benefit upon him. Under the burden of proof the prosecution is compelled in the first instance to make out a prima facie case proving the essential facts embraced in the criminal transaction alleged, including the intent. If this is done, and the accused offers no evidence, the case as made out by the state must go to the jury. They are to consider it, but only in connection with the presumption of innocence to which the accused is always entitled, though he may have introduced no evidence whatever. In thus complying with the requirement that it shall sustain the burden of proof, the state must produce such evidence as will overcome the presumption of innocence and convince the jury of the guilt of the accused beyond a reasonable doubt. After the state has introduced all the proof which it regards as sufficient to convict the prisoner, he may meet the case thus made out against him in three different ways: First. He may plead not guilty generally. By this plea he puts in issue all the allegations of the indictment. He denies the truth of all the evidence which may be offered against him. Second. He may deny the truth of some particular ingredient in the criminal transaction, as shown by the state, as when he pleads an alibi, or, admitting the doing of the act charged, denies the presence of a malicious intent, or alleges that he was non compos mentis at the date of the alleged crime and is, therefore, not responsible for what he did. Third. He may put in a defense not traversing the allegations of the indictment, but involving some matters or facts which are entirely separate, distinct from, and independent of the original transaction set forth therein. Thus, for example, he may plead that the court has no jurisdiction of the charge, or he may plead that he had a statutory license to do what he did, or he may claim that he has been already tried and acquitted or convicted of the same crime. We will first consider a case where the accused pleads not guilty merely and traverses the allegations of the indictment.

§ 23. Burden of proof-General rule casting it upon prosecution.— The general rule stated broadly, as laid down by the cases, is that the burden of proof and the obligation to convince the jury of the prisoner's guilt beyond a reasonable doubt as to all facts and circumstances essential to the guilt of the accused, including the criminal intent, are upon the prosecution throughout the

trial.30 There is no shifting of the burden of proof during the trial.81

The making out of a prima facie case does not shift the burden. of proof to the defendant but it remains with the prosecution until the verdict is reached.

This rule is clearly applicable in every case where the defendant by pleading "not guilty" alone, and without qualification, stands upon a negative allegation, and does not rely upon any facts which are separate and distinct from, or independent of, the original transaction set forth in the indictment. By such a plea the prisoner restricts himself to denying and disproving the facts

involved in the original transaction upon which the charge is based, including, of course, all the accompanying circumstances.** The defendant is entitled to the benefit of the presumption of innocence before he introduces any evidence. Hence, though he offers no evidence, the court has no legal power to direct a verdict, but the prima facie case against him must be submitted to the jury. They must take into consideration the presumption of innocence, and should not convict unless the state has sustained the burden of proof. But when the defendant pleads any substantive, distinct and independent matter as a defense, either as justification or excuse or as an exemption from criminal liability, which upon its face does not necessarily constitute an element of the transaction with which he is charged, and which is wholly disconnected from the offense, it has been said that the burden of proving such defense devolves upon him.33 The accused must prove the independent exculpatory facts upon which he relies, and

See,

any other disease." People v. Mil-
lard, 53 Mich. 63, 18 N. W. 562.
also, Underhill on Evid., § 247.

32 For a full discussion of the question, see Commonwealth v. McKie, I Gray (Mass.) 61, 61 Am. Dec. 410. But the rule does not require an instruction that the burden of proof in every criminal case is on the state to prove all the allegations in the indictment. Young v. State, 149 Ala. 16, 43 So. 100.

33 State v. Rollins, 113 N. Car. 722, 729, 734, 18 S. E. 394; State v. Welsh, 29 S. Car. 4, 7, 6 S. E. 894; Robertson v. Commonwealth (Va.), 22 S. E. 359, 362; Myers v. Commonwealth, 90 Va. 705, 706, 19 S. E. 881; Cleveland v. State, 86 Ala. 1, 10, 5 So. 426; Commonwealth v. Eddy, 7 Gray (Mass.) 583, 584; United States v. Holmes, I Cliff. (U. S.) 98, 117, 26 Fed. Cas. 15382; Stitt v. State, 91 Ala. 10, 8 So. 669, 24 Am. St. 853; Day v. State, 21 Tex. App. 213, 17 S. W. 262; Stokes v. People, 53 N. Y. 164, 13 Am. 492; State v. Wingo, 66

Mo. 181, 183, 186, 27 Am. 329; State v. Johnson, 91 Mo. 439, 443, 3 S. W. 868; Weaver v. State, 24 Ohio St. 584, 588, 589; People v. Rodrigo, 69 Cal. 601, 11 Pac. 481; People v. Tarm Poi, 86 Cal. 225, 24 Pac. 998; Kriel

V.

Commonwealth, 5 Bush (Ky.) 362; Bergin v. State, 31 Ohio St. III, 115; Rayburn v. State, 69 Ark. 177, 63 S. W. 356; People v. Boo Doo Hong, 122 Cal. 606, 55 Pac. 402; State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L. R. A. 125; State v. Kavanaugh, 4 Pen. (Del.) 131, 53 Atl. 335; Padgett v. State, 40 Fla. 451, 24 So. 145; Williams v. People, 121 Ill. 84, II N. E. 881; State v. Wright, 134 Mo. 404, 35 S. W. 1145; State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. 54; State v. Davis, 14 Nev. 439, 33 Am. 563; People v. Riordan, 117 N. Y. 71, 22 N. E. 455; Commonwealth v. Zelt, 138 Pa. St. 615, 21 Atl. 7, II L. R. A. 602; King v. State, 91 Tenn. 617, 20 S. W. 169: State v. McCaffrey, 69 Vt. 85, 37 Atl. 234.

in this respect and to this extent, it is correct to say the burden lies on him. Notwithstanding this, if, after all the evidence is in, it is found that upon the whole case the prosecution has not sustained the burden of proof in convincing the jury of the prisoner's guilt beyond a reasonable doubt, he should be acquitted.

It may happen that the facts which sustain, or tend to sustain a defense of justification or excuse, shall came out during the examination of the witness for the prosecution. The defendant is entitled to the benefit of this for the rule that the burden of proof of an affirmative and independent defense is on the accused does not necessarily mean that he must prove it wholly by his testimony or that of his own witnesses. And no matter what the evidence may be showing justification or excuse, and whether it be strong or whether it be weak, or whether it shall proceed from the state's witnesses or from the witnesses for the accused, the accused is entitled, where there is any evidence sustaining an affirmative defense, to have it considered by the jury, with all the evidence in the case; and he is entitled to an instruction that though the burden is on him to prove an affirmative defense, yet upon all the evidence, the state must establish his guilt beyond a reasonable doubt.

24. Burden of proving a negative-Facts peculiarly within knowledge of party alleging them.—The general rule is that the burden of proof is upon him who maintains the affirmative, for the reason that the affirmative is the most susceptible of direct proof. Hence the prosecution has the burden of proof as the indictment is composed of allegations of an affirmative character.

The difficulty lies mainly in applying the rule. That it is a real difficulty no one will hesitate to believe who has struggled through the bewildering jungle of contradictory and irreconcilable decisions endeavoring to find some common principle upon which they could be harmonized or at least rendered more intelligible. The main source of the confusion which has arisen has been the forgetfulness of the fact that there is no conceivable proposition of fact affirmative in its form which does not blend a negative with it, or in other words which does not imply the negation or denial of its opposite. Thus, for example, in a prosecution for rape the allegation that the defendant violated the prosecutrix by force or

fraud involves the negative allegation that she did not consent to the intercourse.

So a charge of larceny necessitates proof that the owner of the property stolen did not consent to the taking. The allegation that personal property was stolen is inseparable from the allegation that it was taken from the owner without his consent, and for the state to prove one necessarily requires that it shall prove the other. Hence the rule that the burden of proof is upon the prosecution because it has made affirmative allegations is not affected by the existence of the implied negatives in the original transaction. The prosecution is permitted and required to prove these negatives as a part of its case, and cannot shift the burden of proving their affirmative opposites upon the accused. And in criminal cases the presumption of innocence which attaches to the accused casts the burden of proving the guilt of the accused upon the state throughout. Hence if the non-existence of some fact, or the non-performance of some duty, is a constituent and essential element in the crime with which the accused is charged, the burden of proving this negative allegation of non-existence or non-performance is upon the state. Thus, under an indictment for selling goods not produced in the United States, the burden is on the state to show that the goods were foreign. But if a fact is peculiarly within the knowledge of the accused, as, for example, his own age when he pleads non-age as a defense,34 or the fact that he has a license to carry on a prohibited business or to do a forbidden act, the burden of proof is on him as he has much better means of proving the negative fact alleged than the prosecution has of proving the contrary. The matter is peculiarly within his knowledge, and to require the state to prove the lack of a license is to require proof of a negative allegation.

35

34 Ellis v. State, 30 Tex. App. 601, 686; Commonwealth v. Thurlow, 24 18 S. W. 139; State v. Arnold, 13 Ired. (N. Car.) 184, 187.

Pick. (Mass.) 374, 381; State v. Hirsch, 45 Mo. 429; Commonwealth v. Zelt, 138 Pa. St. 615, 628, 21 Atl. 7, II L. R. A. 602; State v. Woodward, 34 Me. 293, 295; Farrall v. State, 32 Ala. 557; State v. Wilson, 39 Mo. App. 114, 115; People v. Nyce, 34 Hun (N. Y.) 298, 300; People v. Maxwell, 83 Hun (N. Y.) 157, 31 N.