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By the Court,

Sweeney, J.:

Appellant was convicted of the crime of murder in the first degree, with penalty fixed by the jury at life imprisonment, upon an indictment charging him with the murder of one Sadie Isabel Heskett, at Rhyolite, in the County of Nye, on the 3d day of January, 1908. From the judgment, and from an order denying his motion for a new trial, an appeal is taken to this court.

A number of alleged prejudicial errors are urged upon the appeal, only one of which we deem necessary to consider. The proof showed that the defendant and the decedent were living together in an adulterous relationship in the said town of Rhyolite, and had been so living in other towns in this state and prior to their coming hereto. At the time of the homicide the decedent was a proprietress of a dance hall and the defendant a gambler by vocation. The homicide occurred about the hour of 3:30 in the morning and shortly after the return of the defendant to the home where the parties were living together. There were no witnesses to the homicide, other than the parties participating. During the altercation which resulted in the death of Mrs. Heskett, three bullets were fired into the body of the deceased and two into that of the defendant.

*73Upon the trial the defendant admitted firing the shots which killed the decedent, but interposed self-defense in justification. Upon the part of the defendant some testimony was offered of prior threats by the deceased against his life in the event he should leave her or attempt soto do. The defendant testified that on the night of the killing he told decedent that he was going to return to Colorado, which precipitated the altercation; that decedent, who had possession of his revolver, shot him twice; that he then took the revolver away from her, and she started to go to another part of the room, where defendant knew there was another revolver; and that thereupon he shot her, believing that his life was in danger. This, in brief, is an outline of the defendant’s case. While there was some evidence offered of intoxication, defendant’s main reliance was self-defense. The testimony, upon both sides, presented a case for the jury to determine Avhether or not the homicide was justifiable. It was of vital importance to the defendant’s case that the jury be correctly instructed upon the law of self-defense.

After giving a number of instructions to the jury, upon the request of defendant, correctly defining the law of self-defense in the abstract, the court gave the following instruction: "If you believe from the evidence, beyond a reasonable doubt, that on the 3d day of January, 1908, and at the time of the shooting of the deceased, that Sadie Isabel Heskett made an assault, or was about to make an assault, upon the defendant, and that defendant believed, and that a reasonable man would under like circumstances and conditions have believed, that he was at the time in great and immediate danger of death, or of having great bodily harm inflicted upon him, by her, and if such appearances and circumstances were sufficient to excite the fears of a reasonable person, situate as defendant was, and if the defendant really acted under the influence of those fears, and not in a spirit of revenge, then I charge you that the defendant was justified in acting upon these appearances and in taking the life of deceased, and it is your duty, therefore, to acquit him.” The instruction, with the exception of the words italicized, was the same as requested by defendant. The trial judge, however, before giving the instruction, *74inserted the words "beyond a reasonable doubt” The effect of this modification was to instruct the jury that the defendant must establish his' defense to their satisfaction beyond a reasonable doubt.

That this is not the law is conceded by the attorney-general, and the proposition is too manifest to require the citation of authorities that a defendant, interposing self-defense, is not required to establish such a high degree of proof as will convince the jury beyond a reasonable doubt.

Section 33 of the crimes and punishments act (Comp. Laws, 4687) provides: "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 amounts to manslaughter, or that the accused was justified, or excused in committing the homicide.”

While the burden of establishing self-defense was upon the defendant, it has never been held that such defense must be established beyond a reasonable doubt. The state is required to establish the truth of the charge in the indictment to the satisfaction of the jury beyond a reasonable doubt, as that term is defined in the statute, and if such doubt exists the defendant is entitled to the benefit thereof. The practical effect of the instruction was to reverse the rule in this respect.

As this instruction, before modification, was the most important of all the instructions requested by defendant and was vital to his theory of the case, and as the modification thereof so changed the same as to give the jury an erroneous conception of the degree of proof required of the defendant to establish his case, we are bound to hold the same to constitute prejudicial error.

The judgment and order of the trial court appealed from are reversed, and the cause remanded for a new trial.

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