Smith v. State

delivered the opinion of the court.

One of the instructions granted in the court below, at the request of the state, is as follows: “The court instructs the jury, for the state, that a person may be proved to be a common prostitute by circumstances, and *286if the jury believe from the evidence in this case, beyond every reasonable doubt, that the defendant is a common prostitute, then it is their duty to find the defendant guilty as charged, although there may be no direct evidence of sexual intercourse.” The granting of this instruction was fatal error, for the reason that “it omits the necessary qualification that circumstantial evidence, in order to prove guilt beyond a reasonable doubt,, must exclude every other reasonable hypothesis than that of guilt.” Williams v. State, 95 Miss. 671, 49 South. 519; Permenter v. State, 54 South. 949; Irving v. State, 56 South. 377.

• The judgment heretofore entered, therefore, is set aside, the judgment of the court below reversed, and the-cause remanded. Reversed and remanded,