If the evidence produced in a criminal action be of Such a 'convincing character that the jurors would unhesitatingly be gov erned by if in the weighty and important matters of life, they may be said to have no reasonable 'doubt respecting the guilt or innocence of the accused, notwithstanding the uncertainty which attends all 'human evidence. Therefore, k charge to the jury that if after an impartial comparison and consideration of all the evidence, they can truthfully say that they have an abiding conviction of the defendant's guilt, such as they would be willing to act upon in the more weighty and important matters relating to .their own • affairs, they have no reason able doubt, is not erroneous ; Hopt v. Utah, 120 U. S. 431, 7 Sup. Ct. 614, 30 L. Ed. 708.
Proof "beyond a reasonable doubt" is not beyond all 'possible or imaginary doubt, such proof as precludes every reasonable `liSrpothesis except that which it tends to sup port. It is probe "to a moral certainty," as distinguished from an absolute' certainty. As applied 'a judicial trial for crime, the two phrases are 'synonymous and equivalent ; and 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 defend ant, and so satisfies them as to leave no other reasonable conclusion possible ; Com. v. Costley, 118 Mass. 24. It must be founded on a consideration of all the circumstances and evidence, and not on mere conjecture or speculation; KennedSr v. State, 107 Ind. 144, 6 N. E. 305, 57 Am. Rep. 99 ; and must not be a mere mistaking of the imagination or misplaced sympathy ; State v. Murphy, 6 Ala. 845; but natural and substantial, not forced or fanciful ; State v. Bodekee, 34 Ia. 520; such an honest uncertainty existing in the minds of a candid, impartial and diligent jury as fairly strikes the conscientious mind and clouds the judgment ; Com. v. Drum, 58 Pa. 9. It must not be a mere fanciful, vague, speculative or possible doubt, but a reason able, substantial doubt, remaining after the consideration of all the• evidence ; State v. Uzzo, 6 Pennew. (Del.) 212, 65 Atl. 775. The subject is discussed in an address by J. S. Burger, before the State Bar Association of Kansas ; 11 Am. Lawy. 440 ; and the history of the doctrine is stated, as well as the dif ficulty and danger of trying to define it, though the •doctrine itself is strongly urged "as the shield of innocence and the champion of liberty." It is said to have been first used in the treason trials in Dublin in 1798.
A much quoted and much criticized defi nition is that of Dillon, J., in State v. Os trander, 18 Ia. 437, approved in Po]in v. State, 14 Neb. 540, 16 N. W. 898. Other at tempts to' define reasonable doubt are State v. Hayden, 45 Ia. 17 ; State v. Nelson, 11 Nev. 334 ; 4 F. & Fin. 383 ; U. S. v. Jackson, 29 Fed. 503; State v. Kearley, 26 Kan. 77, per Brewer; J. ; People v. Finley, 38 Mich. 482 ; Lane v. State, 41 Tex. Cr. R. 560, 55 S. W. 831; State v. Swain, 68 Mo. 605. The difficulty of a satisfactory definition is dis cussed in 57 Am. L. Reg. 419, where C. J.
Shaw's definition is criticized and that in Com. v. Costley, 118 Mass. 1, supra, is sug gested as better. And in Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 30 L. Ed. 708, it was approved as contrasted with C. J. Shaw's definition. The whole subject was there con sidered and the necessity was stated of al lowing the trial judge considerable latitude in the way of explanation.
In the Tichborne Case Lord Cockburn charged the jury : "It is the business of the prosecution to bring home guilt to the ac cused to • the satisfaction of the jury. But the doubt of which the accused •is entitle& to the benefit must be the doubt that a rational —that' a 'sensible—man may fairly enter tain, not the doubt of a vacillating mind that has not the moral courage to decide, but shelters itself in vain scepticism." 14 Harv. L. Rev. 87.
An instruction that "reasonable doubt is a you can give a reason for" is erro neous ; Abbott v. Territory, 20 Okl. 119, 94 Pac. 179, 16 L. R. A. (N. S.) 260, 129 Am. St. Rep. 818 ; Pettine v. New Mexico, 201 Fed. 489, 119 C. C. A. 581. It is said that to re quire an affirmative reason for a reasonable doubt of guilt places upon the defendant the burden of furnishing to every juror a rea son why he is, not satisfied as guilt, with the certainty which the law requires ; also, that such an instruction casts on the defend ant the burden of furnishing reasons for not finding him guilty, whereas it is on the pros ecution to make out a case excluding all rea sonable doubt ; State v. Cohen, 108 Ia. 208, 78 N. W. 857, 75 Am. St. Rep. 213. So in Carr v. State, 23 Neb. 749, 37 N. W. 630; Darden v. State, 73 Ark. 315, 84 S. W. 507. In State v. Sauer, 38 Minn. 438, 38 N. W. 355, it was said that there is a serious ob jection to requiring a juror to be able to express in words the ground of his doubt, because he might well have a reasonable doubt and yet find it difficult to give a rea son for it.
But a contrary view is held in Butler v. State, 102 Wis. 364, 78 N. W. 590: "A doubt cannot be reasonable unless there is a rea son for it, and if such reason exists, it can be given." To the same effect: People v. Guidici, 100 N. Y. 503, 3 N. E. 493; State v. Rounds, 76 Me. 123. In State v. Jefferson, 43 La. Ann. 995, 10 South. 199, it was held to be a "serious, sensible doubt such as you could give a good reason for." The doubt ought not to be a capricious one, but a substantial doubt, which the jury give a. reason for ; Marshall v. U. S., 197 Fed. 511, 117 C. C. A. 65.
In Alabama there are numerous and con flicting cases.
There are also cases which, though criti cizing the rule that requires the jury to have a reason for a doubt, have held that its ap plication in a charge is not a reversible er ror, if it be part of a charge defining the difference between a reasonable and a vague doubt; Thibert v. Supreme Lodge, 78 Minn. 450, 81 N. W. 220, 47 L. R. A. 136, 79 Am. St. Rep. 412; Klyce v. State, 78 Miss. 450, 28 South. 827; People v. Stubenvoll, 62 Mich. 329, 28 N. W. 883. , The cases are collected in 16 L. R. A. (N. S.) 260, note.