Elder v. State

McCay, Judge.

We have gone carefully over the evidence contained in this record, but we are unable to find any such a state of facts as will justify us in ordering a new trial. We have so often announced that we do not judge it to be within the sphere of our duties to reverse a judgment of the circuit judge refusing a new trial on the evidence, where the facts are such that a fair mind might honestly come to the same conclusion as the jury, that we will not attempt, at this time, to reassert the rule' or to give our reasons for it. Without question, if Isaiah Sanford tells the truth, this defendant is guilty. He swore positively, on Hall’s trial, that he was present at the fight and saw the pistol fired. This fact, his presence, was of the utmost importance on the trial of Hall, since it was only because of his presence that he knew anything about it. If he was not present, his whole statement was perjury. Isaiah says that the defendant was not present, and he details various facts which, if true, are absolutely inconsistent with his presence. Hall testifies the same thing just as positively, and the testimony of both is corroborated, at least to some extent, by the the testimony of the two women as to the prisoner’s statements to them. The only question there can be in this matter is whether the rule that in trials for perjury one witness is not sufficient to convict, controls this case. Isaiah Sanford is a positive witness ; he says the prisoner was not present at the rencontre between Hall and Cushman, and that he did not see the pistol fire, or hear or see what he swore to on Hall’s trial. Hall, a competent wituess under the act of 1866, notwithstanding his conviction for a felony, swears the same thing. These are two witnesses, and the circumstances stated by the two female witnesses, though they are not at all conclusive, are certainly corroborative of Hall and Sanford. This fulfills the letter of the law, and the question becomes one simply of credibility. It is not necessary for us to say that the verdict is right, that the jury ought to have found just such a verdict under the testimony. Under the law the verdict must stand, if, under the evidence, a fair-minded man might honestly be satisfied of the guilt of the accused. We think a fair-minded man might so find. He might believe Sanford and Hall. Sanford’s testimony is very credible. Though an ignorant man, he seems a very frank and honest one, and though his occupation be a very humble one, yet his story is consistent, reasonable, plausible. If to this be added Hall’s testimony and that of the two women, we do not feel it in our conscience to say that a jury must have acted from passion, prejudice or bias, to find the verdict complained of.

Judgment affirmed.