HARDY v. STATE

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Docket Number

No. 32455.

Attorney(S)

Welch Cooper, of Laurel, for appellant. The court erred in granting to the appellee the following instructions: "The court instructs the jury for the state that if you believe from the evidence in this cause, beyond a reasonable doubt, that the defendant did wilfully, unlawfully, feloniously, and maliciously, set fire to and burn the dwelling house of Mrs. Claude Hardy, in which she resided, as testified about, and in the manner and form as charged in the indictment, then it is your sworn duty to find the defendant guilty as charged." The court was in error in granting the instruction for the reason that it permitted the jury from the evidence to find the defendant guilty when such evidence did not warrant the submission of the case to the jury. It is elementary law that a conviction may be had on circumstantial evidence alone when by it guilt is proven beyond a reasonable doubt; but it is also elementary that, before such evidence can be said to prove guilt beyond a reasonable doubt, it must exclude every other reasonable hypothesis than that of guilt. Williams v. State, 49 So. 513, 95 So. 671; Hogan v. State, 90 So. 99, 127 Miss. 407; Nalls v. State, 90 So. 892, 128 Miss. 277; Sorrels v. State, 94 So. 209, 130 Miss. 300; Simmons v. State, 106 Miss. 732, 64 So. 721; Pickle v. State, 118 So. 625, 151 Miss. 549. Appellee cites as controlling here the case of Sauer v. State, 156 Miss. 507, 144 So. 225. It is true that the court there dealt with an instruction but that instruction included the clause "and to the exclusion of every other reasonable hypothesis." The instruction complained of in this case did not have the clause referred to and which does appear in the instruction in the Sauer case. The court will observe that the case against the appellant is entirely circumstantial. The evidence consists of threats made by the appellant, prints of the hoofs of the horse of the appellant, and the fact that certain persons saw him on the horse the night of the fire. No one saw the house set on fire. In fact there is no proof that the house was set on fire. At any rate, the proof is entirely circumstantial. In this state of the case, the court granted the state the following instruction: "The court instructs the jury for the state that you do not have to know that the defendant is guilty before you can convict him, but it is only necessary that you should believe from all the circumstances and evidence in the case, beyond a reasonable doubt, that the defendant is guilty; and if you so believe from all the circumstances and evidence in this case beyond a reasonable doubt that the defendant is guilty, then it is your sworn duty to so find." The above instruction, or one substantially like it, was condemned by this court in the case of Warren v. State, 146 So. 449, 166 Miss. 284. Webb M. Mize, Assistant Attorney-General, for the state. The court did not err in giving instruction No. 1 to the state. Appellant says that the granting of the instruction was erroneous for the reason that it permitted the jury to find the defendant guilty, when the evidence did not warrant the submission of the case to the jury. In our opinion, this is equivalent to saying that the verdict of the jury is contrary to the law and the evidence, and we feel that the rule in Justice v. State, 170 Miss. 96, 154 So. 265; Davis v. State, 173 Miss. 783, 163 So. 391; Johnson v. State, 168 So. 479, to the effect that in the absence of a motion for a new trial, an assignment of error on the weakness or insufficiency of evidence will not be considered, should apply. Byrd v. State, 165 Miss. 30, 143 So. 852. At most, the state's case was strong and showed appellant's guilt. Appellant's defense was an alibi. Where the evidence is conflicting, the verdict of the jury cannot be set aside. Ervin v. State, 168 Miss. 145, 151 So. 177; Harris v. State, 175 Miss. 1, 166 So. 392. The instruction in the case at bar is wholly unlike the instruction complained of in Warren v. State, 166 Miss. 284, 146 So. 449, relied on by appellant. The instruction there was erroneous because of not limiting the jury to the evidence, and it did not require the degree of proof required in a circumstantial evidence case. The instruction in the case at bar was approved in a case resting on circumstantial evidence. Sauer v. State, 166 Miss. 507, 144 So. 225; Tillman v. State, 164 Miss. 100, 144 So. 234; Davis v. State, 170 Miss. 78, 154 So. 303. The instruction was further approved in Allgood v. State, 173 Miss. 27, 161 So. 756.

Judges

Griffith, J., delivered the opinion of the court.

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HARDY v. STATE.

1. CRIMINAL LAW.

In case where evidence is entirely circumstantial, instruction or instructions must include qualification that, in order for defendant's guilt to appear beyond reasonable doubt, evidence must exclude every reasonable hypothesis consistent with his innocence.

2. CRIMINAL LAW.

Where evidence in arson prosecution was wholly circumstantial, instruction which omitted the qualification that, in order for defendant's guilt to appear beyond reasonable doubt, evidence must exclude every reasonable hypothesis consistent with his innocence, held reversible error.

Griffith, J., delivered the opinion of the court.

Appellant was convicted of arson. The evidence is wholly circumstantial. The court granted to the state two instructions and only two. These instructions are in the following language:

"The court instructs the jury for the State that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant did wilfully, unlawfully, feloniously, and maliciously, set fire to and burn the dwelling house of Mrs. Claud Hardy, in which she resided, as testified about, and in the manner and form as charged in the indictment, then it is your sworn duty to find the defendant guilty as charged."

"The court instructs the jury for the state that you do not have to know that the defendant is guilty before you can convict him, but it is only necessary that you should believe from all the circumstances and evidence in the case, beyond a reasonable doubt, that the defendant is guilty; and if you so believe from all the circumstances and evidence in this case, beyond a reasonable doubt, that the defendant is guilty, then it is your sworn duty to so find."

It will be observed that both of these instructions omit the necessary qualification that in order for appellant's guilt to appear beyond a reasonable doubt "the evidence must exclude every other reasonable hypothesis consistent with his innocence." In a case such as this where the evidence is entirely circumstantial, the instruction or instructions must include the above-quoted qualification else the verdict and judgment must be reversed. This was expressly held in Warren v. State, 166 Miss. 284, 288, 146 So. 449, and there has been no subsequent case which when carefully examined has in any manner qualified or relaxed the rule laid down in that case. The stated qualification is not required and is not proper where there are one or more eyewitnesses, but it is essential in cases of purely circumstantial evidence.

We do not decide or discuss the several other assignments, as they will probably not appear in another trial.

Reversed and remanded.

HARDY v. STATE.

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