103 P.2d 479 | Colo. | 1940
THE defendant, a junk dealer, was charged with, convicted of, and sentenced, for the crime of receiving stolen goods knowing them to have been stolen, to wit, certain copper wire found by the jury to have been of the value of $23.75. Nineteen assignments of error are presented, but in the view we take of the last, which challenges instruction number 14, it is unnecessary to consider any of the others. This instruction was objected to as being misleading, ambiguous, and unintelligible. It is as follows:
"The jury is instructed that where the people rely upon circumstances to secure a conviction in a criminal case, it is not sufficient that the circumstances proved coincide with and render probable the theory of guilt. To warrant a conviction the circumstances proved must not be consistent with innocence within a reasonable doubt. Otherwise, the defendant must be acquitted."
[1, 2] The instruction is in part a quotation from the opinion in the case of Conferti v. People,
[3] The jury was told by instruction number 14 that it is not sufficient that the circumstances established and relied upon to secure a conviction coincide with and render probable the theory of guilt. They were further advised that to warrant a conviction the consistency of the circumstances with innocence must not be within areasonable doubt. Clearly this suggests the correct exclusion test, considered in one way, but it may be so construed that an entirely wrong impression as to what that test is, will be created. Both propositions of this instruction are stated in the negative rather than in the affirmative, which also tends to confusion; furthermore, if the consistency of the circumstances with innocence must not be within a reasonable doubt the jury well may have been led to believe that there is only one other place left for the consistency of the circumstances with innocence to be placed and that is outside of or beyond a reasonable doubt. This is not and never was the law.
The judgment is reversed and the cause remanded, further proceedings, if any, to be in harmony with the views herein expressed.
MR. JUSTICE FRANCIS E. BOUCK, MR. JUSTICE BAKKE, and MR. JUSTICE BURKE dissent. *249