Opinion of the Court. dire, but after hearing his testimony the challenge was disallowed; and thereupon the district attorney peremptorily challenged him, and he was excused. The challenges for implied bias fell, as there was no specification of the grounds for such challenges, as required by § 242 of the act of 1878. In capital cases in Utah, the government and the accused are each allowed fifteen peremptory challenges. (Laws of Utah of 1884, c. 48, § 24.) Notwithstanding the peremptory challenges made by the defendant to two of the jurors, he had several such challenges which had not been used when the jury was completed. If, therefore, the ruling of the court in disallowing the challenges to the two for bias, actual or implied, was erroneous, no injury to the defendant followed. Those jurors were not on the jury, and impartial and competent jurors were obtained in their place, to whom no objection was made. Hayes v. Missouri, ante, 68; Mimms v. The State, 16 Ohio St. 221; Erwin v. The State, 29 Ohio St. 186, 190. It is therefore only the ruling on the challenge to the juror Gabott which can properly be assigned as error here; and, for the reasons stated, that ruling was in our judgment correct. 2d. The deceased came to his death from a blow inflicted upon the left side of his head, which crushed his skull. A postmortem examination of the body was made by a physician, who was allowed, against the objection of the defendant, to give his opinion as to the direction from which the blow was delivered, after he had stated that his examination of the body had enabled him to form an intelligent opinion upon that point. The ground of the objection was that the direction in which the blow was delivered was not a matter for the opin-. ion of an expert, but one which should be left to the jury. The court overruled the objection, and the defendant excepted. The witness stated, as his opinion, that the blow was delivered from behind and above the head of the person struck, and from the left toward the right. This testimony was supposed to have some bearing upon the case when considered in connection with the fact that the accused was a left-handed man. On the following morning, counsel on behalf of the prosecu Opinion of the Court. tion moved that this evidence should be stricken from the record, and the jury be instructed to disregard it. The counsel for the defendant did not object to that, but he wished the record to show that the application was made on the following morning. The court thereupon instructed the jury that the evidence was stricken out, and that they were not to consider it at all. The defendant now contends that it was error to admit the evidence, and that the error was not cured by striking it out and the instruction to the jury. To this the answer is, 1st, that the evidence was admissible; and, 2d, that, if not admissible, the error was cured by the evidence being stricken out with the accompanying instruction. The opinions of witnesses are constantly taken as to the result of their observations on a great variety of subjects. All that is required in such cases is that the witnesses should be able to properly make the observations, the result of which they give; and the confidence bestowed on their conclusions. will depend upon the extent and completeness of their examination, and the ability with which it is made. The court below, after observing that every person is competent to express an opinion on a question of identity, as applied to persons in his family or to handwriting, and to give his judgment in regard to the size, color, and weight of objects, and to make an estimate as to time and distance, cited a great number of cases illustrative of this doctrine. We quote a passage containing them. "He may state his opinion," says the court, "with regard to sounds, their character, from what they proceed, and the direction from which they seem to come. State v. Shinborn, 46 N. H. 497; Commonwealth v. Pope, 103 Mass. 440; Commonwealth v. Dorsey, 103 Mass. 412. Non-experts have been allowed to testify whether certain hairs were human, Commonwealth v. Dorsey, 103 Mass. 412; that one person appeared to be sincerely attached to another, McKee v. Nelson, 4 Cowen, 355 [S. C. 15 Am. Dec. 384]; as to whether another was intoxicated, People v. Eastwood, 14 N. Y. 562; as to whether a person's conduct was insulting, Raisler v. Springer, 38 Ala. 703 [S. C. 82 Am. Dec. 736]; as to resemblance of foot-tracks, Hotchkiss v. Germania Ins. Co., 5 Opinion of the Court. Hun, 90; as to value of property, when competent, Brown v. Hoburger, 52 Barb. 15; Bank v. Mudgett, 44 N. Y. 514; Bedell v. Long Island Railroad, 44 N. Y. 367; Swan v. Middlesex Co., 101 Mass. 173; Synder v. Western Union Tel. Co., 25 Wis. 60; Brackett v. Edgerton, 14 Minn. 174; as to market value of cattle derived from newspapers, Cleveland, &c., Railroad v. Perkins, 17 Mich. 296; whether there was hard pan in an excavation, Currier v. Boston & Maine Railroad, 34 N. H. 498; whether one acted as if she felt sad, Culver v. Dwight, 6 Gray, 444; as to rate of speed of a railroad train on a certain occasion, Detroit, &c., Railroad v. Von Steinburg, 17 Mich. 99; as to whether noisome odors render a dwelling uncomfortable, Kearney v. Farrell, 28 Conn. 317 [S. C. 73 Am. Dec. 677]; whether the witness noticed any change in the intelligence or understanding or any want of coherence in the remark of another, Barker v. Comins, 110 Mass. 477; Nash v. Hunt, 116 Mass. 237." Upon the same principle, the testimony of the physician as to the direction from which the blow was delivered was admissible. It was a conclusion of fact which he would naturally draw from the examination of the wound. It was not expert testimony in the strict sense of the term, but a statement of a conclusion of fact, such as men who use their senses constantly draw from what they see and hear in the daily concerns of life. Conn. Life Ins. Co. v. Lathrop, 111 U. S. 612, 620. But, independently of this consideration, as to the admissibility of the evidence, if it was erroneously admitted, its subsequent withdrawal from the case, with the accompanying instruction, cured the error. It is true, in some instances, there may be such strong impressions made upon the minds of a jury by illegal and improper testimony, that its subsequent withdrawal will not remove the effect caused by its admission; and in that case the original objection may avail on appeal or writ of error. But such instances are exceptional. The trial of a case is not to be suspended, the jury discharged, a new one summoned, and the evidence retaken, when an error in the admission of testimony can be corrected by its withdrawal with proper instructions from the court to disregard it. We think the present Opinion of the Court. case one of that kind. State v. May, 4 Devereux, Law, 328, 330; Goodnow v. Hill, 125 Mass. 587, 589; Smith v. Whitman, 6 Allen, 562; Hawes v. Gustin, 2 Allen, 402, 406; Dillin v. The People, 8 Mich. 357, 369; Specht v. Howard, 16 Wall. 564. 3d. The instruction to the jury, which is the subject of exception, relates to the meaning of the words "reasonable doubt," which should control them in their decision. The following is that portion which bears upon this subject: "The court charges you that the law presumes the defendant innocent until proven guilty beyond a reasonable doubt. That if you can reconcile the evidence before you upon any reasonable hypothesis consistent with the defendant's innocence, you should do so, and in that case find him not guilty. You are further instructed that you cannot find the defendant guilty unless from all the evidence you believe him guilty beyond a reasonable doubt. "The court further charges you that a reasonable doubt is a doubt based on reason, and which is reasonable in view of all the evidence. And if, after an impartial comparison and consideration of all the evidence, you can candidly say that you are not satisfied of the defendant's guilt, you have a reasonable doubt; but if, after such impartial comparison and consideration of all the evidence, you can truthfully say that you have an abiding conviction of the defendant's guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt." The word "abiding" here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence. It is difficult to conceive what amount of conviction would leave the mind of a juror free from a reasonable doubt, if it be not one which is so settled and fixed as to control his action in the more weighty and important matters relating to his own affairs. Out of the domain of the exact sciences and actual observation there is no absolute certainty. The guilt of the accused, in the majority of criminal cases, must necessarily be deduced from a variety of circumstances leading to proof of the fact. Persons of Opinion of the Court. speculative minds may in almost every such case suggest possibilities of the truth being different from that established by the most convincing proof. The jurors are not to be led away by speculative notions as to such possibilities. In Commonwealth v. Webster, 5 Cush. (Mass.) 295, 320, [S. C. 52 Am. Dec. 711,] the Supreme Judicial Court of Massachusetts stated in its charge that it was not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged against the prisoner was more likely to be true than the contrary, and said: "The evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt." The difficulty with this instruction is, that the words "to a reasonable and moral certainty" add nothing to the words "beyond a reasonable doubt;" one may require explanation as much as the other. In Commonwealth v. Costley, 118 Mass. 1, the same court held that, as applied to a judicial trial for crime, the two phrases were synonymous and equivalent, and that each signified such proof as would satisfy the judgment and consciences of the jury that the crime charged had been committed by the defendant, and so satisfy them as to leave no other reasonable conclusion possible. It was there also said, that an instruction to the jury that they should be satisfied of the defendant's guilt beyond a reasonable doubt, had often been held sufficient, without further explanation. In many cases it may undoubtedly be sufficient. It is simple, and as a rule to guide the jury is as intelligible to them generally as any which could be stated, with respect to the conviction they should have of the defendant's guilt to justify a verdict against him. But in many instances, especially where the case is at all complicated, some explanation or illustration of the rule may aid in its full and just comprehension. As a matter of fact, it has been the general practice in this country of courts holding criminal trials to give such explanation or illustration. The rule may be, and often is, rendered obscure by |