Smith v. State , 35 Tex. Crim. 618 ( 1895 )

This case was before this court at the Tyler term, and reversed on the ground that the charge on circumstantial evidence was insufficient; and it comes before us now on a motion for a rehearing, made on the part of the State. It is insisted that the holding by this court in the Jones case,34 Tex. Crim. 490 — that, in order for the charge on circumstantial evidence to be complete, there should be presented, in some form, the idea or principle that the testimony must exclude every reasonable hypothesis consistent with the innocence of the accused — is not in accordance with the principles governing a case of circumstantial evidence, and not in accord with the former decisions of this court; and that, when the jury were told that, if the circumstances, taken together, were of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty of the guilt of the accused, it excluded every other reasonable hypothesis consistent with his innocence. In one sense this may be logically true, but still it does not pretermit the idea that, in a case of circumstantial evidence, the mind of the jury should not be directed by a proper charge to all of the avenues by which they are to test the question of guilt by circumstantial evidence. It will be found that the charges on this subject which have met the approval of the courts not only tell the jury to investigate the facts affirmatively, and to find, beyond a reasonable doubt, that, taken together, they are of a conclusive nature, and lead, on the whole, to a satisfactory conclusion, and produce, in effect, a reasonable and moral certainty of the guilt of the accused, but that they also are to test this question in a negative way; that is, to try it as to whether or not there is any reasonable hypothesis from the facts in the case consistent with the innocence of the accused, and, if there is, to acquit him. This view, we take it, is in consonance with the opinion in the Webster case, 5 Cush., 295, so often quoted, and which has been followed by this court. In that case the jury were told that they must not only find, to a moral certainty, that the accused committed the offense, but that no other person committed it; thus directly leading the mind of the jury to the question of exhausting every other reasonable hypothesis that might indicate that some other person than the accused committed the offense charged. The charge in this case followed the Webster case, except in this last respect, but omitted to state to the jury in any form that they must try the case as to any other person who might have committed the offense, or that they must exhaust the case upon every reasonable hypothesis consistent with the defendant's innocence before they could convict him. The appellant excepted to the charge of the court, and requested a proper charge on this subject, which was refused by the court, and he saved his bill of exceptions. For the error of the court in failing or refusing to give a proper charge on this subject, we adhere to the decision heretofore rendered in this case; and the motion for a rehearing is overruled.

Motion Overruled.