¶1dissenting.
¶2With respect to Issue II, I do not agree with the majority that Beavers v. State (1957) 236 Ind. 549, 141 N.E.2d 118, compels our approval of Instruction No. 2. To be sure, the instruction considered in Beavers was substantially the same as that before us, but the Supreme Court there, addressed only the aspect of the instruction which told the jury that they were not free to disregard the law. That is the focus of Jackson's attack on Instruction No. 2 here, and for that reason I do not find the giving of the instruction to be reversible error. Nevertheless, for the reasons set forth in Buchanan v. State (1975) 166 Ind.App. 430, 336 N.E.2d 654, and in Partlow v. State (1922) 191 Ind. 660, 128 *139N.E. 436, I would not approve that portion of the instruction which emphasizes "weaken[ing] the safeguards erected by society for its protection; for by the non-enforeement of the law and its penalties ... contempt for the law is bred among the very class that it is intended to restrain." Record at 42.
¶3I agree with the majority that the giving of Instruction Nos. 1 and 9 were not inappropriate. Furthermore, I agree that the evidence was sufficient to support the conviction.
¶4I must dissent, however, based upon the instruction which permitted the jury to return a not guilty verdict only if the doubt entertained as to guilt reached the level of moral certainty. Notwithstanding the Vice-tor/Samdoval decisions, it should be noted that Cage v. Louisiana (1990) 498 U.S. 39, 111 S.Ct. 328 was decided only a few short years previously. The due process dangers there enunciated have not evaporated. In Victor/Sandoval the majority attempted to avoid the problem by stating that the two instructions being approved were placed in a definitional context which purified the "moral certainty" taint. Be that as it may, the instruction before us, as did the instruction in Cage, clearly joined the "moral certainty" to the matter of defendant's guilt. Advising the jury that doubt to a "moral certainty" should be determined only after a "full, fair, and impartial consideration of all of the evidence" (as in Victor), or "after the entire comparison and consideration of all of the evidence" (as in Sandoval ), has absolutely no cleansing effect upon the pernicious aspect of the instruction. It quite simply implies to the jury that the prosecution's burden of proof has been lessened from proof beyond a reasonable doubt. As the law presently exists, and notwithstanding Victor/Sandoval, Winegeart v. State (1994) Ind.App., 644 N.E.2d 180, was correctly decided. For this reason, I would reverse and remand for a new trial.