The opinion
Judge Bricken, in Gilbert v. State, 30 Ala. App. 214 , 3 So.2d 95 , wrote:
"The conviction of this appellant, defendant in the lower court, of the offense of grand larceny, upon the evidence disclosed by this record, was wrong and unjust, and to let such conviction stand would, in the opinion of this court, be unconscionable. The meagre and unsatisfactory testimony upon which said conviction was rested is insufficient even to create a scintilla of evidence against the accused, and as has been definitely decided the scintilla rule may not be applied in a criminal case, * * *"
Also therein mere suspicion, surmise or conjecture were rejected as foundation for a criminal conviction; many authorities bolster this principle.
As to the tire tool or lug wrench, we quote from Settle v. State, 26 Ala. App. 287 , 158 So. 775 :
"Appellant, an unemployed, or intermittently employed, 'steel car builder and structural iron worker,' residing in Birmingham, Ala., some two hundred miles from the scene of the crime, was convicted of or for the offense, and his punishment fixed at imprisonment in the penitentiary for an indeterminate term of from ten to thirteen years.
"The evidence connecting him with the burglary was entirely circumstantial, consisting mainly, but not wholly, of the finding within the bank building, on the morning after the night of the burglary — and apparently used in the furtherance of the burglary — of a certain oxygen tank and a certain acetylene tank, shown to have been recently theretofore in the possession of appellant.
"His said possession was not denied by him; but he undertook to explain * * * [it]."
Somewhat analogous proof was made by the State in Bedsole v. State, 35 Ala. App. 567 , 50 So.2d 457 , wherein our now Presiding Judge wrote:
"The evidence presented by the State tended to show:
"That a drug store owned by Mr. Johnnie Daniels in Midland City, Alabama, was broken into on or about March 25, 1950, and certain articles of value were taken therefrom, including, among other things, pen and pencil sets, a man's watch and some costume jewelry.
"The evidence further tended to show that on the day after the drug store was burglarized the appellant was in a cafe operated by Francis Knighton, in Phenix City. He (appellant) was handed a $10 bill by one Mills to give to W. O. Franks. This money was shown to have been given to Mills by Knighton in payment of one of the stolen pen and pencil sets, which the said Mills had obtained from Franks earlier.
"It was further shown that appellant was in company with Franks in Phenix City.
"There was evidence by the State that Franks was seen in an automobile near the drug store shortly before the burglary. One witness testified he saw two men in the car. There was no testimony to prove that the defendant, appellant here, was *Page 567
the man with Franks. In fact, this witness testified on cross examination that he had known defendant practically all of his life; that witness was within ten feet of the automobile and would have recognized defendant had he been one of the men in the car. Witness stated positively that neither of the men was this defendant. On redirect examination in response to a question by the Solicitor: 'You just saw two men out there in the car and didn't see either one of them well enough to identify them?' The witness answered: 'That's right.'
"On Tuesday following the burglary the officers went to the home of Franks and found appellant in bed in the back room. A watch that was stolen from the drug store was found in the house. Mrs. Franks stated to the officers that the watch belonged to her husband and that Franks had been wearing it. None of the property was found in the room occupied by appellant.
* * * * * *
"The evidence at best shows only that appellant had been associating with Franks. It creates mere surmise or suspicion which does not warrant a conviction. [Citing cases.]
"In the case of Lang v. State, 252 Ala. 640 , 42 So.2d 512 , 514 the Supreme Court held: 'Opportunity to commit crime, or even knowledge of its commission, without more, is not sufficient evidence upon which to base a verdict of guilt.'
"The defendant was entitled to the affirmative charge, requested by him in writing, * * *"
See also Colley v. State, 41 Ala. App. 273 , 128 So.2d 525
(robbery: insufficient evidence); Wildman v. State, 42 Ala. App. 357 , 165 So.2d 396 (burglary: insufficient evidence); Dawson v. State, 43 Ala. App. 254 , 188 So.2d 283 (burglary: insufficient evidence).
The nearest to a spotted horse case like unto the one of instant concern is Sumeral v. State, 39 Ala. App. 638 , 106 So.2d 270 , where we find:
"The most we can infer from the foregoing is: (1) the wire disappeared sometime between Monday morning and 5:00, P.M., Tuesday (we are inferring only arguendo that the next to the last quotation above was intended to refer to Sunday rather than Tuesday); (2) the defendant had the truck on Monday night; (3) the truck, at sometime before 5:00, P.M., Tuesday, was on the abandoned public roadway some 180 feet from the crib; (4) sometime between Sunday and Tuesday, the wire had been carried or rolled through the weeds; and (5) the defendant 'guessed he could find' the wire.
"The evidence — aside from a possible implication from the last above quoted excerpt which we discuss below — was wholly circumstantial."
"Circumstantial evidence is not inferior evidence:
" 'I remember so well that from time to time men who are not trained in the law have looked with suspicion upon circumstantial evidence and yet so many of the, of our every day acts and our dealings are based upon circumstantial evidence. We just assume that certain things are true because experience has shown that those things are true. We assume when we go to bed at night that the sun is going to rise the next morning because our practical experience has told us that we might expect that. Likewise if we have a heavy snow and we walk down through the woods and we see tracks in the snow, we know from the existence of those tracks that since it snowed a rabbit has passed that way and we would be perfectly willing to accept that demonstration of circumstances just as faithfully as we would the evidence of our own senses or eyes if we had seen the rabbit first run through the snow, and so circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided *Page 568 that it points one way. ' — from oral charge by Hon. Seybourn H. Lynne in Bostwick v. United States, N.D.Ala. (on appeal at 5 Cir., 218 F.2d 790 ). (Italics added.)
"However, circumstantial evidence is evidence only if it (along with the other evidence) is susceptible of a reasonable inference pointing unequivocally to the defendant's guilt. The law allows great latitude on admissibility in a case where the prosecution relies mainly on circumstantial evidence, e. g., Willis v. State, 37 Ala. App. 185 , 66 So.2d 753 . Here we are not concerned with admissibility but sufficiency.
"On appeal where, as here, there was a motion to exclude all the State's evidence and the denial thereof was again put to the trial judge on motion for new trial, we are not considering the degree of proof for the purpose of charging a jury on circumstantial evidence. Rather we must stake out the permissible area of reasonable deliberation by a jury.
"Thus, in Vick v. United States, 5 Cir., 216 F.2d 228 , 232 , we find the court, per Rives, J., saying:
" '* * * In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Curley v. United States, 81 U.S.App.D.C. 389 , 160 F.2d 229 , 232 , 233 ; cf. Yoffe v. United States, 1 Cir., 153 F.2d 570 , 572 ; Remmer v. United States, 9 Cir., 205 F.2d 277 , 287 . "The weight of circumstantial evidence is a question for the jury to determine; such evidence alone or in connection with other evidence may justify a conviction. Great care, however, must be exercised in drawing inferences from circumstances proved in criminal cases, and mere suspicions will not warrant a conviction." 20 Am.Jur., Evidence, Sec. 1217, p. 1070. As said by Judge Prettyman in Curley v. United States, supra, "The task of the judge in such case is not easy, for the rule of reason is frequently difficult to apply, but we know of no way to avoid that difficulty." * * *'
"In Bluth v. State, 38 Ala. App. 692 , 92 So.2d 685 , 690 , we stated the major premise, per Harwood, P. J.:
" '* * * An accused charged with a felony should not be convicted on circumstantial evidence unless it shows by a full measure of proof that the defendant is guilty, and must exclude to a moral certainty every other reasonable hypothesis but that of the guilt of the accused, if the facts and circumstances can be reconciled with the theory that some agency other than the accused may have caused the death, then the accused is not shown to be guilty by that full measure of proof which the court requires. * * *'
* * * * * *
"No possession of the goods was shown; the testimony to put Sumeral at the scene covered only, at the most, eight hours of a span of some thirty to thirty-five hours.
" '* * * Opportunity to commit crime, or even a knowledge of its commission, without more, is not sufficient evidence upon which to base a verdict of guilt. * * *' Thomas v. State, 19 Ala. App. 499 , 98 So. 322 .
"See also Lang v. State, 252 Ala. 640 , 42 So.2d 512 (4-2 decision), and Bell v. State, 36 Ala. App. 390 , 56 So.2d 683 .
"Even under the State's evidence, the question of whether or not Sumeral had an opportunity to take and carry away the fencing was left with an open end answer. This failure to close the gap (lid not come up to the measure of proof laid down in Ellison v. State, 254 Ala. 428 , 48 So.2d 176 , a case where the defendant undoubtedly had an opportunity but not the sole opportunity to kill the deceased.
Oliver, the owner of the pick-up truck, did not (nor did any other witness) account for its whereabouts during the time the theft could have occurred (Monday *Page 569
morning to 5:00 P.M., Tuesday), save for the time that Sumeral had it. * * *
* * * * * *
"The principle applied here is the same given in Ivey v. State, 40 Ala. App. 75 , 108 So.2d 430 . Here the facts do not show the agency of the accused, and, accordingly, the judgment below is due to be reversed and the cause remanded."
Since the instant question arises from a lack of proof without any compensatory factor from other proof, manifestly Supreme Court Rule 45 (harmless error) cannot aid the usual presumption in favor of the court below.
We have carefully reviewed the evidence en banc. From that review, under the principles elaborated on above, we conclude it was error to overrule the defendant's motion to exclude the State's evidence on the ground that it did not (as a matter of law) make out a prima facie case of either offense charged in the indictment.
We pretermit detailed consideration of the admission of testimony of Livingston's conversation at the police station. As an abstract matter of law — at least as of the date of this opinion — Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , would appear to apply to exculpatory statements as well as those which directly incriminate.
The special prosecutor argued that the summoning of Livingston to police headquarters to ask him about Keel, made Livingston's presence there distinguishable from Miranda. We consider Mathis v. United States, 391 U.S. 1 , 88 S.Ct. 1503 , 20 L.Ed.2d 381 , has resolved this point. There we find:
"The Government also seeks to narrow the scope of the Miranda holding by making it applicable only to questioning one who is 'in custody' in connection with the very case under investigation. There is no substance to such a distinction, and in effect it goes against the whole purpose of the Miranda
decision which was designed to give meaningful protection to Fifth Amendment rights. We find nothing in the Miranda opinion which calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody. In speaking of 'custody' the language of the Miranda opinion is clear and unequivocal:
" 'To summarize we hold that when an individual is taken into custody, or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is in jeopardy.' 384 U.S., at 479 , 86 S.Ct., at 1630.
"And the opinion goes on to say that the person so held must be given the warnings about his right to be silent and his right to have a lawyer.
"Thus, the courts below were wrong in permitting the introduction of petitioner's self-incriminating evidence given without warning of his right to be silent and right to counsel. * * *"
The judgment below is reversed and the cause there remanded for trial de novo.
Reversed and remanded.
JOHNSON, J., concurs in the result. *Page 570