Nash v. State
| Decision Date | 31 August 1912 |
| Citation | 126 P. 260,8 Okla.Crim. 1,1912 OK CR 368 |
| Parties | NASH v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
When in the trial of a criminal case, the proof introduced on behalf of the state is insufficient to sustain a conviction it is the duty of the trial court to advise the jury to return a verdict of not guilty.
(a) When, in the trial of a criminal case, the evidence relied upon for conviction is entirely circumstantial, the facts shown must not only be consistent with and point to the guilt of the accused, but must be inconsistent with his innocence.
(b) Where the evidence only raises a suspicion of the guilt of the accused, it is insufficient to sustain a conviction. Suspicion is not proof; and the court should direct a verdict under such circumstances.
A person on trial, charged with the commission of a crime, is by law presumed to be innocent until his guilt is established beyond a reasonable doubt; and no inference of guilt can be founded upon circumstances, except such as naturally or necessarily follow from the facts. If the facts and circumstances are not of such character as to fairly permit an inference inconsistent with innocence, it cannot be regarded as sufficient to support a conviction.
Additional Syllabus by Editorial Staff.
In a prosecution for burglary, evidence held insufficient to sustain a conviction.
Appeal from District Court, Comanche County; J. T. Johnson, Judge.
Frank Nash was convicted of burglary, and appeals. Reversed.
Jennings & Ross and Geo. D. Key, for plaintiff in error.
Smith C. Matson and C.J. Davenport, Asst. Attys. Gen., for the State.
The plaintiff in error, Frank Nash, was tried on an information filed in the district court of Comanche county, charging John Murphy and himself with burglarizing the store of Kraker Bros. & Naifer Dry Goods Company at Lawton, in said county on the 28th day of April, 1910. He was convicted and sentenced to serve a term of two years in the state penitentiary.
The material testimony may be summarized as follows:
Witness Kraker testified that he was one of the owners of the merchandise in the store at the time it was burglarized, and employed therein; that the store and safe were locked and in the usual order on the evening before the burglary; that on the following morning the store was found broken open, the safe blown with some high explosive, and $217, which had been left in it, gone; that $23 left in the cash drawer was also gone.
Witness Ed Morris testified that at the time of the burglary complained of he was a member of the Lawton police force; that he knew the accused, Nash, and had known him for about two years; that he was a member of the day force, and that the burglary occurred on Wednesday night; that on Friday evening following the burglary he saw the accused, between 9 and 10 o'clock, near First and D streets, and later saw him about two blocks west at the Val Blatz building, which stands up two feet or more above the ground; that the accused was under the building, and was shot through a hole in the floor by Officer Dossett, and immediately thereafter arrested; that the Val Blatz building is about two blocks east of the store which was burglarized; that while accused was under the house, and before he was shot, some one struck a match under the building, and said, "Where did we leave that stuff?" and was answered by some one on the outside of the building, who said, "Up this way farther;" that a small iron bar, used for a nail puller, and a steel instrument, called a "triangle," and a revolver were found under the building near where the accused was shot; that a monkeywrench and a stick of dynamite were found near the safe in the burglarized store.
Witness John Dossett testified that he had been deputy sheriff and also chief of police in Lawton for a year or so; that he heard of the burglary on the day following its commission; that he was in the Val Blatz building with Officer Morris on Friday night following the burglary, and was watching the articles enumerated by Morris; that between 9 and 10 o'clock some parties came there; that he could hear them talking on the outside, and one of them crawled under the house and struck a match, and he heard him say, "whereabouts is that?" and the reply, "It is further down;" that there was a board torn up from the floor of the building where the articles were, and pretty soon a man crawled up to it, and said, "Here it is," and when he said that Officer Morris hollered, "Hold up;" that when he did that the light was shining under the building, and he saw the party raise a revolver under the hole where he stood; that he immediately jumped back and fired a shot through the hole with a shotgun loaded with BB shot; that there was some confusion under the floor, and the party said, "Don't shoot any more;" that he went around to the outside to see who it was, and when he got there found the accused sitting on the ground, and when asked who he was the accused replied, "Frank Nash;" that the revolver, which was afterwards introduced in evidence, was found in the grass near where the accused was arrested.
Witness Froneberger testified that he had known the accused for two years; that he saw him the night of the burglary about 2:30 a. m.
Witness Fred Knight testified that he was in Lawton on the night of the burglary; that he went to bed about 11 p. m., and got up about 4 a. m.; that he was at Sid's Restaurant, on the corner of Third and D streets, at the time of the explosion; that a few minutes after the explosion he saw two men across the street back of Sid's Restaurant and go down the alley east; that one was a large man and the other a small one. He was asked to compare the size of the small man with that of Frank Nash, the accused, and answered that the comparison was about the same, as best he could judge, but, on cross-examination, said that he did not know who the men were.
Witness Froneberger was recalled, and said that he had seen the accused, Nash, and others frequently on the street at all hours of the night.
Witness Blimbrick testified that he was one of the Lawton police force; that he knew the accused, Nash, and had known him for almost a year; that he was on the force about a year; that he saw Nash and several companions about 2:30 that night; that he thought accused had on a light suit and a black hat; that he did not hear the explosion; that some one wanted to borrow a dollar, and accused said he...
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