Gravely v. State

• Decision Date: 16 January 1894
• Docket Number: 6143
• Parties: GREEN S. GRAVELY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

57 N.W. 751

38 Neb. 871

GREEN S. GRAVELY v. STATE OF NEBRASKA

No. 6143

Supreme Court of Nebraska

January 16, 1894

ERROR to the district court for Lancaster county. Tried below before TIBBETS, J.

REVERSED.

William B. Price and Cobb & Harvey, for plaintiff in error:

It was error for the court to instruct the jury that it devolves upon the defendant to justify his act, on the ground of self-defense, by a preponderance of the evidence. (People v. Coughlin, 32 N.W. [Mich.], 905; State v Cross, 26 N.W. [Ia.], 62; State v. Coleman, 6 S Car., 185; Preuit v. People, 5 Neb. 378; Vollmer v. State, 24 Neb. 838; Farris v Commonwealth, 14 Bush [Ky.], 363; Buckner v. Commonwealth, 14 Bush [Ky.], 601; Commonwealth v. York, 9 Met. [Mass.], 93; Bush v. Commonwealth, 78 Ky. 268; State v. Coleman, 3 Am. Crim. Rep. [S. Car.], 180; Erwin v. State, 29 Ohio St. 186.)

George H. Hastings, Attorney General, for the state, to sustain the instruction, cited: United States v. Kan-Gi-Shun-Ca, 14 N.W. [Dak.], 437; People v. Milgate, 5 Cal. 127; State v. Neely, 20 Iowa 108; Commonwealth v. York, 9 Met. [Mass.], 93; People v. Schryver, 42 N.Y. 1; People v. McCann, 16 N.Y. 58; Patterson v. People, 46 Barb. [N. Y.], 625; People v. Arnold, 15 Cal. 476; People v. Stonecifer, 6 Cal. 405; State v. Knight, 43 Me. 11; Commonwealth v. Knapp, 10 Pick. [Mass.], 484; Fife v. Commonwealth, 29 Pa. 429; Silvus v. State, 22 Ohio St. 90; State v. Turner, Wright [O.], 20; Commonwealth v. Webster, 5 Cush. [Mass.], 305.

OPINION

POST, J.

This was a prosecution in the district court of Lancaster county on the charge of murder in the first degree. A trial was had at the September, 1892, term, at which the accused was convicted of murder in the second degree, and which he now seeks to reverse by means of a petition in error addressed to this court. The only question which calls for notice is that presented by the following instruction given by the court on its own motion:

"It is incumbent upon the state to show by proof, beyond any reasonable doubt, that on the 28th day of May, 1892, the defendant Green S. Gravely fired a pistol shot at Charles Thomas, and said shot took effect upon the person of said Charles Thomas, and from the effects of said shot, so fired, the said Charles Thomas died; that said act took place in Lancaster county, state of Nebraska; that said act of the defendant was done purposely, with deliberation and premeditation and malice. After the state has established its case, as above, it then devolves upon the defendant to justify his act, on the ground of self-defense, and this he is required to do only by a preponderance of the evidence."

The particular objection to this instruction is the direction contained in the last sentence thereof, requiring the prisoner to justify the killing of the deceased, on the ground of self-fense, by a preponderance of the evidence. It is true there are many cases which sustain the rule as given by the trial court, but the decided weight of recent authority, including commentaries as well as decisions, is to the contrary. The rule seems to be that in criminal prosecutions the burden of proof never shifts, but rests upon the state throughout; and before a conviction can be had the jury must be satisfied, upon all the evidence, beyond a reasonable doubt, of the affirmative of the issue presented, viz., that the prisoner is guilty in manner and form as charged. This rule applies, not alone to the case as made by the state, but to any distinct, substantive defense which may be interposed in order to justify or excuse the act charged. (See 1 Greenleaf Ev. [15th ed.], 81, notes; 3 Greenleaf, Ev., 28, and note a; People v. Riordan, 117 N.Y. 71, 22 N.E. 455; People v. Downs, 123 N.Y. 558, 25 N.E. 988; Tiffany v. Commonwealth, 121 Pa. 165, 15 A. 462; Rudy v. Commonwealth, 128 Pa. 500, 18 A. 344; Commonwealth v. McKie, 67 Mass. 61; People v. Coughlin, 65 Mich. 704, 32 N.W. 905; Lilienthal's Tobacco v. United States, 97 U.S. 237, 24 L.Ed. 901; Howard v. State, 50 Ind. 190; 1 Bish., Crim. Proced., 1048, 1051, 1066; 2 Bish., Crim. Proced., 669, 673.) Even in those jurisdictions in which the burden of proving a distinct defense rests upon the prisoner, the rule is generally held not applicable where it is sought to justify the act charged on the ground of self-defense. (See Tweedy v. State, 5 Iowa 433; State v. Donahoe, 78 Iowa 486, 43 N.W. 297; State v. Wingo, 66 Mo. 181; People v. Rodrigo, 69 Cal. 601, 11 P. 481.) This case is clearly within the principle stated in Wright v. People, 4 Neb. 407, although the defense interposed therein was insanity. In the opinion of the court in that case LAKE, C. J., after conceding the rule to be different in England, concludes: "By this rule the burden of this defense is shifted from the prosecution to the defendant, which we think ought never to be done."

If a distinction can be said to exist on principle between self-defense and insanity in the application of the rule which imposes upon the state the burden in criminal cases, it is in favor of the first named defense. This is obvious from the rules applicable to homicides. For instance, to constitute the crime of murder the prisoner on trial...