#### The People of the State of New York, Appellant, *v.*George Downs, Respondent,

The rule that in criminal cases the defendant is entitled to the benefit of a reasonable doubt applies not only to the case as made by the prosecution but to any defense interposed.

Upon the trial of an indictment for murder, the prosecution proved the death, and by circumstantial evidence established that it was caused by a pistol shot fired by defendant. The latter testified that the kill, ing was accidental. The court charged tlis jury in substance that a homicide proved implied crime on the part of the slayer; that a conviction must follow, unless defendant justified or excused the act; that the burden of that defense was upon him, and to secure acquittal he must be able to show a legal justification or excuse. *Held,*error; as it deprived defendant, so far as his defense was concerned, of the benefit of a reasonable doubt; that whether the crime proved was murder or manslaughter in one of the degrees specified in the statute, or justifiable or excusable homicide, depended upon the intention and circumstances of its perpetration, and mere proof of the killing raised no legal implication that the crime of murder had been committed.

Beported below, 56 Hun, 5.

(Argued October 22, 1890;

decided December 2, 1890.)

Appeal from judgment of the General Term of the Supreme Gourt in the third judicial department, entered upon an order made November 26, 1889, which reversed a judgment convicting defendant of the crime of manslaughter in the first , degree entered upon a verdict of the Oyer and Terminer and granted a new trial.

*559The defendant was indicted for the crime of murder in the first degree.

The facts, so far as material, are stated in the opinion.

*L. E. Griffiths*for appellant.

The question of the defendant’s guilt of the crime charged in the indictment was properly submitted to the jury. *(People*v. Deacons, 109 N. Y. 374; *People*v. *Jaehne,*103 id. 199 ; *People*v. Beckwith, 108 id. 74; Burrill on Cir. Ev. 682; *People*v. *Bennett,*49 N. Y. 144; *People*v. Conroy, 97 id. 75 ; *People*v. *McLeod,*1 Hill, 379 ; *People*v. Schryver, 42 N. Y. 9; *People*v. *Majone,*1 id. 86.) If the charge as a whole convey to the jury the correct rule of law, on a given question, the judgment will not be reversed although detached sentences may be erroneous. *(People*v. *McCallan,*103 N. Y. 587 ; *Losee*v. *Buchanan,*51 id. 492; *Caldwell*v. *N. J. S. Co.,*47 id. 282; *Walker*v. *People,*88 id. 89 ; *Shorter*v. *People,*2 id. 197; *People*v. *Lamb,*2 Keyes, 373; *Shufflin*v. *People,*62 N. Y. 229, 235 ; *Powell*v. *State,*65 Ga. 707; Penal Code, §§ 17, 21.) When upon a criminal trial, the judge in charging the jury lays down erroneous propositions, but upon his attention being called thereto corrects the misdirections and lays down the correct rule, no error is presented for review. *(Eggler*v. People, 56 N. Y. 642; *Sawyer*v. *People,*91 id. 667; *People*v. *McCarthy,*110 id. 316.) When the prosecution makes out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is upon him to make out the defense that he presents. (Whart. on Cr. Ev. § 331; *People*v. *Schryver,*42 N. Y. 19.) The refusal of the court to charge “that there are no legal implications "from the fact of shooting; that the defendant intended to take the life of Logan ” was proper. *(York's Case,*9 Metc. 103 ; *Commonwealth*v. *Hawkins,*3 Gray, 465; 3 Greenl. on Ev. § 14; *People*v. *Conroy,*97 N. Y. 77; Starkie on Ev. 848; 1 Phillip’s Ev. 632; *Foster*v. *People,*50 N. Y. 609; *Thomas*v. *People,*67 id. 225.) If the prisoner claims a justification he must take upon himself the* burden of satisfying the jury *560by a preponderance of evidence. The prisoner must make it appear that he was justified. *(Sawyer*v. *People,*91 N. Y. 667; *People*v. *McCarthy,*110 id. 316; *People*v. Schryver, 42 id. 9 ; *People*v. *Majone,*1 N. Y. Crim. 88; Whart. on Crim. Ev. § 331; 3 Greenl. on Ev. § 14; *People*v. *Conroy,*97 N. Y. 75.) The judgment of the Oyer and Terminer should be affirmed and permitted to stand if it is right upon the facts and law of the whole case. *(Gibbons*v. *Dillingham,*10 Ark. 9 ; *Castell*v. *Castell,*8 Blackf. 240; *Simons*v. *Homer,*35 Ind. 415 ; Hilliard on N. T. 43; *Arlington*v. *Cherry,*10 Ga. 434; *Pritchard*v. *Myers,*11 S. *&*M. 169.)

*Orin Gambell*for respondent.

The court erred in charging the jury: “ It has been insisted that there is such a thing as emotional insanity. That a man may be so wrought upon by the frenzy that is produced by any sudden emotion, as for the time he loses his reason. I do not charge yon to the extent that has been read from some of the books upon this question of emotional insanity, yet I leave it to you to say whether, under the circumstances of the case, yon can, upon your oaths, believe that this man was, at the time of firing the pistol, insane.” (7 Abb. [N. S.] 325; *People*v. *McCann,*16 N. Y. 68; *Queen*v. *Oxford,*9 Car. & P. 525; *Sanchez*v. People, 22 N. Y. 147; *People*v. *Eastwood,*4 Kern. 562; *Willis*v. *People,*32 N. Y. 717, 719; *People*v. *Kelly,*35 Hun, 301, 302; *Allis*v. *Leonard,*58 N. Y. 290; *People*v. *Carpenter,*38 Hun, 497; *McKenna*v. *People,*81 N. Y. 362.) The mere fact of killing, without evidence as to the attending circumstances or preceding or subsequent circumstances throwing light upon it, does not create an implication that defendant intended to take Logan’s life. *(Stokes*v. *People,*53 N. Y. 164; *McKenna*v. *People,*81 id. 360 ; *People*v. *Majone,*91 id. 211; *People*v. *Willett,*36 Hun, 511; *Brotherton*v. People, 75 N. Y. 159; *People*v. *McCann,*16 id. 53; *Peoples. Schryver,*42 id. 10 ; *People*v. *Hill,*49 Hun, 432; *People*v. *Riordan,*117 N. Y. 71; *O’ Connell*v. *People,*87 id. 377 *; People*v. *Stone,*117 id. 435.) The true rule is, that where a *561defendant undertakes to explain, justify or excuse, if, upon his evidence and the evidence of the people taken together, there arises a reasonable doubtsof his guilt, he is entitled to an acquittal. *(Stokes*v. People, 53 N. Y. 181; *People*v. *Willett,*36 Hun, 511.) The errors in the portions of the charge excepted to were in no way cured by any subsequent attempted modification thereof. *(Stokes*v. *People,*53 N. Y. 183.) The court was requested to charge that if the defendant found the deceased and Mrs. Downs in the position described by him, and he had reasonable ground to apprehend a design on the part of Logan to commit a felony upon his wile, or to do some great personal injury, he would be justified in slaying him, even though the fact might be that it ivas adultery, if he had reasonable ground to apprehend a design to commit a felony. The court refused to so charge, and added: *“*I think that the defendant at his peril, where he undertakes to execute summary vengeance, must know that a party is attempting to commit a felony.” This was error. *(People*v. *Lamb,*54 Barb. 342; *Yates*v. *People,*32 N. Y. 509; *Struve*v. *Dodge,*62 How. Pr. 232; *Logue*v. *Commonwealth,*38 Penn. St. 265; *Pond*v. *People,*8 Mich. 150; *Maher*v. *People,*24 Ill. 241; *Henton*v. *State,*24 Fix. 454; *Schiner*v. *People,*23 Ill. 17; *Patten*v. *People,*18 Mich. 314.) The court was asked to charge that there was an aspect in the case where, even if the defendant did the act in the heat of passion, he should be acquitted. The request was a proper one. *(Shorter*v. *People,*2 N. Y. 197; *People*v. *Riordan,*117 id. 75.) An erroneous charge or erroneous refusal to charge, which operates to defendant’s prejudice, cannot be obviated and cured by charging correctly upon some other point. *(People*v. *Kelly,*35 Hun, 302; *Foster*v. *People,*50 N. Y. 601; *Stokes*v. *People,*53 id. 184; *People*v. *Dimick,*41 Hun, 630.)

Finch, J.

The defendant was convicted of manslaughter in the first degree, but the General Term has reversed that conviction for alleged error in the charge to the jury; and *562from that reversal the people have appealed to this court, insisting that the charge, fairly construed, was correct and violated no established legal rule.

The. prosecution proved the *corjms*delicti, the death of Logan and the violence which caused it, by direct evidence which was in no respect disputed. His dead body was found upon the premises of the prisoner shot through the heart. The bullet had penetrated his clothing and entered his breast in a manner indicating that he was facing his antagonist when the shot was fired. The absence from the clothing of the deceased of anything like scorch or stain of powder was claimed to indicate that the weapon when fired was not in contact with his person, but at some distance from him, greater or less. The bullet was taken from the body. A pistol was found in the prisoner’s room under his bureau, having ten chambers, the central one carrying a bullet of thirty-two caliber, and the nine surrounding it of twenty-two. A discharged shell was found in the central chain her which the bullet taken from the body of the deceased fitted, while the nine smaller cartridges remained undischarged. On the day of the homicide, at about midnight, the prisoner aroused a neighbor named Morey and Dr. Harvie, saying to each that he had shot his best friend, or was afraid he had shot his best friend, but giving no explanation of the circiunstances; and they, going with him to the house, found Logan lying dead near the entrance to the summer kitchen. The prisoner was pale and nervous, and on finding Logan dead was taken with a fit of vomiting, but made no effort to escape and quietly surrendered himself to the officers who were summoned and took him into custody. He was entirely sober, and there was no evidence of intoxication. His previous relations with Logan, who was a married man, were those of intimate friendship without anything to mar or disturb it. That was the ease made by the prosecution, and it presented to the jury a problem with very slight material for its solution. That Logan met his death from a pistol discharged in the hands of Downs was sufficiently proved, but whether the shot was fired inten*563tionally or accidentally, and if intentionally, for what reason did not appear. The evidence disclosed no possible motive for an intentional homicide, and left the character and grade of- the crime, if one had been committed, an unexplained mystery. One circumstance, however, would be sure to attract the attention of an intelligent jury. They would ask how Logan came to be at the rear of the house, near the entrance to its living rooms at midnight, and what he was doing there when he should have been at home with his family. The saloon was in the front part of the house opening on to the street. It was closed for the night; and there had been no brawl or quarrel or disturbance there during the evening. The presence of Logan in the rear of the house, at or near midnight, and the absence of any previous quarrel or difficulty, would make it reasonably certain that something due to his presence and sufficiently grave and serious to account for an intentional or accidental homicide had actually occurred. What that was we have no means of knowing except through the explanation .given by Downs and his wife.

He testifies, in brief, that he was aroused by the noise of a scuffle in the back kitchen; -that he seized the pistol which lay upon a stand near his bed and rushed out; that he found Logan and Mrs. Downs on the floor in the act of adultery or rape, according as the woman was consenting or resisting; that he seized Logan who at once attacked him, and in the struggle the pistol went off; and that this was after the woman had left the room, and, as she says, while she was at the front door going out for help or escape. She testifies that Logan seized her and threw her down, but does not say whether with her consent or why she made no outcry.

Of course, this explanation was open to the criticism of the prosecution and the consideration of the jury. The principal fact sworn to has a strong probability in its favor. It accounts for the presence of Logan, at midnight, on the premises where he had no right to be, and furnishes the needed motive and explanation of the homicide which occurred. Without it we cannot understand the event; with it we can easily see how it *564did occur or how it might have happened. It supplies hoth motive and occasion. But granting-so much, the rest does not necessarily follow, and it was still for the jury to say whether the shooting was accidental or intentional, whether justifiable or excusable, whether with deliberate purpose or in the heat of passion and without intent to kill.

It is obvious that in their consideration of these questions very much would depend on the charge of the court as to the burden of proof, and the operation .and extent of the rule relating to a reasonable doubt. That such doubts might easily arise in many and different directions, is quite apparent from the facts to which we have adverted. Take, for example, the prisoner’s statement that the pistol exploded in a fight between him and Logan and without his conscious act. If that be true, while there was a homicide, there was no crime, for the killing would become merely an accident or misadventure. If now the burden is upon the prisoner to satisfy the jury of that fact, and unless they are so satisfied, they must deem the homicide intentional, a verdict of guilty might easily result. But if that burden is not upon the* prisoner, if the jury are told that it remains with the prosecution, that if the evidence leaves in their minds a reasonable doubt whether the killing-may not have been an accident or misadventure, the prisoner must have the benefit of the doubt, because it goes directly to-the vital elements of the People’s case, and leaves it uncertain whether a crime has been committed at all, the verdict of the-'jury might be entirely different. A similar result might attend a defense of justifiable homicide, and so the question of the burden of proof and the scope and effect of a reasonable doubt became in the case at bar of very great importance.

We have decided so recently as to make further citation needless that the rule that in criminal cases the defendant is ■ entitled to the benefit of a reasonable doubt applies not only to the case as made by the prosecution, but to any defense interposed. *(People*v. *Riordan,*117 N. Y. 71); and we had earlier held under the- statute defining the different classes, *565of homicide that whether it was murder or manslaughter in one of the degrees, or justifiable or excusable, and so no crime at all depended upon the intention and circumstances of its perpetration, and, therefore, mere proof of the killing raised no legal implication of the crime of murder. *(Stokes*v. People, 53 N. Y. *177.)*

I think the charge in this case ran counter to these rules and was calculated to impress upon the jury a conviction that proof of the homicide carried with it a legal implication of crime which shifted the burden of proof upon the prisoner, and required him to satisfy the jury that the killing was either justifiable or excusable at the peril of a conviction if he should fail in his attempt.

The learned trial judge began his charge with the definitions of the statute and very fairly and correctly explained its classification of the different forms of homicide. Having done so, he approached the rules which should govern the jury in deciding between them and in so doing used expressions to which exceptions'were taken. He said: “How it is for you to say to which one of these classes of crime this evidence points. Here has been a homicide; here has been a human life taken. It becomes a serious question as to whether or not a man shall execute the law or execute vengeance upon his fellow. If he does, he must do it at the peril of either being punished for it, or being *able*to excuse himself when called upon to answer to the wrong within one of the excuses that is fixed and given in the law.' .If he is *not,*he must be found guilty of one or the other of the crimes which are *imputed*to him by reason of the homicide.” A jury could hardly fail to understand from this language that a homicide, the fact of a human life taken, involved a legal implication of murder, which must compel a verdict of guilty, unless the prisoner is *able*to excuse himself within the statutory definitions. If there was room to doubt about the meaning it became plainer from what followed. The learned judge added: “ If yon *reach the conclusion*that he was justified in taking the life of this man within the definitions given in the books — *566not within any notions of your own, but within the definitions given in the law — if you reach the conclusion that he was justified, *then*your verdict will he one of acquittal.” Here the same idea is conveyed in another form. To acquit, the jury must “ reach the conclusion ” that a justification has been established. It is evident that the prisoner’s counsel so understood the charge, and after excepting to it, made a series of requests with a view of more clearly ascertaining the meaning of the charge or procuring a modification of its terms. He asked the court to charge “ that no state of proof ever changes the burden of proof; the burden remains throughout the trial upon the people,” to which the learned judge replied: *“*I decline to charge it in those words; I *qualify*it by saying that if the people establish the homicide by the use of a deadly weapon committed by the defendant intentionally and with deliberation, that then any excuse for the commission of that crime or the commission of that act must come from the defendant.” The understanding of the jury of the position of the court was quite likely to be that the burden did not always rest on the prosecution but when a *prima facie*case of murder had been made the burden shifted to the defendant who sought to excuse or justify. And this is in precise accord with the previous charge that where a homicide was shown to have been committed by the prisoner, he must be convicted unless he is *“*able ” to justify or excuse the act, and unless the jury “ reach the conclusion ” that there is legal excuse or justification. And then, to further test the attitude of the court, the defendant’s counsel asked for a charge *“*that there is no legal implication from the fact of the shooting that the defendant intended to take the fife of logan.” That was declined and an exception taken.

How, construing together what'the court said and what it ' refused to say, I think it is obvious that the jury were likely to act under the impression that a homicide proved implied crime on the part of the slayer; that a conviction must follow unless the prisoner justified or excused the act; that the burden of that defense was upon him, and that, to secure acquittal, *567he must be able to show a legal justification or excuse, and the jury must reach that conclusion if it -would acquit.

The learned district attorney, howéver, insists that the court did charge that the guilt of the prisoner must be established beyond a reasonable doubt, and refers to several passages in wliich that was said. A reference to them indicates that none of them related to the defense of justification or excuse, nor did they indicate that a reasonable doubt would operate in the prisoner’s favor beyond the case made by the prosecution. Thus, in describing the character of the proof requisite to establish the *corpus*delicti, as distinguished from the guilt of the prisoner, the court said the former must be proved by direct evidence, and the latter beyond a reasonable doubt. In describing the killing of Logan, the court said: “ I do not know that it is controverted on either side that he came to his death by a bullet, a pistol shot as almost conceded, but you are to find that fact. If there is any doubt about it, of course the defendant has the benefit of the doubt.” Upon request of the prisoner’s counsel, the court also charged “ that it is incumbent upon the people to prove affirmatively, beyond a reasonable doubt, what grade of crime, if any, was committed; ” and also, upon the like request, “ that if, upon the whole evidence of the people and the defendant taken together, there is a reasonable doubt in the minds of the jury as to whether or not the defendant discharged the pistol at Logan with intent to kill him, they must acquit the defendant of the crime of murder in both degrees.” I am unable to see that these expressions at all modify or control what was said and refused to be charged as to the burden of proof and the manner in which justification or excuse should be proved. They fall very far short of a cure for the error which was committed. Taking the charge together and construing it as a whole, I am unable to resist the conviction that, in the minds of the jury, it shifted the burden of proving his defense upon the prisoner and deprived him, as to that defense, of the benefit of a reasonable doubt.

While there is no legal implication of the crime of murder from the bare fact of a homicide, the jury may infer it as a *568fact, and may do so even though no motive is assigned for the act, and the case is bare of circumstances of explanation. *(People*v. *Conroy,*97 N. Y. 77.) But the. inference is one of fact which the jury must draw, if such seems to them to be their duty, and not one of law which the court may impose upon their deliberation, and then upon that assumption shift the burden upon the prisoner and require him to prove that no crime has in fact béen committed.

We think, therefore, that the order of the General Term reversing the judgment of' conviction was right and should .be affirmed.

All concur, except Ruger, Ch. J., not voting.

Judgment affirmed.