James and Reuben Roseborough v. The State, 43 Tex. 570

Moore, Associate Justice. The court did not err in refusing to grant a new trial on the ground of the alleged incompetency of one of the jurors by whom the case was tried. This is not one of the causes for which in cases of felony the code says new trials shall be granted. (Code Or. Pro., art. 672.) But if the juror was disqualified when he was passed upon and accepted by the parties, and this fact was unknown to appellants and their counsel, though it does not so appear in the record, it is not shown that this was not from want of proper inquiry. (Code Cr.

Pro., art. 577.) Nor does it appear that any material error was committed by the court in the organization of the jury calculated to injure the rights of appellants. An inspection of the record does not leave the slightest ground for holding that a new trial should have been granted the appellant, James Roseborough. The verdict against him is fully warranted by his own explicit and diréct admissions, which are corroborated and supported also by circumstantial evidence of the most convincing and conclusive character.

But with reference to the other defendant, Beuben Bose-borough, we cannot say that this is the cage. While the evidence is certainly calculated to beget in the mind the strongest susjncion of a guilty complicity of some sort between him and his codefendant in connection with the transaction, we cannot say, under the well-established rules of law applicable in eases'depending on circumstantial evidence alone, that the facts as presented in the record warrant his conviction, either as a principal or accessory before the fact, of the offense for which he has been indicted.

By the well-recognized formulary for determining the sufficiency of circumstantial evidence to warrant conviction in criminal cases, the circumstances should with reasonable certainty exclude any other hypothesis but that of guilt. The circumstances relied upon must also be of a conclusive nature and tendency. Bor, as is said by Mr. Starkie in his philosophic treatise on the law of evidence, “ whenever mere inconclusive probabilities concur, the result, however the degree of probability may be increased by the union, will still be of a definite and inconclusive nature.

And hence it seems that in criminal cases the mere union of a limited number of independent circumstances, each of which is of an imperfect and inconclusive nature, cannot afford a just ground of conviction.” (1 Stark. Ev., 570; 1 Greenl.

Ev., § 13a.) The testimony not being sufficient beyond all reasonable doubt to warrant the jury in finding the defendant, Beuben Boseborough, guilty of the offense charged in the indictment, the court should have sustained the motion for a new trial as to him, and for its refusal to do so the judgment against said Beuben Boseborough is reversed and the case remanded to the District Court for further proceeding. But there being no error in the judgment against appellant, James Roseborough, it is, as to him, in all things affirmed. Affirmed.