case. THE PEOPLE V. GARBUTT. There is no such thing in the law as a separation of the ingredients of the offense, so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is unphilosophical, and at war with fundamental principles of criminal law. The presumption of innocence is a shield to the defendant throughout the proceedings, until the verdict of the jury establishes the fact that beyond a reasonable doubt he not only committed the act, but that he did so with malicious intent. The It does not follow, however, that the prosecution at the outset must give direct proof of an actual malicious intent on the part of the defendant; or enter upon the question of sanity before the defendant has controverted it. most conclusive proof of malice will usually spring from the circumstances attending the killing, and the prosecution. could not well be required in such cases to go further than to put those circumstances in evidence. And on the subject of sanity, that condition being the normal state of humanity, the prosecution are at liberty to rest upon the presumption that the accused was sane, until that presumption is overcome by the defendant's evidence. The presumption establishes, prima facie, this portion of the case on the part of the government. It stands in the place of the testimony of witnesses, liable to be overcome in the same way. Nevertheless it is a part of the case for the government; the fact which it supports must necessarily be established before any conviction can be had; and when the jury come to consider the whole case upon the evidence delivered to them, they must do so upon the basis that on each and every portion of it they are to be reasonably satisfied before they are at liberty to find the defendant guilty. This question of the burden of proof as to criminal intent was considered by this court in the case of Maher v. The People, 10 Mich. 212, and a rule was there laid down THE PEOPLE V. GARBUTT. which is entirely satisfactory to us, and which we have no disposition to qualify in any manner. Applying that rule to the present case, we think that the Recorder did not err in refusing to charge that proof of sanity must be given by the prosecution as a part of their case. They are at liberty to rest upon the presumption of sanity until proof of the contrary condition is given by the defense. But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh and pass upon it with the understanding that although the initiative in presenting the evidence is taken by the defense, the burden of proof upon this part of the case, as well as upon the other, . is upon the prosecution to establish the conditions of guilt. Upon this point the case of People v. McCann, 16 N. Y. 58, is clear and satisfactory, and the cases of Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; State v. Marler, 2 Ala. 43; Commonwealth v. McKie, 1 Gray, 61; Commonwealth v. Rogers, 7 Metc. 500, and Hopps v. People, 31 Ill. 385, may be referred to in further illustration of the principle. See also Doty v. State, 7 Blackf 427. The recent case of Walter v. People, 32 N. Y. 147, does not overrule the case of People v. Mc Cann, but, so far as it goes, is entirely in harmony with the views here expressed. But it is claimed the Recorder erred when he declined to charge that, if it appeared from the evidence that defendant was afflicted with insanity, and such affliction was the efficient cause of the act, he ought to be acquitted by the jury. This refusal, however, must be considered in connection with the charge actually given, and we are not satisfied that other portions of the charge do not fully cover this ground. Were this the sole error charged, it might be necessary to examine all the instructions to the jury with some care, to see if, taken as a whole, they could tend to mislead. As, however, a new trial must be ordered on other grounds, it does not become important to make any such THE PEOPLE . GARBUTT. critical examination. If we do not misapprehend the charge, the view of the Recorder seems to have been substantially the same as our own. The case was argued before us by the defense, on the assumption that, in one part of his charge to the jury, the Recorder had laid down a rule on the subject of provocation differing from that in Maher v. People; but we do not discover any thing in the exceptions upon which the argument can be fairly based, and shall not, therefore, undertake to determine whether the charge is objectionable in the particular referred to. To The only remaining error alleged, relates to the refusal of the Recorder to charge, as requested, upon the evidence adduced by the defendant to establish his uniform good character previous to the time of the alleged offense. understand this refusal, it must be known that the counsel for the defendant had previously been informed by the court that any requests to charge the jury should be handed in before the commencement of his argument to the jury. In compliance with this direction, seven written requests were handed in, which were appropriately responded to. None of these related to good character. The court, however, in his charge, alluded to the proof of good character, coupling it with a caution to the jury not to give too much weight to the statement the prisoner had made in the case, and which must be considered as made under strong temptations to state that which was untrue in his own exculpation. After this charge was given, the court was asked to instruct the jury that they had a right to believe the defendant's statement in opposition to sworn evidence; and this charge was given with a repetition of the caution above stated. The court was then further requested to charge that, as to good reputation, it is for the jury to consider whether such reputation tends to rebut the presumption of malice. The court refused to give the charge, on the ground that it might mislead the jury, without further explanation, which the court did not feel bound then to give. THE PEOPLE v. GARBUTT. We infer, from the bill of exceptions, that the Recorder declined to give what he regarded as proper instructions on this point, because the request was not handed in at a prior stage of the case. As a legal proposition, however, the refusal could hardly be justified on this ground. It is undoubtedly proper that requests to charge should be handed in before counsel go to the jury upon the facts; and a rule by the court to this effect ought to be regarded as binding by counsel. Fairness to the judge, and common courtesy would require that such a rule be complied with, that he may have opportunity to carefully weigh his instructions, and to reduce them to writing, if he shall so desire. Counsel who should decline to obey so reasonable a request, might justly be regarded as wanting in that courtesy which distinguishes the members of the profession generally in their intercourse with each other, and which is especially due from the bar to the judges who endeavor patiently to administer the law with impartiality amid all the difficulties and embarrassments that sometimes surround the trials by jury. Nevertheless, the rule can not be laid down as an unbending rule of law. The necessity for a request to charge will sometimes arise from what has already been charged by the judge. It may become important in order to render more clear and explicit that which he has already stated, but which has fallen short of a complete exposition of the law upon the point to which his remarks have been addressed. And if, in any case, the counsel should fail to request the court to lay down those familiar rules of law which it is always to be expected will be given in the cases to which they are applicable—such as the necessity of malice in murder, or a breaking in burglary-the defense could not justly be precluded by such omission from having the proper instructions given. It is quite possible that in the present case counsel took it for granted that the proper instructions would be given. on the subject of the evidence of character, without any 17 MICH. 0. THE PEOPLE V. GARBUTT. request to that effect. With many judges it is a matter of course to give such instructions, and it is to be presumed the Recorder would have done so in the present case had it occurred to him as important. But we think the request of counsel did not come too late in this instance, and he was entitled to have the proper instructions given. We also think the instructions requested were correct in substance, and that the defendant was entitled to them without explanation or qualification. The whole request was that the jury be instructed that they had a right to consider whether the evidence of good character tended to rebut the presumption of malice. That the evidence was admissible in the case was unquestionable, but it was equally unquestionable that it could have no bearing whatever except upon the question of malicious intent. To refuse the instruction, therefore, seems to us equivalent to holding, or at least to leaving the jury to infer, that the evidence which was lawfully put into the case, was immaterial after it was in. The instruction is often given in these cases, that proof of good character is not to be allowed to weigh against evidence, which in itself is satisfactory; and Mr. Starkie has said it ought never to have any weight except in a doubtful case. -1 Stark. Ev. 75. Such instructions are well calculated to mislead. Good character is an important fact with every man; and never more so than when he is put on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases where it becomes a man's sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave. Good character may not |