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, 13 Am. Rep. 740.

19. Dupree v. State, 33 Ala. 380, 73 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

Mass. 180, 31 N. E. 961, 24 L.R.A. 235; Burt v. State, 72 Miss. 408, 16 So. 342, 48 A. S. R. 563; Bell v. State, 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; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; Stokes v. People, 53 N. Y. 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.

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 Blackf. (Ind.) 579, 36 Am. Dec. 561 and note; Schultz v. State, 88 Neb. 613, 130 N. W. 105, 34 L.R.A.(N.S.) 243; Tiffany v. Com., 121 Pa. St. 165, 15 Atl. 462, 6 Á. S. R. 775; Com. v. Gerade, 145 Pa. St. 289, 22 Atl. 464, 27 A. S. R. 689; Hocker v. State, 34 Tex. Crim. 359, 30 S. W. 783, 53 A. S. R. 716.

Notes: 54 Am. Dec. 582; 48 A. S. R. 568.

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.

7. Butt v. State, 81 Ark. 173, 98 S. W. 723, 118 A. S. R. 42; State v. Alcorn, 7 Idaho 599, 64 Pac. 1014, 97 A. S. R. 252; State v. Cohen, 108 Ia. 208, 78 N. W. 857, 75 A. S. R. 213; State v. Furney, 41 Kan. 115, 21 Pac. 213, 13 A. S. R. 262; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 52 A. S. R. 655, 31 L.R.A. 294.

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.9

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, as 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,

approved definition of reasonable doubt declares it to be such a doubt as will leave the juror's mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant's guilt; 14 another definition that has been strongly endorsed asserts that a reasonable doubt is one arising from a candid and impartial investigation of all the evidence, and such as, in the graver transactions of life, would cause a reasonable and prudent man to hesitate and pause.15 Many other attempts at definition have been made, but for the most part they have led to disagreement and conflict among the authorities.16

218. Defenses Generally.-The burden resting on a defendant falls far short of that imposed upon the state. He has only to raise in the minds of the jury a reasonable doubt of his guilt, springing out of all the evidence in the case; and whether he contents himself with rebutting the case made by the state, with all the legal inferences and presumptions deducible therefrom, or adopts what is called an affirmative defense, by undertaking to show exculpatory facts wholly disconnected from the proof made by the state, he is alike entitled to his acquittal when there is a reasonable doubt as to his guilt.17 Accord

24 Am. Dec. 570; State v. Williamson, 22 Utah 248, 62 Pac. 1022, 83 A. S. R. 780.

Note: 6 A. S. R. 61.

A statutory definition is as follows: "A reasonable doubt is one based on reason. It is not mere possibility, but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt, to be reasonable, must be actual and substantial; not mere possibility or speculation." 48 A. S. R. 566 note.

liamson, 22 Utah 248, 62 Pac. 1022, 83 A. S. R. 780.

Note: 48 A. S. R. 569.

15. Gannon v. People, 127 Ill. 507, 21 N. E. 525, 11 A. S. R. 147; Wacaser v. People, 134 Ill. 438, 25 N. E. 564, 23 A. S. R. 683; State v. Gibbs, 10 Mont. 213, 25 Pac. 289, 10 L.R.A. 749; Com. v. Miller, 139 Pa. St. 77, 21 Atl. 138, 23 A. S. R. 170.

Notes: 38 A. S. R. 150; 48 A. S. R. 575.

16. Hodge v. State, 97 Ala. 37, 12 So. 164, 38 A. S. R. 145; State v. Moon, 20 Idaho 202, 117 Pac. 757, Ann. Cas. 1913A 724; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898. 3 A. S. R. 320; Sumner v. State, 5 Blackf. (Ind.) 579, 36 Am. Dec. 561; 14. Carlton v. People, 150 Ill. 181, State v. Cohen, 108 Ia. 208, 78 N. W. 37 N. E. 244, 41 A. S. R. 346; People 857, 75 A. S. R. 213; Burt v. State, v. Buettner, 233 III. 272, 84 N. E. 218, 72 Miss. 408, 16 So. 342, 48 A. S. R. 13 Ann. Cas. 235; State v. De Rance, 563 and note; State v. Hoxsie, 15 R. I. 34 La. Ann. 186, 44 Am. Rep. 426; 1, 22 Atl. 1059, 2 A. S. R. 838; State State v. Gleim, 17 Mont. 17, 41 Pac. 998, 52 A. S. R. 655, 31 L.R.A. 294; Johnson v. State, 88 Neb. 565, 130 N. W. 282, Ann. Cas. 1912B 965; State v. Megorden, 49 Ore. 259, 88 Pac. 17. Pollard v. State, 53 Miss. 410, 24 306, 14 Ann. Cas. 130; State v. Wil- Am. Rep. 703; Stokes v. People, 53

v. Grant, 20 S. D. 164, 105 N. W. 97, 11 Ann. Cas. 1017 and note.

Notes: 36 Am. Dec. 410; 48 A. S. R. 568, 570.

ing to some authorities, however, where a defendant does not simply attempt to rebut the state's evidence but sets up some matter in extenuation or justification, the burden of proof is on him to establish such fact by a preponderance of evidence; 18 and some cases go to the extent of holding that certain affirmative defenses must be proved beyond a reasonable doubt.19 Perhaps no rule is applicable to all cases. The defendant must prove his defense, that is, he must produce more evidence in support of it than there is against it. When he has done this by a preponderance of the evidence the defense becomes a fact in the case, of which the jury must take notice in making up their verdict and dispose of it according to the rule that the burden is upon the state to prove every part of the case against the prisoner beyond a reasonable doubt. It may happen in some cases that the defense will itself have to be proved to a moral certainty before it will create a reasonable doubt as to any of the conditions of guilt. In other cases it may so happen that when the defense is proved by no more than a preponderance of the evidence it will cause such a doubt as to some material fact in the prosecution. But whether a greater or a less quantum of evidence be required, whenever the defense is so proved that a reasonable doubt is caused as to any part of the case, the defendant is entitled to the benefit of that doubt and should be acquitted.20

219. Insanity.-Sanity being the normal and usual condition of mankind, the law in criminal cases presumes the defendant to be sane, and this presumption of law stands until it is overcome by the evidence in the case. On the question as to what is sufficient proof to overcome this presumption where the defense of insanity is interposed, and the degree of proof necessary to show that the defendant was not criminally responsible for his act, there has ever been an irreconcilable conflict of opinion. According to the earlier authori

N. Y. 164, 13 Am. Rep. 492; State v.
Jackson, 36 S. C. 487, 15 S. E. 559, 31
A. S. R. 890.

18. State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L.R.A. 125 (stating rule); Wacoser v. People, 134 Ill. 438, 25 N. E. 564, 23 A. S. R. 683; State v. Hill, 46 La. Ann. 27, 14 So. 294, 49 A. S. R. 316; Com. v. York, 9 Metc. (Mass.) 93, 43 Am. Dec. 373; State v. Cooley, (N. M.) 140 Pac. 1111, 52 L.R.A. (N.S.) 230; State v. Sappienza, 84 Ohio St. 63, 95 N. E. 381, Ann. Cas. 1912B 1109, 34 L.R.A. (N.S.) 1118; Com. v. Palmer, 222 Pa. St. 299, 71 Atl. 100, 128 A. S. R. 809, 19 L.R.A. (N.S.) 483.

19. State v. Schweitzer, 57 Conn.

532, 18 Atl. 787, 6 L.R.A. 125; State v. Hill, 46 La. Ann. 27, 14 So. 294, 49 A. S. R. 316.

20. State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L.R.A. 125; Maas v. Territory, 10 Okla. 714, 63 Pac. 960, 53 L.R.A. 814.

1. Hornish v. People, 142 Ill. 620, 32 N. E. 677, 18 L.R.A. 237; State v. Austin, 71 Ohio St. 317, 73 N. E. 218, 104 A. S. R. 778; State v. McCoy, 34 Mo. 531, 86 Ám. Dec. 121; Adair v. State, 6 Okla. Crim. 284, 118 Pac. 416, 44 L.R.A. (N.S.) 119; Com. v. Gerade, 145 Pa. St. 289, 22 Atl. 464, 27 A. S. R. 689 and note; State v. Bundy, 24 S. C. 439, 58 Am. Rep. 262.