Opinion of the Court-Beatty, J.

In this part of the opinion also I heartily concur. But the supreme court of California afterwards became hypercritical. In the case of the People v. Phipps (39 Cal. 334), Judge Crockett, speaking for himself, said: "I concur in the judg ment on the ground that the court erred in charging the jury that if they shall be satisfied from the evidence of the defendant's guilt to a moral certainty, and beyond a reasonable doubt, they must convict him, although they may not be entirely satisfied from the evidence that the defendant, and no other or different person committed the alleged offense.' The first branch of this instruction is a correct exposition of the law; but the latter clause of it is not only calculated to mislead the jury, but is repugnant to the first clause." This view he then proceeds to elaborate. In the case of the People v. Padilla (42 Cal. 540), the whole court adopt the foregoing opinion of Judge Crockett, and they reverse a conviction because they think a jury would be confused by the attempt to draw an impossible distinction between satisfaction beyond a reasonable doubt and entire satisfaction. For my part, however, I agree with Judge Sanderson that this is hypercriticism. If a man believes that a defendant may possibly be innocent, he cannot be said to be "entirely satisfied" of his guilt, and yet he be satisfied of it beyond a reasonable doubt, and may convict, as Judge Crockett admits, and I cannot believe that any man capable of understanding the definition of a reasonable doubt would ever be confused by the statement of a distinction which is so manifest. (9 Nev. 118.)

The judgment of the district court is affirmed.

may

Opinion of the Court--Hawley, C. J.

[No. 791.]

THE STATE OF NEVADA, RESPONDENT, v. J. W. ROVER, APPELLANT.

PRESUMPTIONS IN FAVOR OF THE RULINGS OF THE COURT.-Where the court overruled the objections made by defendant to the admission of certain evidence, and there was nothing in the record to show whether the evidence was relevant or material: Held, that the presumption is that the evidence was properly admitted.

INSTRUCTIONS OF THE COURT-BILL OF EXCEPTIONS.-Instructions given by the court of its own motion will not be considered unless embodied in a bill of exceptions. REASONABLE DOUBT.-Where the court, in defining reasonable doubt, gave this instruction: “By reasonable doubt is ordinarily meant such a one as would govern or control you in your business transactions or usual pursuits of life:" Held, erroneous. (State v. Millain, 3 Nev. 481. Overruled.)

APPEAL from the District Court of the Fourth Judicial District, Humboldt County.

The facts sufficiently appear in the opinion.

1. W. W. Davies, for Appellant.

I. The court erred in allowing the written statement to be admitted in evidence, and in allowing the certificate to be supplied, and especially is this true when the objections to its admission existed as are disclosed by the minutes of the court contained in the transcript. (Art. VI, Amend❜ts Const. U. S.)

II. The instructions of the court asked by the plaintiff concerning murder and reasonable doubt are ambiguous and unintelligible, and were calculated to confuse and mislead the jury.

M. S. Bonnifield, also for Appellant.

J. R. Kittrell, Attorney-General, for Respondent.

By the Court, HAWLEY, C. J.:

The appellant was convicted of murder in the first degree. He appeals from the judgment.

There is no bill of exceptions. The transcript contains

Opinion of the Court-Hawley, C. J.

the indictment, minutes of the trial, instructions which were asked by the prosecution and defense and given by the court, the instructions given by the court of its own motion, the judgment and the notice of appeal. The objection urged to the ruling of the court in allowing the written statement of the defendant as made before the justice of the peace cannot be considered. It is not included in the record and there is no evidence before us to show whether it was relevant or material. The presumption, therefore, is that it was properly admitted. The instructions given by the court of its own motion cannot be considered because not embodied in a bill of exceptions. (State v. Forsha, 8 Nev. 137; State v. Burns, 8 Nev. 251.) In short there is nothing properly presented for our consideration except the indictment and the instructions which were asked by the prosecution and given by the court. If the instructions would be correct in any conceivable state of the case they must be sustained. (State v. Forsha, 8 Nev. 140; State v. Pierce, 8 Id. 302; State v. Keith, 9 Id. 17.)

No objection is made to the indictment. The instructions of the court, asked by the prosecution, relative to murder and circumstantial evidence, are not erroneous. The objection urged against the instruction concerning "reasonable doubt" is, as made by counsel for appellant, that it is ambiguous and unintelligible, and was calculated to confuse and mislead the jury. It reads as follows: "Reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. Reasonable doubt is not mere possible doubt. Doubt to be reasonable must be actual and substantial, not mere possibility or speculation. By reasonable doubt is ordinarily meant such a one as would govern or control you in your business transactions or usual pursuits of life." Leaving out the sentence in italics, the instruction would, beyond all question, be correct. The first sentence is copied from The Commonwealth v. Webster (5 Cush. 320), and has been repeatedly followed and approved. The

Opinion of the Court-Hawley, C. J.

second and third sentences likewise contain correct principles of law that have been often affirmed. The last sentence, however, qualifies all that precedes it, and we are called upon to determine whether it properly defines reasonable doubt. It is copied verbatim from the instruction in The State v. Millain (3 Nev. 451), wherein the court cursorily disposed of the whole question by a reference to only one decided case, and held that this definition of a reasonable doubt was not erroneous. It is apparent that the point at issue received but little consideration.

The rule of law upon this subject is thus laid down by Mr. Greenleaf: "By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind, beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined; the only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a common man, and so to convince him that he would venture to act upon that conviction, in matters of the highest concern. and importance to his own interest." (1 Greenl. Ev., sec. 2.) And by Mr. Starkie as follows: "What circumstances will amount to proof can never be matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury. On the one hand, absolute, metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt. * * * On the other hand, a juror ought not to condemn, unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he be so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest." (Starkie Ev., 865.) This rule has been recognized by several authors on evidence and criminal law as correct. (Wills on Circumstantial Ev., 210, 211; Bish. Cr. Pro., vol. 1, sec. 1052; Wharton's Homicide, sec. 646.) In Iowa, in a case where the defendants were indicted

Opinion of the Court-Hawley, C. J.

and tried for murder, the supreme court sustained an instruction that "if the whole evidence taken together, produced such a conviction on the minds of the jury, of the guilt of the prisoner, as they would act upon in a matter of the highest importance to themselves, in a like case, it was their duty to convict." (The State v. Nash and Redout, 7 Iowa, 385; State v. Ostrander, 18 Id. 458.)

In Indiana, upon a prosecution for assault and battery, the supreme court say that, "A reasonable doubt exists, when the evidence is not sufficient to satisfy the judgment of the truth of the proposition, with such certainty that a prudent man would feel safe, in acting upon it in his own important affairs." (Arnold v. The State, 23 Ind. 170.)

In Missouri, where the defendant was tried and convicted of rape, the court, with great reluctance, sustained an instruction which stated, among other things, that "the jury are at liberty to act upon that degree of assurance such as prudent men properly act upon in the more important concerns of life." (State v. Crawford, 34 Mo. 201.) The court say, that this part of the instruction was calculated to mislead the jurors and authorize them to act, in finding their verdict, in respect to which there was no presumption in favor of either side of the question; but, upon considering it with the other portions of the instruction with which it was connected, came to the conclusion that such a construction could not have been adopted by the jury.

In California, in a criminal case where the defendant was convicted of grand larceny, the supreme court, iu commenting upon an instruction which had been given, said: "It is not, perhaps, the best definition of a reasonable doubt to say that it is such a state of mind as would influence a reasonable man to one cause of action in preference to another in the important affairs of life.' The definition given by Mr. Chief Justice Shaw, is better." (People v. Ash, 44 Cal. 289.) As no point was made by counsel upon the instruction, the court did not notice it further, but reversed the judgment on other grounds.

In Minnesota, in a case of conviction of an assault with intent to do great bodily harm, the court reversed the judg