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believe that a witness lies and reject all his testimony from the omissions of relevant facts which occur in his story and from the improbable things he testifies to.73

In Georgia, it has been held reversible error to instruct on the comparative weight of positive or negative evidence where there is no negative evidence. And in that state the court has ruled that such an instruction should not be given where there are two witnesses who having equal facilities for seeing and hearing a thing about which they testify directly contradict each other.75

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testimony of one witness was not sufficient to convict because here is only one oath against another. This last observation may also be the basis

Quock Ting v. United States, 140 U. S. 417, 35 L. ed. 501, 11 S. Ct. 733, 851; United States v. Candler, 65 Fed. 308. "Peak v. State (Ga. App.), 62 S. E. of the requirement of two witnesses

665.

Hunter v. State, 4 Ga. App. 761, 62 S. E. 466; Skinner v. State, 108 Ga. 747, 32 S. E. 844. In England, by several statutes and resolutions, a difference has been made between civil and criminal evidence. Thus, by statutes, I Edward VI, c. 12, and 5 & 6 Edward VI, c. II, two witnesses were required to convict in high treason and petty treason unless the accused confessed. The same rule was applied to counterfeiting by statute P. & M., c. 10. This was followed and enforced in subsequent statutes. Under these statutes a confession of the person taken out of court before a magistrate or other person having competent authority to take it and proved by two witnesses was sufficient to convict. By statute 7 William III, it was also declared that both witnesses must testify to the same overt act of treason and no evidence was admitted to prove any overt act not laid in the indictment. Blackstone says that in almost every other accusation one positive witness is sufficient. In case of indictment for perjury, at the common law, the

And

in treason, for the oath of allegiance by the accused might in theory be regarded as the testimony of a witness. The principal reason, however, was to secure the subject and to protect him in his life and liberty against his political enemies who might endeavor to compass his destruction by securing his indictment for treason. Blackstone further adds that all presumptive, i. e., circumstantial evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape, than that one innocent man shall suffer. Sir Matthew Hale, in 2 Hale P. C. 290, lays down two rules, the first of which is never to convict a man for stealing the goods of a person unknown merely because he will give no account of how he came by them unless an actual felony be proven in such case; and second, never to convict any person of murder or manslaughter until at least the body be found dead. The former rule is still recognized to be good law, but the latter rule, stated in its ancient strictness, has been and is repeatedly departed from.

CHAPTER II.

PRESUMPTIONS AND BURDEN OF PROOF.

§ 17. The presumption of innocence -General rule.

18. The presumption of innocence accompanies the accused until a verdict is rendered.

19. Presumption of chastity of fe-
male, of continuance of life,
etc., conflicting with the pre-
sumption of innocence.

20. Presumptions from infancy.
21. Certain facts which the courts
are presumed to know.

22. Burden of proof and presump-
tion of innocence distin-
guished.

23. Burden of proof-General rule
casting it upon prosecution.
24. Burden of proving a negative
-Facts peculiarly within
knowledge of party alleging
them.

24a. Constitutionality of statutes
regulating the burden of
proof.

§ 17. The presumption of innocence-General rule.-It is a cardinal and important rule of the law of evidence that the defendant in a criminal trial, however degraded or debased he may be, and no matter what may be the enormity of the crime charged against him, must always be presumed innocent of the crime for which he is indicted until his guilt is proved beyond a reasonable doubt.1

1

1 Feople v. Graney, 91 Mich. 646, 52 N. W. 66; United States v. Heath, 20 D. C. 272; People v. Pallister, 138 N. Y. 601, 605, 33 N. E. 741; Gardner v. State, 55 N. J. L. 17, 652, 26 Atl. 30; People v. Coughlin, 65 Mich. 704, 32 N. W. 905; Castle v. State, 75 Ind. 146, 147; Farley v. State, 127 Ind. 419, 421, 26 N. E. 898; People v. Resh, 107 Mich. 251, 65 N. W. 99; Williams v. State, 35 Tex. Cr. App. 606, 34 S. W. 943; State v. Krug, 12 Wash. 288, 41 Pac. 126; Rogers v. State, 117 Ala. 192, 23 So. 82; Waters v. State, 117 Ala. 108, 22 So. 490;

Wilson v. State, 140 Ala. 43, 37 So. 93; McArthur v. State, 59 Ark. 431, 27 S. W. 628; People v. Arlington, 131 Cal. 231, 63 Pac. 347; People v. O'Brien, 130 Cal. 1, 62 Pac. 297; People v. Linares, 142 Cal. 17, 75 Pac. 308; State v. Smith, 65 Conn. 283, 31 Atl. 206; State v. Johns (Del.), 65 Atl. 763; Long v. State, 42 Fla. 509, 28 So. 775; Dorsey v. State, 110 Ga. 331, 35 S. E. 651; State v. Wolf (Del.), 66 Atl. 739; State v. Snyder, 137 Iowa 600, 115 N. W. 225; Tweedy v. State, 5 Iowa 433; State v. Linhoff, 121 Iowa 632, 97 N. W. 77:

Nothing need be proved nor is any evidence necessary as a basis for this presumption. The imputation of the innocence of the accused is rather a legal assumption of a fact than a presumption. The doctrine is based upon the well-recognized fact which the courts judicially notice that men generally obey the rules of the criminal law, and upon the impossibility of obtaining, and the consequent injustice of requiring, affirmative proof from the accused that he has done so in this particular case. This presumption is merely stating concisely the rule that any party, whether the state or a natural person desirous of redress for an injury, who seeks the aid of a court of justice, has the burden of proving the existence or non-existence of the facts he affirms or denies.

The presumption of innocence is always rebuttable.1 As is elsewhere explained, the evidence which will conclusively rebut this presumption must be sufficient to convince the jury upon all

Schintz v. People, 178 Ill. 320, 52 N. E. 903; Aszman v. State, 123 Ind. 347, 24 N. E. 123, 8 L. R. A. 33n; Keeton v. Commonwealth, 32 Ky. L. 1164, 108 S. W. 315; Watkins v. Commonwealth, 123 Ky. 817, 97 S. W. 740, 29 Ky. L. 1273; Wilkerson v. Commonwealth, 25 Ky. L. 780, 76 S. W. 359; People v. Potter, 89 Mich. 353, 50 N. W. 994; People v. DeFore, 64 Mich. 693, 31 N. W. 585, 8 Am. St. 863n; State v. Wilson, 130 Mo. App. 151, 108 S. W. 1086; Hemingway v. State, 68 Miss. 371, 8 So. 317; Thompson v. State, 83 Miss. 287, 35 So. 689; State v. Scheve, 65 Neb. 853, 93 N. W. 169, 59 L. R. A. 927; Morehead v. State, 34 Ohio St. 212; Huggins v. State, 42 Tex. Cr. App. 364, 60 S. W. 52; United States v. Richards, 149 Fed. 443. Note on presumption of innocence in habeas corpus proceeding, 22 L. R. A. 678; note on presumption that party intended natural consequences of acts, II L. R. A. 810; note on presumption and burden of proof as to violations of liquor law, 41 L.

R. A. 672; note on presumption as to burglary from possession of stolen property, 12 L. R. A. (N. S.) 200; note on presumption of malice from killing in prosecution for homicide, 4 L. R. A. (N. S.) 934; note on presumption as to voluntariness of subsequent confession, 18 L. R. A. (N. S.) 857; note on presumption as to character of confession, 18 L. R. A. (N. S.) 783; note on presumption of intent to defraud in false pretenses, 25 Am. St. Rep. 380; note on effect on presumption of probable cause for prosecution of fact that conviction was procured by fraud, perjury or other undue means, 15 L. R. A. (N. S.) 1143.

1a The presumption of innocence is evidence in favor of the defendant in a criminal case and stands as his sufficient protection unless it has been overcome and removed by the evidence in the case, taken as a whole, proving his guilt beyond a reasonable doubt. United States v. Kenney, 90 Fed. 257.

the facts beyond a reasonable doubt that the accused is guilty of the crime charged against him.a

The state need not, however, prove that it is impossible for the crime to have been perpetrated by any other person than the accused, that no one else had an opportunity to commit it or that it might not possibly have been the act of some one else.*

§ 18. The presumption of innocence accompanies the accused until a verdict is rendered. The presumption of innocence does not cease when the jury retires. It accompanies the accused through the trial down to and until the jury reach a verdict of guilty," and it is their duty if possible to reconcile the facts proven with this presumption.

It is reversible error for the court to refuse so to charge, or to refuse a request for a separate instruction upon the presumption of innocence, though it does instruct fully and correctly upon the necessity for proof of the defendant's guilt beyond a reasonable doubt.s

If the court instructs the jury correctly upon the presumption of innocence, and the doctrine of reasonable doubt, a further instruction that the state must show facts which are not only consistent with the guilt of the accused, but inconsistent with any other rational hypothesis, may, according to some of the cases, be properly refused."

2§§ 9-16.

v. State, 127 Ind. 419, 421, 26 N. E.

3 Commonwealth V. Leach, 160 898; Vanhouser v. State, 52 Tex. Cr. Mass. 542, 36 N. E. 471, 472.

4 Houser v. State, 58 Ga. 78, 81. * People v. Macard, 73 Mich. 15, 26, 40 N. W. 784; State v. Krug, 12 Wash. 288, 41 Pac. 126; Feople v. McNamara, 94 Cal. 509, 515, 29 Pac. 953; Edwards v. State, 69 Neb. 386, 95 N. W. 1038; Neilson v. State, 146 Ala. 683, 40 So. 221; State v. Samuels (Del.), 67 Atl. 164; Gow v. Bingham, 57 Misc. (N. Y.) 66, 107 N. Y. S. 101I.

Castle v. State, 75 Ind. 146, 147; Aszman v. State, 123 Ind. 347, 361, 24 N. E. 123, 8 L. R. A. 33n; Farley

3-UNDERHILL CRIM. EV.

App. 572, 108 S. W. 386; Thompson v. State, 83 Miss. 287, 35 So. 689; Burton v. Commonwealth, 108 Va. 892, 62 S. E. 376.

State v. Gonce, 79 Mo. 600, 602; People v. Potter, 89 Mich. 353, 354, 50 N. W. 994; Reeves v. State, 29 Fla. 527, 10 So. 901, 905.

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It was at one time held that the law presumes that the relations existing between husband and wife are amicable, and that such friendly relations continue during the existence of the marital connection, unless the contrary is shown affirmatively. In a prosecution for wife murder, where the incriminatory evidence is wholly circumstantial, the defendant is entitled to the benefit of this presumption as well as to the advantage accruing from the presumption of innocence, and the prosecution must rebut both.10 This appears to be no longer the law."1

§ 19. Presumption of chastity of female, of continuance of life, etc., conflicting with the presumption of innocence.-It often happens from the nature of the crime that the presumption that the accused is innocent encounters or is opposed by a presumption of innocence invoked, or existing, in behalf of some other person. So, in prosecutions for seduction, or for slander in imputing unchastity to a female, the rebuttable presumption that all women are chaste has sometimes, but rarely, been permitted to overcome the presumption of innocence. In other words, the state has been absolved from proving as a part of its case the female's chastity.'

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But it should be particularly noted that the presumption of innocence, though popularly attributed to every person, so that it is said, "that every person is presumed innocent until proved guilty," is restricted in its legal sense and application to the defendant in a criminal trial. It is to be used as a weapon of defense by the prisoner, not as a means of assault upon him to procure his conviction, when proof of some fact necessary to show his guilt is lacking.

W. 819, 820, 821;

Williamson v. State, 30 Tex. App. 330, 17 S. W. 722. Cf. contra, Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; State v. Moxley, 102 Mo. 374, 388, 14 S. W. 969, 15 S. W. 556; People v. Cunningham, 6 Park. Cr. Rep. (N. Y.) 398; Turner v. State, 102 Ind. 425, 427, I N. E. 869; Anderson v. State, 104 Ind. 467, 473, 4 N. E. 63, 5 N. E. 711.

392, 14 S. W. 969, 15 S. W. 556; State v. Leabo, 84 Mo. 168, 54 Am. 91.

11 State v. Soper, 148 Mo. 217, 49 S. W. 1007; Hawes v. State, 88 Ala. 37, 7 So. 302.

12 See Slocum v. People, 90 Ill. 274, 280; Kerr v. United States, 7 Ind. Terr. 486, 104 S. W. 809; Wilhite v. State, 84 Ark. 67, 104 S. W. 531. Contra, State v. McDaniel, 84 N. Car.

"State v. Moxley, 102 Mo. 374, 803, 806.

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