I am in accord with the conclusion reached by Judge Harwood in the original opinion wherein he held that the judgment of the lower court should be reversed, but I am in discord with his finding that the general affirmative charge was not due the defendant. Briefly I will state my reasons.
The tendencies of the vital evidence are set out in the original opinion and my careful examination of the record does not disclose any testimony that could add any evidential strength to the position of the State.
When we rid the testimony of all immaterial matters and come to consider only facts that are essential, we find: The deceased voluntarily accompanied her husband — the defendant — on a fishing outing. The trip was taken in a small rowboat on the somewhat turbulent waters of the Coosa River. During the journey an electric storm came up. Appellant reported that his wife had been drowned. After search, her body was found in the stream and no evidence of violence, wounds or injury was indicated. The expert testified that drowning was the cause of death. Appellant's testimony relating to the incident was not an unreasonable or unlikely story. There was some evidence that the appellant was not entirely clear and consistent in his explanations of the occurrence and some testimony that might have a tendency to show motive for the alleged crime. My considered conclusion is that these facts rise no higher in evidential value than mere suspicion or surmise.
Some fundamental principles will be considered.
A mere scintilla of evidence will not justify a conviction in a criminal case.
"After an examination of the authorities, we have been unable to find any decision of this or any other court of last resort that has invoked the 'scintilla rule' to uphold a criminal prosecution. * * * These utterances are clearly inconsistent with the thought that a mere 'gleam,' 'glimmer,' 'spark,' 'the least particle,' the 'smallest trace' — 'a scintilla' — is sufficient, in the face of the presumption of innocence, to require the court to submit the issues in a criminal case to the jury, and the scintilla rule, in this sense, does not apply to criminal prosecutions. There must be substantial evidence tending to prove all the elements of the charge." Ex parte Grimmett, 228 Ala. 1, 152 So. 263.
"The possibility that a thing may occur is not alone, under any fair, reasonable, deduction, evidence, even circumstantial, that the thing did, in fact, occur. * * * Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur." Taylor v. State, 30 Ala. App. 316,5 So.2d 117, 118.
"The humane provisions of the law are, that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused." Ex parte Acree, 63 Ala. 234.
Circumstantial evidence that merely arouses suspicion is not sufficient upon which to base a conviction. Jordan v. State, 229 Ala. 415, 157 So. 485.
In support of his conclusions on the instant inquiry, Judge Harwood cites Ducett v. State, 186 Ala. 34, 65 So. 351, and DeSilvey v. State, 245 Ala. 163, 16 So.2d 183. In my judgment these cases differ *Page 461 materially in factual similarity to the case at bar.
In the Ducett case the deceased and defendant were alone in a room when the latter received a fatal pistol wound. The physical facts strongly rebutted an act of suicide.
The evidence in the DeSilvey case discloses that the deceased and the defendant were last seen together riding in a car, ostensibly to visit a friend. The avowed purpose of the journey was not completed, nor was it anticipated by the friend. The body of the deceased was found some months later under circumstances that strongly indicated that she came to her death by foul means. In addition there was strong incriminating testimony against the defendant indicating a motive for the crime, as well as a set of circumstances incident to the fateful journey that were inconsistent with the innocence of the accused. Flight was also shown, including a trip to a northern city over two thousand miles away, and a jail break after he was incarcerated on the charge of murder.
In a well-considered opinion by Presiding Judge Bricken of this court in Hand v. State, 26 Ala. App. 317, 159 So. 275, it was held that the general affirmative charge was due the defendant. It is my view that the circumstances in the case at bar are not as strong and cogent as the recited evidence in the opinion in the Hand case, supra.
I fully realize that where there is evidence of a substantial nature tending to establish the material elements in a criminal case, a jury question is presented. I am equally aware of the responsibility of the courts to make innocence secure even though crime may sometimes go unpunished.
"The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass."
BRICKEN, P. J., concurs in the foregoing opinion of CARR, J.