State v. Anderson

I concur but I call attention to the inclusion in the opinion of the quotation from State v. Erwin, 101 Utah 365,120 P.2d 285, 302. I think the first and last sentence of that quotation helpful. The middle part of the quotation stating that the

"circumstances must be such as to reasonably exclude every reasonable hypothesis other than the existence of such fact and be consistent with its existence and inconsistent with its non-existence"

is too abstruse for the ordinary jury, and from my experience has even misled judges to withhold from the jury cases which should properly have been submitted. I paid my respects to this sort of a test in my concurring opinion in the case of State v. Burch, 100 Utah 414, 115 P.2d 911, at

My objection is not that the test, properly understood and used, is not a valid one. In certain cases where the circumstances as to each necessary element of the crime are not of themselves anywhere near compelling as to such element, but when taken with those other transactions which give color or lend interpretation and also interlock and reinforce other groups of circumstances relating to other transactions in the history of the events which it is alleged constitute a crime, so that from the whole a definite conclusion of guilt may or may not be drawn, it may be wise to instruct the jurymen in such fashion as to cause them to parade before their minds all possibly reasonable hypotheses consistent with innocence as a method of deliberation. Such a case was State v. Laub, 102 Utah 402, 131 P.2d 805. But even under the facts of that case I believe that less confusion would arise from the giving of an instruction that if from all the circumstances the jury had no reasonable doubt as to the guilt of the defendants, they could find them guilty; that if all the circumstances pointed concurringly to the guilt of the defendants so as to remove all doubts founded on reason, they would be justified in finding the defendants guilty.

The main objection to the test that the evidence must exclude every reasonable hypothesis lies in the phrase "reasonable hypothesis." It invites the jurymen and indeed judges (seeState v. Bruno, 97 Utah 17, 85 P.2d 795), to conjure up in the imaginations every sort of hypothesis which may be fitted into the evidence and then in the process of discarding some and retaining others the test of reasonableness is applied with great variation as to their judgment as to what is reasonable. Often in determining whether a particular explanation is or is not reasonable, judges invade the province of the jury and I fear that the method of taking up all possible hypotheses which the evidence permits and then sifting out the reasonable from the unreasonable, those terms depending of course on the judgment of the judges, leads to such invasion.

It is odd how some abstract statement applicable when first devised as a test on the facts then in evidence persists down through the years to become an incubus on the law. There is no use of inflicting on a judge and much less on a jury a test which says that where a fact rests on circumstantial evidence alone the

"circumstances must be such as to reasonably exclude ["in every reasonable mind" should I suppose be supplied] every reasonable hypothesis other than the existence of such fact," etc.

The simple test is:

"Under all the evidence in this case can I as a judge say that no normal functioning mind applying its reasoning faculties to the evidence in the case could conclude that defendant was guilty."

If so it must be withdrawn from the jury. If the judge has doubt as to that it should go to the jury with the instruction that it, the jury, must be convinced beyond a reasonable doubt as to defendant's guilt before it should find him guilty. These are comparatively simple tests — albeit they do depend on the experience and capacity of the minds of the fact finders, a human element of uncertainty we cannot escape from. There are no absolutes in the human mind. We have no robots into which we can feed evidence, and turn a crank and get the exact, correct and perfect result. All that can be expected is human justice — that which emerges from not infallible and imperfect human beings even after every attempt to be fair and apply to the utmost their comparatively frail and limited human faculties.