State v. Reilly

Fisk, J.

(dissenting). Upon further consideration of the questions involved in this case, I feel constrained to depart from the views which I formerly entertained and to vote for a reversal. I am unwilling to concur in the conclusion announced by the majority, that the errors in giving the instructions complained of were nonprejudicial, and this is especially true as to the last instruction to which reference is made in the foregoing opinion. The giving of such instruction having concededly constituted error, it is presumed to have been prejudicial unless the contrary is made to appear, the burden of showing which rests upon the respondent, and as I view it there is no way of showing non-prejudice. We cannot say that the jury did not get the impression from such instruction, that the burden was cast upon the defendant of proving justification for his acts, by showing that it was in fact necessary to bring about a miscarriage of the deceased in order to save her life; or that he was actuated by proper motives in doing what he did, and that he had no intention of doing an unlawful act. It is, to my mind, quite natural and probable that the jury should have thus con*385strued the instruction, for they could not well have given it any other meaning. It, of course, needs no argument to show that if thus construed by the jury, such instruction was very prejudicial, as it would, in effect, cast upon defendant the burden of proving his innocence.