State v. Dukich

Fullerton, J.

(dissenting) — I am unable to agree with tbe majority in tbeir conclusion that there is reversible error in the instruction found fatal to the judgment. I am willing to concede that it would have been a more accurate statement of the rule had the court omitted the word “almost” from the sentence the majority in part italicize, but I cannot conceive it to be anything more than an inaccurate statement of a rule, fatal only in the instance that it stood without further explanation. But there was here further explanation. In the concluding part of the very sentence in which the objectionable word is found the jury were told, in substance, that if there was a single fact in the chain of circumstances inconsistent with the defendant’s guilt, it was sufficient to raise a reasonable doubt, entitling the defendant to an acquittal, and in both the preceding and subsequent sentences they were told that the evidence must not only show the defendant’s guilt beyond a reasonable doubt, but that it must be such as to exclude any other rational hypothesis than that of guilt. Clearly, it seems to me, the jury could not in any way have been misled by the inaccuracy of this particular part of the instruction. However they may have understood its meaning as to the degree of certainty to which circumstantial evidence must generally obtain, they could not have understood, when they considered the instruction as a whole, that it could be of any less degree than sufficient to convince them beyond a reasonable doubt of the defendant’s guilt. This, it seems to me, satisfies the law, and I therefore dissent from the conclusion the majority reach.

Parker and Pemberton, JJ., concur with Fullerton, J.