People v. Post

RICHARDS, J.

Tappellant was informed against in the Superior Court in and for the County of San Diego for the crime of murder and was convicted of the crime of manslaughter, and from the judgment and order denying his motion for a new trial he appealed to the District Court of Appeal in and for the Second District, Division One, which tribunal affirmed said judgment; whereupon a petition for hearing in this court was duly made and granted. The appellant presented to the appellate tribunal a number of contentions in urging a reversal of the judgment. These were disposed of in the main adversely to the appellant and were, with the exception of a single contention which appellant urges before this court, correctly disposed of. The sole contention which the appellant has presented in his brief for the consideration of this court arises out of the giving of the following instruction to the jury:

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“ You are instructed that up to the moment when the killing is proved the prosecution must make out its case beyond any reasonable doubt. When the killing is proved, it devolves upon the defendant to show any circumstances in mitigation to excuse or justify by a preponderance of evidence on his part. That is, the killing being proved, the defendant must make out his case in mitigation to excuse or justify by some proof stronger in some appreciable degree than the proof of the prosecution. The burden of proof changes. It must be in some degree, no matter how small, stronger than the proof of the prosecution on the other side.”

The foregoing instruction was an apparent paraphrase of section 1105 of the Penal Code, which reads as follows:

“When burden of proof shifts in trials for murder.

“Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. ’ ’

It is the contention of the appellant that the foregoing instruction departed, in at least two vital particulars, from the language and intent of the section of the Penal Code above quoted, and in so doing imposed upon the defendant certain burdens which the letter and spirit of the law generally relating to trials for murder do not justify, and that said instruction was, for the reasons urged, prejudicially erroneous so as to entitle him to a reversal of the judgment. ’That this instruction does so depart from the language and apparent intent of the foregoing section of the Penal Code is made apparent by a comparison of the instruction with said provision. The code section in its opening sentence states that “Upon a trial for murder, the commission of the homicide