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The Abbeville Press and Bannerjj BY HUGH WILSON. ABBEVILLE, S. C., WEDNESDAY, JANUARY 17, 1894. ESTABLISHED 1844|j The State, Respondent, a Singleton A. Mcintosh, Appellant. t * ' i Points and Authorities of Parker & McGowan, and Benet 1 ' & Cason, for Appellant. g For the second time, Singleton A. Mcintosh was tried for the r murder of James N. Newhy. The second trial was had before his Honor, Judge Norton, at the June Term, 1893, of the Court of 0 General Sessions for the County of Abbeville. - 1 .LX.n/vn |( The plea 01 tne accuseu was ocii-uumw . The jury found a verdict of "Guilty of Manslaughter; Recom- f mended to the mercy of the Court." The sentence of the Court was, five years imprisonment in the n ? - - * ??*?-?? h State Penitentiary, ai naru muur. From the judgment of the Court below, Mcintosh appeals to . the Supreme Court on the grounds set forth in the "Case with Ex- . ceptions," pages 38, and 34. ^ The testimony, we think, fairly shows: ^ ]. That Mcintosh and Newby were the best of friends. * 2. That Mcintosh did not bring on the difficulty?on the contrary, was forbearing and long-suffering and without fault. t 3. That Newby was not only insulting, but wantonly violated t. the laws of hospitality, property and person: j (a) In smashing the dishes on the breakfast table with a heavy f( dipper. Mcintosh kindly remonstrated, "don't do that, Crack." n The smashing of dishes is repeated. Mcintosh again says, "Stop s Crack, don't break my wife's dishes?she wys I always play the 0 devil when she leaves home." n (b) Newby then smashes a cup in iront 01 mcintosn anu says, . "Damn you, I'll smash you in the same way." (See testimony of Callaham, Harmon and Sheriff Mann). 5. Mcintosh quietly gets up from the table, without another word, takes his hat from off the cupboard, and walks into a room , opening into the dining room and adjoining the room in which both had slept. Thus "retreating" in his own house. 6. That Newby, instead of continuing his breakfast, gets up ^ from the table, first walks down the table until opposite the door through which Mcintosh had gone, then turns and goes in the di- ^ rectiori of Mcintosh. ^ 7. Mcintosh, who was just entering the front hall from the bed-room calls to Newby "to stop and not come any further." ^ Newby continues to advance upon him and Mcintosh fires one . barrel of his gun (loaded with bird shot) into the door facing "to scare him." Folio 63. 8. That Newby "In place of stopping or giving back, ducked ^ his head, moved forward, and threw his right hand to his right ^ hand breeches pocket." Folio 63. 9. That Mcintosh then fired the fatal shot. ! 10. That Mcintosh immediately came out of the house and said "he had killed Mr. Newby and was sorry for it and com- ^ menced crying." Folio 10. [Points and Authorities. 1 We think all the elements of self-defence appear here, and we ? think the trial Judge erred when he charged generally that a man ' must retreat and exhaust every "means of escape" before he can P make out the plea of self-defence; and especially was the charge ^ misleading in this case, because Mcintosh was in his own dwell- ^ iiig. ? Exceptions II, IV, VI and VI involve this idea. They are as follows: a Exception II. Because his Honor erred in charging the jury, ^ that in order to avail one's self of the plea of self-defence, it must appear that "at the time the prisoner struck the fatal blow, he " was so assaulted that he believed that he had no other probable means of escape from immediate death or from immediate serious bodily harm." Exception IV. Because his Honor erred in charging the jury 0 as follows: "If you come to the conclusion that he (Mcintosh) 0 thought there was any other means of escape, then you ought not 0 to give him the benefit of self-defence." Exception VI. Because his Honor erred in charging the jury rl/\T/vr>InrtAn * lliutf uic urvtasru naviug rmcicu ucicuuaui o iiuu.^c up;u ucitnuant's invitation, "It was the business of the defendant to have 11 notified him (the deceased) to leave, or else he must make out a plea of self-defence as if had notified him." Exceptiou VII. Because his Honor erred in charging the jury ? that, "at the time of the homicide the prisoner must have be- ^ lieved that the deceased was assaulting him in such a manner that he had no other probable means of escape from that assault ex- ^ cept by taking the life of the deceased, or by doing what he did to prevent the loss of his own life, or serious bodily harm to himself." The old rule of law that a man must "retreat to the wall" is, on 8 general principles, obsolete and out of date. The rule was good * when men used only dirks and daggers and swords and one was compelled to be within arm's length before a fatal result. But since the introduction of fire-arms, the danger is as great at twen- . ty paces as at two, and the antique wall springs up behind a man at the moment and at the place where he reasonably believes 8 himself in danger of serious bodily harm regardless of the dis- N tance. In Rurryan vs. Stale, 57 Jnd. 80, (26 Amer. Rep. 52), the Court says, "The ancient doctrine as to the duty of a person assailed to retreat as far as he can before he is justified in repelling force by force, has been greatly modified in this country, and has a much narrower application than formerly. The real question is, did the defendant when assaulted, believe and have reason to believe, 4K./V . ? ...AA n uiivt iuc uov ui i\ uruui) wnxpua was ucvxsoai^ iw ma UWII rxitctj'. j But in no event is a man bound to retreat in his own home. His house is his castle and in it he is lord. The Circuit Judge seemed to think and was not slow to impress his view upon the jury, that if invited by the owner of a house to enter he was bound (1) to "gently lay his hands upon him and tell him to go," and (2) to use only such force as is necessary to ( "eject" him. Again: "The law requires that when you have al- j lowed a friend to enter your door, you must give him reasonable j notice to leave your door before you eject him." Folios 88-89. ( Abstractly this may be true, but circumstances alter all cases and under the facts in this case, it was well calculated to mislead the jury. An inflexible rule of this kind would give an infuoriioof ouarv qHvrontonrti atwl rmf + hnuf oKcnliifnltr in Klc 4|W^VM guvpv v T VI MM* (I1IU ?S14 V IIIV IIVOV WWiTVJMVVIJ lU 4UP power, j True, Mclntoah had not ordered him to leave. The very fact ( that he did not is proof positive that he wished to avoid a difti- ( culty, as-&ach an order would have precipitated a fight at the ] break fas#? table. Instead, he quietly leaves without a word. ( Newby follows him. Newby is ordered to "stop" and advance no further. He still advances. Mcintosh fires one shot to "scare him." He still advances with head down and throws right hand into his pocket. S Is it good law or good sense to say, that under these circumstances, Mcintosh should have "invited" him to leave? Is it good law or common sense to say that Mcintosh should then have "gently laid his hand upon him and told him to go"? Is it not rather a reductio ad abwrdum t Such a course naturally meant death or serious bodily harm to Mcintosh. He did not know what Newby had in his pocket and from his actions Mcintosh was certainly justified in believing he had a weapon. His previous conduct coupled with a strong threat, maae it desperate r- folly for Mcintosh to have done as the trial Judge chargea the jury he ought to have done. i I 1 Mcintosh had already retreated more than he was bound to, ind further retreat, had Newby drawn a pistol, meant a shot in he back and all this in his own dwelling. The laws of hospitalty are sacred, but there are as high, if not higher, duties devolvng upon the guest as upon the host, and to say that the host must (ndanger his life in quixotic deference to these laws, is neither ;ood law nor good sense and would strip self-defence of its every ight. On general principles a man is not compelled to retreat, in or mt of his dwelling, in cases of "felonious assaults." In a note to Selfridge's famous case, in Horrigan & Thompson's &ses on Self-Defence, the editors say, "where the assault is nonelonious, and in cases of mutual broils and combats where the aw supposes both parties in some measure culpable" retreat is " ir 4-fs. rtll r**\ut?%c3 ti?l> aha o rvAncAn 5o rrA?n/r lecessiry. DUt ll Ujipucu IU All uwca nucica jiviwii 10 guiug lis lawful way and is assaulted, without reference to the question whether a felony, or a mere trespass on the person, is manifestly ntended, it would require a man to flee before another who murlerously assails him, or a traveller to flee before a highway robber, or a woman to flee before her would-be ravisher, before reorting to the extreme measure of defence. It is safe to say that he law puts upon a person no such necessity. The old writers in peaking of justifiable homicide?that is homicide committed in he resistance of felonies?make no mention of the duty of recreating." Foster 273; 4 Bl. Com. 180/ 1 Hale P. C. 488; 1 East C. 271. "And it is safe to say, that if an assault is manifestly slonious, the person assailed, being himself innocent, may ordiarily kill the assailant without retreating. Accordingly it is tated by Mr. Bishop, that where an attack is made with murderiiq intent thp nprsnn nttnpkprl is nnrler no obligation to flee, but nay stand his ground, and if need be, kill his adversary. And his is clearly the law." 1 Bish. Crlm. Law (5 Ed.) \ 850. We think the proof here shows that the attack was murderous -certainly that the defendant had the right to think so; and we hink the Judge should have at least charged that Mcintosh was ot forced to retreat if the attack was such, Instead of several iraes repeating that the accused cannot plead self-defence "if here was any other means of escape." In Pond vs. People, 8 Mich. 150, Court says, "If any forcible atsmpt is made with a felonious intent, against person or property, he person resisting is not bound to retreat, but may pursue his dversary, if necessary, till he finds himself out of danger. * * Reasonable apprehension, however, is sufficient here, precisely as a all other cases." In Cases on Self-Defence, supra, p. 32, note, it is said: "If a aan who is murderously assailed is obliged in all cases to retreat efore killing, there may be no limit to his retreating so long as is emeny shall pursue his murderous intent. He may be obliged 3 hide away from his adversary continually and carry on his usiness stealthily by night. "We repeat our conviction that the law does not thus leave it to he pleasure of a felon to determine whether an innocent man lay pursue his just way, or whether he shall be obliged to fly. 'he rule then, as laid down in some cases, that the right to defend tie's self does not arise until the defendant has at least attempted a avoid the necessity of that defence, must not be understood as ?n innnnont nAMnn urhn la miirrlorniialv niuililpd. thp UVUllg upuil 111! I1IUWVIIV pVAWK TT ?.V/ ?U IMUtXAWaVMWJ . 7 _ ecessity of retreating before he can kill his assailant; but must e held to apply to eases where the assailed is himself in some tult, or where the assault is not, in its character, manifestly feloious." In Bohannon vs. Commonwealth, 8 Bush. 481, (Ky.) (8 Amer. R. 74), the Court says: "It was misleading {o instruct the jury, uner the proof in this prosecution, that Bohannon's right of selfefence did not arise until he had "done everything in his power to void the necessity" of slaying his adversary. We think, under the facts of the case at bar, Judge Norton's harge did mislead the jury when he said "if you come to the onclusion that the defendant Mcintosn tnougni mere was any ther means of escape, then you ought not to give him the benefit f self-defence." "In all cases where a party, without fault or carelessness, is misjd concerning facts, and acts as he would be justified in doing if he facts were what he believed them to be, he is legally, as he is tiorally, innocent." 1 Bisk. Crim. Law, f 242. "Where defendant addressed deceased in a peaceable manner, nd the latter replied angrily and insultingly, and approached lim with his hand on his pistol pocket as though to draw and fire, feW, that defendant was justified in firing first, though it subse[uently appeared that deceased had no weapon." _ A ?i-J- A 0? ue Jtrman vs. oiuie, 11 jxlu. ou. 9 Amer. & Eng. Encij. of Law. 598, note (G). "If an assault is made under circumstances which create a just pprehension of imminent danger of death or great bodily harm o another, it is adequate ground for that reasonable fear of inimcliate danger which will justify the killing of the assailant." 9 Amer. & Eng. Ency. of L., 600. "The right of self-defence is not impaired by mere preparation or a wrongful act; but such preparation must be accompanied by ome demonstration, either verbal or otherwise, indicative of the vrongful purpose." Fortenberry vs. Stale, 55 Miss. 40o. 9 Amer. & Eng. Ency. of L.} 603. Carroll vs. Slate, 23 Ala. 28. CoUms vs. State, 32 Iowa 36. Yonng vs. GommonweaUh, 6 Bush 312. Patfon vs. People, 18 Mich. 314. But we say that a man, who is himself without fault, is under 10 circumstances bound to "retreat," or seek means of "escape" from his own house. At page 33 of Cases on Self-Defense, supra, is the following note, "A man being in his habitation is 'at the wall' and 'in his astle,' and is not obliged to retreat under any circumstances." In Pond vs. People, 8 Mich. 150, it is said, "A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as in other cases, he must not take life if he can otherwise arrest or repel the assailant." 2 Bish. Crim. $ 569. 3 Green. Eo., ? 117. Hawk. P. G, Book 1, Ch. 28, ? 23. Cases on Self-Defense, supra, p. 861, note (1), "Where a person is defending his home, or defending himself or his family, guests or defendants, in his house, he is not obliged to retreat before he ain justify killing, as he ordinarily is in cases of defence in combat. The reason of this rule is, that in law, a man's house is his sastle, or as the old books express it, his tidissimum re/ugium; ind having retired thus far, the law does not expect him to yield further." 1 Hale P. C. 486. State vs. Patterson, 12 Amer. L. Reg. N. S. 653. Pond vs. People, supra. Carrol vs. State, 23 Ala. 28. In si Alabama, supra, Court says: "The rule oi common i>a\v is, that a man may repel force by force in defence of his person, habitation or property, against one who manifestly endeavors, by violence or surprise, to commit a felony . . . . , aud in these cases he is not obliged to retreat, but may pursue his adversary until he has freed himself from all danger. "In other cases, the law requires the use of every precaution, consistent with safety, even to flight itself, before taking life, unless, indeed the party assailed has the protection of his house which ex- J cuses him from retreating further." law "A person assaulted in his dwelling-house is not bound to re- gui treat." law 9 Amer. & Eng. Ency. of L.. 604 and 606. " Dolan vs. State, 81 Ala. 11. pro Jones vs. State, 76 Ala. 8. Cr. State vs. Harmany 78 N. C. 515. I "Where one is attacked by another who manifestly attempts by wit violence, to take his life or do him great bodily harm, and under sho such circumstances that no retreat is practicable, he is not only 41 not obliged to retreat, but may pursue his adversary until he has pro secured himself from all danger, and if he kill him in so doing it jur; is justifiable self-defence." son 9 Amer. & Eng. Ency. of L., 605. rilj xvuueui i.*5 nut requireu wuere nssaun is wimi utatuiy wtaipuu. ./"" Thompson vs. State, 9 Iowa 188. casi Kennedy vs. State, 20 Iowa 509. me Retreat not necessary where the assailant has made threats and anc his demonstrations indicate a design to carry them into execution, mu Kennedy vs. State, 7 Nev. 374. the In case at bar Mcintosh was Threatened. Immediately after ind deceased advanced upon him. He pays no heed to warnings, but still advances, throwing his right hand into his pocket. Under these circumstances Mcintosh had the right to believe that he would draw a deadly weapon, and Judge Norton should have charged that if such were the true facts, then he was not bound to Pn retreat. Prc In Meredith vs. Commonwealth, 18 B. Monroe 49 (Ky.) it is said, ^( "If one is threatened with death; or some great bodily harm, and P" has reasonable ground to believe that it will be immediately in- ^ imlfMiQ nrAvpnfprl hv nn npfc nf splf-defpnne. which is in the power of the person assailed, he ha9 the right to use such defence " for his own safety, although it might afterwards appear that there "P* was no real design to inflict the apprehended injury. Therefore, an instruction that the defendant might lawfully kill his assailant in 1 "if he had no safe means of escaping"; and that he is not excusable "if he could have safely retreated from the danger and by that means have saved life," is erroneous, because it leaves out of view or negatives the principle above stated." (2). an Exception III is a direct charge on the facts and very mislead- 0f, ing. wh Because his Honor erred in charging the jury as follows: "i me say to you, that if the defendant here did as he says he did, and not he A/fMi'ti/v rtaia <\ir\ /Wvrw iho inhlo ni itih inh Ihp. iilftSk kit ywu W|/ J I V??V ivwvvv vvv |??I vv?? mv ?< v,w w-- UfllV /or Me purpose, bona fide, o/ avoiding a difficulty, <md JAe con- me duc? o/" the deceased was so provoking as to arouse his blood, to tern- ? porarily lose control of his passions, then it would be manslaugh- jn 5 ter." . the This charge is in effect?grant all that Mcintosh says to be true <? and he is still guilty of manslaughter?eliminating all possibility to 1 of self-defence. When we remember that an intimation, coming ma from the Judge, goes a long way with the average jury, this sitj strong expression was bound to have itfi effect. cag If it was held by this Court error in Judge Aldrich to say, in tri, Stale vs. Norton, 28 S. C., 579, "I do not see any room here man- bui slaughter," equally is it error in Judge Norton to say in the case the at bar, "Then it would be manslaughter." tak When Judge JNorton, in state vs. iiirner, instructed xne jury the that "a verdict of manslaughter might be proper in the case," the Mr. Chief Justice Simpson, delivering the opinion of this Court, < held he had committed error, and said, "We think his Honor's dej charge above did not leave the question of self-defence open to jur the jury." (29 S.'O1., 41, and 4">). In his charge to the Mcintosh wh jury, Judge Norton again, by his suggestion of manslaughter, ? "did not leave the question of self-defence open to the jury." jn, (3). u.nl We think the trial Judge was misleading to the jury in his '^1 charge as to Sheriff Mann's testimony. . .... i. ? _1. i. L !?.!?? hill mis testimony was entitled to peculiar weigui, yei, twn^, when the foreman, after the jury had deliberated for nineteen ted hours, asked if they should give the same consideration or weight J1" to this as to other evidence in the case, the Judge so qualified his 1IK answer, as to leave the jury in as much doubt as ever. Folios 90 err and 93. < 1. The testimony was offered bf the State and the Solicitor CQr stated that he stood upon every word of it. % ^ 2. The conversation (between the Sheriff arid Mcintosh) was had at a time and under circumstances which precluded all idea ^ of "manufactured" testimony. It was immediately after the first 1118 trial when the defendant was convicted of "murder"; in the lonely limits of his narrow cell; overwhelmed with sorrow and J obeying that impulse of the heart which is at times irresistible, cas he unburdens his troubled soul to the Sheriff. Listen to his first coi sentence: "Sheriff, it is hard for a man to be sentenced to be sus hung for killing a man in self-defence." And I beg the Court to eci remember that on the first trial his plea was not self-defence, but ow "unsoundness of mind at the time of the homicide," so that noth- ini ing at that trial could have suggested his speech. acc Under these circumstances?we think when the foreman simply asked if they could give this testimony the "same consideration" < oa onv nttior in flio tllA JlirliTP shrtllld hftVf* flllllOUnCed "cer- oK, tainly" and no more, and not have qualified his answer with long th( qualifications, as he did both times. jnt At last, the conclusion of the jury shows that it was a comp'ro- ne< mise verdict, viz: "Guilty of manslaughter?recommended to mercy," and this after nineteen hours deliberation; and it is safe v0 to say that the intimations, qualifications and evident leaning of a p his Honor had much to do with it. Folios 90 and 90. * ^ Self-defense?Requisite of the Plea. acc Our first ground of appeal alleges error on the part of Judge j Norton because he charged the jury that, " In order to make out a case of self-defence, it is necessary for the defendant to prove his jg j innocence by the preponderance of the testimony." . , , x? oOI Herein his Honor's charge touches two questions;? (1) The Requisites in the Plea of Self-defense ; and (2) The burden of proof. * , (1) What are the Requisites in the plea of Self-defense ? ^ This Court has laid them down distinctly in State v. McGreer, 13 S. C., 4GG ; and in State v. Beckham, 24 S. C., 284. According ^ to these cases the requisites are, x. T1' ' 11 ' 11? nntimllii Kolinvdil fliof Jin Tirai i iiimnit: uvvuscu must nutc aviuun^ u>.nv<?u *.v- j. was in immediate danger of losing his life, or of sustaining great gej bodily harm. ( Second; that the circumstances were such as would, in the fon opinion of the jury, justify such a belief. cor Third; that the accused must have been entirely without fault chs in bringing about the difficulty. bui We submit that if these three requisites are complied with,' ^hr the plea of self-defense is completely established ; and that Judge! Norton erred in endeavoring to add a fourth,?which indeed j would render useless the three just mentioned?when he told the ^ jury that it was necessary for Mcintosh "to prove his inno-| cence." ' | j (2) The Burden of Proof. I ^ In laying down this extraordinary proposition, it is manifest ma that the Judge was thinking of the burden of proof. And we tjie submit that in this view also he erred. 1 poi At no stage in a criminal case is it necessary for the accused to " prove his innocence," no matter what his plea or defense may be. udge Norton's proposition entirely destroys and removes the : ''s presumption that the accused is innocent until proved lty. This presumption is in the " A. B. C." of the criminal The law presumes a man to be innocent until the contrary is ved, or appears from some stronger presumption." Boecoe's ' lis Honor would seem to have conAised the "burden of proof --Jm U 11 !~l.i " ?~11 nrtTI - '? MU5 WClgllt U1 CVlUCIIWj U9 U1C lUllUWIUg OUVUUIIU^ n 1A* jjj Every man is presumed to be innocent until the contrary is gm ved, and if there be any reasonable doubt as to his guilt, the y are to give him the benefit of such doubt. This is a pre- ' nption of law (presvmtio juris), which the law makes arbitrar in all cases, but which, unlike the prenanptiones Juris etde >|| e, may be rebutted by evidence. Between civil and criminal ;M 0s there is in this respect an important distinction : in the farr, the jury weigh the testimony, and, after striking a fair bal- <'j :e, decide accordingly; but in criminal cases the testimony I st be such as to satisfy the jury beyond a rational doubt that prisoner is guilty of the charge alleged against him in the ' ictment, or it is their duty to acquit We frequently hear that after a prima facie case on one side Ja burden of proof is shifted to the other side ; and this shifting -J the burden of proof, whic^ no doubt takes place after a ma facie case, is confounded with the question of the degree of - ;'|i of necessary to a verdict. The. questions are entirely separate. * -' J| lefendant may often have the burden of proof imposed on him. ^ t when the case goes to the jury, there is no essential element ; his guilt which must not appear to be proved beyond a reason- > e doubt. . The rule of the burden of proof cannot be made to depend )n the order of proof or upon the particular mode in which ^ evidence in.the case is introduced. It can make no difference this respect whether the evidence comes from one party or the Wharton on Homicide, (7th ed.) See's. 646,?7,?8, **j| No one doubts that if the defendant admits his guilt, either olutely or for the purpose of the trial, and sets up by plea h matter of defence ad a former conviction or a pardon, or if issue to the jury is tried on his plea of abatement, the burden 1 proof is with him. On the other hand, where the issue is, ether or not the defendant committed an offense, the govern- . J1 nt by its indictment or information averring that he did, and > by his plea of not guilty denying it, every principle of reason 5 1 justice requires that the Jproof of guilt, including every ele- H nt in it, shall come from the party making the charge. . . % ' ^ The government, taking thus the burden of proof, is required ;s the first instance to make out only & prima facie case against , ''.*j defendant > . , . , ' f When the prima facie case is established,the defendant is liable t?e convicted, unless he meets it by something in rebuttal. And. ny judges, in language not nicely accurate, speak of this necee- - J i of rebuttal by the defendant as his having the burden of proof t upon him. It is more exact, and it expresses the better docle, to say, that the prima fane showing does not change the. -'M den of proof, which remains with the prosecuting power to i end ; the jury, to be authorized to!convict, being required to ~ - J :e into the account all the evidence on both sides, including - -1 i presumptions, and to be affirmatively satisfied from it, with i certainty demanded by law, of the defendant's guilt. 'Whatever be the doctrine in civil cases, it would be a wide jarture from the humanity of the criminal law to compel a y, by a technical rule* to convict one of whose guilt upon the * "'M ole evidence they had reasonable doubt. 'And it would reverse ;the presumption of innocence, as well one set of circumstances as another, to hold a defendant guilty, less, taking the burden on himself, he could affirmatively estab- : i his innocence. 'Evidence is not properly to be considered in detached parts, t as a whole. One, to be guilty of a crime, must have commit* 1 the whole of it. The government, to be justified in punishing n, must prove the whole. In reason, therefore, this whole and iivisible thing, the burden of proof, must be borne by the gov- * iment throughout the entire trial." 1 BLsh. Cr, Proc., (3rd. ed.), See's. 1048,-61. . ,2 4 In criminal cases the burden of proof never shifts; before a _;\j iviction can be had the jury must be satisfied from the evidence, rrtnH <i PMcnnohio Hrmht nf thp nfflrmfttivA nf the issue nre ited in the accusation, that the defendent is guilty, in the inner and form as charged in the indictment." 2 Amer. and Eng. Encyc. of Law, 657. n note 1 on same page is the following: " In every criminal :|j e the burden is, throughout, upon the prosecution. Whatever irse the defense deem it prudent to take, in order to explain ipicious facts or remove doubts, yet it is incumbent on theprosition to show, under all the circumstances, as a part of their n case, unless admitted or shown by defense, that there is no locent theory possible which will, without violation of reason, ?rd with the facts." People, v. Millard, 53 Mich., 63, 4 In criminal ca9es the burden of proof is on the prosecutor to nv that the accused is guilty of the offense charged. But when ; accused relies upon any substantive, distinct,, separate, and lependent matter as a defense, which is outside of, and does not ?essarily constitute a part of, an act or.transaction with which is charged, (such as the defense of insanity, etc.), then it delves upon him to establish such special and foreign matter by reponderance of evidence. It is not error to instruct ii^such ies that the burden of proving such defenses devolves upon the used." 4 Amer. and Eng. Encyc. of Law, 844?5. _ _ _ ^ [n the notes on page 845 we find the following; "The claim or f-defense is merely a denial of the malice which the prosecution jound to establish beyond a reasonable doubt. Accordingly, ne cases hold that the defendant is entitled to an acquittal if, on the evidence, it is doubtful whether the homicide or assault s malicious or was in self-defense." (Cases cited.) ' While others hold that the defendent must make out a case self-defense, by a preponderance of proof." (Citing two Ohio ;es.) Sote,?that these Ohio cases do not hold, as did Judge Norton, it the defendant must "prove his innocence by a preponderance the testimony," but, more mildly, "must make out a case of f-defense." )n same page 845, in the notes is this authority : " If the dedant relies upon no separate, distinct or independent facts, but ifines his defense to the original transaction on which the irge is founded, with its accompanying circumstances, the den of proof never shifts, but remains upon the government oughout the case to prove the act a criminal one." People v. Hodrigo, G9 Cal.; 601. - * illTT1 XI .-! LtlCi also on same page in us : \v nere uk; ueieuue is mici puocrj, burden of proof is on the State to negative it." People v. Coughlin, (Mich. 9 April. 1887), 9 West. Rep., 129. n Staie v. Welsh, S. C., 7, a self-defense case, Judge Wallace irged the jury that "the defendant, when he undertakes to ke out his defense, accomplishes his purpose when he satisfies jury of the truth ]of the allegations in his behalf by theprelderance of the testimony ; the burden is always on the proseContinued on page four. - ? - ' . -L'.