Hurst v. State

• Decision Date: 25 September 1944
• Docket Number: 35531.
• Citation: 18 So.2d 923,197 Miss. 571
• Court: Mississippi Supreme Court
• Parties: HURST v. STATE.

18 So.2d 923

197 Miss. 571

HURST v. STATE.

No. 35531.

Supreme Court of Mississippi

September 25, 1944

SMITH C.J., dissenting.

B.H Loving, of West Point, for appellant.

Greek L. Rice, Atty. Gen., and R.O. Arrington Asst. Atty. Gen., for appellee.

ALEXANDER Justice.

Appellant was convicted of grand larceny. We notice only one assigned error The following instruction for the State was the only one given in the case: "The Court charges the jury for the State if you believe by the evidence beyond all reasonable that the defendant did feloniously take, steal and carry away 3 fishing net, the personal property of Claude Walters and the value of more than $25.00 in good and lawful money of the United States, as set out and charged in the indictment, then you will find the defendant guilty as charged." It is contended that omission of the word "doubt" was fatal error. In spite of the concession of the learned Attorney General that this is so, we deem it appropriate to justify such admission.

In Walters v. State, 176 Miss. 790, 170 So. 539, the giving of the following instruction was held reversible error. "The court charges the jury that you do not have to know that the defendants are guilty before you are warranted in returning a verdict of guilty, it is enough to justify you in returning a verdict of guilty in this case if you believe the defendants to be guilty beyond all reasonable and to the exclusion of all other reasonable hypothesis of the defendants innocence." In reviewing the instruction the Court said: "The instruction undertook to state what is enough to sustain a conviction and, standing alone in purporting to tell the jury what is sufficient, it is not cured by any other instruction. Thus standing alone, it is important that the instruction should be technically correct, and it is necessary that it enumerates all essentials, and that the jury must so believe from the evidence in the case."

It is true that while two essentials were omitted, reversal was based upon omission of the phrase "from the evidence." This omission was later the basis for reversal of Imbraguglio v. State, Miss., 18 So.2d 294. In view of the fact that trial jurors are sworn to try all cases "according to the evidence" (Code 1942 Sec. 1793), an assumption that this omission was harmless would seem to be more plausible than the requirement of belief beyond reasonable doubt. The one states the source and the other the strength of the belief. The phrase may be technical, it may defy...