Concurring Specially. — I concur in the conclusion in this case. Instruction No. 36 was refused by the court. Exception was taken and the ruling of the trial court is assigned as error.
This instruction given to the jury, standing alone, would justify a reversal of the ease. A statement of the trial judge to the jury, “that if a reasonable doubt of any facts necessary to convict the accused is raised in the minds of the jury by the evidence itself, or by the argument of counsel upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner and he should be acquitted,” has the tendency to mislead the jury, as it tells the jury that if a reasonable doubt necessary to convict is raised in their minds by argument of counsel, that doubt is decisive in favor of the prisoner, and the jury might conclude that the argument of counsel was more convincing than the evidence in determining the question of doubt of the guilt.
I am inclined to think in this ease that if the instruction had been given, the trial court in the instructions given upon reasonable doubt and the presumption of the defendant’s innocence and the duty of the jury as to finding the defendant guilty or acquitting him upon the evidence, overcomes and explains the statement to the jury in instruction 36, and that *670such instructions given by the court take away the vice of instruction 36.
In instruction 19 of the court the jury were told that “the law presumes the defendant innocent .... and not guilty .... and that this presumption should continue and prevail in the minds of the jury until they are satisfied by the evidence, beyond a reasonable doubt, of the guilt of the defendant”; and in instruction 22 the court instructs the jury that “to justify the conviction of the defendant, the burden is on the prosecution to prove by creditable evidence, to the satisfaction of the jury, beyond a reasonable doubt, that such defendant is guilty as charged in the information . . . . and if the evidence fails thus to satisfy the jury of the guilt of the defendant, it is the duty of the jury to acquit the defendant.”
These instructions clearly state the law, and in instruction 22 the court specifically states to- the jury that the verdict must be based wholly upon the evidence; and in instruction 23 defines reasonable doubt as this court has approved in a large number of cases. '
I do not believe the court would have committed an error upon the evidence in this case, which clearly establishes the defendant’s guilt, as shown by the record, had he given instruction 36.