Smith v. State

33 S.W. 339, 35 Tex. Crim. 618, 1895 Tex. Crim. App. LEXIS 291

Opinions

DAVIDSON, Judge.

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 followed in the Jones case, 34 Tex. Crim. Rep., 400. 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.