It is first contended that the court erred in overruling the defendant's motion for a continuance on account of the absence of one W.B. Baker, who, it is contended, was a material witness on the part of the defendant, in that the witness would testify that he was just over the fence from the scene of the difficulty at the time it occurred; that he saw Eaton come up to the defendant Brown's house, and look into the defendant's house through the window; that deceased turned with his knife in his hand and ran around to the south side of the house, and that after deceased had gone six or eight steps he was shot; that a few moments later deceased came back in sight of the window and went down to his wagon, which was one hundred yards from the house of the defendant; that then the defendant came around to the north side of the house.
The record shows that the said Baker had been duly served with a subpœna, and that he was sick with pneumonia at the time of the trial. The defendant asked that the case be continued for the term, or until a later date in that term, so that the presence of this witness could be obtained in his behalf.
It appears from the affidavit in support of the motion for continuance that due diligence was used, in that the witness had been subpœnaed, and that it was through no *Page 71 fault or connivance of the defendant that he was not present at the time the case was called for trial; but on the other hand the affidavit is not supported by the certificate of any physician who was attending the sick witness as to his then physical condition. There is no showing that he would be able to attend court at a later day in the term, or that his condition was such that he would likely recover, to be able to attend at the next term of court. Defendant did not ask that the witness be attached.
The facts set out in the affidavit that the witness would testify to as occurring within sight of the witness are practically uncontroverted, with the exception that the witness would testify that he saw a knife in the hands of the deceased. This, of course, was a material part of the testimony of the sick witness on behalf of the defendant, and would have tended strongly to corroborate defendant's testimony. But this court has repeatedly held that applications for a continuance on account of absent witnesses are addressed to the discretion of the trial court, and that the ruling of the trial court on such a matter will not be disturbed on appeal unless there appears to have been a manifest abuse of such discretion. In this case we cannot hold that the trial court abused its discretion in overruling this application for a continuance, in the absence of any showing whatsoever that such witness would likely have been able to attend court at a later day in said term or at the next term thereof, or by a reputable physician that his condition of health was such as to prevent his attendance at the trial. Morehead v.State, 12 Okla. Cr. 62, 151 P. 1183; Stephens v. State,12 Okla. Cr. 90, 152 P. 138; Petty v. State, 11 Okla. Cr. 438,147 P. 782.
It is our opinion, therefore, that no prejudicial error is shown in this respect. *Page 72
It is also contended that certain remarks of the trial judge, both during the hearing of the testimony in the presence of the jury and later to the jury after the jury had reported an inability to agree upon a verdict, were seriously prejudicial to the substantial rights of the defendant.
In view of the disposition that is made of this appeal, it is unnecessary to pass upon these contentions further than to say that some of the remarks were unnecessary, even if not prejudicial, and it would have been much better had the court refrained from indulging in them. On the whole, however, we can see nothing in the action and conduct of the court that would authorize this court to reverse this judgment on this ground.
Among other assignments of error relied upon for a reversal of this judgment is the giving, over the objection and exception of the defendant, of certain instructions by the trial court. Instruction No. 21 is as follows:
"You are further instructed that the defendant in this case has taken the witness stand in his own behalf and has admitted that he shot and killed the deceased, J.B. Eaton, but claims as a defense that the shooting and killing was done in self-defense; and you are charged that the law of self-defense is, that if a person is at a place where he has a right to be and is assaulted in such a manner as to induce in him a reasonable belief that he is in danger of losing his life or receiving some great personal injury, he is justified in defending himself and using such force as it appears to him, under the circumstances, to be necessary to repel the attack, even to the taking of the life of his assailant; and in this case, if you believe from the evidence that the deceased went to the home of the defendant with an open knife, and by acts and demonstrations which caused the defendant to believe, and he did in fact believe, that he himself was in danger of death or receiving great *Page 73 bodily harm at the hands of the deceased, and he shot the deceased in order to repel the attack and to keep the deceased from killing him, or inflicting upon his body great personal injury, then, in that event, the defendant would be justifiable in shooting the deceased, and you should find him not guilty."
This instruction is erroneous, in that it places too great a burden upon the defendant to establish the defense relied upon, to wit, self-defense.
Section 5902, Rev. Laws 1910, provides:
"Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable."
Under the provisions of the foregoing section, it is incumbent upon the defendant, where the killing is admitted (as in this case), to prove circumstances that either mitigate, justify, or excuse it, unless, of course, the proof by the state only tends to show that the crime was manslaughter or that defendant was justifiable or excusable.
If the state's case only makes the crime manslaughter, then mitigating circumstances by the defendant are unnecessary, but he may then accept the burden of justifying or excusing the killing; but if the state's case proves murder, then the burden shifts to the defendant to either mitigate (that is, reduce to a lower degree of felonious homicide), justify, or excuse.
In the instant case, the proof on the part of the state would sustain a conviction of murder. The defendant made no attempt to mitigate the killing, but his defense *Page 74 alone was justifiable homicide on the ground of self-defense. He then accepted the burden placed upon him by section 5902, supra. But the inquiry arises: How far does that burden extend? Is the defendant required to establish this affirmative defense beyond a reasonable doubt, or by the preponderance of the evidence? Evidently not, else the doctrine of reasonable doubt would become a nullity. He is only required to introduce such evidence as will raise in the minds of the jury a belief that he acted in his own necessary, or apparently necessary, defense, or will create a reasonable doubt thereof. In either case he should be acquitted.
The foregoing instruction No. 21 is the only instruction given by the court which attempts to apply the law of self-defense to the facts in the case. As far as it goes, it contains a correct statement of the law; but the court should have added, "or if the jury entertain a reasonable doubt of whether or not the defendant acted in his necessary, or apparently necessary, self-defense as herein instructed, they should acquit." With such an addendum, the instruction would have been impervious to attack. But it is contended by the state that the general instruction given that "the defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt" cured any defect or omission in instruction No. 21; that the instructions must be considered as a whole, and when so considered, if they correctly embody the law of the case, no error prejudicial to the defendant has occurred. That doctrine has been approved by this court in numerous cases, and it is not our policy to depart therefrom as a general principle. But "self-defense" is an affirmative defense; the statute places a peculiar burden upon a defendant in a homicide case where he attempts to justify a killing, and *Page 75 where the court by a separate instruction attempts to state the law of that defense as applied to the particular facts of the case, the burden required of the defendant should be properly safeguarded in the instruction itself. The jury is not required to believe such defense before an acquittal may follow; it is sufficient if such defense of itself raises a reasonable doubt of guilt, and in addition the jury may acquit if on the whole case a reasonable doubt of guilt exists. Such a doubt may arise from a consideration of all the evidence, and not necessarily from the defense interposed.
When instruction No. 21, supra, is considered in connection with instruction No. 19, which is as follows:
"The important questions for the jury to determine are: Was the defendant at the time he fired the fatal shot in present danger of death or serious bodily harm? Were the circumstances such as to afford him reasonable grounds for believing himself to be in such danger? Was the shooting done in good faith to protect himself from such danger or threatened danger?
"If these questions can be answered in the affirmative, the shooting would be justifiable. The defendant, under the law, would have the right to defend himself from the appearance of danger the same and to the same extent as he would were the danger real; and in passing upon the question as to the defendant's right to act, the matter must be viewed from the standpoint of the defendant"
— how can it be said that too great a burden was not placed upon the accused to establish "self-defense"? Through both instructions the court leads the jury to believe that the elements of self-defense must be "affirmatively" proven. The jury is told that the answers to the questions contained in instruction No. 19 must be in the affirmative before the defendant will be entitled to an acquittal. Such is not the law. If the defendant has raised *Page 76 a reasonable doubt of whether or not he acted in self-defense, the jury must not convict; or, as heretofore stated, if on the whole case a reasonable doubt of guilt exists, the jury must acquit.
Instruction No. 14, also given over the objection and exception of the defendant, is erroneous, in that it places the burden upon the defendant to "use no more force than necessary to protect his own life or from receiving serious bodily harm at the hands of the deceased."
Said instruction is as follows:
"You are further instructed that the defendant has interposed as a defense to the crime charged in the information what is known in law as self-defense; and in this connection you are instructed that to avail one of the right of self-defense, he must not be the aggressor, and if the defendant was in a place where he had a right to be, he may stand his ground if attacked by the deceased, and use all the force that reasonably appeared to him necessary to repel an attack or threatened attack, if any, by the deceased in order to protect his own life, or to keep from having inflicted upon his person serious bodily injury, and, if necessary, slay the deceased, provided he uses no more force than necessary to protect his own life, or from receiving serious bodily harm at the hands of the deceased."
The defendant is not required to measure with exactness the force necessary to repel a felonious assault. He may be acquitted if in the exercise of reasonable judgment there was an apparent necessity for using the amount of force employed by him. If the defendant exercises reasonable judgment and uses only such force as is apparently necessary to avert such danger (viewing the circumstances from defendant's standpoint at the time of the killing), he has complied with the requirements of the law. *Page 77
The latter part of this instruction clearly robbed the previous statement "that defendant * * * may use all the force that reasonably appears to him necessary to repel the attack of deceased" of the meaning and effect it would have otherwise had, and tended to deprive the defendant of the right to exercise reasonable judgment under all the circumstances as they appeared to him at the time. Contradictory statements in the court's instructions, which are confusing and irreconcilable and one of which is erroneous, cannot be considered other than prejudicial. The appellate court cannot know whether the jury accepted and was bound by the correct statement in the instruction, or acted upon the incorrect statement.
We believe these instructions in the forms given were prejudicial to the substantial rights of this defendant, and tended to place too great a burden upon him under the law. The case is closely contested on the facts. The state's case would sustain a conviction of murder; but, on the other hand, if the defendant's theory is correct, he was entitled to an acquittal.
In view of the fact that the jury found the defendant guilty of manslaughter, can this court, under the circumstances of this case, say that the jury was not confused and misled by the contradictory and erroneous statements contained in the instructions? We believe not. It is apparent to our minds that the verdict reached must have been the result of confusion and misapprehension on the part of the jury as to the law of self-defense, and for this reason the judgment should be reversed and the cause remanded for a new trial.
DOYLE, P.J., and ARMSTRONG, J., concur. *Page 78