delivered the opinion of the Court:
At the June term, 1879, of the DeKalb county circuit court an indictment was presented in open court by the grand jury of that county, charging George Alexander with the murder of Anna Alexander. On the next day defendant was arraigned, and entered a motion to quash the indictment. That motion the court overruled and the accused, standing mute, the court directed a plea of “ not guilty ” to be entered. The record recites that on the same day the motion to quash the indictment was overruled, which was the next day after the indictment was presented in court, defendant was placed on his trial, and was by the jury found guilty of murder, and, as the jury by their verdict fixed the “penalty of death ” as the punishment, the accused was sentenced by the court to be hanged until he was dead.
The accused is charged with the murder of his wife by shooting her. That he killed her, admits of no doubt. The defence is that the gun with which the fatal injury was inflicted was accidently discharged, without the fault of defendant. The testimony of defendant is to that effect, but what credit was to be given to it was, of course, for the jury.
As the present judgment is to be reversed on account of erroneous instructions given at the trial on behalf of the people, we forbear to remark upon the merits of the defence sought to be interposed, but leave the question of the guilt or innocence of defendant to be determined by the jury on another trial.
The first instruction given on behalf of the people contains the statutory definition of murder, and states, in the precise *101language of the statute, when and under what circumstances malice will be implied.
That instruction is connected with the next following one, which declares, “if the jury believe from the evidence, beyond a reasonable doubt, that the defendant killed Anna Alexander, as charged in the indictment, under circumstances showing no considerable provocation, but showing an abandoned and malignant heart on the part of defendant, the law pronounces it murder, and the jury should find the defendant guilty of murder,” by the words, “Hence in this case.”
It is insisted by counsel for the accused, that both these instructions were written on separate pieces of paper, and that the addition of the words, “hence in this case,” vitiates the first instruction and renders it faulty, but we do not find it so stated in the record. It seems more probable the words were intended merely to connect the two instructions together. One definition of the word “hence,” as given in the recent edition of “Webster’s Dictionary,” is, “from this cause or reason; as, an inference or deduction.” If the jury understood the word “hence” in this sense, it is possible it may have made a wrong impression on their minds. What the jury may have or would believe from the evidence, as to the circumstances of the killing, can not be said to be “an inference or deduction” from the principles stated in the previous instruction. But there is another sense in which we think the phrase, “Hence in this case” was used by the court. In that connection it is the equivalent of “therefore,” and must have been so understood. The use of the word “ therefore,” ifi that connection, would not have been objectionable. Adopting that meaning, the expression “hence in this case” is simply a pleonasm. The word “ therefore ” might with greater propriety have been used in its stead.
The fourth instruction in the series given on behalf of the people, is as follows: .‘/‘If the jury shall find, from the evidence, beyond a reasonable doubt, that the killing of Anna Alexander has been proved as charged in the indictment, *102then any defence which the defendant may rely upon in justification or excuse of the act or to reduce the killing to the grade of manslaughter, it is incumbent upon the defendant satisfactorily to establish such defence.”
This instruction does not state a correct principle of law. Undoubtedly it was the intention of the court to inform the jury when the burden of proof would shift from the prosecution to the defence, but the charge in this respect is much broader than the law will warrant. The statute declares in clear and explicit terms when the burden of proof is upon the defendant in such cases, and the court may not require him to prove more than the statute itself requires. Section 155 of the Criminal Code declares, “ the killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide,will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”
It will be observed that the instruction given contravenes this provision of the statute in two essential particulars: First, it casts upon the accused the burden of proving circumstances of mitigation) or that justify or excuse the homicide, without reference to the question whether the proof on the part of the prosecution may have sufficiently manifested the same facts. This is not the law. If the proof on the part of the prosecution made it manifest the accused was justified or excused in committing the homicide, he was not bound to prove it by affirmative evidence offered by himself. Any instruction that made it necessary for him to offer such additional evidence is vicious, as casting upon the accused a burden the law has not imposed.
Second, the killing was proved, but the accused sought to show he was justified or excused in committing the homicide, and this instruction told the jury it was “ incumbent upon the defendant satisfactorily to establish such defence.” The *103statute has not required him to so prove his defence. He is only bound to prove the circumstances of mitigation, or that justify or excuse the homicide, as any other fact is to be proved. The jury might well understand from the use of the words “satisfactorily to establish such defence,” that something more than mere proof of such circumstances was required.’5 This is stating the rule of evidence broader than the law will warrant. The statute provides he is only bound to prove the circumstances that justify or excuse the homicide as any other fact is to be proved, and as this instruction cast upon the accused what may have well been understood to be a higher degree of proof, it is plainly erroneons and may have prejudiced the defence.
A defence, though not satisfactorily proven, yet it might be supported by such proof as would produce grave doubts as to the guilt of the prisoner. Where there are reasonable doubts of the guilt of the accused, the rule of law is, there must be an acquittal.
For the error indicated the judgment will be reversed, and the cause remanded for a trial de novo.