Through respect for the able counsel who represents the defendant, we have carefully gone over the entire record in this case, in connection with the motion for a rehearing, and the authorities cited. The result of our deliberations has strengthened our confidence in the views expressed and the conclusion reached in the original opinion. It would be a waste of time to repeat what was said there.
We desire to reaffirm the announcement, heretofore made, that when a defendant is clearly guilty this court will not reverse a conviction upon a technicality or exception which does not affect the substantial rights of the defendant. This is the settled policy of this court.
We have no sort of doubt of the guilt of the defendant, and while there may have been some irregularities in his trial, yet we believe that he has been fairly tried and properly convicted. We cannot understand how an honest man could act as the testimony in this case shows that defendant has acted. His conduct is absolutely inconsistent with his innocence, and adds increased force to the testimony of the prosecution, and makes practically certain that which otherwise might have been open to dispute. He had once before been convicted. He therefore knew the convincing character of the evidence against him. If his connection with the horse was honest, he could have explained it by producing Bob George and Walter Vail as witnesses in his behalf. *Page 320 But in the face of the former conviction, and with a full knowledge of the testimony against him, which, if untrue, could have been contradicted or explained by Walter Vail and Bob George, the defendant remained as dumb as an oyster, and refused to place these witnesses on the stand or to account for their absence, but depends alone upon the ability of his counsel to make a purely technical defense. It is unconceivable to us how an innocent man could be induced to adopt such a course. If upon any question in the case the testimony for the prosecution was uncertain, this uncertainty was cured by the conduct of the defendant. An honest man, when charged with theft, and proven to have been in possession of recently stolen property, will take some steps to show the good faith of such possession and to vindicate his character. It is true that the law does not require him to do so, but if it is shown that witnesses are accessible to him by whom he can prove his good faith, if he did act in good faith, and he refuses to produce those witnesses, he cannot complain if this failure is considered as a circumstance against him. Such conduct is a just basis for the conclusion that if those witnesses were produced their testimony would not contradict, but would confirm, the testimony against the defendant.
By failing to offer any evidence when it was in his power to do so, if he was innocent, the defendant cannot be heard to complain if the jury placed the strongest construction possible against him upon the evidence offered by the prosecution, and this court approves the verdict at which they arrived. It is our purpose to sustain the action of trial courts and the verdicts of juries in their efforts to enforce the law, punish criminals, and thereby protect honest and lawabiding people in the peaceable enjoyment of their property and lives, and, when a defendant is proven to be guilty, he need not look to this court for relief upon any technicality which does not affect his substantial rights.
Motion for rehearing denied. *Page 321