Poole v. State

231 Miss. 1 (1957)

94 So. 2d 239

POOLE v. STATE

No. 40417.

Supreme Court of Mississippi.

April 15, 1957.

*2 L. Percy Quinn, Noel W. Buckley, Jackson, for appellant.

*3 John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.

ROBERDS, P.J.

Poole was convicted of burglary and sentenced to serve a term of five years in the state penitentiary.

(Hn 1) He contends on this appeal that the verdict was against the great weight of the evidence, and that, therefore, *4 the case should be reversed and remanded. (Hn 2) This question was not raised by motion for a new trial, and in the absence of such motion the contention will not be considered by this Court. (Hn 3) We cannot put the trial court in error as to a matter upon which it was not requested to pass. Flynn v. Kurn, 183 Miss. 413, 184 So. 160; Saenger Theatres, Inc. v. Faulk, 193 So. 910 (Miss.); Clark v. State, 206 Miss. 701, 40 So. 2d 591; Gilmer v. Gunter, 46 So. 2d 447 (Miss.). We might add, however, that we have carefully reviewed the testimony, and it is amply sufficient to sustain the verdict.

(Hn 4) Poole says that the trial court committed error in that no instruction granted him contained the necessary qualification that in order for his guilt to appear beyond every reasonable doubt the evidence had to exclude every reasonable hypothesis consistent with his innocence. The contention is not well taken for these reasons: First, the trial judge was not requested to grant such an instruction; Second, the guilt or innocence of Poole did not rest entirely upon circumstantial evidence; and, Third, Poole requested and was granted nine instructions by which the jurors were told that in order to convict him the jurors need only believe him guilty beyond every reasonable doubt from the evidence, no instruction containing the qualification that the evidence had to exclude every other reasonable hypothesis. An accused cannot complain of the granting of instructions which are in harmony with those requested by and granted to him. Wilson v. Zook, 69 Miss. 694, 13 So. 351; National Gas Company v. Johnson, 219 Miss. 1, 67 So. 2d 865.

We find no error in the other contentions made on this appeal.

Affirmed.

Hall, Holmes, Ethridge and Gillespie, JJ., concur.