Thomas v. State, 6 Div. 691
| Court | Alabama Court of Criminal Appeals |
| Citation | 363 So.2d 1020 |
| Docket Number | No. 6 Div. 691,6 Div. 691 |
| Parties | Ben THOMAS, III v. STATE. |
| Decision Date | 31 October 1978 |
363 So. 2d 1020
Ben Thomas, III
v.
State
No. 6 Div. 691
Court of Criminal Appeals of Alabama
October 31, 1978
Bowen, J. Wrote The Opinion. Harris, PJ, Tyson, Bookout, JJ, concur. DeCarlo, J, adheres to dissent.
BOWEN
OPINION
[363 So. 2d 1024] On Rehearing
All the evidence against the appellant was circumstantial.
Circumstantial evidence is not inferior evidence but is evidence only if it along with the other evidence is susceptible of a reasonable inference pointing unequivocally to the defendant's guilt. Sumeral v. State, 39 Ala. App. 638, 106 So.2d 270 (1958). It is the inference of a fact in issue which follows as a natural consequence from known collateral effects. White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975).
For circumstantial evidence to be sufficient to justify a jury in convicting upon it, the circumstances proved must not only be consistent with the hypothesis that the defendant is guilty but inconsistent with the hypothesis that he is innocent, and inconsistent with every other rational hypothesis except that of his guilt. Ex parte Acree, 63 Ala. 234 (1879); Ott v. State, 49 So. 810, 160 Ala. 29 (1909); Lloyd v. State, 50 Ala. App. 646, 282 So.2d 85 (1973). Circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence. Pickens v. State, 115 Ala. 42, 22 So. 551 (1897); Tanner v. State, 291 Ala. 70, 277 So. 2d 885 (1973). Circumstances, no matter how strong, which merely arouse a suspicion of guilt will not serve [*1025] as a basis for conviction. Black v. State, 52 Ala. App. 528, 294 So.2d 777 (1974); DeSilvey v. State, 245 Ala. 163, 16 So.2d 183 (1944). Circumstances merely consistent with guilt or causing suspicion thereof are insufficient to justify a conviction of crime. Jordan v. State, 229 Ala. 415, 157 So. 485 (1934).
Here, the circumstantial evidence did nothing more than create a suspicion that the appellant was guilty of a criminal act. It was therefore an insufficient basis for a conviction. Facts are not proved by circumstances merely consistent with their existence. Fuquay v. State, 22 Ala. App. 243, 246, 114 So. 892 (1927).
On rehearing the State has simply refiled its original brief and has not specifically and clearly called to this court's attention any alleged error in our original opinion. Refiling a brief filed on submission as a brief supporting an application for rehearing is not...
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