I regret that I cannot concur with the majority in the foregoing opinion. This is my third dissent in seven years service on the bench. As I grow older and note the fallibility of my own judgment and conclusions, I give more consideration and weight to the judgment of others, and therefore have not been quick to dissent (a regrettable tendency in many judges) from the conclusions of others more capable; but the grave results here involved impel me to clear my conscience of this man's blood.
I hold that a change of venue should have been awarded. The crime, if one was committed, occurred May 9, 1926. The trial was had at the following July term and sentence pronounced July 28, 1926. The newspapers were full of the sordid affair. The people were righteously indignant. Many arrests were made. The sheriff's force aided by state police were active in trying to discover the supposed perpetrator to such an extent that injunctive power of a court of chancery was successfully invoked to prevent them from continuing "third degree" methods to extract confession or damaging evidence from Layne, at whose home the debauchery occurred. The people of the city of Williamson, which contains one-third of the entire population of the county, as well as those outside, knew these facts from the public press, and the matter was a general conversation and comment. A. R. Stepp, 44 years old, chief of police of the city, and who was born, reared and always lived in the county, and who did not know defendant, and had no interest in the case, swears that he is thrown in daily contact with the people of the city and a majority of those in the county, and that he had heard the case discussed by them; that the reports were that Layne and Beale had raped, murdered and thrown into the river Rissie Perdue, and that from expressions made by the people in relation thereto he swears that he is of the opinion that Beale cannot get a fair trial in the county. The point is made in *Page 635 the opinion that the expressions he had heard were not set out in the affidavit. It is true that he does not say that the expressions were that "they should be hanged, or lynched", or anything of like character, but the fact remains that the talk impelled him to state on oath that defendant could not get a fair trial. The petition for change of venue supplemented by Stepp's affidavit was demurred to by the State at the court's suggestion, and the demurrer sustained. The facts therein stated are not controverted. They are to be taken as true as well as all inferences reasonably to be drawn therefrom. Can it be inferred from Stepp's affidavit that the expressions which he heard generally from a majority of the people were not inimical to a fair trial? The State did not attempt in any way to controvert the affidavit or the facts set out in the petition. They remain unchallenged except by demurrer. The great body of the jurors empaneled came from the city. It is apparent to me that the inflamed feeling against the prisoner in the county had not subsided. The mob cry of "an eye for an eye" had not subsided. The short time between the commission of the supposed crime and the trial, played up in gruesome details by the press, and kept alive by questionable "third degree" methods, was not sufficient to enable a return to that calm temperament and judgment which should always be present at a trial where human life is involved. There was not sufficient cooling time. The psychological influence of public opinion upon a jury is well recognized. It reaches a jury unperceived. It was stated in argument that Layne, co-defendant with Beale, had, upon the same petition and evidence, been granted a change of venue, and had been tried in another county and acquitted. This record shows that he was as culpable, if not more so, than Beale. This fact of acquittal is of some significance on the point under discussion.
A word on the sufficiency of the evidence. Granting that the evidence is sufficient to prove the corpus delicti (and it is not conclusive to my mind under the evidence of the physician who conducted a post mortem), the criminal agency of defendant has not been shown to the exclusion of every other reasonable hypothesis. It is said that defendant was *Page 636 the last person seen with her and he had called out that she was dying and for some one to come. This exclamation, if true, does not import that he was killing her or had killed her. The witnesses were not impressed sufficiently to respond to the cry for help. The deceased had been acting strangely and making outcries of an unusual character all afternoon. Under the well known rule of circumstantial evidence, it is essential that the circumstances proved must be not only consistent with the hypothesis of the guilt of the accused, but it is essential that the circumstances should to a moral certainty exclude every hypothesis but that of the guilt of the accused.
The evidence does not meet that requirement. State v.Flanagan, 26 W. Va. 122; State v. Bennett, 93 W. Va. 548; State v. Dudley, 96 W. Va. 481; State v.Roush, 95 W. Va. 132; State v. Gilfillen, 96 W. Va. 660; State v. Hunter, 103 W. Va. 377. Judge LITZ concisely stated the law in State v. Bennett, supra, as follows: "To convict on circumstantial evidence alone, it should to a moral certainty exclude every other hypothesis but that of guilt; and circumstantial evidence should always be scanned with caution."