I am satisfied that the conviction in this case cannot be sustained without the violation of settled principles of law, and it necessarily follows that I must vote for a reversal. While concurring in the reasons assigned by my learned associate for coming to the same conclusion, I will briefly state the considerations which to me seem controlling, independently of the numerous other points which have been discussed.
It is a cardinal rule in criminal prosecutions that the burden of proof rests upon the prosecutor; and that if upon the whole evidence, including that of the defence as well as of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit *Page 182 of that doubt. The jury must be satisfied on the whole evidence of the guilt of the accused; and it is clear error to charge them, when the prosecution has made out a prima facie case and evidence has been introduced tending to show a defence, that they must convict, unless they are satisfied of the truth of the defence. Such a charge throws the burden of proof upon the prisoner and subjects him to a conviction, though the evidence on his part may have created a reasonable doubt in the minds of the jury as to his guilt. Instead of leaving it to them to determine upon the whole evidence whether his guilt is established beyond a reasonable doubt, it constrains them to convict, unless they are fully satisfied that he has proved his innocence.
The charge in this case was in my judgment calculated to convey to the jury that erroneous rule for their guidance. They were virtually instructed that, the killing being conceded, they should convict of the crime of murder, unless the proofs adduced by the prisoner satisfied them that the circumstances under which the killing took place were such as to justify his act, or reduce the grade of his offence. Though upon the whole evidence they might be in doubt as to what the circumstances really were, the killing being conceded, this charge indicated that it was their duty to convict.
The language of the charge to which exception was taken is as follows: "The fact of killing in this case being substantially conceded, it becomes the duty of the prisoner here to satisfyyou that it was not murder, which the law would imply from the fact of the killing under the circumstances, in the absence of explanation that it was manslaughter in the third degree or justifiable homicide; because, as I have said, the fact of killing being conceded, and the law implying malice from the circumstances of the case, the prosecution's case is fully and entirely made out; and therefore you can have no reasonabledoubt as to that, unless the prisoner shall give evidencesufficient to satisfy you that it was justifiable under the circumstances of the case."
Argument seems unnecessary to demonstrate the error of *Page 183 this charge. It was a necessary part of the case of the prosecution to establish that the homicide was perpetrated with a premeditated design to effect the death of the person killed; yet the court, assuming to determine what the circumstances of the killing were, solemnly instructed the jury that the fact of killing being conceded, the law implied malice from the circumstances of the case, and that the case on the part of the prosecution was fully made out, and that the jury could have noreasonable doubt as to that unless the evidence on the part of the prisoner satisfied them that the killing was justifiable. The Supreme Court, in sustaining the judgment of the Court of Oyer and Terminer, do not attempt to defend the legality of this charge. On the contrary, the very able opinion of FANCHER, J., conclusively demonstrates upon authority that it is at variance with numerous adjudications and the settled law upon the subject. But it is claimed that the error may be overlooked on the ground that the prisoner was not prejudiced thereby, and cases are cited which decide that where it appears to the appellate court that error has been committed, yet that the error could not possibly have prejudiced the party complaining, it will not be made a ground of reversal either in civil or criminal cases.
In all these cases it will be found that the court has been exceedingly careful so to limit this rule as to render it applicable only where by no possibility could the error have produced injury, and even this was an innovation upon ancient rules, under which it was a matter of course to reverse when error appeared, without inquiring into its materiality.
That so vital an error as one which should or might mislead the jury on the question as to the party on whom the burden of proof rested, could come within the category of those which could not possibly prejudice the determination of the case, is utterly inadmissible. Nothing short of an unequivocal retraction of that portion of the charge could have removed from the minds of the jury the impression which it was calculated to produce. It was the concluding portion of the charge, and afforded the jury a simple rule for their guidance in their *Page 184 consultation. The fact of killing was, as they were told,conceded. They were further told that it was the duty of the prisoner to satisfy them that this killing was not murder. That the law implying malice from the circumstances of the case, the prosecution's case was fully and entirely made out, and therefore they could have no reasonable doubt as to that, unless the evidence on the part of the prisoner satisfied them that it was justifiable under the circumstances. Their inquiry was thus reduced to whether they were satisfied of the truth of the allegations on the part of the defence. If they were in doubt whether these were true or not, they were bound to convict.
It seems to have struck the mind of the learned judge at the time, that the rule thus laid down by him encroached somewhat upon the principle that the prisoner was entitled to the benefit of a reasonable doubt, and he immediately followed by stating that, ordinarily, juries should give the prisoner the benefit of any doubt that may exist in the case, and that he did not know that even this was an exception to that rule, and he proceeded to instruct them generally upon the subject of reasonable doubts.
It is impossible that we should know whether these instructions effectually eradicated from the minds of the jury the erroneous impression calculated to be produced by the previous portion of the charge, and we cannot, therefore, pronounce, as a conclusion of law, that it had no influence upon the verdict.
Whether under a proper charge the jury would have come to the same result it is not within our province to decide. The determination of the facts rests wholly with the jury. It is for the court to instruct them as to the law, and these instructions they are bound to follow. If materially erroneous it is the imperative duty of the appellate tribunal to grant a new trial.
All concur.
CHURCH, Ch. J., and ALLEN, J., expressing no opinion as to the constitutionality of the act, chapter 475, Laws of 1872.
Judgment reversed, and new trial ordered. *Page 185