33 S.W. 339


SMITH
v.
STATE


Court of Criminal Appeals of Texas.


November 27, 1895.

        Appeal from district court, Freestone county; Rufus Hardy, Judge.

        Dick Smith was convicted of burglary, and appeals. Reversed.

        Anderson & Moses and J. R. Bell, for appellant. Mann Trice, for the State.

        DAVIDSON, J.

        Appellant was convicted of burglary, and his punishment assessed at two years' 
confinement in the penitentiary; and from the judgment and sentence of the lower court 
he prosecutes this appeal.

        The state relied alone upon circumstantial evidence for a conviction, which, to our 
minds, was of a very unsatisfactory character. Upon this character of testimony the 
charge is as follows: "You are instructed that this is a case of circumstantial evidence, 
and, in order to warrant a conviction upon circumstantial evidence, each fact necessary to 
the conclusion sought to be established must be proved by competent evidence, beyond a 
reasonable doubt. All the facts—that is, the necessary facts—to the conclusion must be 
consistent with each other, and with the main facts sought to be proved; and the 
circumstances, taken together, must be of a conclusive nature, leading on the whole to a 
satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the 
accused is guilty of the offense charged." Counsel for appellant was not satisfied with this 
charge, and requested the court to give one, in substance, as follows: "It is not sufficient 
that the circumstances coincide with and render probable the guilt of defendant, but they 
must exclude every other reasonable hypothesis but that of the guilt of the accused." This 
instruction was refused, and counsel excepted. The charge submitted by the court 
conforms to that contained in Judge Willson's Forms for instructions upon this subject. In 
the absence of exceptions or requested instructions, we have held that Judge Willson's 
form is sufficient; that is, that we would not reverse a judgment because it was not 
sufficiently full and explicit in regard to the defects sought to be corrected in these 
requested instructions. Judge Willson's form was followed in the Jones Case (Tex. Cr. 
App.) reported in 30 S. W. 1059. In this case the subject was elaborately discussed, and 
the rule stated most clearly and unequivocally that a charge on circumstantial evidence is 
not complete unless it contains, in substance, the proposition contained in the requested 
instructions, namely, that the circumstances must exclude every other reasonable 
hypothesis except that of defendant's guilt. We will not go over this subject again, but 
refer to the Jones Case and authorities there cited. The court should have given the 
requested instruction, and, for refusing to do so, the judgment is reversed, and the cause 
remanded for another trial.

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Notes:


1. Rehearing pending.


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