Middleton v. State

• Decision Date: 09 November 1909
• Docket Number: (No. 2,065.)
• Parties: MIDDLETON. v. STATE.
• Court: Georgia Court of Appeals

(7 Ga.App. 1)

66 S.E. 22

MIDDLETON.

v.STATE.

(No. 2, 065.)

Court of Appeals of Georgia.

Nov. 9, 1909.

(Syllabus by the Court.)

Error from Superior Court, Decatur County; Frank Park, Judge.

Tom Middleton was convicted of an assault and battery, and he brings error. Affirmed.

W. I. Geer, for plaintiff In error.

W. E. Wooten, Sol. Gen., for the State.

RUSSELL, J. The defendant in the lower court was tried and convicted of assault and battery. A young lady in the town of Donal-sonville, who has since married, was followed about 200 yards one night, in December, 1906, by a man who grabbed her in his arms and hugged her. It was about a quarter past 8 o'clock. She was returning to her home from the telephone office, where she worked. When she screamed, some ladies who had been shopping came down the street, and the man ran off. He was arrested later in the night, when he was apparently about to board a train. The prosecutrix testified that, while she had never known the defendant until that night, she saw him distinctly standing on the street as she passed; saw him distinctly more than once as he followed her, and also at the time of the assault; and on her oath she positively identified the defendant as the same man. Though there was some effort by cross-examination to show that the prosecutrix might have been in doubt, shortly after the assault, as to who her assailant was, her testimony is not only direct and positive upon the point that the defendant, whom she has seen several times since, was her assailant, but no reason appears why it is in any sense unreasonable. She testified that she saw the defendant plainly each time she looked towards him, and that he was the same man who assaulted her. The fact that she did not then know his name does not make the identification dependent upon circumstantial evidence.

Some of the evidence introduced, tending to corroborate the prosecutrix's testimony, was circumstantial in its nature; but, in view of the positive identification of the defendant by the prosecutrix, the verdict of guilty would have been authorized, if no other evidence had been introduced. For this reason, we do not think that the court erred, as insisted by the counsel for plaintiff in error, in failing to instruct the jury upon the subject of circumstantial evidence. Bivins v. State, 5 Ga. App. 434, 63 S. E. 523. As held in Riley v. State, 1 Ga. App. 651, 57 S. E.1031, in any criminal case in which the guilt of the defendant is dependent wholly upon circumstantial evidence, the jury should be instructed that if the proven facts are consistent with innocence the defendant is entitled to acquittal; and this for the reason that "circumstantial evidence is worth nothing in a criminal case if the circumstances are reasonably consistent with the hypothesis of innocence as well as the hypothesis of guilt." And it is for this reason that the court said in the Riley Case, that "the jury should have been given the lamp provided by section 984 of the Penal Code of 1895 to guide their feet in journeying through the testimony in search of a legal verdict."

But where all of the evidence is direct and positive, the principle involved in section 984 of the Penal Code of 1895 has no application. It is not then a question of a comparison of the reasonableness of hypotheses, but the question is rather whether the direct testimony is credible. In a case where the guilt of a defendant depends wholly upon circumstantial evidence, it is error not to instruct the jury that the defendant should be acquitted unless the hypothesis of his guilt is more reasonable than any other hypothesis which can be drawn from the circumstances; but where there is direct evidence of a defendant's guilt, as well as circumstantial evidence pointing to the same conclusion, if the defendant thinks that the jury will discreditthe direct evidence establishing his guilt, and that the finding will turn upon the view taken of the...