Opinion
Filed September 7, 1906.
STEALING DOMESTIC ANIMALS — Circumstantial Evidence — Sufficient, When. On a trial of one for stealing domestic animals, where a conviction is sought upon circumstantial evidence, such evidence must be such as to exclude every reasonable hypothesis of innocence; and while this court will not ordinarily weigh the evidence, if there is sufficient evidence to reasonably support the verdict, it will not permit a verdict of conviction to stand in a criminal case when it is clearly against the great weight of the evidence, and rests upon circumstances which are reasonably consistent with innocence and form an unsatisfactory basis for a verdict of guilty.
(Syllabus by the Court.)
Error from the District Court of Kiowa County; before Frank E. Gillette, Trial Judge.
Welty Harrison and C. A. Morris, for plaintiff in error.
P. C. Simons, Attorney-General and Don C. Smith, Asst. for defendant in error.
Opinion of the court by
Lee Hazelwood was indicted jointly with one Jerry Winningham, for stealing three cows. Hazelwood was tried and convicted, and sentenced to a term of two years in the territorial penitentiary. He has appealed to this court praying a reversal of the judgment.
We have read the entire record, and are fully convinced that a new trial should be granted, on the ground that the evidence is not sufficient to support the verdict. It is true, that there are some circumstances that are somewhat suspicious, but this is the most that can be said of them. The evidence was entirely circumstantial and the jury was not justified in finding that it was sufficient to exclude every reasonable hypothesis of his innocence. In fact, the great weight of the evidence was in favor of the defendant. He not only denied the commission of the crime himself, but offered strong evidence by other witnesses. No one ever saw the cattle in defendant's possession, or saw him commit any act in relation to their taking.
Counsel for the defendant insist with vigor that there is no evidence to support the verdict. The brief, for the territory, in discussing this point simply says:
"We contend that where there is some appreciable evidence connecting a person charged with crime, with the commission of the offense, that so far as the evidence is concerned, that is a matter for the jury under the proper instructions from the trial court." Citing Smith v. The Territory 13 Okla. 575.
The representatives of the territory do not pretend to point out the evidence which they assume justified the verdict. It cannot be found in the record.
For the reasons stated, the judgment of the trial court is hereby reversed at the cost of the territory, and a new trial ordered.
Gillette, J., who presided in the court below, not sitting; all of the other Justices concurring.