Opinion
No. 39336.
November 15, 1954.
1. Criminal law — Justice of Peace — certificate of proceedings — signing of by — during trial.
Where defendant was convicted in Justice of Peace Court on charge of unlawful possession of intoxicating liquor and where on appeal to Circuit Court during course of trial it appeared that convicting Justice had failed to sign his certificate of the proceedings, allowing the Justice of Peace to then sign his certificate of proceedings in Justice Court was not error.
2. Criminal law — State's instruction — omission of phrase — "to the exclusion of every other reasonable hypothesis."
In such case, omission from State's instruction that evidence must establish guilt "to the exclusion of every other reasonable hypothesis consistent with her innocence" was not error where there was direct evidence of defendant's guilt, quoted phrase being properly included in such a charge only where defendant's guilt is based entirely on circumstantial evidence.
3. Criminal law — instruction — refused — reasonable doubt — instructions considered together.
In such case, refusal of requested instruction to the effect that if jury could deduce from the evidence any reasonable hypothesis consistent with the innocence of defendant, then there is a reasonable doubt of her guilt, and the jury should return a verdict of not guilty, was not error, even though trial court would have been justified in granting such instruction, where trial court had given several instructions clearly setting out the reasonable doubt theory and charging that conviction could not be had unless jury believed the evidence proved defendant guilty beyond every reasonable doubt.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Kemper County; JOHN D. GREENE, JR., Judge.
Helen McDade, DeKalb; Temple Compton, Meridian, for appellant.
I. During the direct examination of a witness for the State, Honorable Jesse P. Stennis, District Attorney, made a statement that his attention was called to the fact that the transcript of the record of this case from the Justice of the Peace was not signed by the Justice of the Peace. Mr. Stennis further stated that he wanted the Justice of the Peace to come there and sign the transcript. Several objections were made by the defendant and overruled by the Court, one of which was to the amendment of the transcript and a motion to discharge defendant on the ground that the Circuit Court had no jurisdiction without the transcript having been signed. The Court was in error by allowing the Justice of the Peace to sign the transcript at the time stated above and should have dismissed the appeal on the ground that the Court was without jurisdiction to try the case on its merits. Lee v. State, 190 Miss. 877, 1 So.2d 492, 2 So.2d 148; Travillion v. State, 206 Miss. 236, 39 So.2d 773; Sec. 1200, Code 1942.
II. The Circuit Court erred by allowing an instruction for the State which failed to include the statement that "the evidence must exclude every other reasonable hypothesis consistent with her innocence" and that when appellant offered an instruction to this effect it was refused, which was also error. Chinn v. State, 218 Miss. 724, 67 So.2d 384.
III. The Court committed reversible error by refusing the instruction offered by the defendant, to-wit, "That if you believe from the evidence in this case that there is a probability of the innocence of the defendant, then there is a reasonable doubt as to the guilt of the defendant, and the jury must return a verdict of not guilty." Jones v. State, 141 Miss. 894, 107 So. 8. Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. The trial court correctly permitted the Justice of the Peace to perform the ministerial act of signing the certificate to the transcript at the commencement of trial. Greene v. Boon, 57 Miss. 617; Travillion v. State, 206 Miss. 236, 39 So.2d 773; Whittington v. State, 218 Miss. 631, 67 So.2d 515; Secs. 1200, 1987, Code 1942.
II. Where a case does not rest entirely upon circumstantial evidence, the Court may properly refuse an instruction that in order for the guilt of accused to appear beyond a reasonable doubt, the evidence must exclude every other reasonable hypothesis consistent with his innocence. Bone v. State, 207 Miss. 868, 43 So.2d 571; Pettus v. State, 200 Miss. 397, 27 So.2d 536.
III. Although the trial court may have properly granted defendant's requested instruction that if there is a probability of innocence there is a reasonable doubt as to guilt of appellant, the error, if any, is harmless where the subject of such instruction is adequately covered by others granted. Brown v. State, 219 Miss. 748, 70 So.2d 23; Milner v. State, 219 Miss. 465, 68 So.2d 865; Smith v. State, 128 Miss. 258, 90 So. 883.
Appellant was convicted in the justice of the peace court, and also, on appeal, in the circuit court, of the unlawful possession of intoxicating liquor.
During the course of the trial, and while the sheriff was testifying, the district attorney discovered that the convicting justice of the peace had failed to sign the transcript of the record of the proceedings in his court. On motion of the district attorney, and over objection of appellant, permission was granted by the trial judge for the justice of the peace to then and there sign his transcript. This was done. Appellant urges that as reversible error.
The case was tried in the justice of the peace court June 6, 1953. On the same day the justice of the peace prepared and filed with the clerk of the circuit court the transcript of record, including two affidavits for search warrants and two search warrants for searching the premises of appellant, the affidavit charging appellant with the crime; her appearance bond; copy of the records of the proceedings; the judgment of conviction and sentence; and also the form of certificate, unsigned, provided by Section 1199, Miss. Code 1942.
(Hn 1) Appellant cites, in support of her contention, Lee v. State, 190 Miss. 877, 1 So.2d 492, and Travillion v. State, 206 Miss. 236, 39 So.2d 773. The question in the Lee case was whether the filing in the circuit court of the justice of peace transcript was sufficient or whether such record had to be introduced as evidence during the trial. The Court held that it was not necessary to introduce such record in evidence. The Travillion case supports the contention of appellant, but it was expressly overruled by Whittington v. State, (Miss.), 67 So.2d 515. On the other hand, the action of the trial judge in permitting the justice of the peace to sign his certificate was justified by, and was not error under, Sections 1200 and 1987 of said Code; Green v. Bacon, 57 Miss. 617, and Serio v. City of Brookhaven, 208 Miss. 620, 45 So.2d 257, and Whittington v. State, supra. No contention is made as to the accuracy and correctness of the contents of the transcript.
(Hn 2) The State was granted this instruction: "The Court charges the jury for the State that you do not have to know that the defendant is guilty before you can convict her. It is only necessary that you should believe from the evidence, beyond a reasonable doubt, that she is guilty, and if you do so believe from all the evidence, beyond a reasonable doubt, that the defendant is guilty, then it is your sworn duty to so find." Appellant says the instruction was erroneous in that it did not contain the clause "to the exclusion of every other reasonable hypothesis consistent with her innocence." Inclusion of the quoted phrase is proper where the guilt of accused is based entirely upon circumstantial evidence. Pettus v. State, 200 Miss. 397, 27 So.2d 536. Such is not the case here. The sheriff and his deputy testified that appellant admitted she was in possession of the whiskey. Again, the State obtained an instruction including the quoted provision, thereby assuming that burden. Defendant got the benefit of it. That would have cured the error, had there been error, in refusal of defendant's requested instruction. Bone v. State, 207 Miss. 868, 43 So.2d 571.
(Hn 3) Defendant requested, but was denied, the following instruction: "That if the jury can deduce from the facts and circumstances surrounding the case, either from the evidence or lack of evidence, any reasonable hypothesis consistent with the innocence of the defendant, then there is a reasonable doubt of her guilt, and the jury should return a verdict of not guilty." He urges that as error. The learned trial judge would have been justified in granting that instruction but his refusal to do so was not error under the circumstances of this case for the reason that defendant obtained several instructions clearly setting out the reasonable doubt theory and charging the jurors that they could not convict her unless they believed the evidence proved her guilty beyond every reasonable doubt. Smith v. State, 128 Miss. 258, 90 So. 883; Milner v. State, 219 Miss. 465, 68 So.2d 865, and Brown v. State, 219 Miss. 748, 70 So.2d 23.
Affirmed.
Kyle, Arrington, Ethridge and Gillespie, JJ., concur.