Singleton v. St. Louis Insurance Co.

"He had a right to take out a policy on his own life for his sister's benefit; and she had a right to advance him the necessary means to do so. As between strangers, or persons not thus nearly connected, such a transaction would be evidence to go to the jury, from which, according to the circumstances of the case, they might or might not infer that it was mere gambling. But as between brother and sister, or other near relations, desirous of thus providing for each other, and (as said by Chief Justice SHAW) presumed to be actuated by "considerations of strong morals, and the force of natural affection between near kindred operating often more efficaciously than those of positive law" (Loomis v. Eagle Life Insurance Co., 6 Gray, 399), the case is divested of that gambling aspect which is presented where there is nothing but a speculative interest in the death of another, without any interest in his life to counterbalance it. On this ground we hold, that where, as in this case, a brother takes out a policy on his own life for the benefit of his sister, it is totally immaterial what arrangement they choose to make between them about the payment of the premiums. The policy is not a wager policy. It is divested of those dangerous tendencies which render such policies contrary to good morals. And as the company gets a perfect quid pro quo in the stipulated premiums, it cannot justly refuse to pay the insurance when incurred by the terms of the contract."

In Swift v. Mass. Mut. Life Ins. Co., 63 N. Y. 186; 20 Am. Rep. 522, it was held, that in an action by a wife to recover the amount of an insurance policy issued to her upon the life of her husband, evidence of the declarations of the husband made to third persons prior to the insurance, when speaking of an existing disease, was competent upon the question of the truthfulness of statements made in the application. The application was made Aug. 20, 1870, and the declarations were made in the preceding winter. The court say: "Hence it is that any prior act or fact, not too remote, is proof against the policy-holder, of knowledge concealed by the subject of the insurance. Hence it is, too, that any statement which is part of the res gestæ of such prior fact or act tending to characterize or explain it, is also proof thereof, though unsworn to. Facts occurring after the insurance has been effected may be evidence, inasmuch as all facts which are material are competent to be proven. But the subsequent statements of the subject of insurance, not connected with a contemporary act or fact, are then but hearsay," etc. The "fact or act" in that case was that the insured looked ill and walked laine, and his contemporaneous declarations respecting those circumstances were received in evidence.

This was followed in Dilleber v. Home Life Ins. Co., 69 N. Y. 256, where it was held that the "fact" being otherwise proven, as by letters of the insured, his declarations concerning it are competent to show knowledge.

In Ashbury Life Ins. Co. v. Warren, 66 Me. 523; 22 Am. Rep. 590, the policy was in favor of a brother upon the life of his sister, and issued Oct. 3, 1873. Evidence of her complaints of illness made in the preceding summer were excluded. This was held error. Evidence of her declarations "descriptive of her health and feelings at the time they were uttered" were held competent, but otherwise as those "concerning the cause of her then present sufferings, and the length of time they had existed."

A son has an insurable interest in the life of his father, especially when the son is liable under the poor laws for the support of the father. Reserve Mutual Ins. Co. v. Kane, 81 Penn. St. 154; 22 Am. Rep. 741.

The relation of father and son does not give the son an insurable interest in the life of the father, unless the son has a well-founded or reasonable expectation of some pecuniary advantage to be derived from the continuance of the life of the father. Guardian Mutual Life Ins. Co. v. Hogan, 80 III. 35; 22 Am. Rep. 180.

A father has an insurable interest in the life of his minor son. Loomis v. Eagle Life and Health Ins. Co., 6 Gray, 396,

State v. Wingo.

STATE V. WINGO.

(66 Mo. 181.)

Criminal law-burden of proof.

In criminal prosecutions the burden of proof remains upon the State throughout the trial to establish the guilt of the prisoner beyond a reasonable doubt upon the whole evidence, and an instruction that if defendant killed deceased, he is presumed guilty of murder, in the absence of proof to the contrary, and that it devolves upon him to show a mitigation or justification, is erroneous.*

NDICTMENT for murder. The opinion states the facts.

אן

Luther T. Collier, for appellant.

J. L. Smith, attorney-general, for the State, cited State v. Joeckel, 44 Mo. 234; State v. Lane, 64 id. 319; State v. Hundley, 46 id. 414; State v. Hays, 23 id. 287; State v. Underwood, 57 id. 40; State v. Starr, 38 id. 270.

HENRY, J. That it devolves upon the State to establish by evidence the guilt of the accused beyond a reasonable doubt will not be controverted. The defendant, by his plea of not guilty, puts in issue every material allegation in the indictment. He is not required to plead specially any matter of justification or excuse. The case is not divided into two parts, one of guilt asserted by the State, the other of innocence, asserted by the accused. He does not plead affirmatively that he is innocent, but negatively that he is not guilty; and on that issue, and that alone, the jury are to try the case throughout.

There is no shifting of the burden of proof. It remains upon the State throughout the trial. The evidence may shift from one side to the other. The State may establish such facts as must result in a conviction, unless the presumption they raise be met by evidence, but still the burden of proof is on the State to establish the guilt of the accused beyond a reasonable doubt. Ogletree v. State, 28 Ala. 693; Tweedy v. The State, 5 Iowa, 433; Com. v. McKie, 1

*See People v. Schryver (42 N. Y. 1), 1 Am. Rep. 480. VOL. XXVII — 42

State v. Wingo.

Gray, 61; State v. Flye, 26 Me. 316; Wharton's Am. Crim. Law, § 707.

In Stokes' case, 53 N. Y. 164; 13 Am. Rep. 492, RAPALLO, J., said: "The jury must be satisfied on the whole evidence of the guilt of the accused; and it is clear error to charge them when the prosecution has made out a prima facie case, and evidence has been introduced tending to show a defense, that they must convict unless they are satisfied of the truth of the defense. Such a charge throws the burden of proof upon the prisoner, and subjects him to conviction though the evidence on his part may have created a reasonable doubt of his guilt. Instead of leaving it to them to determine upon the whole evidence whether his guilt is established beyond a reasonable doubt, it constrains them to convict unless they are fully satisfied that he has proved his innocence.'

Wharton, in his work on American Criminal Law, § 707, says: "The principle may be broadly stated that when the defendant relies on no separate, distinct and independent fact, but confines his defense to the original transaction on which the charge is founded, with its accompanying circumstances, the burden of proof continues throughout with the prosecution."

The same doctrine is held in Massachusetts in all criminal cases, except homicides. In Com. v. McKie, 1 Gray, 61, it is distinctly and clearly announced, and the distinction betwixt cases of homicide and other criminal cases recognized. No such distinction, however, has obtained in this State, and there can be no good reason why it should prevail anywhere. A distinction between felonies and misdemeanors throwing the burden of proof on a defendant indicted for a misdemeanor, to establish his justification or excuse after the State has made a prima facie case against him, would certainly be more reasonable and more in consonance with the merciful maxims in favor of life and liberty than that which is recognized in Massachusetts. The higher the grade of the offense the stronger the reason why the burden of proof should remain upon the State throughout.

In The Com. v. York, 9 Metc. 122; Com. v. Knapp, 10 Pick. 484, and Com. v. Webster, 5 Cush. 295, it was held that when one kills another it devolves upon the defendant, when the State has proved that he was the slayer, to establish circumstances of justification by such evidence as will outweigh or overbalance

State v. Wingo.

the evidence which it is brought to control, while in all other criminal cases a different rule is applied. It is conceded in that case, and in fact all the cases which we have examined, that the burden is not shifted by proof of voluntary killing when there is excuse or justification apparent on the proof offered in support of the prosecution, or arising out of the circumstances attending the homicide. As stated by SHAW, C. J., in York's case, "when the fact of voluntary homicide is shown, and this is not accompanied with any fact of excuse or extenuation, malice is inferred from the act; this is a fact which may be controlled by proof, but the proof of it lies on the defendant, and if not so proved, it cannot be taken into judicial consideration." In Com. v. McKie, supra, BIGELOW, J., delivering the opinion of the court, observed: "But can the government in such a case, on proving simply the injury to the person, rest their case, and call on defendant to assume the burden of proof and satisfy the jury that it was accidental, or else submit to a conviction? If so, then a criminal charge can always be shown by proving part of a transaction, and the burden of proof can be shifted upon the defendant by a careful management of the case on the part of the government, so as to withhold that part of the proof which may bear in his favor." That was an indictment against McKie for assault and battery, and the observations and reasoning of the learned judge would apply with equal force to a case of homicide where the distinction in that respect, between cases of homicide and other criminal cases, does not prevail as in Massachusetts.

The State's interest is not promoted by the conviction and punishment of any of her citizens for crimes of which they are innocent, and it is as much the duty of those who represent her to protect the innocent as to convict the guilty. If the Massachusetts doctrine in regard to homicide be correct, the prosecuting attorney has but to introduce those witnesses who saw nothing to justify the defendant, to throw the burden of proving his innocence upon the defendant, and impose upon him the duty of proving by a preponderance of evidence, as in civil cases, the facts he relies upon. for justification or excuse. This is "the careful management of a case on the part of the government" by which the burden is shifted in Massachusetts in prosecutions for homicide.

The defendant is entitled to the benefit of a reasonable doubt of his guilt on the whole case, not only as to whether the case made

State v. Wingo.

by the State is open to reasonable doubt, but if the evidence for the State be clear, and, in the absence of other evidence, conclusive, still if the evidence adduced by the accused, whether it establishes the facts relied upon by a preponderance of evidence or not, creates a reasonable doubt of his guilt in the minds of the jury, he is entitled to an acquittal. At no stage of the trial does he stand asserting his innocence. The authorities for this proposition are numerous. All the Massachusetts cases before cited, except those which were prosecutions for homicides, fully sustain it. To the same effect is Tweedy v. The State, 5 Iowa, 433; State v. Morphy, 33 id. 270; 11 Am. Rep. 122; 32 Iowa, 52; Stokes v. People, 53 N. Y. 165; 13 Am. Rep. 492; State v. Merrick, 19 Me. 400; State v. Flye, 26 id. 312; Chaffee v. U. S., 18 Wall. 516; Wharton's Am. Crim. Law, § 707; Com. v. Kimball, 24 Pick. 373; Com. v. Dana, 2 Metc. 340; Com. v. Bradford, 9 id. 270.

In the case at bar, defendant was indicted for murder, charged with having killed one Gamble, and the evidence was that on the 10th of September, 1876, the defendant and one Caldwell walked to Grand river from Spring Hill and returned that evening. They had both been drinking, and defendant was so drunk that Caldwell left him on the road side and proceeded home. He reached home about dark, and deceased, who had been there for him in his absence, returned. They had some conversation in regard to the employment of Caldwell by deceased to work for him, when Caldwell said he had left defendant on the road side, and had promised to return for him. Deceased said he would accompany him. Caldwell walked and deceased rode his horse. When they got to defendant, deceased dismounted and let defendant ride. They returned to Spring Hill and went to Caldwell's house. Defendant said he would lie down on the lounge. He had his gun with him and placed it near the head of the bed. Caldwell and deceased were outside, sitting on a porch which extended nearly across the house. After defendant had been lying down about fifteen minutes, he got up, got his gun, went to the door with the breech of the gun raised as high as his head, and said to Caldwell and deceased, "God damn you, if you don't come into the house and quit talking about me, I will mash you both into the earth." The deceased said he allowed no man to draw a gun on him, "and fired upon defendant, shooting him in his privates." Gamble was sitting when he fired, and immediately defendant shot and killed him with his gun. There