[8] In our opinion, the above dissents are quite persuasive. In the instant case, the members of the jury were told, in other instructions given, that they could convict only upon strong and convincing evidence. For example, they were instructed as follows:
"You are further instructed that no one should be convicted upon mere suspicion, or because he may have had an opportunity to commit the crime; but the evidence should be so strong and convincing in your minds as to satisfy you beyond a reasonable doubt and to a moral certainty that the defendant is guilty, and unless you find from the evidence that the defendant has been proved guilty beyond a reasonable doubt and to a moral certainty, and that each and every element embraced in either or both of the crimes charged, or of the lesser ones therein included, has been proved beyond a reasonable doubt, then you should find the defendant not guilty."
The necessity of evidence in order to convict was again stressed in an instruction primarily concerned with circumstantial evidence:
"The Court instructs you that while you must be convinced of the guilt of the defendant beyond any reasonable doubt, from the evidence, in order to warrant a conviction, the proof need not be the direct evidence of persons who saw the offense committed. The acts constituting the offense *Page 872 and connecting the defendant therewith may be proved by circumstances, that is, circumstantial evidence. Circumstantial evidence is legal and competent in criminal cases and if it is of such a character as to exclude every reasonable hypothesis other than the guilt of the accused, it is entitled to the same weight as direct and positive testimony. What is meant by circumstantial evidence is the proof of such facts and circumstances connected with or surrounding the commission of the crime charged, as tend to show the guilt or innocence of the party charged, and if these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt and to exclude every reasonable hypothesis of innocence, then such evidence is sufficient to authorize the jury to find the defendant guilty."
Surely, it was unnecessary to further tell the jury that a reasonable doubt might arise from "lack of evidence." We think that this is well shown in the dissenting opinions above quoted from the case of State v. Anderson, supra. [9] In the case of State v. Herwitz, supra, the instruction contended for was of the first importance to the defense. Courts may take judicial notice of their own records. We have examined the record in that case, studied the briefs filed therein, and read all the evidence in the cause. In that case, the prosecuting witness claimed, and testified, that he had given the defendant eight hundred dollars to buy some gold currency which at that time could be secured only by paying a premium, and that the defendant had not procured him the gold, nor would he return the eight hundred dollars. No evidence whatever was introduced to support his claim. His word was the only evidence tending to prove the defendant's guilt. There was in that case, as distinguished from this, a real and fatal lack of evidence sufficient to raise many doubts, and, in so far as that case, already discredited by the Costello case, supra, tends to lay down a general rule, that a refusal to give an instruction in a criminal case to the effect that a reasonable doubt may arise from "lack of evidence," constitutes reversible error, we now reverse it. *Page 873
Finding no error in the record, we conclude, as did the trial court, that the appellant is not entitled to a new trial. The judgment and sentence of the trial court is, therefore, affirmed, and this cause remanded to the jurisdiction of the superior court of Thurston county for such further proceedings as the laws and statutes of the state prescribe and require.
JEFFERS, C.J., STEINERT, MALLERY, and GRADY, JJ., concur.
HILL and BEALS, JJ., concur in the affirmance of the judgment.