Griffin v. State

• Citation: 2 Ga. App. 534,58 S.E. 781
• Decision Date: 03 October 1907
• Docket Number: (No. 538.)
• Parties: GRIFFIN. v. STATE.
• Court: United States Court of Appeals (Georgia)

58 S.E. 781

(2 Ga. App. 534)

GRIFFIN.

v.STATE.

(No. 538.)

Court of Appeals of Georgia.

Oct. 3, 1907.

1. Criminal Law — Circumstantial Evidence.

While the guilt of a defendant charged with crime may be inferred from circumstances satisfactorily proved which are inconsistent with innocence, the circumstances relied upon must be affirmatively established and legally proved.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1259-1261.]

2. Gaming—Evidence.

Evidence that the defendant was present at a game of cards, and ran upon the approach of officers armed with pistols, is not (in the absence of evidence that such defendant either played or bet for money, had in his hands or near him either cards or money) sufficient to establish the guilt of such defendant beyond a reasonable doubt, within the meaning of section 984, Pen. Code 1895. Neither presence nor flight, nor both together, without more, is conclusive of guilt.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Gaming, §§ 291-298.]

3. Criminal Law—Evidence.

The belief of a witness cannot supply the place of substantive material facts.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1036.]

(Syllabus by the Court.)

Error from Superior Court, Ben Hill County; U. V. Whipple, Judge.

Tom Griffin was convicted of gambling, and brings error. Reversed.

E. W. Ryman, for plaintiff in error.

W. F.George, Sol. Gen., E. D. Graham, Sol. Gen., and A. J. McDonald, County Sol., for the State.

RUSSELL, J. The defendant was accused of gaming. The evidence showed that he was in company with others, some of whom were undoubtedly engaged in playing and betting at cards for money. Upon the approach of the chief of police of Fitzgerald and an assistant, who presented a pistol and called to the negroes "to hold up, " the defendant incontinently fled, and the chief of police tore the defendant's shirt in the strug-gle to retain the prisoner. The defendant was convicted. A fact can be proved by circumstantial evidence as well as by direct proof. Gaming is one of those offenses which ordinarily must be proved by circumstantial evidence, if at all; and so well is the taste of some of our African citizens for petty gambling known that a nocturnal gathering in a secluded spot where the tableau is presented of several negroes seated or squatted around a quilt on which are cards and money raises a violent suspicion of guilt against any one of the number who may be in proximity to the quilt, the cards, or the money. But the law does not authorize conviction upon suspicion, no matter how violent, nor relax the rule laid in section 984 of the Penal Code of 1895 for the mere reason that gambling is detestible, that gamblers should be punished, and that proof of guilt is hard to obtain. The same rule applies to gaming as to all other offenses. "To warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused." Circumstances which authorize a mere conjecture of guilt are not sufficient to warrant a conviction, and the evidence, when entirely circumstantial, should connect the defendant with the criminal act. The only facts positively proved in this case were that the defendant was present where gambling was going on, and that he ran when accosted to the accompaniment of a pistol. True, one of the witnesses for the state testified that: "All of them seemed to be engaged in a game of cards. The cards had been dealt around, and all of the men looked like had cards, either in his hands or in front of him on the quilt, and most, if not all, had money in front of them." But, upon cross-examination, the same witness testified, as did the only other witness for the state, in effect: "I cannot swear positively that the defendant had cards in his hands or money in front of him, or that he was actually playing and betting in the game." The witness' entire knowledge with reference...