
    William Silvus v. The State.
    On the trial of an indictment for murder, the burden of proving that the homicide was excusable on the ground of self-defense, rests on the defendant, and must be established by a preponderance of the evidence.
    Eititos to the Court of Common Pleas of Athens county.
    
      The defendant was indicted for murder in the second degree and convicted of manslaughter. It appears from the evidence that the deceased, Lester Wines, came to his death from a wound in the neck, which severed an artery, and that the wound was inflicted with a knife, by the defendant, while he and the deceased were together in a cornfield, no third person being present. The state, among other things, gave in evidence certain confessions of the defendant, in which he stated that what he did to the deceased was done in self-defense.
    The defendant testified on his own behalf, and, in effect, stated that, a dispute arising between him and the deceased, the latter threatened to beat him and did strike him, and that he, through fear, and in self-defense, struck the deceased with the knife.
    The evidence of the state tended to disprove the grounds of self-defense claimed by the defendant.
    The evidence being closed, the court, among other things, charged the jury as follows: “The defendant having admitted the taking of the life of the deceased, Lester Wines, and seeking to show that he took it in self-defense, the burden of proof is on him to show, by a preponderance of evidence, that what he did was necessary to be done in order to save his own life, or to protect himself from enormous bodily harm.” And the court also charged as follows: “In order that the defendant may avail himself of the plea of self-defense, it is necessary that he show the jury, by a preponderance of evidence, that when he struck the mortal blow, he was actuated by fear and apprehension of death, or great bodily harm, at the hands of the deceased, Lester Wines; and moreover, that he had reasonable grounds for entertaining such fear and apprehension. The mere fact that the defendant is an old man is not conclusive of this question. But-the jury will look to all the circumstances of the transaction, as well as the relative age and strength of the parties.” To these instructions the defendant excepted.
    And the defendant’s counsel asked the court to instruct the jury as follows: “ That the state must prove to the jury, beyond a reasonable doubt, that the killing of Lester Wines was unlawful, and that the blow that caused the death of Lester Wines was struck unlawfully and not in self-defense, and if the state shall fail to satisfy the jury, beyond a reasonable doubt, that the said killing was done unlawfully, then the verdict must be for the defendant.” This instruction the court refused to give, and the defendant excepted.
    Sentence having been pronounced against the defendant, the case is brought here, on writ of error, for reversal of the sentence and for a new trial, on the ground that the court erred in its charge to the jury, and in refusing to charge as asked. •
    
      W. Reed Golden, for plaintiff in error .
    The precise question raised by the bill of exceptions has never been settled in Ohio.
    What must the state prove to convict of manslaughter? Where may the state stop, and shift the burden of proof to the defendant ?
    It must prove the killing to be unlawful; if done in self-defense it is not unlawful, and no conviction could be had.
    In this class of cases the burden of proof never shifts, not even to show insanity. 16 N. Y. 58, 4 syl.: “ Upon a trial for murder, where the killing by the prisoner is admitted, and his defense is insanity, the prisoner is entitled to any doubt resting upon the question of sanity. Sanity is a necessary condition to constitute the crime, and the proof thereof a part of the case to be made by the prosecution.”
    The books are not uniform upon this question, and I think the court will find some difficulty in reconciling them.
    The strongest case in support of the ruling of the court below is The Commonwealth v. Peter York, reported in 2 Leading Cases, 504.
    The court there say: “When, on the trial for murder, the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder, and proof of matter of excuse, or extenuation, lies on the defendant, which may appear either from evidence adduced by the prosecution, or from evidence offered by the defendant.”
    It seems to me this case goes too far.
    "What are the steps necessary to arrive at the conclusion announced by that court?
    The mere act of killing, unexplained, is presumed to be intentional and willful, and not the result of accident or negligence ; therefore, it must also be presumed to be unlawful and not in self-defense; and, therefore, it must be presumed to be the result of deliberation and premeditation. If I am right in this, the state, by proving the mere fact of killing, will be entitled to a verdict for murder in the first degree, unless the killing be explained by the defendant. But the case alluded to is much weakened by the dissent of Judge "Wildes. See his dissenting opinion.
    The next case, The People v. Schryver, 42 N. Y. 1, was decided by a divided court, Judge Sutherland dissenting. The People v. Cotterel, 18 Johns. 120, is to the same effect; also, 1 Greenl. Ev., sec. 34, etc.
    
      The King v. Oneby, 2 Ld. Raym. 1485, is the case on which all the others are based. I ask attention to the reasoning of the court in that case, as I deem it unsound.
    But how is it on the other side ?
    The leading case is found in 2 Leading Criminal Cases, 347, Commonwealth v. James McKie, from 1 Gray, 61.
    The court says: “ If the defense to an assault and battery be a justification or excuse arising out of the transaction itself, such as a prior assault, the burden of proving such defense is not shifted upon the defendant by mere proof of the blow, even with a dangerous weapon.
    “In such case, if the jury have reasonable doubts whether the blow was given under such circumstances as amount to a justification in law, they ought not to convict.
    “ In any criminal charge, if the defendant relies upon no separate, distinct, and independent fact, but confines his defense to the original transaction on which .the charge is founded, with its accompanying circumstances, the burden of proof never shifts, but remains upon the government throughout the whole case to prove the act to be a criminal one.” 1 Greenl. Ev. 61.
    This decision was concurred in by all the judges.
    In a, criminal case, the only known defense is the general ifesue, which, ex vi termini, denies and puts in issue the criminal intent as well as the overt act; every thing is put in issue by the plea of not guilty.
    The common presumption of innocence, until one is proved guilty, extends to the whole crime charged against him; innocent of the overt act; innocent of the malicious intent; innocent of the whole crime; and innocent of all its parts. How can proof, therefore, of the overt act merely, throw over to the defendant the proof of his innocence?”
    In United States v. McClure, 7 Boston Law Reporter, N. S. 439, Judge Sprague uses the following language :
    “ The existence of the overt act charged does not necessarily make it a crime. The blow complained of may be unintentional; or, if intentional, it may be in self-defense. The overt act is proved to be the same, but the character of the act, whether criminal or not, is left in doubt.”
    In United States v. Mingo, 7 Bost. Law Rep. 435, Judges Curtis and Sprague say: “ It is incumbent on-the government to prove a killing, and if, upon the whole evidence, the government has failed to satisfy the jury beyond a reasonable doubt that the killing was felonious, they must acquit.”
    See also Coffee v. The State, 3 Yerg. 283; Short v. The State, 7 Ib. 510; McDaniels v. The State, 8 Smed. & Marsh. 401; Commonwealth v. Hawkins, 3 Gray. See, especially, 24 Pick. 366.
    
      C. H. Grosvenor, for Grosvenor § Dana, on same side:
    The state was bound to show, beyond a reasonable doubt: 1. That Silvus struck the blow; 2. That it was unlawful.
    It will not do to hold that if doubt exists whether or not the defendant was at the place when the crime was committed, or whether the identity of the prisoner is shown, or whether the blow caused the death, the defendant must be acquitted; but the question of the greatest moment, the quality of the act, is to be decided by a preponderance. This is absurd.
    I ask especial attention to the case of the Commonwealth v. Webster, 5 Cush. (Mass.) 296. The syllabus of that case is: “On the trial of an indictment for murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily established by the party charged, unless they arise out of the evidence produced against him.”
    Our case comes clearly within this exception. Our defense arises out of the evidence produced against Silvus. Commonwealth v. Hardiman, 9 Gray, 136; State v. McAlister, 11 Shepley, 139; State v. Upham, 38 Maine, 261; Satterthwaite v. State, 28 Ala. 65; Whart. Am. Crim. Law, 711.
    I denounce, as bad law, the decision in State v. Turner, Wright, 29.
    The charge, as given, was calculated to mislead the jury.
    The court says, “ it is necessary to show the jury, by a preponderance of evidence,” etc.
    And then he calls attention to the evidence. “ The mere fact that the defendant is an old man is not conclusive.” . . . “ But the jury will look to all the circumstances, as well as the relative age and strength of the parties.”
    Was that all ? What is to be done with the old man’s testimony that a blow was struck, that- he was threatened, etc. The court immediately refused to say that the burden of proof was upon the state; and so the charge given, and the refusal, taken together, effectually excluded the evidence of the old man from the jury.
    There is a marked difference between the statute of New York and that of Ohio. That of New York provides: “ The killing of another, in the heat of passion, without the design to effect death, by a dangerous weapon, in any case (except such as the killing of another is herein declared to be justifiable or excusable), shall be manslaughter in the third degree.” This statute was framed with a view to force the defendant to show that the taking of life came within the statutory exception.
    
      Human life has never been held more sacred in this country than human liberty. The rules of law are the same where either is imperiled.
    
      Charles Townsend, prosecuting attorney, for the state:
    The corpus delicti being established, the presumption of law is that the killing was malicious and intentional, but without deliberation and premeditation. The English rule seems to carry with it premeditation. 1 East’s C. L. 340; 1 Ib. 225; 2 Poster’s Crown Laws, 255; The State v. Turner, Wright, 20-28; 1 Greenl. Ev. 34, note 2; Wharton’s Crim. Law, 708,-709; People v. McLeod, 1 Hill, 436; 1 Arch. Crim. Law & Pl. 898; 2 Stark on Ev., 4 Am. ed. 948.
    Where the defense is insanity, the burden of proof to show the insanity shifts to the defendant when the state has shown the defendant has committed the homicide, unless explained away by insanity. Commonwealth v. McKie, 1 Gray, 65; 3 Greenl. Ev. 5, and note 2; 2 Greenl. Ev. 372.
    In the case of Clark v. The State of Ohio, the judge below charged as follows, approved by the Supreme Court, to wit: “It is not sufficient if the proof barely shows that such a state of mind was possible, nor is it sufficient if it merely shows it to have been probable. The proof must be such as overrules the presumption of sanity.” Clark v. The State, 12 Ohio, 483; see Ib. 495, note a.
    
    In the case of T. O. Selfridge, Wharton’s Law of Homicide, the law was stated as follows: “I therefore declare it to you, as the law of the land, that unless the defendant has satisfactorily proved to you that no means of saving his life, or his person from great bodily harm, which was apparently intended by the deceased against him, except killing his adversary, were in his power, he has been guilty of manslaughter.” Wharton’s Law of Homicide, 458. Same effect, The People v. Cotter and Crannal, 18 Johns. 115; Commonwealth v. York, 9 Met. 93; Green v. Kirkham, 8 Car. & P. 116, 117.
    
      In the latter ease the court says: “ As soon as it is ascertained that one individual in the possession of reason has willfully taken away the life of another, the first presumption is tbat the party is guilty of murder. The law requires him, and will allow him, to show that there were some mitigating circumstances, which alter the presumed character of the act.” To the same effect, Commonwealth v. J. J. Knapp, 10 Pick. 484; Commonwealth v. J. F. Knapp, 9 Pick. 496.
    Starkie says: “It is a general rule that the law infers malice from the very act of killing, and that all the circumstances of necessity, accident, or infirmity which justify, excuse, or extenuate the act, are to be proved by the prisoner.” 2 Stark. Ev. 948, note 1. . To the same effect, Poster’s Crown Laws, 255.
    To same effect are Addison, 148, 161, 257, 282; State v. Zeller, 2 Halst. 282.
    In criminal trials, the people must establish all material allegations contained in the indictment, must prove the corpus delicti beyond a reasonable doubt; but justification must be established by the defense by a preponderance of evidence. The People v. Schryver, 42 N. Y. 1.
    The case last cited, is the only one similar to the case at bar, and is the latest reported case upon the points involved. It clearly supports the rulings and charge of the court below.
    
      C. K. G-rosvenor, in reply:
    As to authorities cited for state. Commonwealth v. York, 9 Met. 95, by a divided court, was overruled in effect by case in 1 Gray, and completely in 5 Cushing, 296. Both these eases are later than the York case.
    In Commonwealth v. Jos. F. Knapp, 10 Pick. 48, the defendant undertook to prove an alibi. He did not rely upon matters of defense growing out of evidence offered against him. See 5 Cush. 296. And this case, if it means what counsel for state claim, was overruled by implication in a later case. 24 Pick. 367.
    
      
      T. O. Selfridge's ease, Whart. Am. Law Horn. 458. This is referred to by Mr. Townsend. It was a mere dictum. The question was not made, and the words, “that unless the defendant has satisfactorily proved to you, etc.,” were used inadvertently, and ought not to weigh here.
    The text at pages 708, 709, Wharton’s Criminal.’ Law, comes within the distinction made in 5 Cushing, and is an authority in our favor.
    In Clark v. The State, 12 Ohio, the defense was insanity, and nothing was decided relative to the question made here.
    I ask attention to the dissenting opinion of Judge Sutherland, in 42 N. Y. 10. The charge, in the case at bar, had the same effect which Judge S. states that charge had.
    The mere proof of killing does not carry with it the presumption that the act is unlawful, where there are such circumstances as reasonably excite a doubt as to the quality of the act.
    If the charge was erroneous as tending to conviet of murder, the fact that the jury only found manslaughter is no answer. The tendency to direct a conviction of murder may, and no doubt did, procure the verdict of manslaughter.
   White, J.

The charge of the court in this case is to be understood in the light of the case made by the evidence on the trial. There was no dispute as to the fact that the deceased came to his death from a wound in a vital part, inflicted by the defendant with a deadly weapon. This was admitted by the defendant in his testimony; and he sought to justify or excuse the act, on the ground that he did it in self-defense.

The only question, therefore, is, whether the law devolved upon him the burden of showing the existence of the circumstances necessary to constitute a j ustification or excuse.

The court, in its charge, ruled that it did, and that a preponderance of evidence was all that, was required for tbe purpose. The gist of the instruction which the court refused, was, that the burden was on the state to show beyond a reasonable doubt, by affirmative evidence, otherwise than by the presumption arising from the homicide, that the fatal wound was not inflicted by the defendant in self-defense.

The proposition contained in this instruction would not only destroy the presumptions arising from the homicide, but, by its adoption, what is recognized in the books as a defense, would cease to be such, in any just sense, because the burden would be cast on the state of disproving its existence in order to support the indictment. "We think the ruling of the court was right both upon principle and authority.

■ In Best on Presumptions, itis said to be a presumptio juris, founded partly on the principle, that every person must be taken to intend that which is the immediate and natural consequence of his deliberate acts, but deriving additional force from considerations of public policy, that, where the fact of slaying has been proved, malice must be intended, and that all circumstances of justification or extenuation are to be made out by the accused, unless they appear from the evidence adduced against him. See. 129, p. 177.

The same doctrine is laid down in Poster’s Crown Cases, 225; 1 Hawk. P. C., chap. 13, sec. 32; 1 East P. C. 224, sec. 12; 4 Bl. Com., S. P. 201.

The text writers are fully supported by the adjudged cases.

In Legg’s case, reported in Xelyng, 27, John Legg was indicted for the murder of Robert Wise ; and “ it was upon the evidence agreed, that if one kill another and no sudden quarrel appeareth, this is murder, and it lieth on the party indicted to prove the sudden quarrel.”

In the leading ease of The King v. Oneby, 2 Ld. Raym. 1493, the question arose on a special verdict. The objection was that the homicide was upon a sudden quarrel, and so but manslaughter; whereupon Lord Raymond, C. J., delivering the unanimous opinion of the court* stated the rule thus: “In answer to this objection, I must first take notice that when a man is killed, the law will not presume that it was upon a sudden quarrel, unless it is proved to be; and, therefore, in Legg’s case, it was agreed upon evidence, that if A. kill B., and no sudden quarrel appears, it is murder; for it lies upon the party indicted to prove the sudden quarrel.”

The same principle pervades the later English eases. Thus, in the case of The King v. Greenacre, 8 Car. & P. 42, Tindal, C. J., instructed the jury thus: “There are several principles of law relating to this subject, one of which is perfectly clear, viz: that where it appears that one person’s death has been occasioned by the hands of another, it behooves that other to show from evidence, or by inference from the circumstances of the case, that the offense is of a mitigated character, and does not amount to the crime of murder.” See also Regina v. Kirkham, Id. 116.

The same rule was recognized and applied by the Supreme Court of this state in the case of The State v. Turner, where the presumption was held to be limited, under our statute, to murder in the second degree. Wright, 20. And by the Supreme Court of Massachusetts, in the case of The Commonwealth v. York, 9 Met. 93, and in the subsequent case of The Commonwealth v. Webster, 5 Cush. 305.

True, in the foregoing cases, the question was on reducing the homicide from a higher to a lower grade. But if the burden is on the defendant to show circumstances of mitigation, a fortiori, is the burden on him to show the circumstances to wholly excuse the act.

In Rex v. Morrison, 8 Car. & P. 21, the defendant was on trial for manslaughter. It was argued that as no witness was present at the giving of the wounds, from which death ensued, it could not be said that it was not accidental. In response to this claim, Park, J., said: “ I can not agree to that view of the case; because no person was present, is it to be inferred that it was an accident, without any evidence on the part of the prisoner? I say not.” And the learned judge goes.on to say, that if the homicide be shown to have been occasioned by the prisoner, it “ will be murder or manslaughter, as the circumstances may turn out, unless it is shown by the prisoner to have' been occasioned by accident.”

And in the late case of the People v. Schryver, before the Court of Appeals of New York (42 N. Y. 1), the defendant, on a charge of manslaughter, set up that he killed the deceased in self-defense. The court held, that “the people, in every case of homicide, must prove the corpus delicti beyond a reasonably doubt, and if the prisoner claims a justification, he must take upon himself the burden of satisfying the jury by a preponderance of evidence.” And it was said: “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.”

A like principle prevails where the defense of insanity is set up. The materiality of the fact of insanity upon the issue is to rebut the criminal intent of the injurious act, which is presumed to exist from sanity. In regard to this defense, the rule is that the burden is on the defendant to establish it by a preponderance of evidence. Clark v. State, 12 Ohio, 494; Loeffner v. State, 10 Ohio St. 599; Commonwealth v. Eddy, 7 Gray, 583.

The principle of these decisions is, that, in judicial investigation, facts legally presumed are, until rebutted, as effectual as facts proved. And 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. Eacts which are neither proved, nor to be presumed, are, for judicial purposes, regarded as not existing.

In regard to the suggestion that the charge was calculated to mislead the j ury, by depriving the defendant of the benefit of grounds of justification or excuse arising out of evidence produced by the state, we deem it only necessary to say, we do not think the charge can be fairly understood as withdrawing from the consideration of the jury any evidence in the case tending to show such justification or excuse. We understand the meaning of the charge to be no more than this, that the burden was on the defendant to show, from the evidence in the case, that the grounds of self-defense existed which would justify him in taking the life of the deceased.

Judgment affirmed.  