54 So. 949 | Miss. | 1911
delivered the opinion of the conrt.
The appellant, Swinton Permenter, was convicted of mnrder and sentenced to hang, and appeals to this court. He was convicted on evidence wholly circumstantial, made up of many different facts and circumstances. There is grave doubt, from the record in this case of appellant’s guilt. The giving of the second instruction for the state is assigned as error. That instruction is as follows: “The court charges the jury that circumstantial evidence has been received in every age of the common law, and may arise so high in the scale of belief as to generate full and complete conviction in the minds of the jury of defendant’s guilt; and when it does arise so high in the scale of belief as to generate full conviction in the minds of the jury of defendant’s guilt beyond a reasonable doubt, then they are authorized to act upon it, and convict the defendant of the crime charged. ’ ’
This instruction was clearly erroneous. It is substantially the same instruction which was condemned by the court in Williams v. State, 95 Miss. 671, 49 South. 513. The court said of the instruction in that case: “It is elementary law that a conviction may be had on circumstantial evidence alone, when by it guilt is proven beyond a reasonable doubt; but it is also elementary that, before such evidence can be said to prove guilt beyond a reasonable doubt, it must exclude every other reasonable hypothesis than that of guilt.” The fatal defect in the instruction is that it authorizes the jury to convict on circumstantial evidence which shows guilt beyond a reasonable doubt, without going further and informing the jury that the evidence must be so strong as to exclude every other reasonable hypothesis than that of guilt; in other words, explaining what it takes to show guilt where the evidence is circumstantial. This addition to the instruction is made necessary by the inherent difference in direct and circumstantial evidence. That difference is well stated in Haywood v. State, 90 Miss. 461, 43 South.
The other errors alleged are not well founded.
Reversed and remanded.