No. 749, Ind. T. | Okla. Crim. App. | Nov 19, 1908
In harmony with the decisions of appellate courts generally, this court *405 reluctantly disturbs the verdict of a jury upon the ground that the verdict is not supported by, and is contrary to, the evidence. This court will not set aside a verdict where there is a substantial conflict in the evidence. But, when there is no such conflict, and where there is an absence of evidence to support the verdict, it is the duty of this court to set aside the verdict. It is not the purpose of this court to invade the province of the jury in the determination of questions of fact; but in the interest of justice this court will not permit a verdict to stand unsupported by competent evidence. We have carefully read, closely considered, and analyzed all the testimony in this case, and we are unable to harmonize the verdict with the evidence.
It is evident from the reading of the record in this case that the government upon the trial below proceeded upon the theory that a motive for the killing could be supplied by the proof of disagreements or bad blood between appellant and deceased, but the only testimony offered in support of this theory is the statement of the witness Harriman, who said that appellant and deceased on Friday before the killing were throwing clods at one another in front of his house, and that appellant said: "I will get you, gol durn you, yet." The evidence conclusively shows that, if bad blood at that time did, in fact, exist between the boys (which is denied by appellant), friendship and good will was in the meantime fully restored before the following day, for it is undisputed that the boys had been going back and forth from school together, played together, planned a hunting trip together upon the most friendly terms, and, as a very strong and controlling circumstance tending to show no ill will on the part of appellant toward deceased, he not only took his little brother with him, but invited the Franklin boy to join them also. This conduct strongly indicates that appellant had no ill will or hatred toward the deceased at this time, and that he did not intend to injure or kill him. It is unreasonable to believe that, if the accused harbored in his mind a malicious intent to kill or injure the deceased, he would invite witnesses to see the consummation of *406 said intent, and to furnish evidence of his guilt, nor would he take his intended victim upon the hilltop, in plain view of several houses, in daylight, and there injure or kill him. There is absolutely no evidence that there was any change of feeling on the part of appellant toward the deceased between the time they left the Franklin boy a short distance from the hunting grounds, and the time of the killing. There is no evidence of a struggle or fight. The shooting being admitted, it behooved the appellant to make a reasonable explanation of the killing. This he did.
In this case it is claimed by appellant that the killing was accidental, and purely a misadventure. It can be properly claimed that if the testimony tended to show that the accused was satisfied with the result of his act, or conducted himself in such way as to clearly show his approval of the shooting he could not afterwards be heard to say that the killing was accidental or excusable. In this case the conduct of the accused was not commendable. His denying all knowledge of the shooting, and telling conflicting and contradictory stories concerning it, is a serious reflection upon the truthfulness and discretion of the accused, but it does not show his approval of the killing. His conduct after the killing, however, may have formed the basis in the minds of the jury to cause the verdict herein. Was the jury justified in the light of all the evidence? We think not. It doubtlessly would have been better in this case, as in every other case, for the accused to have told the whole truth in the beginning. But we often find persons of mature years, and with much more intelligence and experience in the affairs of life, under circumstances such as prevailed in this case, denying facts and circumstances manifestly in their favor if admitted by them at the time. Would it not, therefore, be unreasonable to expect more from a mere child?
A strong and convincing circumstance that we cannot overlook in this case is found in the fact that the only two eyewitnesses to the killing, namely, appellant and his brother, *407 McKinley, told the same story about the accident when they were separate and apart; and their statements agreed as to the facts concerning the killing, and under conditions showing that it was impossible for them to have agreed beforehand upon the story each should tell. The explanation of the killing, as finally made by appellant and his brother, have convinced us that this was a case of misadventure; and, if they had told the whole truth immediately after the occurrence of the homicide, it is the opinion of this court that the jury would not have rendered a verdict of guilty. In this case the court should have instructed, not upon the law of manslaughter, but upon the law of misadventure. Giving the evidence the most favorable consideration for the prosecution, no more than a mere suspicion or possibility could be inferred therefrom. Believing the rule of law to be that suspicions or possibilities, however strong, are not sufficient to convict of crime; and holding that there must be substantial testimony of the corpus delicti to justify a verdict of guilty, and finding no such testimony disclosed by the record in this case, we find that the court below erred in overruling appellant's motion for a new trial; and therefore the judgment of the lower court is reversed, and this case remanded.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.