determining that our discovery is beyond a reasonable doubt. It is necessary that men should differ in their doubting, and in their estimate of what is reasonable. It is easier for twelve men to agree that certain evidence, for instance that a prisoner killed a man, is convincing, than for each of them to quiet his mind upon whether certain essential parts of the evidence have in his opinion been proved beyond a reason able doubt. This becomes more difficult in those minds which are so unused to con scious reasoning that they confound a rea sonable doubt with any doubt. And it is rendered yet harder when the feelings of re sponsibility for the life of a human being, and sympathy for the prisoner and perhaps for his wife and children have been appealed to by his advocate at the bar. It is almost impossible for any man to separate such a harrowing scene of responsibility from his intellectual condition. Then each man has to confess to himself that he sometimes makes mistakes. And since few persons are accustomed to be taught by such a formid able controversial method as the trial of a capital case, the very warnings that they re ceive from counsel at the bar tend not only to enlighten, but to frighten a modest mind. The instructions given by the court are usu ally too long, and few of the learned judges have the gift of expressing themselves in English of a quality that attracts the atten tion and helps the listener to think. Even the judges on the bench are so overwhelmed by their responsibility in capital cases that their feelings often lead them to a homiletic style. And yet a jury will sometimes sur prise the community and gratify citizens of clear judgment by agreeing upon a verdict of guilty when there was a general expecta tion of a disagreement. Such a result is hailed by some as a sign of good sense on the part of the jury; and by others is attacked as probably the result of too yielding a disposition in a minority. Forty-five years ago an able judge, distin
guished for his power of expression as well as for his law, instructed a jury in a criminal case that " Although the verdict to which a juror agrees must of course be his own ver dict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows," they must examine the ques tions submitted to them with " candor," and said " in conferring together you ought to pay proper respect to each other's opinions and listen, with a disposition to be convinced, to each other's arguments. And, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with him self, and who have heard the same evidence, with the same attention, with an equal de sire to arrive at the truth, and under the sanction of the same oath. And on the other hand if a majority are for acquittal, the minority ought seriously to ask them selves whether they may not reasonably, and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated and distrust the weight or sufficiency of that evi dence which fails to carry conviction to the minds of their fellows." l This charge, which seemed a bold one to lawyers, was sustained by the Supreme Court of Massachusetts, and the decision sustaining it has been relied upon by other courts and has within a few months been cited as an au thority by the Supreme Court of the United States. This was in a case where a prisoner had been tried and convicted for the third tim£ of murder, and a like charge had been given.2 It was sustained. The tendency of such instructions evident ly is to reduce to a minimum doubts which, 1 Charge of Hoar, J., in Commonwealths. Peter Tuey, 8 Cushing's Reports (Mass.) I (1851). 2 Allen v. United States, Supreme Court Reporter, Vol. 17, p. 154 (No. 8, 28 Dec., 1896).
