| Va. | Jul 22, 1899
delivered the opinion of the court.
Jackson was found guilty of murder in the County Court of Pulaski county, and his term of imprisonment ascertained at seven years. During the trial, exceptions were taken to the ruling of the court in giving and refusing instructions, and to its judgment overruling the prisoner’s motion for a new trial upon the ground that the verdict was contrary to the law and the evidence. The judgment of the County Court' was affirmed by the Circuit Court. From that judgment a writ of error was allowed, and the case is now before us.
The tenth instruction given by the court at the trial is as. follows:
“ The court instructs the jury that if they shall believe from the evidence that there was a quarrel between the prisoner and the deceased, and that -both were at fault, and, as a result of such quarrel, a combat took place, and in such combat the prisoner killed the deceased, in order to reduce the offence of the prisoner from the degree .of murder, two things must appear from the evidence and circumstances of the case: (1) That before the mortal wound was given the prisoner declined further combat and retreated as far as he could with safety; and (2) that he necessarily killed the deceased in order to save his own life; or to protect himself from great bodily harm.”
In the first branch of this instifiiction the jury are correctly told “ that if they believe from the evidence that there was a quarrel between the prisoner and the deceased, and that both were at fault, and as a result of this quarrel a combat took place in which the prisoner killed the deceased,” the homicide was murder in the second degree. It then proceeds to instruct the jury that in order to reduce the offence from the degree of murder, it must appear from the evidence that before the mortal
In the third instruction given by the court, the jury were told that “ every homicide in Virginia is presumed to be murder in the second degree. In order to elevate the offence to miirder of the first degree, the burden of proof is upon the Commonwealth; and to reduce the offence to manslaughter, the burden of proof is upon the prisoner.”
In the tenth instruction, in order to reduce the offence below' the degree of murder, the prisoner was required to prove circumstances, which would have entitled the prisoner to a verdict of acquittal; thus informing the jury that they could not find the prisoner guilty of manslaughter without proof of facts and circumstances sufficient to relieve him from all responsibility for the crime with which he was charged. It thus appears that the general proposition correctly stated in the third instruction is inconsistent with, and is indeed contradicted by, the more specific statement of the law presented in the instruction under consideration.
Having reached the conclusion that the tenth instruction is. erroneous,- it only remains to be considered whether or not it was prejudicial to the prisoner.
It has been said by this court that all error, is presumed to be prejudicial, and while it has approved verdicts rendered upon erroneous instructions, it does so with great caution, and only where it clearly appears that no injury could have resulted from, the error. A lawyer reading the instructions in this case would scarcely'be -misled by them, but instructions are given to jurors because they are not lawyers. They are given to aid the jury in reaching a right conclusion, ■ and not in order to exercise their skill in reconciling contradictory propositions.
Reversed.