This is an appeal from a conviction of burglary of about sixty bushels of wheat from a granary in a field near Lewistown, the property of John Sampson. It appeared from the testimony that the granary was situated in a field about sixty rods from any other building. *Page 322 The defendant McWilliams, with a codefendant, Ralph Bacon, were charged with removing the property by means of a truck the wheel tracks of which were alleged to be proof of the commission of the offense by the defendants. The sheriff and several witnesses examined the tire tracks in the soft dirt of the field and on the roadway, and by means thereof the sheriff followed the truck to the home of the defendant some seven miles distant and thence six miles to a wooded area where the defendant was found with the truck gathering firewood. The sheriff told defendant of the burglary and of following the tire tracks, took the defendant in charge, and brought him to Lewistown. The defendant denied all guilt, but asked to have a private conference with the owner of the wheat, and thereupon offered to settle for the wheat, stating that it would be cheaper to pay for the wheat than to stand trial. He well knew that the chief evidence against him was the imprint of the tires in the soft dirt, but he made no effort to investigate the tracks to compare them with his truck and thereby establish his innocence. Later, when the case was tried, the sheriff and several witnesses testified that the imprint of the truck tires corresponded with the tires on the truck. Two witnesses testified that the defendants were seen returning with the truck in the early morning of the night in which the wheat was stolen. The defendant went upon the stand and disputed these two apparently disinterested witnesses, claiming that he had returned earlier in the night and gave some excuse for being so late in returning home that night. The majority opinion recites these circumstances more fully and concludes that the testimony was insufficient to sustain the verdict.
It is not my purpose to detail the circumstances of the trial. They are fairly stated in the majority opinion, but I cannot draw the same conclusions as in the majority opinion. I do not believe that the judges of this court are as well qualified to pass upon the truthfulness of the various witnesses as was the jury who met the witnesses face to face. There were twelve *Page 323 jurymen and their verdict was unanimous. I do not feel justified in voting to set aside their verdict under the circumstances.
Second, I am fortified in this conclusion by the circumstances that the defendant, when he learned of the charge against him on the day following the burglary, was then in a position to demonstrate his innocence of the crime by having appropriate examination made of the truck tire tracks, but, instead of doing this, he offered to pay for the wheat. It seems to me that his offer was not consistent with his innocence, and his testimony on the trial was discounted by his failure to make adequate and timely efforts to prove his innocence. The rule is, of course, well established that it is the duty of the state to prove beyond a reasonable doubt the guilt of the defendant, but I cannot construe the rule to go so far as to permit a witness to go upon the witness stand even though he be a defendant, and testify to his innocence when he has the means at his command to unquestionably and with slight effort establish his innocence. His testimony, contradicted by the evidence of two disinterested witnesses relative to the time of his return on the night of the burglary, lends further ground for discrediting his testimony and the theory of the majority opinion that the verdict of the jury should be set aside could not meet with my approval.
It was the duty of the district court to see that the rules of evidence were carefully observed and that the jury was properly instructed. The duty of the jurymen was to render a verdict of not guilty unless convinced beyond a reasonable doubt from the evidence that the defendant was guilty. At the close of the state's case a motion was made to direct a verdict for the defendant upon the ground that the evidence was insufficient to sustain a verdict against him. Judge McConochie denied the motion. The majority opinion finds no error in the admission of evidence or the instructions of the court, but it does find that the jury and Judge McConochie did not properly weigh the evidence, and months after the crime was committed and miles from the scene and from the witnesses, this court now finds that there is not sufficient evidence to sustain the verdict, *Page 324 and orders the defendant released and absolved from all liability. It amounts to a case of thirteen to four, with the opportunity of the thirteen to meet the witness face to face and to observe their demeanor on the witness stand and otherwise measure the merits of the case with greater precision than the four judges of this court upon the cold record.
In practically every criminal case the defendant claims the evidence was insufficient to sustain the verdict, and this court is asked to review and weigh the evidence. The duty of a supreme court is to examine the alleged errors of law in the lower court and any charge of prejudice of judge or jury or other error of law that might prejudice the defendant in the trial of his case in the lower court. The Constitution fixes the duty upon the jury to decide the facts, and this court should refuse to retry those issues of fact. Furthermore, I think it is quite unbecoming of the court to assume their superiority over the trial judge and the jury in view of the Constitution.
The record discloses that the defendant is married and has two children. No doubt that fact was rehearsed to the jury, and the trial judge was reminded of the injury that would arise if the husband and father is punished. The question of sympathy should not control or affect the question of the commission of the crime. A woman's tears and children's sobs have opened the doors of many a prison to turn loose smirking men who go forth to further prey upon society. The successful outcome in such criminal cases breeds confidence in the defendant, and he feels that his education acquired in this crime has taught him the schemes and technicalities that will free him in future contemplated violation of the rights of his neighbors. I think that the jury and the trial judge should be commended for their courage and judgment in this case. They would no doubt have preferred the thanks of the defendant and the family and friends for a different result. Let my dissent be recorded. *Page 325