Opinion
No. 34710.
March 9, 1942.
1. CRIMINAL LAW.
Where conviction of six defendants rested upon circumstantial evidence as to individual guilt of each, it was necessary that evidence show beyond every reasonable doubt, and to exclusion of every other reasonable hypothesis, that verdict of guilt was correct as to each defendant against whom it was sought to be upheld.
2. MALICIOUS MISCHIEF.
That each of six defendants charged with damaging and defacing a building constituting a county jail and property therein while defendants were confined in jail at night denied knowledge as to who participated in acts complained of did not authorize conviction for such offense, where evidence for the state showed that defendants were drunk at time of offense, and it was not shown whether there was a light burning in jail so that any one defendant could have seen what the others were doing.
3. MALICIOUS MISCHIEF.
Circumstantial evidence held insufficient to warrant conviction for damaging and defacing a building constituting a county jail and property therein, while defendants were confined in jail after their arrest for being drunk.
APPEAL from the circuit court of Calhoun county, HON. T.H. McELROY, Judge.
B.P. Mauldin, of Pontotoc, for appellants.
The proof for the state showed that there was certain damage done to the jail in Calhoun County and that these six appellants were in the jail at the time the damage was done. There is no evidence in the entire record to show that any one of the appellants was guilty of the offense of which he is charged. All of the appellants were drunk when placed in jail, and the damage was done, according to the proof, immediately after the last of the six appellants were placed in the jail.
The question therefore arising and to be determined is whether or not the state had sufficient proof to warrant a jury to convict the six appellants for the misdemeanor charged.
The proof on the part of the state was wholly circumstantial because there was no evidence of any overt act on the part of any one of the appellants.
All that could be said with reference to the guilt of the appellants was that they were probably guilty, but that is not the degree of proof required.
Johnson v. State, 198 So. 554; Hunt v. State, 108 Miss. 588, 67 So. 57; Johnson v. State, 186 Miss. 405, 191 So. 127; Moore v. State, 188 Miss. 546, 195 So. 695.
If the evidence shows or would admit of the guilt of one of two or more persons, to the exclusion of the other, and there is reasonable doubt as to which is the guilty party, the accused must be acquitted.
23 C.J.S. 192.
Although it may be proved positively that one of two or more persons committed the crime, yet if it is uncertain which is the guilty party all must be acquitted.
16 C.J. 774, par. 49A; People v. Woody, 45 Calif. 289; Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49.
The evidence was wholly insufficient and the defendants' instruction to return a verdict for the defendants should have been granted.
Jackson v. State, 185 So. 201.
The state failed to show any preconcert or a community of purpose on the part of the appellants.
Under the view that it is the joint character of the enterprise or undertaking rather than a common purpose that is to be regarded in determining whether one of several participants shall be criminally liable for the acts of all, it has been held that the connection or joint character of the undertaking must clearly appear.
22 C.J.S. 156.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
It is the position of the appellants that the proof is insufficient to convict them of the offense charged on the theory that the officers could not specify as to which one of the appellants did a particular act of damage and that, consequently, there was uncertainty in the proof as to which had done the damage mentioned in the indictment and the proof and that in such case, they must all be acquitted.
I do not think this position is sound. They were all in the jail at the same time, in company with each other, all in a drunken and reckless condition and, when each were asked as to who did the things that constituted the damage, each stated that he did not know. This is sufficient to indicate a joint understanding and a joint action among the several appellants as to what was done in the jail. In misdemeanors, there are no accessories and all who participate in the commission of a misdemeanor are guilty as principals.
See John v. State, 78 Miss. 663, 29 So. 401; Reed v. Greenville, 83 Miss. 192, 35 So. 178; Williams v. State, 12 S. M. 58.
All persons who aid or assist or counsel in any way in the commission of a misdemeanor are guilty and may be punished as a principal, regardless of whether the aid or assistance given was before or after the commission of the act, so long as they all were present and the effort was being made, as was here, by the officers to locate the guilty party.
Hardy v. State, 180 Miss. 336, 177 So. 911; McCoy v. State, 91 Miss. 257, 44 So. 815; Ashley v. State, 166 Miss. 11, 147 So. 879; Gibbs v. State, 167 Miss. 598, 148 So. 796; Kittrell v. State, 89 Miss. 686, 42 So. 609; Crawford v. State, 133 Miss. 147, 97 So. 534; Dedeaux v. State, 125 Miss. 326, 87 So. 664. See also in the Decennial Digest system of the West Publishing Company, title "Criminal Law," key number 59(5).
At a time when the six appellants were imprisoned in the upper story of the county jail, alone and in the nighttime, immediately following their arrest for being drunk, one or more of them damaged and defaced the building and certain property situated therein, by breaking out the panes of the windows, removing some brick out of the wall, flooding the floor with water by breaking the water line, turning the bedding over onto the floor, in the water, and breaking up the dishes used by the county in serving meals to the prisoners. They were jointly tried and convicted under an indictment charging that offense, and they all prosecute this appeal.
The sheriff, a deputy and the jailer were introduced as witnesses on behalf of the state, and their testimony was sufficient to establish, by direct proof, the fact that the offense was committed, and by circumstantial evidence that one or more of the six defendants were guilty; but none of the witnesses were able to testify that they saw any one of the defendants in particular take part in what was being done, as the witnesses were all downstairs on the ground at the time. The jailer did testify, when first placed on the witness stand, that he saw one of the defendants, Clete Christian, remove the brick from the wall, so as to make an opening through the same; but when later recalled as a witness it was clearly shown that this was a mere conclusion on his part, and was based on the erroneous assumption that this defendant was the only prisoner at large in that particular part of the building at the time the bricks were being removed from the wall; and when it was shown that some of the others then had access to that part of the building, he was asked the question, "Then you don't know who did the digging?"; and he answered, "No sir."
There being no direct proof that all of the defendants took part in what transpired, or as to which of them, if not all, was guilty, and it being presumed that they were all involuntarily present at the scene of the crime, and that none of them was privileged to leave, the case must rest upon circumstantial evidence as to the individual guilt of each. This being true, it was necessary that the evidence should show beyond every reasonable doubt, and to the exclusion of every other reasonable hypothesis, that the verdict was correct as to each defendant against whom it is sought to be upheld. To sustain the verdict against all of the defendants it is urged, as being a strong circumstance, that each of them denied to the officers any knowledge as to who actually participated in the acts complained of, and that they each necessarily knew who were guilty, and were seeking to protect each other. Against this circumstance, however, the state's proof disclosed that they were all drunk, and it was not shown whether there was a light burning upstairs at that time of night by which any one of the defendants could have seen what the others were doing, or who in particular was committing the acts complained of, except the light which one of them blew out in the part of the jail where he was then operating.
It is unfortunate that where one or more of the defendants are manifestly guilty of these acts of vandalism they should be set free. But it is necessary and proper that such a result should obtain in this instance, rather than that any one of the defendants should be punished without proof of his guilt beyond every reasonable doubt, and to the exclusion of every other reasonable hypothesis, as required by law.
Reversed and judgment here for the appellants.