dissenting:
That the commonwealth is bound to prove every element of the crime charged, by evidence which leaves no reasonable doubt, and that the jury should be clearly and positively so instructed, is not to be questioned. But I do not understand it to be the law that the judge is bound to repeat and reiterate this caution at every point in his charge where he takes up a different aspect of the case or a different line of the evidence. On this point as on every other, the charge should be regarded as a whole and its correctness estimated by its general effect on the jury. “ A charge must be considered and interpreted as a whole. If so interpreted, it is a correct exposition of the law, and an adequate and impartial presentation of the case, it will be sustained, although portions of it, torn from their proper connection, may suggest error:” Commonwealth v. Johnson, 133 Pa. 293 (305).
In the present case the killing was not denied, the only defense being that the discharge of the pistol was accidental. On the previous trial the jury had unfortunately been instructed that the defense must be established beyond a reasonable doubt. This was held to have put an undue burden on the prisoner: Com. v. Deitrick, 218 Pa. 36. At the present trial the learned judge, clearly having in mind this undue burden, charged the jury,' “Whether or not the killing of the deceased was accidental, therefore, becomes an important question for you to determine from all the credible — from the preponderance of the evidence in the case. If you should reach the conclusion from the evidence, from the preponderance of the evidence, that Jones, the deceased, came to his death through the accidental discharge of the pistol, then it would be your duty to acquit the defendant. If, on the other hand, however, you should reach the conclusion from the preponderance of the credible evidence in the cause, that the prisoner unlawfully and maliciously shot and killed Jones, the deceased, then we will say to you it would be your duty to convict him.”
I am of opinion that this was a correct statement of the law. The prisoner had been flourishing an empty revolver and boasting of his skill as a marksman. On being taunted by the deceased as to his markmanship he went into another *20room, got a loaded revolver and almost immediately leveled it at the deceased and fired. The legal presumption that a man intends the natural and usual consequences of his act raises a clear inference that this was murder, and if no evidence to the contrary had been given, the jury would have been bound to so find it. But the prisoner undertook to show that it was an accident and was. bound to satisfy the jury of that fact by a preponderance of the evidence. It has been so held in regard to self-defense, Alexander v. Com., 105 Pa. 1 (10), and the same principle should apply to reduce what is presumptively a murder to an accidental killing. It is true that when this case was here before (218 Pa. 36) some authorities were referred to which hold that accident is not an affirmative defense which puts the burden of proof on the prisoner like self-defense, and while I must concede that the tendency of the language used is to credit those authorities, yet the decision was put upon another and entirely sound ground. The rule contended for is illogical, wrong in principle and in true policy, and ought not to be considered adopted in Pennsylvania without more direct and cogent reasons than have yet been presented.
But if I am wrong in this, and conceding for the present that the part of the charge quoted was erroneous, yet it was abundantly cured by the context.
' After defining murder and the statutory distinction of degrees the judge charged that “ all murder not of the first, is necessarily of the second degree. Murder in the second degree includes all unlawful and malicious killing, evincing depravity of heart, but where no intention to kill has been established by the evidence to the satisfaction of the jury, and beyond a reasonable doubt.”
He then considered manslaughter and the bearing of intoxication, etc., using this emphatic language: “ In every criminal trial there are two rights which belong to the accused and which attach to him at every stage of it, and in every view of it. These are the presumption of innocence, and the benefit of the reasonable doubt. The presumption of innocence must be overcome by proof, and by proof which will leave in the minds of the jury no reasonable doubt of guilt. In trials for murder, as in all others of a criminal nature, the defendant is *21entitled to the benefit of what is known as a reasonable doubt, that is, the feeling of uncertainty as to the guilt of the accused, which remains in the mind of an honest man after a full, fair and conscientious consideration of all the evidence.”
And, finally, after reviewing the evidence and defining specifically the different verdicts which the jury might find, he closed his charge by repeating the caution, “ As before intimated, before you convict the prisoner you should be satisfied of his guilt beyond a reasonable doubt. If there is a reasonable doubt in your minds of his guilt, then he should be acquitted.” The jury retired for deliberation with these words in their ears, and it does not appear to me possible that the dullest mind could have failed to appreciate the prisoner’s rights on this subject.
I agree that in the choice of evils incident to the imperfection of human tribunals it is better that a guilty man should escape than that an innocent one should be convicted, but I do not believe in magnifying trivial breaches of technical rules, which could not possibly have had any effect on the real merits of the case, into errors which call for a reversal of the judgment.
By the first jury’s want of nerve to do its duty a murderer whom any honest and courageous jury would have convicted in the first degree without leaving the box, has escaped the gallows certainly, and now is to be given a third chance to go free altogether. I do not believe that the law requires any such failure of justice.