dissenting:
I am in accord with the excellent opinion written by Mr. Justice Eggleston in this case, save as to the conclusion that the trial court erred in giving instruction No. 7. The opinion is so forceful and strong in every other respect, that I hesitate to dissent in any particular. However, considering all of the circumstances of the case and the precise nature and character of the instructions as a whole, I feel bound to state my reasons for arriving at a contrary view as to the effect of the above instruction.
In close cases when the evidence is in sharp conflict and there is substantial support for opposing views, we have often held that any error is prejudicial.
On the other hand, where it clearly appears that the error did not affect the merits of the case, nor prejudice the party appealing, we have adopted and applied the doctrine of harmless error.
We are not here dealing with a “borderline” or close case. Here the evidence fully, clearly, and satisfactorily discloses a flagrant and deliberate violation of a law as old as the Ten Commandments. Mr. Justice Eggleston says, *710and the majority of the court agrees with him, that the evidence is amply sufficient to show the guilt of the defendant beyond a reasonable doubt. When a defendant has had a fair and impartial trial that is all that ought to be necessary to sustain his conviction.
We have often said that when the circúmstances proved are of such a character as to warrant a verdict of guilt, neither courts nor juries should be alert to discover technical or imaginary loopholes through which the guilty can escape punishment. The object of courts is to shield the innocent and punish the guilty.
The courts have found it difficult to define reasonable doubt. Whenever attempted, criticism is invited. It is hard to observe nice legal distinctions, and it is not difficult to make hypercritical objections.
The precise question involved has never before been presented to us; but we have stated the rules for its determination. In passing upon objections to an instruction defining reasonable doubt, including an objection that the burden of raising a doubt was improperly put upon the defendant, Keith, P., in McCue v. Commonwealth, 103 Va. 870, 1001, 49 S. E. 623, said:
“A careful perusal of the instructions satisfies us that they fairly submitted to the jury the principles of law by which they should be governed in the consideration of the evidence. It would be impossible to prepare instructions to which an ingenious critic might not present plausible objection. The definition of ‘reasonable doubt’ is attempted by the court. It is a difficult, if not impossible, task so to define it as to satisfy a subtle and metaphysical mind bent upon the detection of some point, however attenuated, upon which to hang a criticism. But no unbiased person can read those instructions without having the conviction forced upon him that every safeguard which the benignity of the law throws around a prisoner upon trial was accorded to the petitioner in this case.”
In Sims v. Commonwealth, 134 Va. 736, 754, 115 S. E. 382, Judge Burks said:
*711“Instructions ought to be read as a whole and when the above mentioned instruction is read in connection with instruction six, it is difficult to understand how the jury could have had any doubt on the subject. The prisoner never has to prove any fact beyond a reasonable doubt or by a preponderence of the evidence. All he has to prove in any case is such a state of facts as will raise a reasonable doubt in the minds of the jury as to the existence of the fact or facts sought to be established by the Commonwealth, and this was sufficiently stated in instruction six. If counsel for the prisoner had any doubt on this subject, all he had to do was to ask the court for a fuller or more particular statement as given above, and it would doubtless have been accorded him. In the absence of such a request the instruction itself is an adequate statement of the law for the guidance of the jury.”
There is nothing in the record before us to indicate that it was argued before the jury that a juror must be able to formulate, or express in words, his reason for any doubt of the guilt of the defendant. The defendant was represented by able, learned, and experienced counsel. If he had deemed a further explanation of. the definition of the instruction necessary, all he had to do was to ask the trial court for a fuller or more particular statement. If it had been argued that the definition required the jurors to express in -words the reason for their doubt, objection doubtless would have been promptly made and sustained by the trial court. It is obvious from the verdict that counsel for the defendant was unable to point out any fact or facts to the jury justifying a doubt of guilt. In the absence of the named circumstances, the ingenious argument of counsel is further attenuated in refining the word “give” too far. The majority in following him has placed too much emphasis on that one word. The definition of this word requires a full column in Webster’s New International Dictionary, (Second Edition) Unabridged. As here used, it should be given its ordinary and commonly accepted meaning.
*712The words “a doubt which one should be able to give a good and substantial reason therefor,” should be read and considered not only in connection with the paragraph in which they appear, but in connection with the entire instruction and the other instructions given. The language distinguishes a doubt which would avail the defendant from a merely vague and imaginary doubt. It is a statement bearing a distinct relation with every other principle stated in the instruction, principles which have been repeatedly approved by this court.
The phrase “reasonable doubt” means a doubt for which some standard of reason can be assigned or given. It has been frequently said that it is its own best definition.
It is assumed that jurors are men of at least fair and average intelligence. A doubt for which a reason cannot be given can hardly be considered a reasonable doubt. Certainly it is not substantial. If doubt exists, there must be some basis for it. The basis may be the nature or quality of the evidence, or lack of evidence. Want of sufficient knowledge in relation to the facts necessary to show the guilt of the defendant may raise a doubt. Such basis for doubt and such want of knowledge readily suggest a reason which may be given by a juror.
Instruction No. 7 read as a whole, and read with the other instructions, told the jurors in the clearest language that the burden of proof rested upon the Commonwealth to prove the guilt of the defendant beyond a reasonable doubt. The duty of the Commonwealth was kept prominently before the jury throughout the instructions. The instructions put no burden on the defendant. They did not require him to prove anything. They required the Commonwealth to satisfy the jury of defendant’s guilt to such an extent as to leave their minds free from any reasonable doubt of defendant’s guilt. The jurors were expressly told that a reasonable doubt could be “based on evidence or lack of evidence,” provided it was “a doubt of a material fact or facts.”
*713Furthermore, the presumption of innocence which attends a defendant throughout his trial was kept prominently before the jury.
In instruction D-l, the jury were told:
“The Court instructs the jury that the law presumes the accused to be innocent of the offense with which he is charged, unless and until he is proven guilty by the Commonwealth by evidence beyond all reasonable doubt and to the exclusion of every reasonable theory or hypothesis consistent with his innocence. This presumption of innocence goes with the accused throughout the whole case and applies at every stage thereof, and is sufficient to require you to acquit the accused until it is overcome by evidence introduced by the Commonwealth which is so strong as to leave no reasonable doubt in your minds as to the guilt of the accused. Even though you may have a suspicion that the accused is guilty, or even if you may think that there is a probability that' the accused is guilty, or even though you may believe that the greater weight or preponderence of the evidence is against him, that is not sufficient to justify conviction, or if there is any reasonable doubt as to any fact or element necessary to establish the guilt of the accused, the law makes it your duty to acquit him. The law places upon the Commonwealth the burden of proving beyond all reasonable doubt every essential element necessary to constitute the crime so clearly that there is no reasonable theory consistent with the evidence upon which he could be innocent, and unless the jury have an abiding conviction of the guilt of the accused, you must find him not guilty.”
It seems to me that the view adopted in West Virginia {State v. Sheppard, 49 W. Va. 582, 39 S. E. 676; State v. Dillard, 59 W. Va. 197, 53 S. E. 117), in New York (People v. Guidici, 100 N. Y. 503, 3 N. E. 493), and in numerous Federal cases, {United States v. Butler, 1 Hughes 457, Fed. Cas. No. 14700; Griggs v. United States, 158 F. 572), is in harmony with sound reasoning and logic, and pro-motive of the administration of justice.
*714The instructions which emphasized the presumption of innocence which attended the defendant through the trial, and stressed the burden resting upon the Commonwealth to prove his guilt beyond a reasonable doubt negative the contention of the defendant that any burden of proof was put on him. Instruction No. 7 constituted only harmless error at most.
As has been stated, the question involved is new. A mere disapproval of the language used, because of the possibility of a misinterpretation under certain' circumstances, should give sufficient warning to the trial courts in the future.
We approve the verdict of a jury upheld by credible evidence. It seems clear, at least to me, that the jury, in this case, could not have been misled by instruction No. 7. We are all agreed that there was no ground for reasonable doubt; hence there was no necessity for a juror to undertake to give a reason therefor. The possibility suggested by the contention of the defendant was thus removed.
The defendant has had one fair trial, and he is entitled to no more. To set aside the judgment in this case offers full opportunity for evidence and witnesses to become lost, and facts to become obscure by reason of defective memory. Thus, the convicted defendant will have brought to his aid a delayed and postponed trial, an agency often relied on to defeat justice.
Aware of the futility of a dissent to the principle stated by the majority, I still must register my disagreement with the conclusion of my learned associates, because the facts of the case do not warrant the application of the principle adopted.