State v. Brewer, 10981

• Decision Date: 09 May 1972
• Docket Number: No. 10981,10981
• Citation: State v. Brewer, 197 N.W.2d 409, 86 S.D. 434 (S.D. 1972)
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Leonard Franklin BREWER, a/k/a L. F. Brewer, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 409

197 N.W.2d 409

86 S.D. 434

STATE of South Dakota, Plaintiff and Respondent, v. Leonard Franklin BREWER, a/k/a L. F. Brewer, Defendant and Appellant.

No. 10981.

Supreme Court of South Dakota.

Argued Jan. 28, 1972.

Decided May 9, 1972.

C. J. Kelly, Asst. Atty. Gen., Pierre, S. D., argued the cause for plaintiff and respondent; Gordon Mydland, Atty. Gen., Pierre, on the brief.

Dennis A. Brown, Aberdeen, argued the cause for defendant and appellant.

BIEGELMEIER, Judge.

Defendant appeals from a sentence founded on a jury verdict of guilty of obtaining money by false pretenses on a check dated June 3, 1970. Appointed counsel, who appeared for defendant at the trial, has presented three assignments of error and listed and presented seven as advanced by defendant. Defendant excepted to the emphasized part of the following instruction given by the court:

'By reasonable doubt of guilt is meant doubt of guilt reasonably arising from all the evidence, facts and circumstances or lack of evidence in the case. It is not mere possibility of doubt. It is not an imaginary doubt nor a doubt of absolute certainty of guilt of a defendant, because everything relating to human affairs may be open to some conjectural or imaginary doubt and because absolute certainty is not required by law. A reasonable doubt is one which would ordinarily impress the judgment of a prudent person so as to cause him to pause or hesitate to act in the more important affairs of life. A reasonable doubt exists in any case when, after careful and impartial consideration of all the evidence, the jurors do not feel convinced to a moral certainty that the defendant is guilty of the charge. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind. If after a consideration of the whole case any juror entertains a reasonable doubt of the guilt of the defendant, it is his duty not to vote for a verdict of guilty or be influenced in so voting for the single reason that other members of the jury may be in favor of a verdict of guilty. * * *'

Defendant argues the emphasized part of the instruction permits a juror to substitute his own personal standard of morality in place of a proper consideration of the evidence. In support he quotes from 53 Am.Jur., Trial, § 762, and State v. Price, 83 W.Va. 71, 97 S.E. 582, 5 A.L.R. 1247, cited therein, which in turn relies on State v. Sheppard, 49 W.Va. 582, 39 S.E. 676. The court there was referring to an instruction which did not limit the jury to the evidence in the trial and so may have allowed the jurors to reach a conclusion of guilt to a moral certainty based on matters a juror might know aside from the evidence. That is not apropos to the instruction given by the court in this action which begins with reference to a reasonable doubt 'arising from all the evidence, facts and circumstances or lack of evidence', and the very clause objected to states that doubt exists when 'after careful and impartial consideration of all the evidence, the jurors do not feel convinced to a moral certainty that the defendant is guilty'.

If this objection is directed to the use of the phrase 'proof to a moral certainty', the same paragraph cited by defendant (53 Am.Jur., Trial, § 762) states that phrase is synonymous and equivalent with 'proof beyond a reasonable doubt'. To the same effect see 30 Am.Jur.2d, Evidence, § 1172; the early much cited opinion of Commonwealth v. Webster, Mass., 5 Cush. 295, 52 Am.Dec. 711; State v. Norman, 103 Ohio St. 541, 134 N.E. 474; Dailey v. United States, 5 Cir., 260 F.2d 927, and State v. Sheppard, supra, also cited by defendant; the above are in addition to the authorities listed in the Am.Jur. texts. The brief of the Attorney General traces the history of this subject from the opinion of Justice Shaw in Commonwealth v. Webster in 1850, citing many opinions in accord therewith, to which we add Commonwealth v. Costley, 118 Mass. 1, 23; Williams v. State, 52 Ala. 411; McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481, and notes in 17 L.R.A. 711, 48 Am.St.Rep. 578, and 11 Ann.Cas. 1020.

Objections having been made to the phrase 'moral certainty', it must be on the claim that the moral certainty guide is below the standard of reasonable doubt. While the authorities cited hold them to be of equal rank, some indicate the moral certainty standard is of a higher degree than reasonable doubt. For example in Territory of Montana v. McAndrews, 3 Mont. 158, the trial court gave an instruction from the Webster opinion which said:

"It (reasonable doubt) is that state * * * (which) after the * * * consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge.'

'The instruction as given by the court required the jury to make a fair and reasonable effort to reach a conclusion from the evidence * * * using their minds and judging of the facts as they would judge of other matters of importance, until they reached that abiding conviction known as a moral certainty of the truth of the charge, which is the very highest grade of certainty that human testimony can produce.

'* * * 'Moral certainty may be said to bear the same relation to matters relating to human conduct, that absolute certainty does to mathematical subjects. It is a state of impression produced by facts in which a reasonable mind feels a sort or coercion or necessity to act in accordance with it. The conclusion presented being one which cannot, morally speaking, be avoided consistently with adherence to truth.''

The instruction given is number 1--6 of the South Dakota Pattern Instructions 1970, Criminal, with further authorities cited therein. While these instructions had no prior sanction of the courts of this state, they are the product of the labor of many judges and lawyers fashioning suggested instructions in accord with decisions of this and other states. They serve a useful purpose for bench and bar, and are changed when later decisions of the courts require such action as has occurred on occasion. That the task is difficult appears from the opinions of the courts cited above and is also mentioned in 23 C.J.S. Criminal Law § 910 and 23A C.J.S. Criminal Law § 1267 et seq. The attack made on instructions given or refused brings out the remarks of the court in State v. Norman, 103 Ohio St. 541, 134 N.E. 474:

'As a rule, charges in criminal cases should be very short and simple. * * * more than a page is consumed in covering the subject of 'reasonable doubt.' Such a simple phrase is so plain and understandable to a jury of ordinary intelligence that it may well be doubted whether or not attempts at definition do not cloud rather than clear the meaning of these words.'

We doubt if the clause emphasized in the instruction set out in the fore part of the opinion is necessary; it fixed no less standard than the reasonable doubt doctrine to which defendant was entitled. It may have fixed a higher one, as the writer believes; of this, defendant cannot complain.

It is claimed the court erred in denying a new trial by reason of statements made by the prosecuting attorney in his arguments to the jury. At the close of his opening argument, counsel said:

'I ask that you remember that, and in all due respect for Dennis Brown and his ability, I can honestly say, in my legal opinion, it seems surprising that he has to be here...