Howell v. State , 98 Miss. 439 ( 1910 )

Whitfield, C.

We cannot concur in the contention of the learned counsel for appellant that the court should have given a peremptory instruction to find the defendant not guilty.

On the trial the court gave the following instruction for the state, viz.: “The court instructs the jury, for the state, in passing upon the credibility of the witnesses who testified in the case, you have the right to consider the interest and the motive of the witness for testifying falsely, if any appear, from the evidence and the manner •of the witness upon the witness stand, connected with all the other evidence in the case; and if you believe that any witness has testified falsely on any material facts, you have a right to disregard the testimony of such witness altogether.” This instruction omits the necessary qualifying words that the false testimony should have been given willfully and corruptly, and this instruction has been repeatedly condemned by this court, so often that it is unnecessary to refer again to the cases.

The court gave instruction No. 1, which is in the following language: “The court instructs the jury that all presumptions yield and give way to the facts, and you are not to presume anything in this case, where you have facts upon which to act.” The general presumption of innocence attends the defendant throughout the trial until the rendition of the verdict, and is, of course, a thing which remains in the case until that time. This instruction, in its broad and unqualified form, denies this right to the defendant, and it is therefore erroneous.

The third instruction for the state is in the following words: “The court instructs the jury that a reasonable doubt, to authorize an acquittal, is a doubt arising on the evidence, and not a mere possibility of innocence.” And the fifth instruction is in the following words: “The court instructs the jury, for the state, that under the law you do not have to know that the defendant is guilty before you are authorized to find him guilty, but it is the duty of the jury only to believe from the evidence beyond every reasonable doubt that he is guilty; and in passing upon the guilt or innocence of the defendant, it is not the duty of the jury to entertain doubts which are purely speculative and unsupported by the evidence. ’ ’

These instructions are both erroneous, in that they do not tell the jury that the reasonable doubt authorizing-an acquittal may arise from the lack of evidence. And the sixth instruction for the state, in its concluding-clause, is open to the same objection, and is also erroneous for that reason.

In the face of these manifestly erroneous instructions, on material points, we are compelled to reverse the case, and remand the cause for a new trial.

Reversed and remanded.

He® Curiam. The above opinion is adopted as the opinion of the court, and for. the reasons therein indicated the judgment is reversed, and the cause remanded for a new trial.