The People v. Schryver.

or it is their duty to acquit him, the charge not being proved by that higher degree of evidence which the law demands. In civil cases it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove; but in criminal cases it must exclude every other hypothesis but that of the guilt of the party. 1 Greenleaf's Ev. § 13, a; 3 id. § 28; People v. McCann, 16 N. Y. 58. Reasonable doubt is defined by Chief Justice SHAW, in Com. v. Webster, 5 Cush. 320, to be "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." This degree of certainty is never required in civil cases, but is required in criminal cases, by reason of the humane regard which the law has for the life and liberty of persons put upon trial for crimes.

It is a rule, applicable to criminal as well as to civil trials, that the party having the affirmative of any proposition has the burden of proof, and the people must in all cases sustain this burden beyond a reasonable doubt. But this does not mean that they must thus establish every fact involved in the trial. They must thus establish ali the material allegations contained in the indictment. They must thus prove the crime, the corpus delicti. In all cases of voluntary, intentional homicide, it is sufficient for the people to prove, beyond a reasonable doubt, that the prisoner killed the person whose life is alleged to have been taken, and then the burden is upon the prisoner to show that it was justifiable or excusable, if he claims that it was either. In Foster's Crown Law, 255, it is said: "In every charge of murder the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the act to have ben founded in malice, until the contrary appeareth, and very right it is that the law should so presume. The defendant, in this instance, standeth upon just the same ground that every other defendant doth; the matters tending to justify, excuse or alleviate, must appear in evidence before he can avail himself of them." In Legg's Case, Kel. 27, John Legg was indicted for the murder of Robert Wise; and "it was upon the evidence agreed, that if one kill another and no sudden quarrel appeareth, this is murder, and it lieth on the party indicted to prove the sudden quarrel." This was approved in the leading case of the

The People v. Schryver.

King v. meby, 2 Ld. Raym. 1485, in which one objection to the verdict was that the homicide was upon a sudden quarrel, and so buɩ manslaughter, whereupon the court stated the rule thus: "In answer to this objection, I must first take notice, that when a man is killed, the law will not presume that it was upon a sudden quarrel, unless it is proved to be; and therefore in Legg's Case it was agreed upon evidence, that if A kill B, and no sudden quarrel appears, it is murder; for it lies upon the party indicted to prove the sudden quarrel." In 1 Hawk., c. 31, § 32, it is laid down that whenever it appears that a man kill another, it shall be intended prima facie that he did it maliciously, unless he can make out the contrary by showing that he did it on a sudden provocation, etc.

In 4 Bl. Com. 201, it is said: "We may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless when justified, excused or alleviated into manslaughter; and all these circumstances of justification, excuse or alleviation, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury." In Best's Right to Begin and Reply, page 19, it is said: "Although the law never presumes guilt or fraud in the first instance, yet it is held, that where a homicide has once been proven, the law will presume that it was done maliciously, and cast on the party accused the onus of proving either his complete justification or excuse, or such palliating circumstances as may reduce the offense to manslaughter." To the same effect, see 1 Allison's Cr. Law, 49; 1 Russell on Crimes (1st ed.), 614-616; 1 Greenleaf, § 34; 1 Wharton's Cr. Law, §§ 614, 708, 709; Wharton's Law of Homicide, 458; People v. Stonecifer, 6 Cal. 405; People v. Cotteral, 18 Johns. 115; People v. McLeod, 1 Hill, 377, 436; Com. v. York, 9 Metcalf, 93.

In York's Case, Chief Justice SHAW has discussed the question with a great wealth of learning and thoroughness of research, and he says: "Suppose a party indicted for manslaughter, and that the defense should be excusable self-defense. Suppose the fact of killing should be clearly proved, but an attempt to prove a previous violent attack upon him by the deceased should fail, although the evidence might tend to raise some doubt whether there was not such previous attack. The conviction in such case must rest on proof establishing the corpus delicti beyond reasonable doubt, although the whole evidence would raise a doubt, whether there had not been such previous attack. The proof establishing the necessity for such

The People v. Schryver.

taking of life in self-defense must be satisfactorily made out. Raising a doubt would be insufficient."

In the case of the People v. McCann, 16 N. Y. 58, the presiding justice at the trial charged the jury that the prisoner was bound to prove his defense of insanity "beyond a reasonable doubt." Whether this charge was correct or not, was the only question for the consideration of the court of appeals, and it was held to be incorrect, and the judgment was reversed. Two opinions were written; Judge BOWEN held that it was enough for the prisoner to establish this defense, as insanity would be proved in a civil case, by a preponderance of evidence. Judge BROWN held, that while the law presumed every man to be sane, when the prisoner introduced evidence tending to show his insanity, the burden devolved upon the people to prove his sanity, like any other material fact in the case, beyond a reasonable doubt. It does not appear that the court concurred in this view. It was sufficient for the court to hold that the charge was too unfavorable to the prisoner. Before Judge BROWN's opinion shall be taken as the settled law, the question will need further consideration, as it does not seem to be supported by the current of authorities.

The judge presiding at the trial of this case is said to have followed in his charge the case of Patterson v. The People, 46 Barb. 325, in which, in a case of homicide, it was held in substance that the prisoner was bound to prove his justification beyond a reasonable doubt. No authority is cited to uphold this rule, and it is clearly against every authority that can be found in the books.

The rule that the corpus delicti must be proved beyond a reasonable doubt was intended as a shield to prisoners, and must never be used as a sword. In the language of Lord Hale, tutius semper est errare in acquittando, quam in puniendo, ex parte misericordia. quam ex parte justitia.

The people in every case of homicide must prove the corpus delicti beyond a reasonable doubt, and if the prisoner claims a justification he must take upon himself the burden of satisfying the jury by a preponderance of evidence. He must produce the same degree of proof that would be required if the blow inflicted had not produced death, and he had been sued for assault and battery, and nad set up a justification. When a man takes human life, upon which the law sets a high value, it is not sufficient for him to raise a reasonable doubt whether he was justifiable or not, but he must go

The People v. Schryver.

one step further, and give satisfactory evidence that he was justified. This rule is sufficiently humane to the prisoner, and at the same time gives some protection to human life.

If the conclusion which I have thus reached were not sufficiently clear upon reason and authority, I might rest it upon the wording of the statute as above cited. The statute, after defining murder, manslaughter, and justifiable and excusable homicide, provides, in section 5, that whenever "it shall appear to the jury" that the homicide was justifiable.or excusable, the jury shall render a verdict of not guilty. Here is the rule just as I claim it to be. The prisoner must make it appear to the jury that he was justified. It is not sufficient for him to raise a reasonable doubt, neither is it necessary for him to establish his justification beyond a reasonable doubt. He must make his defense appear to the jury; availing himself of all the evidence in the case given on either side. Nothing more and nothing less is required.

The judgment should therefore be affirmed.

SUTHERLAND, J. The case made by the testimony of the witnesses on the part of the people in this case, was the case of an affray between the deceased and the prisoner, commenced by a most unjustifiable and violent assault of the deceased upon the prisoner, in or during which affray the prisoner stabbed the deceased with a knife, and killed him.

I think, on the case made by the testimony of the witnesses for the people alone, the prisoner, without being sworn and testifying himself, and without calling a witness, had the right to have the question, whether the homicide was, under the circumstances, justifiable, submitted to the jury in a proper way.

The case made by the evidence on the part of the people relieved the prisoner from the burden of showing, on his part, that the fatal wound was given during or in an affray, and under circumstances which gave him the right to have the question as to the justifiableness of the homicide submitted to the jury.

It is not necessary, therefore, in this case, to determine whether the charge of the court to the jury would have been right, had the burden been on the prisoner to show that the homicide was committed in an affray, and under circumstances which gave him the right to have the question of justifiableness submitted to the jury. It is clear, taking the case made by the evidence on the part of

McNaught v. McClaughry.

the people, that the following part of the charge, to wit: "The killing in this case, has been proved, and is conceded, and there is no doubt as to the identity of the prisoner. With these conceded facts the prisoner asserts that the killing was in self-defense, and justified by the law. It is for him to make this allegation good by proof. If the defendant has given no proof, tending to show that the act was committed in self-defense, the necessary self-defense of his person, there is no question before you on this point," etc., was erroneous, and was likely to have, and probably did have, a very unjust and improper influence with the jury, and in producing their verdict.

The charge tended to deprive the prisoner of the benefit of the circumstances under which the homicide was committed, as shown even by the testimony on the part of the people.

The judgment of the general term of the supreme court, reversing the judgment of the court of sessions, should be affirmed. Judgment affirmed.

MCNAUGHT V. MCCLAUGHRY, exr., appellant.

(42 N. Y. 22.)

Promissory note—suretyship.

A. executed and delivered to plaintiff his promissory note, in which no time of payment was specified, at the same time agreeing to procure M. to sign the note as surety, if at any time the plaintiff should desire it. The plaintiff accepted the note upon this agreement. A few months after, the plaintiff desired the additional security, and A. procured M. to sign the note, and returned it to plaintiff. No new consideration then passed between any of the parties. Held, LOTT and SUTHERLAND, JJ., dissentiente, that M. was liable as surety on the note.

APPEAL from judgment of supreme court, general term, affirming judgment of referee.

The action was on a promissory note made by one Abram McClaughry, and signed as surety by the defendant's testator. The facts sufficiently appear in the opinion.