ON SUGGESTION OF ERROR In Banc. Jan. 23, 1950, (43 So.2d 887). In the suggestion of error appellant manifests considerable concern that the original opinion herein, in quoting from McCann v. State, 13 Smedes M. 471, has changed the law of this state with respect to the rule governing juries in cases of circumstantial evidence. In citing that case we were primarily emphasizing the fact that convictions may rest entirely upon circumstantial evidence if it rises sufficiently high in probative power to satisfy the conscience and understanding of the jury. But appellant singles out one brief quotation from the McCann case to the effect that circumstantial evidence "is sufficient if the circumstances produce moral certainty, to the exclusion of every reasonable doubt" and apprehends that since this quotation omitted the additional words "and every reasonable hypothesis other than guilt" we failed to apply the proper rule in the decision of this case.
In the original opinion, we cited Sauer v. State, 166 Miss. 507,144 So. 225, 229, and that decision was before us in the consideration of this case and was one of the authorities upon which our conclusions were based. In considering the propriety of an instruction granted to the State in that case, this Court said: "It is always *Page 96 true that the jury are not required to know facts absolutely. They must believe from the evidence, and their belief must arise from the evidence, or the want of evidence, and the jury must not use anything except that which is offered in evidence. The latter part of the instruction clearly informed the jury that they are only required to believe, from the evidence, beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis, that the defendant was guilty. Applying the rule as to the sufficiency of circumstantial evidence, it must be a reasonable hypothesis. Circumstantial evidence does not have to exclude every possible doubt, but only every reasonable doubt, or reasonable hypothesis."
Our function as an appellate court is to examine the record of the trial and determine whether any error of law was committed by the trial court, and, in that connection, whether the facts in evidence are sufficient to sustain the jury's verdict. We have again considered the record before us and we are of the unanimous opinion that the jury was warranted, upon the evidence, in finding appellant guilty. We are of the further opinion that no error of law, sufficient to justify a reversal, appears in the record.
The crucial test here is not whether our original opinion may have contained an erroneous statement or conclusion of law, which in our judgment it did not, but whether such error was committed in the trial below. The greater portion of the Suggestion of Error deals with the omission of the words "reasonable hypothesis" in the original opinion herein. Examining the record on this point, we find that the instructions to the jury clearly recognized it; five times the instructions for the State told the jury that they must "believe from the evidence beyond all reasonable doubt and to the exclusion of every reasonable hypothesis other than guilt" that the defendant is guilty. The appellant obtained the following instruction:
"The court instructs the jury for the defendant that *Page 97 although circumstantial evidence is admissible in any case, still in its application the jury must use the utmost caution and vigilance, and it is not sufficient to convict where, assuming all to be proved in behalf of the State which the evidence tends to prove in that behalf, there remains within the evidence or the want of evidence some other reasonable hypothesis consistent with innocence, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth. The circumstances proved may produce a strong suspicion of guilt, but that is insufficient to justify a verdict of guilty at your hands."
In six other places in appellant's instructions to the jury they were charged on the subject of reasonable hypothesis. In addition, she obtained the usual instruction on the proposition of "two reasonable theories"; another that her version, if reasonable, must be accepted as true unless substantially contradicted in material particulars by a credible witness or witnesses or by the physical facts or by the facts of common knowledge; another which is commonly called the "sinker" instruction to the effect that it is the duty of each individual juror to decide the issues for himself and to arrive at his own verdict even though every other member of the panel may disagree with him; another on the subject of reasonable doubt; another on the presumption of innocence; and another that the indictment is no evidence against her. The jury was fully and correctly charged upon the applicable principles of law, and particularly upon the subject of reasonable hypothesis in cases based upon circumstantial evidence. Since we find no error in the record, and since in our opinion the evidence is sufficient to sustain the verdict, the Suggestion of Error is overruled.
Suggestion of error overruled.
LEE, J., took no part in the consideration of and decision on the Suggestion of Error. *Page 98