Opinion
No. 35487.
June 5, 1944.
CRIMINAL LAW.
Where majority of justices of Supreme Court voted for reversal of judgment of conviction, but there was not a majority to reverse and dismiss, judgment was reversed and cause remanded.
APPEAL from the circuit court of Humphreys county, HON. S.F. DAVIS, Judge.
N.W. Sumrall, of Belzoni, for appellant.
The identification of appellant was made under such circumstances and conditions so as not to make his identity certain beyond every reasonable doubt and to a moral certainty.
The alibi plead by the appellant was worthy of belief and was not broken down, and further the state did not prove that the alibi was not true.
This was not a case of circumstantial evidence. This is a case in which the state relies solely on the question of the identity of the assailant. That identification was positive. There was positive evidence to the exclusion of any circumstantial evidence. The issue was sharply drawn. The state relied upon the identification; without it the state had no case. The defense was an alibi, pure and simple. How the state's attorney can go off on circumstantial evidence is beyond me to see. All his argument and law falls short of the mark, because there was not even a semblence of circumstantial evidence relied upon by either side.
I submit that the verdict of the jury in the light of all the testimony in this case is manifestly wrong, not supported by the evidence, and contrary to the overwhelming weight of the evidence, or testimony.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
This is a case relying on circumstantial evidence and in such cases the jury has a wide discretion, as also has the court in admitting evidence, to consider all facts that throw light on the propositions involved. The jury, of course, has a right to consider, in such cases, each fact as to probitive value and the entire facts in their collective whole, as well as their separate probitive value, for the collective facts considered together may give value to one or more of the separate facts in addition to what it would have if considered alone.
Burrill on Circumstantial Evidence, pp. 176, 177, 601, 602.
Where a conviction depends upon circumstantial evidence, the legal test of its sufficiency for that end is its power to satisfy the understanding and conscience of the jury. It is sufficient if the circumstances produce moral certainty, to the exclusion of every reasonable doubt.
McCann v. State, 13 Smedes M. (21 Miss.) 498, 499; Cicely v. State, 13 Smedes M. (21 Miss.) 202; Browning v. State, 33 Miss. 47.
What circumstances will amount to proof can never be a matter of general definition; the legal test of its sufficiency to authorize a conviction in a criminal case is its power to satisfy the understanding and conscience of the jury. Absolute metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every reasonable doubt. Circumstantial evidence is peculiarly within the province of the jury, because it is always solemnly to be weighed and acted upon by their understanding and consciences; and from its nature is the subject of inferences and conclusions in their minds; a verdict, therefore, found on circumstantial evidence will always be permitted to stand, unless it is opposed by a decided preponderance of evidence, or is based on no evidence whatever.
Browning v. State, supra.
The character and weight of the evidence should control the jury rather than the number of witnesses and the jury need not accept all that any one witness has said and may reject the testimony altogether if it is against probabilities made by the whole evidence in the case. Of course, they must consider it all, and after considering it they may reject such as is not probable or reasonable.
Burrill v. Rau, 153 Miss. 437, 121 So. 118; True-Hixon Lumber Co. v. Thorn, 171 Miss. 783, 158 So. 909; Mississippi Digest, Title "Criminal Law," Key No. 359.
When we apply these rules to the evidence in this case and give the jury its rightful functions, I think that the judgment is sustained by the evidence.
Appellant was indicted and convicted upon a charge of an attempt to rape. There is no doubt that such an attempt was made. The difficulty is in the identity of the offender. The crime was committed about two o'clock at night, in the bedroom of the intended victim, and there were no lights. Two young lads who were sleeping in an adjoining room, heard the outcry and reached the room in time to see the offender as he fled but neither they nor the intended victim were able to identify him or to say whether he was white or black. We will omit further mention of details, as to what happened at the time and during the next two days, and as to the various statements made by the victim and the two lads during the two days following the offense, and will mention only that on the third day the victim made what is alleged to have been a positive identification of appellant as the guilty person, and she thereafter clung to that version and asserted it with unreserved positiveness on the trial. We omit the facts of the alibi, and all other details, which would be of some length if pursued in every material feature, and will add only that the record has been examined and reexamined with the utmost care.
Reversal is sought on two grounds, (1) that the court should have granted appellant the peremptory instruction requested by him; or (2) that the verdict should have been set aside as being against the weight of the evidence.
In the record there is an order overruling the motion for a new trial, but the motion itself does not appear. It it stated by the attorney for appellant in his brief that he kept no copy of his motion for a new trial and that the original motion having been misplaced he was unable to supply it with a copy, having kept no copy, and he states that the grounds of the motion were substantially the same as his present assignments of error, all of which, except as to the peremptory instruction, go to the issue of the weight of the evidence, and save as to one minor item.
One member of the court is of the opinion that the testimony is sufficient to sustain the verdict. Another member is of the opinion that the evidence is sufficient to avoid a peremptory charge and that we cannot consider the assignment that the verdict is against the weight of the evidence in the absence of a motion in the record from which we can see from the motion itself that this was made one of its grounds. Another member is of the opinion that the testimony is sufficient to escape a peremptory charge, and that inasmuch as the record shows that a motion for a new trial was made and overruled, and that since the whole case has been litigated upon the issue of identity and the sufficiency of the evidence on that issue, we ought to consider it so highly probable as to treat it as a fact that the motion did assert and rely on the ground that the verdict is against the weight of the evidence, and so treating it he is of the opinion that the verdict is against the weight of the evidence; and three members of the court are of the opinion that the case falls within the rule announced in Truckers Exch. Bk. v. Conroy, 190 Miss. 242, 250, 199 So. 301, and similar cases, and that the peremptory charge should have been given.
There being four votes for a reversal, but not four to reverse and dismiss, the order is that the judgment be reversed and the cause remanded.
Reversed and remanded.