The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the .instructions of the lower court. And conceding this instruction to be obnoxious to criticism, of which fact I have some doubt, yet its weaknesses form too slight a basis for a reversal of the judgment in this case.
I do not believe that the fact of innocent men having been convicted in the past was a matter to be considered by the jury in making up their minds as to the guilt or innocence of this defendant. Such fact could not add to or take away one jot from the weight to be given every piece of evidence in the case. It was the duty of the jury to be convinced, beyond a reasonable doubt, from all the evidence in the case, of the guilt of the defendant, before they could convict, and the fact of innocent men having been convicted in the past should not and could not have impregnated itself into the question of reasonable doubt in any way.
The jurors in this case, under their oaths, were bound to try this defendant in the same manner, under the *241same rules of law, and give him the full benefit of all the shields with which the law surrounds every defendant, whether as a matter of fact no innocent men ever had been convicted in the past, or whether such convictions by our courts of justice were an ordinary occurrence.
I see nothing in the instruction to indicate hostility toward the defendant. The words “ sympathy ” and “prejudice,” as used, applied equally as strong in his favor as against him. If all “ defendants ” must go free, I consider would have been a more appropriate expression than if all “ criminals ” must go free; yet I do not think a jury would get the impression, and am sure that it ought not to get the impression, that by the use of the word “ criminals,” as used in the instruction, the lourt intended to refer to the defendant as one of that Aass.
I think the judgment should be affirmed.