Collins v. State , 71 Miss. 691 ( 1893 )

Woods, J.,

delivered the opinion of the court.

In view of the unsatisfactory evidence made of the guilt of the appellants, we cannot resist the belief that the hypothetical statement of facts in the first instruction, which were the reverse of the sworn statements of facts of the’witnesses, were potential in procuring the conviction of the accused. It is always dangerous to single out portions of the evidence and charge the jury thereon; and, if the court proposes to state the evidence of the prosecution hypothetically, the statement must be made fully and fairly, and this was not done in the giving of this first instruction. In several particulars, the instruction was unjust to the accused and violative of the rule we have just announced. For example, the instruction informs the jury that proof of sexual intercourse by an eye-witness is unnecessary, if the existence of habitual sexual indulgence by the parties is satisfactorily shown by circumstances in proof and the declarations of'the parties. There are no declarations in the nature of admissions or confessions of guilt. The only declarations found are those of positive denial of all wrong-doing. Again, by the instruction, the jury is told that, “ in determining the guilt of the defendants, you may take into consideration, if such appears from the testimony, that Jeff Collins is often seen and heard at Susan’s house at late hours at night, and that he has been seen leaving at early hours in the morning; . . . that Jeff made the trade for the lot where Susan lives; that Jeff has paid money for Susan on said lot, and taken receipts for same; that Jeff has carried provisions to Susan, and eats at her table, and has clothes washed by her,” when a careful examination discloses that the evidence distinctly and uncontradictedly demonstrates that Susan made the trade for and bought the lot herself, that she has paid for it herself, and that the receipts for such payments were given to her. Some, it may be all, of the other hypothetical statements of fact quoted by us, may be properly characterized as inferential argumentation rather than full and fair recitals of the evidence of-the witnesses. It cannot be safely affirmed that the suggestion by the court to the jury that these hypothetical statements in this instruction might be found in the testimony, was not exceedingly prejudicial to the accused.

Reversed.