Gibson v. State

ON MOTION FOR REHEARING.

Per Curiam.

Although the juror objected to served on the grand jury that found the indictment against J. M. Anderson for receiving stolen goods, and therefore heard the testimony of M. J. (Harrison, Mrs. Bessie Harrison, and A. J. Gordon, as to Anderson’s *76guilt of that charge, and though these same witnesses testified on the former trial of Lonnie Harper (one of the plaintiffs in error) in such a manner as to implicate both of the plaintiffs in error in the commission of the crime now under investigation, there is nothing in the record to indicate that in the investigation before the grand jury of the charge against J. M. Anderson, when the juror who is now objected to as disqualified was present, these witnesses mentioned or referred to either Gibson or Harper—notwithstanding their testimony afterwards delivered on the trial of Harper. No brief of the evidence adduced before the grand jury when the indictment was found against J. M. Anderson by the juror Barlow is attached to the record in this case, and this court would be compelled to base its conclusion upon surmise or conjecture only, should we hold that because the names of the witnesses who afterwards testified to the guilt of Lonnie Harper (one of the plaintiffs in error) wore indorsed on the indictment against J. M. Anderson, they had in fact testified to the same effect and had implicated or referred to Harper in the independent and separate investigation as to the guilt of said Anderson upon an entirely different charge growing out of the same transaction. It may be borne in mind in this connection that the only issue in the case now under review was whether the storehouse belonging to Gordon had been burglarized. Our decision must be based upon the record as made, and not upon conjectures, or upon plausible or even probable conclusions from certain facts in proof which might support such a conjecture or conclusion but not necessarily require or even suggest a logical resulting inference. The fact that M. J. Harrison, a witness against the plaintiff in error, has been himself convicted on another trial of the same offense as these defendants, and his conviction has' been sustained by this court, by no means argues (as contended in the motion for a rehearing) that the conviction of the defendants Gibson and Harper would be a miscarriage of justice, but tends to demonstrate rather that Harrison, Gibson, and Harper all three participated in the crime, of the commission of which separate juries have found them guilty, largely upon the testimony of each other. This, however, is not a matter for consideration by this court, as each case must be determined upon the record in that particular case and not upon the record in some other, even where such other case may involve the same crime.

*77We have carefully gone through the entire record in this case, and, while appreciating the earnest loyalty of able-counsel in fighting to the last ditch in behalf of his clients, we can but recognize the natural bias in their favor which he properly should and evidently does entertain, and we are unable to see any sufficient reason to conclude that the original judgment in this case should be altered, and therefore the application for a rehearing is denied.

Motion for rehearing denied.