The Pulaski citizen. [volume] (Pulaski, Tenn.) 1866-current, 1882-04-13

fore, they ask Tor charges of points
of law, which have already beer
fully and fairly made to the Jury
there is clearly no error; and,
fortiori, if the wording of the PROPOSE
tions submitted is that of an advo
cate, not of judge.
The burden of the several PROPOSE
tions is, that in cases of circum
s,antial evidence alone the circum
stances must be so strong, and Sc
closely connected, as. to exclude
every other hypothesis except thai
; of the defendants guilt Repeated
in different form, laying stress nov
on the evidence necessary to estab
lish the controlling hypothesis, now
upon the certainty required to ex
clude every other hypothesis, and
now upon the duty of the jury in
weighing the evidence; this is the
sum and substance of the various
propositions. But the trial Judge
has already. in language borrowed
| from the opinions of this court, eX-
pressed the same idea in the form
usually adopted in such cases. He
has said to the jury that the cir
cumstances must not onl ly be con-
sistent with the guilt of the accused,
but must exclude every reasonable
hypothesis but that of guilt. And
he elsewhere explains to them the
law which should govern them in
weighing evidence, and especially
in their finding on the defendant s
hypothesis of an alb.
1t is insisted, however, that the
explanatory language of the judge,
Immediately following the clause
just referred to, qualified that part
of the charge, and makes the whole
paragraph amount to no more than
the repetition of the charge upon
the point of a reasonable doubt.
The defendant was entitled to both
charges. Lawless VS. state, A Lea,
l73; Turner VS.. state, 4 Lea, 206
And so his honor told the jury what
he meant by the closing words of the
| clause was, that the circumstances
must be sufficient to convince the
mind and conscience of the jury of
the guilt of the accused beyond a
reasonable doubt, to the exclusion
of every other idea or hypothesis.
He so understood it, when he told
the defendants counsel that he had
already charged their five PROPOSE
tions, and they so understood the
charge, or they would have requested
a modification of the language
The charge, taken together, admits
of no ether construction than that
the jury must be satisfied of the
guilt of the prisoner beyond a
reasonable doubt, and to the ex
clusion of every other reasonable
hypothesis.
The last of the requested PROPOSE
tions is, that the jury should not
convict on circumstantial evidence
unless it was as fully satisfactory to
their minds as would be the posi-
tive swearing of one credible witness
that he saw the defendant kill the
deceased. 1t is conceded by the
counsel of the prisoner that they
have been unable to find any
authority in support of the PROPOSE
tion. The authorities are, in fact,
to the contrary, Cicely VS.. state,
13 SIN. and NJ. 202; Jane VS.. COM
monwealth, 2. Met. (Ky.) 80. The
reason is obvious. The instruction
only says in different form that
the jury ought not to convict unless
every reasonable doubt were ex-
cluded, and therefore unnecessary.
If it means more, it would require
certainty which would exclude cir
cumstandal evidence altogether.
And the danger is that to many
minds, it would appear to fairly i'm
ply the higher degree of certainty.
1t would, moreover, require the
juror not only to enquire into the
state of his mental convictions upon
the question of reasonable doubt,
but to go further and institute
comparison between the degree of
conviction produced by the evidence,
and that which would be the result
of the testimony of one direct wit
ness. 1t would be- to use the
language of the supreme court of
Mississippi, in the case cited above,
''apply a rule which is neither
practical nor altogether safe" No
such instruction has ever been sane
toned in this state, nor has any
good reason been advanced why it
should not be adopted.
To show a motive for the pris-
oners enmity to the deceased, the
attorney general read the record of
a presentment against one George
w. Clark, for carrying a pistol,
made by the grand jury upon the
testimony of the prisoner, and the
record of an indictment against the
same person for an assault and bat
terry on the prisoner, who was the
prosecutor. The minutes, of the
court, under, the date of November
| 30, 1880, contained an entry of a
judgement discharging the defend
ant Clark from the first charge upon
a noble prosique by the state, and the
indictment. The state introduced
the judges trial docket at the
November term of the court, and
read from it the docket entry of the
case for carrying a pistol, and the
| Judges memoranda thus:
14S.-The state VS.. G.. w. Clark,
C. pistol. Nov. Mistrial: mol. pros.
| Both.
The state further proved by wit
nesses, without objection, that Clark
was tried under the presentrnent for
carrying a pistol; that the trial was
had on Nov. 80, 1880; that the pris-
oner was the principal witness for
the state; and that the deceased a-d
two or three other persons were
introduced as witnesses by the de
fense, and swOre that they were &C
quainted with the general character
of the prisoner; thas his character
was bad, and that they would moi
believe him on oath; that the jury
failed to agree; and that the prisoner
was greatly enraged against the de
ceased because of his testimony.
The bill of exceptions, after set
ting out the record and proceeding:
, in the two prosecutions against
. I I Al.