State v. Copenbarger, 5843

CourtUnited States State Supreme Court of Idaho
Citation16 P.2d 383,52 Idaho 441
Docket Number5843
PartiesSTATE, Respondent, v. FRED COPENBARGER, Appellant
Decision Date01 December 1932

16 P.2d 383

52 Idaho 441

STATE, Respondent,


No. 5843

Supreme Court of Idaho

December 1, 1932


1. When homicide is proved, and state's case is bare of exclupatory evidence, malice and felonious intent are presumed, but presumption includes second degree murder only (C. S., sec. 8952).

2. Case made by prosecution's introduction of defendant's admissions that he killed deceased in self-defense, and describing circumstances logically tending to that conclusion, held not sufficient basis for presumption of malice and felonious intent (C. S., sec. 8952).

3. Instruction regarding presumption arising from proof of homicide and burden of proving circumstances in mitigation held reversible error (C. S., sec. 8952).

4. Words "proof in the case," as used in statute creating presumption of malice from proof of homicide, means proof on part of prosecution (C. S., sec. 8952).

5. In murder prosecution, burden is always on state to rebut exculpatory evidence contained in its own case (C. S., sec. 8952).

6. Burden is always on state to prove defendant guilty beyond reasonable doubt (C. S., sec. 8944).

7. Operation of statute creating presumption of malice from proof of homicide held not to relieve state of burden of proving defendant guilty beyond reasonable doubt, but merely affects quantum of proof (C. S., sec. 8952).

8. Instructions on burden of proof in murder prosecution held contradictory and to require reversal.

9. Instruction that, whenever fatal act is committed deliberately, law presumes malice, held not prejudicial error as excluding self-defense, where court gave full instructions on self-defense.

10. Instruction in murder prosecution on mitigation of offense held confusing and not to correctly state quantum of evidence required for acquittal.

11. Conduct of prosecuting attorney in asking impeaching questions of defendant's witnesses and not following them with impeaching evidence held improper.

12. Refusing instructions held not error, where instructions given completely covered every material thing contained in those rejected.

[52 Idaho 442]

13. While experiments to be competent must be based on circumstances reasonably similar to those surrounding issue to be proved, question of similarity is ordinarily for trial court's determination.

14. That experiments were made with view of testifying goes to weight and not competency thereof.

15. Evidence regarding experiments relative to gunshot penetration held properly admitted in murder prosecution as shedding light on course of bullet through deceased's body.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Appeal from judgment on conviction of second degree murder. Reversed and remanded.

Reversed and remanded.

J. W. Taylor, for Appellant.

Before a jury can legally find a defendant guilty of murder perpetrated by any means whatever, there must first be an unlawful killing with malice aforethought. The mere fact that a killing has been accomplished does not of itself establish malice aforethought, particularly where the evidence, both of state and defendant, tends to show self-defense. (State v. McGreevey, 17 Idaho 453, 105 P. 1047; State v. Matthews, 148 Mo. 185, 71 Am. St. 594, 49 S.W. 1085; People v. Conkling, 111 Cal. 616, 44 P. 314; People v. Hecker, 109 Cal. 451, 42 P. 307, 30 L. R. A. 403; People v. Bruggy, 93 Cal. 476, 29 P. 26; People v. Anderson, 57 Cal.App. 721, 208 P. 204; People v. Brown, 15 Cal.App. 393, 114 P. 1004; People v. Finali, 31 Cal.App. 479, 160 P. 850; State v. Dunlap, 40 Idaho 630, 235 P. 432; State v. Grover, 35 Idaho 589, 207 P. 1080; Davis v. Judson, 159 Cal. 121, 113 P. 147; Cutler v. State, 15 Ariz. 343, 138 P. 1048; Flaherty v. Butte Elec. Ry. Co., 42 Mont. 89, 111 P. 348.)

An instruction which attempts to define the elements of self-defense or any of them and therein presupposes or refers to the alleged killing as an unlawful killing is erroneous and incorrect and is confusing and misleading to the jury and prejudicial to the defendant's rights, for it in effect bars from the possible finding of the jury the very thing it attempts to define. (State v. McGreevey, supra; State v. Matthews, supra; 30 C. J. 418, sec. 662.)

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

The killing having been shown, a presumption of guilt arose which is evidence and may outweigh positive testimony against it. It is the province of the jury to determine whether or not defendant has made a sufficient showing to overcome such presumption to raise a reasonable doubt of defendant's guilt. In such case, the verdict of the jury may not be set aside for lack of legally sufficient evidence to support it. (People v. Milner, 122 Cal. 171, 54 P. 833; People v. Rodriguez, 182 Cal. 197, 187 P. 423; Ruth v. Krone, 10 Cal.App. 770, 103 P. 960; Culpepper v. State, 4 Okla. Cr. 103, 140 Am. St. 668, 111 P. 679, 31 L. R. A., N. S., 1166; State v. Jurko, 42 Idaho 319, 245 P. 685.)

LEEPER, J. Lee, C. J., and Givens and Varian, JJ., concur. BUDGE, J., Concurring in Part and Dissenting in part.

OPINION [16 P.2d 384]

[52 Idaho 443] LEEPER, J.

The defendant, Fred Copenbarger, was convicted of second degree murder, and appeals from the judgment and an order denying a motion for a new trial. In disposing of this appeal it is unnecessary to discuss the facts other than to state that the prosecution in making its case in chief introduced admissions made by the defendant to the police officers at the time of the arrest to the effect that he had killed the deceased in self-defense, and describing circumstances connected with the killing which might logically tend to that conclusion. These admissions constitute the only evidence directly connecting the defendant with the homicide, and themselves tend to show that the killing was in self-defense. The state also [52 Idaho 444] produced proof of certain physical facts which, if believed, would permit the conclusion to be drawn that deceased was shot in the back, and otherwise disputing the statements contained in the admissions of the defendant.

The state assumes two positions on this appeal: (1) That the facts proved are sufficient to sustain the inference of malice; (2) that, whether or not there is sufficient proof of malice, [16 P.2d 385] the state is entitled to a presumption thereof which arises in its favor immediately upon proof of the killing by the defendant, that this presumption stands in lieu of direct evidence and is sufficient to sustain the conviction of second degree murder. In view of the fact that reversible error has been committed by the court in its instructions with reference to this second position assumed by the state, we shall not discuss the assignment relative to the insufficiency of the evidence to sustain the conviction. The inquiry necessarily involves a construction of C. S., sec. 8952, which reads as follows:

"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 in the case tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable."

This statute codifies a rule of evidence which has persisted in the common law of England and America since earliest times.

The rule seems to have been well established in England that "where it appears that one person's death has been occasioned by the hand of another, it behooves that other to shew from evidence, or by inference from the circumstances of the case, that the offense is of a mitigated character, and does not amount to the crime of murder." (Rex v. Greenacre, 8 Car. & P. 35, 173 Eng. Rep. 388.) "The prosecutor is not bound to prove that the homicide was committed from malice prepense. If the homicide be proved, the law presumes the malice." (Reg. v. Maloney, 9 Cox C. C. 6.)

A complete exposition of the early English law on the [52 Idaho 445] subject is set out in Commonwealth v. York, 50 Mass. 93, 9 Met. 93, 43 Am. Dec. 373. The rule as developed in England prior to and after the American decisions and statutes is almost exactly that of our statute setting out the burden of proof in homicide cases (C. S., sec. 8952). (Reg. v. Maloney, supra; Rex v. Greenacre, supra; The King v. Oneby, 2 Ld. Raym. 1485, 92 Eng. Rep. 465; Reg. v. Mawgridge, Kel. 119, 84 Eng. Rep. 1107; Mackalley's Case, 9 Co. Rep. 65b, 77 Eng. Rep. 828; Reg. v. Kirkham, 8 Car. & P. 115, 173 Eng. Rep. 522.)

The leading American case on the subject is Commonwealth v. York, supra, wherein the court said:

". . . . When the fact of voluntary homicide is shown, and this is not accompanied with any fact of excuse or extenuation, malice is inferred from the act; that this is a fact that may be controlled by proof; but the proof of it lies on the defendant; and if not so proved, it cannot be taken into judicial consideration."

Other leading early American cases are: People v. McLeod, 1 Hill 377, 37 Am. Dec. 328; Pennsylvania v. Honeyman, 1 Add. 146; Pennsylvania v. Bell, 1 Add. 155, 1 Am. Dec. 298; Pennsylvania v. Lewis, 1 Add. 278; O'Mara v. Commonwealth, 75 Pa. 424; State v. Zellers, 7 N.J.L. 220.

The rule has been carried into the jurisprudence of every state in the Union, either by adoption of the common law or by enactment into the statute law. It is to be noted that many of these early cases required the defendant to show mitigation or justification by a preponderance of the evidence, which is yet the law in some jurisdictions. The Idaho statute (C. S., sec. 8952) has been considered by this court in State v. Lundhigh, 30 Idaho 365,...

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    ...upon the defendant. Such a burden never rests upon a defendant when it is the state's evidence that raises the issue. State v. Copenbarger, 52 Idaho 441, 16 P.2d 383. Also, a defendant is entitled as a matter of law to every reasonable doubt. This is clearly disclosed by the legislative 'Wh......
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    • August 16, 1960
    ...are correct in principle, in some the language of the particular instruction may have been subject to criticism. In State v. Copenbarger, 52 Idaho 441, 16 P.2d 383, a conviction of murder in the second degree was reversed because of a charge of the presumption which was contradictory and fa......
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