#### State of Iowa v. Nicola Partipilo, Appellant.

Assault with intent to murder: self-defense: burden of proof: instructions : prejudice. The burden of proof is upon the State to show that a defendant charged with assault with intent to commit murder was not acting in self-defense by evidence sufficient to remove all reasonable doubt, and an instruction on the subject of self-defense which implies, or may be understood as implying, that a finding that defendant was properly acting in self-defense'was necessary to an acquittal is erroneous; but if the proven facts and circumstances are such as to completely negative the claim of self-defense no prejudice can arise from the instruction. Evidence held insufficient to support a claim of self-defense.

*Appeal from Fayette District*Court.— Host. L. E. Fellows, Judge.

Tuesday, July 7, 1908.

Rehearing Denied, Tuesday, September 29, 1908.

DEFENDANT was convicted of an assault with intent to commit murder, and he appeals.—

*Affirmed.*

*475
      *Tom. H. Milner,*for appellant.

*U. W. Byers,*Attorney General, and *C. W. Lyon,*Assistant Attorney General, for the State.

Bishop, J.—

The alleged assault was by shooting with a revolver. Defendant admitted the shooting, but claimed that it was done in self-defense. No requests were made by defendant for instructions. In the instructions, given by the court on its own motion, the jury was not told in formal phrase that the burden of proof was with the State. It was said, however, that the defendant *“*is presumed to be innocent until his guilt is established by sufficient legal evidence.” And again: “ The degree of proof necessary to justify a conviction ... is such evidence as shall satisfy you, beyond a reasonable doubt, of his guilt. Where there is a reasonable doubt of the defendant being proven to be guilty, he is entitled to an acquittal. Full and- satisfactory proof is required,” etc. After defining the elements essential to the crime charged, the jury was further told: *“*And in this case, before you can convict the defendant . . . you must be satisfied from the evidence, "beyond a reasonable doubt, that the' defendant did, with malice aforethought, assault Abbananti with the specific intent to hill him,” etc. In the eleventh instruction, after stating correctly the abstract rule of self-defense, the court continued thus: “ If you find that, shortly before the shooting, there had been an affray between the defendant and the person injured, and that such affray had ceased, and the defendant had gone away, then he had no right to return, either armed with a revolver or otherwise, for the purpose of defending himself against what had already occurred. Defendant cannot justify himself on the ground of self-defense, unless he was actually assaulted, after his return to the car, after going away and obtaining a revolver. It is for you to decide from the evidence whether or not he was assaulted after his return. *476If be was not, then be was not acting in self-defense in doing tbe shooting. If you find from tbe evidence that be was at that time assaulted, then you must determine from tbe evidence wbetber tbe circumstances were sucb as would justify bim in firing tbe shot that injured Abbananti. If, guided by this instruction, you find from tbe evidence that tbe defendant, at tbe time of tbe shooting, was properly acting in self-defense, then you should acquit bim.”

Tbe demand for a reversal of tbe judgment is based on tbe failure of tbe court to properly instruct on the subject of burden of proof. And it is tbe argument that instruction 11 may very well have been understood by tbe jury as placing the burden of proving self-defense on tbe defendant; this especially as tbe last sentence of tbe instruction seems to make an acquittal depend upon an affirmative finding *“*that defendant, at tbe time of the shooting, was properly acting in self-defense.” It is the rule in this jurisdiction that “ tbe burden is on tbe State to show that the defendant was not acting in self-defense, and this it must do by evidence sufficiently strong to remove all reasonable doubt.” *State v.*Shea, 104 Iowa, 724, and cases cited. Here the court conceived that self-defense was an issue in tbe ease, and proceeded to instruct on the subject. It goes without saying that tbe law should have been fairly and correctly stated. Tbe vice of tbe instruction assailed lies in the fact that it implies, or may be understood to imply, that a finding that defendant was properly acting in self-defense was necessary to bis acquittal. Under tbe rule be was entitled to an acquittal if the State bad failed to negative tbe claim of self-defense. And that is only another way of saying that, if tbe evidence addressed to self-defense was sufficient to give rise to a reasonable doubt of the defendant’s guilt, he was entitled to an acquittal.

But the State insists that, conceding the error in the instruction, it was' without prejudice. Aiad the argument here is that there was no basis, in tbe evidence, to support *477a finding of self-defense; hence an instruction on the subject was not called for, and the jury could not have been misled, to the prejudice of defendant, by any inaccuracy of statement in the instruction as given. With this contention we are quite disposed to agree. As we have seen, defendant admitted the shooting. Now, ■ if the attending circumstances were such as to completely negative the claim that it was done in self-defense, then, plainly enough, no prejudice could arise from the fact that the rule respecting the burden of proof was either wholly omitted or inaccurately stated. If defendant was not entitled to an instruction on the subject, the giving of an erroneous instruction could have no other effect than to give him a chance for a favorable finding which should not have been accorded to him. A careful reading of the evidence convinces us that the shooting was wholly without justification. Defendant and Abbananti were members of a gang of men in the employ of a railway company as track workers, and were stationed, at the time, at Oelwein. They lived in box cars, and on the night in question all were gathered in the car occupied by Abbananti, engaged in playing cards. All had been drinking beer, and were more or less intoxicated. During the evening a dispute arose, and defendant was somewhat unceremoniously ejected from the car by Abbananti. According to his own statement, defendant went to his own car, where he remained a few minutes. He then started back for Abbananti’s car, as he says, *“*to make friends with the men again.” On the way he met one of the men, Nick Favio, who asked him where he was going, to which he replied that he was going back to make up with the boys in the car. He says: “Favio then says to me, ‘ Don’t go there, because they are all drunk, and they are saying that' they are going to kill you.’ Then I turned around, and went hack to my car and stayed there a while and took the revolver and put it in my pocket. Then I was going back to make friends.” Several witnesses testify that, as. defendant left his own car “ to make friends,” he declared *478that *“*whoever steps in front of me I will shoot them,” and of this defendant, as a witness, made no denial. Each of the witnesses who saw the shooting — and there was some ten of them — testify in positive terms that, as defendant came up to the side of Abbananti’s car, and stepped upon the lower rung of the ladder leading up into the car, Abbananti came to the door, when, without a word of warning, defendant opened fire upon him with his revolver. One of the shots took effect. The bullet entered Abbananti’s breast, and was afterwards extracted from under his right shoulder. Defendant says — and in this he stands alone — that when he approached the car, Abbananti and his brother sprang down to the ground and assaulted him, and that it was not until they had forced him to the ground, and were calling for an ax with which to kill him, that he drew his revolver and commenced shooting. In all of its material aspects this is the fact situation presented by the evidence. In it there was no room for a finding of self-defense. If that were all, it may be conceded that the question who was the aggressor in the affray was a proper one to go to the jury, notwithstanding the fact that defendant stood alone in his testimony as against the ten who united in a contrary version of the affair. But after defendant had been warned that the inmates of the Abbananti car were incensed against him, and were contemplating further violence to him, he armed himself with a revolver, and started for the car, with the declaration on his lips that he would shoot whoever might step in front of him. T-Tis voice then was for war, and no reasonable man could believe that, as he approached Abbananti’s car, his heart was yearning for peace. Quite to the contrary, it is not possible in reason to conclude otherwise than that he was smarting from what he had conceived to be an indignity put upon him, and revenge, instead of peace, was in his heart. One who arms himself, and goes out to seek a quarrel under circumstances as here disclosed, cannot excuse a shooting as in self-defense. *State v.*Stanley, 33 Iowa, 526; *State v. Sullivan,*
      *47951 Iowa, 142; *State v. Jones,*89 Iowa, 182; *State v. Pierce,*90 Iowa, 506.

No other matters of error are contended for in argument. Accordingly the judgment is *affirmed.*