Page:Dakota Territory Reports.djvu/472

 what refused, but it seems to me the instruction by the Court upon its own motion, which is objected to, will not bear the construction put thereon by defendant's counsel, and is clearly right. First, the Court tells the jury that they must bear in their minds the principles of law, that the prosecution has the affirmative of the issues and must satisfy the jury not only by a preponderance of the testimony, but beyond a reasonable doubt, of the defendant's guilt, before they can convict him, and then in determining and resolving that question of doubt, (not in determining the defendant's guilt or innocence,) they are to act with prudence, and care and prudently and carefully as a business man would act in determining an important matter of his own. And then the Court immediately follows this by telling the jury that to authorize a conviction, the evidence must not only be consistent with the idea and theory of the defendant's guilt, but must absolutely exclude any theory of his innocence. Surely this could not be claimed to be prejudicial to the defendant or calculated to mislead them against the prisoner. No rule is better settled than that it is not allowable to take a single sentence of a judge's charge and isolate it from the rest of the charge upon the same point or subject, and allege that as error. The whole of the instruction upon the same subject must be taken and construed together, because it is the whole when taken together that is supposed to produce the impression.

Upon the appeal to the discretion of this Court made by the able counsel for the prisoner, I have only to reply that a careful examination of the record as exhibited to this Court has satisfied me that there was evidence which would have justified the jury in finding a lesser degree of crime, and there is enough to support the present verdict. It can hardly be claimed that it is apparent from an inspection of the record that a preponderance of the evidence is against this verdict and unless it can be so determined, it is not the province of this Court to disturb it.