Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge*fn* .
J. JOSEPH SMITH, Circuit Judge.
Wilfred Johnson appeals from a sentence of imprisonment on conviction on trial to the jury in the United States District Court for the Eastern District of New York, Leo F. Rayfiel, District Judge, on one count of conspiracy to possess and sell counterfeit money in violation of 18 U.S.C. §§ 371, 2 and 472. Appellant assigns as error the existing rule that the testimony of an accomplice may be sufficient to support a conviction, a charge that the principal government witness was an accomplice, conviction on inaudible testimony and the charge on reasonable doubt.We find the charge on reasonable doubt inadequate and reverse and remand for new trial.
The instructions on reasonable doubt were as follows:
"The Government, as you have also been told, is required to prove its case beyond a reasonable doubt. Now, that term seems like a very easy one to define.
"I might define it as a doubt for which one could give a reason, or as counsel said, a doubt entertained by reasonable persons. Well, that possibly is an over-simplification.
"I have tried, on occasions when I am obliged to, try to convey to the jury what I mean by a reasonable doubt, to tell them that it may be best described as follows:
"Each one of you, when you retire to the jury room, carry with you your recollection of the testimony and possibly opinions, which I hope are tentative, as to how you feel about this testimony, and you begin to exchange views about the subject. Each of you listening to your colleagues on the jury, get an expression of their opinions. After weighing all the testimony in the case and giving it very serious consideration, if you arrive at a stage where you are morally convinced of a defendant's guilt, it is your duty to convict him. If you are not morally convinced of his guilt, and I am quite sure you will know when you have reached that stage, then it is your duty to acquit him.
"It is not a simple definition, but it is the best we have. We have nothing better than that. If I employ more words it would be likely to be confusing rather than helpful."
This was inadequate. Ordering the jury to convict if it arrive at a stage where it is morally convinced of guilt leaves the test altogether too indefinite. It could be taken to mean morally convinced that it was slightly more likely that defendant was guilty than not, and "morally convinced" might mean by some means other than reason. To be convinced to a "moral certainty" would have a somewhat different meaning, but not even that expression is found here. While no set form of words may be prescribed as the one acceptable definition, United States v. Davis, 328 F.2d 864, 867-868 (2 Cir. 1964), one acceptable formulation is that a reasonable doubt is not a vague, speculative, imaginary doubt but such a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves, see Bishop v. United States, 71 U.S.App.D.C. 132, 107 F.2d 297 (1939). Alternatively, the rule may be put as conventionally charged, see United States v. Davis, supra 328 F.2d at 867 n. 1*fn1 "Morally convinced" leaves the standard too much at large.
During the charge, the court indicated that ordinarily it would give the jury a brief resume of the testimony, but hesitated to do so "because frankly I have missed so much of it that I don't think it would be accurate and more likely it would be confusing rather than helpful." In view of this, it must be doubtful that the court could properly pass on defense motions to dismiss. In any case on retrial the court should make certain ...