Abbott v. Territory

• Decision Date: 22 January 1908
• Citation: 94 P. 179,20 Okla. 119,1 Okla.Crim. 1
• Parties: ABBOTT v. TERRITORY.
• Court: Oklahoma Supreme Court

94 P. 179

20 Okla. 119, 1 Okla.Crim. 1

ABBOTT v. TERRITORY.

Supreme Court of Oklahoma

January 22, 1908

Syllabus by the Court.

An instruction which states "by the term 'reasonable doubt' is meant a doubt that has a reason for it; it is a doubt you can give a reason for"-was erroneous, and is cause for reversal of the judgment.

[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1906-1922.]

Error from District Court, Kiowa County; F. E. Gillette, Judge.

T. A Abbott was convicted of shooting with intent to kill, and brings error. Reversed and remanded.

Plaintiff in error was indicted, tried, and convicted of the crime of shooting with intent to kill, and sentenced to serve a term of 18 months in the territorial prison. From this judgment he appeals. At the conclusion of the evidence the court gave the following instruction on reasonable doubt: "By the term 'reasonable doubt,' as used generally in these instructions, is meant a doubt that has a reason for it; it is a doubt you can give a reason for. It is that state of the case which, after a full consideration of all the evidence leaves your minds in that condition that you cannot say that you feel an abiding conviction of the guilt of the defendant. You should not go beyond the evidence to hunt for doubt, or entertain doubt from mere caprice or conjecture. Such doubt should arise only from an impartial and candid consideration of all the testimony and all the facts and circumstances presented upon the trial. If doubt does so arise, and by reason of it you cannot say that you are satisfied to a moral certainty of the guilt of the defendant, you should return your verdict herein of not guilty." To this instruction the defendant at the time duly excepted, and now assigns error thereon.

Doyle & Cress and Keys, Rummons & Cline, for plaintiff in error.

Chas West, Atty. Gen., and G. A. Henshaw, Asst. Atty. Gen., for the Territory.

WILLIAMS C.J.

Elementary writers, in discussing the measure of proof necessary to require a conviction in a criminal case, have often stated that, "in cases of doubt, it is safer to acquit than to convict or condemn." Best on Evidence, §§ 49, 95, and 440. "In some cases presumptive evidences go far to prove guilty, though there may be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons escape unpunished than one innocent person should die." Hale's Pleas of the Crown, vol. 2, p. 289. Mr. Best in his excellent work on Evidence (section 95), in speaking of these statements which have become under the common law crystallized into maxims, says, they "are often perverted to justify acquittal." He further states that such other maxims as, "It is to the interest of the commonwealth that malefactors do not go unpunished," and "he threatens the innocent who spare the guilty," are not to be lost sight of. The foregoing maxims declare safe and humane rules for the guidance of both courts and juries. For him, however, who executes the laws, the moving course should be: Neither shall an innocent person be punished nor shall a guilty one go free. Whilst this should be the purpose of the administrator of the law, yet quite a different rule is laid down for triors of facts, the jury. "The presumption of innocence is not a mere phrase without meaning; it is in the nature of evidence for the defendant; it is as irresistible as the heavens until overcome; it hovers over the prisoner as a guardian angel throughout the trial; it goes with every part and parcel of the evidence." Neither the law nor the exigencies of human government require the punishment of the doubtfully guilty. Doubts are to be resolved in favor of the prisoner. There should be no conviction until guilt is proved by competent evidence to the exclusion of all reasonable doubt, This is the mandate of the law, and the birthright of every English and American citizen. But in criminal trials it is not every species of doubt that would justify an acquittal. Such a doubt as to be a basis for an acquittal must be actual and substantial, not mere speculation or possibility. It must be a reasonable doubt; "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of the jury in that condition that they cannot say they have an abiding conviction, to a moral certainty, of the charge." There are degrees of doubt; moral certainty, excluding all reasonable doubt, is the required measure of proof in criminal cases.

It is contended by the plaintiff in error that this instruction, in effect, directs the jury to find the defendant guilty of the crime charged, unless they entertain a reasonable doubt arising out of the evidence, for which the jury are able to give some reason. We are of the opinion, after careful consideration, that this contention is well taken. After considerable research among the authorities, it seems that this instruction, or one given in substantially the same language, has been uniformally disapproved by the courts. The vice of this instruction is in the use of the language "by the term 'reasonable doubt' *** is meant a doubt that has a reason for it; it is a doubt you can give a reason for." In Cowan v. State, 22 Neb. 519, 35 N.W. 405 the Supreme Court of Nebraska, speaking by Chief Justice Maxwell in passing upon this question, has held that an instruction which contained the following words: "It is a doubt for having which the the jury can give a reason based upon the testimony," was calculated to mislead and no doubt did mislead, the jury. And in Childs...