141 P. 149 | Mont. | 1914
delivered the opinion of the court.
The defendant was convicted of murder in the second degree, and sentenced to imprisonment for a term of 100 years. He has appealed from the judgment and an order denying his motion for a new trial.
The brief submitted by counsel contains many assignments alleging error in the instructions and in the court’s rulings in excluding evidence offered by the defendant. Of these only three are referred to in the argument. In view of the nature of the charge and the severity of the sentence imposed, however, we have made such examination of them all as has been possible without the assistance of oral or printed argument. We have found no substantial error in any of them. We shall not give special notice to any of them, other than those argued by counsel.
1. The defendant shot the deceased, Thomas Slonski, in the early morning of August 9, 1912, inflicting a wound from which death ensued the following morning. The wound was through the left thigh, the bullet in its course breaking and splintering the bone, severing the femoral artery, and severely lacerating the muscles as it passed out. At the trial it was sought to justify the shooting on the ground of self-defense. Some effort was also made to show that the wound was not mortal, but that the death of the deceased was caused solely by the maltreatment of the attending physician.
In paragraph 20 of the charge the term “malice” was defined
"While this section declares the circumstances under which the burden of proof shifts to the defendant, he is not at any time required to bear a greater burden than to go forward with his proofs far enough to create in the minds of the jurors a reasonable doubt as to his guilt. The burden of proof, as these words are used in the criminal law, is never upon the defendant to disprove the facts necessary to establish the crime with which he is charged. It is upon the state from the beginning to the end of the trial. It applies to every element necessary to constitute the crime charged, including mental capacity, and also the motives and impulses which give quality to, and characterize, the act under investigation, when proof of them is necessary. The defendant is entitled to an acquittal, unless his guilt appears from the evidence, considered as a whole, beyond a reasonable doubt. (State v. Brooks, 23 Mont. 146, 57 Pac. 1038; State v.
By the omission complained of, and by the failure to submit the rule as embodied in the statute, which the court might properly have submitted, the jury were impliedly told that the burden did not devolve upon the defendant at any stage of the ease. We can see no ground for criticism of the instruction.
2. Dr. Kistler, called as a witness by the state, testified as to the character of the wound, the condition in which the deceased
3. Dr. Haviland was called by the defendant as an expert. Several questions were put to him, the evident purpose of which
The judgment and order are affirmed.
Affirmed.