constable and night-watchman; that the shooting, resulting in his. death, occurred at about 3 o'clock on Sunday morning, August 3, 1883, while he was on duty as such night-watchman. The place where this unfortunate affair occurred is what is known on this coast as a mining camp. It appears that there had been some considerable disturbance in different portions of the town during the early part of the evening and preceding the shooting. It also appears from the testimony that the appellant and the other two defendants came down from the carbonate mine early in the evening of Saturday; that they were together visiting saloons and other places, and drinking quite freely; that the deceased, while in the discharge of his duty, had met them several times, and had accosted them at one time, asking them if they knew who had fired certain "shots," of which they disclaimed having any knowledge. There was testimony on the part of the prosecution tending to show that subsequently to this time the three were together, and were watching for some one; and that the deceased was the one for whom they were watching. Other witnesses testified that they heard the shooting at the time the deceased was killed, and saw the defendants running from the scene, and heard the appellant say at this time, "I got him at last."

With the above testimony in the case for the jury to weigh and determine, it was not error for the court to refuse the instruction asked. In connection with this request to charge, the appellant claims that at the time of the shooting the deceased assaulted him, and fired the first shot. There is some conflict in the testimony as to what occurred just at that time. The shooting occurred immediately after the deceased had ordered the appellant and his companions to "get off from the streets and go home." One of the witnesses for the prosecution testified that she was awakened by the talking on the street, and that she recognized the appellant, by his voice, as, one of those who had disturbed her, and saw two others with him, whom she did not know; that she saw the deceased come up, and heard him tell the parties to "Go on, go home;" and after some other conversation he said to them, "You must move on, I tell you; there is people here who want to sleep; you must find some other place to do your talking;" and that the appellant turned around, and the shooting commenced; and the witness continued: "All three shots seemed to be fired at me. The first shot seemed to come from where Callaghan stood. Dan. [the deceased] stood between me and the other three, and about two feet from Callaghan. The second and third shots were nearer together than the first and second, but all in a few seconds." There is other testimony in the case, some of it direct and positive, that the appellant fired the first shot. The deceased, as a peace-officer, was in the legitimate discharge of his duty in ordering these parties off from the streets, as they were using it, not for the mere purpose of passage as a highway, but as a place of resort, to the annoyance of peaceful citizens, and at a time and under circumstances when no

legitimate business called them there. Certainly the language used by the deceased, even if it had been accompanied by a threat to arrest them, unless they obeyed his order to "get off from the streets and go home," cannot be tortured into such an assault as would authorize the court to give the instruction asked. The court gave full and proper instruction as to the degrees into which the statutes have divided the subject of homicide.

The next assignment of error is based upon the following portion of the charge:

"It is admitted by the counsel for the defendant Callaghan on trial, and in his presence and hearing, and without objection on his part, that the defendant Patrick Callaghan did, on the fifth day of August, 1883, at the county of Beaver, in the territory of Utah, kill the deceased, Daniel Mahoney, but they claim that such killing was done in self-defense, and therefore justifiable or excusable. If the killing of Mahoney by the defendant Callaghan is admitted or proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant Callaghan was justifiable or excusable in the act of killing. Up to the moment when the killing is proved or admitted, the prosecution must make out its case beyond any reasonable doubt. When the killing is admitted or proved, it devolves upon the defendant Callaghan to show to your satisfaction any circumstances of mitigation to excuse or justify, by a preponderance of evidence on his part; that is, the killing being admitted or proved, unless the evidence of the prosecution tends to show that the killing was manslaughter, or was justifiable or excusable, the defendant Callaghan must show that it was done in self-defense, by some proof, stronger in some appreciable degree, no matter how small, than the proof of the prosecution tending to show that it was not in self-defense or justifiable or excusable; or, in other words, the claim that it was done in self-defense must be sustained by a preponderence of evidence."

This was followed by a full and explicit statement of what circumstances would, in law, mitigate the act of killing. It is claimed that the portion of the charge above quoted was error, because it charged that the burden of proving that the act was done in self-defense was upon the defendant. Section 268 of the criminal practice act provides:

"Upon a trial for murder, the commission of the homicide being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.'

The charge as given, although perhaps a little prolix, was in accordance with and in explanation of the section above quoted. I think the meaning of the statute is, and the substance of the charge to be, that if the homicide is proved beyond a reasonable doubt, and if in making this proof the prosecution have not shown circumstances in mitigation, or that excuse or justify it, then the legal inference is that the homicide was murder; but if the defense be, as an independent exculpatory fact, that the killing was not done in malice, but

was the result of sudden passion, or in necessary self-defense, in order to make these special pleas available as a matter of defense, they must be sustained by affirmative proof,-proofs so preponderating over the proofs of the prosecution, in denial of these independent exculpatory facts, as to create in the minds of the jury a reasonable doubt of the guilt of the defendant. Our statute is but declaratory of the principle laid down in Foster's crown law:

"In every charge of murder, the fact of the killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfac torily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been formed in malice, until the contrary appeareth, and very right it is that the law should so presume."

The rule of the common law, declared by and made a rule under our statute, that the corpus delicti must be proved beyond a reasonable doubt, was intended as a shield to prisoners, and ought not to receive such a construction and interpretation as to become a sword. The burden of what should be proved beyond a reasonable doubt never shifts to the defendant; but the prosecution having proven beyond a reasonable doubt the fact of the killing, unless the circumstances of mitigation, or that justify or excuse it, arise out of the evidence against him, the prisoner must take upon himself the burden of satisfying the jury, by a preponderance of evidence, that such circumstances existed at the time of the killing, to the extent of raising in their minds a reasonable doubt of his guilt. There was no testimony in the case offered by the prosecution which tended to reduce the crime to manslaughter, much less to justify or excuse it. There was no error in refusing to give defendant's requests numbered 41, 42, and 43, as the substance of them, so far as applicable to the case on trial, had already been given in the charge.

The next objection urged by the appellant is that the court erred in its charge in giving a definition of the word "premeditated," which was in the following language: "Premeditated' means thought of beforehand, for any length of time, however short. There may be no appreciable space of time between the intent to kill and the act of killing; they may be as instantaneous as the successive thoughts of the mind." This objection is aimed at the closing portion of the above quotation. This language has been repeatedly sanctioned by the supreme court of California, and I cannot perceive any objection to its use. In this case the appellant was acquitted of murder in the first degree, and, as applied to murder in the second degree,-the offense of which he was convicted,-the instruction was correct. The court charged that a premeditated intent to kill was a necessary ingredient of murder in the second degree. In this, the charge was more favorable to the appellant than the law warrants, and if the court erred in defining "premeditation," it erred on the side of mercy, and the appellant cannot complain.

The next objection urged is that the court erred in its definition of the word "malice." In the charge the court gave the statutory defi nition of the word, the definition which the legislature has declared shall be attached to it whenever used in the Code, unless a different sense plainly appears. The court very properly undertook to, and did, give the law in relation to all the grades of homicide. Our statute defines "manslaughter" to be "the unlawful killing of a human being without malice." The legislature must be presumed to have used the word "malice" in the sense in which they had before declared should be given to it. It does not vary or change the technical term "malice aforethought," as used in defining murder.

The next point urged by the appellant is that the court erred in its charge upon the law of self-defense, and in not giving his requests upon that subject. That portion of the charge objected to is as follows:

"As to what force or circumstances are sufficient to justify or mitigate the act, I instruct you that if the deceased, Mahoney, at the time he was shot and killed, was attacking the defendant, and if the attack was of such a character as to imperil the life, or do some great bodily harm, so imminent and pressing that a man of ordinary prudence, in the same or like circumstances, would believe that it was necessary to take the life of his assailant to save his own or prevent his receiving great bodily harm, and the defendant Callaghan, so menaced, acting in good faith, using no more force than was necessary to save his own life, or to prevent great bodily harm to himself, then, in such case, although it may afterwards appear that such danger was only apparent, and not real or absolute, the defendant Callaghan was justified in killing Mahoney, and the act is excusable; and in determining the question you may take into consideration the time of the day or night it was done, and the degree of darkness or light existing at the time, and who fired the first shot."

This is a correct statement of the law upon this subject, and was all that was necessary, in view of the facts in proof before the jury. There was no such complication of these as needed a more minute or detailed statement of the law to be applied to them. There was no error in refusing the numerous requests upon this branch of the case asked by the appellant. Their substance is embodied in the above and other portions of the charge.

The next question to be determined relates to the admissibility, as evidence, of the declaration of Mahoney, made recently after the shooting occurred. The witnesses say they arrived on the spot five or six seconds after the shooting, and that the deceased then said, "Patsey Callaghan shot me." The prosecution insists, and the appellant denies, that this declaration, so made, is admissible as part of the res geste. I have no doubt that the testimony was properly admitted, to be weighed by the jury. The period of time at which it was made, was so recent after the shooting as to justify its admission as a part of the res geste. No time had elapsed for the fabrication of a story. "In the admission of testimony of this character, much must be left to the exercise of the sound discretion of the presiding

judge." Com. v. McPike, 57 Mass. 181. The statements made by the appellant, relative to the affair, after arriving at the carbonate mine, three or four miles distant from the scene of the conflict, were properly excluded, as they were no part of the res geste, but merely a narrative of a past occurrence, and hearsay. There was plenty of time while appellant was traveling, on foot, that three or four miles, for reflection, and, in connection with his co-defendants, for the fabrication of a story, which, if believed, would be a subversion of all the actual facts in the case. It would be a very dangerous precedent, indeed, to allow testimony of this kind to be admitted.

The next question relates to the admissibility in evidence of the dying declaration of the deceased. The declarations were written, but were not signed by the deceased, and were as follows:

"Daniel Mahoney, being duly sworn, deposes and says, that Pat. Callaghan shot me in front of Staples' place. How many shots were fired? He fired two shots; I fired one. What is your business? Night-watchman. Who fired first shot? Callaghan. Did you hit Callaghan over the head with pistol or hand? No; I did not hit him at all. The above deposition was read to Dan. Mahoney in presence of R. S. Lipscomb, W. Haynes, and P. Lochrie, this fifth day of August, A. D. 1883. "Witness our hands:

P. LOCHRIE. "WILLIAM HAYNES. "R. S. LIPSCOMB."

Counsel for the appellant contends that it was error to admit this in evidence, because

"First. As the declaration did not profess to throw any light on the circumstances of the killing, and therefore should not have been received. Second. It did not pretend to be a statement of the deceased himself, but merely his replies to a few prepared questions. Third. It was a written statement of others, not signed by the deceased, and the real words that were given by deceased were not introduced or offered. Fourth. It did not appear that the deceased thought he was about to die, but, on the contrary, the expression used by him tended to prove that he thought he would live."

The utter fallacy of all these objections will be at once apparent upon reference to the state of the testimony at the time this writing was received in evidence. The witness Haynes testified:

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"I heard him say he could not live. I never heard him say he had any hope of living. I said to him, Cheer up; while there is life there is hope.' He said that he could not live; never made any other or different answer, to my knowledge. Malloy said something to him, and he replied: 'I can't live.' * He sent for a priest--Scanlan. He came, and we left the room. We were requested to leave the room by the priest. They were alone together 20 or 25 minutes. He died about three and a half hours after the priest was there. After the priest was there he made a dying declaration. It was in writing. It was signed by myself, Judge Lipscomb, and lawyer Lochrie. When he made the declaration the questions were asked him by Mr. Lochrie, and Mr. Lipscomb wrote down the questions and answers. Mahoney made no statement of his own accord; simply answered to the questions that were propounded. Before making the declaration he was asked if he had any hope of living. He replied, 'No.' The writing was not signed by the deceased.”