act and intention; and the deed must be malicious to such a degree as to come within the expression or phrase, “with malice aforethought, either express or implied."

While this statement of the offense concedes that the element of malice may be implied, yet it is plain that the implication is to be made by the jury trying the cause from the proof of facts and circumstances sufficient to warrant such implication. Malice, in such case, is an inference of fact and not of law: Hopps v. People, 31 Ill. 392.

The supreme court of Michigan say, in Wellar v. People, 30 Mich. 20, that "there is no rule recognized as authority which allows a conviction of murder where a fatal result was not intended, unless the injury intended was one of a very serious character, which might naturally and commonly involve loss of life or grievous mischief."

The court further say that any doctrine which would hold every assailant as a murderer, where death follows his act, would be barbarous and unreasonable.

Mr. Wharton, in his work upon criminal evidence, section 738, says the doctrine that malice and intent are presumptions of law, to be presumed from the mere act of the killing, belongs, even if correct, to purely speculative jurisprudence, and cannot be applied to any case that can possibly arise before the courts. That in no case can the prosecution limit its proof to the mere act of killing.

The several sections of the statute being construed together, as we think they must be, it is evident that before the accused can be convicted of murder, or called upon to produce evidence in justification or mitigation of such an offense, the prosecution must make out such a case as will, under the law, sustain a verdict of guilty. Proof of the mere abstract fact, that the accused killed the deceased will not sustain such a verdict. Such proof does not establish the material elements of the crime of murder. To give the killing the legal character of murder, it must have been done with malice aforethought. This necessary ingredient cannot be inferred from the act alone, but must be proved, or circumstances of the killing proved, from which it can be inferred as a fact in the case. The averment of the killing alone, in the indictment, would be bad, and evidence limited to such abstract fact as "A killed B," would be inadmissible, as stating simply an opinion. The state must go further, and prove the essential elements of the crime charged.

In Maherr v. People, 10 Mich. 217, the court say: "Homicide, or the mere killing of one person by another, does not of itself constitute murder. It may be murder or manslaughter, or excusable or justifiable homicide, and therefore intirely innocent, according to the circumstances, or disposition or state of mind or purpose which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character, but the quo animo, the disposition or state of mind with which it is done." It is necessary, therefore, to constitute murder under a state statute, that the killing be done in the mode described by the state. It is only when, in addition to the

"killing," facts and circumstances attending or surrounding the homicide are laid before the jury that the necessary inferences of fact to complete the crime can be rightfully drawn: Whart. Crim. Ev., sec. 738.

The last-mentioned author further says: It is perfectly proper to tell the jury that from certain circumstances, as the use of a deadly weapon, severe wounds, or threats, intent and malice may be rightly inferred, as inferences of fact.

In regard to the use of a deadly weapon, Mr. Bishop says: "As a general doctrine, subject to some qualifications, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon, resulting in death:" 2 Bish. Crim. Proc., sec. 680.

An instruction to this effect was given in Clem v. State, 31 Ind. 484, which was held to be erroneous, and at variance with principles which have received the uniform sanction of all the courts in this country and Great Britain. The objection was, that it was not a conclusive presumption; for, if such, no evidence would be admissible to show that the act was done in necessary self-defense, or that the killing was excusable and not felonious.

In Head v. State, 44 Miss. 735, it is said: "The use of a deadly weapon is prima facie evidence of malice, because a man must be taken to intend the necessary and usual consequences of his act. To shoot, or stab, or strike with a bludgeon, indicates a purpose to take life; but if the one or the other be employed to disable an adversary in the very act of making a murderous and malicious assault, then the presumption is overcome. . . . . To use a deadly weapon justifies the inference that the accused meant to kill, but whether he was excusable on the ground of self-defense depends on the facts and circumstances with which he was environed at the time."

If a person deliberately uses a deadly weapon on another, it must be inferred from the circumstances showing the deliberation that it was malicious. Such circumstances fully authorize the jury to find the ingredient of malice. The inference is not drawn from the use of the weapon only, but from the proof of its deliberate use.

One of the objections urged by counsel for defendant Kent to the giving of section 36 as an instruction to the jury is that it is only applicable when the prosecution is able to prove the fact of the killing, without showing the circumstances of the homicide.

This objection results from an erroneous view of the statute.

When the circumstances surrounding the commission of the homicide are produced in evidence on the part of the state, as it is conceded they were in this case, all matters, if any, which go to the justify or excuse the killing must be, by the terms of the section itself, considered in favor of the defendant; and if sufficient to manifest that the accused was justified or excused in committing the homicide he is not bound to prove it by affirmative evidence in his own behalf. The duty of the jury, in such case, would be to inspect and consider the evidence with respect to its sufficiency to establish the crime. It would also be their duty to examine and weigh the same with respect to matters of

mitigation, justification, or excuse; and if upon the whole evidence a reasonable doubt existed in the minds of the jury as to the guilt of the defendant it would be their duty to return a verdict of not guilty: Alexander v. People, 96 Ill. 96.

The proposition of defendant's counsel that the burden of proof never shifts on the defendant at any stage of the proceedings, is not strictly correct. It is true, the state must prove the offense charged beyond a reasonable doubt. The statute then casts the burden of proof as to matters of mitigation or excuse upon the defendant.

The public prosecutor cannot be compelled to search for and put in evidence all the facts connected with the transaction, or exculpatory facts in the prisoner's favor. The policy of the law, as evinced by the presumption of innocence and the doctrine of reasonable doubt, would require the public prosecutor to introduce such proof as will give a fair account of the transaction.

This being done, it devolves upon the defendant to produce in evidence such matters of mitigation, justification, or excuse, if any such exist, as may tend to explain his action, and show the necessity therefor; otherwise, a verdict of guilty must necessarily be returned against him. He is not required by the statute, however, to prove such circumstance beyond a reasonable doubt, or to the extent of satisfactorily establishing his defense; he is only required to prove the same as any other facts are required to be proved; and if the matters relied on be supported by such proof as would produce a reasonable doubt in the minds of the jury as to the guilt of the prisoner, when the whole evidence concerning the transaction comes to be considered by the jury, the rule of law is that there must be an acquittal: Alexander v. People, 96 Ill. 96.

It is but fair to the jury, upon whom is cast the grave responsibility of determining the prisoner's guilt, as well his fate in respect to life or liberty, that all the facts comprising the res gesta should be spread before them. And when we consider that every man is presumed to be innocent until his guilt is made to appear beyond a reasonable doubt, and that the burden of proof to this extent rests upon the state, it is but fair to the prisoner that the whole transaction, and not a select part of it, should be before the jury, to be considered by them as the evidence in the case, and not as the evidence of contesting parties in the case.

Criminal prosecutions are not to be regarded or conducted as contests between individuals respecting civil rights, wherein advantages, not reaching the merits, may be gained by one party over another. The policy of the government is to punish only those who violate the law, and to protect the innocent in all cases.

Usually the character of the crime is demonstrated by the same evidence which establishes it; and if the accused is compelled to give in evidence some of the attending circumstances, the same rule should be applied as if the whole had been frankly presented by the state.

It may, therefore, be laid down as the established doctrine of this

state that as to all facts in evidence properly constituting part of the res gesta they are to be considered by the jury in passing upon the question of guilt or innocence, without discrimination as to the rules of evidence, whether introduced by the prosecutor or the defendant: Hill v. People, 1 Col. 452; State v. Porter, 34 Iowa, 140; Roscoe's Crim. Ev., 7th ed., 135.

In Maher v. People, supra, it is held that in criminal prosecutions the whole of the res gesta should be before the jury, so as to show the real nature, state of mind, and intention with which the act was done; that the object of the trial should be to show the real nature of the whole transaction, whether its tendency be to establish guilt or innocence. It is there suggested that any inference drawn from a detached portion of an entire transaction may be entirely false.

In Wellar v. People, supra, the court held it to be the duty of the prosecutor, in cases of homicide, to call those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, unless, possibly, where too numerous.

In Hurd v. People, 25 Mich. 406, attention was called to a fact often overlooked by courts as well as prosecuting officers, that “a public prosecutor is not a plaintiff's attorney, but a sworn minister of justice, as much bound to protect the innocent as to pursue the guilty, and he has no right to suppress testimony."

The last case further holds that the burden of proving the res gestæ, or whole transaction, so far as the evidence thereof is attainable, rests on the prosecution.

Section 36 of our criminal code does not require the prosecution to prove the entire transaction, as is required in some of the above cases, but in view of the several provisions of the statute we hold that when the proof relating to the res gesta is produced it is then to be considered as a whole, regardless of the fact that both parties were concerned in its production.

A different rule of evidence prevails when the defendant enters upon an independent defense, and attempts to prove extrinsic facts, not arising out of the res gesta, in justification or excuse, or in avoidance of the averments of the indictment. The rule is that when the defense set up is, in itself, purely extrinsic, the allegations of the indictment not being denied, it is necessary that such defense be sustained by a preponderance of proof.

Defenses of this character are licenses, authority from the state, former conviction, former acquittal, once in jeopardy, compulsion of any kind, and, in general, defenses which do not traverse the indictment, but are in avoidance of the allegations thereof.

The extent to which the proof must go in making out an independent defense has been the subject of much discussion, some authorities holding that it is sufficient in any case to create a reasonable doubt of guilt, while others favor the doctrine that the defense must be made out to the satisfaction of the jury. The rule laid down in Wharton's Criminal Evidence, sec. 331, is that when the case of the prosecution

is admitted, and the defense is one exclusively of avoidance, then this defense must be made out by the defendant by a preponderance of proof; to which he cites many authorities. He applies this rule to all facts set up by the defendant which do not traverse any averment of the indictment. In illustration of the rule he says: "When the defendant sets up that he acted under necessity, e. g., under command of a superior officer in time of war, or under compulsion of any kind, the burden is on him in such cases to prove the defense he sets up, and he must establish this by a preponderance of proof, it being an extrinsic defense:" Id., sec. 335; see also State v. Murphy, 33 Iowa, 278; Commonwealth v. Boyer, 7 Allen, 306.

We are of opinion that the rule sanctioned by these authorities is well supported, and states the correct doctrine as to independent defenses.

The rule relating to the res gesta, which we have been considering, applies to all defenses which traverse the averments of the indictment, and go to the essence of the guilt charged against the accused.

Within this class may be mentioned self-defense, provocation, heat of blood, and, generally, all matters growing out of the res gesta which go to justify, extenuate, or excuse the crime charged, including the defense of alibi.

Some authorities hold an alibi to be an independent defense, not coming within the rule mentioned; but the weight of authority is against this view. The latter authorities hold it to be an essential averment of the indictment that the accused was present and committed or participated in the commission of the offense; hence, this averment must be established by the prosecution beyond a reasonable doubt, and if the proof leaves it doubtful in the minds of the jury whether the defendant was present at, or absent from, the place, at the time the crime was committed, he must be acquitted: Turner v. Commonwealth, 86 Pa. St. 73; Howard v. State, 50 Ind. 190; Pollard v. State, 53 Miss. 416; Whart. Crim. Ev., sec. 333.

In respect to the defense of insanity, so much conflict of authority exists that we will express no opinion as to what class of defenses it belongs.

In the case now being considered no independent defense was set up. The defendant relied wholly upon facts arising out of the res gestæ, traversing the averments of the indictment, in which case the rule obtains that if the jury entertain a reasonable doubt as to the existence of any essential ingredient necessary to constitute an offense charged or included in the indictment, as to that defense the defendant is entitled to an acquittal.

The instructions given were in accordance with the rule of law in such cases.

We have carefully examined all the errors assigned and not abandoned in the submission of the case as advanced upon the docket, and are of opinion that the defendant was not prejudiced by the matters complained of therein.