Dunn v. State

• Decision Date: 08 June 1906
• Docket Number: No. 20,705.,20,705.
• Parties: DUNN v. STATE.
• Court: Indiana Supreme Court

166 Ind. 694

78 N.E. 198

DUNN

v.STATE.

No. 20,705.

Supreme Court of Indiana.

June 8, 1906.

Appeal from Circuit Court, Allen County; Jno. M. Smith, Special Judge.

Charles W. Dunn was convicted of murder in the first degree, and he appeals. Reversed.

Henry Colerick and Barrett & Morris, for appellant. C. W. Miller, Atty. Gen., Samuel M. Hench, W. C. Geake, L. G. Rothschild, C. C. Hadley, Ronald Dawson, and E. V. Emrick, for the State.

GILLETT, J.

Appellant seeks the reversal of a judgment convicting him of murder in the first degree. This is the second appeal. See Dunn v. State (Ind. Sup.) 67 N. E. 940, 70 N. E. 521. The error assigned calls in question the overruling of a motion for new trial.

It was the theory of the state, stated in its boldest outlines, that appellant choked the deceased, a girl of 10, to death, in his barn, as the result of an effort to commit on outrage upon her person, and that he afterwards carried her body to his house, and threw it, through an opening in the kitchen floor, into a cistern. Both as to the corpus delicti proper and appellant's guilty agency in connection therewith, the state relied on circumstantial evidence. Upon many points there was conflict in the testimony. In the disposition of the appeal we shall, in the main, confine our attention to the action of the court in refusing to give two instructions, tendered by appellant, and numbered, respectively, 13 and 16. Said instructions are as follows: “(13) In a case like this, where the evidence is all circumstantial, it is necessary, before there can be a conviction, that every necessary link in the chain of circumstances must be proven beyond all reasonable doubt, although some of the circumstances may be clearly proven beyond all reasonable doubt, yet if other necessary circumstances are not proven beyond all reasonable doubt, then you should acquit the defendant.” “(16) If any one fact, necessary to a conclusion of guilt, is wholly inconsistent with the hypothesis of the guilt of the accused, it breaks the chain of circumstantial evidence upon which the inference of guilt of the accused depends, and, however plausible or apparently conclusive all other circumstances may be, the charge must fail and you should acquit the defendant.”

The purpose of the introduction of circumstantial evidence is so strongly to establish the probability of the existence of a fact as to warrant the assumption of its existence. It is evident, however, that, as a working tool, the most that can be expected of such evidence is the attainment of moral certainty. Where there is a distinct paucity of fact in the evidence, the result ordinarily is that nothing more than a conjecture or suspicion is generated, but as the introduction of the testimony involves, in a greater or less degree, the effort to reconstruct the case from the very elements which before composd it, it is evident that as the number of coincidences increase, both with respect to previous experience and with respect to each other, these primary facts may form a body or chain of facts, which, by reason of its completeness and the extent to which the facts sanction each other, is sufficient to eliminate every other reasonable hypothesis than that of guilt. “The slightest possible presumption, often repeated,” says Butler, in the introduction to his Analogy, “will amount to a moral certainty.” It is, or should be, the effort of the prosecutor to prove all of the known surrounding facts, so that the body of the charge may as far as possible be articulated. It will often be found, however, where the facts are numerous, that evidence is wanting of some fact necessary closely to connect the facts involved in the hypothesis, but questions of this kind can only be dealt with in the concrete; whether the want of direct evidence upon a fact involved in the assumption ought to produce an acquittal, is a question which must, in many cases, address itself to the good sense of the jury, subject to the revisory power of the trial court, the result depending largely upon whether there is a real rather than a seeming break in the connection, thus leading to the possibility of innocence. It is vital in such a case to consider the extent, if at all, that the surrounding facts may be said to press on to the conclusion which the hypothesis of the state involves. In view of the manner in which facts may act upon each other, both by way of supplying omissions in the direct evidence and strengthening weak testimony, we are of opinion that the court ought not to inform the jury that every necessary link in the chain of circumstantial evidence ought to be proved beyond a reasonable doubt. Our reason for this conclusion is that in the use of the word “link” the figure of speech becomes misleading, since the integrity of the chain depends upon the resisting power of the weakest link, unaided by any other. It is true that the absence of the smallest link in the chain of evidence may so break the connection as to create a fatal weakness in the state's case, depending upon its nature and the character of the other facts, but it is obvious that an instruction should not be given which would have a tendency to lead the jury to infer that each and every subsidiary fact must be proved beyond a reasonable doubt, or that a strain upon any one of them above the breaking point would necessarily destroy the whole fabric of the evidence. Wade v. State, 71 Ind. 535;Hinshaw v. State, 147 Ind. 334, 47 N. E. 157; 1 Blashfield, Instructions, §§ 320, 321, and cases cited. There must in a substantial sense be a chain of facts, connecting the crime with the criminal, which is sufficient to establish guilt to a moral certainty, but, apart from the preliminary process of comparison which the consideration of circumstantial evidence ought to involve, it is evident that ultimately the question as to whether the circumstances require that conclusion must depend upon their force when held in combination. Burrill, Cir. Ev. (2d Ed.) 80, 150, 179. Subject to this explanation, we are prepared to reaffirm the...