People v. Milgate

Murray, C J, delivered the opinion of the Court. Heydenfeldt, J., concurred.

The first error assigned by the appellant is the refusal of the Court below to permit one of the witnesses to testify for what purpose the shot gun, with which the homicide was committed, was loaded and used. This question was wholly immaterial. It was already in proof by the appellant's own witness, that he had gone to the house and taken the gun for the purpose of protecting himself against the dec[129]eased; whether it was loaded with fine shot for killing birds or not, Was of no consequence. It is sufficient that it was unlawfully used, and such use resulted in the death of the deceased.

The second error, is the refusal of the Court to charge the jury that “ if they believed from the evidence introduced in justification that there is a reasonable doubt whether or not the prisoner committed the act under a reasonable apprehension of impending danger and in self defense, they must give the prisoner the benefit of such doubt, and must find him not guilty.’’

This instruction was properly refused for two reasons; first, because it was calculated to mislead the mind of the jury, by directing their attention exclusively to the evidence of justification adduced by the defendant’s witnesses. Suppose, for illustration, that the prosecution had proved by several witnesses, that the prisoner had made threats that he would kill the deceased on sight, and that on learning that he was in the neighborhood, had taken his gun, and deliberately shot him, without any hostile demonstrations having been made against himi and on the trial, he had proved by one or more witnesses, that he had only-acted in self-defense, would the instruction have been proper ? Or, on the other hand, ought not the presumption to arise, from all the evidence both for the prosecution and defense ? Second, The instruction Was improper, because a reasonable doubt is insufficient to determine the guilt or innocence of the prisoner. The homicide being admitted or proved, the law raises the presumption of malice, which it is necessary for the prisoner to rebut by proof. Proof beyond a reasonable doubt is necessary to establish a fact against the prisoner; but preponderating proof, proof necessary to satisfy a jury of the fact, is sufficient to establish the fact in his favor. But it must go to this extent, otherwise there is nothing on which the jury can found their belief, and warrant them in considering the fact proved. It is not sufficient, therefore, to raise a doubt, even though it be a reasonable doubt, of the fact of exteuuatiou, simply because it is no proof of the fact. 3 Archbold's Crim. Prac. and Pleading, 215.