I am unable to concur in the conclusion the court has reached in this case in regard to the instruction given upon the subject of self-defense. It is admitted that the instruction was wrong, and that it required of the defendant an amount of proof which the law does not exact, but it is said that the instruction was not applied to any particular issue, and was, therefore, a mere abstraction. True, the court did not in the instruction say that it was essential to the defendant to establish any particular fact by a preponderance of evidence, but it did tell the jury that every fact which it was incumbent upon the defendant to establish must be established by a preponderance of evidence. So far as the facts to be proved by the prosecution are concerned, they were not only admitted, but the only defense attempted implied their truth. The commission of the homicide by the defendant was necessarily conceded when he announced his sole defense to be that he took the life of his father in necessary self-defense. The burden, then, of proving circumstances of mitigation, or that justified or excused the homicide, devolved upon the defendant. (Pen. Code, sec. 1105.) Whether he was then required to prove by preponderance of testimony that he acted upon such necessity, or was required to raise a reasonable doubt only as to whether such necessity existed or seemed to him, as a reasonable person, to exist, was an important matter. The jury were wrongly told that he must establish such defense by a preponderance of testimony, and per consequence, that it would not be sufficient for the defendant to establish a reasonable doubt as to whether it was true or not. I think the instruction was upon a matter of vital importance and applied directly to the entire defense.
And in the same line, and equally objectionable, although probably not equally injurious, was the instruction in regard to apparent danger: "You must be satisfied that he not only honestly entertained the belief, but that, as a reasonable man, was justified in so believing, and solely in consequence of such fear, and in order to save himself from death or great bodily injury he killed the deceased." Omitting the first phrase, "You must be satisfied," the law is, of course, correctly *Page 96 stated. The rule is absolute, as applied to a defendant.
He must honestly believe himself in danger, and be justified in entertaining such belief by appearances, or he will not be justified in taking the life of the assailant. But it is not essential to make out his defense that he should satisfy the jury that he honestly believed himself in danger, but only that he should succeed in raising a reasonable doubt in the minds of the jury upon the subject. Or, to state the proposition in the usual form, the jury must be satisfied beyond a reasonable doubt that he did not honestly believe himself in danger, or that appearances did not justify such belief, or that he did not act upon that belief alone, before they can convict. The instruction given was almost the converse of this, and bore directly upon the only defense attempted. I am at a loss to understand how it can be held that these instructions were not prejudicial, unless it be upon the supposition that juries are never influenced by the instructions given. (People v. Scott, 123 Cal. 434.)
The discussion contained in appellant's brief as to the meaning of the word "information," in section 8, article I, of our constitution, does not impress me as possessing merit. The constitution clearly indicates that it is an accusation upon which persons charged with crime may be tried, and that it may be adopted in all cases which theretofore were required to be prosecuted by indictment. We need not concern ourselves about the use of the word in common-law proceedings. The contention that the defendant had anything to do with, or the right to be heard upon, the question as to whether he should be prosecuted by indictment or information has no support in law or reason. I find no evidence that the grand jury of the county was in session when the information was filed, or that any grand jury had acted upon and ignored the charge against defendant. Still, for the errors I have noticed, I think the judgment should be reversed.
Henshaw, J., and Beatty, C.J., concurred in the dissenting opinion.
Rehearing denied. *Page 97