Appellant prosecutes this appeal from a conviction of murder in the second degree, the punishment assessed being twenty years in the penitentiary.
The conviction is predicated entirely upon circumstantial evidence. Upon this subject the court charged the jury: "In order to warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and with the main fact sought to be proved, and the circumstances, taken together, must be of a conclusive nature, leading in the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty of the guilt of the accused." Error is urged because this charge fails to instruct the jury that such evidence must be of so conclusive a nature as to exclude every reasonable hypothesis except the guilt of the accused. The essential element of an instruction on the law of circumstantial evidence is, that the facts and circumstances necessary to the conviction sought must be such as to exclude every other reasonable hypothesis except the defendant's guilt. The evidence must not only be consistent with the prisoner's guilt, but it must be inconsistent with every other rational conclusion. Cone v. The State, 13 Texas Crim. App., 483, 486; 1 Greenl. on Ev., sec. 34; The People v. Shuler, 28 Cal. 490; The People v. Strong, 30 Cal. 151; The People v. Davis (Cal.), 1 Pac. Rep., 890; The State v. Nelson,11 Nev. 334, 440; The State v. Jones (Nev.), 11 Pac. Rep., 317; The State v. Shelledy, 8 Iowa 477, 498; The Commonwealth v. Harman, 4 Pa. St., 269, 274; The State v. Willingham, 33 La. Ann., 537; The State v. Vansant, 80 Mo., 67, 72; Stout v. The State, 90 Ind. 1, 12; Binns v. The State, 66 Ind. 428, 435; Algheri v. The State, 25 Miss. 584; Mose v. The State, 36 Ala. 212, 221, 231; 2 Thomp. Trials, sec. 2505; The Commonwealth v. Webster, 5 Cush., 296; United States v. Jackson, 29 Fed. Rep., 503 (9 Crim. L. Mag., 325); Casey v. The State (Neb.), 29 N.W. Rep., 264 (8 Crim. L. Mag., 597). Mr. Starkie, in his work on Evidence (section 863), says: "The force of circumstantial evidence being exclusive in its nature, and the mere coincidence of the hypothesis with the circumstances being, in the abstract, insufficient, unless they exclude every other supposition, it is essential to inquire with the most scrupulous attention what other hypotheses there may be which may agree wholly or partially with the facts in evidence." The court in Beavers' case said: "We can conceive of no hypothesis by which, in the order of natural causes and effects, the facts proved can be explained consistently with the innocence of the prisoner; and this is the true test of circumstantial evidence. It excludes all reasonable doubt of the prisoner's guilt." 58 Ind. 531, 537. "But this principle applies only to proof of the act, and not to proof of the intent. Accordingly, in a case of burglary, an instruction which contained the following sentence was properly refused: 'Where a criminal intent is to be established by circumstantial evidence, the proof ought to be not only consistent with the defendant's guilt, but it must be wholly inconsistent with any other rational conclusion than that of the defendant's guilt.' The court said: 'This rule is proper when the act which is claimed to be criminal is sought to be established by circumstantial testimony. But when the act is proved by direct testimony, and all that remains to be found is the intent which accompanied the act, and which may be inferred from the circumstances accompanying the act, then this principle does not apply.' It is to be observed that the courts do not state the principle in uniform language. Some of them prefix before the word 'hypothesis, or 'supposition' the word 'reasonable' or 'rational,' and others omit it. But, even where it is omitted, it is necessarily understood or implied, for the meaning is not that the evidence shall exclude an hypothesis which is unreasonable or absurd." 2 Thomp. Trials, sec. 2505, and accompanying notes. It is not to be understood, however, that this rule requires the exclusion of every possible hypothesis but that of guilt. It means a reasonable doubt, a rational hypothesis, not a mere possible speculation or imaginary doubt. Tested by the rule announced, the charge in this case is fatally defective, and must operate a reversal of this judgment. This conviction is predicated upon the theory that this appellant and one McGruder, conspiring and acting together for that purpose, took the life of the deceased. If this is true, his punishment was lenient indeed. This is met by the defendant with two theories: First, that he was not acting with McGruder in the killing, but was the friend of the deceased, and sought to prevent the killing; second, that McGruder killed deceased in self-defense. If either hypothesis was reasonable, it excluded the conclusion that appellant was guilty of the murder. After carefully examining the
remaining questions as presented by the record, we find no error suggested in any of them.
For the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
HENDERSON, Judge, dissents.
DISSENTING OPINION.