Opinion,
Mr. Justice Sterrett :
The clear and comprehensive charge of the learned president of the Oyer and Terminer contains a correct exposition of the law applicable to the several degrees of homicide upon which the jury were required to pass, except in his refusal to charge, substantially as requested by the prisoner, that a reasonable doubt as to the existence of malice was sufficient to reduce the grade of homicide below murder of the second degree. His refusal to so instruct the jury, is practically the subject of complaint in the first four specifications of error.
While it was not denied that the deceased, Samuel Hocum, died from the effect of a pistol shot wound inflicted by the prisoner, it was contended that the shooting was done in justifiable self-defence, or, at the very utmost, under such legal provocation as stripped the act of malice and reduced the grade of offence to manslaughter. Considerable evidence was introduced for the purpose of showing that the prisoner was assaulted on his own premises by deceased and his companion Lafayette Crandall; that the attack was so fierce and violent as to warrant him in believing he was in danger of great bodily harm or loss of life unless he used the pistol in defending; [178]*178himself. Without referring iully to the evidence, it is sufficient to say that it tended to sustain his contention, and presented a proper case for submission to the jury on questions of fact involved therein.
Among other things, the prisoner himselt testified: “ I went to my lot to pick berries, ...... and while I was there, busy picking berries, Crandall and Hocum came where I was, and I said, ‘ How do you do,’ pleasantly, and they responded, and I saw they had been drinking. Hocum said, ‘ Why don’t you let Steve alone ? Why do you meddle with his distillery ? ’ And I said, ‘ That is my business ; ’ and Hocum said, ‘ We’ll make it ours. If you don’t stop informing against him we’ll fix you in a way that you will wish you never had.’ T said, ‘ Gentlemen, get off from my premises. I will not be abused- on my own land. You shall not pick berries here.’ And Crandall said, ‘ Lick him, Sam. You can do it without any help. I will go and sit down and see the fun.’ And Crandall started away slowly and Hocum called me names.”
Q. What did he call you ? A. He called me a liar. He said I was a liar.
Q. What else ? A. Well, he used some hard language. I would not be able to tell exactly, perhaps. I told him to go off, and at that he stuck his hand in my face. I stepped away. We walked slowly down the hill. He halted to stick his hands in my face. I told him I didn’t want any quarrel, that I had never struck a man in my life. Then he struck me in the stomach and on the right cheek. I told him to let me alone. If' he wanted to quarrel he could have his drunken quarrels with his son-in-law, as he had the other night, when he got his face marked. He picked up a stone and struck me in the left side, stunning me. He had another stone, and says, ‘ I will smash your brains out, you son of a bitch ; ’ and just then I saw Crandall running. He throwed his pail, and was running with all his might, with his fist doubled up, straight towards me, and I was scared, and I hallooed, ‘ Help,’ and Hocum said, 1 will help you with a bullet; ’ and Crandall says, ‘ Shoot him, Sam, shoot him.’ Hocum had a stone in his hand and put his other hand toward his hip pocket, and stepped towards me. I had heard that they were desperate characters, and quarreled among themselves, and threatened to shoot each [179]*179other, and threatened to kill each other, and I suddenly thought of my revolver and I jerked it out, and I was so excited and scared that I hardly realized when the revolver went off. Just then Crandall had hold of me and jerked me down, and had one hand on my throat and the other on the revolver, and then I heard a voice say, ‘ Keep the revolver, Lafe,’ and he let go of my hand and I got away. I can hardly tell how I got home,” etc.
The prisoner’s narrative of the occurrence bears the impress of candor and truthfulness; and, while it is contradicted in some essential particulars by Crandall and other witnesses for the commonwealth, it is' corroborated to some extent by other evidence showing his condition after the shooting, great prostration, marks of blows on his face and left side where he testified he was struck by Hocum, etc. These and other corroborating facts and circumstances had an important bearing on the question of veracity between him and witnesses for the commonwealth.
In view of the evidence relied on by the prisoner, the court was requested to charge as to the legal effect of the facts the jury might find therefrom, and, especially, of a reasonable doubt as to the existence of malice at the time the fatal shot was fired. In that portion of his charge recited in the third specification, the learned judge, after reminding the jury that he had “ refused to affirm two of the prisoner’s points with reference to the crime of murder in the second degree,” said, “ I refuse to say, as requested in those points, that if the circumstances in evidence, put there either by the prisoner or the commonwealth, raised a reasonable doubt of that crime, that those facts and circumstances would operate to acquit of it.” Again: 66 If the facts and circumstances are in evidence, no matter by whom produced, which make the extenuation that reduces it (grade of the crime), they have the effect to reduce it, but those facts and circumstances must be more than sufficient to raise a reasonable doubt.” This was misleading and erroneous; and the error is not cured by what he said in immediate connection with the first quoted sentence.
It is undoubtedly true that “ where a homicide is committed and the killing is shown to be unlawful, it is presumed to be murder,” but this presumption may be rebutted, or so far [180]*180weakened by other evidence in connection with the legal presumption of innocence as to create a reasonable, substantial doubt as to the guilt of the accused or the grade of the crime charged, and thus entitle him to acquittal or reduction of the grade. In other words, it is not a presumption juris et de jure — an irrebuttable presumption. Malice, for example, is an essential ingredient of murder, either of the first or second degree,- and while its existence may be presumed from certain proved or admitted facts, the presumption is not necessarily conclusive. There may be rebutting evidence for the consideration of the jury. It is incumbent on the commonwealth, in every such case, to establish the existence of malice, express or implied, not merely by a preponderance of evidence but by proof beyond a reasonable doubt. In Turner v. Commonwealth, 86 Pa. 54, 74, the present Chief Justice said: “We are inclined to think with Mr. Greenleaf, 1 Greenl. Ev. § 81 b, that the true rule in criminal cases, notwithstanding some decisions to the contrary, is that the burden of proof never shifts but rests on the prosecution throughout, so that in all cases a conviction can be had only after the jury have been convinced, beyond a reasonable doubt, of the defendant’s guilt. From this, it results that if from any, or from all the evidence taken together, a reasonable doubt of defendant’s guilt is raised, there should be an acquittal.”
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Opinion,
Mr. Justice Sterrett :
The clear and comprehensive charge of the learned president of the Oyer and Terminer contains a correct exposition of the law applicable to the several degrees of homicide upon which the jury were required to pass, except in his refusal to charge, substantially as requested by the prisoner, that a reasonable doubt as to the existence of malice was sufficient to reduce the grade of homicide below murder of the second degree. His refusal to so instruct the jury, is practically the subject of complaint in the first four specifications of error.
While it was not denied that the deceased, Samuel Hocum, died from the effect of a pistol shot wound inflicted by the prisoner, it was contended that the shooting was done in justifiable self-defence, or, at the very utmost, under such legal provocation as stripped the act of malice and reduced the grade of offence to manslaughter. Considerable evidence was introduced for the purpose of showing that the prisoner was assaulted on his own premises by deceased and his companion Lafayette Crandall; that the attack was so fierce and violent as to warrant him in believing he was in danger of great bodily harm or loss of life unless he used the pistol in defending; [178]*178himself. Without referring iully to the evidence, it is sufficient to say that it tended to sustain his contention, and presented a proper case for submission to the jury on questions of fact involved therein.
Among other things, the prisoner himselt testified: “ I went to my lot to pick berries, ...... and while I was there, busy picking berries, Crandall and Hocum came where I was, and I said, ‘ How do you do,’ pleasantly, and they responded, and I saw they had been drinking. Hocum said, ‘ Why don’t you let Steve alone ? Why do you meddle with his distillery ? ’ And I said, ‘ That is my business ; ’ and Hocum said, ‘ We’ll make it ours. If you don’t stop informing against him we’ll fix you in a way that you will wish you never had.’ T said, ‘ Gentlemen, get off from my premises. I will not be abused- on my own land. You shall not pick berries here.’ And Crandall said, ‘ Lick him, Sam. You can do it without any help. I will go and sit down and see the fun.’ And Crandall started away slowly and Hocum called me names.”
Q. What did he call you ? A. He called me a liar. He said I was a liar.
Q. What else ? A. Well, he used some hard language. I would not be able to tell exactly, perhaps. I told him to go off, and at that he stuck his hand in my face. I stepped away. We walked slowly down the hill. He halted to stick his hands in my face. I told him I didn’t want any quarrel, that I had never struck a man in my life. Then he struck me in the stomach and on the right cheek. I told him to let me alone. If' he wanted to quarrel he could have his drunken quarrels with his son-in-law, as he had the other night, when he got his face marked. He picked up a stone and struck me in the left side, stunning me. He had another stone, and says, ‘ I will smash your brains out, you son of a bitch ; ’ and just then I saw Crandall running. He throwed his pail, and was running with all his might, with his fist doubled up, straight towards me, and I was scared, and I hallooed, ‘ Help,’ and Hocum said, 1 will help you with a bullet; ’ and Crandall says, ‘ Shoot him, Sam, shoot him.’ Hocum had a stone in his hand and put his other hand toward his hip pocket, and stepped towards me. I had heard that they were desperate characters, and quarreled among themselves, and threatened to shoot each [179]*179other, and threatened to kill each other, and I suddenly thought of my revolver and I jerked it out, and I was so excited and scared that I hardly realized when the revolver went off. Just then Crandall had hold of me and jerked me down, and had one hand on my throat and the other on the revolver, and then I heard a voice say, ‘ Keep the revolver, Lafe,’ and he let go of my hand and I got away. I can hardly tell how I got home,” etc.
The prisoner’s narrative of the occurrence bears the impress of candor and truthfulness; and, while it is contradicted in some essential particulars by Crandall and other witnesses for the commonwealth, it is' corroborated to some extent by other evidence showing his condition after the shooting, great prostration, marks of blows on his face and left side where he testified he was struck by Hocum, etc. These and other corroborating facts and circumstances had an important bearing on the question of veracity between him and witnesses for the commonwealth.
In view of the evidence relied on by the prisoner, the court was requested to charge as to the legal effect of the facts the jury might find therefrom, and, especially, of a reasonable doubt as to the existence of malice at the time the fatal shot was fired. In that portion of his charge recited in the third specification, the learned judge, after reminding the jury that he had “ refused to affirm two of the prisoner’s points with reference to the crime of murder in the second degree,” said, “ I refuse to say, as requested in those points, that if the circumstances in evidence, put there either by the prisoner or the commonwealth, raised a reasonable doubt of that crime, that those facts and circumstances would operate to acquit of it.” Again: 66 If the facts and circumstances are in evidence, no matter by whom produced, which make the extenuation that reduces it (grade of the crime), they have the effect to reduce it, but those facts and circumstances must be more than sufficient to raise a reasonable doubt.” This was misleading and erroneous; and the error is not cured by what he said in immediate connection with the first quoted sentence.
It is undoubtedly true that “ where a homicide is committed and the killing is shown to be unlawful, it is presumed to be murder,” but this presumption may be rebutted, or so far [180]*180weakened by other evidence in connection with the legal presumption of innocence as to create a reasonable, substantial doubt as to the guilt of the accused or the grade of the crime charged, and thus entitle him to acquittal or reduction of the grade. In other words, it is not a presumption juris et de jure — an irrebuttable presumption. Malice, for example, is an essential ingredient of murder, either of the first or second degree,- and while its existence may be presumed from certain proved or admitted facts, the presumption is not necessarily conclusive. There may be rebutting evidence for the consideration of the jury. It is incumbent on the commonwealth, in every such case, to establish the existence of malice, express or implied, not merely by a preponderance of evidence but by proof beyond a reasonable doubt. In Turner v. Commonwealth, 86 Pa. 54, 74, the present Chief Justice said: “We are inclined to think with Mr. Greenleaf, 1 Greenl. Ev. § 81 b, that the true rule in criminal cases, notwithstanding some decisions to the contrary, is that the burden of proof never shifts but rests on the prosecution throughout, so that in all cases a conviction can be had only after the jury have been convinced, beyond a reasonable doubt, of the defendant’s guilt. From this, it results that if from any, or from all the evidence taken together, a reasonable doubt of defendant’s guilt is raised, there should be an acquittal.”
Whatever doubt there may be as to the applicability of the principle thus stated, to cases where the prisoner relies on some distinct, substantive ground of defence, not necessarily connected with the transaction on which the indictment is founded, such as insanity, etc., there can be no question as to its soundness as well as applicability to cases where, instead of setting up such separate and independent fact in answer to a criminal charge, the accused confines his defence to the original transaction charged as criminal, with its accompanying circumstances. In the latter the burden of proof never changes, but remains on the commonwealth to satisfy the jury that the act was unlawful and unjustifiable, and, if the crime be a graded one, that it is of the grade claimed by the commonwe alth.
Numerous authorities might be cited in support of this view, among which are Wharton’s Cr. Ev. 286 ; Commonwealth v. [181]*181Hawkins, 69 Mass. 468 ; Maher v. People, 10 Mich. 212 ; Lillienthal v. United States, 97 U. S. 266. In tke latter it is said: “ In criminal cases tke true rule is tkat tke burden of proof never shifts; that, in all cases, before a conviction can be had the jury must be satisfied from the evidence, beyond a reasonable doubt, of the affirmative of the issue presented in the accusation, that the defendant is guilty in manner and form as charged in the indictment.” “Where the matter of excuse or justification of the offence charged, grows out of the original transaction, the defendant is not driven to the necessity of establishing the matter in excuse or justification by a preponderance of evidence, and much less beyond a reasonable doubt. If, upon a consideration of all the evidence, there be a reasonable doubt of the guilt of the party, the jury are to give him the benefit of such doubt: ” Tweedy v. State, 5 Ia. 433. The same thought is thus presented by Mr. Wharton in his admirable work on Evidence, above referred to : “ Provocation, also, as a defence, which goes to negative premeditation and malice, must be regarded as traversing the essential ingredients of all offences which require proof of premeditation and malice. Hence, according to the distinction just stated, the burden is on the defendant to prove provocation in all cases where he opens this defence ; yet, when the evidence on both sides is closed, he is entitled to an acquittal if he has offered proof enough to cast a reasonable doubt on the averments of malice and premeditation, when thus essential.”
The fifth specification is not sustained. As a whole the point recited therein is not correct as a legal proposition, and hence there was no error in refusing to affirm it. While the prisoner had a right to order deceased and his companion off the premises, etc., he had no right to follow them “ up until an attack was made upon him so fierce as to put him on self-defence.”
The subject of complaint in the sixth specification is the rejection of the offer to prove by the witness then on the stand, and twenty-five other witnesses, “ that Lafayette Crandall has a notoriously bad reputation, as to being a quarrelsome, bad-tempered, dangerous man, and that all this was known to Judson Tiffany on the 15th July, 1886, at the time of the shooting.” For obvious reasons that evidence should have been received. [182]*182According to defendant’s own evidence, as we have seen, he was assaulted by both Hocum and Crandall, and he had as much right to prove the bad reputation of the latter as -a violent and dangerous man, as he would have had to prove the reputation of Hocum. It had a direct bearing on the question of justifiable self-defence.
The remaining specifications are not sustained. There is nothing in either of them that calls for special notice.
Judgment reversed, and a venire facias de novo awarded.