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App. 181 ; Shippers* Compress & Ware-
house Co. V. Dayldson, 80 S. W. 1032,
35 Tex. Cly. App. 558 ; Galveston, H.
& S. A. Ry. Co. V. Matula, 79 Tex.
577, 15 S. W. 573.

ITtali. Olson v. Oregon Short Lhie
R. Co., 68 P. 148, 24 Utah, 460.

Wasli. Morrison y. Seattle Elec-
tric Co., 115 P. 1076, 63 Wash. 531.

«8 IT. S. (C. C. A. Mo.) Ch^-n-o. R.
I. & P. Ry. Co. V. Linney, 59 F. 45,
7 C. C. A. 656.

Oal. Sappenfleld v. Main St. & A.
P. R. Co., 91 Cal. 48, 27 P. 590.

Ga. East Tennessee, V. & G. Ry.
Co. y. Daniel, 91 Ga. 768, 18 S. E.

ni. Caty of Roodhouse y. Christian,
158 111. 137, 41 N. E. 748.

Ind. Pennsylyanla Co. v. Ebaugh,
144 Ind. 687, 43 N. B. 936; Wabash &
W. Ry. Co. V. Morgan, 132 Ind. 430.
32 N. E. 85, affirming 132 Ind. 430,
31 N. E. 661.

Iowa. Brooke v. Chicago, R. I. &
P. Ry. Co., 81 Iowa, 504, 47 N. W. 74

Tox. Texas & P. Ry. Co. v. Nix
(Civ. App.) 23 S. W. 328 : Galveston,
H. & S. A. Ry. Co. V. Davis, 4 Tex.
Cly. App. 468, 23 S. W. 301.

«T Cleveland, C, C. & St. U Ry. Co.
y. Monaghan,'140 111. 474. .'iO N. E.
869, affirmed 41 111. App. 408: Spick-
elmelr v. Hartman (Ind. App.) 12:^
N. B. 232; Jones v. Chicago & A. R.
Co., 28 Mo. App. 28 ; Holt v. School
Dist. No. 71 of King County, 173 P.
335, 101 Wash. 442.

38 Boa v. San Fraocisco-Oakland
Terminal Rys., 187 P. 2, 182 Cal. 93 ;
Williams v. Mt. Vernon Car Mfg. Co.,
211 111. App. 68; Rasten v. Calder-
wood, 175 N. W. 1007, 145 Minn. 493 ;
Hulse V. St. Joseph Ry. Co. (Mo. App.)
214 S. W. 150; Bullock v. Yakima
Valley Transp. Co., 184 P. 641, 108
Wash. 413.

Digitized by





ibiHty of witnesses,** to instructions on the burden of proof or
amount of evidence required to find a fact in issue,** to instruc-
tions upon the measure of damages or the amount of recovery,*^

«» Grtffin V. State, 216 S. W. 34, 141
Ark. 43; St. Louis Southwestern Ry.
Co. V. Johnson, 59 Ark. 122, 26 S. W.
593; Morehouse v. Remson, 59 Conn.
392, 22 A. 427 ; Roberts v. Morrison,
75 Iowa, 321, 39 N. W. 519; State v.
Keys, 53 Kan. 674, 37 P. 167.

niustratlons of errors not cured
by oilier Infltniotioiifl. Error in in-
structing that where two witnesses
directly contradict each other the evi-
dence is balanced unless one is cor-
roborated, was not rendered harmless
by a subsequent instruction that two
witnesses did not necessarily out-
weigh one, and that the jury should
consider all the circumstances sur-
rounding each witness in determining
his credibility. Sickle y. Wolf, 91
Wis. 396, 64 N. W. 1028. An instruc-
tion that the Jury should consider
"the character of the witness, so far
as you Imow it, as bearing upon the
question whether a tiritness would be
truthful and reliable, or not. My ob-
servation is that pretty good persons
sometimes lie, and that pretty bad
persons sometimes tell the truth" — ^is
erroneous, and is not cured by an-
other instruction that nothing is to be
found "by conjecture," but that the
verdict "must be based upon evi-
dence," and facts inferable from the
proofs. Johnson v. Superior Rapid
Transit Ry. Ck)., 91 Wis. 233, 64 N. W.

40 IT. S. JEtna Life Ins. CJo. v.
Ward, 140 U. S. 76, 11 S. Ct 720, 35
L. Ed. 371.

Ala. Montgomery v. Crossthwait,
90 Ala. 653, 8 So. 498, 12 L. R. A. 140,
24 Am. St Rep. 832.

Cal. Foley v. Homung, 169 P. 705,
35 Cal. App. 304 ; Beckman v. McKay,
14 Cal. 250.

Conn. Appeal of City Bank of New
Haven, 54 Conn. 269, 7 A. 548.

Oa. Postal Telegraph Cable Co. v.
Douglass, 96 Ga. 816, 22 S. B. 930.

ni. Holliday v. O'Gara Coal Co.,
203 111. App. 89; Smiley v. Barnes,
196 111. App. 530; Hinchliff v. Robin-
son, 118 III. App. 450.

Neb. Nye-Schneider-Fowler Co. v.

Chicago & N. W. Ry. Co.. 179 N. W.

ninstrations of objeetionfl enred.

A charge that, to sustain a plea of
truth in justification of slanderous
language, defendant must prove the
plaintiff "actually" guil^, while
standing alone, was ol^ectionable in
that the word "actually" placed too
heavy a burden on defendant, yet
when taken in connection with other
charges, that it was only necessary to
sustain the plea by a preponderance
of the evidence, was not error. Gil-
strap V. Leith, 102 S. E. 169, 24 Ga.
App. 720. In an action for death in
an accident to which there were no
eyewitnesses, an instruction that the^p.
law "presumes" that deceased was ex-
ercising due care was not objection-
able as shifting on defendant the bur-
den of proof as to contributory negli-
gence, where the court subsequently
and repeatedly charged that the bur-
den was at all times on plaintiflF to
prove that decedeit exercised ordi-
nary care, in view of the fact that
the word **presumption" is frequently
used as the equivalent and synonym
of the word "inference." Anderson v.
Chicago, R. I. & P. Ry. Co. (Iowa) 175
N. W. 583.

«i IT. 8. Louisville, E. & St L. R.
Co. V. Clark^, 152 U. S. 230, 14 S. Ct.
579, 38 L. Ed. 422.

Oa. City of Atlanta v. Whitley,
101 S. B. 2, 24 Ga. App. 411.

ni. McFarlane v. Chicago City Ry.
Co.. 123 N. E. 638, 288 lU. 476, af-
firming Judgment 212 111. App. 664;
Malott V. Crow, 90 111. App. 628.

Ind. Otter Creek Coal Co. v. Arch-
er. 115 N. E. 952, 64 Ind. App. 381.

Iowa. Flanagan v. Baltimore & O.
R. Co., 83 Iowa, 689, 50 N. W. 60;
Davis V. Walter, 70 Iowa, 465, 30 N.
W. 804.

Mi<^]i. Neely v. Detroit Sugar Co.,
101 N. W. 664, 138 Mich. 469.

Mo. Wojciechowski v. Coryell
(App.) 217 S. W. 638 ; Buck v. People's
St. Ry. & Electric light & Power Co.,
108 Mo. 179, 18 S. W. 1090; Hulett
V. Missouri, K. & T. Ry. Co., 80 Mo.

Digitized by




§ 535

that an instruction does not confine the jury to the evidence in as-
sessing the damages,*' to instructions given in connection with the
submission of special interrogatories,** to objections that instruc-
tions given are not applicable to the facts,** that the court mis-
stated the evidence or the testimony of a witness,** that a mistake
was made in giving a date,** to the use of the word "plaintiff," in-
stead of "defendant," or vice versa,*' that instructions are argu-
mentative,** that they devolve upon the jury the duty of determin-
ing what the issues in the case are, or of deciding what the ma-
terial allegations of the pleadings are,** that they refer the jury to
the pleadings to determine their contents or the issue,** that they
use inappropriate phrases or contain improper definitions or fail

App. 87; Price v. Barnard, 70 Mo.
App. 175.

Or, Farmers' & Traders* Nat
Bank v. Wooden. 61 P. 83?, 38 Or.
2M, affirmed 65 P. 520, 38 Or. 294.

Use of words sussr^Btins bare
possibility instead of reasonable
certainty. In an action for malprac*
tice, an instruction on the question of
reasonable certainty of future opera-
tions and suffering, wlille the use of
the word **may" might give the jury
the meaning of "bare possibility," In-
stead of "reasonable certainty," yet
where the Instruction refers to such
suffering as the jury "believes she
will in the future endure," the word
"may" was not llltely to mislead, and
must be considered as harmless, and
not warranting reversal Krinard v.
Westerman, 216 S. W. 938, 279 Mo.

•*2 Indianapolis Traction & Terminal
Co. V. Thomburg (Ind. App.) 125 N.

B. 67 ; Terre Haute, I. & E. Traction
Co. V. Stevenson (Ind.) 123 N. E. 785,
rehearing denied 126 N. E. 3; In-
dianapolis Traction & Terminal Co.
V. Beckman, 81 N. E. 82, 40 Ind. App.

48McCormack v. Phillips, 4 Dak.
506, 34 N. W. 39; Chopin v. Badger
Paper Co., 83 Wis. 192, 53 N. W. 452.

4* IT. S. (C. C. A. Tex.) Texas &
P. Ry. Co., V. Nolan, 62 F. 552, 11 C.

C. A. 202.

Ark. McNeill v. Arnold, 22 Ark.

Ha. Keech v. Enrlquez, 28 Fla.
597, 10 So. 91.

ni. North Chicago St R. Co. T.
Cook, 145 111. 561, 33 N. B. 958.

Ind. Evansville & I. R. Co. v. Dart-
ing, 6 Ind. App. 375, 33 N. E. 636.

Kan. Burns v. Clark, 185 P. 27,
105 Kan. 454.

Mo. Tillery v. Harvey (App.) 214
S. W. 246; Taylor v. Scherpe & Ko-
ken Architectural Iron Co., 133 Mo.
349. 34 S. W. 581.

Tex. Gulf, C. & S. F. Ry. Co. v.
Kelly (Civ. App.) 34 S. W. 140.

Vt. Bragg V. Laraway. 65 Vt. 673,
27 A. 492.

*6Foote V. Brown, 70 A. 699, 81
Conn. 218; Wally v. Clark, 106 A.
542, 263 Pa. 322; Stremme v. Dyer,
72 A. 274, 223 Pa. 7; Senft v. Mc-
nvain, 43 Pa. Super. Ct 518.

.4« Wilson v. Chicago Heights Ter-
minal Transfer R. CJo., 212 III. App.

*7 Central of Georgia Ry. Co. v.
Hartley (Ga. App.) 103 S. E. 259;
Manes v. St. Louis. San Francisco Ry.
Co., 220 S. W. 14, 205 Mo. App. 300.

*8McCormick v. Parriott, 80 P.
1044. 33 Colo. 382.

*» Strlngham v. Parker, 159 111. 304,
42 N. E. 794. affirming Stringam v.
Same, 56 111. App. 36; Boynton v.
Chicago City Ry. Co., 155 HI. App.
448 ; Robertson v. Monroe, 7 Ind. App.
470, 33 N. E. 1002 ; Hatfield v. Chlca-
go. R. I. & P. Ry. Co., 61 Iowa, 434,
16 N. W. 336.

»o Probert v. Anderson, 77 Iowa, 60,
41 N. W. 574; Southern Ry. Co. v.
Ganong, 55 So. 355, 99 Miss. 540; Mis-
souri, K. & T. Ry. Co. of Texas v.
Aycock (Tex. Civ. App.) 135 S. W.

Digitized by





to define certain terms,^^ and that they apparently leave to the jury
a question of law.**

In criminal cases the above rule has been applied to objections
to sufficiency of instructions on the elements of the oifense
charged,** on the question of the intent of the defendant,** on self-
defense,** on question of defense of insanity or intoxication,** to
instructions on the issue of the defense of alibi,*' to instructions
criticized as suggesting the interest of defendant on the question
of his credibility,** to instructions on accomplice testimony ,*• to
instructions on inferences arising from flight and concealment,** to
instructions bearing on the burden of proof,** to instructions on
the right to convict on circumstantial evidence,** on the character

Bi U. S. (0. C. A. N. Y.) Texas &
P. Ry. Co. V. Coutourie, 135 F. 465. 68
C. C. A. 177.

Colo. Doherty y. Morris, 17 Colo.
105, .28 P. 85.

Ga, Holland y. Durham Coal &
Coke Co., 63 S. B. 290, 131 Ga. 715.

Iowa. Collier v. McCllntic-Mar-
shall Const Co., 138 N. W. 522, 157
Iowa, 244; Webber y. Sullivan, 68
Iowa, 260. 12 N. W. 319.

Mioli. Smith y. Detroit United
Ry., 119 N. W. 640, 155 Mich. 466.

Minn. Witaker y. Chicago, St. P.,
M. & O. Ry. Co., 131 N. W. 1061, 115
Minn. 140.

Mo. Wamsganz v. Blanke-Wen-
neker Candy Co. (App.). 216 S. W.
1025; Bond v. WiUiams (Sup.) 214 B.
W. 202 ; Muehlhausen v. St. Louis R.
Co., 91 Mo. 332, 2 S. W. 315; WaUer
V. Missouri, K. & T. Ry. Co., 59 Mo.
App. 410.

Tex. Ma^olia Motor Sales Corp.
V. Chaffee (Civ. App.) 192 S. W. 562 ;
Friedrieh v. Gelsler (Civ. App.) 141
S. W. 1079; Fordyce v. Chancy, 2
Tex. Civ. App. 24, 21 S. W. 181.

Utah. Downey v. Gemini Min. Co.,
68 P. 414, 24 Utah, 431, 91 Am. St
Rep. 798.

C2 Seaboard Air Line Ry. v. Scar-
borough, 42 So. 706, 52 Fla. 425.

ssAyers v. State. 178 P. 782, 20
Ariz. 180; Zinn v. State, 205 S. W.
704, 135 Ark. 342; People v. Wade-
man, 175 P. 791, 38 Cal. App. 116.

04 People V. McKeighan, 171 N. W.
500, 205 Mich. 367 ; State v. Reagan,
217 S. W. 83, 280 Mo. 57.

58 Ark. MaUory v. State, 217 S.
W. 482, 141 Ark. 496; Hines v. State,
215 S. W. 735, 140 Ark. 13 ; Branscum
V. State,*203 S. W. 13, 134 Ark. 66.
Cal. People v. Fowler, 174 P. 892.
178 Cal. 657.

Ga. White v. State. 94 S. E. 222,
147 Ga. 377; SwiUing v. State. 90 S.
E. 78, 18 Ga. App. 618 ; Cox v. State,
88 S. E. 214, 17 Ga. App. 727.

Ky. Copley y. Commonwealth. 211
S. W. 558, 184 Ky. 185.

S. C. State y. Brown, 101 S. E.
847, 113 S. C. 513; State v. Gandy,
101 S. E. 644, 113 S. 0. 147.

Tex. Anderson y. State, 217 S. W.
390, 86 Tex. Cr. R. 207; Swilley v.
State, 166 S. W. 733, 73 Tex. Cr. R.
619; Young v. State, 135 S. W. 127,
61 Tex. O. R. 303.

50 Brown v. State, 96 S. B. 435, 148
Ga. 264.

»7 McDonald v. State, 94 S. E. 262,
21 Ga. App. 125; Horton v. State, 93
S. E. 1012, 21 Ga. App. 120.

5 8 Murphy v. State, 80 So. 636, 119
Miss. 220. V

50 Lockhead v. State, 213 S. W. 653,
85 Tex. Cr. R. 459.

«o State V. Ching Lem, 176 P. 590,
91 Or. 611.

61 State V. Tachln, 108 A. 318. 93
N. J. Law, 485, affirming judgment
106 A. 145, 92 N. J. Law, 269; Ia-
grone v. State, 209 S. W. 411, 84
Tex. Cr. R. 609.

2 State V. Arnett (Mo.) 210 S. W.

Digitized by





of the defendant,** and on the doctrine of reasonable doubt,®* to

«8 Commonwealth v. Tenbroeck, 108
A. 635, 265 Pa. 251 ; Commonwealth
V. Stoner, 108 A. 624, 265 Pa. 139.

niiuitratloiis of instmotioiifl
Iield not erroneoiui. Where the
conrt correctly and properly charges
as to the consideration to be given ev-
idence of good character, it cannot be
<ionvlcted of error in further charg-
ing as follows: "This does not mean
that because a man has behaved well
In a certain particular heretofore,
and has there and then ceased to be-
have well and has in fact committed
the crime charged, it does not mean
that, if he is guilty, he shall be ac-
<iuitted or have any benefit of the
fact that he has heretofore behaved
well, but it does mean that in deter-
mining whether yon are satisfied be-
yond a reasonable doubt that he is
guilty, that he did commit the act,
you shall give him the benefit of a
full and fair consideration of the evi-
dence of good reputation in connec-
tion with all the other evidence in
the case." Commonwealth v. Stoner,
70 Pa. Super. Ct 365. Where the
trial judge fully and accurately in-
structs as to the effect of good char-
acter as a defense, it is not error to
add, "but where the Jury is satisfied
beyond a reasonable doubt under all
the evidence that defendant Is guilty,
evidence of previous good character is
not to overcome the conclusion which
follows from that view of the case."
Commonwealth v. Tenbroeck, 108 A.
635, 265 Pa. 251.

a4 Al«. Brown v. State, 74 So. 738,
15 Ala. App. 611,

Oal. People v. Hatch, 125 P. 907,
163 Cal. 368; People v. Corey, 97 P.
907, 8 Cal. App. 720 ; People v. Nun-
ley, 75 P. 676, 142 Cal. 105; Id., 76
P. 45, 142 Cal. 441; People v. GU-
more, 53 P. 806, 121 CaL xvii; People
V. Ross, 46 P. 1059, 115 Cal. 233;
People V. Core^ 59 CaL 390.

Conn. State v. Bailey, 65 A. 951,
79 Conn. 589.

Oa. Langston v. State, 97 S. E.
444, 23 Ga. App. 82; Harrfson v.
State, 92 S. B. 970, 20 Ga. App. 157;
Brooks V. State, 90 S. E. 971, 19 Ga.
App. 45; Ponder v. State, 90 S. B.

376. 18 Ga. App. 727 ; Helms v. State,
76 S. E. 353, 138 Ga. 826; Dickens v.
State, 73 S. B. 826, 137 Ga. 523.

Ind. Hinshaw v. State, 124 N. E,
458. 188 Ind. 447; Sherer v. State, 121
N. B. 369, 188 Ind. 14.

Iowa. State v. Smith, 99 N. W.
579; State v. PhUlips, 92 N. W. 876,
118 Iowa, 660.

Kan. State v. Adams, 20 Kan. 311.

Ky. Daniels v. Commonwealth, 205
S. W. 402, 181 Ky. 392 ; Long v. Com-
monwealth, 197 S. W. 843, 177 Ky.
391; O'Day v. Commonwealth, 99 S.
W. 937, 30 Ky. Law Rep. 848.

Mioli. People v. WiUiams, 175 N.
W. 187, 208 Mich. 586.

Mo. State v. Miles, 98 S. W. 25,
199 Mo. 530.

N. J. State V. Kuehnle, 88 A. 1085,
85 N. J. Law, 220, Ann. Cas. 1916A,
69, affirming judgment 85 A. 1014, 84
N. J. Law, 164.

N. M. Territory v. Caldwell, 98 P.
167, 14 N. M. 535; Faulkner v. Terri-
tory, 6 N. M. 464, 30 P. 905.

W. O. State V. Fain, 97 S. E. 716,
177 N. C. 120 ; State v. Martin, 92 S.
E. 597, 173 N. C. 808.

Op. State v. Morris, 163 P. 567, 83
Or. 429.

Pa. Commonwealth v. Rusic, 79 A.
140, 229 Pa. 587.

Tex. Graham v. State, 163 S. W.
726, 73 Tex. Cr. R. 28 ; Harrolson v.
State, 113 S. W. 544, 54 Tex. Cr. R.
452 ; Stephens v. State, 103 S. W. 904,
51 Tex. Cr. R. 406.

Utah. State v. Vacos, 120 P. 497,
40 Utah, 169.

Waah. State v. Lance, 162 P. 574,
94 Wash. 484; State v. Shea, 139 P.
203, 78 Wash. 342; State v. Wappen-
stein, 121 P. 989, 67 Wash. 502.

Wi«. Till V. State, 111 N. W. 1109,
132 Wis. 242.

ninstratlons of defects onred.
In a prosecution of a physician for
soliciting patients by means of a
drunmier or solicitor, an instruction
that it was not necessary to prove ac- '
cused guilty by the testimony of wit-
nesses who heard him employ a drum-
mer or solicitor to solicit patients for
him, but that sudi guilt might be es-
tablished by proof of facts and cir-

Digitized by





instructions criticized as not confining the jury to the evidence,**

cumstances from which his guilt
might reasonably and satisfactorily
be implied beyond a reasonable doubt,
while not In apt language, was not
misleading when taken in connection
witlr Instructions that accused was
presumed to be innocent, that the pre-
sumption obtained through the trial,
and that he was not required to pro-
duce evidence of his innocence until
every allegation material to the crime
charged had been proved beyond a
reasonable doubt, and that, before he
could be convicted on circumstantial
evidence, the testimony should be so
strong as to convince the Jury of his
guilt to such an extent as to exclude
every other reasonable hypothesis,
and that, if the evidence in any es-
sential point admitted of reasonable
doubt, accused should be acquitted.
Burrow v. City of Hot Spring, 108
S. W. 823, 85 Ark. 396. An instruc-
tion that the term "reasonable doubt"
does not mean a "mere possible doubt,
a conjectural doubt," nor "a doubt
which is merely capricious," when
read In connection with a preceding
instruction that a reasonable doubt is
that state of the case which, after an
entire comparison and consideration
of all the evidence, leaves the minds
of the jurors in that condition that
they cannot say they feel an abiding
conviction to a moral certainty that
defendant committed the offense, was
entirely correct People v* Botkin, 98
P. 861, 9 Cal. App. 244. Where the
court had charged that the law pre-
sumed every man to be innocent until
his guilt was established beyond all
doubt, which presumption attaches at
every stage of the case and to every
fact essential to a conviction, and,
again, that if the jury entertained
any reasonable doubt on any single
fact or element necessary to consti-
tute the crime it was their duty to
give the defendant the benefit of such
doubt, and acquit, defendant was not
entitled to object to a further instruc-
tion that if the Jury entertained a
reasonable doubt on any single mate-
rial fact, which was inconsistent with
defendant's guilt, arising from the ev-
idence in the case, it was their duty

to acquit, on the ground that such in-
struction dealt only with facts incon-
sistent with guilt People v. Ways-
man, 81 P. 1087, 1 Cal. App. 246.
Where the court charged that the law
presumes every man innocent until
his guilt is estabUshed to a moral cer-
tainty, and beyond all reasonable
doubt, and that such presumption at-
taches to every fact essential to a
conviction, an instruction that, while
every fact essential to prove defend-
ant's guUt to a moral certainty must
be fully proven, the law permits this
to be done by circumstantial evidence,
and where the evidence is circumstan-
tial, but proves every fact essential to
sustain the hypothesis of guilt, and
to exclude the • hypothesis of inno-
cence, and is inconsistent with any
other rational conclusion than that of
guilt. It is the jury's duty to convict,
was not erroneous. People v. Cain, 93
P. 1037, 7 Cal. App. 16a An Instruc-
tion that an alibi meant that a de-
fendant was elsewhere at the time of
the crime, and that If there was a
reasonable doubt as to whether the
two defendants were present the Jury
should acquit them, but. If one of de-
fendants was present and the other
not, the defendant not present should
be acquitted and the one present
should be convicted, was not errone-
ous for failing to state the law of
reasonable doubt, burden of proof,
and the various ingredients of the of-
fense, stated in other instructions, the
court having charged that no one in-
struction contained all the law, but
that the instructions taken together
should govern the Jury. Van Wyk v.
People, 99 P. 1009, 45 Colo. 1. Where,
in a trial for homicide, the question
of reasonable doubt was fully present-
ed to the Jury, an instruction that, if
defendant inflicted the wound on de-
ceased which caused, or contributed
to, his death, the state would not be
required to show that neither the de-
ceased, nor any one in attendance on
him, was guilty of negligence in the
care of the wound was not objection-

«5 People V. Silver. 122 N. E. 116.
286 111. 496.

Digitized by





to the omission of particular words, such as "as charged in the

able as falling to tell the jury that
they must find from the testimony,
beyond a reasonable doubt, that de-
fendant Inflicted the wound. State v.
Baker, 121 N. W. 1028, 143 Iowa, 224.
A conviction of larceny will not be re-
versed because the court, In referring
to defendant's story, instructed the
jury to consider from all the facts
whether the defense was probably
true, where they were also told that
defendant is not required to prove
his Innocence, and that If, after con-
sideration of all the evidence, there
was any reasonable doubt of guilt, he
must be acquitted. State v. Wolfley,
89 P. 1046, 75 Kan. 406, 11 L. R. A.
(N. S.) 87, 12 Ann. Cas. 412, rehearing
denied 03 P. 337, 75 Kan. 406. 11 L. R.
A. (N. S.) 87, 12 Ann. Cas. 412. The
jury having been instructed that, if
on the whole case they had a reasona-
ble doubt of defendant's guilt, they
should find him not guilty, they could
not find him guilty unless they believ-
ed the facts therein set forth beyond
a reasonable doubt under an instruc-
tion that if at the time defendant kill-
ed decedent he believed, and had rea-
sonable grounds to believe, that he
was in danger of death or great bodily
harm, and that it was necessary to
kill decedent, then defendant was not
guilty on the ground of self-defense,
but if the Jury believed beyond a rea-
sonable doubt that def^idant when
not in danger began the difficulty, or
if the combat was voluntarily engag-
ed in by both, then in each event de-
fendant could not be acquitted. Ken-
nedy V. Commonwealth, 109 S. W. 313,
33 Ky. Law Rep. 83. A charge that
suspicious circumstances may come to
the point where the jury is satisfied
of the existence of a fact, and it may
be they would go so far as to satisfy
the jury beyond a reasonable doubt of
some of the facts claimed to have
been proved by such evidence, is not
erroneous, particularly where taken
Yfith other parts of the charge stat-
ing that to prove the existence of a
fact by circumstances they must be
such as will lead the jury to but one
conclusion ; that is, proof of the fact
beyond a reasonable doubt. State y.

Ready, 72 A. 445, 77 N. J. Law, 329,
judgment reversed 75 A. 564, 78 N. J.
Law, 599, 28 L. R. A. (N. S.) 240. An
instruction that, when the plea of
self-defense Is relied on, it must be
proved by a preponderance of evi-
dence, is not erroneous, because it
was not added that defendant was en-
titled to every reasonable doubt,
where such instruction is afterwards
given. State v. Way, 56 S. B. 653, 76
S. C. 91. Where, in a prosecution for
homicide, where the trial court re-
peatedly charged that defendant must
show by the weight of the evidence
that he acted in self-defense, and that,
if there was a doubt as to the pre-
ponderance of the evidence on that Is-
' sue, it should be resolved in favor of
defendant, and in one part of the in-
struction charged that "the law holds
one who admits the killing of another
to a very strict account, and it re-
quires of him very satisfactory evi-
dence that it was necessary, that is,
apparently necessary,*' it was held
that the language could only be un-
derstood to mean that accused must
show that amount of evidence which
would overbalance the state's showing
that it was not self-defense, or raise a
doubt in accused's favor, and that the
instruction was not erroneous. State
V. Hibler, 60 S. E. 438, 79 S. C. 170.
An instruction that If the jury believ-
ed beyond reasonable doubt that ac-
cused intentionally and unlawfuUy
kiUed decedent, and found that the
facts did not establish express malice
beyond reasonable doubt, and that the

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