particular instances of presumptive proof which may occur in the course of criminal proceedings. Proof of the possession of land, or the receipt of rent, is prima facie evidence of seisin in fec. Co. Litt. 15, a; B. N. P. 103. So possession is presumptive evidence of property in chattels. A deed or other writing thirty years old is presumed to have been duly executed, provided some account be given of the place where found, etc., B. N. P. 255. The license of a lord to inclose waste may be presumed after twelve or fourteen years' possession, the steward of the lord having been cognizant of it. Doe v. Wilson, 11 East, 56; Bridges v. Blanchard, 1 A. & E. 536, 28 E. C. L. The flowing of the tide is presumptive evidence of a public navigable river, the weight of such evidence depending upon the nature and situation of the channel, Miles v. Rose, 5 Taunt. 144; Turner v. State, 4 Lea (Tenn.) 206; Garfield v. State, 74 Ind. 60; or when it is such as honest, conscientious men may entertain on the state of facts presented. People v. Stott, 4 N. Y. Crim. Rep. 306. A charge to the jury that a reasonable doubt is such as "arises fairly and naturally in the mind of the whole jury" is erroneous. State v. Sloan, 55 Ia. 217. It is error to refuse to charge that "a probability of defendant's innocence is a just foundation for his acquittal." Bain v. State, 74 Ala. 38. It is erroneous to charge the jury that "when the evidence is such that a man would act upon it in his own affairs of great importance, there is no reasonable doubt within the meaning of the law." People v. Ah Sing, 51 Cal, 372. The error of the court in refusing to charge that the jury must acquit where there is a reasonable doubt, is not cured by a general charge on presumption of innocence. Snyder v. State, 59 Ind. 105. The jury, when unable to reconcile a conflict of testimony, may give credit to that which they deem the best. Taylor v. State, 5 Tex. App. 1; Brady v. State, Id. 343; Templeton v. State, Id. 398; Johnson v. State, Id. 423. Where a statute requires the testimony of at least two witnesses, or the equivalent thereto, it is sufficient if the evidence as a whole is equivalent to two witnesses, each important fact need not be so proved. State v. Smith, 49 Conn. 376. Where the evidence is wholly circumstantial, each fact in the chain must be proved by the same weight of evidence as if it were the main fact in issue. Harrison v. State, 6 Tex. App. 42. Circumstantial evidence may be used to prove incidental facts in the chain as well as the main issue. State v. Reno, 67 Ia. 587. The fact that a crime has been committed may be proved by circumstantial evidence. State v. Winner, 17 Kan. 298. The burden of establishing the guilt of the accused is never shifted from the State. State v. Wingo, 66 Mo. 181; Jones v. State, 13 Tex. App. 1; Taylor v. State, Id. 184; Turner v. Commonwealth, 86 Pa. St. 54. But where a defence is set up, such as irresponsible drunkenness, the burden of proof is on the defendant, and it must be shown by a fair preponderance of evidence. State v. Grear, 29 Minn. 24; People v. Bell, 49 Cal. 486. So also of insanity. State v. Geddis, 42 Ia. 264. It is error if the court instruct the jury that the evidence must be clearly preponderating. Coyle v. Commonwealth, 100 Pa, 573. The burden is on the defendant to show facts of alleviation, such as would reduce his offence to the crime of manslaughter. Commonwealth v. Bush, 2 Pa. Sup. Ct. Dig. 61. Wherever any evidence is part of the proper case of the prosecution, the burden of proof is upon the State. There can be no presumption from a failure of the defendant to produce such evidence, even when in his own hands. State v. Wilbourne, 87 N. C. 529; People v. Sweeny, 4 N. Y. Crim. Rep. 275. The weight of circumstantial evidence is for the jury. And it is not error to admit evidence that defendant was seen in possession of a horse shortly after a larceny, without fully identifying the horse as the one stolen, State v. Ingram, 16 Kan, 14. Blood stains, or what appear to be such, may be proved as tending to the identification of specific articles. Commonwealth v. Tolliver, 119 Mass. 312. See also Commonwealth v. Watson, 109 Mass. 354. Where on a trial for theft the State has produced evidence of peculiar footprints from place of theft to defendant's house, the prisoner may show that he had not worn nor possessed such a boot. Stone v. State, 12 Tex. App. 219. On the presumption, in larceny, arising from the free use of money. State v. Grebe, 17 Kan, 458. 1 705, 1 E. C. L.; 1 Marsh, 813; R. v. Montague, 4 B. & C. 602, 10 E. C. L. The existence of an immemorial custom may be presumed from an uncontradicted usage of twenty years. R. v. Joliffe, 2 B. & C. 54, 9 E. C. L.; 3 D. & R. 240. So the continuance of things in statu quo will be generally presumed; as where the plaintiff being slandered in his official character proves his appointment to the office before the libel, his continuance in office at the time of the libel need not be proved though averred.' R. v. Budd, 5 Esp. 229. So the law presumes that a party intended that which is the immediate or probable consequence of his act. R. v. Dixon, 3 M. & S. 11, 15.2 So a letter is presumed as against the writer, to have been written *upon the day on which it bears date; Hunt v. Massey, 5 B. & *18] Ad. 902, 27 E. C. L.; 3 Nev. & M. 109; and whether written by a party to the suit or not; Poten v. Glossop, 2 Ex. R. 191; and a bill is presumed to be made on the day it is dated; Owen v. Waters, 2 M. & W. 91; except when used to prove a petitioning creditor's debt; Anderson v. Weston, 6 Bing. N. C. 296, 301, 37 E. C. L. So the presumption is that indorsements on a note admitting the receipt of interest were written at the time of their date. Smith v. Battens, 1 Moo. & R. 341. Indeed it is a general presumption that all documents were made on the day they bear date. Davies v. Lowndes, 7 Scott, N. R. 141; Poten v. Glossop, 2 Ex. 191. Presumption of innocence and legality. The law presumes a man to be innocent until the contrary is proved, or appears from some stronger presumption. In other words, a man cannot be presumed to have committed a crime without some evidence of it. But any evidence, however small, if it be such that a reasonable man might fairly be convinced by it, is sufficient for the purpose.3 Presumption against immorality. There is also a general presumption against immoral conduct of every description. Thus legitimacy is always presumed; Banbury Peerage Case, 1 Sim. & S. 153; and cohabitation is generally presumptive proof of marriage: Doe d. 1 A state of relations between parties once shown to exist, is presumed to continue until a change is proved to have occurred. Eames v. Eames, 41 Ñ. H, 177. S. So also a reputation for veracity. Lum v. State, 11 Tex, App. 483, A person is presumed to intend the ordinary consequences of his acts; and the burden of proof is upon a person charged with crime to rebut this presumption by evidence of a different intent. People v. Orcutt, 1 Park. Cr. R. 252. S. State v. Heaton, 77 N. C. 505. It is error if the judge so words his charge as to mislead the jury on this point. Anderson v. State, 41 Wis. 430. 3 In a criminal case, the establishment of a prima facie case only does not take away the presumption of the defendant's innocence, nor shift the burden of proof: Ogletree v. State, 28 Ala. 693; People v. Milgate, 5 Cal. 127. [State v. Banks, 43 Ia. 595. Presumption of innocence is inapplicable in civil cases. McDeed v. McDeed, 67 Ill. 545.] The killing being proved, the law implies malice, and it devolves on the defendant to repel the presumption. People v. Marsh, 6 Cal. 543; People v. Stonecifer, Id. 405. See Gray v. Gardiner, 3 Mass. 399. As to when the law will presume malice. See Head v. State, 44 Miss. 731; Evans v. State, Id. 762; Murphy v. People, 37 Ill. 447; State v. Bonds, 2 Nev. 265. S. State v. Goodenow, 65 Me. 30. Fleming v. Fleming, 4 Bing. 266, 13 E. C. L.; except in cases of bigamy. So it will not be presumed that a trespass or other wrong has been committed; Best. Ev. 416; and there is always a presumption in favor of the truth of testimony. Id. 419. Where a woman, whose husband twelve months previously had left the country, married again, the presumption that she was innocent of bigamy was held to preponderate over the usual presumption of the duration of life. R. v. Inhab. of Twyning, 2 B. & A. 386. But the observations of Bayley, J., and Best, J., in R. v. Twyning, with respect to conflicting presumptions, were questioned by the court in R. v. Harborne, 2 Ad. & E. 544, 29 E. C. L.; where it was decided that the court of quarter sessions were right in presuming that the first wife was living, although such presumption led to the conclusion that the husband had been guilty of bigamy. The court put the case of a man being shown to be alive a few hours before the second marriage, as one in which the presumption that he was alive at the time of the second marriage would clearly be made. And it is to be observed, that the circumstances of the two cases differed so much as fully to justify the court of quarter sessions in coming to opposite conclusions upon them. It has now been decided that no presumption arises that the party is alive, but that it is a question for the jury. See R. v. Lumley, L. R. 1 C. C. R. 196; see post, tit. "Bigamy." See upon the point of conflicting presumptions, Middleton v. Barned, 4 Ex. 241. Presumption omnia ritè esse acta. This well-known presumption is of very common application. Upon this principle it is presumed that all persons assuming to act in a public capacity have been duly appointed. Thus in R. v. Gordon, Leach's Cr. Ca. 515, on an indictment for the murder of a constable in the execution of his office, it was held to be not necessary to produce his appointment; and that it was sufficient if it was proved that he was known to act as *constable. The same presumption applies in favor of the due dis[*19 charge of official and public duties, and see R. v. Cresswell, 1 Q. B. D. 446; 43 L. J. M. C. 77; 13 Cox, C. C. R. 127, post, tit. "Bigamy," where it was presumed that a clergyman rightly performed a marriage ceremony. R. v. Roberts, 14 Cox, C. C. 101, where it was held that a deputy county court judge acting as such was evidence of his being duly appointed. R. v. Stewart, 13 Cox, C. C. 296, where it was presumed that a consul at New York had taken proper steps with regard to the transmission of witnesses. 1 Dean v. Gridley, 10 Wend. 254; Bryden v. Taylor, 2 H. & J. 396. So the presumption is that an officer has done his duty. Winlow v. Beall, 6 Call, 44. In favor of the acts of public officers the law will presume all to have been rightly done, unless the circumstances of the case overturn the presumption. Ward v. Barrows, 2 0. 241. The presumption is that the committing magistrate did his duty in reducing the examination to writing, until the contrary is proved. Davis v. State, 17 Ala. 415; State v. Eaton, 3 Harring. 554; State v. Parrish, Busb. Rep. 239; Peter v. State, 4 Sm. & Marsh. 31. S. The records of a district court showing forfeiture of bail are conclusive in an action against the surety to recover on his bond. State v. Bryant, 55 Ia. 451. In an application to reduce bail or to discharge an order of arrest, unless the facts on which the Presumptions from the course of nature. It is a presumption of law that males under fourteen are incapable of sexual intercourse. So it is a presumption of fact that the period of gestation in woman is about nine calendar months. The exact limits of this period are, both legally and scientifically, very unsettled; and if there were any circumstances from which an unusually long or short period of gestation might be inferred, or if it were necessary to ascertain the period with any nicety, it would be desirable to have special medical testimony upon the subject. The subject was elaborately discussed in the Gardiner Peerage case, and the scientific evidence given in that case will be found in the report of it by Le Marchant. For ordinary purposes, however, it will be a safe presumption that fruitful intercourse and parturition are separated by a period not varying more than a week either way from that above mentioned. There is no presumption of law that life will not continue for any period however long, but juries are justified in presuming, as a fact, that a person is dead who has not been heard of for seven years: Hopewell v. De Pinna, 2 Campb. 113; this is in analogy to the period fixed by the 1 Jac. 1, c. 11, s. 2 (see now 24 & 25 Vict. c. 100, s. 57), which absolves a husband or wife from the penalties of the crime of bigamy after an absence of seven years.1 Presumption of guilt arising from the conduct of the party charged. In almost every criminal case a portion of the evidence laid before the jury consists of the conduct of the party, either before or after being charged with the offence, presented not as part of the res gesta of the criminal act itself, but as indicative of a guilty mind. The probative force of such testimony has been elaborately, carefully, and popularly considered by Bentham, in his Rationale of Judicial Evidence, ch. 4. In weighing the effect of such evidence nothing more than ordinary caution is required. The best rule is for the jury order was granted are denied they will be presumed to be true. People v. Tweed, 5 Hun, (N. Y.) 382. 1 Miller et al. v. Beater, 3 S. & R. 490; King v. Paddock, 18 Johns. 141; Wambaugh v. Scharck, 1 Penn. 229; Innis et al. v. Campbell et al., 1 R. 373; Crouch et ux. v. Eveleth, 15 Mass. 305; Battin's Lessee v. Bigelow, Pet. C. C. 452. When a person has been absent seven years from the place of his domicile, his death is presumed to have taken place at some time within the seven years, and not in all cases at the expiration of that period. State v. Moore, 11 Ired. 160. When a party has been absent from his place of residence for more than seven years, and has not been heard from during that period, and is afterwards seen in his own State, hearsay evidence of the fact is not admissible, but the person who saw him should be brought to testify to the fact. Smothers v. Mudd, 9 B. Mon. 490. The presumption in law, of a person's death, arises only after a seven years' absence, without intelligence, though a jury may find it under circumstances, from a shorter time. Puchett v. State, 1 Sneed, 355; Stevens v. Macnamara, 36 Me. 176; Rice v. Lumley, 10 O. St. 596. There is no positive rule as to when the presumption of death arises. Merrit v. Thompson, 1 Hilt. (N. Y.) 550. The presumption of death which arises at the expiration of seven years cannot operate retrospectively. Clarke's Exrs. v. Canfield, 2 McCar. 119. When the presumption of a continuation of life conflicts with that of another person's innocence of a criminal offence, the latter will prevail. Sharp v. Johnson, 22 Ark. 79. The presumption of death after an absence of more than seven years is applicable only to one who has left his home or place of residence. Commonwealth v. Thompson, 11 Allen, 23. S. to apply honestly their experience and to draw such inferences as experience indicates in matters of the gravest importance. This will, in general, be found a safer guide than a consideration of some of the extreme cases which are related in many of the books on evidence. These must be considered as somewhat exceptional, and it may be fairly said that this is a very useful kind of evidence, and one which no judge need seek to withdraw from the consideration of a jury.' 1Offer to bribe the officer and attempt to escape are admissible. Devan v. Commonwealth, 4 Gratt. 541; Whaley v. State, 11 Ga. 123; Fanning v. State, 14 Mo. 386. [Waite v. State, 13 Tex. App. 169; Burris v. State, 38 Ark. 221; State v. Williams, 54 Mo. 170. But see State v. Williams, 43 Tex. 182; Cordova v. State, 6 Tex. App. 207.] It is competent to show that the defendant advised an accomplice to escape. People v. Rathbone, 21 Wend. 509. [The appearance bond and its forfeiture are proper evidence to go to the jury, as evidence of concealment, flight, etc. State v. Wingfield, 34 La. An. 1200.] Evidence that the defendant in an indictment refused to fly, when advised to do so, after suspicions against him were excited, is inadmissible in defence. Commonwealth v. Hersey, Allen, 173. [Williams v. State, 52 Ala. 411. He cannot account for his flight until it is proved by the prosecution. State v. Hays, 23 Mo. 287. Accompanying declarations only, not subsquent ones, are admissible to explain it away. Chamblee v. State, 78 Ala. 466. In a clear case he cannot complain that his explanation is excluded. People v. Ah Choy, 1 Idaho, 317. Where the State introduces evidence that the wife of defendant said he was not in the house, when he was, it must also be shown that the defendant heard the conversation. Clark v. State, 78 Ala. 474.] "Flight may be very strong evidence of guilt, or it may weigh nothing, according to the circumstances under which it takes place. The legal presumption from flight is against the prisoner, and it lies upon him to rebut it." Fox, J., Chapman's Trial, pamph. p. 213. [State v. Beatty, 30 La. An. Pt. II, 1266; Batten v. State, 80 Ind. 394.] It is of no weight as a presumption where the killing is not denied, and, therefore, it is not ground for a reversal in such a case that evidence to explain the flight was excluded. State v. Milton, 37 La. An. 77. of flight is always admissible. People v. Ogle, 4 N. Y. Crim. Rep. 349.] tending to show a defendant's concealment of himself in fear of arrest is admissible. People v. Pitcher, 15 Mich. 377. [People v. Lockwing, 61 Cal. 380; Barron v. People, 73 Ill. 256. The rule extends only to the person fleeing, and the flight of one or two conspirators cannot be put in evidence against the other on a separate trial. People v. Stanley, 47 Cal. 113. Evidence why defendant in a criminal case broke jail is admissible. State v. Mallon, 75 Mo. 355. So the requisition of the governor of another State is admissible to show how he was arrested. Bowles v. State, 58 Ala. 335.] To rebut the presumption of guilt arising from the flight and concealment of those charged with the crime, evidence that such concealment and flight was caused by apprehension of violence is admissible. Plummer v. Commonwealth, 1 Buch. 76. Evidence that one on trial for murder, tried to break jail and was recaptured is admissible. Hittner v. State, 19 Ind. 48. See, also, Murrill v. State, 46 Ala. 89. S. [Attempt to escape, as well as actual escape may be shown. State v. Stevens, 67 Ia. 557.] Evidence Letters written by the defendant implicating him in an attempt to tamper with a witness and the jury are admissible against him. People v. Marion, 29 Mich. 31; Adams v. People, 16 N. Y. Sup. Ct. 89. So, also, evidence of an attempt at a former trial of the same cause, to corrupt a juror, as tending to prove the cause of action or ground of defence relied upon by the party making such attempt, false and dishonest. Hastings v. Stetson, 130 Mass. 76; Gulerette v. McKinley, 27 Hun, (N. Y.) 320; also the deportment of the accused when confronted with the corpse of the deceased. Handline v. State, 6 Tex. App. 347. But when the State has shown the conduct of the accused in the presence of the dead body, he cannot in rebuttal offer to prove what he said at the time. U, S. v. Neverson, 1 Mackey (D. C.) 152. Evidence that a justice who performed a marriage ceremony in which the girl was apparently under the age of consent, omitted all inquiry for her parents, is admissible to show that he knew the marriage was unlawful. Bouker v. People, 37 Mich. 4 When a man stole hogs and drove them home, false statements made by his wife as to them will not implicate her, in the absence of proof of her participation. Porter v. State, 43 Tex. 367. A proposal made by the wife of the accused, in his absence, to |