¶1 delivered a specially concurring opinion.
¶2 I concur in the reversal of this case and upon all the grounds set forth in the majority opinion. I think that the instruction on the presumption of innocence is erroneous as well as confusing. The part of the instruction which tells the jury that this presumption of innocence which the law throws around the defendant as a shield and safeguard is not intended to shield from punishment any one who is in fact guilty, but is simply a humane provision of law to guard against a conviction *440 of innocent persons, is an erroneous announcement. The presumption of innocence applies to all persons, whether guilty or innocent, until the proof shows guilt beyond, a reasonable doubt. The presumption is intended to require the state to prove its case and to prove it beyond a reasonable doubt regardless of whether the defendant is guilty in fact or not. The jury might believe the defendant guilty in fact, but might not be satisfied of that conclusion beyond a reasonable doubt; yet the instruction would make the jury believe that, when they reached the conclusion that the defendant was guilty in fact, although that conclusion was only reached by a preponderance of the evidence or upon insufficient evidence, they would disregard the presumption of innocence as having no application to the defendant whom they believed to be guilty in fact.
¶3 It is not permissible for the prosecuting attorneys, with the sanction of the court, to thus fritter away the substantial rights of the defendant. If the state wants to procure an instruction of this kind or to announce this principle sought to be announced in the instruction it should have merely added that, when the evidence overcomes the presumption beyond a reasonable doubt, the jury should return a verdict of guilty, notwithstanding the presumption of innocence. ■ I do not think, therefore, that the instruction announces correct legal principles, but do agree that it is misleading and calculated to confuse the jury and ought not to have been given.