was not placed under subpoena does not raise a presumption of bad faith or amount to such a lack of diligence as of itself to forbid the use of his testimony given at a former trial.4 212. Disability or Death.-In the case of illness or insanity or other physical or mental disability there has been considerable contrariety of opinion. According to the rule followed in the better reasoned cases mere temporary illness or disability of the witness, where there is prospect of recovery, is not sufficient to justify the reception of the former testimony, but it must appear that the witness is in such a state, either mentally or physically, or both, that in all reasonable probability he will never be able to attend the trial. When this fact satisfactorily appears it is considered that the situation is practically the same as if the witness were dead. The right of an accused to be confronted by the witnesses against him is not violated by admitting testimony given at the preliminary examination or on a former trial for the same offense by a witness since deceased, whom the accused had the opportunity to confront and cross-examine at the preliminary examination or former trial. And where a witness who testified on a former trial is dead, and that fact is shown at a subsequent trial, the admission of the evidence given on such former trial does not violate the rule against hearsay evidence.7 213. Proof of Death, Disability or Absence.-Before testimony given by a witness at a former trial or on preliminary proceedings can be admitted in evidence, however, a sufficient foundation must be laid for its admission. It must be shown either that the witness is dead, or beyond the jurisdiction of the court, or on diligent inquiry cannot be found, or that some other circumstance exists authorizing the admission of such testimony.8 The sufficiency of the predicate 4. State v. Nelson, 68 Kan. 566, 75 Pac. 505, 1 Ann. Cas. 468. 5. Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; State v. Staples, 47 N. H. 113, 90 Am. Dec. 565; Robertson v. State, 63 Tex. Crim. 216, 142 S. W. 533, Ann. Cas. 1913C 440; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Notes: 61 A. S. R. 887, 888; 129 A. S. R. 40. 6. Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; State v. MeO'Blenis, 24 Mo. 402, 69 Am. Dec. 435 and note; People v. Elliott, 172 N. Y. 146, 64 N. E. 837, 60 L.R.A. 318; Brown v. Com., 73 Pa. St. 321, 13 Am. Rep. 740; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Notes: 25 L.R.A. (N.S.) 869; 1 Ann. Cas. 471. 7. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Territory v. Evans, 2 Idaho 651, 23 Pac. 232, 7 L.R.A. 646; Com. v. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608; State v. Staples, 47 N. H. 113, 90 Am. Dec. 565; State v. Hill, 2 Hill L. (S. C.) 607, 27 Am. Dec. 406; Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580; Robertson v. State, 63 Tex. Crim. 216, 142 S. W. 533, Ann. Cas. 1913C 440 and note; State v. King, 24 Utah 482, 68 Pac. 418, 91 A. S. R. 808; Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 A. S. R. 989, 13 Ann. Cas. 969. Notes: 65 Am. Dec. 676; 69 Am. Dec. 440; 61 A. S. R. 888. 8. Maloney v. State, 91 Ark. 485, laid for the purpose of admitting testimony given at a former trial is a matter resting largely within the discretion of the trial court, and in the absence of a showing that such discretion has been abused the appellate court will not interfere. Where it is sought to introduce the evidence of a witness taken on a prior trial, based on the fact of his death, this death must be shown as a fact; 10 and general reputation of the death of the witness is not sufficient to establish that fact so as to permit of the introduction of the testimony given by him at a former trial.11 Likewise the mere return on a subpoena that the witness could not be found or is dead is insufficient to justify the admission of evidence given on a former trial.12 214. Manner of Proving Former Testimony.-There is some conflict of opinion as to the degree of exactness required in detailing the testimony of a witness given on a former trial. Some courts are very and perhaps unreasonably strict in requiring that the whole of what the witness said be proven, insisting that the very words of the witness are to be recited. 18 It is admitted that this strictness will generally exclude such testimony; for if the evidence of a witness was minute and protracted and related to a transaction which was of a complicated character, it would seem to be almost incredible that any person should be able with certainty to recite it.14 A better rule declares that it is sufficient in such a case to prove by the witness called, substantially what the witness at the former trial testified upon the particular subject of inquiry.15 According to one view, in a criminal prosecution the statements must be proved by living witnesses who speak from their own recollection of what the deceased witness said; 16 and neither the notes of the presiding judge, nor of the attorney-general, nor any one else, of the evidence given on the former trial, are of themselves evidence.17 On the other hand it has been ruled that the notes of counsel, showing what a witness testified to on a former trial between the same parties touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel does not recol 121 S. W. 728, 134 A. S. R. 83, 18 Note: Ann. Cas. 1913C 464. 9. Note: 17 Ann. Cas. 77. (Mass.) 434, 29 Am. Dec. 608. 15. Brown v. Com., 73 Pa. St. 321, 13 Am. Rep. 740. Note: 29 Am. Dec. 612. Where the testimony of a deceased witness is reproduced, it is not com 10. Driggers v. U. S., 21 Okla. 60, petent to show that he had confessed 95 Pac. 612, 17 Ann. Cas. 66. 11. Note: 17 Ann. Cas. 76. 12. State v. McClellan, 79 Kan. 11, 98 Pac. 209, 17 Ann. Cas. 106; Driggers v. U. S., 21 Okla. 60, 95 Pac. 612, 17 Ann. Cas. 66. 13. Com. V. Richards, 18 Pick. (Mass.) 434, 29 Am. Dec. 608 and note. 14. Com. V. that his evidence was false. Craft v. Com., 81 Ky. 250, 50 Am. Rep. 160. 16. Kean v. Com., 10 Bush (Ky.) 190, 19 Am. Rep. 63; State v. De Witt, 2 Hill L. (S. C.) 282, 27 Am. Dec. 371. Note: 65 Am. Dec. 676. 17. State v. De Witt, 2 Hill L. (S. Richards, 18 Pick. C.) 282, 27 Am. Dec. 371. lect the testimony independently of his notes, and although he does not recollect the cross-examination.18 If such testimony was reduced to writing on a former trial, the writing is the primary evidence of it.19 Degree of Proof 215. Proof beyond Reasonable Doubt Generally.-In civil cases, where there is conflicting testimony as to the existence of any fact necessary to be established by either party, the jury are under the necessity of weighing the evidence, and of deciding in favor of that party on whose side the evidence predominates. But in criminal cases, the humanity of our law requires that the guilt of the accused should be fully proved. It is not sufficient that the weight of evidence points to his guilt, but the jury must be satisfied beyond a reasonable doubt of his guilt, or he must be acquitted.20 It is deemed in our law better that many guilty persons escape than that one innocent person should suffer. This maxim, obviously, is not founded upon any technical rule or system of pleading, but is based upon broad principles of humanity, which forbid the infliction of punishment until the commission of the crime is to a reasonable certainty established. It has received the sanction of the most enlightened jurists in all civilized communities, and in all ages; and with the increasing regard for human life and individual security, it is quite apparent that the energy of the rule is in no degree impaired. To sustain a criminal conviction it is not enough for the state to show that the prisoner indicted has violated the spirit of the statute, but the evidence must show beyond a reasonable doubt that he has offended against the 18. Brown v. Com., 73 Pa. St. 321, Mass. 180, 31 N. E. 961, 24 L.R.A. 13 Am. Rep. 740. 235; Burt v. State, 72 Miss. 408, 16 19. Dupree v. State, 33 Ala. 380, 73 So. 342, 48 A. S. R. 563; Bell v. State, Am. Dec. 422. Note: 65 Am. Dec. 676. 20. Holt v. United States, 218 U. S. 245, 31 S. Ct. 2, 54 U. S. (L. ed.) 1021, 20 Ann. Cas. 1138; State v. Marler, 2 Ala. 43, 36 Am. Dec. 398; Shields v. State, 104 Ala. 35, 16 So. 85, 53 A. S. R. 17; Letcher v. State, 159 Ala. 59, 48 So. 805, 17 Ann. Cas. 716; State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L.R.A. 125; Rice v. State, 35 Fla. 236, 17 So. 286, 48 A. S. R. 245; Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 A. S. R. 346; Hipp v. State, 5 Blackf. (Ind.) 149, 33 Am. Dec. 463; Findley v. State, 5 Blackf. (Ind.) 576, 36 Am. Dec. 557; State v. Hetland, 141 Ia. 524, 119 N. W. 961, 18 Ann. Cas. 899; Com. v. Trefethen, 157 89 Miss. 810, 42 So. 542, 119 A. S. R. 722, 11 Ann. Cas. 431; State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 A. S. R. 54; Schultz v. State, 88 Neb. 613, 130 N. W. 105, 34 L.R.A. (N.S.) 243; PeoDec. 642; Stokes v. People, 53 N. Y. ple v. McCann, 16 N. Y. 58, 69 Am. 164, 13 Am. Rep. 492; State v. Bundy, 24 S. C. 439, 58 Am. Rep. 262; Duthey v. State, 131 Wis. 178, 111 N. W. 222, 10 L.R.A. (N.S.) 1032; Trumble v. Territory, 3 Wyo. 280, 21 Pac. 1081, 6 L.R.A. 384; Hollywood v. State, 19 Wyo. 493, 120 Pac. 471, 122 Pac. 588, Ann. Cas. 1913E 218. See EVIDENCE. 1. State v. Bartlett, 43 N. H. 224, 80 Am. Dec. 154. very letter of the law. But there is no principle of law which requires, authorizes, sanctions, or approves the proposition that the greater the crime, the stronger is the proof required for conviction. While a juror should refuse to join in a verdict of guilty so long as he entertains a reasonable doubt as to the guilt of the defendant, yet an instruction is improper which is calculated to lead a juror to infer that the mere entertaining of a reasonable doubt, after a careful weighing of the evidence and full consultation, amounts to a limitation upon his right to join in a verdict of guilty. Fuller deliberation and consultation may clear away the juror's doubt and render it proper for him to concur in the conclusion of his associates.⭑ 216. Elements That Must Be Proved beyond Doubt. The law imposes upon the state the burden of proving the case set forth in the indictment or information, in all its parts, beyond a reasonable doubt, and the jury in their ultimate analysis of the entire evidence in the case must find, in order to convict, that all the conditions of guilt against the prisoner have been proved beyond a reasonable doubt. If the case is not so proved in every material part, then it is the duty of the jury to acquit. Each and every material and necessary fact upon which a conviction depends must be proved beyond a reasonable doubt. So in the case of circumstantial evidence each link in the chain of circumstances ordinarily must be proved beyond a reasonable doubt. It is not, however, proper for the court to designate any particular branch of the case, and tell the jury that unless it is proved beyond a reasonable doubt, they should acquit. The reason 2. Bailey v. State, 57 Neb. 706, 78 N. W. 284, 73 A. S. R. 540; Kinnan v. State, 86 Neb. 234, 125 N. W. 594, 21 Ann. Cas. 335, 27 L.R.A. (N.S.) 478. 3. State v. Johnson, 104 La. 417, 29 So. 24, 81 A. S. R. 139. 4. Knapp v. State, 168 Ind. 153, 79 N. E. 1076, 11 Ann. Cas. 604. 6. State v. Furney, 41 Kan. 115, 21 Pac. 213, 13 A. S. R. 262; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; People v. Aikin, 66 Mich. 460, 33 N. W. 821, 11 A. S. R. 512; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 52 A. S. R. 655, 31 L.R.A. 294; Hocker v. State, 34 Tex. Crim. 359, 30 S. W. 783, 53 A. S. R. 716. Notes: 25 A. S. R. 436; 41 A. S. R. 354; 48 A. S. R. 569; 97 A. S. R. 779; 41 L.R.A.(N.S.) 750. 5. State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L.R.A. 125; State v. Gallivan, 75 Conn. 326, 53 Atl. 731, 96 A. S. R. 203; Sumner v. State, 5 7. Butt v. State, 81 Ark. 173, 98 Blackf. (Ind.) 579, 36 Am. Dec. 561 and note; Schultz v. State, 88 Neb. S. W. 723, 118 A. S. R. 42; State v. 613, 130 N. W. 105, 34 L.R.A. (N.S.) Alcorn, 7 Idaho 599, 64 Pac. 1014, 97 243; Tiffany v. Com., 121 Pa. St. A. S. R. 252; State v. Cohen, 108 Ia. 165, 15 Atl. 462, 6 Á. S. R. 775; 208, 78 N. W. 857, 75 A. S. R. 213; Com. v. Gerade, 145 Pa. St. 289, 22 State v. Furney, 41 Kan. 115, 21 Pac. Atl. 464, 27 A. S. R. 689; Hocker v. 213, 13 A. S. R. 262; State v. Gleim, State, 34 Tex. Crim. 359, 30 S. W. 17 Mont. 17, 41 Pac. 998, 52 A. S. R. 783, 53 A. S. R. 716. 655, 31 L.R.A. 294. Notes: 54 Am. Dec. 582; 48 A. S. R. 568. Notes: 97 A. S. R. 780; 41 L.R.A. (N.S.) 753. able doubt the jury is permitted to entertain must be as to the whole evidence, and not as to a particular fact in the case. In examining the testimony it is not requisite that the jury should believe a particular witness beyond all reasonable doubt; but it is requisite that, in view of all the testimony, the jury should believe, beyond all reasonable doubt, that the defendant is guilty." 217. Meaning of Reasonable Doubt.-Perhaps, as has been suggested, efforts to define the words "reasonable doubt" are unwise, yet nevertheless most American courts have felt called upon, in instructing juries in criminal cases, to explain this expression. In so doing they have occasionally led juries into mazes of subtlety and casuistry in which they were lost themselves, and into which the minds of plain men are incapable of following them.10 All such attempts must result in simply stating the same proposition in a different form of words, and words which are, perhaps, no more easily understood. There is no exact mathematical test by which we may certainly know whether a doubt, entertained in any given case, is reasonable or otherwise. What would be reasonable to one person might be far otherwise to another. Therefore, no certain line, ast upon a plan, can be drawn that shall be recognized by every one as the dividing line between the mere skeptical doubt, and that which has the sanction of reason. Hence, whatever explanations may be given to the phrase, its meaning practically must depend very largely upon the character of the mind of the person acting.11 And so it is asserted by excellent authority that courts instructing juries in criminal cases should make no attempt to define the expression but should merely follow the language of the statute that "where there is a reasonable doubt of the defendant being proven guilty, he is entitled to an acquittal," or, if there is no such statute, let the words themselves carry their own definition.12 Where definition is attempted, it is generally agreed that a reasonable doubt is not a mere imaginary, captious, or possible doubt, but a fair doubt, based upon reason and common sense, and growing out of the testimony in the case. 13 An 8. Hornish v. People, 142 Ill. 620, 32 N. E. 677, 18 L.R.A. 237. 9. State v. Smith, 32 Me. 369, 54 Am. Dec. 578. 10. Burt v. State, 72 Miss. 408, 16 So. 342, 48 A. S. R. 563. 11. Burt v. State, 72 Miss. 408, 16 So. 342, 48 A. S. R. 563. Note: 48 A. S. R. 566. 12. Jolly v. Com., 110 Ky. 190, 61 S. W. 49, 96 A. S. R. 429; State v. Williamson, 22 Utah 248, 62 Pac. 1022, 83 A. S. R. 780. Note: 48 A. S. R. 566. 13. Watt v. People, 126 Ill. 9, 18 N. E. 340, 1 L.R.A. 403; Densmore v. State, 67 Ind. 306, 33 Am. Rep. 96; State v. Cohen, 108 Ia. 208, 78 N. W. 857, 75 A. S. R. 213; State v. Temple, 194 Mo. 237, 92 S. W. 494, 5 Ann. Cas. 954; State v. Gibbs, 10 Mont. 213, 25 Pac. 289, 10 L.R.A. 749; Ferguson v. State, 52 Neb. 432, 72 N. W. 590, 66 A. S. R. 512; Johnson v. State, 88 Neb. 565, 130 N. W. 282, Ann. Cas. 1912B 965; State v. Sumner, 55 S. C. 32, 32 S. E. 771, 74 A. S. R. 707; Coffee v. State, 3 Yerg. (Tenn.) 283, |