The Territory vs. Bannigan.
in phraseology or pedantic finessing in the use of words. Stare decisis is a maxim founded in wisdom, and when intelligently applied and adhered to with a sound discretion will "frae monie a blander free us, and foolish notion."
On the trial the Judge gave to the jury the following instruction: "The prosecution has the laboring oar, or the affirmative of the issues, and must satisfy you, not only by a preponderance of testimony, but beyond a reasonable doubt of defendant's guilt. By doubt I do not mean that you must be satisfied beyond the possibility of a doubt, but in determining this question of doubt you will act as a prudent, careful business man would act in determining an important matter pertaining to his own affairs."
The latter part of this instruction is assigned as error. It is insisted by counsel for the prosecution that this instruction does not direct the jury that in determining the question of defendant's guilty they are to "act as a prudent, careful business man would act in determining an important matter pertaining to his own affairs," but only in resolving the question of doubt.
The provision of our statute (§ 349, Crim. Proc.,) that "a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted," is but the assertion of the well recognized common law principle, and gives to defendant the benefit of every reasonable doubt. And no view or consideration by the jury of the facts and circumstances in evidence, in arriving at a conclusion as to the guilt of the defendant, and in which the primary and essential element of reasonable doubt is ignored, can receive the sanction of the law.
It is, therefore, of the gravest importance that on this point the jury should receive proper direction, that the rights of the defendant may not be abridged nor the wise and wholesome rules relaxed, by which the legal certainty of his guilt is established.
What does the Judge mean when saying, "in determining this question of doubt?" We must admit that the propo-
