The State vs. William Powers, 1 Georgia Decisions 150

On the part of the prisoner, it was proved by John Dinsmore, that the prisoner came in company with witness from Apalachicola, Florida, the last of July, that they both reached Columbus, Georgia, on the first day of August, that prisoner on his way up had money, and that a considerable portion of it was in silver coin, some of which was in ten cent pieces, that witness was with prisoner at the time prisoner was at Mrs.

Evans1, as she has testified to, and saw nothing of the treasury draft, and did not hear prisoner speak of it, and that if he had spoken of it, witness thinks from the size of the room he would have heard it. Sarah Dodson testifies, in behalf of the prisoner, that on the night of the fourth of January last, prisoner went to bed at the house of Mrs. Evans, at nine o’clock at night, and did not get up until after sunrise the next morning, that prisoner could not have passed out of the house without unlocking a door, and passing through the room in which Mrs. Evans and others lay, and that Mrs.

Evans knew the prisoner passed the night on which the crime was perpetrated at her house. This is the substance of the evidence on either side of the case. The cotinsel for the prisoner do not complain of the verdict, ex* cept on the ground of its being contrary to the evidence. I am aware of the caution with which Courts of justice interfere with verdicts of Juries on the ground, simply, of their being unjustified by the evidence.

The Law having selected and set apart Jurors to try questions of fact peculiarly, it is proper that their verdicts should not be'disturbed as being opposed to the proof, except on the most careful consideration. Nevertheless, the office of superintending their verdicts, even in this respect, and of granting new trials when, in the opinion of the Court, they are demanded by justice, has been exercised from the foundation of the mode of trial by Jury.

And the Courts ate not at liberty to decline an investigation of the sufficiency of the testimony on which the verdict is rendered, on the motion of one alleging himself to have been injured by an erroneous finding* In approaching the evidence on the part of the prosecution in the case at bar, it is perceived that there is no proof whatsoever of a posi* tive character, of the agency of the defendant in the breaking and entering the house.

Brannon, who alone proves the burglary, leaves it entirely indifferent who perpetrated it- — but it is observable that he leaves the case in circumstances that would lead us to conclude that the breaking and entering the house were perpetrated by some one familiar with the premises, and not by a stranger, as the prisoner appears to have been.

The mode and place in which thé money taken was kept, the location of the desk and the disposition of the key, all render it probable, if not absolutely certain, that hfe who committed the robbery must have been minutely acquainted with the exact situation and management of the room from which ⅛⅜ money was removed — -and to the extent to which this presumption operates, it favours the accused. Indeed, the counsel for the prosecution have placed their case upon the supposed possession; by the accused, of the money taken, subsequently to the commission of the crime, and his alleged failure to account for it.

Had the very money that was removed from the house On the night of the burglary* been found in the possession of the prisoner immediately after the felony was committed, it would have been properly relied on before the Jury as eogftnt evidence against him, in the absence of an expía» nation by him as to the means by which he obtained it.

But the error of the argument, is, that the treasury note and the silver pieces spoken of by the witnesses as having been in the possession of the prisoner after the night of the fourth, and of which there is no other proof than his own gratuitous admission, are not identified by any one as having been those that were taken from the house that was broken and entered. By whom has this been shewn ?

Certainly the naked facts, that the prisoner had in his hands a fifty dollar treasury note a day or two after the burglary was committed, and forty or fifty pieces of silver coin in ten cent pieces nine days thereafter, and that the latter may have been passed at a lower than the usual rate of exchange, are not sufficient in themselves to convict him of the high crime with which he is charged. I leave out of view, for the present, the evidence on the defence, for the prosecution clearly fails on its own shewing.

Certainly this cannot be the strong and cogent proof of guilt, which, in the language of the Law, must run so high as that it leaves no reasonable doubt on the mind, to authorize a conviction. If we turn to the defence, we find the evidence here, it is true, of not a very satisfactory nature, but it certainly does detract something from the strength of the prosecution, too weak in itself for conviction. The very character of the charge, it should be observed, is one that it is often difficult to disprove, if false even.

On the supposition, however, that the onus probandi were reversed ; in other words, were transferred from the State to the prisoner, and he were called upon to prove his innocence, the case is quite as well made out for him as is the prosecution. The grave nature of this charge, the highly penal consequences following conviction, and the very meagre and unsatisfactory nature of the testimony in this case, require that the case should be submitted to the consideration of another Jury. Motion for a new trial granted, MARSHALL J. WELLBORN, j, s. c. c. c.