JUDGE COPER
delivered the opinion oe the court.
The appellant, Richard Brady, was indicted and tried in' the Fayette Circuit Court for the murder of Sam Downing, and found guilty of the crime of manslaughter, and sentenced to be confined in the penitentiary for a period of two years, and to reverse that judgment he prosecutes this appeal.
The only ground insisted upon for a reversal is that the court erred in refusing to give to the jury certain instructions asked by appellant’s counsel. The evidence was altogether circumstantial. The following instructions were asked' and refused:
1. “The prisoner can not be convicted on the evidence of mere circumstances unless every one of the eireumstanees necessary to establish guilt is proven beyond a reasonable doubt, and also unless such circumstances are of such character and tendency as to exclude every rational theory of the case consistent with the prisoner’s innocence.”
2. “ The jury should not convict on circumstantial evidence alone unless they are as much convinced by such evidence as [284]*284if a single credible witness had proven directly and positively the facts necessary to convict him.”
3. “Befoi’e the prisoner can be convicted the juxy must believe, to the exclusion of every reasonable doubt, that he has been proven guilty; they must be satisfied beyond a reasonable doubt of the truth of every fact in the chain of evidence necessary to establish his guilt.”
The court refused to give any of these instructions, and also refused those asked by the attorney for the commonwealth, and then, of its own motion, gave the following:
1. “If the jury believe from the evidence beyond a reasonable doubt that the defendant, in this county, before the finding of .the indictment, willfully and with malice aforethought shot and killed Sam Downing, as therein charged, when such killing was not necessary, and he had no reasonable ground to believe it to be necessary to protect himself from gx’eat bodily harm then about to be inflicted, they ought to find him guilty of murder and fix his punishment at death or imprisonment in the penitentiary for life, in their discretion.”
2. “The court instructs the jury that if they believe from the evidence that Downing made a dangerous and unprovoked assault'upon the accused just before the killing, but at the time of the killing was not in sight of deceased, and deceased was not aware of his presence, and was at the time making no effort or demonstration either to injure or pursue the accused, the willful killing by accused under these circumstances, if so done, would amount to either murder or manslaughter — murder if done willfully and with malice aforethought, and manslaughter if done willfully and in sudden heat and passion without malice aforethought.”
3. “If the jury, on all the evidence, entertain a reasonable doubt of.the guilt of the defendant, or of any fact necessary to make out his guilt, they should acquit him; or if they find him guilty and entertain a reasonable doubt whether his crime [285]*285be murder or manslaughter, they should find him guilty only of manslaughter.”
The fourth instruction fixed the limits of punishment in the event the jury should find for manslaughter only, and these were all the instructions given.
Counsel for appellant insisted with great earnestness that the court erred in refusing to give the instructions asked for by the accused, or some others calculated to caution the jury against a too ready conviction upon circumstantial evidence alone. Much has been written by judges and text-writers on this subject, but. we apprehend the true theory is, as suggested by the attorney representing the commonwealth, that circumstantial evidence being conceded to be competent, and when of a satisfactory character sufficient to warrant a conviction, it should be left, like direct or positive evidence, to be considered by the jury, and to have such weight as they deem it entitled to, without caution or suggestion on the part of the court as to its value or the necessity to scrutinize it closely.
As long as it was the duty of the court to charge the jury, as is still done in England and in many of the states of the Union, it was customary to comment to the jury upon the evidence, whether positive or circumstantial, and the court frequently gave intimations and sometimes plainly expressed its opinion of the character and value of the testimony. But our Criminal Code (section 226) makes it. the duty of the court to “instruct the jury on the lato applicable to the case,” and since the adoption of that provision the courts have ceased to charge the jury in the mode previously in use.
The whole duty of the court is to instruct the jury “on the lato applicable to the case,” which, by a clear implication, prohibits the court from making suggestions to the jury as to the weight of any particular species of evidence, or what consideration they should give it.
They were told what facts were necessary to make out the [286]*286guilt of the accused, and that if, on all the evidence, they' entertained a reasonable doubt of his guilt or of any fact necessary to make out his guilt, they ought to acquit him. This covered the whole law of -the case, and was the -whole duty of the court. Whether the evidence of circumstances which they had heard proved the facts necessary to constitute guilt, was for the jury, and any suggestion by the court as to the value of the evidence in establishing the necessary facts would have been an invasion of their province as triers of the facts.
The decided inclination of the courts is to confine the instructions as closely as possible to the essential facts necessary to make out the charge or the defense, and to leave the evidence offered to establish those facts to the jury without comment. This we think is not only the safer course, but is more in harmony with reason and the underlying principles of the trial by jury. If it be once admitted that the court may and ought to caution the jury to scrutinize closely and cautiously one class of evidence, it will be difficult to give a satisfactory reason why such caution should not be given as to any other species.
Undoubtedly a jury may be imposed upon by any kind of evidence, and every species ought to be closely scanned by them; but the courts are bound to presume that they will do so without being specially charged. They are told not to convict if they have, on all the evidence, a reasonable doubt whether the accused has been proved guilty. This is sufficient caution. If the court may caution them in regard to one species of evidence, it may do so as to all species, and when once it begins such admonitions it is impossible to say where the caution shall cease. There is only a difference in degree between telling the jury that a particular species of evidence needs to be cautiously considered, and telling them it is unworthy of credit. Such caution implies that the particular [287]*287species of evidence to which it is applied is not entirely reliable, and ought to be distrusted; and if the court may'so far judge of its quality, why may it not go a step further and tell them it is unworthy of belief?
Free access — add to your briefcase to read the full text and ask questions with AI
JUDGE COPER
delivered the opinion oe the court.
The appellant, Richard Brady, was indicted and tried in' the Fayette Circuit Court for the murder of Sam Downing, and found guilty of the crime of manslaughter, and sentenced to be confined in the penitentiary for a period of two years, and to reverse that judgment he prosecutes this appeal.
The only ground insisted upon for a reversal is that the court erred in refusing to give to the jury certain instructions asked by appellant’s counsel. The evidence was altogether circumstantial. The following instructions were asked' and refused:
1. “The prisoner can not be convicted on the evidence of mere circumstances unless every one of the eireumstanees necessary to establish guilt is proven beyond a reasonable doubt, and also unless such circumstances are of such character and tendency as to exclude every rational theory of the case consistent with the prisoner’s innocence.”
2. “ The jury should not convict on circumstantial evidence alone unless they are as much convinced by such evidence as [284]*284if a single credible witness had proven directly and positively the facts necessary to convict him.”
3. “Befoi’e the prisoner can be convicted the juxy must believe, to the exclusion of every reasonable doubt, that he has been proven guilty; they must be satisfied beyond a reasonable doubt of the truth of every fact in the chain of evidence necessary to establish his guilt.”
The court refused to give any of these instructions, and also refused those asked by the attorney for the commonwealth, and then, of its own motion, gave the following:
1. “If the jury believe from the evidence beyond a reasonable doubt that the defendant, in this county, before the finding of .the indictment, willfully and with malice aforethought shot and killed Sam Downing, as therein charged, when such killing was not necessary, and he had no reasonable ground to believe it to be necessary to protect himself from gx’eat bodily harm then about to be inflicted, they ought to find him guilty of murder and fix his punishment at death or imprisonment in the penitentiary for life, in their discretion.”
2. “The court instructs the jury that if they believe from the evidence that Downing made a dangerous and unprovoked assault'upon the accused just before the killing, but at the time of the killing was not in sight of deceased, and deceased was not aware of his presence, and was at the time making no effort or demonstration either to injure or pursue the accused, the willful killing by accused under these circumstances, if so done, would amount to either murder or manslaughter — murder if done willfully and with malice aforethought, and manslaughter if done willfully and in sudden heat and passion without malice aforethought.”
3. “If the jury, on all the evidence, entertain a reasonable doubt of.the guilt of the defendant, or of any fact necessary to make out his guilt, they should acquit him; or if they find him guilty and entertain a reasonable doubt whether his crime [285]*285be murder or manslaughter, they should find him guilty only of manslaughter.”
The fourth instruction fixed the limits of punishment in the event the jury should find for manslaughter only, and these were all the instructions given.
Counsel for appellant insisted with great earnestness that the court erred in refusing to give the instructions asked for by the accused, or some others calculated to caution the jury against a too ready conviction upon circumstantial evidence alone. Much has been written by judges and text-writers on this subject, but. we apprehend the true theory is, as suggested by the attorney representing the commonwealth, that circumstantial evidence being conceded to be competent, and when of a satisfactory character sufficient to warrant a conviction, it should be left, like direct or positive evidence, to be considered by the jury, and to have such weight as they deem it entitled to, without caution or suggestion on the part of the court as to its value or the necessity to scrutinize it closely.
As long as it was the duty of the court to charge the jury, as is still done in England and in many of the states of the Union, it was customary to comment to the jury upon the evidence, whether positive or circumstantial, and the court frequently gave intimations and sometimes plainly expressed its opinion of the character and value of the testimony. But our Criminal Code (section 226) makes it. the duty of the court to “instruct the jury on the lato applicable to the case,” and since the adoption of that provision the courts have ceased to charge the jury in the mode previously in use.
The whole duty of the court is to instruct the jury “on the lato applicable to the case,” which, by a clear implication, prohibits the court from making suggestions to the jury as to the weight of any particular species of evidence, or what consideration they should give it.
They were told what facts were necessary to make out the [286]*286guilt of the accused, and that if, on all the evidence, they' entertained a reasonable doubt of his guilt or of any fact necessary to make out his guilt, they ought to acquit him. This covered the whole law of -the case, and was the -whole duty of the court. Whether the evidence of circumstances which they had heard proved the facts necessary to constitute guilt, was for the jury, and any suggestion by the court as to the value of the evidence in establishing the necessary facts would have been an invasion of their province as triers of the facts.
The decided inclination of the courts is to confine the instructions as closely as possible to the essential facts necessary to make out the charge or the defense, and to leave the evidence offered to establish those facts to the jury without comment. This we think is not only the safer course, but is more in harmony with reason and the underlying principles of the trial by jury. If it be once admitted that the court may and ought to caution the jury to scrutinize closely and cautiously one class of evidence, it will be difficult to give a satisfactory reason why such caution should not be given as to any other species.
Undoubtedly a jury may be imposed upon by any kind of evidence, and every species ought to be closely scanned by them; but the courts are bound to presume that they will do so without being specially charged. They are told not to convict if they have, on all the evidence, a reasonable doubt whether the accused has been proved guilty. This is sufficient caution. If the court may caution them in regard to one species of evidence, it may do so as to all species, and when once it begins such admonitions it is impossible to say where the caution shall cease. There is only a difference in degree between telling the jury that a particular species of evidence needs to be cautiously considered, and telling them it is unworthy of credit. Such caution implies that the particular [287]*287species of evidence to which it is applied is not entirely reliable, and ought to be distrusted; and if the court may'so far judge of its quality, why may it not go a step further and tell them it is unworthy of belief?
The first instruction asked for the appellant is subject to the verbal criticism that it directed an acquittal unless “ every one of the circumstances necessary to establish guilt” was proven. The circumstances were evidence merely; and if the jury believed beyond a reasonable doubt that the facts necessary to establish guilt were proved, it was their duty to convict, ■although' they might doubt whether one or more of the circumstances attempted to be proved had been established.
But waiving this, and treating the instruction as if the word “facts” had been used in that portion just quoted instead of the word “ circumstances,” we are of the opinion that the instruction was properly refused on account of the latter clause.
In that clause the jury would have been told, in effect, that although they might believe beyond a reasonable doubt that every one of the circumstances (facts) necessary to establish guilt had been proved, yet they ought to acquit, unless the circumstances in evidence were of such a character and tendency as to exclude every rational theory consistent with the innocence of the accused.
It is not readily understood how a rational theory consistent with innocence could have existed if every fact necessary to establish guilt had been proved beyond a reasonable doubt. The instruction was therefore inconsistent with itself, or would have authorized the jury to acquit upon some imaginary theory of the case consistent with innocence, although satisfied beyond a reasonable doubt that guilt had been established.
As long as there is a reasonable hypothesis consistent with innocence there must remain a reasonable doubt of guilt; and whether the evidence is sufficient to exclude such doubt is [288]*288legitimate subject for argument by counsel, but it should not be commented on by the court.
In the second instruction the court was asked to erect a standard for the jury by which they were to estimate the weight of circumstantial evidence, and that they should acquit, although they might believe beyond a reasonable doubt that the accused had been proved guilty, unless they were as well satisfied of his guilt as if a single credible witness had proved directly and positively the facts necessary to convict. This, for reasons already given, would have been an invasion of the province of the jury, and was correctly refused.
The instructions given by the court embraced the substance of the third proposition of the accused, and are so clear and concise, and at the same time so fully cover all the points of the case, and are so easily understood, that further instructions were not necessary to enable the jury to render an intelligent verdict, and the judgment must therefore be affirmed.