Kelly v. State

72 So. 928, 112 Miss. 245

Opinion

Potter, J.,

delivered the opinion of the court.

The appellant in this ease was indicted, tried, and convicted at the March term, 1916, of-the circuit court of Clarke county on a charge of forgery, and was sentenced to serve four years in the penitentiary. In the trial of this case the court granted the following-instruction for the state:

“The court instructs the jury for the state that by a reasonable doubt is meant not a mere- speculative-doubt or vague conjecture,- mere supposition, or- hypothesis, but such a doubt as reasonably arises out of tbe testimony; a doubt for which a reason can be given. ’ ’

This instruction is practically tbe same instruction as has been many times held erroneous by this court. Besides, being generally objectionable in attempting to define a reasonable doubt, tbe instruction is erroneous in declaring that a reasonable doubt must arise out of tbe evidence when it may arise also from tbe want of evidence. Hale v. State, 72 Miss. 140, 16 So. 387; Knight v. State, 74 Miss. 140, 20 So. 860.

Reversed and remanded.