of a slight departure on the part of the trial court from the well recognized instructions previously given, as to what constitutes reasonable doubt. The court employs the following language:

"In law a party accused of crime is presumed to be innocent until the contrary is proven beyond a reasonable doubt. If, therefore, upon a consideration of all the evidence in this cause you entertain a reasonable doubt as to the guilt of defendant you will give him the benefit of such a doubt and find him not guilty. In applying the rule as to reasonable doubt you will be required to acquit if all the facts and circumstances proven can be reasonably reconciled with any theory other than that the defendant is guilty; or to express the same idea in another form, if all the facts and circumstances proven before you can be as reasonably reconciled with the theory that the defendant is innocent as with the theory that he is guilty, you must adopt the theory most favorable to the defendant, and return a verdict finding him not guilty. You will observe, however, that the doubt to authorize an acquittal on that ground alone must, as stated, be reasonable and must be also one fairly deducible from the evidence considered as a whole.'

"The mere possibility that the defendant may be innocent will not authorize an acquittal. It declares very properly 'that one accused of crime is presumed to be innocent until the contrary is proven beyond a reasonable doubt. If therefore, upon a consideration of all the evidence in this case you entertain a reasonable doubt of the guilt of the defendant, you will give him the benefit of such doubt and find him not guilty. In applying the

rule as to reasonable doubt you will be required to acquit if all the facts and circumstances proven can be as reasonably reconciled with the theory that the defendant is innocent as with the theory that he is guilty; you must accept the theory most favorable to the defendant and render a verdict finding him not guilty.' This attempted explanation of the term 'reasonable doubt' would eliminate it from the criminal code, and leave juries to find verdicts in criminal cases upon the mere preponderance of the evidence. By that explanation the benefit of a reasonable doubt in criminal cases is no more than the advantage a defendant has in a civil The doctrine expressed in this explanation is exactly that which is applicable in a civil action, in which, if the facts proven can be reasonably reconciled with the theory that the defendant

case.

owes what he is sued for as that he does not, the defendant is entitled to a verdict. The plaintiff must make out his case and if the evidence is evenly balanced he cannot recover." State v. Shaeffer, 89 Mo. 282.

§ 272. Extended Citation of Authorities.-Innumerable decisions illustrate the attitude of the American judiciary towards this important subject. Our criminal annals contain many expositions of the governing rule. And still with all this reiterated announcement of what that rule embodies and with solemn and oracular warnings of what fatal results follow its want of observance, it is a frequent spectacle to see the convictions of undoubted criminals set aside, justice frustrated, law brought into disrepute, because of attempted innovations upon the phraseology of the rule regarding reasonable doubt.

There is but little difficulty in the application of this rule when once its formula is cordially accepted and the court ceases to struggle for originality in cases where precedent should alone govern. Very deliberate consideration is required in order to reach this desired formula and a statutory definition is perhaps the most effective evasion of the discordant syntax of the present embarrassment. As indicating the present contradiction that prevails in this mere matter of definition we will cite a formidable array of authority collected from both the Federal and state decisions.

Kennedy v. People, 40 Ill. 488; Howard F. & M. Ins. Co. v. Cornick, 24 Ill. 455; Springdale Cemetery Asso. v. Smith, 24 Ill. 480; Pate v. People, 8 Ill. 661; Warren v. Dickson, 27 Ill. 115; State v. Kearley, 26 Kan. 77; Miles v. United States, 103 U. S. 304, 26 L. ed. 481; McKleroy v. State, 77 Ala. 95; Hamilton v. People, 29 Mich. 194; People v. Steubenvoll, 62 Mich. 329, 8 Crim. L. Mag. 265; Com. v. Tuttle, 12 Cush. 502; Com. v. Cobb, 14 Gray, 57; Bramlette v. State, 21 Tex. App. 611, 57 Am. Rep. 622; Schultz v. State, 20 Tex. App. 316; State v. Dineen, 10 Minn. 408; State v. Nelson, 11 Nev. 334; People v. Phipps, 39 Cal. 326; People v. Padillia, 42 Cal. 536; Com. v. Costley, 118 Mass. 1; State v. Vansant, 80 Mo. 67; Dunn v. People, 109 Ill. 635; Sullivan v. State, 52 Ind. 309; State v. Pierce, 65 Iowa, 89; Minich v. People, 8 Colo. 454; James v. State, 45 Miss. 572; People v. Ashe, 44 Cal. 288; State v. Bridges, 29 Kan. 138; State v. Hayden, 45 Iowa, 17; Polin v. State, 14 Neb. 540; United

States v. Jackson, 29 Fed. Rep. 503; Jane v. Com. 2 Met. (Ky.) 30; State v. Oscar, 52 N. C. 305; Ray v. State, 50 Ala. 104; Bradley v. State, 31 Ind. 492; State v. Crawford, 34 Mo. 200; Garfield v. State, 74 Ind. 60; Stout v. State, 90 Ind. 1; Connaghan v. People, 88 Ill. 460; United States v. Johnson, 26 Fed. Rep. 682; State v. Rounds, 76 Me. 123; State v. Reed, 62 Me. 192; Blocker v. State, 9 Tex. App. 279; State v. Ostrander, 18 Iowa, 437; May v. People, 60 Ill. 119; Miller v. People, 39 Ill. 457; State v. Gee, 85 Mo. 647; Com. v. Carey, 2 Brewst. 404; Cicely v. State, 13 Smedes & M. 202; McGuire v. People, 44 Mich. 286, 38 Am. Rep. 265; Bray v. State, 41 Tex. 560; State v. Owens, 79 Mo. 620; State v. Smith, 21 Mo. App. 595; People v. Finley, 38 Mich. 482; McMeen v. Com. 114 Pa. 300; Donnelly v. State, 26 N. J. L. 602; State v. Ah Lee, 7 Or. 237; United States v. Foulke, 6 McLean, 349; McElven v. State, 30 Ga. 869; Heldt v. State, 20 Neb. 492, 57 Am. Rep. 835; People v. Davis, 64 Cal. 440; State v. Willingham, 33 La. Ann. 537; Bressler v. People, 117 Ill. 422; Sumner v. State, 5 Blackf. 579, 36 Am. Dec. 561; Leigh v. People, 113 Ill. 372; Com. v. York, 9 Met. 93, 43 Am. Dec. 373; Mullins v. People, 110 Ill. 42; Marion v. State, 16 Neb. 349; Brady v. Com. 11 Bush, 282; Davis v. Peo ple, 114 Ill. 86; State v. Carland, 90 N. C. 668; State v. Willis, 63 N. C. 26; People v. Rodrigo, 69 Cal. 601; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485; State v. Buckley, 40 Conn. 246; Powers v. State, 87 Ind. 145; Hudelson v. State, 94 Ind. 420, 48 Am. Rep. 171; O'Neil v. State, 48 Ga. 66; Adams v. State, 29 Ohio St. 412; Stitz v. State, 104 Ind. 359; State v. Witt, 34 Kan. 488; Com. v. Tuey, 8 Cush. 1.

CHAPTER XXXVII.

EVIDENCE OF MALICE, MOTIVE, PREMEDITATION AND INTENT.

§ 273. Malice Defined.

274. May be Expressed or Implied.

275. How Proved.

276. Burden of Proof as to.

277. Intoxication as Affecting Malice.

278. Legal Significance of the Term "Motive."

279. Term "Motive" Defined.

280. Collateral Facts in Relation to Motive.

281. Any Proof Suggesting Motive is Relevant.
282. What is Implied by the Term "Premeditation."
283. Wide Range of the Evidence as to Premeditation.
284. Statement of the Rule as to Criminal Intent.
285. Intent, how Proved.

286. Presumption as to.

287. Prosecution may Show Evil Intent.

288. Accused may Testify as to his Intent.

289. Digest Form of the Present Rule.

290. When Conviction may be Had in the Absence of Criminal Intent.

291. Time not Necessary to Form Criminal Intent.

292. Review of the Authorities.

273. Malice Defined.-Malice in legal contemplation signifies a wrongful act perpetrated without reasonable cause and the intention with which the act is done is an inference of law based upon a well known presumption that the man shall be regarded as intending the legitimate results of his act. United States v. Coffin, 1 Sumn. 394; Maynard v. Fireman's Fund Ins. Co. 34 Cal. 48, 91 Am. Dec. 672; Wiggin v. Coffin, 3 Story, 7; People v. Taylor, 36 Cal. 255; Worley v. State, 11 Humph. 172; Hayes v. State, 58 Ga. 35; Williams v. State, 3 Tex. App. 316; Beauchamp v. State, 6 Blackf. 299; Plasters v. State, 1 Tex. App. 673; Lossen v. State, 62 Ind. 437; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; State v. Hays, 23 Mo. 287; Lander v. State, 12 Tex. 462; Com. v. Goodwin, 122 Mass. 19; Com. v. Green, 1 Ashm.

289; State v. Town, Wright (Ohio) 75; United States v. Taylor, 2 Sumn. 586; Reg. v. Selten, 11 Cox, C. C. 674; Blunt v. Little, 3 Mason, 102; Rex v. Philp, 1 Moody, C. C. 264; United States v. Outerbridge, 5 Sawy. 620; Bromage v. Prosser, 4 Barn. & C. 247. See also 1 Russell, Crimes (9th ed.) 667; 1 Whart. Am. Crim. L. (8th ed.) §§ 106, 122; 1 Bishop, Crim. L. (6th ed.) 429; 4 Bl. Com. 199; 1 Archb. Crim. Pr. & Pl. 368.

§ 274. May be Expressed or Implied.—Actual proof of intention is not always needed. Malice, the essence of all crime, may be expressed or implied. Brown v. Com. 76 Pa. 319. Nor is it indispensable to a conviction that a motive be proved. People v. Robinson, 1 Park. Crim. Rep. 649; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69.

§ 275. How Proved.-"Malice is proved in the same manner as intent-from the admissions or the overt acts of the offender. It may generally be inferred from the nature of the act itself. If a man do an act which cannot be of any benefit to himself or to those with or for whom he is acting, and which must necessarily be of injury to another person, the jury will be warranted in inferring that the act was done from malice to the owner or party injured.

"Malice may also be implied where no malice against any particular person in fact existed. Even in murder, which is the highest offense of this class, in which malice forms a most material ingredient, and where the malice must be preconceived, malice may in this way be implied, although none actually existed as against any particular person. So where a person fires

a loaded pistol among an assembly of persons, or in the public streets where many persons are passing, and thereby kills a man, or the like, he is guilty of murder. So, in all other cases where a man willfully does an act which he knows must, or probably will, cause the death of another whom he knows not, and a man is thereby killed, he is guilty of murder, in the same manner as if he had preconceived malice against the individual killed." Archb. Crim. Pr. & Pl. chap. 4, p. 121.

So malice may be proved by direct evidence, such as prior threats, or seeking an opportunity to perpetrate the act. This is called express malice, and proof of such malice in this case would be evidence of premeditation, and would make the case murder in the first degree, if otherwise made out beyond a reasonable