The appellant, Josiah Anderson, was indicted and tried in the court below on the charge of murder. He was eonvieted of manslaughter, and sentenced to serve a term in the territorial prison. From the judgment of conviction, and from the order of the court denying his motion for a new trial appellant has appealed.
Among other instructions, the trial court gave the following: “In every crime or public offense, there must exist a union or joint operation of act and intent, or criminal negligence; but, where the act committed by the accused is of itself an unlawful act, the law, in the first instance, presumes the criminal intent, and the onus or burden of proof falls upon the defendant to show the absence of criminal intent. In this ease, if you find from the evidence that the defendant fired the fatal shot, then the burden of proving the circumstances of mitigation, or that justify or excuse the homicide, devolves upon the defendant, unless proof upon the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justified or excusable. It is for the prosecution, gentlemen, to make out their case beyond a reasonble doubt. It is for the defendant to make out the circumstances of justification — that is, the claim that he makes of self-defense — but the defendant does not have to make that out beyond a reasonable doubt, as must the prosecution to establish the facts of the killing, but it is only necessary for the defendant to establish that in your mind by a preponderance of the evidence. ’ ’ This instruction is assigned as error, and a consideration of Its correctness will form the substance of this opinion.
Section 933 of the Penal Code reads: “Upon a trial for murder, the commission of the homicide by the defendant being proved, 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.” Said section first appeared in the statutes of the territory in the revision of 1887, and is an exact rescript of section 1105 of the Penal Code of California. This being so, if the supreme court of that state had given a settled construction to this statute prior to its adoption by the legislature of this territory, this settled eon*53struction would he binding upon us. We find, however, that the reported cases show a decided conflict of view upon the question as to whether the statute is to be construed as requiring a defendant, under charge of murder, to prove circumstances of mitigation or excuse by a preponderance of the evidence. In the case of People v. Smith, 59 Cal. 601, the supreme court held the following instruction to be erroneous: “Upon a trial for murder, the commission of the homicide by the defendant being proved, 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, and this he may show by a preponderance of the evidence, merely. By a ‘preponderance of the evidence’ is meant that degree of proof which induces the mind of a reasonable man to believe one side of an issue in preference to the other.” In the case of People v. Flanagan, 60 Cal. 3, 44 Am. Rep. 52, the court held that an instruction which stated that, to justify a homicide upon the ground of necessary defense of one’s property, it must be made to appear by a preponderance of the testimony that such justification existed, was error. In the opinion the court quoted with approval from the case of Stokes v. People, 53 N. Y. 181, 13 Am. Rep. 492, the following language: “It is a cardinal rule in criminal prosecutions that the burden of proof rests upon the prosecutor, and that if, on the whole evidence, including that of the defense as well as of the prosecution, the jury entertain a reasonable .doubt of the guilt of the accused, he is entitled to the benefit 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 defense, that they must convict unless they are satisfied of the truth of the defense. 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.” In the case of People v. Hong Ah Duck, 61 Cal. 388, the same court construed *54section 1105 of the Penal Code as requiring the proof of circumstances of mitigation or excuse by a preponderance of the evidence, when the case, as made out by the prosecution, does not tend to show circumstances of mitigation or excuse. In the opinion in this ease no mention is made of the cases of People v. Flanagan and People v. Smith. In the case of People v. Raten, 63 Cal. 422, the court followed with approval the case of People v. Hong Ah Duck, without comment. From these conflicting decisions, we cannot say that section 933 had been given a settled construction by the supreme court of California prior to its adoption. The case of People v. Knapp, 71 Cal. 1, 11 Pac. 793, cited in the brief of the respondent, was not published until after the Penal Code of 1887 had been enacted, and hence is not to be regarded in this connection. In People v. Bushton, 80 Cal. 160, 22 Pac. 127, 549, in a well-considered opinion, the supreme court of California, following People v. Flanagan and People v. Smith, held that that court, in People v. Hong Ah Duck, had given an erroneous construction to said section 1105 of the Penal Code, and that a defendant, under the statute, is only required to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt, and that it makes no difference whether this reasonable doubt be the result of evidence on the part of the prosecution, tending to show circumstances of mitigation or excuse, or arises from evidence coming from the defendant. The doctrine announced in People v. Bushton has been since followed, and appears to be the settled law of the state. We are in full accord with this view of the statute.
An examination shows that the statute does not mention the quantum of proof required of the defendant where the burden is cast upon him of showing circumstances of mitigation or excuse. It is based upon the common-law doctrine that one is presumed to intend the reasonable and probable consequences of his act, and that, where the act is unlawful, the criminal intent is inferred. It must, however, be read in the light of that other presumption which lies at the very foundation of criminal law — that of innocence, which attaches to a defendant as a sufficient shield until his guilt is established to the satisfaction of the jury, and beyond any reasonable doubt. As expressed by Mr. *55Justice White in Coffin v. United States, 156 U. S. 459, 15 Sup. Ct. 405, 39 L. Ed. 481: “This presumption is an instrument of proof created by the law in favor of the accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. This presumption, on the one hand, supplemented by any other evidence he may adduce, and the evidence against him, on the other, constitute the elements from which the legal conclusion of his guilt or innocence is to be drawn.”
Again, is it a reasonable construction to give to the statute that a defendant is entitled to an acquittal where the evidence on the part of the prosecution raises a reasonable doubt whether he was justifiable or excusable in the commission of the homicide, but that he is. not entitled to an acquittal where he seeks to justify or excuse the homicide, and no proof of justification or excuse is put in by the prosecution, unless he establishes circumstances of mitigation or excuse by a preponderance of the proof ? Why should it be sufficient that a reasonable doubt exists in the one case, and insufficient in the other? What can it matter to the law whence or by whom or by what evidence the reasonable doubt is raised? Why should the law be regardful of the source of the reasonable doubt — whether it originate in the evidence of the prosecution or in the evidence of the defense — provided it exists in the minds of the jury? It seems to us more reasonable to hold that the statute means that, where a prima facie case is made out, the defense must prove circumstances of mitigation or excuse sufficient to raise a reasonable doubt in the minds of the jury. As we have seen, this is now the rule applied by the supreme court of the state of California. The same rule was earlier applied by the supreme court of Nevada under a similar statute. State v. McCluer, 5 Nev. 132. In a recent case the supreme court of Montana, departing from its former rulings, has given a like construction to a similar statute. In fact, it would be easy to show that the trend of modern decisions is in favor of this construction.
In the case of Davis v. United States, 160 U. S. 469, 16 Sup. Ct. 353, 40 L. Ed. 499, the supreme court of the United States uses this language: “Strictly speaking, the burden *56of proof, as those words are understood in criminal law, is never upon-the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defense is insanity, the benefit, in the way of proof, of the presumption in favor of sanity, the vital question from the time the plea of not guilty is entered until the return of the verdict is whether, upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt.” The principle has been admirably stated by the supreme court of Alabama in these lyords: “In a civil action, if the plaintiff established a prim a facie ease, the burden of proof is thereby shifted, and he is entitled to recover unless his prima facie ease is destroyed by proof from defendant; but in a criminal case the state is required to prove, beyond all reasonable doubt, the facts which constitute the offense. The establishment of a prima facie case only does not take away the presumption of the defendant’s innocence.” Ogletree v. State, 28 Ala. 693.
Upon principle, to hold that a defendant, in order to justify a homicide with which he is charged, upon the grounds; of self-defense, must prove such justification by a preponderance of the proof in any ease, would be to relieve the prosecution from proving all facts and circumstances constituting the offense beyond a reasonable doubt. Malice is as much an essential element in the crime of homicide as is the killing. Both must be proven to the satisfaction of the jury, and beyond all reasonable doubt. As was said by Mr. Justice Harlan in the Davis case, “No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.”
As we have said, to hold that the jury, while entertaining a reasonable doubt whether or not the defendant acted in self-defense, might yet find him guilty because they are-unable to find, by a preponderance of the proof, that he so acted, is, in effect, to deprive the defendant of the benefit *57of a reasonable doubt — one of the essential facts pnt in issue under Ms plea of not guilty — and to nullify the presumption of innocence which attaches to him at every stage of the case until a verdict of. guilty is returned by the jury. The instruction complained of is erroneous in the particular that it charged the jury that it was necessary for the defendant to establish his claim of self-defense “by a preponderance of the evidence.” We hold that, under section 933, it is only incumbent upon the defendant to produce such proof as will raise a reasonable doubt in the minds of the jury whether or not the tilling was justifiable or excusable.
Numerous other assignments of error are made by the appellant in his brief. We find, however, no reversible error in the record, apart from the giving of the erroneous instruction above stated.
Judgment is reversed, and the cause remanded for a new trial.
DAVIS, J., and DOAN, J., concur.