
    O. M. NICHOLS v. STATE.
    No. A-1639.
    Opinion Filed November 6, 1913.
    (135 Pac. 1071.)
    1. HOMICIDE — Assault with Intent to Kill — Information. An information charging that defendant, at a time and place named therein, "did willfully and feloniously, with a certain dangerous weapon, to wit, ■ a pistol, called a revolver, loaded with powder and ball, feloniously make an assault with the felonious intent to then and there kill" is insufficient to eharge the crime of attempt to kill as defined by section 2336, Eev. Laws 1910, but is sufficient to charge an assault with a dangerous weapon as defined by section 2344, Eev. Laws 1910.
    2.- TEIAL — Instructions—Burden of Proof. Instructions couched in language which implies the expectation of the court that a verdict of guilty will be returned, or an intimation that it is the duty of the jury to conviet, or which tend to shift the burden of proof, are improper.
    ’. HOMICIDE — Sufficiency of Evidence. Evidence examined, and , held insufficient to support the verdict and judgment.
    
      Appeal from District Court, Stephens, County; J. T. Johnson, Judge.
    
    O. M. Nichols was convicted of assault with intent to do bodily harm, and brings error.
    Reversed.
    
      Wilkinson & Morris,, for plaintiff in error.
    
      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   -vogEKÍJYJliBF'-iJí11'1

Dili's *fi3 ^ogiécteíFííí(Sfefffa fbonviction

iiáiNupSÍPfíiMiíííifSfSíiátio&a^íibiMi ¿Mígé'd Asíi#» MidNidiols did nea-'t alitt femíiiáyofbltw^sptO.Witbwilíihe'tsáfiai^ttiMtí Nictels, late of S tejhfeits '//(ástiatj^,fi'áfíd'flíviíBhifinfíief ijtírisiiíietós'fi Mi'othilK court, did willfully, unlawfully,b^glglf^KKSteíií^^íafSlítejn^nger-°"s wefgt&r„tS,T'b’.?:i:¥lSir5c-tIIfiflr.a.5*X^vS5-d?al*it?fi1/pc'^" cier and Dali, feloniously make an assault on one J. E. Lox, with the willful, unlawful, and felonious intent to then and there kill the said J. E. Cox, contrary to,” etc. The verdict, omitting formal parts, was as follows: “Find the defendant guilty of assault with intent to do bodily harm, and leave his punishment to be assessed by the cwrffij..., Motipii^J^jiipw^riaJ }and in arrest of judgment were duly hied and overruled, and on November 26, 1911, judgnfáfM y}'á§,‘'4tbfidéíleíl',lllSnd<>itfliS0coá!hf-I:séntáíced the defendant to imprisonment (ffc)í'ta.DÉéí:i$Cidf two years in the peni-±#ílti$ry..noiífiífaoliiI — -ÍXtJí oí tosírtl rfíxw tíirjsaaA — 3CCOCOXMOH .£

Iwinfiq'iw^jAgflcgnQA {h&jpdiT1'üfM’e Mte^SgflfetaiíMSim'ks fol-«uoiogiisB lUfmao i: rtihw ,vKrfonrol9f l)rn¡ yfumliw fun1, ..morodí wWtóq díiw fiofusol .revlown t:- lolfoo ,[otai<j .n ,Jiw oí ,aocf.BOW 'U&t m talking Sll^odoups^fiíwii-itrvtaaT SSnftfSr WjSSNftrf&Porilrin3*ddJf!ÍiV'iqX9*§'ffit''g3tr(i[Ki.T'llSl thraft k# laáditted’enedíBtltóatitle to d'afiamtJantóbSferetífoegdeift, and a‘ef?fcft &5!bl£&wp# MM JfífeMtfen sold the land to Joe Kinder; that.he told defendant that he Was in flues .Borfunszi oyiroTiivlf. .oairoiSiva io yqiisioiSf/H — HCIIOXMOIi , a hurry, andioiá^, MíP.-ttoiG«m,gta|}©$ljgir ^iH&hfefcíifeWent to his real estate office with. Toe Kinder, and defendant came to the , ym»QJ ?.nniwn/; .fcumo inMtia.uHvJlm-Wüf . door, and witness and .Mr. Kinder unvoted him in; mat Kinder , . ,, v. A, , ...... started to leave, and defendant closed the door, and said, JNIo, <yfe>uohifeqáQt ¿ifisgiifjittert fwitbetesi’/gotJ u5£'/outí<xD!£iKis.lGÍhai4 and asked defendant if h.é>owaisrüh:lintrngrttronjsleí,dahdf:hefrsa&l,yR,0Kr'Or, I am not;” after some-words .witness -jerked off his-coat, and ’ , .Í0T19, tic .fftiurcnj ;tol ,?irmTC v; uov.hjíuTI put it on a chair, and told defendant that he had neither knife .fíétAguta£/and'(§fert'ed(l;oWafds fdefendaúl.-tdKngVdnM t0»%et out of his office; that he brushed his hand over d'éféíidaét, "add.-á'aád, “You have got a gifism righihíhairap’ o^dildefjMdtotjiBajdM'IKeep your hands off of m$,\t> amti pulkdi-tke ¡giip -tom* llifolpof^nanol witness grabbed it, aiftdi-Jeíikediáh'TWtTLf .hfe-hasd, ¡abtí ,hitl htó over the head two or'jfhraQrAieh$:uw-itli;rjt|;) thafti* rtbBfcSSuffl&jid&i fendant fell, and he hitodfeífiüdahtj-iwi'ítf/thel gUnntjwoy&r Utóífd more licks; that witndsfinw&ig'hgd flbot¥|-¡jM0.0 opojm><feSfn8 8r nor)

Joe Kinder testifiedMtli!a4i)(^j£esdas)ihienjiarid^d-! his improvements on the lañd,tatid feadokLMnvJitóTihatRWBs.'¿''mat-ter for him and Mr. Cokurtliatlitht^htgifedr ábbítf ffrálffifMftliTaMif? Mr. Cox asked defendant ikihá^^áSf-fh^ |l®^t ^fetf^Síiíd .iíflísf^ him, and he said he woul¿f1not"',tíkecleMÍ,than>Sfe(lmlrpnS Mf-T^ox . ’ tnr , , ulT ism Miiáüiya arlj nrcrtr‘>v‘sBd xittt said, You come back tomqyrgflj, jÍ^yírÍQ;¿55Wi^bg^áfeíq that he started to leavej andndfltadantrjshutbtfe deaft 4*& §&idi “No, you won’t go nowth'át ^Siktigíiílí©d''u®il!íís edátji&fld.'W&ikEré towards defendant, and said^ ^kel£dPfi^n$p<íKfefí>a5t -^WfP^WaM1 „ „ . i j~. juiannsm ¡loan m liiabnídob boílus*. to; my pants don t fit me with a .gun on; you may nave,, a, gun on you for all I know — an4c.p.^^s],lWn..^B9ibjd%f^idaBtbn^b fendant stepped back against tfr© i5fBÍ3í;ífasdÍt®ldírMrd CítSc» tog back, and pulled a gun out of fjliyoJpsfcMetyt alirtiffiMatJ Cttfc 'JiiuagMtf the gun, and struck defendant,iná'tíh\ibtHt^.'-)an

Leo Cox testified to-

lhe assignments of error relied upon for a reversal of j^jg judgment are in effect as follow^ n^pJí?Yl4ffi 9MPI5Í1W pendant’s demurrer to the information, J^gt instructions given. That the ver^c^jqf/the.J^gjjjs, gfjijitfgr^jg law and to the evidence, and is mgk.^u^gin^fl Mir ^ence-

The information is insufficíentj'jp tempt to kill, defined by the Pená^flf MsñBSít Laws 1910) as follows: ¿«onfiy/ gninhdqmoo arif yd

“Any person who intentionally andrjy/i'OfgfidlMrBjiQigite/líhQOÍh at, or attempts to shoot at another, wi1;l})$.pyJjl)di]ifl(i<?ufy'rWiURnfftk gun or other means whatever, with intent to kill* aOT'.persóm or who commits any assault and battery upon another by Inelans^o?’ any deadly weapon, or by such other rriea&SsloiSíáyftíéí'aís 'igTIikely to produce death or in resisting the execujáop-^f^ftyjJpgjjfyproc-ess, is punishable by imprisonment in Ijiaejp^pjjt^jarjyjjng^fie^j ceeding ten years.” nm<hni orb ni bwmib

The court in its charge erroneously submitted the issue of attempt to kill under this section. See Clark v. State, 6 Okla. Cr. 100, 116 Pac. 200. However, the court also submitted the issue of assault with a dangerous weapon as defined by the Penal Code. Section 2344. We are inclined to think that the information is sufficient to charge an offense under this section.

One of the instructions excepted to is as follows:

“You are further instructed that, for the acts charged in the information to be justifiable, they must have been performed in this case in the lawful defense of the defendant against an unlawful assault upon him by the complaining witness. If the jury believe from the evidence that the defendant and the complaining witness met at the time and place stated in the information, and there held a conversation in a peaceable and lawful manner, and the said complaining witness, without just reason or excuse, became enraged at the defendant, and' thereupon assaulted defendant in such manner as to induce in the mind of the defendant a reasonable and well-grounded belief that he, the defendant, was actually in danger of losing his life or of suffering great bodily harm at the hands of the said complaining witness, then he was justified in defending himself,- and in so doing might use such force as was reasonably necessary under the circumstances to protect himself against such threatened danger, even to the extent of performing the acts complained' of in the information.”

We think this instruction tends to shift the burden of proof by requiring defendant to establish his defense by a preponderance of the evidence. All that is necessary in a criminal case is that the evidence, or the want of evidence, as a whole raises a reasonable doubt as to the guilt of the person charged. If the jury had airy reasonable doubt as to whether defendant was justified in defending himself against the assault made upon him by the complaining witness, it was their duty to return a verdict of not guilty. It was not incumbent upon the jury to find affirmatively that defendant acted in self-defense before they could acquit him.

The following language of the court is also complained of:

“Instruction No. 9: If in your deliberation you are unable to find the defendant guilty of the crime of attempt to kill, as charged in the information, you should then consider the evidence as applied to the next lower degree of said crime, to wit, assault with a dangerous weapon.”

‘‘Instruction No. 11: You are further instructed that, if in consideration of the evidence in this case under the instructions of the court you are unable to find the defendant. guilty of an attempt to kill, and you are also unable to find him guilty of an assault with intent to do bodily harm, you should then consider the evidence under the instructions of the court to determine whether or not the defendant is guilty of assault and battery upon the said complaining witness.”

It will be observed that the language of the court is, “if you are unable to find the defendant guilty of the crime of attempt to kill, as charged in the information, and you are also unable to find him guilty of an assault with intent to do bodily harm.” In the case of Bauer v. State, 3 Okla. Cr. 529, 107 Pac. 525, similar language is condemned. The court said:

“This might have been understood by the jury that the court expected a verdict of guilty, or construed as an intimation that it was the duty of the jury under the evidence to find the defendant guilty. The jury should have been told if, after a fair and impartial consideration of all of the evidence in the case, they were not convinced beyond a reasonable doubt of the defendant’s guilt, as charged in the indictment, then it would be their duty to consider as to whether he was guilty of the next lower offense embraced in the charge. It is never the duty of the jury to convict the defendant until, after a fair and impartial consideration of all the. evidence and circumstances, they are convinced beyond a reasonable doubt of his guilt.”

As to the sufficiency of the evidence, we do not believe we would be warranted in sanctioning the verdict and judgment.

For the reasons stated, the judgment is reversed.

ARMSTRONG, P. J, and FURMAN, J., concur.  