Irving v. State

• Decision Date: 06 November 1911
• Citation: 56 So. 377,100 Miss. 208
• Court: Mississippi Supreme Court
• Parties: VICTOR IRVING v. STATE

56 So. 377

100 Miss. 208

VICTOR IRVING v. STATE

Supreme Court of Mississippi

November 6, 1911

October 1911

APPEAL from the circuit court of Attala county, HON. G. A. MCLEAN Judge, Victor Irving was convicted of burglary and appeals.

The evidence upon which the conviction rests is circumstantial the state relying principally upon tracks, alleged to be those of the defendant, leading from the house of the prosecuting witness, in order to connect the defendant with the crime. On the trial the court, at the request of the state, gave the following instruction: "(1) The court charges the jury that circumstantial evidence has been received in every age of the common law, and may arise so high in the scale of belief as to generate full and complete conviction beyond a reasonable doubt, and when it does arise so high in the minds of the jury as to convince them of the defendant's guilt beyond a reasonable doubt and to a moral certainty, then they are authorized to act upon it and convict the defendant."

Reversed and remanded.

S. L Dodd and R. H. Thompson, for appellant.

The first instruction for the state should not have been given.

It announced a matter of mere history, accompanied by a comment or statement touching the weight of circumstantial evidence and told the jury that such evidence might arise so high in the scale of belief as to. generate full and complete conviction beyond a reasonable doubt, and when it does arise so high they are authorized to convict, etc.

The objections to this instruction are:

(a) It is upon the weight of evidence, in fact it is but a dissertation on the value of circumstantial evidence, and (b) it is couched in figurative language; there is no such thing as a scale of belief. While the language can be found in the law books, and is a piece of fine writing, it is too metaphorical and figurative to be comprehended by the average juror; and (c) the instruction is condemned in Williams v. State, 95 Miss. 671, and Permenter v. State, 54 So. 949, because it doesn't contain a statement to the effect that circumstantial evidence to warrant a conviction must exclude every other reasonable hypothesis than one of guilt. While the instruction was harmless in the Williams case, it is prejudicial and highly so, in this one, as it was in the Permenter case.

Jas. R. McDowell, assistant attorney-general, for appellee.

I come now to the only serious error set up, which is the granting of the first instruction. This instruction is practically the same as given in the Permenter case, 54 So. 949. (See the opinion at the top of page 950.) Virtually the only difference being that the words "beyond a reasonable doubt?" are inserted after the words "to generate full and complete conviction in the minds of the...