Opinion
No. 32381.
November 9, 1936.
CRIMINAL LAW.
Instruction standing alone on subject of sufficiency of evidence to sustain conviction, which authorized verdict of guilty if jury "believe the defendants to be guilty beyond all reasonable and to the exclusion of all other reasonable hypothesis of the defendants innocence," which omitted word "doubt" after first word "reasonable" and failed to require jury to "believe from the evidence," held reversible error.
APPEAL from circuit court of Jones county. HON.W.J. PACK, Judge.
Jeff Collins, of Laurel, for appellants.
We earnestly submit that there is no testimony connecting these defendants with the theft of this yearling, if it was stolen, and certainly the testimony does not prove their guilt to the exclusion of every other reasonable hypothesis than that of guilt. This is the burden of of the state.
Simmons v. State, 64 So. 721; Algheri's case, 25 Miss. 584; Caleb v. State, 39 Miss. 721; Pitts v. State, 43 Miss. 472; James v. State, 45 Miss. 572; Webb v. State, 73 Miss. 461, 19 So. 238; Hoywood v. State, 90 Miss. 461, 43 So. 614; Williams v. State, 95 Miss. 671, 49 So. 513; Permenter v. State, 99 Miss. 453, 54 So. 949; Miller v. State, 99 Miss. 226, 54 So. 838; Irving v. State, 100 Miss. 208, 56 So. 377; Smith v. State, 101 Miss. 283, 57 So. 913; Dorsey v. State, 106 Miss. 827; Taylor v. State, 66 So. 321; John v. State, 24 Miss. 569; Hogan v. State, 90 So. 99; Sorrells v. State, 94 So. 209; Jackson v. State, 79 So. 809.
We submit that the first instruction given the state is fatally erroneous. The instruction is as follows: "The court charges the jury that you do not have to know the defendants are guilty before you are warranted in returning a verdict of guilty, it is enough to justify you in returning a verdict of guilty in this case if you believe the defendants to be guilty beyond all reasonable and to the exclusion of all other reasonable hypothesis of the defendants innocence."
The instruction does not include necessary statement "from the evidence."
Gordon v. State, 49 So. 609; Edwards v. State, 87 So. 179; Jones v. State, 96 So. 867; Butler v. State, 35 So. 569, 83 Miss. 437; Godwin v. State, 19 So. 712, 73 Miss. 873.
We call the court's attention to the fact that this instruction tells the jury that "it is enough to justify the conviction if they believe the defendant guilty beyond a reasonable doubt." The use of the phrase "it is enough" excludes from consideration every other instruction given in the case, and bases the state's whole case upon this one instruction, which under authorities above cited is fatally erroneous.
The instruction is fatally erroneous because of this statement: "Beyond all reasonable, and to the exclusion of all other reasonable hypothesis of the defendant's innocence." The instruction does not say "beyond all reasonable doubt." The word "doubt" is left out.
The instruction reads: "to the exclusion of all other reasonable hypothesis of the defendant's innocence." This last clause reverses the burden of proof and requires the testimony to show defendant's "innocence" to the exclusion of every other reasonable hypothesis. The state tells the jury that "it is enough to justify you in returning the verdict of guilty in this case if you believe the defendants to be guilty beyond all reasonable, and to the exclusion of all other reasonable hypothesis of the defendant's innocence."
We deem it sufficient to require a reversal of this case to point out this error because this error cannot be said to be cured by any other instruction in the record because the jury is told "it is enough."
Webb M. Mize, Assistant Attorney-General, for the state.
Of course, the evidence was circumstantial, but, to my way of thinking, it was so strong a chain of circumstances that no other inference could be drawn therefrom except the guilt of defendants.
An assignment of error is that the court erred in giving the instruction for the state on the first half of page 18 of the record. Appellants say that the instruction does not include the phrase "from the evidence" and that it is erroneous for that reason. The instruction for the state, on page 19 of the record, does include the phrase "from the evidence." Under the case of Neilson v. State, 149 Miss. 223, 115 So. 429, the omission of this phrase is not reversible error in the case at bar.
Appellant also objects to the instruction because it uses the phrase "it is not enough," instead of the usual phrase, "it is only necessary." I cannot see any difference in the meaning of "it is not enough" and other phrases that are frequently used in instructions which tell the jury that they do not have to know that the defendants are guilty. Appellants cite no authority on this proposition and in the absence of same the error, if any, is waived.
Johnson v. State, 154 Miss. 512, 122 So. 529.
At any rate, if there is any error in this instruction, the principles set out therein are not in conflict with or irreconcilable with the other instructions and, therefore, all of the instructions read together correctly state the applicable principles of law and there is no reversible error.
Neilson v. State, 149 Miss. 223.
Argued orally by Jeff Collins, for appellant, and by Webb M. Mize, for the state.
The appellants were tried and convicted of petty larceny, the theft of a yearling belonging to W.J. Pack; were sentenced to pay a fine of forty-five dollars each and to serve sixty days in jail, the jail sentence to be suspended upon good behavior; and from that sentence this appeal is prosecuted.
The evidence on behalf of the state was circumstantial, and it is earnestly insisted that such evidence is not sufficient to authorize a conviction. We have carefully considered the evidence and think it is sufficient, if the facts shown in the testimony are true, to sustain a conviction. We will not set out these facts, because the case must be reversed for another reason.
The court, for the state, gave the following instruction: "The court charges the jury that you do not have to know that the defendants are guilty before you are warranted in returning a verdict of guilty, it is enough to justify you in returning a verdict of guilty in this case if you believe the defendants to be guilty beyond all reasonable and to the exclusion of all other reasonable hypothesis of the defendants innocence."
It will be noted that the instruction does not require the jury to believe from the evidence, and that it omits the word "doubt" after the word "reasonable," and it will also be noted that it says "to the exclusion of all other reasonable hypothesis of the defendants innocence."
It has been held in a number of cases that it was error for the court to give an instruction that did not require the jury to "believe from the evidence," and that it was error to leave out these words. See Butler v. State, 83 Miss. 437, 35 So. 569, and Godwin v. State, 73 Miss. 873, 19 So. 712.
The instruction undertook to state what is enough to sustain a conviction, and, standing alone in purporting to tell the jury what is sufficient, it is not cured by any other instruction. Thus standing alone, it is important that the instruction should be technically correct, and it is necessary that it enumerates all essentials, and that the jury must so believe from the evidence in the case.
For the error in giving this instruction, the judgment of the court below must be reversed and the cause remanded for a new trial.
Reversed and remanded.