Kelly v. State
| Decision Date | 27 November 1916 |
| Docket Number | 19343 |
| Citation | 112 Miss. 245,72 So. 928 |
| Court | Mississippi Supreme Court |
| Parties | KELLY v. STATE |
APPEAL from the circuit court of Clarke county, HON. R. W HEIDELBURG, Judge.
Hub Kelly was convicted of forgery and appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
S.W Johnston, for appellant.
Argument on assignment of error number three. Because the court granted the following instruction for the state, which instruction appears on page 70 of the record: "The court instructs the jury for the state that by a reasonable doubt is meant not a mere speculative doubt or vague conjecture mere supposition or hypothesis, but such a doubt as reasonably arises out of the testimony, a doubt for which a reason can be given."
The court can see at a glance that the learned judge below committed fatal error in granting this instruction. The instruction excludes the theory that a reasonable doubt may arise from the lack of evidence. This instruction has been condemned in the case of Hale v. State, in which the court observes: "An instruction as to reasonable doubt, which declares that it must arise out of the evidence, is objectionable, since it may arise from the want of evidence Hale v. State, 72 Miss. 140; again in Knight v. State, 74 Miss. 140, Judge WHITFIELD said: A reasonable doubt may arise from the want of evidence as to some fact having a natural connection with the case. In Taylor v. State, Judge CALHOUN condemns almost the identical instruction. 89 Miss. 671. The district attorney has been flirting with the indefinable; trying to grasp that which is intangible, and if I be not mistaken, has committed a reversible error in securing the above instruction. The instruction was not cured by any additional ones; there were only a few instructions, and none for the state or for the defendant can be said to have cured the error. For this error, I am of the opinion that the case should be reversed.
Ross A. Collins, Attorney-General, for the state.
The third assignment is predicated on the instruction given the state, as found on page 49, and which is as follows: "The court instructs the jury for the state that by a reasonable doubt is meant not a mere speculative doubt or vague conjecture, mere supposition or hypothesis, but such a doubt as reasonably arises out of the testimony -- a doubt for which a reason can be given."
I will not contend that this instruction was an absolutely proper one because it has come under the criticism of this court heretofore. In Klyce v. State, 78 Miss. 450, 28 So 827, this court has criticised an instruction whereby the jurors are told that they should be able to state a reason for their reasonable doubt. However, as in the case last cited...
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