of crime when safety or security from observation, or from prosecution and punishment to a certain degree, may be within hope and the expectation of the culprit. For this reason it has been found at all times in the intelligent administration of the law necessary to resort in a great measure to the force and effect of circumstances in order to discover from the inference, that may be drawn from the circumstances whether the offense has or has not been committed. The law upon this subject has been wisely and carefully settled for the purpose of guarding the rights and interests of the defendant as well as protecting those of the public. And it requires, where the case depends, at least one branch of it depends, on circumstantial evidence, that those circumstances shall be of such a persuasive or satisfactory character as to leave no rational ground of doubt as to the defendant's guilt, before he may be convicted. In other words, the circumstances are required to be of so forcible a nature as to exclude every other reasonable supposition or hypothesis or theory than that of the defendant's guilt, before a conviction can be reached by force of evidence of this description.

"A reasonable doubt is not such a doubt as any man may start by questioning for the sake of a doubt, nor a doubt suggested or surmised without foundation in the facts or testimony. It is such a doubt only as in a fair, reasonable effort to reach a conclusion upon the evidence, using the mind in the same manner as in other matters of importance, prevents the jury from coming to a conclusion in which their minds rest satisfied. If so using the mind, and considering all the evidence produced, it leads to a conclusion which satisfies the judgment, and leaves upon the mind a settled conviction of the truth of the fact, it is the duty of the jury so to declare the fact by their verdict. It is possible always to question any conclusion derived from testimony. Such questioning is not what is a reasonable doubt, but the circumstances, if the case is one of circumstantial evidence, must so concur that no well established fact or circumstance, which is capable of controlling the case, should go counter to the conclusions sought to be reached, or which are to be reached. If all the circumstances concur in one result, it is for the jury to say whether those circumstances are sufficient to establish that result, or whether there is a failure to cover probabilities of the case, so as to make it reasonably certain that the fact has been made out. . . ." Com. v. Costley, 118 Mass. 16.

Mr. Justice Graves, in People v. Marble, 38 Mich. 125, considered the following instruction misleading and inaccurate, viz:

"What I mean by a 'reasonable doubt' is that it must be such evidence as would satisfy you,-as you would be willing to act upon in any of your own important concerns, your own business. Such evidence as would satisfy you it would be proper for you to act upon in any of your own private concerns,-that would be evidence that would satisfy you beyond a 'reasonable doubt." That is what this means.”

We do not think that the phrase "reasonable doubt" is of such unknown or uncommon signification that an exposition by a trial judge is called for. Language that is within the comprehension of persons of ordinary intelligence can seldom be made plainer by further definition or refining. All persons who possess the qualifications of jurors know that a “doubt" is a fluctuation or uncertainty of mind arising from defect of knowledge or of evidence, and that a doubt of the guilt of the accused, honestly entertained, is a "reasonable doubt."

We repeat here what was said by Mr. Justice Campbell upon this subject in Hamilton v. People, 29 Mich. 194, namely:

"But we do not think that juries can derive any help from attempts, by numerous and complicated requests, to explain what would be very much plainer without them. If a jury cannot understand their duty when told they must not convict when they have a reasonable doubt of the prisoner's guilt, or of any fact essential to prove it, they can very seldom get any help from such subtleties as require a trained mind to distinguish. Jurors are presumed to have common sense, and to understand common English; but they are not presumed to have professional or any high degree of technical or linguistic training." People v. Stubenvoll, 62 Mich. 329.

"Then, what is reasonable doubt? It is a term often used

but not easily defined. It is not a moral and possible doubt, because everything relating to human affairs and depending upon moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after entire consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. The burden of proof is upon the prosecutor; all the presumptions of law, independent of evi

dence, are in favor of innocence, and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability that the fact charged is more likely to be true than the contrary, but the evidence must establish the proof of the fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it; this we take to be proof beyond a reasonable doubt, because if the law, which depends mostly upon considerations of a moral doubt, should go further than this and require absolute certainty, it would exclude circumstantial evidence altogether." Shaw, Ch. J., in Com. v. Webster, 5 Cush. 320, 52 Am. Dec. 711.

269. The Phrase "Moral Certainty" Examined. "The phrase 'moral certainty' has been introduced into our jurisprudence from the publicists and metaphysicians, and signifies only a very high degree of probability. It was observed by Puffendorf that, 'when we declare such a thing to be morally certain, because it has been confirmed by credible witnesses, this moral certitude is nothing else but a strong presumption grounded on probable reasons, and which very seldom fails and deceives us.' 1 Law of Nature & Nations (Eng. ed. 1749) chap. 2, § 11. Probable evidence,' says Bishop Butler, in the opening sentence of his Analogy, 'is essentially distinguished from demonstrative by this, that it admits of degrees, and of all variety of them, from the highest moral certainty to the very lowest presumption.' Proof 'beyond a reasonable doubt' is not beyond all probable or imaginary doubt, but such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof 'to a moral certainty' as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by eminent judges to explain the other; and each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men, and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible. . . . The evidence must establish the truth of the fact to a reasonable and moral certainty a certainty that convinces and directs the understanding, and sat

isfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because if the law, which most depends upon considerations of a moral nature, should go further than this, and require absolute certainty it would exclude circumstantial evidence altogether.' See also Com. v. Goodwin, 14 Gray, 45. Baron Parke, in a case tried before him, expressed the same thought conversely, thus: 'Such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt.' Reg. v. Sterne, Surrey Sum. Assizes, 1843, cited in Best, Ev. § 95. And instructions that the jury should be satisfied of the defendant's guilt beyond a reasonable doubt have often been held sufficient, without further explanation. Com. v. Tuttle, 12 Cush. 502; Com. v. Cobb, 14 Gray, 57; Com. v. Harman, 4 Pa. 269; Reg. v. White, 4 Fost. & F. 383 and note. When several forms of expression are equally accurate, it is within the discretion of the court at the trial to choose that form which it deems best adapted to make the rule of law intelligible to common minds. Kelly v. Jackson, 31 U. S. 6 Pet. 622, 8 L. ed. 523; Morris v. Bowman, 12 Gray, 467; Blake v. Sawin, 10 Allen, 340; State v. Reed, 62 Me. 129." Com. v. Costley, 118 Mass. 23.

270. Observations of Authority on the Term "Reasonable Doubt."-When the evidence is conflicting, it is error for the court to refuse to charge the doctrine of reasonable doubt. N. Y. Code Crim. Proc. §§ 389, 390; Spears v. State, 2 Tex. App. 244; May v. State, 6 Tex. App. 191; Mace v. State, 6 Tex. App. 470; Snyder v. State, 59 Ind. 105; Whart. Hom. (2d ed.) § 649. Where the court, in defining what is a reasonable doubt, includes something which ought not, in fairness to the prisoner, to be included, a new trial should be granted. State v. Johnson, 16 Nev. 36; People v. Brown, 59 Cal. 345; Anderson v. State, 41 Wis. 430; Meyers v. Com. 83 Pa. 143; Castle v. State, 75 Ind. 146; State v. Sloan, 55 Iowa, 220. A reasonable doubt may not only arise out of the evidence, but may be the result of a want of evidence. Massey v. State, 1 Tex. App. 564; Densmore v. State, 67 Ind. 306; Wright v. State, 69 Ind. 163, 35 Am. Rep. 212; Batten v. State, 80 Ind. 394; Holmes v. State, 9 Tex. App. 313; State v. Rover, 11 Nev. 348; Mixon v. State, 55 Miss. 527. A reasonable doubt exists when the evidence is not sufficient to satisfy the judgment of the truth of a proposition with such certainty that a

prudent man would feel safe in acting upon it in his own important affairs. Arnold v. State, 23 Ind. 170; State v. Reed, 62 Me. 142; Miles v. United States, 103 U. S. 304, 26 L. ed. 481; Com. v. Costley, 118 Mass. 16; People v. Finley, 38 Mich. 482; McGuire v. People, 44 Mich. 286, 38 Am. Rep. 265; State v. Bridges, 29 Kan. 138; State v. Summers, 9 West. L. J. 415. Nor is it an answer to what has been said, that the aggregated common sense of the twelve jurors is to determine when a juror is "able to give some reason" for his doubt. It is not necessary he should be able to do so even to his own satisfaction. Densmore v. State, Wright v. State, Anderson v. State and Meyers v. Com. supra; People v. Ah Sing, 51 Cal. 372; Bishop, Crim. Proc. § 1094; People v. Schryer, 42 N. Y. 6, 1 Am. Rep. 480; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642.

§ 271. Views of the Missouri Supreme Court. Without attempting to clothe the decisions of the Missouri supreme court with any extra-territorial effect, or to impute to them any specialized virtue, we may still insist that the exceptional mental equipment of that court imparts to its decisions a very high degree of legal certitude. Its expositions of the law have been rarely questioned, and the identical topic under review has been the subject of very recent consideration. In order to italicise a distinction of great importance, I excerpt from the opinion of Chief Justice Henry in the case of State v. Shaeffer, 89 Mo. 271, which was handed down in 1886, and faithfully represents the present status of the law relating to the subject, not only in the state of Missouri but throughout our entire federation. The argument unfolds itself with all the precision and certainty of a mathematical demonstration.

"The burden of proof to establish the guilt of defendant devolves upon the state, and the law clothes him with a presumption of innocence which attends and protects him until it is overcome by testimony which proves his guilt beyond a reasonable doubt. By a reasonable doubt, is meant a substantial doubt, based upon the evidence or want of evidence in the case, and is not a bare possibility of defendant's innocence." This instruction was approved and declared to be the law in all criminal cases. State v. Gonce, 79 Mo. 600.

In a subsequent case the court was obliged to encounter the same question and reverse a conviction in a criminal case because