The opinion
If I were justified in assuming the correctness of the statement of facts contained in the opinion of the court I should unhesitatingly concur in the judgment of reversal. But by section 4 1/2 recently added to article VI of the constitution, this court (and each of its members) is forbidden to reverse a judgment of conviction in any criminal cause for error or abuse in pleading or procedure, unless after an examination of the entire record including the evidence it is of the opinion that the error has resulted in a miscarriage of justice. The construction of this provision depends upon the meaning of the phrase "miscarriage of justice." Evidently errors and abuses in matters of procedure do not constitute a "miscarriage of justice" for the provision assumes that they may not result in such miscarriage, and that the presumption that they have not so resulted must prevail until an examination of the evidence has overcome that presumption. What, then, is a "miscarriage of justice." The ordinary use of the phrase hitherto has been to characterize a case in which a person notoriously guilty of some serious offense has escaped conviction through some fault of those *Page 385
responsible for the enforcement of the law. The state, in prosecuting an offender, is seeking only justice and the failure to convict where the evidence of guilt is clear is properly denominated a miscarriage. This, however, is not the sort of case that ever comes to the supreme or appellate court. Appeals lie only in cases of conviction as the result of a trial, and a "miscarriage of justice" in such cases can only mean the correlative of such miscarriage in cases of acquittal, viz.: the conviction of a person who is probably innocent. For an opinion upon a question of fact — the question of guilt or innocence of which we are given jurisdiction by the amendment — must have at least a probability to support it — not necessarily demonstration, of course, but necessarily the weight of evidence. If this is the true construction of the amendment — and I can see no room for another — then it is a solemn duty devolved upon every member of the appellate tribunals, charged as they are with the decision of questions of fact involving life and liberty — not merely to read hastily and cursorily the evidence allowed to go to the jury, and that excluded by the court, but to read it with close attention, weighing and balancing it, availing themselves of such slight aids as the cold record may afford for estimating the credibility of witnesses whose manner and appearance on the stand they have never seen.
Entertaining these views, and because in this case I have never found the time to read the forty-four hundred pages of typewritten record even in the most cursory manner, I do not feel qualified to concur in the judgment. *Page 386