Wade v. State

Russell, C. J.,

dissenting. In my judgment the apprehension that a possibly guilty man may escape unduly constrains my colleagues to affirm the judgment in the present case. Eor myself, I am compelled to say that I see no proof whatever of the corpus delicti. Presumably every burning is accidental or providential, where the contrary does not appear. The burden rests upon the State to satisfy the jury beyond any reasonable doubt that the building alleged to have been burned was feloniously fired, with the intent to destroy the building to the injury of its owner; and where circumstantial evidence alone is relied upon, the degree of proof necessary for the purpose must be such as to remove every other reasonable supposition than that the building was purposely fired by the accused. Even if there had been direct proof that the defendant had during the night passed by the barn, or even if he had been seen to run from it, I do not think that this, without more, would have authorized the inference that he set fire to it, if it burned later in the night. The fact that tracks alone, even if distinctly identified, are insufficient of themselves to authorize conviction is almost universally recognized. So far as the present case is concerned, the mere circumstance that tracks similar to these made by two pairs of shoes (admittedly in the possession of the defendant) were found near the barn does not afford sufficient *171identification to fix upon the defendant the making' of the tracks in question, especially in these times of depression, when shoes with both counters run down and without half soles, and perchance with a piece of loose leather on the side, are not rarities. Such shoes were perhaps the only foot-wear of the laboring population in a radius of five miles. The defendant happened to have also a pair of good shoes, and of course the tracks made by him in wearing them would not only be similar but identical with the tracks of shoes of the same size and make worn by any other individual. The remark attributed to the defendant, that the barn which he saw burning was that of the prosecutor, must, in view of the jury’s finding, be assumed to have Been made by him, but a person would be in a hapless plight if he were convicted of barn burning because, by chance, he happened to guess the exact location of- a fire. In my judgment none of the circumstances relied upon by the prosecution, nor all the circumstances collectively, suffice either to establish the corpus delicti or to show the participation of the accused in the alleged arson; and as regrettable as it may be that the detection of this dastardly crime is extremely difficult, the enforcement of the law can not be advanced by the punishment of any one not shown to be guilty under those well-established rules of law which have stood the test of centuries of experience. The conviction of an innocent man always emboldens the real culprit who thus escapes punishment to commit graver offenses.