Whitney

The evidence is not contained in the record. In reviewing an instruction it will be assumed that the state of the evidence was such as to warrant the instruction, if it would be legal and proper in any conceivable state of the evidence; but in the absence of the evidence from the record it will not be assumed that evidence was introduced which would require a modification or qualification of any instruction as given. We cannot, therefore, determine from the record before us that the fifth instruction required any qualification or modification.

At the request of the District Attorney the Court instructed the jury that “ a juror has no right to disbelieve the evidence as a juror while he believes it as a man. If, therefore, from the evidence in the case, you believe as men that the defendant is guilty, you should as jurors believe him guilty.” In Commonwealth v. Harman, 4 Barr. 269, Mr. C. J. Gibson, in commenting upon circumstantial evidence, said that “ all evidence is more or less circumstantial, the difference being only in the degree ; and it is sufficient for the purpose when it excludes disbelief—that is, actual and not technical disbelief; for he who has to pass on the…