The Territory vs. Bannigan.
sition is not altogether free from perplexity. But does not the determination of necessity involve the character of the doubt? and on this point the Judge intimates but one qualification, and that is, it mast not be a possible doubt, which in law is understood to be excluded by the word reasonable, previously employed in the charge. The import of the instruction and the sense in which we may reasonably presume it to have been understood by the jury, is, that they should be satisfied beyond a reasonable doubt of defendant's guilt, and in determining the character of that doubt, and its application to the evidence in the case, they should act as a prudent, careful business man would act in determining an important matter pertaining to his own affairs. And in this light the instruction is clearly erroneous.
Had the Judge told the jury, "that in determining the question of defendant's guilty you will act as a prudent, careful business man would act in determining an important matter pertaining to his own affairs," we apprehend counsel for the prosecution would not for a moment insist upon its correctness. But the determination of the question of guilt is reached through a proper understanding of all the facts and circumstances in evidence, properly weighed and understood in the light of the law applicable, and if a mistake is made in any of the intermediate steps taken, the probabilities are that an erroneous result may be attained. The ultimate question of guilt may turn on the very point of reasonable doubt, and consequently "in determining this question of doubt"—to use the language of the Judge—the jury are determining the very question in issue, to-wit: the defendant's guilt.
On this point Greenleaf, in his work on Evidence (Vol. 1, § 2,) lays down the doctrine as follows: "By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof, which ordinarily satisfies an unprejudiced mind, beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined; the only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a com-
