State v. Espelin , 106 Mont. 231 ( 1938 )

I dissent from that portion of the majority opinion holding the evidence sufficient to sustain the verdict of guilty.

In the case of State v. Wallette, ante, p. 15, 75 P.2d 799, we said: "Where a criminal prosecution is dependent upon circumstantial evidence, a conviction cannot be sustained unless the criminatory circumstances point so clearly to defendant's guilt as to be inconsistent with any other rational hypothesis. (State v. Ebel, 92 Mont. 413, 15 P.2d 233;State v. Hood, 89 Mont. 432, 433, 298 P. 354; State v.Woods, 54 Mont. 193, 169 P. 39; State v. Russell,93 Mont. 334, 18 P.2d 611.) Convictions may not be founded upon conjectures, however shrewd, nor upon probabilities, however strong (State v. Lund, 93 Mont. 169, 18 P.2d 603;State v. Woolsey, 80 Mont. 141, 259 P. 826; State v.Taylor, 51 Mont. 387, 153 P. 276; State v. Riggs,61 Mont. 25, 201 P. 272), but only upon evidence which establishes the guilt of the defendant beyond a reasonable doubt, i.e., upon proof such as logically compels the conviction that the charge is true (State v. Kerrigan, 87 Mont. 396, 287 P. 942; State v. Mullins, 55 Mont. 95, 173 P. 788; State v. Cooper,78 Mont. 35, 252 P. 376). All of the foregoing cases recognize the rule that if circumstantial evidence meets the tests announced in these decisions, it is sufficient to sustain a conviction."

In my opinion, the evidence does not meet the test set forth in the foregoing quotation. The evidence of the horse tracks, while admissible as some evidence of the presence of the accused at the scene of the fire, additional evidence is necessary to establish guilt. (Curtis on Arson, sec. 320, p. 339; State v.Melick, 65 Iowa, 614, 22 N.W. 895; Benge v. Commonwealth,258 Ky. 600, 80 S.W.2d 569.) From the evidence relative to these horse tracks and the condition of the hoof of the defendant's horse, the jury might well presume or infer that defendant's horse was at the points testified to with relation to the location of the horse tracks. They might not, however, based on that inference, proceed to infer further that the defendant was there present at the time the tracks were made. Someone else might have ridden the horse to that point.

In Doran v. United States Building etc. Assn., 94 Mont. 73,20 P.2d 835, 837, it was said: "From one fact found another may be presumed if the presumption is a logical result; but to hold that a fact presumed at once becomes an established fact for the purpose of serving as a basis for a further presumption or inference would be to spin out the chain of presumptions into the barest region of conjecture. (First Nat.Bank of Glendive v. Sorenson, 65 Mont. 1, 210 P. 900; Kern v. Payne, 65 Mont. 325, 211 P. 767.)" We approved this rule in Ashley v. Safeway Stores, Inc., 100 Mont. 312, 47 P.2d 53. The rule is everywhere recognized, as evidenced by the note in 95 A.L.R. 162.

A conviction cannot be sustained where there is no evidence other than footprints to identify the guilty incendiary. (Curtis on Arson, sec. 504; Shannon v. State, 57 Ga. 482; Carlton v. People, 150 Ill. 181, 37 N.E. 244, 41 Am. St. Rep. 346;State v. Johnson, 19 Iowa, 230; State v. Moffitt,31 Iowa, 316; Hightower v. State, 91 Tex.Crim. Rep.,237 S.W. 1112; White v. State, 93 Tex.Crim. Rep., 248 S.W. 690.) Yet, dependable identification of the tracks may, with other probative evidence of guilt, enable the court to decide that the evidence is sufficient, such as threats to commit the crime made by the defendant. (Ethridge v. State, 124 Ala. 106,27 So. 320; State v. Millmeier, 102 Iowa, 692, 72 N.W. 275; State v. Fain, 177 N.C. 120, 97 S.E. 716.) There were no threats shown here, and neither was there shown any motive for the alleged crime.

There is no presumption that the accused wore the shoes that made the footprints. (1 Wharton on Criminal Evidence, 11th ed., p. 186; Herring v. State, 122 Miss. 647, 84 So. 699.) The jury might infer from the proof relative to the footprints that the prints were made by defendant's shoes, or others of the same size and kind, but on the authority cited it could not infer from this inference that the defendant was there, and then, based on these various inferences, that the defendant set the fire.

A syrup can was found at the scene of the fire. The defendant had one like it. No proof was offered identifying it as the property of the defendant. The same is true of the string in his house and the ashes of the string found at the fire. The other slight circumstances on which the majority opinion rests are less convincing than those which we have mentioned. A careful analysis of all of them, including those I have discussed, shows that all of them require the founding of an inference on an inference, and then, from the entire collection of inferences founded on the inferences, the further inference must be indulged that the accused was the one who set the fire. When it is necessary to resort to this process of reasoning to sustain a conviction, as demonstrated by our decisions, such a conviction is based on conjecture; therefore, it cannot stand. The judgment should be reversed.