1. The fourth ground of the amended motion for new trial complained of the charge of the court, “as follows: “To warrant a conviction upon circumstantial evidence the proven facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused. If both theories, that is the theory of guilt and the theory of innocence, are consistent with the proven facts, then you should give the benefit of the doubt to the defendant and acquit him,’ thereby laying down, movant contends, as a final test of when a conviction could be had under circumstantial evidence, the test that if both theories are of equal consistency, then and only then should the jury give the benefit of the doubt to the defendant, and thereby taking away from the jury the correct law of circumstantial evidence as above charged in the first part of the charge of the court quoted; and this statement as to the two theories is not the law in a case like the one at bar, where the conviction depended entirely upon circumstantial evidence, the law of circum1 stantial evidence going one step further than the doctrine of reasonable doubt, to wit: The theory of guilt must not only be consistent, but the evidence must exclude every other reasonable hypothesis, the law being that the evidence could be perfectly consistent with guilt and the jury would not be authorized to convict unless the evidence went further and excluded every other reasonable hypothesis ; and said charge is error further, because, in order for the defendant to be acquitted under circumstantial testimony, it is not necessary that the evidence be 'consistent with the theory of innocence in order for the defendant to be acquitted, or to receive the *612benefit of the doctrine of reasonable doubt, the law being that the burden is on the State to establish the guilt of the defendant to the exclusion of every other reasonable hypothesis, and whether or not the circumstances proven are consistent with the innocence of the party makes no difference, if said circumstances are not to the exclusion of every other reasonable hypothesis, the defendant could not be convicted, no matter how consistent the evidence might be, or how inconsistent it might be with the theory of innocence; said, charge is further error for the reason that it lays down the rule that the evidence required to 'acquit, and before a defendant should have the benefit of the reasonable doubt, must establish a theory consistent with the defendant’s innocence, the true theory being that the evidence must establish a theory consistent with the defendant’s guilt and to the exclusion of every other reasonable'hypothesis, and it makes no difference whether or not the theory of innocence is established by the evidence as consistent as the theory of guilt, if the evidence fails to exclude every other reasonable hypothesis, save that of the guilt of the accused; and said charge is error because it qualifies the law of circumstantial evidence.” The first part of the charge excepted to is a literal reproduction of section 9S4 of the Penal Code. The remainder of the charge excepted to was not subject to the criticisms made upon it.
2. The fifth ground of the amended motion for new trial complained of the charge, “as follows: ‘Mathematical certainty is not required and can not be attained in a legal investigation; moral and reasonable certainty is all that the law requires. Whenever you are convinced beyond a reasonable doubt, or to a moral and reasonable certainty, that this defendant is guilty, you would be authorized to so find. In the absence of such a degree of conviction on your part, you would not be authorized to find him guilty, but should return a verdict of not guilty, which would fully acquit and discharge him.’ The error in said' charge, movant contends, being that it does not give the law of this ease, this case depending entirely on circumstantial evidence, the court saying whenever you are convinced beyond a reasonable doubt, or to a moral and reasonable certainty, that this defendant is guiltjq you would be authorized to so find, when the law of this case is not dependent upon the doctrine of reasonable doubt, but is 'dependent upon the law of circumstantial evidence, and the charge places this case on the doc*613trine of reasonable doubt, and is therefore error; the charge should have gone one step further and said that in this case, before they would be authorized to convict, that the evidence should exclude every other reasonable hypothesis save the guilt of the’accused, this charge of the court placing the conviction or acquittal upon the doctrine of reasonable doubt, which does not apply to cases where the conviction is dependent solely upon circumstantial evidence. This is especial error because the court having nowhere charged the law of circumstantial evidence.” The charge excepted to applies the principles of sections 1012-1013 of the Penal Code, which were codified from the decision rendered in the case of John v. State, 33 Ga. 258, that being a case dependent upon purely circumstantial evidence. Section 1012 of the Code declares: “Moral and reasonable certainty is all that can be expected in legal investigation;” while § 1013 declares: “Whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.” In view of the law as thus stated, it does not affect the ruling in the case that all the evidence relied upon for a conviction was circumstantial. In Giles v. State, 6 Ga. 276, it was said: “On the trial of criminal cases, moral, and not mathematical or metaphysical certainty, is all that the law requires, or that is attainable. The doubts of a jury, to justify an acquittal, should be reasonable, and not a mere vague conjecture or possibility of the innocence of the accused.” Also: “Direct and irrefragable evidence can not and need not be always produced in criminal cases; all that is necessary is, that the jury, whether the proof be positive or presumptive, be satisfied of the defendant’s guilt.” In Smith v. State, 63 Ga. 168, the following charge was approved: “Before you can convict, you must believe that the prisoner is guilty beyond a reasonable doubt; this doubt must be a reasonable one, not a fanciful doubt. A mathematical certainty is not required; a reasonable and moral conviction of guilt is all that the law requires.” This also was a case which depended upon circumstantial evidence. As stated in the first division of the opinion, the judge in the present case had already charged the section of the code relative to circumstantial evidence, and the criticisms upon the excerpt from the charge con*614tained in the fifth ground of the amended motion were not sufficient to require the grant of a new trial.
3. In the sixth to the twelfth ground of the amended motion for new trial, both inclusive, complaint was made of the charge, the substance of the criticisms being that the court erred in charging on reasonable doubt without going one step further and in immediate connection therewith charging also the law of circumstantial evidence, that “To warrant a conviction on circumstantial evidence, the proven facts must not only he consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” There was no other criticism of the charge in these grounds of the motion for new trial. The judge having elsewhere charged the law of circumstantial evidence as applicable to tbe entire case, the failure to recharge it in immediate connection with the law of reasonable doubt, as complained of in the excerpts from the charge contained in these grounds of the motion, was not misleading, or cause for the grant of a new trial.
4. The fourteenth ground of the amended motion for new trial complained that certain jurors were biased and prejudiced against the accused. On the hearing of the motion for new trial evidence was submitted by affidavits pro and con as to the qualifications oP the jurors. The evidence so submitted authorized the judge to find, as he did, in favor of the competency of the jurors; accordingly there was no error in overruling that ground of the motion for new trial which complained of the partiality of the jurors. See Wall v. State, 126 Ga. 549 (55 S. E. 405), and citations; McCrimmon v. State, 126 Ga. 560 (55 S. E. 481).
5. The thirteenth ground of the amended motion complained that the judge in his entire charge failed to charge the law of circumstantial evidence, and thereby committed error, because the case was one that depended entirely upon circumstantial evidence. But as we have already seen, the judge did charge the code section on that subject, and the criticism is not borne out by the record. ■
6. Tbe fifteenth ground of the amended motion for new trial complained that the judge refused, upon written request timely presented, to charge the jury: “I charge yon that if you find from the evidence or statement of the accused that calomel or other medicine was administered to the deceased by the defendant in the court *615[course?] of lus treatment of deceased, and that it was possible for that medicine to contain arsenic, and that fact was unknown to the defendant, and that the quantity of arsenic found in the organs of deceased after death was about the quantity of arsenic which was, possible to be in the medicine so administered by the defendant, then your verdict should be for the defendant, and you should acquit him, or if you have a reasonable doubt as to this fact you should acquit him.” There was no error in refusing this request. There might be other objections to it, but it would invade the province of the jury for the judge to instruct them as re,quested, relative to the effect of the evidence before them. If the jury should find as outlined in the request, such finding would not necessarily call for a verdict of not guilty. •
7. The general grounds complained that the evidence'was insufficient to support the verdict. All the other members of the court are of the opinion that the evidence was sufficient; but the writer is of the contrary opinion, for the following reasons: The defend-' ant entered upon the trial of the case with the presumption of innocence, in his favor. The burden was not upon him to prove his innocence, but it was upon the State to prove his guilt to a moral and reasonable certainty and beyond a reasonable doubt. This could be done by circumstantial as well as by direct evidence; but where conviction depends entirely upon circumstantial evidence, the evidence upon every material allegation of the indictment should be not only consistent with the hypothesis of guilt, but should be so conclusive as to exclude every other reasonable hypothesis save that of the guilt of the accused. Bell v. State, 93 Ga. 557 (19 S. E. 244); Williams v. State, 113 Ga. 721 (39 S. E. 487). The defendant was a practicing physician; and aside from the evidence as to intimacy between himself and the wife of the deceased, there was no more in the case to point to a homicide than there would bo in any case where a physician treated a sick patient who afterwards died. Though there, were counts in the indictment to support any evidence that might be adduced on the trial, the evidence was not sufficient to a moral and reasonable certainty and beyond a reasonable doubt do show that death was produced by poisoning. There was no direct evidence that death was produced by poisoning. The presumption is that he died a natural death, the burden being on the State to show the contrary. ' There was *616direct evidence of seven eighths of a grain of arsenic being found in his remains, but no direct evidence that that killed him. Two grains of arsenic, according to the evidence, is the minimum fatal dose. Whether the deceased ever had more arsenic in his system was a matter by no means certain, and whether he ever had as much as two grains at one time was a mere matter of opinion. The' evidence fails to disclose the nature and character of the illness of the deceased which caused him to invoke the services of a doctor. The death might have resulted from that illness. It was at least incumbent upon the State to make some explanation with reference to this. If the evidence had -been sufficient to show to a moral and reasonable certainty, and beyond a reasonable doubt, that the deceased came to his death by arsenic poisoning, it was still incumbent upon the State to show in 'like manner that it was administered by the defendant, or by his direction, with felonious intent. In order to do this, the State again relied upon circumstantial evidence, which, in order'to convict, is required to be so conclusive as to be not only consistent with the guilt of the defendant, but to exclude every other reasonable hypothesis save that of his guilt. There was evidence that arsenic is administered in a powder, and is tasteless and odorless, and that it would produce certain symptoms, and that the defendant administered from time to time powder medicines without taste or odor and which produce symptoms of arsenic poisoning; but there was no direct evidence that the medicine so administered was in fact arsenic, while it was testified that the symptoms might result from other causes. It was explained by the prisoner’s statement that the medicines which had been administered by him were calomel, sal hepática, sal laxative, and “fringe tree alternative” (alterative). If arsenic was administered to the deceased, the evidence is not to any degree of certainty that it was administered by the doctor. The deceased was sick for some two weeks, and different people had nursed him, and they might have administered arsenic to him by mistake or design, or he might have taken it himself during the absence of his attendants. The evidence does not purport to show that he was under the watch of an attendant at all times, but showed affirmatively that different people attended him at different times, and no one attended him at all times. If it were said that there was an inducement for the doctor to poison the deceased in order to get rid *617of him, so that lie might have intimate relations with the wife of the deceased, it might also be said^'that the same inducement was open to the wife in order that she might have relations with the doctor. There was no evidence of a conspiracy between the wife and the doctor to kill the deceased; and if the deceased was killed in the manner alleged, it was possible and just as plausible that the wife might have committed the murder as that the doctor did, and that she might have done so without his knowledge or participation in any manner. Had the law cast the burden .upon the defendant to prove his innocence, rather than upon the State to prove his guilt, it might be that the" defense would have failed to support the burden; but it being incumbent on the State to prove the guilt of the defendant, the theory of guilt is not borne out by the evidence.
Judgment affirmed.
All the Justices concur, except Atlcinson, J., dissenting.
