dissenting:
We dissent from the opinion of the court. The evidence preserved in this record, in our opinion, shows, beyond all doubt, that the defendant wilfully took the life of the deceased. The defence that she was killed by accident is unsupported by anything save the defendant’s own statement, and it is utterly inconsistent with facts established by uncontroverted evidence.
It was said in Kennedy v. The People, (which was a capital case,) 40 Ill. 497: “This court has often held, where a series of instructions embrace the law of the case when taken and considered together, though one of them may be erroneous, still, for such error a judgment will not be reversed, provided it shall appear from the whole record that substantial justice has been done, and no prejudice has resulted by reason of such erroneous instruction, and that the law of the case has been fully given to the jury.”
The same doctrine is recognized in Leach v. The People, 53 Ill. 318, Smith v. The People, 74 id. 144, and Wilson v. The People, 94 id. 327.
This principle, we had thought, was firmly established as'a part of the criminal law of this State.
The objection to the People’s third instruction, that it excludes from the consideration of the jury proof on the part of the prosecution, of circumstances of mitigation, or that justified or excused the homicide, is not tenable, for the reason that there is not the slightest foundation for pretending that there was any such evidence before the jury. Surely, it was never held to be error to not submit that for the consideration of the jury which has no evidence upon which to rest.
If the People’s third instruction stood unqualified and alone, we concede that the language that “ it is incumbent on the defendant to satisfactorily establish his defence,” would render it erroneous. But’it does not stand thus, and, taking it as it does stand, it is, in our opinion, impossible that it could have misled the jury. If it stood alone, the language indicated would be objectionable, because it would leave the jury to determine for themselves how much evidence it requires to “ satisfactorily ” establish the defence; but when considered in connection with the other instructions, they supplement what is thus omitted. The People’s first, second and third instructions indirectly assert, and their fourth, fifth, sixth and seventh instructions by necessary implication concede, that the defendant can not be found guilty unless the jury shall be satisfied, from the evidence, of his guilt, beyond a reasonable doubt. This is directly asserted in defendant’s second, third and fourth instructions, and there is nothing in any instruction even tending to contradict it. The defendant’s third instruction covers, and puts in the most favorable light he could ask, the entire ground of his defence. It says, “ that if, after considering all the evidence, the jury have a reasonable doubt that the defendant did with malice aforethought, but did by accident,discharge the gun, whereby the deceased was killed, then the jury should find the defendant not guilty.”
So, it would seem clear that a jury, giving heed to the instructions, could but regard that the defence was sufficiently made out to authorize a verdict of not guilty when it raised a reasonable doubt of guilt.
In no view, however, do we conceive that injustice has been done the defendant. His guilt is clear to a moral certainty.
He has had the law in his favor fully given to the jury. His conviction has not been the result of passion, prejudice or misapprehension of the facts or the law, and it ought to stand.