WILSON, J. I dissent.
I cannot subscribe to the conviction of the defendant upon evidence so minuscule in quantity and so improbable in quality that it not only fails to overcome the presumption of innocence and to remove the cloak of reasonable doubt that covers a defendant in a criminal action but is unbelievable.
The undisputed facts are these: Defendant had been requested to vacate a garage in which he had been residing; in compliance with the request defendant had moved some of his effects from the garage prior to the date of the alleged offense; at about 1 o’clock in the morning he was loading his property into his trailer in front of the garage when the complaining witness left his near-by home and went to* the front of the garage, where the defendant was loading his trailer. From this point the evidence is in conflict.
The complaining witness, Carlson, testified that he asked defendant to stop making a noise in loading his trailer because he was waking the neighbors; that the defendant threw some lumber into the trailer, and the complaining witness threatened to call the police; that defendant struck the com[590]plaining witness with a hammer six or seven times; that he then struck the defendant with his fist, knocking him to the ground; he denied that he struck defendant while the latter was on the ground; denied that his brother struck or kicked defendant. Carlson’s claim that he was struck on the head with a hammer several times before he could strike defendant is unbelievable.
Defendant testified that the complaining witness struck the defendant first; that the latter did not have anything in his hand; that defendant fell to the driveway; that while defendant was lying on his back the complaining witness beat him in his face and that the brother of complaining witness kicked him in the side; that while defendant was struggling to defend himself his hand came in contact with a hammer that was lying on the driveway and with it he hit the complaining witness, who was then beating defendant in the face; that at that time defendant was lying on his back, complaining witness had one knee on his stomach and the other on his arm.
Mrs. Katie Gauldin, who lived in a house next door to the garage, testified that she heard defendant screaming; that she went out and saw defendant lying on his back with one man on top of him, beating him and another man kicking him; that she subsequently ascertained that the two men were the complaining witness and his brother; that when she called to the two men, asking them to leave defendant alone, one of them said “Go back in the house or he would slap my damn face;” that she called Mr. Johnson', who was rooming in her home; that when Johnson came out and remonstrated with the Carlsons one of them threatened to come over and beat up Mr. Johnson and started toward him.
Mr. Johnson testified that when he came out of the house defendant was on the ground, one man was hitting him and the other kicking him; defendant was screaming; that when he protested against the actions of the two men and said there was not use in killing the defendant, one of them replied: “Well, I will come over there and beat hell out of you”; that he came through a gate toward Johnson, and the latter went in the house and called the police.
Carlson’s brother, who took part in the affray, was not called as a witness. There is no evidence that the brother was not available or that he could not have been produced at the trial. Therefore, under a familiar rule of evidence it will be [591]presumed that if he had been called as a witness his evidence would have been adverse to the prosecution.
If the complaining witness had been hit on the head six or seven times with a hammer he, instead of defendant, would have been lying on the driveway and, unless his head was made of stone, he would have been unable to continue to fight and thereafter to relate so meticulously all the circumstances to which he testified. The evidence as to the hammer blows corroborates defendant’s testimony that he used the hammer while Carlson was on top of him.
Carlson’s belligerency is shown by the threats of violence made to Mrs. Gauldin and Mr. Johnson when they protested against the assault of the two against the one who was then helpless on the pavement, and by the fact that when defendant was able to get to his feet and attempted to escape by running down the driveway he was “headed off” by Carlson and prevented from leaving. His hostile conduct tends to corroborate defendant’s evidence that the complaining witness struck the first blow without provocation. The latter’s testimony that he did not strike defendant and that his brother did not kick defendant while the latter was lying on the driveway is flatly contradicted by defendant, Mrs. Gaul-din and Mr. Johnson. What Carlson’s brother may have said, if produced, is left to conjecture.
The majority opinion states that the evidence of the complaining witness “was evidently believed by the trial court” and “was sufficient to sustain the finding of guilty.” The fact that in the face of all the circumstances shown by the evidence the court believed the complaining witness is not sufficient, giving consideration to all the other evidence in the case, to overcome the presumption of defendant’s innocence until he was proved guilty beyond a reasonable doubt.
This case does not come within the rule that a judgment must be sustained when there is substantial evidence to support it for the reason that there is an utter lack of substantial evidence of appellant’s guilt. There are no conflicting statements in the testimony of the various witnesses except where they collide with the incredible evidence of the complaining witness.
In view of the evidence of the complaining witness as to the extent of the injuries received by him from the hammer blows, the contradiction of his testimony by defendant and two disinterested witnesses, the injuries inflicted on defen[592]dant, consisting of a broken nose, lacerations on bis face, bruised side and other wounds, Carlson’s evidence that he was struck first by defendant is so highly improbable, incredible and unbelievable that the presumption of innocence still prevails and reasonable doubt has not been dispelled.
The judgment should be reversed.
A petition for a rehearing was denied December 8, 1947. Wilson, J., voted for a rehearing.
Appellant’s petition for a hearing by .the Supreme Court was denied December 22, 1947.