The opinion
Johnson, C. J.,
(dissenting). I cannot give my assent to the affirmance of this case. Human rights and liberties should not be taken upon mere conjecture and speculation. Until recently human rights to life, liberty and property were thought to be sacred, but such inroads have recently been made upon these sacred rights that they now appear to be forgotten. The Declaration of Rights provides in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial * * * and be confronted with the witness against him. When jury verdicts are permitted to stand which rest solely upon conjecture and speculation, this wholesome constitutional guarantee is violated.
Moreover, § 3184, Crawford & Moses’ Digest, provides, where there is a reasonable doubt of the defendant’s guilt upon the testimony in the whole case, he is entitled to an acquittal.
Since statehood, and long prior thereto, it has been the rule in this State that in all criminal cases dependent upon circumstantial testimony the guilt of the accused must be established to the exclusion of every other reasonable hypothesis. Cohen v. State, 32 Ark. 226 ; Benton v. State, 30 Ark. 328 .
In the instant case, giving the testimony upon behalf of the State full credence, it falls far short of the established law. No witness saw the accused after about 12 o’clock prior to the robbery, and the victim does not insinuate that the accused had anything to do with the crime. True, accused was seen in Benton on the night before the robbery, but, even so, the robbery was committed some eight miles from Benton. It is true that accused was born and reared near Benton, but, even so, thousands of other law-abiding citizens were likewise so born and reared, including the learned Justice who has written the majority opinion. It is also true that appellant knew both Brown and Smith immediately prior to the commission of the crime, but just why he should be convicted of this crime because of this is not reflected in the opinion. If appellant is to suffer because of his acquaintance with Brown and Smith prior to the commission of the alleged crime, then of necessity the fathers and mothers, brothers and sisters, and all acquaintances of Brown and Smith should likewise be indicted, tried and convicted.
In the majority opinion.much stress is laid upon appellant’s testimony in reference to his whereabouts on the night of the robbery. It may be that appellant committed perjury while testifying, but just why this should be considered on this appeal is not pointed out in the opinion. I have always understood that the burden was upon the State to establish the guilt of an accused beyond a reasonable doubt, and this is the only legitimate question before us on this appeal. The weakness of the State’s case should not be bolstered up by the falsity of the accused’s defense. The question and only question presented here for consideration is, was appellant present, aiding, abetting or assisting in the robbery of Dr. Jones? If he was, he should be convicted. If not, he should be acquitted. No witness testified as a fact or detailed any circumstances tending to show that appellant was present or that he aided, abetted or assisted Brown and Smith in the commission of this crime.- No witness by testimony got appellant nearer the scene of this crime than Benton or saw him, for that matter, within three hours of the commission of the crime. The illogic of the situation is apparent. The mere fact that appellant knew Brown and Smith prior to the commission of the alleged crime is not even a circumstance tending to establish his guilt. The mere fact that appellant was in Benton the night preceding the commission of the crime does not prove or tend to prove his connection therewith. The mere fact that appellant was seen in company with Brown and Smith some hours prior to the commission of the robbery is a mere circumstance tending to show his lack of discretion in selecting his associates and is no evidence of his guilty knowledge of the alleged crime. Neither should appellant be convicted merely because he was reared in Saline County or happened to be in Benton the night preceding the robbeiy. Human liberty is now jeopardized by a verdict which rests solely upon conjecture, surmise and caprice.
When Fox v. State, 156 Ark. 428 , 246 S. W. 863 , was affirmed in this court, and human liberty was taken upon the testimony of a rabbit hound, corroborated however by finding stolen merchandise upon the premises of the accused, it was generally thought by the profession that the limit had been reached. Subsequently in Jones v. State, post p. 825, when this court affirmed a judgment and verdict which rested solely upon the smell of whiskey corroborated by the discovery of some broken glass in the appellant’s car, I thought assuredly the limit had been reached, but alas, these cases are merely the beginning of a crusade against human liberty.
If the doctrine now announced is adhered to by this court, no citizen’s liberty is secure, but rests wholly and solely upon the prejudices and passions of juries, actuated by good or bad motives and limited only by fear of reprisals. Indeed, the time has come when we should re-dedicate the Declaration of Rights and give to constitutional government its paramount purpose, and only justification — the protection of human liberty, the right to own property and the pursuit of happiness.
This case should be reversed and dismissed.