Brown v. StateBrown v. State
- Reporters:
- Before:
- Woods
delivered the opinion of the court.
We can discover no error of the court in admitting the testimony of the stаte’s witness, Sledge, except in that particular where the defendant was said to have offered to sell whisky to the witness. This was incompetеnt as corroborating evidence of a sale alleged to hаve been made to a third party, and would doubtless have been excluded if objection had been made to it when offered. But this was not donе. After the witness had finished all his evidence, the record shows to its admission thе defendant excepted. If this is held to mean (which is the interpretation most favorable to the prisoner) that, after all the evidence of Sledge had been introduced, the prisoner moved to exclude it, and the court overruled the motion, and exception was takеn to the court’s ruling, then no error was committed. It is not permissible for onе to experiment with a court by consenting, by silence, to all the evidеnce of a witness, and then move to exclude all the evidencе because some part was incompetent. All the evidencе was competent, except in the one particular already adverted to, and this, no doubt, the court would have excluded if attention had been called to it by a specific objection. To hаve excluded all the evidence would have been palpable error, and this was what the court was asked to do, as we suppоse.
The plea of former acquittal was not sustained by introduction of the indictment in another case with the judgment of acquittal. It is perfectly well settled that, to make good the plea of former conviction, the party must show the record of the supposed former cоnviction, but he must show, in addition, by evidence aliunde, the identity of the offensе of which he was formerly acquitted with that charged in the indictment to which he is pleading his former conviction. In the case of Rocco v. The State, 37 Miss., 357, this question was supposed to have been definitely settled. That decision has stood for thirty-five years as unquestioned authority, and it must continue to so stand.
*98By the instructiоn given for the state, of which complaint is made in the second assignment of error, the learned court undertook the dangerous, if not impоssible, task of defining that which is generally held to be indefinable. Said the cоurt to the jury: “You are not required to know that defendant is guilty, but if you consciеntiously believe, from all the testimony, he is guilty, then you should convict him, for then yоu have no reasonable doubt, and the case is made out to а moral certainty.” We suppose that a conscientious belief is belief as a matter of conscience, and has reference to that which commands the assent of the moral sense of mankind. But еvidence is addressed to man’s reason with the primary purpose of convincing the intellectual faculty, and, in criminal jurisprudence that evidence is required, in order to warrant a jury in pronouncing guilty one accused of crime, which, in quality and degree, in character and strength аnd quantity, satisfies mind and conscience. Evidence may be offered whiсh may be conscientiously, that is, faithfully, believed, and yet fall far short of convincing the mind of the truth of the proposition which it is offered to support and demonstrate. We fear that the instruction which defined consсientious belief to be such as left no room for reasonable dоubt, and rose to the height of mora], certainty, was erroneous.
In the matter of asking instructions, the beaten way is the safe way; the known paths are the sure ones.
Reversed.