(dissenting).
I am of the opinion that appellant was not given a fair and impartial trial and the *364instruction complained of, set forth in the majority opinion, defining reasonable doubt is fundamentally erroneous, and deprived appellant of a well recognized, long established right.
The principle that one accused of crime must be first tried and convicted on sworn testimony which convinces the jury of his guilt beyond a reasonable doubt is as basic and fundamental as the constitution itself. No person accused of crime should be deprived of such right.
I make the broad assertion that few authorities, under the conditions here being considered, approve the instruction on reasonable doubt given in this case, or affirm a conviction where such an instruction was given; further, the majority of the cases cited in the majority opinion to sustain the decision do not sustain any such conclusion, and if there are any decisions cited in point sustaining the conclusion reached, such decisions are contrary to the great weight of American authority.
The instruction complained of contains two basic errors: first, that part which required the jury, or an individual juror, to give a sensible reason for a doubt; second, “a doubt which would cause you to hesitate in the ordinary affairs of life”. Such an instruction is not the law and never has been, and the instruction as a whole is confusing, misleading, contradictory and prejudicial.
The following cases, among many others, have held the giving of a similar instruction reversible error: Abbott v. Territory, 1 Okl.Cr. 1, 94 P. 179, 16 L.R.A.,N.S., 260; Moore v. State, 90 Okl.Cr. 415, 214 P.2d 966; Pettine v. Territory of New Mexico, 8 Cir., 201 F. 489; Commonwealth v. Custer, 145 Pa.Super. 535, 21 A.2d 524; Commonwealth v. Meigio, 145 Pa.Super. 335, 20 A.2d 907; Gilcoat v. State, 155 Ark. 455, 244 S.W. 723; Owens v. United States, 9 Cir., 130 F. 279, 64 C.C.A. 525, 529; Leonard v. State, 150 Ala. 89, 43 So. 214; Bennett v. State, 95 Ark. 100, 128 S.W. 851; State v. Lee, 113 Iowa 348, 85 N.W. 619; Kelly v. State, 112 Miss. 245, 72 So. 928; Blue v. State, 86 Neb. 189, 125 N.W. 136; Morgan v. State, 48 Ohio St. 371, 27 N.E. 710; State v. Trosper, 41 Mont. 442, 109 P. 858. Pages of similar authorities could be cited.
The part of the instruction which told the jury that reasonable doubt is “a doubt which would cause you to hesitate in the ordinary affairs of life” has, by inference, been condemned by our own Court. See Idaho cases cited in the majority opinion and for collection of cases see 23 C.J.S., Criminal Law, § 1279, page 849 and 16 C.J. page 990.
Hence to advise the jury that they, or an individual juror, must, or should be able to give a reason for a doubt of guilt, or that a defendant can be convicted if the jury is convinced beyond a reasonable doubt when considering the ordinary affairs of life, is basicaily erroneous and I cannot adhere to the majority opinion sustaining the conviction.
*365An instruction, that is apt to confuse or mislead the jury or requires an involved explanation or is' ambiguous and uncertain or erroneously states the law or is confusing or misleading should not be given. State v. Wheeler, 70 Idaho 455, 220 P.2d 687.
The offense of which' appellant stood charged is one easy to make and hard to disprove. Such a charge is generally surrounded with popular prejudice, and in the trial the rights of the accused should be safeguarded and respected.
Whether a defendant in a criminal case is guilty or innocent, he is entitled to be fairly and impartially tried, and when not so tried, he is entitled to a reversal. The judgment of conviction should be reversed.