
    Thornton Runnels v. State of Mississippi.
    [50 South. 499.]
    1. Ceiminal Law and Procedure. Robbery. Reasonable doubt of guilt. Two theories of ease. Instructions.
    
    A requested instruction in a criminal case so drawn as to tie, if literally acted upon by tbe jury, equivalent to a peremptory instruction for tbe defense, should be refused where defendant is not entitled to an instruction peremptorily directing an acquittal.
    
      2. Same. Same.
    
    The court having correctly and fully instructed the jury to acquit the defendant unless his guilt had been proved beyond every reasonable doubt arising from the evidence or the want of it, reversible error will not be committed by refusing an instruction to the effect, that, if there arise from the evidence two reasonable theories, one favorable to the state and the other to the defendant, it is the duty of the jury to acquit, although the theory favorable to the state is the more reasonable and better supported by evidence.
    From tbe circuit court of, first district, Hinds county.
    HoN. Wiley H. Potteb, Judge.
    Runnels, tbe appellant, was indicted and tried for robbery, was convicted and sentenced to tbe penitentiary for a term of three years, and appealed to tbe supreme court.
    Tbe principal assignment of error was predicated of tbe refusal of tbe court below to grant tbe sixth instruction requested by appellant. This instruction is quoted in tbe opinion.
    
      Wiley J. Oroom and Robert P. Thompson, for appellant.
    'We contend that tbe court below committed fatal error, in refusing tbe sixth instruction asked by tbe appellant, and we are warranted in making this contention, under tbe decision of this ■court rendered in tbe case of Thompson v. State, 83 Miss. 287, •35 South. 689, in which this court passing upon tbe refusal of the trial court, in that case to grant an instruction to tbe appellant, identical with the sixth instruction, said, “It has always been, is now, and we trust shall ever be, the law in criminal cases, that where there are two reasonable hypotheses arising out of and supported by the evidence, it is the duty of the jury to adopt the hypothesis consistent with innocence, even though the hypothesis of guilt be more probable.” And this court reversed the judgment in the Thompson case, supra, because of the refusal of the trial court to grant said instruction.
    The instructions granted to the appellant in the Thompson case on the law of reasonable doubt were much stronger than those granted to the appellant in the instant case, and yet this court reversed judgment in the Thompson case, because this sixth instruction was not given, wherefore it can not now be regarded in this case, that if error was committed, in refusing said instruction, it was cured by the trial court in granting other instructions to the appellant, announcing the law of reasonable doubt.
    
      George Butler, assistant attorney-general, for appellee.
    The instruction here in question is in almost the exact language of the instruction quoted in Thompson v. State, 83 Miss. 287, wherein it was said that where there are two reasonable hypotheses arising out of, and supported by the evidence, it is. the duty of the jury to adopt the one showing innocence, though the hypothesis of guilt be more probable.
    The instruction as tendered was erroneous and did not announce the correct legal principle. In almost every case that goes before a jury, there are two reasonable theories that arise out of, and are supported by the evidence. Thus in a homicide case, five witnesses may testify for the state that defendant shot deceased without excuse or justification, and at a time when deceased was making no hostile demonstration, and when defendant was in no real or apparent danger, etc. Three, or more witnesses may testify for defendant that at the time of the firing of the fatal shot the deceased was advancing on defendant with .a deadly weapon, etc. Here we have a reasonable theory, arising out of the evidence,, supporting a theory of guilt, and another reasonable theory, arising out of evidence, supporting a theory of innocence. In the case stated, the jury may believe beyond the shadow of a doubt the testimony for the state, but under the instruction they are bound, under their oaths, to return a verdict of not guilty. There is rarely before this court a case in which this, or some similar situation is not presented. The instruction commands an acquittal in each case.
    There may, in any case,- arise a reasonable theory of innocence without the existence of a reasonable doubt of guilt. In other words, the testimony may be reasonable, the theory of the defendant may be reasonable, the reasonable theory may be supported by reasonable testimony, and yet there not exist a reasonable doubt of guilt.
    The true rule is that if there are two< reasonable theories arising out of and supported by the evidence, one favorable to the state, and the other favorable to the accused, and the jury are in doubt which is true, then the jury may accept the one favorable to the defendant.
    This is simply another way of stating the proposition that the jury must give the defendant the benefit of the reasonable doubt. They are not bound to give him the benefit of a reasonable theory unless there exists in the minds of the jury a reasonable doubt of the ultimate fact to be proven, that is, the guilt of the accused.
    The instruction authorized an acquittal though the jury may believe beyond a reasonable doubt that the defendant is guilty. It authorizes an acquittal on a reasonable theory of innocence, though the jury may have no reasonable doubt of guilt.
    Our court has twice had this subject before it since the decision in the Thompson case, and in both cases held, in one expressly and in the other inferentially, that the point made by appellant only applies where the jury are in doubt. This was expressly beld in Fugate v. State, 85 Miss. 86, and inferentially held in the case of Windham v. State, 91 Miss. 845.
    Granting tbe correctness of tbe instruction, its refusal will not work a reversal in tbis case because tbe jury were fully instructed as to their duty, to acquit if there was a reasonable doubt of tbe defendant’s guilt. Tbis proposition was embodied in every instruction that was given in tbe case. It certainly ■cannot be said that tbe sixth instruction did more than state tbis proposition in a different way.
    Argued by W. J. Groom, for appellant, and by George Butler, .assistant attorney-general, for appellee.
   Smuth, J.,

delivered tbe opinion of tbe court.

In tbe court below tbe defendant requested and was refused tbe following instruction: “Tbe jury are instructed, for tbe defendant in this case, that if there arise from tbe evidence two reasonable theories, one favorable to tbe state and tbe other favorable to tbe defendant, it is their duty to accept tbe theory favorable to tbe defendant and acquit him, although tbe theory favorable to tbe state is tbe more reasonable and supported by tbe stronger evidence.”

Even if it should be beld that tbis instruction correctly announced' tbe law, its refusal does not constitute reversible error, for tbe reason that tbe court charged the jury over and over again, in several instructions, to give tbe defendant the benefit ■of every reasonable doubt," and that they could not find him guilty unless bis guilt was proven beyond all reasonable doubt. The defendant was therefore given tbe full benefit of this principle of law." Tbis instruction seems to have been approved, along with several others, in tbe case of Thompson v. State, 83 Miss. 287, 35 South. 689. That case was properly decided, independent of what view tbe court may have taken of this particular instruction.

It rarely happens on the trial of a criminal case that two reasonable theories, one favorable'to the state and the other favorable to the defendant, do not arise out of and to some extent find support in the evidence. If acted upon literally by juries, this instruction in most cases would amount to a peremptory instruction to find the defendant not guilty. The court below, therefore, not only committed no reversible error in refusing this-instruction, but committed no error at all.

Affirmed.  