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and it was said that " all homicide is presumed to be malicious," and hence from the fact of killing, murder in the second degree was to be presumed. To raise the grade of the offence above that, the burden lay on the commonwealth; to reduce it to manslaughter, the burden was on the prisoner.1 And a similar rule has lately been laid down in Tennessee, notwithstanding Coffee v. The State."1

In England, however, in a late capital case, affording in some particulars a parallel with some of the old English cases, the presumption was enforced in its broadest form. The jury brought in what was in substance a special verdict, to the effect that the defendant was guilty, but they added, "we believe it was done without premeditation." Byles, J., refused to receive the verdict, saying, " The prosecutor is not bound to prove that the homicide was committed from malice prepense. If the homicide be proved, the law presumes malice."3 This form of the rule was substantially adopted in a case brought before the Supreme Court of the State of New York in 1866. It was there said that, the killing by the prisoner being conceded, it was for him to satisfy the jury beyond a reasonable doubt that such a state of facts existed as might furnish a justification of the act or mitigate it to some lower degree in the scale of crime.4 In a subsequent case, determined by the Court of Appeals in 1870, the rule as to the quantum of proof required of the prisoner to destroy the presumption of malice, as it was laid down in Patterton v. The People, was disapproved, and the rule of Com. v. York, of a preponderance of evidence, was adopted.8 The language of the court in this case was as follows: "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. . . . 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 one step further, and give satisfactory evidence that

1 Com. V. Drum, 58 Penn. St. 9. • s Witt v. The State, 6 Cold. 5.

Reg. v. Moloney, 9 Cox, Cr. Ca. 6.

4 Patterson v. The People, 46 Barb. 625, 639, 641.

1 The People v. Schryver, 42 N. Y. 1, 6.

he was justified." And again, "if the prisoner claims a justification, he must take upon himself the burden of satisfying the jury by a preponderance of evidence." This case, it would seem, barring the words " voluntary" and "intentional," which are of course important, affords complete warrant for the charge of the presiding judge in The People v. Stokes, and it is to be noticed that both the opinion in this case and the charge referred to find authority in Com. v. York, where, as has been pointed out, the Chief Justice virtually maintained that the presumption arose not only from proof of a voluntary killing, but also from that of killing. Moreover, the rule as to the quantum of proof required by the prisoner to overthrow the presumption, viz., a preponderance of evidence, enunciated for the first time, as is thought, in Com. v. York, is expressly recognized in both the New York cases.1 We shall hereafter have occasion to refer to this novel rule, and to examine its claims to soundness, as applied to criminal procedure.

Against this great current of authority in support of the doctrine that the law presumes an intent to commit murder from the fact of killing, or from the fact of voluntary, wilful, or intentional killing, mitigated under some statutes into a presumption of intent to commit murder in the second degree,2 or manslaughter,3 and somewhat equivocally opposed in the single important case of Coffee v. The State,* there are only three or four direct adjudications, with perhaps as many indications of opinion, in the nature of obiter dicta. The high character of those who have expressed these opinions, however, entitles them to great consideration, and perhaps makes up for their rarity. The first case expressly denying the rule was tried in the Circuit Court before Curtis and Sprague, J J., in 185-1. The evidence was that the prisoner and the deceased had an affray in which each used a deadly weapon, and in which the prisoner killed his opponent,

1 It is observable, that although the composition of the Court of Appeals was not the same in 1870, when The People v. Schrt/ver was decided, as in 1873, when Stokes v. The People came before it, yet Mr. Justice Grover, who delivered the more extended opinion in the latter case, was also a member of the court in 1870. It does not appear that the learned judge dissented in The People v. Schryver.

» Com. v. Drum, 58 Penn. St. 9.

Com. v. Cathcart, 37 Penn. St. 108.

4 3 Yerger, 283. See remarks of Green, J., in Mitchell v. The State, 5 Yerger, 340. And see Dove v. The State, 3 Heiskell, 348.

but as to which party actually began the fight the evidence was contradictory. The prisoner's counsel requested the court to instruct the jury in the language employed by Wilde, J., in his dissenting opinion in Com. v. York.1 Mr. Justice Curtis said to the jury: "If a man attacks another with a dangerous weapon and kills him, no sufficient provocation appearing, the law presumes malice from the act. . . . On the question of burden of proof, after consultation, the court are of opinion that it is incumbent upon the government to prove a felonious "killing; and if upon the whole evidence the government has failed to satisfy the jury beyond a reasonable doubt that the killing was felonious, the verdict must be, not guilty." 2 This case was explained in a subsequent case before the same court as follows: "This court, after careful consideration, laid down the rule [in U. S. v. Mingo] that whether the crime be murder or manslaughter, is not to be decided upon any presumption arising from the mere fact of killing; but that the government, besides proving the homicide, must offer sufficient legal evidence that the killing was malicious. And if, upon the whole evidence, the jury have reasonable doubt whether the killing was from malice, they cannot find the accused guilty of the crime of murder. . . . The burden of proof is on the government to prove a malicious kitting, and proof of the mere fact of killing does not change this burden nor support it by raising a presumption of malice. But this is entirely consistent with such a presumption being raised by the circumstances under which the killing was effected. Mere homicide does not imply malice. But circumstances may attend a homicide which in point of law stamp it as malicious, without other evidence of malice. For malice may be and is implied by law as well as expressly proved by direct evidence."3 Mr. Justice Sprague, who sat with Judge Curtis in these cases, recognized the principle laid down in them, in other cases.4

The case of Maker v. The People 6 was one of an assault with intent to kill, and an acquittal was claimed on the ground that on the evidence there was room for reasonable doubt whether the act, if accomplished, would have been murder or manslaughter.

1 9 Mete. 93. 2 U. S. v. Mingo, 2 Cur. C. C. 1.

* 0. S. v. Armstrong, 2 Cur. C. C. 446.

* U. S. v. McClare, 17 Law Reporter, 439; V. S. y. Lunt, 1 Sprague's Dec. 311. 5 10 Mich. 212.


Christiancy, J., held that the whole question was for the jury, and could not be withdrawn from them by force of any presumption deduced by the court. "Homicide," he said, "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 entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. . . . Malice is just as essential an ingredient of the offence as the act which causes the death; without the concurrence of both, the crime cannot exist; and, as every man is presumed innocent of the offence with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offence, — to the malice as well as to the killing. . . . The court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole or any part of the fact proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist." The question was incidentally referred to also by Redfield, C. J., in a late case in Vermont.1 After stating the rule as laid down in the books, the learned judge added that " one might be allowed to question its application to the mere fact of killing, since, being but a presumption of fact, in the absence of all evidence in regard to the mode of death, the presumption of innocence must be allowed to prevail over that of malice. ... It is not often, perhaps, that a rule of law ... is so much at variance with common experience as to infer malice from the mere fact of killing."2 These remarks were purely obiter, however, as the point in question was not. involved in the case.

It is said that no additional weight is given to decisions by the insertion of the doctrine thereof in legal treatises, however eminent their authors ;3 and the statement is doubtless in accordance with the spirit of the common law. But it cannot be denied that such works, especially those of the earlier periods, have often had much to do with giving form and direction to the existing

1 The State v. McDonnell, 32 Vt. 491, 538.

2 See 1 Greenl. Ev. § 34, n. 1., Redfield's ed. See also Litbon v. Lyman, 49 N. H. 553, 576.

> F,dlam v. West Brodkfield, 9 Allen, 1, 7

adjudications on the special subjects of which they treat; and we should often find it difficult to trace the development of a principle unless the influence of the text-writers were taken into account. This consideration is nowhere found more clearly illustrated than in the case of the rule under discussion. The modern law of homicide was first put into definite shape by Sir Michael Foster, in his book on Crown Law, published in the early part of the last century. His work is cited with high encomiums by Shaw, C. J., in the case of Com. v. York;1 and there is scarcely a case where the rule in question was considered, in which that work was not referred to as authority. He lays down the rule in these terms: "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 fact to have been 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 foot that every other defendant doth; the matters tending to justify, excuse, or alleviate must appear in evidence before he can avail himself of them." 2 For this passage, the leading case of Hex v. Oneby 8 is cited, and that case, as we have seen, was decided in 1727. Here we have the broadest form of the rule as it occurs in the cases, with the addition of the reason thereof, as it seemed to Sir Michael Foster. If, however, we turn to another acknowledged authority, Lord Hale, whose Pleas of the Crown was published posthumously in 1736, we find what doubtless was the basis of the rule in its modified form, as it was somewhat equivocally stated in Com. v. York, and as it has been reiterated in some other cases. Lord Hale says: "When one man voluntarily kills another without any provocation, it is murder, for the law presumes it to be malicious, and that he is hostis humani generis."i This passage has been scarcely less quoted than that which we have given from Foster, and, except in one instance,8 it has never been intimated from the

l 9 Mete. 98, 111.

1 Foster, Cr. Law, p. 255; Intro, to Discourse on Homicide.
3 Ld. Raym. 1493; 8. c. Stra. 773; 8. c. 9 St. Tr. 14.
« 1 Hale, P. 0. c. 37, p. 455.
5 Per Wilde, J., in Com. v. York, 9 Mete. 93, 132.

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