The appellant, George Taylor, was tried and convicted of the murder of Samuel Kershaw. The conviction was of murder in the second degree, with eighteen years confinement in the penitentiary as punishment. The court below charged the jury as follows:
“As a general rule the law implies malice from the fact of killing, and all the circumstances of necessity, accident, or infirmity which excuse, justify or extenuate the act, are to be proved by the accused, unless they arise out of the evidence produced by him.”
This charge is radically wrong. The burden is not upon the defendant to prove “all the circumstances of necessity, accident or infirmity which excuse, justify or extenuate the act.” The charge given was intended to enlighten the jury upon the subject of implied malice, or murder of the second degree. What had the infirmity (if any) of defendant to do with the subject? Nothing whatever. If the evidence shows that defendant with a deadly weapon killed the deceased, and the law would presume malice, and if the evidence discloses nothing further, it would be the duty of the jury to convict of murder of the second degree. It would be the duty of the judge in such a case to instruct the jury to the effect that if they believed from the *190evidence that the defendant killed the deceased with a deadly weapon, the law would presume malice, and the killing would be murder of the second degree.
The supposed case would be very rare indeed, for it is highly improbable that no other facts would be shown touching the killing. In the case in hand there were other facts bearing directly upon the homicide. This being the case, the jury should be left to pass upon, not' a divided case, but the whole case. And in such a case it is not proper for the court to cast the burden upon the defendant. Indeed, this being a matter bearing directly upon the guilt of defendant, it is error for the court to shift the burden upon the defendant, whether there be other attending facts or not. See this subject, as the writer thinks, exhaustively discussed in Priest Jones v. The State, decided at this term of the court, ante, page 1.
The latter portion of this charge is, if possible, at a greater distance from the law than that last noticed. It is as follows: “ Unless they arise out of the evidence produced by him.” Suppose facts or circumstances arise out of the evidence adduced by the State tend clearly to justify or excuse the defendant, the jury are charged in effect that these facts or circumstances thus produced will not suffice—that they, to be relied upon by defendant, must arise out of the evidence produced by the defendant. To state the proposition is all that is required to show its fallacy. Viewed in the light of the principles of criminal law, it is beyond discussion.
The court also charged the jury that: “If you believe from the evidence and beyond a reasonable doubt that defendant was engaged in an effort, with his express malice aforethought, to kill one Johnson, and that, in order to prevent him from taking the life of said Johnson, the said Kershaw assaulted the defendant, and the defendant, for the purpose of protecting himself from such assault, shot and killed the said Kershaw, then such killing under such circumstances would not be justifiable, but would be murder in the second degree.”
Does the evidence in this case furnish a basis for this charge? We think not. Johnson had left the house, and was not in view of defendant when Kershaw was shot. It may be true that defendant shot at Johnson while Johnson was in the house with deceased, and it may be also true that defendant intended to kill Johnson; but there is no evidence tending to prove that at the time defendant shot Kershaw he, defendant, was making *191any attempt to kill Johnson. To justify this charge it would not be necessary for defendant to have been in the very act of shooting Johnson; any demonstration showing an immediate intention to kill Johnson would have been sufficient. The demonstration at the time is wanting in this case. That defendant had shot at Johnson and intended to kill him would not suffice; his conduct must have shown an immediate intention to kill Johnson.
For the errors in the charge, as above indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered November 15, 1882.