I respectfully dissent to the second division of the majority opinion, which has to do with the doctrine of self-defense, as defined in the instructions given by the trial court. The intent and content of the second division aforesaid are that the instructions are misleading, and that the jury might have considered that the burden of proof was upon the defendant to establish the defense upon which he relied, to wit, self-defense. I do not view the instructions as confusing or misleading. In a most explicit instruction, not only once, but twice, did the trial court expressly tell the jury (Instruction No. 12):
"It is incumbent upon the State to prove beyond a reasonable doubt that the defendant did not act in self-defense."
Then, after stating the four things essential to the defense of self-defense, he said:
"You must at all times keep in mind that no duty whatever rests upon the defendant to establish his defense of self-defense, but, as hereinbefore stated in this instruction, it is incumbent upon the State to prove beyond a reasonable doubt that the defendant did not act in self-defense."
In stating the "four things" essential to the doctrine of self-defense, the court was simply trying to explain what that doctrine means under judicial interpretation, not only of this court, but of the majority of the courts of last resort of these United States. Was the jury not entitled to have a matter of this kind explained so that it could intelligently apply the evidence? There was no thought on the part of the trial court, nor is there any language in the instructions, that put the burden upon the defendant. We must presume that the jury, as a composite body, was composed of men and women of average intelligence, and this court has more than once used this language in judicial opinion. The jury, acting with this average intelligence, which we assume they had, must be presumed, after a clear, explicit, and correct statement of the law by the trial court, to have understood the court's English, that, while considering said "four things," "you must at all times keep in mind that no duty whatever rests upon the defendant to establish his defense of self-defense, but it is incumbent upon the State to *Page 531 prove beyond a reasonable doubt that the defendant did not act in self-defense." That is the dominant thought in this case. It is not misleading in any way. It is the law. Surely the jury was entitled to know the meaning of the term "self-defense," and this was the sole purpose of the trial court in explaining as it did the four essential things. The discussion as contained in the majority opinion is purely a technicality, and it is not our function to assume that the jury did not understand plain English.
In State v. Partipilo, 139 Iowa 474 (cited in the major opinion), the defendant was convicted of an assault with intent to commit murder, and the cause was affirmed on appeal. In that case the defendant admitted the shooting, but claimed that it was done in self-defense. It is said in opinion (l. c. 475):
"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."
This is quite different from the case at bar. In the Partipilo case, supra, the demand of the appellant for a reversal of the judgment is based upon the failure of the court to properly instruct on the burden of proof; and it was the contention of appellant in argument that a certain instruction (No. 11) "may very well have been understood by the jury as placing the burden of proving self-defense on the defendant." That case reaffirms the correct rule in this jurisdiction that:
"`* * * the burden is on the 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.'"
It is further said:
"Under the rule, he [defendant] was entitled to an acquittal if the State had failed to negative the claim of self-defense. And that is only another way of saying that, if the 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."
The facts in the foregoing case are not analogous to the facts in the instant case, and the doctrine of self-defense is, in reality, not involved in the Partipilo case, as the court held that the attending circumstances were such as to completely negative *Page 532 the claim of the appellant that the act was done in self-defense. It would have made no difference, and this court so held in thePartipilo case, whether an instruction on self-defense was given correctly or wholly omitted.
It is also stated in the majority opinion that there was error in the instruction on the failure of the trial court to instruct "that the defendant was entitled to the benefit of conditions as they might reasonably have appeared to him, as a reasonably careful and prudent person." In my judgment, the court did so instruct. The instruction speaks for itself:
"Second, the amount of force that may be used is only that which is reasonably necessary to prevent death or great bodily harm, either actual or apparent."
Again, the trial court instructed that a person, when assaulted, if he acts in good faith, "is not to be held to any nice distinction as to the amount of force necessary, providing he does not willfully and purposely, and from a wrongful motive, use greater force than is necessary to protect his life or person. In this respect, the rule is that, if the defendant, acting as a reasonably prudent person, has reason to believe, and does believe, that he is in fact in danger of death or great bodily harm, even though he may be mistaken as to the reality of such danger, if he acts as a reasonably prudent person, he is entitled to act upon such appearance and belief; and the killing of his assailant, under such circumstances, would be justifiable, though the danger and necessity for killing his assailant were in fact only apparent, and not real." How can the appellant complain of such an instruction? It is most favorable to him, and no prejudice can possibly be predicated thereon. It is also the law, and the jury could not have misunderstood such plain English.
The appellant, Davis, testified that the decedent, John Washington, after calling Davis a vile name, "reached for his gun," and that he (defendant) tried to get out of the room, but was blocked by Fern Washington, daughter of the deceased, who happened to be in his way. This presented simply a fact question for the jury to determine, in the light of the instructions given by the trial court on the doctrine of self-defense. There arises no inference or implication, in reading the instructions as a whole, that any burden rested upon the defendant to prove his *Page 533 plea of self-defense. This is especially true for the reason that the court instructed the jury correctly, and by reiteration emphasized the thought that the burden was upon the State, at all times and under all the circumstances as disclosed by the evidence, "to prove beyond a reasonable doubt that the defendant did not act in self-defense."
I would affirm.
FAVILLE and KINDIG, JJ., join in this dissent.