concluding that the “question of remoteness” is irrelevant when “the prior conviction is alleged for the purpose of obtaining an enhanced punishment”
How later courts described this case
- concluding that the “question of remoteness” is irrelevant when “the prior conviction is alleged for the purpose of obtaining an enhanced punishment”
Written by the judges who cited it.
The opinion
DAVIDSON, Judge
(dissenting on appellant’s motion for rehearing).
*558 Appellant’s motion for rehearing is overruled by the majority of this court without written opinion, to which decision I dissent.
This is a “transportation” case; it is not a “possessing” case.
For appellant to be guilty he must have carried —that is, transported—from one place to another the bottle of whisky found in the house occupied and controlled by a man by the name of “George”.
There is no legal and competent evidence which authorizes that conclusion. Any determination of guilt, from the evidence here presented, is a matter of guess work, supposition, and probability.
Appellant was seen to enter the house with a brown paper sack in his hand. A brown paper sack was found in the house of “George,” which sack looked like the one appellant had in his hand when he entered the house.
The first presumption is that the two sacks were one and the same, because they were of the same appearance. There were no other identifying characteristics.
The next presumption is that the sack contained the bottle of whisky when appellant carried it into the house. There is not a line of direct testimony as to what was in the sack when it was carried into the house. To say that a bottle of whisky was in the sack at that time is the rankest sort of presumption.
The court presumes, first, that the sack found in the house was the one appellant carried into the house. Upon that presumption the further and additional presumption is indulged that a bottle of whisky was in the sack at the time it was carried into the house.
So the state’s case depends—and this appellant pays a fine of $400 and goes to jail for ninety days—upon a presumption based upon a presumption, with no tangible evidence upon which to base either presumption.
But the state’s case does not fail solely because it is based upon mere presumption and guess work. There is another and additional reason why the state’s case ought not to stand. I have reference to that well-established rule of law that circumstantial *559 evidence is not sufficient unless it excludes every reasonable hypothesis other than that of appellant’s guilt.
Here, the bottle of whisky is found secreted and hidden in the home of “George.” The ownership and possession by George of the bottle of whisky is thereby shown. The presumption which attains is that George brought the whisky to his home. Thereby is presented an outstanding hypothesis that appellant had nothing to do with the whisky. The state could have very easily clarified the situation thus presented, by placing George upon the witness stand and showing by him that appellant brought the whisky to the house, if such were a fact.
The state is thereby cast in the position of relying upon circumstantial evidence where it had direct testimony available but refused to use it.
Under the facts presented, I cannot agree to an affirmnace of this case upon the sufficency of circumstantial evidence.
I therefore dissent.