Kelly v. State

72 So. 928, 112 Miss. 245

• Court: Mississippi Supreme Court
• Decided: October 15, 1916
• Status: Published

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.