Bevley v. Commonwealth
In Bevley v. Commonwealth, 185 Va. 210, 38 S.E.2d 331 (1946), the defendant was charged with murder. He had been threatened by the victim while unarmed, but then retrieved his firearm and allegedly shot the victim in self-defense.
The Bevley trial judge instructed the jury that the law presumes a person using a deadly weapon to kill another acted with malice, and the burden is thrown upon the person so using a deadly weapon to overcome this presumption.
But if upon consideration of all the evidence you have a reasonable doubt as to whether he acted with malice or not you should not find him guilty of murder. 185 Va. at 214, 38 S.E.2d at 333.
However, the trial judge refused the defendant's proffered instruction that arming oneself for necessary self-defense negates the element of malice. The proffered instruction provided:
When a person reasonably apprehends that another intends to attack him for the purpose of killing him or doing him serious bodily harm, then such person has a right to arm himself for his own necessary self-protection, and in such case, no inference of malice can be drawn from the fact he prepared for it. Id.
In finding that the trial judge erred in refusing the defendant's proffered instruction, the Supreme Court did not base its holding on the right to self-defense.
The Court held the instruction should have been granted because the defendant had the burden to overcome the presumption of malice:When a jury is told that the law presumes that a person using a deadly weapon to kill another acts with malice and throws upon the accused the burden of disproving malice, then the accused is entitled as a matter of law to have the jury instructed that he has overcome the presumption, if they believe the evidence offered in his behalf. Id. at 215, 38 S.E.2d at 333.