People v. Ah Gee Yung

— The defendant was convicted of murder in the first degree. From the judgment rendered against him, and an order denying a new trial, this appeal is prosecuted. It is argued, on behalf of the defendant, that the court, among others, gave an erroneous instruction to the jury, reading thus: “ In every crime or public offense, gentlemen of the jury, there must exist a union or joint operation of act and intent or criminal negligence. But when the act committed by the accused is of itself an unlawful act, the law, in the first instance, presumes the criminal intent, and the onus or burden of proof falls upon the defendant to show the absence of *146 criminal intent. In this case, if you find from the evidence that the defendant struck the fatal blow, then the burden of proving circumstances of mitigation, or that justify or excuse the homicide, devolves upon the defendant, unless the proof upon the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” Following this it is stated: “The law presumes every man to be innocent until his guilt is established beyond any reasonable doubt, and this…

— I concur in the judgment, but do not wish to be understood as commending or approving the first part of the instruction first quoted in the opinion of the commissioner. It is always dangerous to inject new language into the statement of old propositions. After all that has been said by this court in the Bushton Case, and since then, about requiring defendants to prove certain things by a preponderance of evidence, it would seem that trial courts might exercise some caution not to state the rule stronger against a defendant than it is stated in section 1105 of the Penal Code.