delivered the opinion oe the Court.
Plaintiff in error was convicted and fined on six counts, of which four charged the sale of intoxicating liquor to an intoxicated person named, and two the like sales to the same person then in the habit of getting intoxicated.
To the proof of his habit as charged, the defense contributed about as much as the prosecution, and except as to the alleged sales there was no controversy. Defendant and his barkeeper alike testified that he was often in the saloon, calling for liquor, when drunk and when sober, but each denied that he ever sold or gave him any or saw the other do so. But the jury, for some reasons, could not have believed this denial. Among them was the testimony of the alleged vendee that he had bought beer and whisky of the *59defendant and also of the barkeeper, when he was drunk and when he was sober, on occasions in number far exceeding those charged in the indictment; and that of his wife, that she had taken him out of the saloon four or five times, on one of which occasions she saw him tipping a glass to his lips; the facts Avere that he was often seen to be intoxicated and didn’t get liquor at home, and that although there were other saloons in Bloomington, where he resided, yet he continued to so frequent that of the defendant, where, as Avas testified, he was so persistently and uniformly refused, for a reason that did not import a personal compliment nor invite his company.
It was for the jury, with their advantages, to determine the question of credibility arising upon this conflict of testimony; and having unanimously concurred in judgment as to how it ought to be determined, and been supported by the trial judge, Avho also saAv and heard the witnesses, we are neither prepared nor disposed to overrule it.
It is said, however, that their finding may have been influenced by certain instructions given Avhich are claimed to have been erroneous.
One was “ that the number of witnesses does not necessarily determine the weight of the evidence in any case, but the jury should take into consideration all the evidence in the case and should consider it all together, and determine from all the evidence in the case and from all the circumstances proven on the trial, as to the weight of the evidence, and return a verdict accordingly; ” under which, it is insisted, they may have returned their verdict upon Avhat they considered a preponderance of the evidence, though not sufficient to convince them beyond a reasonable doubt of the defendant’s guilt.
While the phrase, “ the weight of the evidence,” is often used in instructions and properly understood to mean the preponderance of the evidence, it does not necessarily so mean, and is not to be here so understood. This instruction expressly applies to “ any case,” that is, to eveiw case, and holds that the verdict should depend upon the AAreight of the *60evidence—which is the trier’s honest estimate of its power or tendency to convince, one way or the other, as to a matter of fact in dispute—to be made by a candid and thorough consideration of each item as affected by a like consideration of all others that are pertinent to the same question, and not merely by the number of witnesses. And this is true of all cases, whether there is sufficient evidence to convince beyond a reasonable doubt, or only a bare preponderance, or an even balance. This' instruction does not attempt or purport to state the rule as to the comparative weight, or the measure of proof required to support a verdict in any case, but leaves it to others; and if of itself this might be considered misleading or absolutely erroneous, that rule applicable to this case is in them too fully and clearly stated, to be misunderstood. In three of the eleven given for the people it is declared to be such as to produce belief “ beyond a reasonable doubt,” and three others explain what is meant by such a doubt — clearly implying that the evidence, to justify a conviction, must be sufficient to remove it. Of the fourteen given for the defendant nine require proof against him “ beyond a reasonable doubt; ” three expressly declare that neither a mere preponderance, short of that, nor a greater probability of guilt, merely, appearing by the evidence or upon the doctrine of chances, is sufficient.
Another instruction was, “ that if you believe from the evidence in this case beyond a reasonable doubt that the defendant or his bartender, within eighteen months just prior to the finding of the indictment in this case, within the said county, sold intoxicating liquor to Pearl Punyon, the said Pearl Punyon being them, and there aperson in the habit■ of getting intoxicated, then you should find the defendant guilty,” etc.; and the next following is in the same language except that the words “the said Pearl Punyon being a person then and there intoxicated,” are substituted for those above italicized—which are the clauses complained of as assuming material facts alleged in the several counts to which the instructions respectively apply.
“ And that said Pearl Runyon was,” would have been a *61better form of expression than “ the said Pearl Eunyon being.” But if the one used was not intended as an absolute statement, which we think is probable, it is in this case a mere question of idiomatic accuracy which is unimportant to discuss or decide, inasmuch as the facts referred- to were fully proved by the testimony of Eunyon himself, his wife, two daughters and son-in-law, and by that of the defendant and his bartender as well. The latter said he was employed as bartender from February 5, 1894, to June following; that during that period he refused to let Eunyon have' any liquor twenty-five or thirty times, and that he was always drunk when he called for it. It is not claimed in the argument that there was any controversy on these points. An assumption of these facts, therefore, could have done no harm and would not have been error. The judgment will be affirmed.