OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
MASON, J.:In a petition for a' rehearing the defendant’s attorneys have agáin presented at considerable length and with much force the grounds relied upon for a reversal. These have all been reexamined with care, but the court remains of the opinion that no reversible error has been shown. Some of the contentions to which more specific attention has now been directed perhaps require fuller discussion than they received in the original opinion. It was there said that although many of the instructions asked in behalf of the defendant were correct statements of the law no complaint could be made of their refusal, because the charge of the court included everything really necessary to be said on the subjects to which they related. It is now pointed out that the instructions given with regard to circumstantial evidence did not include the statement that the circumstances relied upon to establish the defendant’s guilt must all be consistent with *414each other. The correctness of such statement as a proposition of law of course cannot be questioned. Its truth is so obvious, however, as to make its omission from the charge a matter of doubtful importance under any circumstances. There was nothing in what was said to the jury to suggest that a conviction might be based upon facts that were inconsistent with each other. They were informed in set terms that in order to convict upon circumstantial evidence they, must find each essential fact in the chain of circumstances to be true beyond a reasonable doubt. They could not by the evidence be convinced beyond a reasonable doubt of the existence of two separate circumstances or conditions that were inconsistent with each other. A jury may be given credit for knowing this as well before as after it is told to them. It is true that in stating what is essential to a conviction upon circumstantial evidence it is usual to mention the necessity that all the matters relied upon shall be consistent with each other, but this is done ordinarily by way of recital or assumption. The accepted formula is that the facts proved must be not only consistent with each other and with the defendant’s guilt, but inconsistent with any other reasonable hypothesis. All reference to the requirement that the facts should be consistent with each other is sometimes omitted, however, doubtless on the theory that it is superfluous. (See The State v. Asbell, 57 Kan. 398, 411, 46 Pac. 770; The State v. Andrews, 62 Kan. 207, 61 Pac. 808; Burrill, Circum. Ev. 737; Blashfield, Instr. to Jur. § 314.) We cannot regard its omission in the present case as material error, especially as no separate request was made covering this particular point. In four of the instructions asked with regard to the effect of circumstantial evidence the phrase in question was used, and in five others on the same subject and substantially of the same scope it was omitted. The matter was never presented to the court as an independent proposition.
Complaint is also made that the jury were not suffi*415ciently advised concerning the character and effect of the legal presumption of the defendant’s innocence. This presumption amounts to something more than a requirement that the state must take the initiative and prove its case beyond a reasonable doubt. It is tantamount to affirmative evidence, and it is right that the jury should so understand it. Five instructions were asked in which this matter was referred to, but no one of them stopped with the mere statement of the rule. In each there was an admonition to observe it or a direction how to apply it that was at least unnecessary and gave the instruction something of the aspect of an argument for the defendant. The distinction between the presumption of innocence and the requirement that the prosecution shall prove its case beyond a reasonable doubt is fully treated in Coffin v. United States, 156 U. S. 432, upon which case the defendant places great reliance. There a conviction was reversed because of the refusal of the trial court to give an instruction reading as follows:
“The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt.”
In the present case the following language was embodied in the charge:
“The law presumes and you must presume him [the defendant] to be innocent of the crime with which he is charged and each and every, material ingredient thereof until he is proved guilty beyond a reasonable doubt by competent evidence, and if the evidence in this case leaves upon the minds of the jury any reasonable doubt of the defendant’s guilt the law makes it your duty to acquit him.”
This must be regarded as a sufficient indication that the presumption of innocence is a positive force on the side of the defendant, at least in the absence of a re*416quest for a more explicit statement of that principle disassociated from other matters. Substantially the same language has been held sufficient even where a specific request was made to instruct that the presumption had the force of evidence, as in the eases here quoted from:
“A still further contention is that the court erred in refusing the eighth instruction asked by defendant. The instruction read as follows: ‘The court instructs the jury that the law presumes the innocence, and not the guilt, of the defendant, and this .presumption is to be taken by you as evidence in the defendant’s behalf. This presumption of innocence goes with the defendant throughout the trial and protects him at- every stage of the proceedings, entitling him finally to an acquittal at your hands, unless overcome by other evidence which satisfies you of his guilt beyond a reasonable doubt.’ It was refused as asked, the words in italics stricken out, and then given. While the presumption of innocence in favor of a defendant upon trial for a criminal offense is a rebuttable presumption, it requires evidence to overcome it, and to show his guilt beyond a reasonable doubt before he can be convicted, yet the calling it evidence adds no significance to its force or effect. After all, it is still a presumption, which the law indulges in his favor. No error was committed, we think, in the refusal of this instruction as asked.” (State v. Hudspeth, 159 Mo. 178, 209, 60 S. W. 136.)
“Another instruction refused by the court was as follows: ‘The law in this case presumes '. . . that every man is innocent, . . . and this legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence to the benefit of which the defendant is entitled.’
“The judge had already of his own motion charged the jury that ‘the law presumes every man innocent until he is proven guilty by proper legal evidence, and if you have any reasonable doubt as to the guilt of the defendant, arising from the evidence, you shall acquit him.’ . . . The instruction given was a correct exposition of the law. . . . As to the special language of the instruction asked, that ‘this presumption .of innocence is to be regarded by the jury in every case as a matter of evidence to the benefit of which the defendant is entitled,’ we are of the opinion that there *417was no error in the failure of the judge to use it. It is true that Mr. Greenleaf uses the same language in one place in section 34, volume 1, of his work on Evidence, and refers to State v. Pike, 49 N. H. 398. Considering the whole of section 34 and the New Hampshire case, we see nothing in either that makes the use of the language in question essential or indispensable, nor do we think its use would have strengthened the instruction given. The law presumes, according to all of the authorities, every man innocent of any crime with which he may be charged until and unless the testimony shows beyond a reasonable doubt that he is guilty of it. The charge is in the usual language and is sufficient, and there was consequently no error in the refusal to give the one asked by the defendant’s counsel.” (A. L. Wooten v. The State of Florida, 24 Fla. 335, 353.)
It is contended that the state was permitted to introduce evidence the purpose and effect of which was to suggest to the jury that the defendant had been guilty of other crimes than that for which he was on trial. The court is of the opinion, however, that the evidence was not offered for that purpose and had no substantial tendency in that direction.
Upon the entire record the defendant appears to have had a fair trial. The petition for a rehearing is denied.