delivered the opinion of the court.
After a careful examination of this case, we can find nothing in the record which would justify a reversal. Appellant was indicted on the 27th clay of April, 1911, in Forrest county, for the murder of one Wallace Crimes. Wallace Crimes, a young boy fourteen or fifteen years old, was murdered on the 26th day of December, under circumstances which were cruel in the extreme, and which afforded no justification to the party -committing the crime. The facts developed on the trial fully warrant the verdict of the jury convicting appellant, and under the circumstances the punishment is a merciful one; appellant having been sent to the penitentiary for life. This boy was murdered about daylight,, on the morning of the 26th of December, 1910, in the lot where he had gone for the purpose of milking the cows, preparatory to- taking a hunt that day.
The only feature of this record which we desire to discuss is the error of the state in obtaining the following instruction, being instruction No. 1: “The court instructs the jury, for the state, that if they believe from all the evidence before them, beyond every reasonable doubt arising from the evidence, or from the lack of -evidence, that Henry Benson, the defendant, willfully, feloniously, and of his malice aforethought, killed and murdered Wallace Crimes, a human being, in the county and state alleged in the indictment, then they should find the defendant guilty as charged. ’ ’ The- state should set the example of giving clear instructions as to the law •applicable to every case, where a person is on trial for any offense committed against the laws 'of the state. This instruction is* erroneous and confusing in the extreme. The state attempts to tell the jury that “if they believe from all the evidence before them, beyond •every reasonable doubt arising from the evidence,” that defendant is guilty, they should so find, and here the state’s instruction should have stopped; but it goes *20further, and tells the jury “that if they believe from all the evidence, beyond every reasonable doubt arising-from the lack of evidence,” they should also convict. In the first place, the instruction is so involved as that it would take a college professor to interpret its meaning; and, in the second place, it gives the jury a false guide to be used by them in weighing the testimony. The lack of evidence is a thing beneficial to the cause of the defendant, and the jury should be told this in plain terms, if an instruction is asked on this line. If there is a lack of evidence on the part of the state, there is a failure of proof. Evidence, of course, need not be positive, but it may be circumstantial; but a “lack of evidence” means a lack of both kinds. How can the jury ever be convinced- “from all the evidence before them, beyond every reasonable doubt arising from the lack of evidence?” If there is a “lack of evidence,” there is no basis for the jury to rest their conviction on, since that conviction must find its predicate on evidence, and not on the “lack of evidence.”
This is a close case on its facts, and depends largely upon circumstantial evidence, and if the defense had rested its case after the giving of the above instruction for the state, we would have been compelled to reverse; but we assume that the jury who tried this case were intelligent men, and, taking all the instructions together, whatever error was committed in giving the state’s instruction was cured by the instructions asked by the defendant. The defenses asked and received oyer thirty instructions, and in numerous instances the reasonable doubt theory is pressed to its extreme limit, and put in every possible phase that the jury could get it; and under these circumstances the state’s instruction does not constitute such error as would justify a reversal, and the case is affirmed. Affirmed.