Summary
In Sauer v. State, 166 Miss. 507, 144 So. 225 (1932), a circumstantial evidence case, the jury was instructed that they did not have to actually know that Mrs. Sauer was guilty before they could convict her, but that it would only be necessary that they believe from all the evidence beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis than that of guilt, that she was guilty.
Summary of this case from Whittington v. StateOpinion
No. 29983.
November 7, 1932. Suggestion of Error Overruled January 2, 1933.
1. INDICTMENT AND INFORMATION. Permitting amendment of indictment charging assault with intent to murder, to charge assault and battery with intent to murder, held not reversible error ( Code 1930, section 787).
Permitting amendment was not reversible error, since Code 1930, section 787, under which the indictment was laid, provides the same punishment for any one convicted of any "assault or assault and battery" upon another with intent to kill and murder, and there can be no assault and battery without assault, and an indictment charging a general assault with intent would be sufficient to sustain a conviction.
2. INDICTMENT AND INFORMATION.
Where statute, in same section, makes different things equally punishable, indictment may charge any or all in same count, by using word "and" between each charge.
3. CRIMINAL LAW.
Where indictment charges different things, equally punishable, under same section of statute, conviction of one is res judicata of any offense charged in indictment.
4. HOMICIDE.
In prosecution for assault and battery with intent to murder, largely controlled by circumstantial evidence, any circumstances logically tending to show motive held competent (Code 1930, section 787).
5. CRIMINAL LAW.
Credibility and weight of evidence is for jury.
6. HOMICIDE.
Evidence sustained conviction for assault and battery with intent to murder (Code 1930, section 787).
7. CRIMINAL LAW. Instruction predicating conviction upon belief from evidence beyond all reasonable doubt, and to exclusion of every other reasonable hypothesis, that accused was guilty, held not erroneous.
Instruction was not erroneous, although it told the jury that it was not required to "know" that accused was guilty, to convict her, since the jury is never required to know facts absolutely, but its belief must arise from the evidence, or the want of evidence.
8. CRIMINAL LAW.
Circumstantial evidence, to sustain conviction, need not exclude every possible doubt, but only every reasonable doubt, or reasonable hypothesis.
APPEAL from Circuit Court of Lincoln County.
A.A. Cohn, of Brookhaven, and Means Johnston, of Greenwood, for appellant.
The crime denounced in the case at bar is a statutory offense, and is based on section 787 of the Mississippi Code of 1930, Annotated.
This section of the code denounces about seven separate and distinct offenses, one of which is "Assault with Intent to Kill and Murder," and another is for "Assault and Battery with Intent to Kill and Murder." It will be noted that the intent to kill and murder is what raised this crime from a common law offense to a statutory offense.
The crime of "Assault and Battery with Intent to Kill and Murder" is a complete and separate offense from "Assault with Intent to Kill and Murder," and each a separate offense just as murder, rape, arson, larceny and burglary; and it is therefore necessary in charging "Assault and Battery with Intent to Kill and Murder," to allege all of the necessary essential elements constituting said crime in the precise language of the statute or its equivalent.
All indictments upon statutes, especially the most penal, must state all circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it; they must pursue the precise and technical language employed in the statute in the definition or description of the offense.
Williams v. State, 42 Miss. 328; Lewis v. State, 49 Miss. 354; Jones v. State, 51 Miss. 724, 24 Am. Rep. 658; Stark v. State, 81 Miss. 398, 33 So. 175; Anthony case, 13 S. M. 263; Ikes' case, 23 Miss. 525; Riggs' case, 26 Miss. 51; State v. Traylor, 100 Miss. 544, 56 So. 521; State v. Hinton, 139 Miss. 513, 104 So. 354.
Under section 26 of the Constitution of 1890, an accused is entitled to be informed of the nature and cause of the accusation against him.
State v. Sam, 154 Miss. 14, 122 So. 101; Graves v. State, 134 Miss. 547, 88 So. 364; State v. Burton, 145 Miss. 821, 111 So. 300; Stapleton v. State, 130 Miss. 737, 95 So. 86; Pruit v. State, 116 Miss. 33, 76 So. 761; Jimerson v. State, 93 Miss. 685, 46 So. 948; Brady v. State, 128 Miss. 575, 91 So. 277.
It therefore follows that an indictment for "Assault and Battery with Intent to Kill and Murder," which fails to allege an assault is fatal; and an indictment for "Assault and Battery with Intent to Kill and Murder," which fails to allege a battery in the proper language is fatal.
Our court has uniformly held that an indictment cannot be aided by intendment, nor omissions supplied by construction.
Cook v. State, 72 Miss. 517.
Omission of the essential elements of a statutory offense makes the indictment dead.
Cook v. State, 72 Miss. 517; McCearley v. State, 97 Miss. 556, 52 So. 796; State v. Sam, 154 Miss. 14, 122 So. 101; Hall v. State (Miss.), 44 So. 810; State v. Cannon, 118 Miss. 230, 79 So. 85; Kemp v. State, 121 Miss. 580, 83 So. 744; Riggs v. State, 26 Miss. 51; Jesse v. State, 6 Cush. 100; Sarah v. State, 28 Miss. 267; Wile v. State, 60 Miss. 260; Kline v. State, 44 Miss. 317; Williams v. State, 42 Miss. 328; Jefferson v. State, 46 Miss. 270; Lewis v. State, 49 Miss. 354; Taylor v. State, 74 Miss. 544, 21 So. 129; Herron v. State, 118 Miss. 420, 79 So. 289.
Every battery implies an assault of course, because there can be no battery without an assault; but there may be an assault without any battery.
Montgomery v. State, 85 Miss. 330, 37 So. 835; Bailey v. State, 93 Miss. 79, 46 So. 137; Ainsworth v. State, 5 How. 242.
Since the omitted allegation in the indictment against appellant, to-wit: the word "Did," goes to the very essence of the offense attempted to be charged, the omission thereof was not waived, even though appellant had failed to demur in due course; she was entitled to an arrest of judgment.
Herron v. State, 118 Miss. 420, 79 So. 289; Cook v. State, 72 Miss. 517, 17 So. 228; Taylor v. State, 74 Miss. 544, 21 So. 129; Jefferson v. State, 46 Miss. 270; Willis v. State, 113 Miss. 838, 74 So. 677.
The court below erred in overruling her motion to exclude all of the evidence of what transpired after the commission of the crime.
The general rule is that in prosecution for crime, evidence must be confined to issue, and evidence which shows or tends to show commission by accused of a separate and distinct crime is inadmissible.
Raines v. State, 81 Miss. 489, 33 So. 19; Baygent v. State, 144 Miss. 442, 110 So. 114; McLin v. State, 150 Miss. 507, 116 So. 533; King v. State, 66 Miss. 507, 6 So. 189; Dabney v. State, 82 Miss. 252, 33 So. 973.
The giving of instruction No. 1 for the state was fatal error, because it is in conflict with the rules of the law with reference to the force and effect of circumstantial evidence, and tends to minimize and discount instruction No. 2 on circumstantial evidence given appellant, and was in a marked degree inapplicable and misleading.
Instruction No. 1, given the state, is as follows: "The court instructs the jury for the state, that you do not have to know that the defendant, Mrs. Sauer, is guilty before you can convict her, but that in order for you to be warranted in returning a verdict of guilty as charged in the indictment, it is only necessary that you believe from all the evidence and facts and circumstances in evidence, beyond all reasonable doubt and to the exclusion of every other reasonable hypothesis, that the defendant is guilty."
In the case at bar, the jury is left without any sure or certain guide to conduct them to a proper conclusion.
Harper v. State, 83 Miss. 402, 35 So. 572; Josephin v. State, 39 Miss. 647; Hawthorn v. State, 58 Miss. 778; Collins v. State, 71 Miss. 691, 15 So. 42; Perminter v. State, 99 Miss. 453, 54 So. 949; Haywood v. State, 90 Miss. 461, 43 So. 614.
While circumstantial evidence is in its nature capable of producing the highest degree of moral certainty, yet experience and authority both admonish us that it is a species of evidence in the application of which the utmost caution and vigilance should be used.
Algheri v. State, 25 Miss. 589; Simmons v. State, 106 Miss. 732, 64 So. 721; Josephine v. State, 39 Miss. 648; Cryer v. State, 71 Miss. 467, 14 So. 261; Rich v. State, 124 Miss. 272, 86 So. 770.
In order to convict appellant of aiding, assisting and abetting, there must be substantial proof, not only that she was present, but that she committed some overt act.
Harper v. State, 83 Miss. 402, 35 So. 572.
The evidence is insufficient to support a verdict of guilty.
Pitts v. State, 43 Miss. 485.
The evidence in this case does not meet that test, and it is always insufficient where assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which vests mere circumstantial evidence with the force of truth. When the evidence leaves it indifferent, which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another. Such evidence cannot amount to proof however great the probability may be.
Algheri v. State, 25 Miss. 584; Hogan v. State, 127 Miss. 407, 90 So. 99; Sorrels v. State, 130 Miss. 300, 94 So. 209; Webb v. State, 73 Miss. 461, 19 So. 238; Williams v. State, 95 Miss. 671, 49 So. 513; Miller v. State, 99 Miss. 226; Irving v. State, 100 Miss. 208, 56 So. 377; Smith v. State, 101 Miss. 283, 57 So. 913; Haywood v. State, 90 Miss. 461, 43 So. 614; Permenter v. State, 99 Miss. 453, 54 So. 949; Tennison v. State, 79 Miss. 708, 31 So. 421.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Mere formal and technical words are not indispensable if the offense is certainly and substantially described in language meaning the same as that set out in the statute.
State v. May, 147 Miss. 79, 112 So. 886; State v. Traylor, 100 Miss. 544, 56 So. 521; Richberger v. State, 90 Miss. 806, 44 So. 772; State v. Presley, 91 Miss. 377, 44 So. 827; Harrington v. State, 54 Miss. 490; Roberts v. State, 55 Miss. 421; Kline v. State, 44 Miss. 317, 2 Mor. St. Cas. 1695; Wexler case, 142 So. 501.
It seems to me that the construction sought to have placed upon this indictment by appellant is too strained and entirely too technical to be upheld by this court.
Technical law is good law under proper circumstances, but not where it shocks common sense. The exact language of a statute need not be used, where what is tantamount is fully set out.
State v. Presley, 91 Miss. 377, 44 So. 827; Mann v. State, 80 Miss. 398.
Continuous acts or a series of events, especially when closely connected in point of time, which lead up to and are necessary or clearly helpful to a correct understanding of the main transaction — which tend to explain and elucidate the conduct and purposes of the parties — are as much of the res gestae as the divert act itself, and are admissible as a part of the transaction.
16 C.J., pages 572, 573; 30 C.J., pages 194, 195; 6 Encyc. Evidence, pages 610-612; Muse v. State, 130 So. 693; Lee v. State, 134 So. 185; Ross v. State, 158 Miss. 827, 131 So. 367; Prine v. State, 158 Miss. 436, 130 So. 687; Goodman v. State, 158 Miss. 269, 130 So. 825; Sanders v. State, 158 Miss. 234, 130 So. 112; McCormick v. State, 132 So. 757.
Under the established rules of criminal law it may be said evidence of other crimes is never admissible, except for the following purposes: To prove identity, intent, knowledge, malice, motive, or a plan or system of criminal action.
Simmons v. State, 140 So. 288; Whittington v. State, 135 So. 190; Keel v. State, 133 Miss. 160, 165, 97 So. 521, 522; 16 C.J. 603, note 82.
It is true, as contended by appellant, that the jury should not be left without a sure and certain guide to conduct them to a proper conclusion. But because that statement is true, it does not necessarily follow that the jury in this case was left with an unsure and uncertain guide. It is also true, that before this court will reverse a conviction, it must be made to appear that the instructions are so conflicting as to be irreconcilable.
Williams v. State, 135 So. 210, 211.
Every event and circumstance in this record points unerringly to the guilt of this appellant. And, while there is no direct proof as to the party who actually did the dirty work, all of the circumstances point an accusing finger at this appellant as being the one who actually committed the assault, or that she was present aiding, and abetting in such assault and encouraging it.
Argued orally by Means Johnston and A.A. Cohn, for appellant, and by W.D. Conn, Jr., for the state.
The appellant, Mrs. Myrtle Love Sauer, was indicted jointly with one Ralph Greenlee, and convicted on a charge of assault and battery with intent to kill and murder her husband, A.D. Sauer, in the circuit court of Lincoln county, and has appealed to this court.
The indictment, omitting the formal part, charges that "Myrtle Love Sauer and Ralph Greenlee, late of the County aforesaid, on the 4th day of January, A.D. 1932, in the county aforesaid, did then and there unlawfully, wilfully, feloniously and of their malice aforethought assault one A.D. Sauer, a human being, with a deadly weapon, to-wit; a large piece of iron, and then and there unlawfully, wilfully, feloniously, and of their malice aforethought, strike and wound said A.D. Sauer, with said large piece of iron, a deadly weapon, as aforesaid, with the felonious intent and of their malice aforethought to kill and murder the said A.D. Sauer."
This indictment was demurred to on the following grounds:
"First. The indictment fails to charge the commission of any crime under the laws of the state of Mississippi.
"Second. The indictment fails to charge that the defendant struck the said A.D. Sauer with a large piece of iron.
"Third. The indictment fails to charge that the defendant struck the said A.D. Sauer with a felonious intent and of her malice aforethought to kill and murder the said A.D. Sauer.
"Fourth. The indictment fails to charge that at the time the said A.D. Sauer was struck with a large piece of iron, there was a felonious intent to kill and murder him with malice aforethought.
"Fifth. The indictment fails to charge the place where the defendant struck the said A.D. Sauer with the felonious intent to kill and murder the said A.D. Sauer with malice aforethought."
The demurrer was overruled, and the state moved to amend the indictment by inserting the word "did" between the words "aforethought" and "strike," making the indictment after the amendment, to read "then and there, unlawfully, wilfully, feloniously and of their malice aforethought, did strike and wound said A.D. Sauer, with said large piece of iron, a deadly weapon, as aforesaid, with the felonious intent and of their malice aforethought, to kill and murder the said A.D. Sauer."
The appellant moved for a severance, which was granted, and she was placed on trial and there was a mistrial, whereupon, at the same term of court, she was again placed on trial and convicted and sentenced to three years' imprisonment in the state penitentiary, from which she has appealed to this court, as stated hereinbefore.
The evidence is largely circumstantial, and without going into details, it is sufficient to say that Mr. Sauer, the person assaulted was a civil engineer for a railroad, and, in addition to this employment, operated a photograph business at his residence, having a development room in the back yard adjacent to his residence, and using some rooms in the house as guest rooms, where pictures were taken, and then were developed in the laboratory or developing room in the back yard. On the evening of December 29, 1931, A.D. Sauer, the assaulted, after eating supper had gone to his laboratory or developing room to work on some photographs. He turned out the light in this laboratory and started to the house, having in his hand a part of the material he was working upon. He was struck on the back of his head, and "hollered" for help, and was struck again. He testified that he remembers nothing else until several days thereafter, and does not now know who struck him.
Adjoining his residence is an apartment house occupied by Mr. and Mrs. Penn, a Mrs. Myers, and others. About the time Mr. Sauer says he was struck, Mrs. Myers, who occupied the lower apartment, heard a call for help repeated several times; the voice growing fainter each time. She looked out, but saw no one, and she then went upstairs to where Mr. and Mrs. Penn were and reported the facts to them. Mr. Penn then took a flash-light and searched around his own premises, but saw nothing thereon. Mrs. Myers and Mrs. Penn went on a back porch on the Penn apartment, at which time they saw Mrs. Sauer come out of her house, go nearly to the garage, and then return to the house, cutting off the light on the back porch which she had turned on when starting to the garage. She remained in the house two or three minutes, then came out, went to the garage, and presently Mrs. Sauer's car was backed out without the lights being turned on, into Highway No. 51, upon which the Sauer residence is situated. As the car was backed out of the Sauer premises into the highway, a lady living almost opposite the Penn residence had started to visit a neighbor, and saw the Sauer car backed into the highway with Mrs. Sauer driving it.
Another lady who was living in the Sauer home, and who was leaving her work to go to said house, saw said car proceeding along Highway 51, driven by Mrs. Sauer.
The car was a peculiar color, lavender, with some advertising matter upon it.
Near where this lady saw Mrs. Sauer driving the car, and not far from the place where it was afterwards found, is a cut near a bridge over a railroad track. A Mr. Case and his son saw this car, driven by a lady, and they saw this last lady witness who testified, at or near the place they met this car. They did not identify who was driving the car, but said it was a lady, and they did not see any other person in the car.
A man, who was working near the place where the car was afterwards found, was going from his work early in the evening, shortly after six-thirty p.m., and approached the bridge where the car was driven off the dump into the cut, testified to seeing a light burning brightly in the cut, and that he thought some one had set fire to the bridge; it having been set fire to previously. As he approached the bridge, he saw it was not a fire, but apparently a car; consequently he was proceeding to the store of Mr. Smith to get Mr. Smith to go with him to where the car was, in which Mr. Sauer was insensible. As he was proceeding towards this store, he saw a woman (who was Mrs. Sauer) in the road, and it being dark, he asked her who she was; she stated she did not know; he asked her was she hurt, and she stated that she did not know. He then asked her if she was white or colored, to which she replied, "White." This man had a negro with him, and stated that they would go on to the Smith store and get Mr. Smith to help with the car. Then, the appellant, Mrs. Sauer, asked him to carry her with him to the Smith store, and he says he at first declined, but afterwards agreed to, and did, take her to the store, where she appeared to be unconscious. She had a bruise on the front part of her face and head, and Mrs. Smith proceeded to minister to her. She also had a bruise on one knee, and appeared to Mrs. Smith to be unconscious. Mrs. Smith rubbed the bruised places with Vick's Salve, and started to feel her heart, and feeling something in her bosom, started to take the package out, when Mrs. Sauer apparently aroused and said, "That is mine."
The man who is mentioned as discovering Mrs. Sauer, went back to where the car was found in the cut with the lights on, and he testified that he found Mr. Sauer in the car, unconscious, with some wounds on his head. The rear wheels of the car were upon the railroad track, and the front wheels upon the embankment. There was blood on the seat where Mr. Sauer was, and blood on the back of the driver's seat. The witness spoke of the turtle shell having blood on it, and that it was large enough to hold two people, but had no seat in it, being used for baggage.
When Mr. Sauer was carried to the Smith store, an ambulance was sent for, and Mr. Sauer and appellant were carried to the hospital in Brookhaven, some five miles away, where Mr. Sauer remained unconscious for about a week. He had several wounds in his head, and cuts in the fleshy parts of his head, but his skull was not fractured. After he was carried to the hospital, a lady who lived in the Sauer house visited Mr. and Mrs. Sauer there after learning of their wreck, and Mrs. Sauer gave to this lady the package she had in her bosom at the time of the wreck, and which was a sum of money in an envelope being one hundred and twenty dollars.
It appeared that prior to the assault, Mr. Sauer had withdrawn one thousand dollars from the bank and had given it to his wife to keep for the purpose of paying some taxes. It had not been used or returned to him at the time he was assaulted. It was shown that some time before the assault, Mrs. Sauer and her small children, accompanied by Mr. Greenlee, visited her relatives in Paris, Tennessee. Mr. Greenlee remained there a day or two, and then went to Memphis, Tennessee; then returned to Paris, Tennessee, and stayed with Mrs. Sauer's relatives, until they started back to Brookhaven. En route, they spent the night in Memphis. Mrs. Sauer testified that she did not know whether Mr. Greenlee stayed in the hotel where she stayed or not, but that they attended the theater, and left the oldest child there, she, Mr. Greenlee, and the baby returning to the hotel, and later going for the oldest child, a girl of eleven or twelve.
Subsequent to that time, and not long before the assault on Mr. Sauer, Mrs. Sauer had been seen in the car with Greenlee; she having picked him up on a number of occasions and driven him about town.
A lady living in the Sauer home testified that on the morning before the assault Greenlee had called Mrs. Sauer over the phone, and requested her to meet him downtown, which she did.
Later in the day, about one hour before the assault, several witnesses saw Mrs. Sauer driving along, pick Greenlee up, and drive with him into some garage, where they had a conversation which was not heard by the witnesses.
Mrs. Sauer was also shown to have met Greenlee a few days before the assault, buying a Christmas present for him.
It was also testified by a lady living in the Sauer home that during the Christmas holidays Mrs. Sauer came in her room (Mrs. Sauer having been down in Brookhaven) and asked this lady to state to Mr. Sauer that she (Mrs. Sauer) had been in the witness' room all the while, which the witness declined to do.
It was also offered in evidence, over the objection of the appellant, that Mr. Sauer had about twenty-five thousand dollars insurance upon his life, and about nine thousand dollars accident insurance. The proof did not show, however, to whom this insurance was payable.
Mrs. Sauer stated the next day, in explaining the accident, that Mr. Sauer was driving the car, going too fast; that he was noted for going on the wrong side of the road, and while she was with him in the car, he driving, she saw the approach to the bridge and the danger, and that she had taken the one hundred twenty dollars from her purse and placed it in her bosom because she thought a wreck was likely, and that persons picking them up would do so the more readily, seeing they had money; that she had jumped from the car, and that the bruises on her face were caused by her exit from the car.
A witness, visiting Mrs. Sauer the next day after she had been moved from the hospital, observed that she did not seem to be disturbed about Mr. Sauer, and spoke to her about it; and Mrs. Sauer's mother stated at the time that Mrs. Sauer did not seem to care anything about Mr. Sauer.
Mrs. Sauer testified, stating that she was in her home with her mother, and children, playing with her baby, dancing, etc.; she was accustomed to go each day about five-thirty for the mail, so she stated to her mother that she would take the baby, get Mr. Sauer, and go for the mail; her mother said that the baby was not dressed, and was playing, and for her to leave the baby with her; whereupon Mrs. Sauer went out of the house to get the car and go for the mail, but when she neared the garage she found she had dropped something, and returned to the house to get her gloves or whatever it was that she had dropped, after which she returned to the garage to get the car; that as she was getting into the car she was struck a blow which rendered her unconscious, so that she did not see who her assailant was, nor did she remember anything until she was in the Smith store, and only faintly remembered what happened there, though she did remember some remarks made at that place; that she did not know anything about Mr. Sauer being struck, and did not participate in it.
The appellant complains seriously of the amendment to the indictment, as above set out. This indictment is under section 787, Code of 1930, which reads as follows: "Every person who shall be convicted of shooting at another, or of attempting to discharge any firearms or air-guns at another, wilfully; or of any assault or assault and battery upon another with any deadly weapons or other means or force likely to produce death, with intent to kill and murder or to maim, ravish, or rob such other person; or in the attempt to commit any murder, rape, manslaughter, burglary, larceny, or other felony; or in resisting the execution of any legal process, or any officer or private person lawfully attempting to arrest him or any other person — shall be imprisoned in the penitentiary not more than ten years, or shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than one year or by both."
It is admitted in the argument that an indictment of general assault with intent to kill and murder is sufficient; but it is contended that an assault with intent to kill and murder is a different offense from an assault and battery with intent to kill and murder; and that the appellant was indicted for, and convicted of, assault and battery with intent to kill and murder; and that the addition of the word "did" in the original indictment, which was inserted by amendment, rendered the indictment void and of no effect.
The statute, in the same section, denounces a number of things, with the same punishment for each. It would, in our view, be immaterial for the indictment to state that the crime was assault and battery, etc., as the indictment clearly charged an assault with intent to kill and murder. To the like effect are the cases of Jimerson v. State, 93 Miss. 685, 46 So. 948, where the court said that an indictment charging that defendant willfully, etc., assaulted a person with a deadly weapon with intent to kill and murder, was not objectionable as being duplicitous in charging an attempt to commit an assault and battery, etc., since, if they be regarded as two offenses in the abstract, they are so associated, and punishable, as to authorize their joinder in the same indictment; Roberts v. State, 55 Miss. 421; Wash. v. State, 14 Smedes M. 120; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; Brady v. State, 128 Miss. 575, 91 So. 277.
The rule is that where the statute charges a number of different things in the same section, punishable by the same penalty, it will be permissible for the indictment to charge any or all in the same count, by using the word "and" between each charge; and if the evidence sustains one of them, and conviction is had on one, it constitutes res adjudicata against an indictment for any offense subsequently found and charged in the first indictment.
If the contention of the appellant is sound as to the insufficiency of the charge, it nevertheless charges assault with intent to kill and murder, and a charge of assault is a part of a charge of assault and battery. There can be no assault and battery without assault, and as the same penalty is imposed for an assault with intent to kill and murder, as for an assault and battery with intent to kill and murder growing out of the same transaction between the same parties, an indictment charging a general assault with intent would be sufficient to sustain a conviction.
We are, therefore, of opinion that there was no reversible error in permitting the amendment to the indictment.
As to the objections to the evidence, we think, as the case was largely controlled by circumstantial evidence, that any circumstances logically tending to show a motive on the part of appellant to commit the crime were admissible in evidence. All of the facts stated above have a tendency to prove a motive on the part of the appellant, and to connect her with such motive for the commission of the crime. Circumstances which in and of themselves would have but slight weight, and would be insufficient, standing alone, to furnish a motive, when taken in connection with other circumstances having a like tendency and logical relation, might furnish a strong and convincing proof of the fact sought to be established.
We think the evidence is sufficient to warrant the jury in finding the appellant guilty. It was for the jury to pass upon the credibility and weight of the evidence, and taking all the facts proven in connection with the statements that the appellant testified to, we think a case was made out by the evidence. Appellant's first statements showed that her testimony on the witness stand was untrue, if the jury believed the first statements. It is admitted that Mrs. Sauer drove the car at the time it was wrecked. Mr. Sauer was incapable of driving the car at the time, and there is no evidence to show that he was driving it, except the first statements made by the appellant shortly after the accident, which are shown to be absolutely untrue.
The court gave the appellant very liberal instructions, fully announcing the law favorable to her, and we think the appellant received the benefit of every principle of law to which she was entitled under the evidence.
Instruction Number 1 for the state, complained of by the appellant, reads as follows: "The court instructs the jury for the state, that you do not have to know that the defendant, Mrs. Sauer, is guilty before you can convict her, but that in order for you to be warranted in returning a verdict of guilty as charged in the indictment, it is only necessary that you believe from all the evidence and facts and circumstances in evidence, beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis, that the defendant is guilty."
It is always true that the jury are not required to know facts absolutely. They must believe from the evidence, and their belief must arise from evidence, or the want of evidence, and the jury must not use anything except that which is offered in evidence. The latter part of the instruction clearly informed the jury that they are only required to believe, from the evidence, beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis, that the defendant was guilty.
Applying the rule as to the sufficiency of circumstantial evidence, it must be a reasonable hypothesis. Circumstantial evidence does not have to exclude every possible doubt, but only every reasonable doubt, or reasonable hypothesis. To exclude every reasonable hypothesis is a somewhat stronger expression than excluding every reasonable doubt.
We find no reversible error in the conviction, and the judgment of the court below must be affirmed.
Affirmed.