The evidence in this case shows defendant to have been guilty of a wanton assault upon Robert Culver and a virtual kidnaping of *Page 52 Grace Richter. Defendant did not know these parties. He had never seen them; but he stopped his car at night on a country road where they were parked in an automobile, walked up to them in the car, and, according to his own statement, demanded to know what was going on. It is undisputed that he heard no cries of help and that nobody asked any assistance or advice from him. Defendant claims that Culver struck him and that, in return, he struck Culver twice with a pair of pliers. Culver says that he was answering defendant's inquiry as to road directions when he was struck three times on the head with a heavy instrument which he believed to have been a "wrench of some kind," and that as a result of the blows he was rendered dazed and incapable of moving. Defendant then took the keys out of Culver's car, forced Miss Richter to get into his car, and drove away, later releasing her. Defendant claims that he was justified in his action because he thought he was rescuing Miss Richter from danger, but admits that she never spoke to him. On appeal from his conviction, error is assigned upon the following part of the court's charge to the jury:
"In regard to the actual striking of Robert Culver by the accused, the burden of proof is on the accused to establish justification. If you find, from the testimony which you have heard in this case, that the defendant was justified in striking Robert Culver, the people have failed to establish one of the elements of the offense charged and you must find the accused "not guilty." If the people have established the elements of the offense charged to your satisfaction beyond a reasonable doubt, then it is your duty to convict the defendant of the charge made against him. If the people have failed to establish all of the elements of the offense charged, as *Page 53 before stated, then it is your duty to acquit the defendant."
It may be remarked that this was not a charge relating to self-defense, but to justification. Defendant's entire theory and claim were that he was justified in taking Miss Richter out of the automobile where she was sitting with her friend and making her ride off with him; and that he was further justified in inflicting the blows upon Culver.
In two motions for a new trial, no mention is made of error with regard to instructions to the jury on the question of self defense; and in the "statement of questions involved," no mention is made of such a defense. Under the theory upon which the case was tried, self-defense was not an issue. The defense was justification.
It is argued that defendant's action was the fault of Culver and Miss Richter "doing things that in their nature lead to trouble," and it is contended by defendant's counsel that "it was the duty of Miss Richter to answer defendant when he asked her the question" about what the trouble was. Such a contention, that Miss Richter owed a duty to a man approaching her on a country road at night to tell what she was doing, is untenable. Recent criminal history shows that marauding night prowlers and bush-whackers are a source of peril to those parking in automobiles on country roads at night, and police records are replete with tragic examples in which such persons have been victims of criminal assault and murder.
In this case, defendant's plea was the affirmative defense of justification. It is difficult to define what is generally meant by the defense of justification in assault and battery cases. Many authorities on criminal law do not mention such a defense, but it is *Page 54 sometimes regarded as matter of extenuation and mitigation. In Underhill's Criminal Evidence (4th Ed.), § 51, it is said:
"The defendant is entitled to the benefit of the presumption of innocence before he introduces any evidence. Hence, though he offers no evidence, the court has no legal power to direct a verdict, but the prima facie case against him must be submitted to the jury. They must take into consideration the presumption of innocence, and should not convict unless the State has sustained the burden of proof. But when the defendant pleads any substantive, distinct and independent matter as a defense, either as justification, excuse, or as an exemption from criminal liability, which upon its face does not necessarily constitute an element of the transaction with which he is charged, and which is wholly disconnected from the offense, it has been said that the burden of proving such defense devolves upon him. Assertion of an alibi, however, does not relieve the State from affirmative proof of guilt beyond a reasonable doubt, nor shift the burden of proof to defendant. The accused must prove the independent exculpatory facts upon which he relies, and in this respect and to this extent, it is correct to say the burden lies on him. Notwithstanding this, if, after all the evidence is in, it is found that upon the whole case the prosecution has not sustained the burden of proof in convincing the jury of the prisoner's guilt beyond a reasonable doubt, he should be acquitted. It may happen that the facts which sustain, or tend to sustain a defense of justification or excuse, shall come out during the examination of the witness for the prosecution. The defendant is entitled to the benefit of this, for the rule that the burden of proof of an affirmative and independent defense is on the accused does not necessarily mean that he must prove it wholly by his testimony or that of his own witnesses. And no matter what the evidence may be *Page 55 showing justification or excuse, and whether it be strong or whether it be weak, or whether it shall proceed from the State's witnesses or from the witnesses for the accused, the accused is entitled, where there is any evidence sustaining an affirmative defense, to have it considered by the jury, with all the other evidence in the case; and he is entitled to an instruction that though the burden is on him to prove an affirmative defense, yet upon all the evidence, the State must establish his guilt beyond a reasonable doubt."
In the same work, section 600, it is further stated:
"The burden of proving justification for an assault is upon the accused."
In this case, the claimed justification was based upon exculpatory and independent facts, wholly disconnected with the elements of the crime charged, and was not such a defense as would require it to be disproved by the State. As an affirmative defense, the burden of proof was upon the defendant.
The court properly instructed the jury that the burden of proof rested upon the people to establish, from the evidence, that the defendant was guilty as charged and that he was presumed by the law to be innocent; that such presumption remained with him throughout the trial and until such time as the jury should be satisfied of his guilt; that his guilt must be established beyond a reasonable doubt; that defendant was not obliged to prove his innocence, because the law presumes him innocent; and that the burden was on the people to establish his guilt beyond a reasonable doubt.
In 20 instances, the court instructed, in varying terms, the necessity of proof that the defendant was guilty beyond any reasonable doubt of the offense charged, before he could be found guilty. *Page 56
As to the defense of justification for the assault, the court correctly charged that burden was upon defendant. This did not qualify the court's instructions that the burden of proving all of the elements of the crime charged, beyond a reasonable doubt, was upon the State; and the court so instructed the jury. We find no error.
Judgment affirmed.
BUSHNELL, C.J., and POTTER and BUTZEL, JJ., concurred with McALLISTER, J.