delivered the opinion of the court:
It is first claimed in the argument that the coux't erred in giving the following instruction:
“If the jury believe, from the evidence, beyond a reasonable doubt, that the killing of Winfield Scott Swartz, alias Winfield Scott DeNune, has been proven as charged beyond a reasonable doubt, then any defense which the defendant may rely upon in justification or in excuse of the act, or to reduce the killing to the grade of manslaughter, it is incumbent on the defendant satisfactorily to establish such defense, unless the proof arise out of the evidence produced by the prosecution.”
The objection to the instruction is, that it requires too high a degree of proof on the part of the defendant. In Merrick v. Gary, 83 Ill. 85, it was held not to be necessary to a recovery that the evidence shall produce a belief in the minds of the jury so strong as to be satisfactory; that it is sufficient if they believe from the evidence, though it may not be entirely satisfactory. In Graves v. Colwell, 90 Ill. 612, it was held error to instruct the jury to find for the plaintiff unless the defendant has overcome the presumption by proof, to the satisfaction of the jury; that such an instruction is equivalent to requiring proof beyond a reasonable doubt, from the defendant. In Alexander v. People, 96 Ill. 96, it was held that when the killing is proved on a charge of murder, and the defendant seeks to show he was justified or excused, it is erroneous to instruct the jury that it is incumbent on him to establish satisfactorily such defense. The same doctrine was declared in Wacaser v. People, 134 Ill. 442, and Smith v. People, 142 id. 117.
Under the rule declared in the cases cited it is apparent that the instruction imposed on the defendant a greater degree of proof than the law imposes. Section 155 of the Criminal Code provides: “The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide.” This section of the Criminal Code in plain terms declares that the burden of proof is cast upon the defendant, but there is nothing in the statute which requires a defendant, when he assumes the burden of proof, to satisfactorily establish his defense. Here the defendant undertook"to show that he was justified in committing the homicide. He claimed that the deceased was armed with a gun, concealed in his pocket, and that he was in danger of being assaulted by the deceased in such a way that he might suffer bodily harm or lose his life unless he defended himself as he did. Whether the evidence introduced on the trial was sufficient to justify the claim made by the defendant is a question upon which we express no opinion. That was a question for the jury. But the defendant had the right to have that question fairly submitted to the jury. But that was not done. Prom the instruction the jury might well understand, from the use of the words “satisfactorily to establish such defense,” that the defendant was required to go beyond the proof ordinarily required in a case of this character. In a case of this kind circumstances of mitigation, or that justify or excuse the homicide, may be proven in the same way that any other fact may be established.
In Alexander v. People, supra, where an instruction was involved containing the same language as in the instruction in this case, in passing upon the instruction it was said (p. 102): “The killing was proved, but the accused sought to show he was justified or excused in' committing the homicide, and this instruction told the jury it was ‘incumbent upon the defendant satisfactorily to establish such defense. ’ The statute has not required him to so prove his defense. He'is only bound to prove the circumstances of mitigation, or that justify or excuse the homicide, as any other fact is proved. * * * A defense, though not satisfactorily proven, yet it might be supported by such proof as would produce grave doubts as to the guilt of the prisoner.”
But it is said in the argument that the law requires the People to prove the accused guilty of the crime charged beyond a reasonable doubt, before the jury are authorized to return a verdict of guilty, and that this was impressed upon the minds of the jury in such clear language and in so many different forms that the error in the instruction, if error it was, was cured. It is true that in one instruction the court directed the jury that “if, after considering all the evidence, you should entertain a reasonable doubt as to the guilt of the defendant as charged in the indictment you will find the defendant not guilty,” and in another the court instructed as follows: “That it is incumbent upon the prosecution to prove every material allegation in the indictment as therein charged. Nothing is to be presumed against the defendant. The law presumes him innocent of the crime of which he is charged until he is proved guilty beyond a reasonable doubt, by competent evidence, and if the evidence in the case leaves upon the mind of the jury any reasonable doubt of the defendant’s guilt of the crime charged, the law makes it your duty to acquit him.” Other instructions contain similar declarations, but we do not think they cure the error in the instruction complained of. The objection urged against the instruction is not that it fails to announce the rule correctly in regard to the nature, character or quantity of proof required in behalf of the People to convict the accused, but the objection is that the instruction lays down an incorrect rule in regard to the evidence required of the defendant to establish a justification of the homicide, and no instruction has been called to our attention which has a bearing on this branch of the case.
It is also claimed that the court erred in giving instruction No. 15. The instruction is copied from section 149 of the Criminal Code, but if it had been given alone or without any qualification it might be regarded erroneous, as held in Roach v. People, 77 Ill. 25. But the instruction was preceded by No. 14, which states the law in substance as declared in section 148 of the Criminal Code, and it was expressly held in Kinney v. People, 108 Ill. 519, that an instruction embracing the two sections was not erroneous. Moreover, this court held in Gainey v. People, 97 Ill. 270, that it was not error to give section 149 of the Criminal Code as a separate instruction if it is modified by other instructions which correctly state the law of self-defense where the danger is not real but apparent. Here there were several instructions given by the court which lay down the doctrine of self-defense, as declared in Campbell v. People, 16 Ill. 17, and subsequent cases. We do not, therefore, regard the objection to the instruction as well taken.
Other instructions have been criticised, but it would extend this opinion to too great a length to consider the objections urged against them. We have carefully considered the objections, and deem it sufficient to say that the other instructions complained of are substantially correct. If, however, they contained technical inaccuracies, these can be obviated on another trial.
For the error in giving the instruction first considered the judgment of the circuit court will be reversed and the cause will be remanded.
sensed ancl remanded.