4 Mont. 141 | Mont. | 1881
The indictment in this cause was for an assault with intent to commit murder. The jury found the defendant guilty as charged in the indictment. The defendant, upon his trial, attempted to justify by endeavoring to show that the act constituting the alleged crime was done in self-defense. The testimony tending to show such justification was wholly introduced by the defendant, as none of the testimony of the prosecution indicated any state of circumstances which warranted the shooting. On the other hand, all the testimony of the prosecution was wholly inconsistent with, and tended to repel, such justification. Therefore this is a case wherein the attempted justification is wholly set up by the defense, and is repelled and rebutted by the prosecution. The testimony is of necessity very conflicting. This renders it more imperative to correct the error complained of, if, upon inquiry, we shall find it to have been
It will be observed that nowhere in this section appears the language “beyond a reasonable doubt,” which is the phrase universally used by the profession and the law writers in relation to the amount or weight of evidence necessary to conviction in criminal cases. The omission of this phrase and the use of the language “burden of proof,” and “sufficiently manifest,” would lead us ■strongly to infer that the legislature intended that the facts of mitigation, justification or excuse need only be shown by a preponderance of testimony. Code of Civ. Pro. sec. 513. We are further inclined to the opinion that the legislature used these phrases in the above connection in view and as confirmatory of the rule of law generally prevailing in such cases. What the prevailing rule is we will very briefly consider.
The court of appeals of the state of New York in 1810 ■expressly overruled the law formerly prevailing in that state, viz.: that when the fact of homicide was made ■out, and the defendant attempted to justify, that then the burden was upon him to make out this defense beyond a reasonable doubt. People v. Schryver, 42 N. Y. 1. In this case it was held in substance that the facts of provocation must be established by a preponderance of testimony according to the rules which obtain in civil cases. Earl, C. J., delivering the opinion of the court, and referring to the case of The People v. McCann, 16 N. Y.
“The people, in every case of homicide, must prove the corpus delicti beyond a reasonable doubt, and if the prisoner claims a justification, he must take upon himself the burden of satisfying the jury by a preponderance of evidence. He must produce the same degree of proof that would be required if the blow inflicted had not produced death, and he had been sued for assault and battery and had set up a justification.”
In William Silvers v. The State, which was an indictment for murder (22 Ohio, 90), White, J., after reviewing some of the earlier and later English cases, also some of those of Massachusetts, New York, and former decisions of his own state, uses this language: “Where a party claims to control the legal effect of facts by the alleged existence of other facts, the burden is on him to show a preponderance of evidence in favor of the existence of the latter.”
In State v. Pierce, 8 Nev. 291, the court below gave the following instruction: “If you believe from the testimony, beyond a reasonable doubt, that at the time and place above named the said George Wilson inflicted upon the person of this defendant a serious and highly provoking injury, sufficient to excite an irresistible passion in a reasonable person, and that then and there, without
The supreme court of California, in People v. Coffman, 24 Cal. 230, has stated the rule in criminal cases thus: “It may be laid down as a general rule that preponderating proof is sufficient to establish a fact in defendant’s favor.”
We are satisfied, from an examination of the authorities generally, as well as from principle, that the correct and prevailing rule in cases of homicide is that the facts constituting mitigation, justification or excuse should be established by a preponderance of testimony.
In the criminal code of Illinois the same provisions exist as are contained in section 40 of our criminal laws. The language of both is identical. In that state, in a late case, where the court below, upon a trial for murder, charged the jury that “if they should find from the evidence, beyond a reasonable doubt, that the killing of Anna Alexander has been proved as charged in the indictment, then any defense which the defendant may rely upon in justification or excuse of the act, or to reduce the killing to the grade of manslaughter, it is incumbent upon the defendant satisfactorily to establish
The judgment herein appealed from is reversed, and the cause remanded for a new trial.
Judgment reversed.