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avoid further encounter with "a man who fought with a knife.". That the deceased, after receiving a mortal wound at the hands of his assailant, may have "staggered” towards and grappled with him, in no way mitigates the infliction of other wounds with the knife, one of which was surely and speedily fatal. We cannot disturb the verdict supported by evidence such as that exhibited in this record; nor do we think it necessary to enter upon a critical examination of the law of self-defense. Upon the defendant's own statement, there is no room for the application of any of the principles governing the defense of one's person.

The instructions given by the court to the jury are made the subject of general criticism. Some of them are specifically assailed in the argu

Some of the objections relate to mere inaccuracies of expression; as, for example, in the first instruction the court inadvertently told the jury that the first count of the indictment alleged the killing to have been done with a stone, and the second with a knife, whereas, in fact, the first charged that the fatal wound was inflicted with a knife, and the second with a stone. So, in the second instruction, the jury were told that “the defendant is presumed to be innocent of all the crimes charged in the indictment,” etc. The verbal inaccuracies may be admitted, but that any prejudice to the defendant could have resulted on that account cannot be seriously maintained.

In the third instruction the court undertook to define what constituted a reasonable doubt. The jury were told, in substance, that it was not their duty to go beyond the evidence in search of doubts based on merely groundless conjectures; that, in order to justify an acquittal, the doubt should be reasonable and arise out of an impartial consideration of the evidence in the case, and that it must be such a doubt as would cause a prudent and considerate man to hesitate before acting in the gravest and most important affairs of life; that if, upon a careful and impartial consideration of all the evidence, the jury had an abiding conviction of the defendant's guilt, then they were satisfied beyond a reasonable doubt. We cannot commend this instruction. It is not an accurate statement of the law upon the subject of reasonable doubt. To the extent that the instruction was liable to be understood as saying to the jury that, in order to justify an acquittal, the doubt of the defendant's guilt must arise out of the evidence, and be such as to cause a prudent man to hesitate before acting in matters of the gravest concern, it was clearly wrong. It is not the law that, in order to justify an acquittal, the doubt must arise out of the evidence given, and be such as to cause a prudent man to hesitate. The doubt may arise from a want of evidence. In order to justify a conviction the evidence must be such as to produce in the minds of prudent men such certainty that they would act upon the conviction produced without hesitation in their own most important affairs. Jarrell v. State, 58 Ind. 293; Stout v. State, 90 Ind. 1. The instruction is subject to criticism in other particulars.

There are other instructions in the record of which it might be said they are not technically accurate as abstract statements of the law. Upon an examination of all the instructions, however, as applied to the evi

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dence in the case, we are of opinion that no substantial injustice resulted to the defendant. The principal facts in the case were not seriously in dispute, nor could there have been any grave doubt upon any point material to a conviction. A careful consideration of all the evidence leaves no room for doubt in our minds that, notwithstanding the court may have in some degree erred in the statement of merely abstract propositions of law, the conclusion was inevitable that the jury must have found the defendant guilty of murder. The statute wisely provides, in respect to appeals in criminal causes, that, "in the consideration of the questions which are presented upon an appeal, the supreme court shall not regard technical errors, or defects, or exceptions to any decision or action of the court below which did not, in the opinion of the supreme court, prejudice the substantial rights of the defendant.” Considering all the instructions given, and it appears the jury were, in respect of all that was material to enable them to arrive at a correct result, properly instructed. However much we may regret the giving of instructions which are subject to criticism, we cannot, in view of the statute, reverse the judgment for errors which may have intervened on account of inaccuracies or merely abstract misstatements of law found in some of the instructions. Epps v. State, 102 Ind. 539; S. C. 1 N. E. Rep. 491.

On behalf of the defendant 10 instructions were presented, and refused by the court. The first was to the effect that, unless the jury were convinced beyond a reasonable doubt that the death of the deceased was immediately caused by a blow upon the head, and that the blow was inflicted by the defendant, they must acquit, so far as the second count is concerned.

This instruction was properly refused. There was no dispute but that the blow on the head was inflicted by the defendant. The evidence tended to show that two of the wounds found upon the body of the deceased were probably and almost certainly mortal. It was not material that the jury should have been convinced beyond a reasonable doubt which particular wound was the immediate cause of the death. If they found that two mortal wounds were inflicted by the defendant, as charged in the several counts of the indictment, and that death resulted therefrom, they were authorized to find the defendant guilty as charged in both counts, without determining which wound was the immediate cause of the death. Most of the instructions asked related to the subject of self-defense. It may be said they are, as abstract statements of law, correct. We are, however, unable to discover any evidence in the record which makes the law of self-defense applicable to any extent. Besides, the law relating to the rights of self-defense was stated to the jury in a substantially accurate instruction given by the court.

The only other ruling complained of relates to a decision of the court in admitting certain evidence offered by the state. As already stated, some ill feeling seems to have been engendered in respect of the relations of the deceased and the accused with Miss Ayleshire. The defendant had been her suitor. He had been supplanted by the deceased. This lady having been called as a witness for the state, the following question was propounded to her: “I will ask you to state what, if anything, Mr.

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Brown ever said to you about killing anybody that ever went to see you." Over the defendant's objection, she was permitted to answer as follows: "I never heard him make any threats against any particular one. He said he would kill any one if I received their company, but him." This evidence was clearly admissible for what it was worth. If true, it tended to show that the killing was premeditated, -the execution of a purpose to destroy the life of any one who might be preferred, in the esteem of the witness, to himself. As exhibited by the record, the inspiring motive which impelled the defendant in the bloody tragedy seems to have been a feeling of base and uncontrolled jealousy.

We think the verdict was right on the evidence, and notwithstanding the technical misstatements of the law already alluded to, it so clearly appears that these were not influential in producing a result which must have been reached in any event that no substantial injury was done.

The judgment is affirmed, with costs.

NOTE.

The guilt of the accused must be established beyond a reasonable doubt. Cornish v. Territory. (Wyo.) 3 Pac. Rep. 793; Com. v. Leonard, (Mass.) 4 N. E. Rep. 96.

The rule requiring proof beyond a reasonable doubt does not require that the jury be satisfied beyond a reasonable doubt of each separate link in the chain of evidence, isolated from its connection with the other testimony. It is sufficient, taking the testiniony all together, if the jury are satistied beyond a reasonable doubt that the defendant is guilty. Bressler v. People, (III.) 3 N. E. Rep. 521.

It is error to instruct a jury that, while each juror must be satisfied of the defendant's guilt beyond a reasonable doubt to authorize a conviction, such reasonable doubt, unless entertained by all the jurors, does not warrant an acquittal. Stitz v. State, (Ind.) 4 N. E. Rep. 145.

It is questioned in Marion v. State, (Neb.) 20 N. W. Rep. 289, whether this rule applies to cases where the evidence relied npon to convict is purely circumstantial.

To warrant a conviction upon circumstantial evidence, the circumstances, when taken together, must be of so conclusive a nature as to show beyond a reasonable doubt that the accused, and no other person, committed the offense. Walbridge v. State, (Neb.) 13 N. W. Rep. 209.

A reasonable doubt does not mean all doubt. U. 8. v. Wright, 16 Fed. Rep. 112.

The doubt must be a substantial, and not an imaginary or speculative, doubt. U. S. v. Keller, 19 Fed. Rep. 633.

It must be such a doubt as a prudent and reasonable man would be likely to act upon in determining important affairs in life. People v. Dewey, (Idaho,) 6 Pac. Rep. 103.

"Such a doubt as a man of ordinary prudence, sensibility, and decision, in determin. ing an issue of like concern to himself as that before the jury to the defendant, would allow to have any influence whatever upon him, or make him pause or hesitate in arriving at his determination,” Leonard v. Territory, (Wash. T.) 7 Pac. Rep. 872; or "such a doubt as would canse a reasonable, prudent, and considerate man to hesitate and pause before acting in the graver and more important affairs of life," State v. Pierce, (Iowa,) 21 N. W. Rep. 195.

It must be such a doubt as fairly and naturally arises in the mind of the jury after fully and carefully weighing and considering the evidence which has been introduced, viewed in all the light and circumstances surrounding the case, State v. Stewart, (Iowa,) 3 N. W. Rep. 99; and it must arise from a candid and impartial consideration of all the evidence in the case, Stave v. Pierce, (Iowa,) 21 N. W. Rep. 195.

The jury must not be satisfied by a mere probability of the truth of the charges in the indictment, but the evidence must produce in their minds an assurance and certainty of guilt beyond a reasonable doubt, before they can pronounce the accused guilty. U. S. v. Searcey, 26 Fed. Rep. 435.

A reasonable doubt is not a mere guess-a mere surmise—that one may not be guilty of what he is charged with; it is a doubt that a jury may entertain, as reasonable men, after a thorough review and consideration of the evidence,-a doubt for which a good reason arising from the evidence can be given. U. S. v. Johnson, 26 Fed. Rep. 682.

A reasonable doubt is defined in People v. Guidici, (N. Y.) 3 N. E. Rep. 493, as "a doubt for which some good reason arising from the evidence can be given ;” and in

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Minich v. People, (Colo.) 9 Pac. Rep. 4, “as such a doubt as would cause a reasonable man to hesitate and pause."

Judge Dick says, in the recent case of U. 9. v. Hopkins, 26 Fed. Rep. 443, that "the inherent imperfection of language renders it impossible to define in exact and express terms the nature of a reasonable doubt. It arises from a mental operation, and exists in the mind when the judgment is not fully satisfied as to the truth of a criminal charge, or the occurrence of a particular event, or the existence of a thing."

A preponderance of evidence in a criminal case is not necessary to raise a reasonable doubt. State v. Porter, (Iowa,) 20 N. W. Rep. 168; State v. Red, (Iowa,) 4 N. W. Rep. 831.

Neither the preponderance of evidence, nor the weight of preponderant evidence, is necessary to raise a reasonable doubt. See Walbridge v. State, (Neb.) 13 N. W. Rep. 209.

It has been said that "clearly proven" does not mean " beyond a reasonable doubt." State v. Stewart, (Iowa,) 3 N. W. Rep. 99.

An instruction to the jury directing them to determine the question of the fact of proof beyond a reasonable doubt, "just as they would determine any fact in their own private affairs," is not sufficient, Territory v. Lopez, (N. M.) 2 Pac. Rep. 361; and that it is error to charge that "reasonable doubt" means doubt suggested by or arising out of the proof made, and that in considering the evidence, and arriving at a verdict, “what is called 'common sense' is perhaps the juror's best guide."

It is not error to refuse to instruct the jury that if any one of them entertains a reasonable doubt of the defendant's guilt there must be an acquittal. State v. Witt, (Kan.) 8 Pac. Rep. 769.

Each juror is to act upon his own judgment, and, if he entertains a reasonable doubt, is not required to surrender his convictions and render a verdict nerely because the other jurors entertain no such doubt. State v. Hamilton, (Iowa,) 11 N. W. Rep. 5.

Proof is deemed to be beyond a reasonable doubt when the evidence is suflicient to impress the judgment and understanding of ordinarily prudent men with a conviction on which they would act in the most important concerns or affairs of life. Polin v. State, (Neb.) 16 N. W. Rep. 898.

Where a criminal charge is sought to be proved by circumstantial evidence, the proof must not only be direct, State v. Clemons, (Iowa,) 1 N. W. Rep. 546, but also consistent with the guilt of the accused, and inconsistent with any other rational conclusion, Walbridge v. State, (Neb.) 13 N. W. Rep. 209; People v. Davis, (Cal.) 1 Pac. Rep. 889.

It is not sufficient that the circumstances proved coincide with, account for, and therefore render probable the hypothesis sought to be established by the prosecution, but they must exclude to a moral certainty every hypothesis except the single one of guilt. People v. Davis, (Cal.) 1 Pac. Rep. 889.

Testimony not believed does not raise a reasonable doubt. Binfield v. State, (Neb.) 19 N. W. Rep. 607.

To establish the defense of an alibi preponderance of evidence is all that is required. Whether a defendant is entitled to acquittal if the evidence of the alibi is sufficient to raise a reasonable doubt of his guilt, quære. State v. Reed, (Iowa,) 17 N. W. Rep. 150. See State v. Hamilton, (Iowa,) 11 N. W. Rep. 5.

It has been held that if there is evidence upon which a verdict of guilty might reasonably be founded, an appellate court will not interfere, whatever may be their opinion as to the weight or preponderance of the evidence. Cornish v. Territory, (Wyo.) 3 Pac. Rep. 793.

(106 Ind. 139)

STATE v. RICE.

Filed April 1, 1886. HUSBAND AND WIFE-DESERTION OF WIFE-INDICTMENT.

The statute making it a crime for a husband, without cause, to desert his wife, leaving her without provision for comfortable support, does not apply where she is left with means for comfortable support, no matter whether provided by the husband or not; and an indictment charging one with so deserting his wife, “without making provision for her comfortable support,” is bad on motion to quash.

Appeal from Warrick circuit court.
W. A. Land, for appellant.
Hardy, Armstrong & Cockman, for appellee.

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MITCHELL, J. The state brings this appeal, and asks the reversal of a ruling of the court below in sustaining a motion to quash an indictment. It is charged in the indictment that Isaac M. Rice on a date mentioned, unlawfully and without cause, deserted his wife, Mary E. Rice, without making provision for her comfortable support, contrary to the form of the statute.

Section 2033, Rev. St. 1881, enacts as follows:

“Whoever, without cause, deserts his wife, child, or children, and leaves such wife, or her child or children, a charge upon any of the counties of this state, or without provision for comfortable support, shall be fined,” etc.

The charge is that the defendant, without cause, deserted his wife "without making provision” for her comfortable support. On behalf of the defendant it is contended that the crime consists in the causeless desertion of a wife by a husband, the wife being at the time without provision for comfortable support. Accordingly it is argued that if the wife had, at the time she was deserted, sufficient provision for her comfortable support, it was no offense, within the statute, that the husband deserted her without making such provision. This is the view upon which the court sustained the motion to quash. We think it was correct. The penalty of the statute is denounced against the husband or father who, without cause, deserts and leaves his wife, child, or children without provision for comfortable support. Where, however, the wife, child, or children are, at the time of such desertion, left with a comfortable support, whether such provision was made by the husband or father, or is possessed in the right of the wife, child, or children, the desertion is not criminal within the statute. If it were otherwise, a worthless husband might be fined for deserting his wife, even though she possessed a fortune amply sufficient for her support. The offense should have been charged in the language of the statute. As charged, it nevertheless remained open to inference that the wife may have been left with abundant provision for her comfortable support, although such provision was not made by the husband.

The judgment is affirmed.

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(106 Ind. 141)

JAQUA V. CORDESMAN & EGAN Co.

Filed April 1, 1886. 1. PLEADING-COMPLAINT-ACCOUNT.

A complaint on an account for work and labor performed at the request of the defendant, which avers that the defendant is indebted to the plaintiff, is

good, although it does not allege that the debt is due and unpaid. 2. TRIAL-INSTRUCTIONS.

Where the plaintiff requests the court to instruct in writing, but no such request is made by the defendant, and the court gives oral instructions, the defendant cannot successfully complain of the action of the court in giving oral instructions. Appeal from Jay circuit court. Taylor, Smith & Bailey, for appellant. Headington & Lafollette, for appellee.

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