LIVINGSTON, Justice.
The appellant, James Lester Lang, was indicted by the grand jury of Morgan County, Alabama, for murder in the first degree. The jury returned a verdict convicting him of murder in the second degree and fixed his punishment at ninety-nine years in the State penitentiary. The victim was Mrs. Christine Haynie, about thirty-seven years of age, who left surviving her a husband and six children. It was not shown that appellant and Mrs. Haynie were acquainted, and the verdict is rested on evidence entirely circumstantial.
The Bee Line Highway runs north and south in Morgan County and is some two miles east of where the crime was committed. Distances hereinafter mentioned are approximate. A dirt or country road, hereinafter called the country road, three miles long connects the Bee Line Highway with t'he ' Battle Ground Highway. This
country road, by no means straight, runs in a general east and west direction. Where the country road intersects the Bee Line Highway is located what is known as Hammet’s store and where it intersects the Battle Ground Highway is located what is known as Bibb’s store.
The Haynies lived one mile northeast of the country road, at a point which made their home two miles from Hammet’s store and two and one-half miles from Bibb’s store. Other State witnesses lived on or near the country road. The appellant was living with his brother, Roy William Lang (referred to in the record 'sometimes as Roy, sometimes as William), and his wife and three children. Roy Lang’s home is on the north side of the country road and one-half mile east of Bibb’s store. Ely Edmondson, Roy Lang’s father-in-law, lives on the north side of the country road one hundred yards east of Roy Lang.
On the morning of April 6, 1948, starting about 8 o’clock, the appellant, Roy Lang and one Woods drove Roy Lang’s wagon to Mr. Evans’ place on the Bee Line Highway, some distance north of Hammet’s store. Roy Lang and Woods boarded a bus to Hartselle. Appellant did not go to Hartselle, but walked to the home of Ely Edmondson arriving some time between 4 and 5 o’clock in the afternoon. Ely Edmondson was sawing stove wood between his home and the country road. Appellant sat down on the wood pile and he and Edmondson talked for an hour or an hour and a half. While appellant and Edmondson were thus engaged, about 5 o’clock, Mrs. Haynie came by on the road going in the direction of Bibb’s store. She 'had a scarf or piece of cloth wrapped around her hair and was carrying an open umbrella. The parties spoke to one another ■but Mrs. Haynie did not stop. Some where ■around 6 o’clock Edmondson went to his barn to put up the stock and did not see appellant any more until that night about 10 o’clock. Mrs. Edmondson and her daughter, Mrs. Roy Lang, saw appellant, about 6 o’clock or a little before, go east on the country road.. Going east from Edmondson’s home, the country road curves to the left around a hill or rise. Some ten or fifteen minutes after appellant left, Mrs. Haynie came back from Bibb’s store with a paper bag containing groceries. She stopped in front of the Edmondson home and talked with Mrs. Edmondson for a few minutes and then left going east towards her own home. It had rained the night before and the road was muddy. When Mrs. Haynie left the Edmondson 'home she did not follow the country road but took a little used roadway north of the country road and running across the hill or rise which the country road went around. The two roads again joined some half mile east from the Edmondson home. That was the last time Mrs. Haynie was seen alive. Roy Lang and Woods returned to Mr. Evans’ place about 5 :30 in the afternoon, secured their wagon and proceeded to Roy Lang’s home, a distance of some four miles, arriving there about
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o’clock. At a point about a mile from Edmondson’s home, Roy Lang noticed a paper bag containing groceries by the roadside which he picked up and carried home. While Roy Lang and Woods were unhitching the team, appellant appeared coming from a northerly direction along a roadway running more or less north and south. Appellant called to Roy Lang and Woods and went on into the house, entering the kitchen. Mrs. Beulah Lang, Roy’s wife, testified that when appellant came in the kitchen he was drunk and cursing and sweating; that she put some coal oil on some scratches on one of his legs above the knee; that she did not notice whether his pants were torn; that Roy Lang came in shortly and he and appellant ate supper and the family retired, all of them sleeping in one room in two beds. Roy and his wife in one bed and the three children and appellant in the other.
Riley Haynie, husband of the deceased, also went to Hartselle the day Mrs. Haynie was killed and returned home about 7:30 or 8 o’clock that night. Not finding Mrs. Haynie at home, he went to a neighbor’s home and made inquiry concerning her, and getting no information 'he proceeded tO' Roy Lang’s house arriving about 10 o’clock. He was advised of Mrs. Haynie’s movement in the afternoon. Roy Lang and appellant dressed and went with Haynie to the home of Ely Edmondson and aroused him, whereupon Haynie, Edmondson, Roy
Lang and appellant went in search of Mrs. Haynie, proceeding first to the place on the -side of the road where Roy Lang had picked up the hag of groceries. From that point (using the language of some of them) “they fanned out” and proceeded to search the woods for Mrs. Haynie, using a flash light and lantern. Edmondson discovered the dead body of Mrs. Haynie about 11 o’clock that night, some one hundred and fifty or more yards from the point where the groceries were found, some sixty yards north of the country road. From the point where the body of Mrs. Haynie was found to Ely Edmondson’s home, measured by the speedometer of an automobile, is eight-tenths of a mile. The scarf or cloth, which Mrs. Haynie wore on her head when last seen, was tied tightly around her neck, and the evidence is that she was choked or strangled to death. The evidence tended to prove that she had been raped. The genital organs were scratched and bruised to some extent, but no semen was found in the vagina or on the body.
About 3 o’clock the next day, April 7th, officers of the law traced a man’s foot prints from a point in the country road, which point is in front of the Edmondson home, eastwardly along the country road to where it intersects with the roadway leading across the hill or rise east of the Edmondson home, the route taken by Mrs. Haynie when she left Edmondson’s home on the afternoon she was killed. The man’s tracks and the woman’s tracks came together at this intersection, and they were traced some distance further east. Officers also testified that they found similar tracks of a man in the vicinity and west of where Mrs. Flaynie’s body was found. The evidence is conflicting as to whether these tracks could have been made by appellant when he was searching for the body of Mrs. Haynie on the night of April 6th. There i-s some evidence to show that the tracks made in the roadway and in the vicinity of where Mrs. Haynie’s body was found, were made by defendant.
Other witnesses testified whose evidence was merely negative in character and is to the effect that the witnesses saw no one else in the neighborhood at or near the time and place where Mrs. Haynie was killed.
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LIVINGSTON, Justice.
The appellant, James Lester Lang, was indicted by the grand jury of Morgan County, Alabama, for murder in the first degree. The jury returned a verdict convicting him of murder in the second degree and fixed his punishment at ninety-nine years in the State penitentiary. The victim was Mrs. Christine Haynie, about thirty-seven years of age, who left surviving her a husband and six children. It was not shown that appellant and Mrs. Haynie were acquainted, and the verdict is rested on evidence entirely circumstantial.
The Bee Line Highway runs north and south in Morgan County and is some two miles east of where the crime was committed. Distances hereinafter mentioned are approximate. A dirt or country road, hereinafter called the country road, three miles long connects the Bee Line Highway with t'he ' Battle Ground Highway. This
country road, by no means straight, runs in a general east and west direction. Where the country road intersects the Bee Line Highway is located what is known as Hammet’s store and where it intersects the Battle Ground Highway is located what is known as Bibb’s store.
The Haynies lived one mile northeast of the country road, at a point which made their home two miles from Hammet’s store and two and one-half miles from Bibb’s store. Other State witnesses lived on or near the country road. The appellant was living with his brother, Roy William Lang (referred to in the record 'sometimes as Roy, sometimes as William), and his wife and three children. Roy Lang’s home is on the north side of the country road and one-half mile east of Bibb’s store. Ely Edmondson, Roy Lang’s father-in-law, lives on the north side of the country road one hundred yards east of Roy Lang.
On the morning of April 6, 1948, starting about 8 o’clock, the appellant, Roy Lang and one Woods drove Roy Lang’s wagon to Mr. Evans’ place on the Bee Line Highway, some distance north of Hammet’s store. Roy Lang and Woods boarded a bus to Hartselle. Appellant did not go to Hartselle, but walked to the home of Ely Edmondson arriving some time between 4 and 5 o’clock in the afternoon. Ely Edmondson was sawing stove wood between his home and the country road. Appellant sat down on the wood pile and he and Edmondson talked for an hour or an hour and a half. While appellant and Edmondson were thus engaged, about 5 o’clock, Mrs. Haynie came by on the road going in the direction of Bibb’s store. She 'had a scarf or piece of cloth wrapped around her hair and was carrying an open umbrella. The parties spoke to one another ■but Mrs. Haynie did not stop. Some where ■around 6 o’clock Edmondson went to his barn to put up the stock and did not see appellant any more until that night about 10 o’clock. Mrs. Edmondson and her daughter, Mrs. Roy Lang, saw appellant, about 6 o’clock or a little before, go east on the country road.. Going east from Edmondson’s home, the country road curves to the left around a hill or rise. Some ten or fifteen minutes after appellant left, Mrs. Haynie came back from Bibb’s store with a paper bag containing groceries. She stopped in front of the Edmondson home and talked with Mrs. Edmondson for a few minutes and then left going east towards her own home. It had rained the night before and the road was muddy. When Mrs. Haynie left the Edmondson 'home she did not follow the country road but took a little used roadway north of the country road and running across the hill or rise which the country road went around. The two roads again joined some half mile east from the Edmondson home. That was the last time Mrs. Haynie was seen alive. Roy Lang and Woods returned to Mr. Evans’ place about 5 :30 in the afternoon, secured their wagon and proceeded to Roy Lang’s home, a distance of some four miles, arriving there about
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o’clock. At a point about a mile from Edmondson’s home, Roy Lang noticed a paper bag containing groceries by the roadside which he picked up and carried home. While Roy Lang and Woods were unhitching the team, appellant appeared coming from a northerly direction along a roadway running more or less north and south. Appellant called to Roy Lang and Woods and went on into the house, entering the kitchen. Mrs. Beulah Lang, Roy’s wife, testified that when appellant came in the kitchen he was drunk and cursing and sweating; that she put some coal oil on some scratches on one of his legs above the knee; that she did not notice whether his pants were torn; that Roy Lang came in shortly and he and appellant ate supper and the family retired, all of them sleeping in one room in two beds. Roy and his wife in one bed and the three children and appellant in the other.
Riley Haynie, husband of the deceased, also went to Hartselle the day Mrs. Haynie was killed and returned home about 7:30 or 8 o’clock that night. Not finding Mrs. Haynie at home, he went to a neighbor’s home and made inquiry concerning her, and getting no information 'he proceeded tO' Roy Lang’s house arriving about 10 o’clock. He was advised of Mrs. Haynie’s movement in the afternoon. Roy Lang and appellant dressed and went with Haynie to the home of Ely Edmondson and aroused him, whereupon Haynie, Edmondson, Roy
Lang and appellant went in search of Mrs. Haynie, proceeding first to the place on the -side of the road where Roy Lang had picked up the hag of groceries. From that point (using the language of some of them) “they fanned out” and proceeded to search the woods for Mrs. Haynie, using a flash light and lantern. Edmondson discovered the dead body of Mrs. Haynie about 11 o’clock that night, some one hundred and fifty or more yards from the point where the groceries were found, some sixty yards north of the country road. From the point where the body of Mrs. Haynie was found to Ely Edmondson’s home, measured by the speedometer of an automobile, is eight-tenths of a mile. The scarf or cloth, which Mrs. Haynie wore on her head when last seen, was tied tightly around her neck, and the evidence is that she was choked or strangled to death. The evidence tended to prove that she had been raped. The genital organs were scratched and bruised to some extent, but no semen was found in the vagina or on the body.
About 3 o’clock the next day, April 7th, officers of the law traced a man’s foot prints from a point in the country road, which point is in front of the Edmondson home, eastwardly along the country road to where it intersects with the roadway leading across the hill or rise east of the Edmondson home, the route taken by Mrs. Haynie when she left Edmondson’s home on the afternoon she was killed. The man’s tracks and the woman’s tracks came together at this intersection, and they were traced some distance further east. Officers also testified that they found similar tracks of a man in the vicinity and west of where Mrs. Flaynie’s body was found. The evidence is conflicting as to whether these tracks could have been made by appellant when he was searching for the body of Mrs. Haynie on the night of April 6th. There i-s some evidence to show that the tracks made in the roadway and in the vicinity of where Mrs. Haynie’s body was found, were made by defendant.
Other witnesses testified whose evidence was merely negative in character and is to the effect that the witnesses saw no one else in the neighborhood at or near the time and place where Mrs. Haynie was killed. The terrain along the country road is hilly, sparsely settled, some land cleared and in cultivation, some cleared but not in-cultivation and grown up in briers, weeds- and sedge, others in woodland and small trees.
We have made no attempt to set forth all the evidence contained in a record of over two hundred pages, but have set out its most damaging features insofar as appellant is concerned.
Opportunity to commit crime, or even knowledge of its commission, without more, is not sufficient evidence upon which to base a verdict of guilt. Thomas v. State, 19 Ala.App. 499, 98 So. 322.
“ ‘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. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown -to be guilty, by that full measure of proof which the law requires.’ Ex parte Aeree, 63 Ala. 234.
“This statement of the law, often repeated in substance, is expressive of the deep solicitude of the law that the guilty, and the guilty alone, shall be punished for crime.
“These considerations are particularly applicable to this case. Here was an atrocious crime. The vital issue is the identity of the perpetrator.
“T-he evidence is circumstantial. The court has read it in consultation. Indulging the strong presumption to be accorded the verdict, we are clearly convinced the motion for a new trial should have been granted upon the ground that the proof is not of that conclusive character demanded by the law.” — Cooper v. State, 235 Ala. 523, 180 So. 102. See, also Wilson v. State, 243 Ala. 1, 8 So.2d 422; DeSilvey v. State, 245 Ala. 163, 16 So. 2d 183.
A further discussion of the facts in this case would be of no benefit.
Reversed and remanded.
FOSTER, LAWSON and STAKELY, JJ., concur.
BROWN and SIMPSON, JJ., dissent.