Anderson v. Territory of Arizona

• Decision Date: 26 March 1904
• Docket Number: Criminal 172
• Citation: 76 P. 636,9 Ariz. 50
• Parties: JOSIAH ANDERSON, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

76 P. 636

9 Ariz. 50

JOSIAH ANDERSON, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 172

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Reversed.

The facts are stated in the opinion.

Street & Alexander, for Appellant.

The court below erred in instructing the jury that upon the defendant's admission of the killing, though in self-defense, the burden of proving by a preponderance of the evidence circumstances of mitigation or that justified or excused the homicide devolved upon the defendant. The burden of proof never shifts from the state to the defendant, the former must make out its case throughout beyond a reasonable doubt that the defendant is guilty. People v Bushton, 80 Cal. 160, 22 P. 127, 549; People v Elliott, 80 Cal. 296, 22 P. 207; People v Lanagan, 81 Cal. 143, 22 P. 482; People v. Powell, 87 Cal. 348, 25 P. 481, 11 L.R.A. 75; People v. Marshall, 112 Cal. 423, 44 P. 718; Perry v. State, 44 Tex. 473; Brown v. State, 4 Tex. Crim. App. 398; Ainsworth v. State, 8 Tex. Crim. App. 532; Henson v. State, 112 Ala. 47, 21 So. 79; Davis v. United States, 160 U.S. 469, 16 S.Ct. 353; 75 Am. St. Rep. 529, 59 P. 175; Territory v. Lucero, 8 N. Mex. 543, 46 P. 22; Tweedy v. State, 5 Iowa, 437 Clark v. State, 159 Ind. 60, 64 N.E. 589.

E. W. Wells, Attorney-General, and A. C. Baker, District Attorney, and G. P. Bullard, for Respondent.

The weight of authority in states having statutes similar to paragraph 933 of our Penal Code is to the effect that where the burden of proof rests upon the defendant in cases of homicide to prove matters in mitigation and justification of the killing that he must make such proof by a preponderance of the evidence, and that an instruction to that effect is not erroneous. People v. Callaghan, 4 Utah, 49, 6 P. 52; People v. Tidwell, 5 Utah, 88, 12 P. 638; State v. McIntosh, 40 S.C. 349, 18 S.E. 1038; State v. Bodie, 33 S.C. 117, 11 S.E. 626; State v. Welch, 29 S.C. 4, 6 S.E. 894; State v. Bellou, 20 R.I. 607, 40 A. 861; People v. Dillon, 8 Utah, 92, 30 P. 150; Silvus v. State, 22 Ohio St. 90; State v. Lewis, 20 Nev. 333, 22 P. 241.

OPINION

SLOAN, J.

The appellant, Josiah Anderson, was indicted and tried in the court below on the charge of murder. He was convicted of manslaughter, and sentenced to serve a term in the territorial prison. From the judgment of conviction, and from the order of the court denying his motion for a new trial appellant has appealed.

Among other instructions, the trial court gave the following: "In every crime or public offense, there must exist a union or joint operation of act and intent, or criminal negligence; but, where the act committed by the accused is of itself an unlawful act, the law, in the first instance, presumes the criminal intent, and the onus or burden of proof falls upon the defendant to show the absence of criminal intent. In this case, if you find from the evidence that the defendant fired the fatal shot, then the burden of proving the circumstances of mitigation, or that justify or excuse the homicide, devolves upon the defendant, unless proof upon the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justified or excusable. It is for the prosecution, gentlemen, to make out their case beyond a reasonable doubt. It is for the defendant to make out the circumstances of justification -- that is, the claim that he makes of self-defense -- but the defendant does not have to make that out beyond a reasonable doubt, as must the prosecution to establish the facts of the killing, but it is only necessary for the defendant to establish that in your mind by a preponderance of the evidence." This instruction is assigned as error, and a consideration of its correctness will form the substance of this opinion.

Section 933 of the Penal Code reads: "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." Said section first appeared in the statutes of the territory in the revision of 1887, and is an exact rescript of section 1105 of the Penal Code of California. This being so, if the supreme court of that state had given a settled construction to this statute prior to its adoption by the legislature of this territory, this settled construction would be binding upon us. We find, however, that the reported cases show a decided conflict of view upon the question as to whether the statute is to be construed as requiring a defendant, under charge of murder, to prove circumstances of mitigation or excuse by a preponderance of the evidence. In the case of People v. Smith, 59 Cal. 601, the supreme court held the following instruction to be erroneous: "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, and this he may show by a preponderance of the evidence, merely. By a 'preponderance of the evidence' is meant that degree of proof which induces the mind of a reasonable man to believe one side of an issue in preference to the other." In the case of People v. Flanagan, 60 Cal. 3, 44 Am. Rep. 52, the court held that an instruction which stated that, to justify a homicide upon the ground of necessary defense of one's property, it must be made to appear by a preponderance of the testimony that such justification existed, was error. In the opinion the court quoted with approval from the case of Stokes v. People, 53 N.Y. 181, 13 Am. Rep. 492, the following language: "It is a cardinal rule in criminal prosecutions that the burden of proof rests upon the prosecutor, and that if, on the whole evidence, including that of the defense as well as of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt. The jury must be satisfied, on the whole evidence, of the guilt of the accused; and it is clear error to charge them, when the prosecution has made out a prima facie case, and evidence has been introduced tending to show a defense, that they must convict unless they are satisfied of the truth of the defense. Such a charge throws the burden of proof upon the prisoner, and subjects him to a conviction, though the evidence on his part may have created a reasonable doubt in the minds of the jury as to his guilt." In the case of People v. Hong Ah Duck, 61 Cal. 388, the same court construed section 1105 of the Penal Code as requiring the proof of circumstances of mitigation or excuse by a preponderance of the evidence, when the case, as made out by the prosecution, does not tend to show circumstances of mitigation or excuse. In the opinion in this case no mention is made of the cases of People v. Flanagan and People v. Smith. In the case of People v. Raten, 63 Cal. 422, the court followed with approval the case of People v. Hong Ah Duck, without comment. From these conflicting decisions, we cannot say that section 933 had been given a settled construction by the supreme court of California prior to its adoption. The case of People v. Knapp, 71 Cal. 1, 11 P. 793, cited in the brief of the respondent, was not published until after the Penal Code of 1887 had been enacted, and hence is not to be regarded in this connection. In People v. Bushton, 80 Cal. 160, 22 P. 127, 549, in a well-considered opinion, the supreme court of California, following People v. Flanagan and People v. Smith, held that that court, in People v. Hong Ah Duck, had given an erroneous construction to said section 1105 of the Penal Code, and that a defendant, under the statute, is only required to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt, and that it...