¶1dissenting.
¶2The court instructed:
"A reasonable doubt — that means an honest uncertainty ás' to the guilt of the defendant. A reasonable doubt exists when, after careful and impartial consideration of all of the evidence in this case you do not feel convinced to a moral certainty that Mr. Chin is guilty. A reasonable doubt is such as you people would be willing to act upon in the most important of your own affairs, and that is, in this case, proof beyond a reasonable doubt is such as you people would be willing to act upon in your own affairs. Of course, this is the proof that the state must show.” (Emphasis supplied.)
¶3"The most important of your own affairs” does not mean and in my opinion is inconsistent with and describes a substantially greater test than "in your own affairs.” The second part of the sentence cannot be reconciled with the first. The jurors were clearly left with two standards and there is no way of telling upon which they chose to rely.
¶4In State v. Miller, 43 Or 325, 74 P 658 (1903), our Supreme Court said:
"Nor does the instruction first herein noted, announcing the correct rule as to the right of the accused to act upon appearances, cure the error. The instructions are not only wholly disconnected in context, but are in direct conflict, so that they cannot be read together as a harmonious and correct statement of the principle of law involved: People v. Gonzales, 71 Cal. 569 (12 Pac. 783); Perkins v. State, 78 Wis. 551 (47 N. W. 827); State v. *717Keasling, 74 Iowa, 528 (38 N. W. 397). For these errors the judgment of the trial court must be reversed, and a new trial ordered.” 43 Or at 333.
¶5In Taylor v. Lawrence, 229 Or 259, 366 P2d 735 (1961), the court said:
"The rule that instructions are to be viewed as a whole is invoked by counsel for the defendant and attention is called to the other instructions in which the court stated the law substantially as laid down in our decisions. But the difficulty here is that the instructions are contradictory because in one breath the jury were told that it is not necessary that the defendant know the risk involved because if the danger is obvious he will be presumed to be aware of it, and in the next breath they are charged that the plaintiff must show that the defendant was consciously unconcerned, etc. Inconsistent or contradictory instructions are erroneous and ground for reversal because it cannot usually be determined from the verdict what rule as given by the court the jury adopted. [Citations omitted; emphasis in original.]” 229 Or at 266.
¶6See also Smith v. Fields Chevrolet, 239 Or 233, 236, 396 P2d 200 (1964).
¶7The court here holds that the portion of the instruction italicized in its opinion was "a misstatement.” I agree. It does not, however, discuss that while the next part of the instruction seeks to correct it, nevertheless, taken together with its concluding clause, it is itself contradictory and internally inconsistent in a wholly different way, and thus itself is erroneous as well.
¶8In my view, therefore, the error pointed out by the majority combined with the one pointed out in this dissent requires the reversal of the judgment and the granting of a new trial. Since the parties have not seen fit to designate as a part of the transcipt on appeal any of the evidence produced in the trial court, one cannot speculate on whether the errors in the instruction were prejudicial, and thus must assume that they were. Accordingly, I respectfully dissent.