#### The State of Iowa v. Charles Sharp, Appellant.

Assault with intent to murder: self defense: burden of proof. On a prosecution for an assault with intent to commit murder, the burden is upon the State to satisfy the jury beyond a reasonable doubt that the defendant was not acting in justifiable self defense, where there is evidence' in support of that plea; and the jury should be so instructed.

*Appeal from Keokuk District Court.-*— IloN. Joi-iN T. Scott, Judge.

Tuesday, June 6, 1905.

UNDER an indictment charging an assault with intent to commit murder, tbe defendant was convicted of assault with intent to commit great bodily injury, and was sentenced to imprisonment in tbe county jail for tbe term of three months. Trom. this sentence be appeals.

*Reversed.*

*W. C. Cambell*and *Brown &*Willcoclcson, for appellant.

*Q. W.*Mullan, Attorney-General, and *Lawrence De Graff,*Assistant Attorney-General, for tbe State.

McClain, J.

Tbe evidence tended to show that de-iendant shot tbe prosecuting witness, one Garter, in tbe arm with a revolver, and that this act followed' a fight between defendant and one Keasling. The evidence for the prosecution was that Garter appeared on the scene of tbe fight at its conclusion, and that, as be was getting out of his buggy, defendant, without provocation, fired at and wounded him. There was evidence for the defendant, however, that Garter advanced upon the_ defendant in a menacing manner, flourishing a knife, and using violent language, and that de*527fendant, in wbat be did, acted in self-defense. Tbe principal question of 'fact- in tbe case was whether or not defendant acted justifiably in making self-defense, and the court instructed tbe jury quite fully as to tbe matter. One of tbe instructions was, in substance, that tbe defendant bad admitted as a witness the shooting of Carter, but claimed that it was done in self-defense, and that

> If tbe evidence has satisfied you that, at tbe time and place of tbe commission of tbe crime charged, . . . said Carter armed himself with a knife, . . . and in an angry and threatening manner advanced toward defendant, and you further find it established by tbe evidence that it appeared to defendant be could not safely have retreated and avoided injury to himself, but that, acting as a reasonably prudent man under tbe circumstances, bis only safety lay in shooting defendant, and in so acting be did shoot him, then your verdict must be for tbe defendant.

Tbe defendant asked an instruction to tbe effect that tbe burden was on'tbe prosecution to show that defendant was not acting in self-defense, and that tbe prosecution must sustain such burden by evidence sufficiently strong to remove all reasonable doubt. But this instruction was refused, and tbe only one relating to the burden of proof was tbe one above quoted.

It is evident that tbe instruction given bad tbe effect of throwing on tbe defendant tbe burden of making out self-defense (tbe assault and injury being conceded) by a preponderance of tbe evidence. Indeed, tbe language would indicate that this defense was to be established not only by preponderance of evidence, but by evidence satisfying tbe minds of tbe jurors of the, fact that tbe defendant acted in self-defense., Such an instruction is plainly erroneous. This court has uniformly held that self-defense is' not an affirm-. ative matter to be established by tbe defendant, but that, if there is any evidence tending to show tbe defendant to have acted in self-defense in making tbe assault charged, such *528evidence relates to tbe question of whether there was any crime committed, for defendant’s act would not constitute a crime if done in proper defense of his person, and that the burden of proof is therefore on the prosecution to make out the commission of a crime beyond a reasonable doubt, in view of the evidence of defendant having acted in self-defense. *State v.*Usher, 126 Iowa 387; *State v. Matheson*(Iowa) 103 N. W. 137; *State v.*Shea, 104 Iowa, 724.

The court erred, therefore, in not so instructing the jury as to give them plainly to understand that the burden was on the prosecution to satisfy the jury beyond a reasonable doubt that the defendant was not acting in justifiable self-defense. For error in this respect, the case must be, and is, remanded for a new trial. — *Reversed.*