State v. Bertrand

3 Or. 61 | Multnomah Cty. Cir. Ct., O.R. | 1868

Upton, J.,

among other instructions, gave the following:

If you are satisfied beyond a reasonable doubt that the defendant intentionally tilled the deceased with a gun or pistol, the burden of proof devolves on the defendant. When the proof shows that the tilling was done by a defendant voluntarily or intentionally, with a weapon which was designed and intended for tating life, the law raises a presumption from the use of that tind of weapon, that the party using the weapon intended to till, and that the tilling was malicious.

When such proof is made, unless the circumstances of the tilling show that it was justifiable or excusable, the burden of proof devolves on the defendant to show a justification or an- excuse for the tilling.

In such case it devolves on the defendant to show that the tilling was necessary, or to show such circumstances as render the act excusable.

The burden is on the state, in the first instance, to remove the presumption of innocence, and to show that the defendant did the acts that constitute the crime. But when the state shows beyond a reasonable doubt, that a defendant purposely did the killing charged in the indictment, with a -weapon that was designed for the very purpose of taking life, as soon as that point is established, the burden of proof changes, and the burden then rests upon the defendant. And if there is not proof to show that the act was justifiable, or to show that it was excusable, the defendant is not entitled to be acquitted for the lack of evidence on the subject of justification or of excuse. Where voluntary killing with a gun is fully proved, and some evidence is offered tending to show a justification or an excuse, if there is not a preponderance of evidence in favor of justification or excuse, the defense is not made out.

In this case the killing cannot be justified upon any other ground except that the killing was necessary, in order to prevent Moire, the deceased, from killing the defendant, or from doing him great bodily harm.

The killing is not excusable, unless on the grounds that it was done by accident in doing a lawful act, or “by .accident or misfortune in the heat of passion upon a sudden and sufficient provocation, or upon, a sudden coinbat without premeditation and without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.”

“If a person without malice, either express or implied, and without deliberation, upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, , voluntarily kill another,” the act is manslaughter. If a person purposely and maliciously kill another, the act is murder.

The defendant was convicted of manslaughter.