Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-10-19
PreiudiciaI Error Of Judge in.
Throwing Burden Of Proof
on Defendant
Hazlett Was Convicted Of
Murder Set Up Self
Defense in Trial

The supreme court handed down
an important decision to j. B. Haz-d
lett of Sargent county, inasmuch as it
gives him a new trial on the charge
of murder. The decision follows:
State of North Dakota. respondent,
VS.. John B. Hazlett. appellant.
I Upon the trial of a person charged
with murder and in which one of the
defenses relied on is justifabIe hom-
icide, or self-defense, it is prejudi-
cial error to instruct the jury that
the burden of proof is upon the de-
PENDANT to establish by preponder-
ance of the evidence. The burden
never shifts to the defendant to es-
tablish by preponderance of the
evidence either facts and circumstan-I
ces in mitigation or excuse, or facts
establishing an Affirmative defense.
But under section 1O02a. r.. G., where
the commission of such homicide has
been established by the state. the
burden is upon defendant OF proving /
circumstances of mitigation excuse
or Justification, unless the states
proof tends to show that such crime
only amounts to manslaughter or
that defendants act was justifiable6
or excusable. But this does not mean
that defendant is required to do
more than show circumstances Gre
ating a reasonable doubt as to such
matters. fs y.
a defendant in a criminal action
| is entitled to have submitted to the
jury, with proper Instructions, all de-
lenses of which there is any support
ing evidence, whether such defenses
| are consistent or inconsistent. 1t is
accordingly held that the trial court
properly Instructed the jury upon the
theory of accidental killing as well
as that of justifiable homicide.
The defense of accidental killing
| was not an affirmative defense in the
sense that defendant was bound to
furnish proof of circumstances tend
| ing to substantiate the same. s. 1t is
a denial of criminal intent and the
burden was upon the state of prov
ing such intent beyond unreasonable
doubt. 4,.:-
| 1t was preiudicial error to per-
NIT the state to prove that the de-
PENDANT had committed the crime of
sodomy. Proof of such crime in no
way tended to prove defendants
guilt of the crime charged against
him. The rule announced in State VS..
EKent, N. D., is held not applicable
to the case at bar.
/ The trial court charged the jury
4 that if they believed from the evil
dence that the defendant had made
4 statements out of court against him
self they had right to treat such
statements as true or, false, Just as
they believed them true or false,
when considering in theftaloiunfwy
when considered in the light of all
other facts and circumstances in the
case. Held: Not error. = ~,
1 The trial court charged the Jury
las follows: cit is not enough that
the party killing another believed
himself in danger from the person
the slayer or, believed by him to be
| that the jury, in the light of all the
4 facts and circumstances known to
the slayer. are believed by him to be
true. can say he had reasonable
ground for such belief Held: Cor
i rect. But, Held. further, That de-
4 PENDANTS conduct is not to be Judged
i by what reasonably cautious per
L son might or might not do or consid-
er necessary to do under like circum-
stances. but what ne himself in good
faith honestly believed and had rea-
.sonable ground to believe was neces-
sary for him 10 do to protect him.
self from apprehended death or grea,
bodily injury.
The reasonableness OF defendants
belief must be determined from his
8 standpoint and not from the stand
point OF an ideal reasonable person
Spalding dissents from the reasons
given for sustaining said instruc
lions. ss
Where the evidence shows that
! homicide was committed In the heai
OF passion and with provocation tbs
Jury In determining whether ther'
twas snfIicient cooling TIME for TIL