State v. Davis

Mr. Justice Eakin

delivered the opinion of the court.

1. It is first objected that it was error on the part of the court to admit in evidence an exclamation by defendant’s wife during the scuffle at the time Mrs. Stewart was shot and fell, namely, "He’s killed Ma!" This was evidently a spontaneous exclamation made in the excitement of the occasion by Mrs. Davis, and was a part of the transaction—an expression incident to and occasioned by what was taking place. It was *98 indicative of both, the fact that Mrs. Stewart had been killed and of the particular instant of her fall, and was, in fact, contemporaneous with the transaction and a part of the res gestae; and its admission in evidence was not error.

2. It is assigned as error that the court refused to permit defendant to introduce in evidence the record of the coroner’s inquest held over the body of the decedent. The county clerk was called as a witness and asked to produce the report of the coroner of the proceedings had at the inquest. This was offered in evidence by the defendant that the testimony of Mr. Stewart might be read to the jury for the purpose of impeaching him. The coroner is required by statute to reduce the evidence taken at the inquest to writing, and, if the coroner’s jury find that a crime was committed, the coroner must forthwith deliver the testimony and the verdict to a magistrate, who must issue a warrant for the arrest of a person charged with the crime; but the statute does not make the report of the evidence by the coroner evidence against the defendant or cause it to be used other than as a basis upon which the warrant may be issued. However, that did not prevent its being used as evidence for impeachment purposes, if it was written by the witness or signed by him and properly identified. Usually the coroner preserves only a synopsis of it, or, if taken by a stenographer, his transcript of it is not sufficient to impeach the witness who testified, as he is not bound by the minutes of the testimony or the transcript thereof as being the exact statements made by him, although the coroner or the stenographer may be called to testify whether the witness made some statements inconsistent with his present testimony under the provisions of Section 864, L. O. L. There was no error in excluding the coroner’s record.

*99

3. Error is alleged in the giving of the first part of the second instruction quoted, namely:

“It is presumed that the person using it [a deadly weapon] intended the consequences which happened from the same.”

This does not come within any of the statutory presumptions. Section 799, subdivision 3, L. O. L., on the subject of a disputable presumption, provides that a person is presumed to intend the ordinary consequences of his voluntary acts; and Section 798, subdivision 2, L. O. L., as to a conclusive presumption, provides that a malicious and guilty intent is presumed from the deliberate commission of an unlawful act for the purpose of injuring another; hut neither of these is followed by the court. The instruction was given as a conclusive presumption, at least it would be so understood by the jury. It would not be true in every case that such a presumption would arise as to the ordinary consequence of an act; but the killing of Mrs. Stewart, if the shot having that result was intended for and directed at Agee, would not be the ordinary consequence of the act. The first presumption of law in such a case is that the defendant is innocent until the contrary is made to appear; but when it is shown that he killed deceased by the deliberate use of a deadly weapon, and the killing is otherwise unexplained, the statutory presumption, that an intent to murder is conclusively presumed from the deliberate use'of a deadly weapon causing death within a year, would prevail. When the attendant circumstances of the killing are shown in evidence, the presumption must be taken in the light of the facts proved; but a presumption cannot be raised contrary to the facts established; and, where there is a conflict in the evidence, it is for the jury to determine what are the facts. If Mrs. Stewart was killed by accident, *100 then the presumption given by the court would not follow; but even were she killed by defendant, though unintentionally, the malice against Agee or Stewart, if defendant were the aggressor, is by the statute carried over to Mrs. Stewart. Section 1894, L. O. L., provides: “If any person * * in the commission or attempt to commit any felony, other than * * kill another, such person shall be deemed guilty of murder in the second degree.” But in such case the killing of Mrs. Stewart would not be the ordinary consequences of the deliberate use of the weapon, and the giving of the instruction was error.

4, 5. Again, the defendant assigns as error the portion of that instruction in which the court tells the jury that the defendant could not rely upon self-defense if he provoked the quarrel. The rule is that where the defendant is the aggressor he cannot rely upon self-defense, except he has first withdrawn from the combat in such a manner as to show his adversary his intention, in good faith, to desist: 21 Cyc. 805. But that question did not arise in this case. Defendant does not pretend that he at any time desired to withdraw from the combat. He was acting either in self-defense from the first or was the aggressor throughout; but the court also told the jury that if they found from the evidence, beyond a reasonable doubt, that defendant was justified in shooting, they should find defendant not guilty, and, if they did not find beyond a reasonable doubt that he was justified in shooting, they should find him guilty of some one of the crimes specified in the instructions given. This instruction shifted the burden of the proof and cast it upon the defendant. A defendant is entitled to make every defense he has upon a plea of not guilty, except the defense of former conviction or acquittal, which must be specially pleaded, as provided by Sections *101 1500, 1505, L. O. L., in which self-defense, and even a defense of insanity, are included. The burden of proof is always upon the state (Section 868, subdivision 5, L. O. L.), except on the defense of insanity, where the burden is cast upon the defendant: Section 1527, L. O. L. There are other assignments of error, but as the same questions may not arise upon the new trial, we deem it unnecessary to discuss them.

6. The state contends that by the provisions of Article VII, Section 3, of the Constitution, the court should sustain the judgment notwithstanding the errors; but the case was submitted to the jury upon a wrong theory of the law, both as to the application of the presumption mentioned and as to the burden of proof on the question of self-defense. Therefore we are not permitted to theorize as to what the verdict of the 'jury should have been if the issues had been properly presented.

For the errors mentioned, the judgment must be reversed and the case remanded for a new trial.

Reversed and Remanded.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.