jurors, the error is not cured by the court telling them, after the argument has closed, not to consider it. Huntingdon & B. T. M. R. & C. Co. v. Decker, 82 Pa. 119. The rule is settled that, in civil cases, if incompetent testimony is not withdrawn before the argument, and so that it be reasonably certain that its poison has not infected the whole case, the error in the receiving of it is not cured. What then ought to be the rule when life or liberty is at stake? If it has become a custom in capital cases to receive incompetent evidence, on the faith that it will become competent before the trial closes, would it not be well to abandon it? When such evidence has been made competent by subsequent proofs, there will not be a reversal because it was prematurely received. If withdrawn at a time and in a way that makes it certain the accused was not prejudiced, the error would be cured. But if its tendency was to affect the credibility of a witness, or to establish the prisoner's guilt, who can say it was effaced from the juror's mind. Much pains is taken to get an unbiased and pure mind, as white paper, on which to write the legal evidence, and it should not be purposely blotted with irrelevant matter. Once fouled, it is hard to clean. New York holds to the same ruling. It has long been well settled in the courts of that state that an error in the reception of illegal evidence is not cured by a direction to disregard the evidence. Erben v. Lorillard, 19 N. Y. 302; Furst v. Second Ave. R. Co. 72 N. Y. 547; Coleman v. People, 58 N. Y. 561; Anderson v. Rome, W. & O. R. Co. 54 N. Y. 341; Stokes v. People, 53 N. Y. 184, 13 Am. Rep. 492; Worrall v. Parmelee, 1 N. Y. 519, 49 Am. Dec. 350; Newman v. Goddard, 3 Hun, 72; Irvine v. Cook, 15 Johns. 239; Penfield v. Carpender, 15 Johns. 350; Vandevoort v. Gould, 36 N. Y. 639; People v. Gonzales, 35 N. Y. 49. c. Prejudice must have Resulted or Incompetent Evidence will Stand.-When a fact is conclusively proved, by competent evidence, so that the court can see that no prejudice or injury could possibly have resulted from the admission of incompetent evidence to prove the same fact in another stage of the case, its admission will not be cause for interfering with the result, but the rule is to be cautiously applied, especially in criminal cases. Williams v. Fitch, 18 N. Y. 546; People v. White, 14 Wend. 111; Erben v. Lorillard, 19 N. Y. 299. The true and the only rule that can be sustained upon principle is, that the intendment of law is, that an error in the admission of evidence is prejudicial to the party objecting, and will be ground for the reversal of the judgment unless the intendment is clearly repelled by the record. The error must be shown conclusively to be innocuous. Vandevoort v. Gould, 36 N. Y. 639; People v. Gonzales, 35 N. Y. 49. It is not enough that the court sitting in review of the judgment may be of the opinion that the result ought to, and probably would, have been the same if the objectionable evidence had been excluded, and especially ought not such a presumption avail to cure an error upon a criminal trial. The rule laid down in Foote v. Beccher, 78 N. Y. 158, is as follows: "An error in receiving incompetent evidence, if properly excepted to, can only be disregarded when it can be seen that it did no harm. If the evidence is slight or irrelevant, or if, without it, the fact is conclusively established by other evidence, it may be disregarded, because it could not have injured the other party." A just application of the law will not allow an indictment to stand unless warranted by the evidence. People v. Morrison, 1 Park. Crim. Rep. 625; Reynolds v. People, 41 How. Pr. 179; People v. Bransby, 32 N. Y. 525; People v. Dohring, 59 N. Y. 374; Walter v. People, 50 Barb. 144. And in Alabama the admission of illegal or irrelevant evidence against the objection of a defendant, on trial for a criminal offense, is a reversible error, unless it affirmatively appears that no injury resulted therefrom. Maxwell v. State, 89 Ala. 164; Marks v. State, 87 Ala. 99; Vaughan v. State, 83 Ala. 55; Mitchell v. State, 60 Ala. 26. d. When Incompetent Evidence is not Deemed Harmless. -When incompetent evidence may have a tendency to arouse the prejudices of the jury it cannot be deemed harmless. Anderson v. Rome, W. & O. R. Co. 54 N. Y. 334. And this rule applies in both civil and criminal cases, and with even greater force in the latter than in the former. Baird v. Gillett, 47 N. Y. 186; Worrall v. Parmelee, 1 N. Y. 519, 49 Am. Dec. 350; Starin v. People, 45 N. Y. 341; Ross v. Ackerman, 46 N. Y. 210; Osgood v. Manhattan Co. 3 Cow. 612, 15 Am. Dec. 304; Marquand v. Webb, 16 Johns. 89; Rosenweig v. People, 63 Barb. 635; People v. Haynes, 38 How. Pr. 369; People v. Pierpont, 1 Wheel. Crim. Cas. 139; People v. Hopson, 1 Denio, 574; Cary v. Iotailing, 1 Hill, 316, 37 Am. Dec. 323; Hall v. People, 6 Park. Crim. Rep. 671; 1 Greenl. Ev. §§ 51, 52, 448. But when such incompetent evidence is offered, the objection should be fully stated. After this has been done and the objection argued, overruled, and the evidence received; the attention of the court again called to its objectionable character by a motion to strike it out, and exception to the adverse rulings duly taken, counsel may well desist from renewing fruitless objections. State v. Graves, 17 Colo. e. When Motion to Strike out must be Made.-It is not too late after argument is closed, for the party who has given improper evidence, to call upon the judge to charge the jury, that it was illegally admitted and should be disregarded by them. Abbott, Trial, Brief, § 718. CHAPTER XXXV. BURDEN OF PROOF. 257. Preliminary View. 258. Burden of Proof Rests upon the Prosecution. 259. Never Shifts but is with Prosecution throughout. 260. Where a Fact is Peculiarly within the Knowledge of a Party. 261. When Accused must Establish the Defense of Insanity. 262. Proving a Negative. 263. A Prima Facie Case will not Rebut the Presumption of Innocence. 264. Burden of Proof in Statutory Crimes. 265. The Rule Deduced from the Celebrated Stokes Case. 267. Summary of the Conclusion Reached. § 257. Preliminary View. It is an elementary principle of criminal jurisprudence, a principle firmly imbedded in the organic law of every free state and vindicated by statutory guarantee as well as by innumerable judicial decisions, that every criminal, however hideous his alleged crime, or however debauched and fiendish his character, may require that the elements of that crime shall be clearly and indisputably defined by law, and that his commission of and relationship to the alleged offense shall be established by legal evidence delivered in his presence and before a jury of his peers. Until accorded this right, he may safely flaunt and boast his immunity from punishment, and his right to invoke the protection of the legal presumption of innocence which the law in its leniency extends to every person. This principle is vindicated in countless decisions that it is mere pedantry to cite. Its latest exposition perhaps is from Chief Judge Ruger of the New York court of appeals in People v. Plath, 100 N. Y. 590. This is a valuable principle that ought never to be drawn in ques tion. § 258. Burden of Proof Rests upon the Prosecution.Independent of any modification by statute to rebut the presumption of innocence, the burden of proof rests upon the prosecution in every kind of criminal action or proceeding; or, as otherwise expressed by an eminent author, "the burden of proof is always on the party who asserts the existence of any fact which infers legal accountability." Wills, Circ. Ev. 145, Rule 2. Guilt must be established by sufficient evidence. There has been various formulæ in use, such as "beyond a reasonable doubt," "fully satisfied," "satisfied, etc." The first expression is said to be inexplainable. Probably as sensible a definition as can be found, was expressed by Baron Parke: "The doubt, however, must be not a trivial one such as speculative ingenuity may raise, but a conscientious one, which may operate upon the mind of a rational man, acquainted with the affairs of life." Reg. v. Tawell Aylesbury Special Assizes, 1845, cited in Wills, Circ. Ev. 194; Bailey, Onus Probandi, p. 442. Where the crime consists of several degrees, this burden exists as to the degree charged, and as to every fact necessary to constitute that degree; and that, if, upon the whole evidence, including that part of the defense, as well as that of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt; and this is true with respect to the degree of the crime charged, and with reference to every essential requisite of that degree; and that in all these respects the burden is never shifted from the prosecutor to the prisoner. Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492; Brotherton v. People, 75 N. Y. 159; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; People v. Conroy, 97 N. Y. 62–75, 2 N. Y. Crim. Rep. 565; People v. Schryver, 42 N. Y. 1, 1 Am. Rep. 480. "The general rule as to the burden of proof in criminal cases is sufficiently familiar. It requires the government to prove, beyond a reasonable doubt, the offense charged in the indictment, and if the proof fails to establish any of the essential elements necessary to constitute a crime, the defendant is entitled to an acquittal. This results not only from the well established principle that the presumption of evidence is to stand until it is overcome by proof but also from the form of the issue in all criminal cases tried on the merits, which being always a general denial of the crime charged necessarily imposes on the government the burden of showing affirmatively the existence of every material fact or ingredient which the law requires in order to constitute an offense. If the act charged is justifiable or excusable, no criminal act has |