Opinion
No. 27,581.
Filed October 7, 1941.
1. CRIMINAL LAW — Appeal — Evidence — Circumstantial Evidence — Sufficiency — Rule Not Applicable on Appeal. — The rule, that circumstantial evidence, in order to sustain a conviction, must be of a conclusive character and must exclude every reasonable hypothesis of innocence of the accused, is for the guidance of trial courts and does not apply to the reviewing tribunal. p. 22.
2. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Conflicting Inferences Possible — Effect. — Where circumstantial evidence is of a character that two conflicting inferences may reasonably be drawn therefrom, one tending to prove or favorable to the guilt of the accused and the other favorable to his innocence, it is not within the province of the Supreme Court to determine which inference ought to control. p. 22.
3. CRIMINAL LAW — New Trial — Grounds — Finding Against Weight of Conflicting Evidence. — Where the trial court finds against the weight of conflicting evidence, it is an error of fact and not of law; and it is the duty of the court to correct such error by granting a new trial. p. 22.
4. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Conflicting Circumstantial Evidence Not Weighed. — The rule that the Supreme Court will not weigh conflicting evidence applies whether the evidence is direct or circumstantial. p. 22.
5. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Verdict Supported by Some Evidence on Which Inference of Guilt Reasonably Based. — It is only where there is no evidence from which the trial judge or jury, as the case may be, may reasonably have drawn an inference of guilt that the decision or verdict will be disturbed on appeal. p. 22.
6. CRIMINAL LAW — Evidence — Inferences — Fact in Nature of Inference as Basis of New Inference. — A fact in the nature of an inference may itself be taken as the basis of a new inference, whether immediate or final, provided the first inference has the required basis of a proved fact. p. 23.
7. CRIMINAL LAW — Evidence — Inferences — Facts Established by Circumstantial Evidence. — Since the rule of law that one inference cannot be based on another is so interspersed with recognition of exceptions, it must be concluded that there is no such rule; and a fact may sometimes be established by circumstantial evidence more firmly and thoroughly than by direct but conflicting evidence, and when a fact is so established by inference, it is as logical and reasonable a basis for further inference as a fact established by direct evidence. p. 24.
8. LARCENY — Evidence — Sufficiency — Circumstantial Evidence Supporting Conviction. — In a prosecution for grand larceny, where the larceny was sufficiently established, circumstantial evidence that accused, a needy person, was present when the money was taken and was seen to have bills of the denomination stolen shortly thereafter and that he sought to direct suspicion toward another person and attempted to persuade one of the state's material witnesses to leave the community before the trial, together with serious discrepancies in accused's testimony, was sufficient to sustain a judgment of conviction. p. 24.
From the Allen Circuit Court; Harry H. Hilgemann, Judge.
C.O. Brown was convicted of grand larceny, and he appealed.
Affirmed.
Thomas G. Moorhead, Russell J. Gordon, and James P. Murphy, all of Fort Wayne, for appellant.
George N. Beamer, Attorney General, and Joseph O. Hoffman, Deputy Attorney General, for the State.
The appellant was charged by affidavit with grand larceny, tried by the court without a jury, and found guilty. He has assigned error on the overruling of his motion for a new trial, in which it was asserted that the decision of the court was not sustained by sufficient evidence and that it was contrary to law.
The evidence in this case was largely circumstantial, and the appellant contends that it must be held insufficient to sustain the decision when either of two well-recognized rules of 1-5. law are applied. The appellant first undertakes to invoke the rule that circumstantial evidence, in order to sustain a conviction, must be of a conclusive character and must exclude every reasonable hypothesis of innocence of the accused. The rule is sound, but it is for the guidance of trial courts and does not apply to the reviewing tribunal. Where circumstantial evidence is of a character that two conflicting inferences may reasonably be drawn therefrom, one tending to prove or favorable to the guilt of the accused and the other favorable to his innocence, it is not within the province of this court to determine which inference ought to control. Rosenberg v. State (1922), 192 Ind. 485, 134 N.E. 856, 137 N.E. 53. If, in a case where the evidence is conflicting, the trial court finds against the weight thereof, this constitutes an error of fact and not of law, and it is the duty of the trial court to correct such error by granting a new trial. The rule that this court will not weigh the evidence applies whether it is direct or circumstantial. Howard v. State (1921), 191 Ind. 232, 131 N.E. 403. It is only where there is no evidence from which the trial judge or jury, as the case may be, may reasonably have drawn an inference of guilt that the decision or verdict will be disturbed on appeal. Scharillo v. State (1934), 207 Ind. 22, 191 N.E. 77.
The appellant also asserts that in finding him guilty the trial court violated the rule that one inference of fact cannot be based on another. In the celebrated case of Hinshaw v. 6. State (1897), 147 Ind. 334, 363, 47 N.E. 157, 166, it was said:
"This process of tallying and confirming each circumstance by the others does not infringe the general rule that one inference cannot be based on another. There is an important exception to that rule, however. A fact in the nature of an inference may itself be taken as the basis of a new inference, whether intermediate or final, provided the first inference has the required basis of a proved fact."
More recently, this court said in Orey v. Mutual 7. Life Insurance Co. of N.Y. (1939), 215 Ind. 305, 309, 310, 19 N.E.2d 547, 549:
"It has often been said that there is a rule of law to that effect, but the statements are so interspersed with recognition of exceptions that we must conclude with Professor Wigmore that: `There is no such rule; nor can be.' Wigmore on Evidence, 2d Ed., Vol. 1, § 41, pp. 258, 259. . . . A fact may sometimes be established by circumstantial evidence more firmly and thoroughly than by direct but conflicting evidence, and when a fact is so established by inference it is as logical and reasonable a basis for further inference as a fact established by direct evidence."
Applying the rules above stated, we have no difficulty in concluding that there was no such failure of proof as would warrant us in disturbing the judgment. The fact that a 8. larceny was committed was sufficiently established. The subject of the theft was currency, consisting in part of two $50 bills. The appellant, a needy person dependent upon relatives for support, was present when the money was taken, and he was seen to have two bills of that denomination shortly thereafter. There was evidence that he sought to direct suspicion toward another person and that he attempted to persuade one of the state's material witnesses to leave the community before the trial. The inferences of guilt which the trial court evidently drew from the surrounding circumstances were strengthened by serious discrepancies in the appellant's own testimony.
The judgment is affirmed.
NOTE. — Reported in 36 N.E.2d 759.