(concurring in part and dissenting, in part.)
I concur in the reasoning of my Brethren and in the conclusions reached by them in the foregoing opinion on all questions therein discussed, with the exception of the part wherein they hold that the trial court did not err in its instructions defining a reasonable doubt. On this point I am unable to concur.
The law is too well settled to admit of discussion, that before a defendant in a criminal action can be legally convicted his guilt must be established by competent evidence beyond a reasonable doubt; and if any one of the jurors, after a fair and impartial consideration of all the evidence in the case, *239entertains ¿a reasonable doubt as to defendant’s guilt be cannot be convicted. Tbe part of tbe instruction upon wbicb error is based, so far as material bere, is as follows: “A reasonable doubt . . . exists wben eacb juror ... is unable to say that be has an abiding conviction to a moral certainty of tbe truth of tbe charge.” In tbe course of tbe prevailing opinion it is said:
“While, true, so long as any one óf the jurors entertains a reasonable doubt the defendant cannot properly be convicted. . . . But the court in effect charged the jury that if any one of them is unable to say that he has an abiding conviction, etc., then not only does there exist a reasonable doubt as to him, but also as to all the jury.”
I am unable to so construe tbe instruction. Tbe language of tbe trial court is: “Wben eacb juror is unable to say,” etc., and not wben any juror is unable to say that be has an abiding conviction, etc. Nor can “any” be substituted in tbe instruction for “eacb,” without giving it an entirely different meaning from that wbicb it now conveys. Tbe office and functions of tbe word “eacb,” as used in tbe instruction, ar© entirely different from tbe meaning of tbe word “any” wben it is similarly used and associated. “Eacb,” as used in tbe instruction; denotes every one of tbe jurors taken or considered one by one, whereas “any” refers to any one or more of a given number less tban tbe whole. Therefore, as I construe tbe instruction, tbe jury were in effect told that a reasonable doubt exists only wben eacb one of tbe eight jurors constituting the panel is unable to say that be has an abiding conviction to a moral certainty of tbe truth of tbe charge. That is, all tbe jurors must be in this state of mind before a reasonable doubt exists.
It will no doubt be conceded that tbe giving of tbe following instructions would not have been error: “Wben each juror after a fair and impartial consideration of all tbe evidence in tbe case, is able to say that be has an abiding conviction to a moral certainty of tbe truth of tbe charge, then you are convinced beyond a reasonable doubt.” Now, if this instruction correctly states tbe law as far as it goes, it necessarily follows that tbe giving of the instruction complained of was er*240ror. Por it will b© observed that the word “each” performs exactly the eamle functions and means the same thing in the one instruction that it does in the other, namely, it refers to all the jurors considered one by one. “ ‘Each’ denotes every one of two or more comprising the whole.” (10 Am. & Eng. Enc. Law (2d Ed.), 392.) In 14 Cyc. 1129, the word “each” is defined as follows:
“Every one of any number separately considered, or every one of several. Commonly the word is understood to mean every one of the two or more individuals comprising the whole considered separately from the rest.” The italics are mine.
Mr. Justice Straup, in the course of the opinion, after discussing the meaning and functions of the word “each,” says:
“So construing the language, the instruction means unless each and every one of the jurors, all of them are able to say that he has an abiding conviction to a moral certainty of the truth of the charge, a reasonable doubt exists.”
The instruction, so* far as material here, reads: “A reasonable doubt . . , exists when each juror ... is unable to say,” etc. That is to say (adopting the language of the prevailing opinion) when “each and every one of the jurors, all of them,” are unable to say that they have an abiding conviction to a moral certainty of the truth of the charge a reasonable doubt exists. It seems clear to me that if the word “each” includes all the jurors, both in an individual and collective sense, when used in an instruction which affirmatively states the law on the question of reasonable doubt, it must of necessity mean the same thing when used in an instruction which states the law in a negative sense. But assuming, for the purposes of this case, that according to strict grammatical construction the word “each,” as used in the instruction, means any one or more of the jurors, and does not refer to or include all, I still insist that the instruction, couched as it is in a negative form, is well calculated to confuse and mislead the jury, and therefore ought to be condemned.