They turned the spotlight on him and he stopped. The officers spoke to him briefly, placed him in the cruiser, and proceeded to the store. From the point at which the officers stopped the appellant, they could see the roof of the store about half a block away. When the officers arrived at the store, they joined other officers already at the scene and assisted in the arrest of another individual who was found in the store. No incriminating evidence of any kind was found on the appellant when he was searched. There is no evidence in the record as to whether the appellant's hair was blond or dark, nor whether he was taller or shorter than the individual who was arrested in the store.
The State moved to dismiss the case until a later date after a portion of the evidence had been introduced, and for a continuance at the time the State rested. Counsel for the State said that the State did not think it could prove its case without the testimony of the other individual arrested in the store and that that testimony would not be available until a later time. The continuance was denied. The, appellant introduced no evidence and moved for dismissal. The motion was overruled and the adjudication of delinquency and order of commitment followed.
The appellant contends that the evidence is insufficient to sustain the judgment, and that the standard of proof in juvenile cases based on a charge of crime must be beyond a reasonable doubt rather than by a mere preponderance of the evidence. We deem it unnecessary to discuss the constitutional issue of the burden of proof required in juvenile court. Under either a civil or criminal standard of proof, the evidence was insufficient. The unexplained presence of an individual on a public sidewalk in the vicinity of the place where a crime has been committed at a time shortly afterward is insufficient to carry the burden of proof, no matter which standard is applied in juvenile court.
In a civil case, Raff v. Farm Bureau Ins. Co., 181 Neb. 444, 149 N.W.2d 52, we said: "Plaintiff may establish his case by circumstantial evidence as well as by direct evidence, yet circumstantial evidence is not sufficient to sustain a verdict unless the circumstances proved by the evidence are of such nature and so related to each other that the conclusion reached by the jury is the only one that can fairly and reasonably be drawn therefrom."
"Where several inferences are deducible from the facts presented, which inferences are opposed to each other but equally consistent with the facts proved, the plaintiffs do not sustain their position by a reliance alone on the inferences which would entitle them to recover." Popken v. Farmers Mutual Home Ins. Co., 180 Neb. 250, 142 N.W.2d 309.
"The test by which a jury shall determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt." Hoffman v. State, 162 Neb. 806 77 N.W.2d 592. See, also, Reyes v. State, 151 Neb. 636, 38 N.W.2d 539.
An adjudication of delinquency based on a specific charge of misconduct should not be affected by facts, conclusions, or inferences outside the record, nor on the mere fact that some unfavorable circumstances are not satisfactorily explained. A juvenile is surely entitled to a presumption of innocence on a specific charge of misconduct, whether the juvenile court is governed by civil or criminal standards of proof in delinquency proceedings.
The evidence here is insufficient to support the judgment. Appellant's motion to dismiss should have been sustained. The judgment is therefore reversed and the cause remanded with directions to dismiss.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.