delivered the Opinion of the Court:
The Defendant was. indicted for murder, and convicted of manslaughter. He appeals to this Court, alleging,several errors in the District Court.
*346Upon the trial the statements of the deceased, made on the evening prior to his death, -were allowed to go to the jury as dying declarations, the Defendant objecting to their admission.
The deceased seemed to have a dread of approaching dissolution ; he did not want to talk about death. He declared that “ this is the last time I shall ever stand' on my feet.”- “ I got a bad one,” meaning the shot. “'Til never get over it.” Such language would strongly indicate that he believed and realized that the hand of death was upon him. It was upon him, and he died in a few hours thereafter.
Statements of the deceased respecting the cause of his death, made under such circumstances, were, we think, properly considered as dying declarations.
But such declarations had been reduced to writing and signed by the deceased. The writing was the best evidence of these, and it ought to have been produced or its absence accounted for. Such was not done. The introduction of the verbal evidence, therefore, was error. 1st Greenleaf’s Ev. Sec. 161, 12th edition.
The Court instructed the jury that the killing, being clearly proved, the act of killing implies malice, and that in such a case the burden of proof is shifted to 'the Defendant, who -must then show that'the act was done in self-defense, and that further in such a' case the “rule of a reasonable doubt” does not apply. '
The accepted doctrine now is that the homicide of itself does not imply malice. The circumstances attending the homicide are to be considered-by the jury in as-certaing whether there was malice. Malice may be inferred from circumstances. Yet it .must be proven beyond .a -reasonable, doubt, or else the jury should acquit. In no criminal case is the burden of proof ever shifted from the. prosecution to the defense. It rests upon the prosecution throughout the entire trial, and the rule of-a reasonable doubt 'applies in every such case. Malice is part of -the offense -charged, and the-Defendant has-the’ right to have-thé-whole crime charged,'proved, and that,*347too, beyond a reasonable doubt. Instructions which do not recognize such accepted doctrine and rule, are erroneous and cannot be upheld.
We are inclined to think that the character of the deceased for violence was improperly excluded. The deceased had threatened the life of the Defendant, and he had the right to the testimony as to the deceaséd’s violent character, if for no other reason, to show that the latter was likely to carry out his threats.
The action of the Court below having been erroneous in the respects pointed out, the judgment is reversed and the cause remanded for a new trial, in accordance with the'principles herein'recognized.
Schaeffer, Q. J., and Emerson, J., concurred.