Opinion
No. 30219.
March 6, 1933.
1. CRIMINAL LAW.
Court should require jury to form belief of defendant's guilt "from the evidence."
2. CRIMINAL LAW.
Court's omission to require that evidence must exclude every reasonable hypothesis consistent with innocence, in instruction on reasonable doubt, held reversible error, where evidence was wholly circumstantial.
APPEAL from Circuit Court of Claiborne County.
Harry K. Murray, of Vicksburg, for appellant.
The following instruction granted to the state is erroneous:
"The court further instructs the jury for the state that you do not have to know that the defendant in this case is guilty to convict him; all that is required of the state to convict is to satisfy the jury beyond a reasonable doubt that the defendant is guilty, and when the state has done this it is the duty of the jury to convict him.
The instruction is faulty because it fails to state that the jury must "believe from the evidence" beyond a reasonable doubt that the defendant is guilty before they could legally convict him; and the said instruction is argumentative and tells the jury that it is . . . the duty of the jury to convict him.
Tatum v. State, 107 So. 419; Neilson v. State, 115 So. 429.
We have yet to find a case wherein the defendant had no counsel; the defendant offered testimony as to his presence at the time of the commission of the offense; where there was a doubtful question as to whether he was guilty of the offense; where the case was a question of circumstantial proof; and, in view of all of these circumstances, an instruction was granted the state that the jury did not have to know that defendant was guilty and all that was required was to satisfy them beyond a reasonable doubt that he was guilty and that it was the duty of the jury to convict him. In no uncertain terms the jury was told that it was not necessary for them to have evidence beyond a reasonable doubt before them to convict defendant, but it was their duty to convict him.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The first of the instructions requires the jury to believe "from the evidence; so does the second one. The third instruction, the one alleged to be erroneous, does not so limit the jury but this instruction must be taken and considered along with the other two instructions. Under the familiar rule of law in this state, that all the instructions in a criminal case must be read together and if, when read together, they, as a whole, correctly state the law, there is no error in the giving of any particular instruction, I submit that there was no reversible error committed by the trial court in the giving of this instruction.
This is an appeal from a conviction of burglary. The evidence as to the commission of the burglary and of the identity of the burglar was wholly circumstantial. The appellant was without counsel, and the case was submitted to the jury on instructions for the state only, one of which is as follows: "The court further instructs the jury for the state that you do not have to know that the defendant in this case is guilty to convict him; all that is required of the state to convict is to satisfy the jury beyond a reasonable doubt that the defendant is guilty, and when the state has done this it is the duty of the jury to convict him."
There are two errors in this instruction: First, the jury was not required to form their belief of the defendant's guilt "from the evidence;" second, it omits, as do the state's other instructions, the necessary qualification that in order for appellant's guilt to appear beyond a reasonable doubt the evidence must exclude every other reasonable hypothesis consistent with his innocence. The first error may not require a reversal when the instruction is read in connection with other instructions granted the state, but the second, the evidence being wholly cir-circumstantial, does so require.
Reversed and remanded.