I dissent from the main opinion in this case and concur in the dissenting opinion of Mr. Acting Associate Justice Cothran, for the reason that I think it is patent on the face of the reported evidence that the unfortunate defendant is the victim of circumstances in which the two principal witnesses for the prosecution find it necessary, in order to free themselves from the consequences of the situation in which they were discovered, to sacrifice the defendant by the charge that they were the victims of a robber and rapist. I am not willing to believe that any white man, however weak and cowardly he may be, would have acted as the male prosecuting witness in this case swore he did. It is impossible to believe that he could stand by and see the woman who was in his care subjected to the foul embraces of a negro, and moved from place to place for the accomplishment of his purpose, without making an effort to defend her though he died in the attempt.
Sheriff Oswald testified that Sutton told him that the negro tied him. Sutton denied this. Sheriff Oswald could have no motive of hostility toward Sutton, or partisanship for the negro, in making this statement; Sutton had an incentive for denying it.
Sutton and the young woman say the negro kept them at the place of the attack for more than two hours, and moved *Page 332 them about. Did no chance for resistance present itself during all that time, especially while the rape was being committed? Evidently Sutton was sincere when he said his life was the sweetest thing.
One is compelled, it seems to me, to the conclusion that he is attempting by this horrible story to shield himself from shame and disgrace, and the consequences of some unlawful or immoral act of his own.
One cannot escape the conviction that the utterly false and wild story told by the defendant contributed much to his conviction, and his present unfortunate situation. He lied, patently and foolishly. His life was in danger; he is an ignorant negro; but I submit that his rambling, silly story is no more improbable, nor any harder to believe, than is the blasting, searing tale told by the prosecuting witnesses in this case.
The defendant lied. On the night of his betrayal the Savior said to Peter, "before the cock crows you will deny me three times." And before the cock crew Peter had, with vehemence and oaths, denied his Lord thrice. And yet, he became one of the greatest of the disciples, and the Savior said of him: "On this rock I found my church." In His infinite wisdom He knew that in the weakness of human nature one in the stress of imminent danger will lie.
The rule of the law, in favorem vitae, is founded in that mercy which is the boast of the law in the manner of its enforcement. It is made to meet just such an emergency as this. Mr. Acting Justice Cothran has shown that it is recognized and has been followed by the Courts of this State aforetimes to avert a miscarriage of justice; and he has shown that there is here so grave a doubt of the guilt of the accused as to make it an error of law that the jury did not follow the instruction of the Court that the prisoner be given the benefit of every reasonable doubt and acquitted.
I submit that the evidence touching the actual commission of the crime is rendered uncertain by the unreliability and *Page 333 improbability of the story told by the two prosecuting witnesses. It was easy enough to have proved the fact that a rape had been committed if the charge was true. The woman had been taken, they say, to an hospital in Columbia, a few miles away from the place of trial. The doctor or other person who examined her could have been called to testify to the fact that a rape had been committed, if it was a fact; it was not done. If it be said that the defendant could have produced the evidence to disprove the charge, if the evidence of the person making the examination would so testify, the argument would be unsound. It is the duty of the State to prove such charge and to produce all the available evidence which would prove it beyond a reasonable doubt. The State has all the resources of the law, and the services of learned and able counsel. The defendant is an ignorant, illiterate, and apparently penniless negro; too poor to employ counsel, and who was defended by counsel appointed by the Court. The failure to produce this evidence, if it existed, raises the presumption that it did not exist, and that presumption raises a very reasonable doubt of the guilt of the accused.
The main opinion dwells with eloquence upon the fact that a wave of crime is sweeping the country. Conceded; that does not justify forgetting the principle of law that it is better that ninety-nine guilty men escape than that one innocent man be convicted and put to death. The death at the hands of the law of an innocent man casts more reproach upon the administration of the law than does the failure to convict the guilty.
The law knows this; hence its old and wise rule that the guilt of the accused must be proved beyond a reasonable doubt before an accused can be convicted. When the evidence leaves grave, or if you prefer reasonable, doubt of the guilt of the accused, it is error of law to convict.
My dissent in this case is based upon my conscientious conclusion that the evidence leaves grave doubt of the guilt of the accused, and my apprehension that if this judgment *Page 334 be affirmed, the affirmance may serve hereafter as a precedent to endanger the lives or liberties of others.
Surely this is a case in which the merciful provision of the principle in favorem vitae may be invoked.
MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN and MR. C.J. RAMAGE, Circuit Judge, concur.