Sacramento daily record-union., 1889-09-05
MITIGATING CIRCUMSTANCES.
THE SUPREME COURT ovERRULEs A
FORMER DECISION.
How Sacramento Attorney Attempted to
Set the Court Aright-His Posi-
ton Now Sustained.

The decision in the murder case of the
People VS.. Bushton, recently rendered by
the State Supreme Court, is one of the most
important in the criminal law that has
been handed down for many years. The
Courts have heretofore uniformly held that
the prosecution must make out It's case be-
yond a reasonable doubt, and that if the
jury has reasonable doubt as to the suffi-
cheney of the evidence upon any material
point in the case made by the prosecution,
they must find the defendant not guilty.
In the case of the People VS.. Hong Ah
Duck (61 CAL, 387), decided in September,
1892 the following instruction was excepted
to by the defendant: "The killing being
proved, the burden of proving circum-
stances OF mitigation to justify or excuse
the homicide will devolve on the accused
unless the proof on the part of the prose
cution tends to show that the crime COM
mitted only amounts to manslaughter, or
that the accused was justified or excused
in committing the homicide. Up to the
moment when the killing is proved,
the prosecution must make ont its case
beyond any reasonable doubt. When the
killing is proved, it deVolyes upon the de-
fendant TO show any circumstances in nit
igation to excuse or justify, by prepon-
derance of evidence on his part. That is,
the killing being proved, the defendant
must make out his case in mitigation to
excuse or justify, by some proof stronger
in some appreciable degree than the proof
of the prosecution. The burden of proof
changes. # 1t must be in some de.
gree, no matter how small, stronger than
the proof OF the prosecution on the other
side"
In rendering their decision the Supreme
Court considered the foregoing instruction,
and held it to be good. About the same
time the case of People VS. Simon Raten,
who killed James Lansing in this city, was
tried III the Superior Court of this county,
and practically the same instruction as
above was given to the jury. Raten was
convicted of murder in the first degree, and
his attorney, ElwoOd Bruner (noW District
Attorney of this county,, appealed his case
to the Supreme Court. The case was ar
gued at the January term, 1888. and the
main contention of appellants counsel was:
THAT malice and intent to kill are essen
tial ingredients in murder, and are only to
be inferred from facts and circumstances
as proven in the case that express malice
is never TO be inferred from the acts or the
weapons used, but that it must be proved,
dtluTlde, beyODd o reasonable doubt, the
same as any other fact in the case; that
the instruction to the jury (above quoted
was error, and that the defendant was pre-
JUDGED thereby"
However, the Court affirmed the iu6g-
ment, on the authority of the case of Hong
All Duck. Now, the case of People VS..
Bushton, decided last Saturday, expressly
overrules the decisions in the cases of Hong
All Duck and Raten, the Court saying:
1T can make no difference
whether this reasonable doubt is the result
of evidence on the part of the defendant,
tending to show circumstances of mitiga-
ton. or that Justify or excuse the killing, or
from other evidence coming from him or
the prosecution. The we'll settled rule that
q defendant shall not be convicted unless
the evidence proves his guilt, beyond a
reasonable doubt applies to the whole and
every material part of the case no matter
whether it is as to the act of killing, or the
reason or manner of its commission"
The Court further says: In justice to
the learned Judge of the Court below, we
must say that the instruction given is war
ranted by some of the decisions of this
Court People VS.. Hong Ah Duck, 6l Cal,
395, and People VS.. Rattan, 63 Cal, 422l, but
on mature consideration we feel con-
strained to hold that they were based on
of the Penal Code"
During the argument of the Raten case
before the Supreme Court, an amusing
scene occurred between the Court and the
attorney for the prisoner. Mr. Bruner
had been arguing for some time tnat the
appellant should have a new trial on ac-
count of error in the instruction referred
to, when Chief Justice Morrison leaned
over on the bench and said
"Mr. Bruner, are you not aware that this
Court has recently decided, in the case of
Hong All Duck, adversely to the position
you row take, and that it is useless for you
to argue the point further? Proceed with
the other points in the case"
Although il was the young attorneys
first argument before the Supreme Court,
he had evidently had good breakfast and
was not sbashed, for he replied:
81 am familiar, yoRr Honor, with the case
referred to, but as ] believe this Court erred
IN the decision of that case, prefer to ar
que the point further"
The Chief Justice was i'll at the time, and
having written the decision referred to,
was paralyZed at the audacious reply of the
attorney.
The Courtroom instantly became bushed
Nothing was said for time and it was the
opinion OF some attorneys who were pres
ent that the Chief Justice would read lee
ture 10 the offender, when Justice McKin-
stry said:
'Mr. Bruner, he decision referred to by
the Chief Justice was concurred in by a
bare majority of this Court, and l, for one,
would like 10 hear you continue the argu-
ment further"
The argument then proceeded, but the
rule of law coatended for was not estab-
lished until FIVE new members sat upon the
bench Of the Supreme Court.
The Court has thus, al the earliest mo-
ment, corrected the mistake made in the
cases of Hong All Duck and Raten and
has established, es the law of the land, that
which has been handed down from time
immemorial as a necessary safeguard in
the trial of man charged with the crime
of murder.