dissenting.
It is said in the majority opinion: “Complaint is also made as to the giving of certain instructions. The imperfections in these instructions have been repeatedly pointed out by this court and they should not have been given, but under the condition of the record we cannot perceive wherein the defendant was prejudiced by their having been given.” The instructions complained of are as follows:
*525“No. 35. Tbe rule which clothes every one accused of crime with the presumption of innocence, and imposes upon the state the burden of establishing Ms guilt beyond a reasonable doubt, is not intended to aid any one who is in fact guilty to escape, but is a humane provision of the law, intended, so far as human agencies can, to guard against the danger of any innocent person being unjustly punished. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of a doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to pause, it is (in)sufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.
“No. 16. The court instructs the jury, as a matter of law, that the doubt which a juror is allowed to retain in his mind, and under which he should frame his verdict of not guilty, must always be a reasonable one. A. doubt - produced by undue sensibility in the mind of a juror, in view of the consequence of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources of doubt by resorting to trivial and fanciful suppositions, and remote conjectures, as to a possible state of facts differing from that established by the evidence. You are not at liberty to disbelieve as jurors if from the evidence you believe as men. Your oath imposes upon you no obligation to donbt where no doubt would exist if no such oath had been administered. You are instructed that if, after a careful, impartial consideration of all the evidence in the case, you can say and feel that you have an abiding-conviction of the guilt of the defendant, and are fully ■satisfied to a moral certainty of the truth of the charge made against him, them you are satisfied beyond a reasonable doubt.”
It is true that the above instructions have been con*526demned by this court, but this condemnation has been very tardy in coming, and it does not seem to the writer to be in active operation yet. As late as Leisenberg v. State, 60 Neb. 628, delivered at the September term, 1900, this court said of two of the most objectionable sentences in the instructions referred to: “This instruction has never, to our knowledge, received judicial condemnation; on the contrary, it was considered and distinctly approved in Willis v. State, 43 Neb. 102, and Barney v. State, 49 Neb. 515.” The objectionable sentences are: “You are not at liberty to disbelieve as jurors if from all the evidence you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.”
In Willis v. State, supra, Judge Ragan, Commissioner, delivered the opinion of the court. A comparison of paragraphs 15 and 16 of the instructions in the instant case shows that the language used is almost identical with the language used in the instructions of the court in the very noted case of Spies v. People, 122 Ill. 1. This is what is known as the anarchist case. It covers pages 1 to 267, inclusive. On page 82 of the report are the two. original instructions from which the above instructions in this case are taken. For the convenience of the reader we reproduce them here :
“12. The court instructs the- jury, as a matter of law, that in considering the case the jury are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.
*527“13. The court further instructs the jury, as a matter of law, that the doubt which the juror is allowed, to retain on his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror, in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible states of fact differing from that established by the evidence. You are not at liberty to disbelieve as jurors, if, from the evidence, you believe as men. Your oath imposes on you no obligation to doubt, •where no doubt would exist if no oath had been administered.”
In Barney v. State, 49 Neb. 515, this court follows the instructions above given in the Spies case. The opinion was delivered by Commissioner Irvine, and is unanimous. A comparison of the instruction used in that case with the instruction used in the Spies case will show that the language used is almost identical, except tlmt in the Spies case there were two instructions and in Barney p. State it seems to be all put in one instruction. Judge1 Irvine wrote an elaborate argument justifying the use of the instruction.
What I object to is that, while this court has Anally come around to that point wdiere it condemns the instruction, it does not condemn it in any practical wray so as to do the prisoner any good. What difference does it make to the prisoner if the reviewing court says it condemns the instruction as improper, but refuses to reverse the case and leaves the prisoner in the penitentiary? I am looking for a practical condemnation of the instruction that will reverse a case and give the defendant a new trial :because he has teen prejudiced by the giving of the instruction. This court says the instruction is wrong and it ought not to be given; then, in effect, it says, we cannot reverse a case simply because the trial judge has given *528improper instructions to the jury which probably convicted him. It is true that this court has announced the fact that an instruction of that kind is wrong, and some time or other, no one may tell when, it is likely to an-, nounce that the case is reversed because this instruction has been used. This instruction is either right or wrong. This court has no right to say that we reserve to ourselves the right to say when we will reverse a case because this instruction is objectionable. This sort of treatment of the rights of men who are charged with a crime, and their counsel, leaves everybody in the dark. The exercise or nonexercise of the power to reverse the case becomes arbitrary and despotic, and leaves to the will of the judges who sit as the reviewing court to say that in one case the judgment ought to be set aside, and in another case that it ought to stand, although the language in the, instruction is just the same. The truth about the matter is that, whenever a trial judge wants to convict, he will use this condemned instruction, with a feeling that, no difference if he has done so and the man has been wrongfully convicted under an instruction which this court has condemned, yet, nevertheless, this court will never reverse the case. If the instruction used in A’s case is condemned and A is left in the penitentiary, and in B’s case nothing is said about the instruction and B is left in the penitentiary, what is the difference between A and B so far as any good either has received from this court?
In the hope that this court will exercise the power which is given to it and will proceed to lay down some sort of a rule for the guidance and control of the district judges, I want to briefly discuss the instructions used. I want to say of the instruction in the Spies case that we are beginning to be far enough away from that case to exercise a little of that calm and dispassionate judgment which history will ultimately record. That case originated in Chicago where the people believed that their lives and property were in danger from an organization known as the anarchists. ' The men arrested and tried were- tried *529in the heat of passion. Some of them were defended by lawyers who justified anarchy more than they defended their clients. The Spies instruction would probably have not originated, except because of the peculiar circumstances. There was a fight between the anarchists in Chicago on the one side and the people on the other side. An instruction that an oath of a juror imposes upon him no obligation to doubt where no doubt would exist if no oath had been administered belittles the effect of taking the oath and is an attempt to do away with its influence. State v. Ruby, 61 Ia. 86; Siberry v. State, 133 Ind. 677. The effect of the instruction is to say to the juryman: “If you hare any doubts you do not need to let them trouble you.” The language used is an invitation to disregard the evidence. It tells the juryman that he may give expression to his belief as he might have it as a man and without acting as a juror; in other words, that he can express his belief about the matter just as he might express his belief about any bit of neighborhood gosssip that he might hear. That part of the instruction in the instant case which tells the juryman that the instruction “is not intended to aid any one who is in fact guilty to escape,” and also says, “a doubt, to justify an acquittal, must be reasonable,” assumes that the juror is looking for something that is not in the case. It assumes that he is looking for a state of facts differing, from those established by the evidence. The juror is a sworn officer of the law. He is selected generally because he is a well-known and prominent citizen whose business ability and superior intelligence commend him to the position which he is selected to fill. That an American judge should assume in a trial that the juror selected by a system provided by law would seek to shirk his duties, and that he would refuse to discharge them, and that he would need to be reminded of his inferiority and his tendency to go wrong is surpassingly strange. It is un-American and undemocratic. Such a course is deserving of unmeasured censure and condemnation and a *530reversal. No juror should be urged “to justify au acquittal.” That sort of a thing is scolding him in advance. Per Imps the members of this court have reasoned the matter out and know better than I do that it is all wrong, because they have condemned it, but their condemnation is utterly futile and brings nothing. This court-ought to reverse this case, and until it does reverse a case where this instruction is used, and for that reason alone, there will be no attention paid to it by the trial judges who seek conviction and who are willing to- ignore this court. It is no part of the duty of the judges to determine the guilt of the accused in the first place. The judges of the trial court are charged with the duty of giving proper instructions to the jury so that the jury may intelligently determine the questions of fact involved. It would seem that this court assumes to itself the right to determine when the anarchist instruction may be given without injury. This cannot be. There is always injury whenever the court talks to the jury about giving a reason for justifying an acquittal, or whenever the court talks to the jury about the doctrine of reasonable doubt being applicable to one case, the case of the innocent man, and not applicable elesewhere. Unfortunately this court in its treatment of the cases seems to assume the right to be as arbitrary as these distinct judges who refuse to be bound by the instructions which this court gives them from the bench. I do not clearly see the difference if the result is that the trial judge by giving this vicious anarchist instruction puts the defendant in the penitentiary and this court leaves him there, although it says the instruction is wrong.
In the case of Bartels v. State, p. 575, post, this court has decided the principal part of the first instruction given in this case to be prejudicially erroneous. The syllabus is: “An instruction in a criminal prosecution that the rule that requires proof of guilt beyond a reasonable doubt ‘is not intended to aid any one who is in fact guilty to escape,’ and. which intimates that an acquittal *531must be justified and a verdict of not guilty must be ‘authorized/ is erroneous. In the condition of this record, it is found to be prejudicially erroneous.” The point in the syllabus is right so far as it holds that the doctrine of reasonable doubt is iutended only for innocent persons, and is not intended to aid any one that is in fact guilty, because it condemns that language. It is also right so far as it condemns the use of the language “that an acquittal must be justified and a verdict of not guilty must be ‘authorized.1” The thing that is wrong with the syllabus is that it reserves to this court to say when and in Avhat case the same language is prejudicial, and when it is not. It seems to be this way: This court says we will let the defendant go when we want to, and we will hold him when we like, and we will give no reason to anybody for it, because we do not have to. This is seemingly an esoteric condition.
In Brown v. State, 88 Neb. 411, the language used in the first paragraph of the second instruction is held to be prejudicially erroneous and the case is reversed, but there is in the syllabus and in the body of the opinion the reservation of the alleged right of this court to apply the evanescent rule that we will when we like and we won’t when we do not want to. In Blue v. State, 86 Neb. 189, this court condemned so much of the language used in the first paragraph of the instructions in the instant case as compels the jury to have a reason for justifying an acquittal or to authorize a verdict of not guilty, and it held the language prejudicial and reversed the case, citing many authorities which condemn the language used in vigorous terms. Judge Sedgwick delivered the opinion of this court in each of the two cases last cited.
In Flege v. State, 90 Neb. 390, this court condemned the instructions on reasonable doubt. The two instructions are quoted. The first paragraph of the second one quoted in the instant case is almost identical with the first paragraph of the twenty-fifth instruction in the Flege case, and the twenty-fourth instruction in the Flege *532case is very like the fifteenth instruction in this case. The writer of the opinion in the Flege case, Judge Sedgwick, emphasizes the condemnation of the twenty-fourth instruction in that case by saying: “A jury in such a case ought not to be told that they must ‘justify an acquittal’ or that they must find something in the case ‘to authorize a verdict of not guilty.’” While Judge Sedgwick finds the language used in that instruction. “so prejudicial as to require a reversal,” he says: “The majority of this court, however, considers that instruction No. 24 is not prejudicially erroneous in this case.” Here is again the reiteration of this court that it refuses to declare any tangible rule for its own government. The rule is no rule because it is as uncertain and as unfindable as a jack-o’lantern in a swamp, and still this court has made progress since the opinions first above cited were written.