HOLDEN, J.
— Murl Calkins was informed against and tried in the district court in and for Shoshone County for the crime of murder. His defense was, that at the time of the alleged commission of the crime, he was insane. He was convicted of manslaughter and appeals.
It is strenuously, and we conclude, correctly, insisted the trial court committed reversible error by instructing the jury that
“The law presumes mental capacity and responsibility
unless the fact is proved otherwise by a preponderance of the evidence.
(Italics ours.) If you believe from the evidence that the defendant, at the time that he assaulted Dell Marie Calkins, was laboring under mental aberration to such an extent that he did not realize or comprehend his acts and was incapable of forming an intent, it is a defense for an act committed while in that condition; but if you find from the evidence that “the defendant knew and realized what he was doing, and was capable of forming an intent, then the defendant will be held responsible for his acts.”
By the above quoted instruction the trial court squarely placed upon appellant the burden of proving his defense of insanity by a
preponderance
of the evidence. The law does not impose that burden upon a defendant. Here, as in
State v. Stewart,
46 Idaho 646, 651, 270 P. 140, the Attorney General admits the instruction is erroneous, but takes the position that, when the instructions are considered as a whole, no prejudice is shown. As this court pointed out in the Stewart case, supra, the fallacy of that position “lies in the fact that the instruction complained of is in conflict with those which are said to render it harmless. It is frequently the case that an instruction which is inaccurate or incomplete may be cured by a correct statement of the law in another instruction, but an instruction which places on the defendant the burden of establishing his innocence
is not cured by an instruction which states the rule correctly.
(Italics ours.) Contradictory instructions tend to confuse and mislead a jury; and, in this case, it is not possible to determine that the jury did not follow the erroneous instruction. How, therefore, can it be said that appellant was not prejudiced?
State v. Judd,
20 Mont. 420, 51 Pac. 1033;
Weber v. State,
2 Okl. Cr. 329, 101 Pac. 355;
Rea v. State,
) Okl. Cr. 269, 105 Pac. 381;
State v. Sandt,
95 N. J. L. 49, 111 Atl. 651;
Weber v. State,
183 Wis. 85, 197 N. W. 193. See, also,
State v. Webb,
6 Ida. 428, 55 Pac. 892;
State v. Bowker,
40 Ida. 74, 80, 231 Pac. 706.” approved and adhered to in
State v. Hines,
43 Idaho, 713, 718, 254 P. 217;
State v. Copenbarger,
52 Idaho 441, 463, 16 P. 2d 383.
Respondent did not offer any evidence in opposition to appellant’s defense of insanity, but rested its case against him, as to that defense, on the presumption appellant was presumed to be sane. Hence, in passing on that defense the jury was necessarily confined to a consideration of appellant’s evidence. That evidence might have been sufficient to raise a reasonable doubt in the minds of the jury as to whether appellant was sane or insane at the time of the alleged commission of the offense, but insufficient to prove that defense by a
preponderance
of the evidence, as the trial court so emphatically instructed the
jury appellant was required to do. Therefore, it is quite impossible for this court to say either that the jury could not have reached any other verdict, or that it would not have reached a different verdict if correctly instructed.
It is also insisted appellant at his preliminary examination was denied the right of counsel, in violation of Sections 19-701 and 19-703, I. C. A., and Section 13 of Article 1 of the Constitution of the State of Idaho. It appears appellant moved in the trial court to set the information aside upon two grounds: (1) That it was “not found, endorsed and presented as prescribed in the Idaho Code Annotated”; (2) that the defendant had not been held to answer to the charge set forth in the information upon a preliminary examination held before it was filed. The motion was supported by the affidavit of appellant. The pertinent allegations of the affidavit are that the committing magistrate advised appellant that he, appellant, “was entitled to a preliminary examination, and that he also was entitled to an attorney; that affiant thereupon advised the said Probate Judge sitting as a committing magistrate that he desired the services of an attorney, but that the said Judge Kelly thereupon advised him that he could not have an attorney at the preliminary examination, but that he would have to wait until said action reached the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone, at which time the Court would appoint an attorney for him.”
Certain of the proceedings had at the preliminary examination before the probate judge of Shoshone County, sitting as a committing magistrate, are made a part of the record on appeal, from which we excerpt the following:
“Defendant was brought into court and informed of his constitutional rights and after a preliminary hearing, he was bound over to the district court without bond.”
Sections 19-701, 19-702, 19-703,1. C. A., provide:
[19-701] “Accused to be informed of charge — Right to counsel. — When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense,
the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.”
[19-702] “Sending for counsel. — He must also allow the defendant a reasonable time to send for counsel, and postpone the examination for that purpose, and must upon the request of the defendant, require a peace officer to take a message to any counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty.”
[19-703] “Examination — When to proceed. — If the defendant requires the aid of counsel, the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the case.”
Section 13 of Article I of the Constitution of the State of Idaho provides:
“Guaranties in criminal actions and due process of law. — In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.”
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HOLDEN, J.
— Murl Calkins was informed against and tried in the district court in and for Shoshone County for the crime of murder. His defense was, that at the time of the alleged commission of the crime, he was insane. He was convicted of manslaughter and appeals.
It is strenuously, and we conclude, correctly, insisted the trial court committed reversible error by instructing the jury that
“The law presumes mental capacity and responsibility
unless the fact is proved otherwise by a preponderance of the evidence.
(Italics ours.) If you believe from the evidence that the defendant, at the time that he assaulted Dell Marie Calkins, was laboring under mental aberration to such an extent that he did not realize or comprehend his acts and was incapable of forming an intent, it is a defense for an act committed while in that condition; but if you find from the evidence that “the defendant knew and realized what he was doing, and was capable of forming an intent, then the defendant will be held responsible for his acts.”
By the above quoted instruction the trial court squarely placed upon appellant the burden of proving his defense of insanity by a
preponderance
of the evidence. The law does not impose that burden upon a defendant. Here, as in
State v. Stewart,
46 Idaho 646, 651, 270 P. 140, the Attorney General admits the instruction is erroneous, but takes the position that, when the instructions are considered as a whole, no prejudice is shown. As this court pointed out in the Stewart case, supra, the fallacy of that position “lies in the fact that the instruction complained of is in conflict with those which are said to render it harmless. It is frequently the case that an instruction which is inaccurate or incomplete may be cured by a correct statement of the law in another instruction, but an instruction which places on the defendant the burden of establishing his innocence
is not cured by an instruction which states the rule correctly.
(Italics ours.) Contradictory instructions tend to confuse and mislead a jury; and, in this case, it is not possible to determine that the jury did not follow the erroneous instruction. How, therefore, can it be said that appellant was not prejudiced?
State v. Judd,
20 Mont. 420, 51 Pac. 1033;
Weber v. State,
2 Okl. Cr. 329, 101 Pac. 355;
Rea v. State,
) Okl. Cr. 269, 105 Pac. 381;
State v. Sandt,
95 N. J. L. 49, 111 Atl. 651;
Weber v. State,
183 Wis. 85, 197 N. W. 193. See, also,
State v. Webb,
6 Ida. 428, 55 Pac. 892;
State v. Bowker,
40 Ida. 74, 80, 231 Pac. 706.” approved and adhered to in
State v. Hines,
43 Idaho, 713, 718, 254 P. 217;
State v. Copenbarger,
52 Idaho 441, 463, 16 P. 2d 383.
Respondent did not offer any evidence in opposition to appellant’s defense of insanity, but rested its case against him, as to that defense, on the presumption appellant was presumed to be sane. Hence, in passing on that defense the jury was necessarily confined to a consideration of appellant’s evidence. That evidence might have been sufficient to raise a reasonable doubt in the minds of the jury as to whether appellant was sane or insane at the time of the alleged commission of the offense, but insufficient to prove that defense by a
preponderance
of the evidence, as the trial court so emphatically instructed the
jury appellant was required to do. Therefore, it is quite impossible for this court to say either that the jury could not have reached any other verdict, or that it would not have reached a different verdict if correctly instructed.
It is also insisted appellant at his preliminary examination was denied the right of counsel, in violation of Sections 19-701 and 19-703, I. C. A., and Section 13 of Article 1 of the Constitution of the State of Idaho. It appears appellant moved in the trial court to set the information aside upon two grounds: (1) That it was “not found, endorsed and presented as prescribed in the Idaho Code Annotated”; (2) that the defendant had not been held to answer to the charge set forth in the information upon a preliminary examination held before it was filed. The motion was supported by the affidavit of appellant. The pertinent allegations of the affidavit are that the committing magistrate advised appellant that he, appellant, “was entitled to a preliminary examination, and that he also was entitled to an attorney; that affiant thereupon advised the said Probate Judge sitting as a committing magistrate that he desired the services of an attorney, but that the said Judge Kelly thereupon advised him that he could not have an attorney at the preliminary examination, but that he would have to wait until said action reached the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone, at which time the Court would appoint an attorney for him.”
Certain of the proceedings had at the preliminary examination before the probate judge of Shoshone County, sitting as a committing magistrate, are made a part of the record on appeal, from which we excerpt the following:
“Defendant was brought into court and informed of his constitutional rights and after a preliminary hearing, he was bound over to the district court without bond.”
Sections 19-701, 19-702, 19-703,1. C. A., provide:
[19-701] “Accused to be informed of charge — Right to counsel. — When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense,
the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.”
[19-702] “Sending for counsel. — He must also allow the defendant a reasonable time to send for counsel, and postpone the examination for that purpose, and must upon the request of the defendant, require a peace officer to take a message to any counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty.”
[19-703] “Examination — When to proceed. — If the defendant requires the aid of counsel, the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the case.”
Section 13 of Article I of the Constitution of the State of Idaho provides:
“Guaranties in criminal actions and due process of law. — In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.”
It will be seen the statute requires, in substance: (1) That a committing magistrate must inform a defendant of the charge made against him; (2) that the committing magistrate must inform a defendant of his right to the aid of counsel; and (3) that the magistrate must also allow a defendant a reasonable time to send for counsel; and that Section 13, supra, guarantees to a defendant the right in criminal actions to appear and defend in person and with counsel.
It will be observed appellant does not allege the committing magistrate did not inform him of the offense charged against him nor that the magistrate refused him a reasonable time within which to send for counsel. On the contrary appellant alleges the committing magistrate advised him not only that he was entitled to a preliminary examination but also that he was entitled to an attorney; and the record discloses, as above pointed out, the committing magistrate also informed appellant of
his constitutional rights. Instead of showing he was denied either a statutory or constitutional right it may reasonably be concluded from appellant’s affidavit that what happened at the preliminary' examination was: That when appellant was brought before the committing magistrate the magistrate informed him he was entitled to a preliminary examination and also to an attorney; that he was not entitled to have an attorney appointed for him at his preliminary examination, “but that he would have to wait until said action reached the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone, at which time the Court would appoint an attorney for him.”
Appellant contends the information, is fatally defective in that it is claimed it does not “set out a clear and concise statement of the acts constituting the offense charged in ordinary and concise language and in such a manner as to enable a person of common understanding to know with what particular action or actions he is charged.” Omitting the formal parts of the information, it charged that (appellant did)
“ .. . make an assault on one Dell Marie Calkins, a human being, inflicting on and in the body of said Dell Marie Calkins mortal wounds . . . and the said Murl Calkins did in the manner and form aforesaid unlawfully, wilfully, feloniously, and with malice aforethought kill and murder the said Dell Marie Calkins.”
Appellant demurred to the information upon the ground it did not substantially conform to the requirements of Sections 19-1309, 19-1310 and 19-1311, I. C. A. Appellant assigns error in the overruling of his demurrer by the trial court. It will at once be observed the information does not contain “a statement of the acts constituting the offense” as required by statute. In that respect the information simply and only charges appellant inflicted “on and in the body of said Dell Marie Calkins mortal wounds.” It does not charge the manner in which nor the means by which the alleged crime was committed. In
State v. Smith,
25 Idaho 541, 138 P. 1107 this court heid
“A defendant before being placed upon trial for his
life or liberty is entitled to be apprised not only of the name of the offense with which he is charged, but, in general terms, of the manner in which he is charged with having committed the offense. The statute is plain and explicit in this respect.”
In the recent well-considered case of
State v. McMahon,
57 Idaho 240, 249, 65 P. 2d 156, after a painstaking review of the authorities, we expressly and strongly reaffirmed the holding in
State v. Smith, supra.
The information, when tested by the above quoted rule, is fatally defective.
We direct attention to Section 19-1320, I. C. A., providing for the amendment of indictments and informations. If in this or any case the means by and the manner in which a crime was committed are unknown to the prosecutor, then he must so allege in his information.
It is complained the trial court erred in Instruction No. 23, by omitting therefrom the words “by the defendant” after the word “killing.” The instruction reads:
“You are instructed that in every case of murder the fact of killing first being proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the defendant unless they arrive [arise?] out of the evidence produced against them, for the law presumes the act to be found in malice until the contrary appears.”
Section 19-2012,1. C. A., is as follows:
“Murder — Burden of proof in mitigation. — Upon a trial for murder the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof in the case tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”
It will be noted the statute provides that “upon a trial for murder the commission of the homicide
by the defendant
being proved,” etc. (Italics ours.) We think it better practice, to say the least, to use the exact language of the statute in giving an instruction upon the matter of the burden of proof in mitigation of the crime of murder.
The circumstances in some cases might be such as to make it necessary to use the words omitted from the above quoted instruction.
People v. Post
(Supreme Court of California), 281 P. 618.
The judgment is reversed and the cause remanded with directions to grant a new trial.
Morgan and Ailshie, JJ., concur.