delivered the opinion of the court.
A prosecution on an information charging murder in the first degree. The jury found defendant guilty, fixed the penalty at life imрrisonment; and it was so adjudged.
It appears that defendant and the victim of the homicide, not formally married, were living together as husband and wife in an established place of abode in Pueblo. The tragedy occurred about 1 o ’clock in the morning when the two were returning home from visiting night clubs in and about the city of their residenсe. The gun from which the fatal shot came was kept in the pocket of the door of defendant’s autоmobile in which they were riding. As they were nearing home, as defendant testified, deceased took the gun from the pocket and was examining it; that thereupon, he stopped the car and sought to become рossessed of the gun; that a struggle ensued in the course of which the gun was accidentally discharged inflicting- the wоund which in a few days brought death to the woman. Immediately following the shot, defendant drove to their home, only а few doors away, carried the woman into the house and called a physician. Within a few minutes the doсtor arrived, when defendant called the police, and in the presence of the doctor told the officers substantially the story he related at the trial, already outlined, and gave them the gun.
The claim that the shooting was accidental justified an instruction on that theory. The instruction given on the point, number 9 of the charge, is challenged, because, as said, the language of the last sentence implied that defendant fired the fatal shot, an implication calculated to cause the jury to ignore testimony which *157 indicated thаt the shot had its genesis in an accident; and for the further reason, as claimed, that it placed the burden of proof on defendant, that is to say, instead of adhering’ to the rule that the defendant must be proved guilty beyоnd a reasonable doubt, the court advised the jury, that, to acquit, the jury must be convinced beyond a reasоnable doubt that the shooting was accidental. The instruction reads:
“You are instructed that wilfully means intentionаlly, not accidentally; feloniously means wickedly and against the admonitions of the law, unlawfully. Maliciously means a wrongful act intentionally done without just cause or excuse. Therefore,” the court added, “if after rеviewing all the evidence in the case, you entertain a reasonable doubt therefrom as to whethеr or not the defendant inflicted the fatal wound accidentally and without intent to take life, then you must acquit.”
The testimony to the effect that the homicide was the result of an accident, was to be considered by the jury as it weighed all the evidence in determining’ whether defendant was guilty—-not whether he was innocent. The questioned instruction, as we perceive, “is subject to the exception that it requires the jury to
believe from the evidence
the existence of the conditions which entitled him to acquittal. * * * If the jury entertained a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existеnce of the facts and conditions, or any of them, mentioned in said paragraph.”
Johnson v. State,
29 Tex. App. 150,
But, the attorney general says, other instructions correctly set forth thе rule relative to burden of proof, hence the jury was not misled. We cannot regard that contention as of safe application. The defendant claimed that the gun was discharged by accident. The instructiоn emphasized the defense thus advanced, but virtually visited upon defendant the burden of proof as to the сlaim. To say the jury was not misled would be to conjecture. See
Weber v. State, supra; Drossos v. United States, suрra; Wisdom v. People,
The attorney general further contends that since only a general objectiоn was made to the instruction, and no exception to its giving was noted, we should not give it attention. We have dеcisions and rule of court (rule 7) justifying the attorney general’s position; but we also have held that “when we feеl that a seriously prejudicial error was made and that justice requires such consideration,” we may of our own motion examine and determine the point.
Reppin v. People,
Mr. Chief Justice Burke and Mr. Justice Bakke concur.