Opinion
No. 33978.
May 6, 1940.
1. HOMICIDE.
Where no one saw person who fired fatal shot, and evidence of such person's identity was wholly circumstantial, evidence must exclude every reasonable hypothesis other than that of defendant's guilt, in order to authorize conviction of murder.
2. CRIMINAL LAW.
Criminal verdicts cannot rest on probabilities, and circumstantial evidence leaving it indifferent which of several hypotheses is true or merely establishing some finite probability in favor of one hypothesis rather than another, cannot amount to proof under rule requiring actual exclusion of every other reasonable hypothesis in order to authorize conviction.
3. HOMICIDE.
In prosecution for murder of one shot at night through window of house, circumstantial evidence concerning identity of person who fired the shot held not to authorize conviction.
APPEAL from the circuit court of Attala county; HON. JNO. F. ALLEN, Judge.
Alton Massey, of Kosciusko, for appellant.
The trial court erred in overruling defendant's motion to exclude the evidence offered by the state and direct a verdict of not guilty.
The only witness who claims to have identified the defendant is the witness, Rufus Peeler. True, this witness says he saw John Moore pass his house shortly before the shooting, and shortly after the shooting he saw him (John Moore) crossing a cotton patch running. This, at most, is a circumstance. It is the sole and only circumstance shown in evidence which has any tendency to identify the defendant as the guilty person. There was no evidence to show that the defendant was even acquainted with the deceased. There was no evidence tending to show that there was any bad feeling between the defendant and deceased. There was no motive shown in evidence why this defendant should have shot the deceased. In the absence of some proof showing a motive, a cause, a reason why this defendant would commit this murder, it is submitted that this one single circumstance of being seen shortly before the shooting and shortly after the shooting is itself insufficient to justify a conviction. This one sole circumstance does not exclude every other reasonable hypothesis, as the law requires of circumstantial evidence.
Permenter v. State, 99 Miss. 453, 54 So. 949.
The evidence offered by the state up to the close of its evidence does not present a chain of circumstances so strong as to exclude every other reasonable hypothesis. This crime might have been committed by many others besides the defendant. No cause, reason or motive being shown in evidence, or attempted to be shown, it could with as much reason have been some other person. Where this is the case, the evidence is not sufficient to sustain a verdict of guilty.
Nalls v. State, 9 So. 892, 128 Miss. 277.
The trial court erred in not granting a peremptory instruction requested by defendant at the conclusion of all the evidence.
Harris v. State, 120 So. 206, 153 Miss. 1.
Russell Wright, Assistant Attorney-General, for appellee.
In view of all of the testimony presented by the defense for the purpose of weakening the identification of John Moore by the witness Rufus Peeler, and the positive unobjected to testimony of Rufus Peeler and Thornton that the said Peeler had told the witness Bailey that it was John Moore who passed his house and then ran back away from the home of the deceased immediately after the shot. I submit that any possible error of the court in overruling the objection to the answer that the witness Bailey had information that it was John Moore was cured and harmless. The rule is that the error is harmless, where the fact to which such incompetent evidence relates is otherwise established by competent evidence.
King v. State, 74 Miss. 576, 21 So. 235; Lipscomb v. State, 75 Miss. 559, 23 So. 210; Lipscomb v. State, 76 Miss. 223, 25 So. 158; McClelland v. State, 98 Miss. 735, 54 So. 251; Rucker v. State, 152 Miss. 143, 119 So. 176; Willette v. State, 67 Miss. 172, 148 So. 788; McPherson v. State, 124 Miss. 361, 130 So. 729; Clayton v. State, 131 So. 648.
We have a jury question, which the court is not at liberty to decide. There was the positive identification of John Moore as the person who went toward deceased's house, and the subsequent flight immediately after the shot, of John Moore, who not only fled the scene, but fled the state and was found working under an assumed, fictitious name in New Orleans. The bloodhounds tracked the identified man from the tracks by the window to where he could catch a train away from Kosciusko. The bloodhounds followed across the fence John Moore was seen to cross a few seconds after the shooting. It may be that the court would say, if a motion for a new trial had been filed, that the verdict was contrary to the weight of the evidence. But no such motion was filed. The identification of John Moore was positively made on the witness stand. His defense was an alibi. The jury decided in favor of the identification, and I submit the cause should be affirmed.
The appellant was convicted of murder and sentenced to penitentiary for life.
The deceased was shot at night through a window of her house. No one saw the person who fired the shot, the evidence as to who did so being wholly circumstantial; consequently in order for the appellant to be convicted the evidence must exclude every reasonable hypothesis other that that of his guilt. A finding that the appellant shot the deceased must rest, in the last analysis, on the testimony of Rufus Peeler and inferences draw therefrom in the light of the other evidence. All that this witness said may be true, nevertheless the utmost that could be inferred therefrom, though reenforced by the other evidence, is that the appellant probably shot the deceased, and verdicts in criminal cases cannot rest on probabilities. "It is the actual exclusion of every other (reasonable) hypothesis which invests mere circumstances with the force of truth. Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be." Algheri v. State, 1853, 25 Miss. 584. Such in 1853 was and still is the law. Hogan v. State, 127 Miss. 407, 90 So. 99; Harris v. State, 153 Miss. 1, 120 So. 206.
The request of the appellant for a directed verdict of not guilty should have been granted.
Reversed and appellant discharged.