Gravely v. State

• Decision Date: 16 January 1894
• Citation: 38 Neb. 871,57 N.W. 751
• Parties: GRAVELY v. STATE.
• Court: Nebraska Supreme Court

38 Neb. 871

57 N.W. 751

GRAVELY

v.STATE.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. In criminal prosecutions the burden of proof never shifts, but, as to all defenses which the evidence tends to establish, rests upon the state throughout; hence a conviction can be had only when the jury are satisfied from a consideration of all the evidence of the defendant's guilt beyond a reasonable doubt.

2. That rule applies not alone to the case as made by the state, but to any distinct substantive defense which may be interposed by the accused to justify or excuse the act charged.

3. Where, in a prosecution for murder, there is evidence tending to prove that the killing was justifiable on the ground of self-defense, the jury, in order to convict, must be satisfied beyond a reasonable doubt that the killing was not done in self-defense.

4. It is error to instruct that the accused is required to justify the act charged in the indictment on the ground of self-defense by a preponderance of the evidence.

Error to district court, Lancaster county; Tibbets, Judge.

Green S. Gravely was convicted of murder in the second degree, and brings error. Reversed.Wm. B. Price and Cobb & Harvey, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

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 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 justifythe killing of the deceased on the ground of self-defense, 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 Greenl. Ev. (15th Ed.) 81, notes; 3 Greenl. Ev. 29, 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. Com., 121 Pa. St. 165, 15 Atl. 462;Rudy v. Com., 128 Pa. St. 500, 18 Atl. 344;Com. v. McKie, 1 Gray, 61;People v. Coughlin, 65 Mich. 704, 32 N. W. 905;Lilienthal v. U. S., 97 U. S. 237;Howard v. State, 50 Ind. 190; 1 Bish. Crim. Proc. 1048, 1051, 1066; 2 Bish. Crim. Proc. 669, 673. Even...