
    State of Iowa v. Harry Clayton, Appellant.
    I Criminal law: murder: self-defense: belief of danger: evidence, On a prosecution for the killing of deceased who, in a friendly way, was resisting an alleged assault of a third person, the evidence is held to require submission of the question of defendant’s reasonable belief of imminent danger at the time of the shooting.
    2 Same: instructions: reasonable doubt. Where the court clearly told the jury that it could only convict defendant of murder in case it was satisfied of his guilt beyond a reasonable doubt, in view of the justification or excuse relied upon, failure to expressly charge that the burden was upon the State to show beyond a reasonable doubt that, the shooting was not in self-defense, was not erroneous; since the jury could not have understood that the defendant had the burden of showing justification.
    
      Appeal from Woodbury District Court. — Hon. J. F. Oliver, Judge.
    Tuesday, February 8, 1910.
    The defeudaut was indicted for murder in tbe second degree, committed in tbe billing of one Mel Powers. Tbe conviction was for manslaughter, and defendant appeals.—
    
      Affirmed.
    
    
      Chas A. Dickson and Fred W. Sargent, for appellant.
    
      H. W. Byers, Attorney-General, Chas. W. Lyon, Assistant Attorney-General, and ü. C. Whitney, County Attorney, for tbe State.
   McClain, J.

On tbe 29th day of June, 1908, at about ten o’clock in tbe evening, tbe defendant and one Sheelér, who bad been drinking in a saloon in Sioux City, came out upon tbe sidewalk to where Sbeeler’s horse was bitched. With them were tbe deceased and two or three other persons. One Hanson, defendant’s friend, who was an assistant in tbe saloon, gave to defendant a revolver, which defendant placed inside bis trousers, and which, as Hanson testifies, defendant was to carry for him to their rooming bouse. Defendant, whose stomach was delicate, leaned over by Sheeler’s horse to vomit at the edge of the sidewalk, and was spoken to by Sheeler in a rough way, but defendant requested to be left alone, as he was sick, and Sheeler went to the rear wheel of the buggy, where he was with Powers when defendant, recovering from his sickness, approached him. The evidence for defendant tends to show that Sheeler poked a revolver at' defendant’s stomach, where- • upon defendant jumped back, drew the revolver which Hanson hád given him, and, partially turning, fired towards Sheeler, but hit Powers, causing his instant death. Giving to the evidence for defendant the most favorable construction of which it is capable, the question was whether defendant had fired at Sheeler in self-defense, and by accident hit Powers, who had attempted to intervene between the two. The court instructed the jury with reference to justifiable self-defense, in which Powers was unintentionally killed, and the two questions presented in the argument are, first, was there sufficient evidence to sustain the verdict in this respect; and, second, was there error in the instructions as to the burden of proof regarding self-defense ?

I. The evidence in the record leaves no reasonable question in our minds as to its sufficiency to justify submission to the jury of the question as to defendant’s guilt. Al- -*• ¡ *• revolver against the defendant’s stomach, and said, after applying to him an epithough defendant testified that when he approached Powers and Sheeler the latter put thet, “I have a notion to bump you off,” yet on the evidence of defendant’s own witnesses as to the circumstances under which the statement was made the jury might well have believed that defendant had no reasonable ground to infer an intention, on the part of Sheeler, to inflict violence, and defendant’s account of the transaction is denied by Sheeler. Defendant himself testified that there was no animosity between him and Sheeler, and that he had no reason to anticipate violence at Sheeler’s hands. The fact that deceased, as a friend of both parties, intervened on appearance of trouble between them did not necessarily show that defendant anticipated any intention to shoot on Sheeler’s part. According to defendant’s own story, if Sheeler intended to shoot him, he had ample opportunity to do' so before defendant had jumped back and could draw his revolver. The words iised, according to defendant’s own story, did not justify the belief that Sheeler proposed to shoot. The whole question of defendant’s reasonable belief of imminent danger from'Sheeler was clearly for the jury, and we have no occasion to interfere with the verdict on the ground that it is not supported by the evidence.

II. The only complaint as to the instructions is that the court erred in not expressly charging the jury that the burden of proof was on the state to show, beyond a reasonable doubt, that the shooting was not ¿one in self-defense; and, in support of this contention, counsel rely entirely upon two opinions of this court, on successive appeals in the case of State v. Matheson, reported in 130 Iowa, 440, and 142 Iowa, 414. We are satisfied, however, that the instructions given in the case before us are not open to the objection urged against them. They are too long to quote in full; but, at the beginning of the first of them, the court specifically told the jury that, before there could be a conviction of defendant, the jury “must be satisfied from the evidence to the exclusion of every reasonable doubt” that defendant was. not justified in shooting and wounding the deceased. The following paragraphs of that instruction contained a statement only as to the law with reference to .self-defense and did not purport to cast any burden on the defendant to establish affirmatively defendant’s justification or excuse. In the next paragraph the jury was instructed that if it was satisfied from the evidence to the exclusion of every reasonable doubt that defendant inflicted a mortal wound upon deceased with malice aforethought, and without being justifiable or excusable in doing the act complained of, as stated and explained in the preceding instruction, “or if from all the evidence you entertain a reasonable doubt” as to defendant’s guilt of this degree or grade of offense, then he should not be convicted. In view of the fact that the court thus expressly told the jury in these two • instructions that defendant could only be convicted if they were satisfied beyond a reasonable doubt of defendant’s guilt in view of the justification or excuse relied upon, we think the jurors could not possibly have understood that defendant had the burden of showing justification or excuse. The instructions under which the defendant was found guilty of manslaughter, rather than of murder in the second degree, are not the subject of complaint. The conviction is therefore affirmed.  