State ex rel. v. Ellison. into the case, is answered by Judge Ellison's opinion, wherein he says that when the instruction is read in connection with defendant's instruction number 8 (he inadvertently said number 7) all tendency of the instruction "to suggest that the same character of proof must be produced in a civil action as in a criminal prosecution" is lost. The plaintiffs' instruction is technically correct, according to all the authorities, many of which are cited in our brief in that court. If it was error it was so not because it was not technically accurate, and in harmony with the law, but only because at the worst it had a tendency to mislead the jury. But defendant's instruction absolutely removed that tendency. That instruction lugged in a "criminal element" more emphatically than did plaintiffs'. It specifically told the jury that "the rule in civil cases like the present is different from what it is in criminal cases." It went further and told the jury what is the rule in criminal cases, and what is the rule in civil cases. Plaintiffs' instruction simply told the jury that "in civil suits (like this one), just as in the trial of a person charged with crime in a criminal case, the law presumes that the person charged with the wilful burning of the property is innocent." So if either instruction injected a criminal element into the case, both did. The error was common to both sides, and for mutual and common error neither side can complain. Riggs v. Railroad, 216 Mo. 319; Smart v. Kansas City, 208 Mo. 204; Lange v. Railroad, 208 Mo. 475; Moore v. Board of Regents, 215 Mo. 705. Besides, we again invoke the rule that the holding of Judge Ellison that defendant's eighth instruction cured any wrongful tendency in plaintiffs' and prevented the jury from being misled, is not in conflict with the decisions of this court, for the point has never been decided by this court. It never has been held that these two instructions when read together constituted reversible error, nor has such point ever been discussed. (6) Instruction number 3 State ex rel. v. Ellison. for plaintiffs is in harmony with the last previous rulings of the Supreme Court. Fritz v. Railroad, 243 Mo. 77. Defendant lodges only one objection to that instruction in this court, which is that it "imposes upon the defendant the burden of proving beyond a reasonable doubt that Ben Weinberg burned, or caused to be burned, the property in question." The instruction certainly does not expressly do that. It expressly requires the circumstances to be proved "by a preponderance of the evidence." It does not use the words. "beyond a reasonable doubt." If defendant's charge that said instruction "imposes upon defendant the burden of proving beyond a reasonable doubt that Ben Weinberg burned, or caused to be burned, the property in question," is true, it can be true only on the theory that the words "inconsistent with any other reasonable hypothesis" have the same meaning as and are in every sense equivalent to "beyond a reasonable doubt." The propriety of the instruction number 3 has been settled by "the last previous rulings" of this court, in Fritz v. Railroad, 243 Mo. 62. This case is cited in our brief filed in the Court of Appeals, and it is therefore reasonable to suppose that that court had it in view when rendering its opinion. But even if the question were one of first impression in this State, it ought not to be held that an instruction which requires circumstances to be "inconsistent with any other reasonable hypothesis" means the same thing as an instruction which requires a defendant's guilt to be established "beyond a reasonable doubt." There is a wide distinction between requiring the "circumstances" to point to the said plaintiff and to be "inconsistent with any other reasonable hypothesis" and requiring the "guilt" of a defendant to be established "beyond a reasonable doubt." The requirements are not the same; circumstances are one thing, and guilt is another thing. Our third instruction required that "the circumstances must be proved to your satisfaction by the preponderance State ex rel. v. Ellison. of the evidence," and that the jury, in arriving at the preponderance of the evidence, must find that the circumstances pointed "to the said plaintiff" and were "inconsistent with any other reasonable hypothesis." So it is all-important to observe that the instruction required the circumstances to be established by a preponderance of the evidence and only required them to be "inconsistent with any other reasonable hypothesis " To believe defendant's explanation of the origin of the fire (its charge that Weinberg set it or procured it to be set) "beyond a reasonable doubt" was to be convinced to a moral certainty that such charge was true. Those words would have required the jury to search their hearts for an abiding conviction that defendant's charge was true. Such a conviction implies the exercise of reason, but it does not depend wholly upon logical deduction. It calls into activity the instinct of the juror's soul, its inherent love of truth, that intuitive faculty that forces the conclusion that the man is guilty. But "inconsistent with any other reasonable hypothesis" calls for the exercise of reason only; it appeals to his intellectual powers; it bespeaks logical deduction; it requires the placing of fact against fact, the balancing of circumstance against circumstance, and it therefore calls for the preponderance of the evidence. BLAIR, J.-In the Jackson Circuit Court, Benjamin Weinberg and W. J. Rice recovered judgment against relator on a fire insurance policy. On appeal the Kansas City Court of Appeals affirmed that judgment, and our writ of certiorari is invoked to quash the record. Rice was a creditor of Weinberg and his interest arose out of an assignment of the policy to him to secure his claim. The answer averred the fire causing the loss was of incendiary origin and that Weinberg was responsible, with others, therefor. There was evidence State ex rel. v. Ellison. tending to prove this averment and evidence tending to refute it and to show the defense was concocted. Relator contends the Court of Appeals failed to follow the controlling decisions of this court in ruling upon assignments of error lodged in that court against the following instructions: "2. The court instructs the jury that one of the defenses set up by defendant in this case is the wilful burning of the insured property by the plaintiff, Benjamin Weinberg. Now, upon this issue, the court instructs you that the burden of proving by the greater weight of the believable evidence that Benjamin Weinberg did in fact intentionally set or cause to be set the fire that burned said property, is on the defendant; and you are further instructed that in civil suits (like this one) just as in the trial of a person charged with a crime, in a criminal case, the law presumes that the person charged with the wilful burning of the property is innocent and the presumption continues until he is proven guilty by a preponderance of the credible evidence in the case. "3. The jury are instructed that to warrant a finding on circumstantial evidence in this case that plaintiff, Benjamin Weinberg, burned or caused to be burned the property in question, the circumstances must be proved to your satisfaction by a preponderance of the evidence, and when the circumstances are so established, they must point to the said plaintiff and must be inconsistent with any other reasonable hypothesis." Relator contends these instructions imposed upon it the burden of making out its defense by a weight of evidence greater than a mere preponderance and thus violate the settled rule in civil cases and run counter to designated decisions of this court. I. The Court of Appeals held the evidence warranted an instruction on circumstantial evidence, and then held that instruction "3" was free from prejudicial error. Reasonable State ex rel. v. Ellison. Relator contends the final clause of the instruction exacted evidence beyond a mere preponderance and that the holding to the contrary is in conInstruction: flict with Rothschild v. Insurance Co., 62 Mo. 356; Edwards v. Knapp, 97 Mo. 432; Marshall v. Insurance Co., 43 Mo. 586; Smith v. Burrus, 106 Mo. 1. c. 101; Dakan v. Chase & Son Merc. Co., 197 Mo. 238; Gay v. Gillilan, 92 Mo. 250. The instruction, in effect, requires proof, by a preponderance of the evidence, of the circumstances relied on to show Weinberg was guilty of arson and then requires that the circumstances so proved "must be inconsistent with any other reasonable hypothesis than that of his guilt." In Rothschild v. Insurance Co., supra, in which the defense set up to the policy was, as in this case, arson, this court held it was error so to word an instruction as to impress the jury "with the belief that greater caution should be exercised by them and proof of a more conclusive character should be required" to prove, in a civil case, facts constituting a crime than was required in "ordinary civil cases." By this last was meant cases in which no criminal act was in issue. The Court of Appeals quoted this rule, but held, as stated, instruction "3" contained no prejudicial error. In Gay v. Gillilan the question was presented. In that case the trial court had given an instruction on the issue of undue influence in procuring the execution of a will which instruction contained, among other things, this direction-"and in order to set aside the will of a person of the sufficient mental capacity aforesaid, on the ground of undue influence, it must be shown that the circumstances of its execution are inconsistent with any other hypothesis than such undue influence, which cannot be presumed but must be shown in connection with the will, and it devolves upon those contesting the will to show such undue influence by a preponderance of the testimony." The instruction was |