A special instruction was given the jury at the request of counsel for the prosecution, as follows: “ If the jury believe from the evidence, beyond a reasonable doubt, under the rules given heretofore, that the defendant participated in and was present at the murder of Henry Reynolds, consenting to the same, and knowing and agreeing with others that the same should be done, it is immaterial whether he struck the fatal blow or blows which resulted in the death of deceased (if he died) ; under such circumstances he would be a principal, and as guilty as if he had actually inflicted the wounds.” The legal proposition enunciated is not questioned ; but it is denied that there was any testimony warranting, much less calling for such instruction, and on this account it is zealously claimed that the instruction was not only erroneous, but also calculated to mislead the jury.
An examination of the evidence will, we think, show that the instruction was not inapplicable to one view of the facts. Just before the killing, several parties agreed to go to the *121lime-house to play cards. Johnson and Caver left together, and shortly afterwards the deceased and defendant. The dead body was found a short distance from the lime-house. Its position when found, and the other physical facts disclosed, might legitimately indicate that the murder was not in fact committed at the point on the railroad track where it was lying when discovered. A reasonable inference deducible from the surroundings was, that the murder was committed elsewhere than at that particular spot, and that the body was afterwards carried to and deposited where found. If so, then others must have aided in its removal, since it could scarcely have been conveyed from one place to another by defendant alone, without leaving other signs and different evidences of that fact upon the ground. Emmet McPherson, who was one of the first to. examine the body after it was discovered, saj^s “he had the appearance, in every way, of a body laid down where we found him.” From the surroundings, the jury might naturally conclude that other parties were connected with defendant in the transaction, and if so, it was the duty of the court to inform them of the law with reference- to defendant’s liability for acts committed in connection with other guilty participants.
The evidence is circumstantial; and in an able brief, accompanied by a most forcibly written argument, it is insisted by counsel for appellant that, under the law and the facts, it is wholly insufficient to sustain the verdict and judgment. We have spared no pains in considering it in connection with the views of counsel, and we are constrained to say that we differ with them in the conclusions arrived at. .This defendant and deceased had a difficulty on Saturday night— about a trifling matter, it is true, but one notwithstanding which- seems to have aroused defendant to an extent that caused him to indulge in. serious threats against the deceased. This may not have been the only motive for the homicide ; still, it shows that bad feeling had existed but recently before between the parties. Defendant is the last person seen on *122Monday night with deceased, going in the direction of the fatal spot where the body is afterwards found. His subsequent conduct is strange, if not inexplicable. When he returns to his boarding-house, he asks for water, and makes a noise as though he was washing. Next morning he trades clothing with Ligón, and blacked his boots, a thing he had not done in the five or six weeks he had boarded with the witness. He did not want any breakfast, and only drank a cup of coffee. He said he could not pay Roxie what he owed her, because he got broke the night before, and that the boys had won all his money ; but he buys whiskey, and paid for beef for the witness. Afterwards, on the same morning (Tuesday), at Maddox’s, about dinuer-time, he.takes out the pocket-book identified as belonging to, or exactly like one owned by the deceased, and after taking eight or nine dollars out. of it, gives it to Martha Garrett as a present. When asked where he got so much money, he said he “ beat a d—n nigger out of it last night.” After the inquest was held, he was anxious to know of the witness Pearce what he had sworn, and said, “ If any of you d—n niggers swear against me about this matter, I’ll kill you.” On Tuesday night he wanted to leave and go to his family in Palestine. Upon these and other facts narrated by the witnesses, we are of the opinion the jury were warranted in coming to the conclusion, beyond a reasonable doubt, that whatever other parties, if any at all, may have had a hand in the murder, this defendant was present and participated in the deed, if in fact he did not commit it alone and unaided.
Counsel indulge in some very ingenious hypotheses, based upon the facts, in their effort to show that there are reasonable probabilities, as well as possibilities, that others might have committed the deed, and that the jury should have entertained a reasonable doubt as to defendant’s guilt. The plausibility of the argument does' great credit to the skill and ability of the learned counsel. But there were no inculpatory facts pointing to other parties, and, as we think, enough *123agai list this defendant to establish most satisfactorily and certainly his guilt, even under the special instruction requested by defendant and given by the court, in these words : 4 4 Before you can convict on circumstantial evidence aloiie, it devolves on the prosecution to establish defendant’s guilt,— that is, to identify him with the killing, — which can be done by á chain of circumstances. Each link of the chain tending to connect the defendant with the killing must be proven to your satisfaction, beyond a reasonable doubt; and when there is a link wanting in the chain, or not so established beyond a reasonable doubt, in identifying defendant with the killing of Henry Reynolds, the jury will acquit. To justify a conviction upon circumstantial evidence alone, the facts relied on must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. It is not sufficient that circumstantial testimony tends closely to prove the fact and cast suspicion on defendant, and establish a probability that defendant did the deed, but the evidence must exclude the belief that he did not, and that some other person might have done it, or that deceased came to his death by some other means.”
The argument of learned counsel, carried to its legitimate extent, would seem to demand that the State, in a case of circumstantial evidence, was bound to establish that it was impossible that the accused could be innocent, and that nothing short of this would answer the demands of the law. Such a degree of certainty in proof is scarcely attainable, and never requisite in any case. 44 To say that the proof in any case must show the innocence of the accused to be impossible, would necessarily be to say that it must demonstrate his guilt, since nothing short of such demonstration could exclude the possibility of innocence. The degree of certainty upon which the jury are justified in convicting, termed moral certainty, does not amount to demonstrative certainty of guilt, or certainty which excludes the possibility *124of innocence ; on the contrary; it supposes and entirely consists with the possibility of innocence, and is itself nothing more than the comparatively measurable, limited degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it — a certainty of guilt, not indeed beyond all possible or imaginary doubt, but beyond all reasonable doubt.” The People v. Brotherton, 47 Cal. 388 ; Irvin v. The Plate, 7 Texas Ct. App. 109 ; 1 Greenl. on Ev., sect. 1.
The evidence being sufficient, and no material error having been made to appear, we are of opinion that the judgment should be affirmed, and it is affirmed.
Affirmed.