Smith v. State, 33 S.W. 339

Smith v. State

33 S.W. 339 | Tex. Crim. App. | 1895

Lead Opinion

Appellant was convicted of burglary, and his punishment assessed at two years' confinement in the penitentiary; and from the judgment and sentence of the lower court he prosecutes this appeal. The State relied alone upon circumstantial evidence for a conviction, which, to our minds, was of a very unsatisfactory character. Upon this character of testimony the charge is as follows: "You are instructed that this is a case of circumstantial evidence, and, in order to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt. All the facts — that is, the necessary facts — to the conclusion must be consistent with each other, and with the main facts sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused is guilty of the offense charged." Counsel for appellant was not satisfied with this charge, and requested the court to give one, in substance, as follows: "It is not sufficient that the circumstances coincide with and render probable the guilt of defendant, but they must exclude every other reasonable hypothesis but that of the guilt of the accused." This instruction was refused, and counsel excepted. The charge submitted by the court conforms to that contained in Judge Willson's Forms for instructions upon this subject. In the absence of exceptions or requested instructions, we have held that Judge Willson's form is sufficient, that is, that we would not reverse a judgment because it was not sufficiently full and explicit in regard to the defects sought to be corrected in these requested instructions. Judge Willson's form was *621 followed in the Jones case, 34 Tex, Crim. Rep., 490. In this case the subject was elaborately discussed, and the rule stated most clearly and unequivocally that, a charge on circumstantial evidence is not complete unless it contains, in substance, the proposition contained in the requested instructions, namely: that the circumstances must exclude every other reasonable hypothesis except that of defendant's guilt. We will not go over this subject again, but refer to the Jones case and authorities cited. The court should have given the requested instruction, and, for refusing to do so, the judgment is reversed, and the cause remanded for another trial.

Reversed and Remanded.

ON REHEARING.

Addendum

This case was before this court at the Tyler term, and reversed on the ground that the charge on circumstantial evidence was insufficient; and it comes before us now on a motion for a rehearing, made on the part of the State. It is insisted that the holding by this court in the Jones case,34 Tex. Crim. 490 — that, in order for the charge on circumstantial evidence to be complete, there should be presented, in some form, the idea or principle that the testimony must exclude every reasonable hypothesis consistent with the innocence of the accused — is not in accordance with the principles governing a case of circumstantial evidence, and not in accord with the former decisions of this court; and that, when the jury were told that, if the circumstances, taken together, were of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty of the guilt of the accused, it excluded every other reasonable hypothesis consistent with his innocence. In one sense this may be logically true, but still it does not pretermit the idea that, in a case of circumstantial evidence, the mind of the jury should not be directed by a proper charge to all of the avenues by which they are to test the question of guilt by circumstantial evidence. It will be found that the charges on this subject which have met the approval of the courts not only tell the jury to investigate the facts affirmatively, and to find, beyond a reasonable doubt, that, taken together, they are of a conclusive nature, and lead, on the whole, to a satisfactory conclusion, and produce, in effect, a reasonable and moral certainty of the guilt of the accused, but that they also are to test this question in a negative way; that is, to try it as to whether or not there is any reasonable hypothesis from the facts in the case consistent with the innocence of the accused, and, if there is, to acquit him. This view, we take it, is in consonance with the opinion in the Webster case, 5 Cush., 295, so often quoted, and which has been followed by this court. In that case the jury were told that they must not only find, to a moral certainty, that the accused committed the offense, but that no other person committed it; thus directly leading the mind of the jury to the question of exhausting *622 every other reasonable hypothesis that might indicate that some other person than the accused committed the offense charged. The charge in this case followed the Webster case, except in this last respect, but omitted to state to the jury in any form that they must try the case as to any other person who might have committed the offense, or that they must exhaust the case upon every reasonable hypothesis consistent with the defendant's innocence before they could convict him. The appellant excepted to the charge of the court, and requested a proper charge on this subject, which was refused by the court, and he saved his bill of exceptions. For the error of the court in failing or refusing to give a proper charge on this subject, we adhere to the decision heretofore rendered in this case; and the motion for a rehearing is overruled.

Motion Overruled.