been committed and the allegations in the indictment are not proved. This makes a broad distinction in the application of the rule as to the burden of proof to civil and criminal cases. In the former, matters of justification or excuse must be specifically pleaded in order to be shown in evidence, and the defendant is therefore, by the form of his plea, obliged to aver an affirmative, and thereby to assume the burden of establishing it by proof, while in the latter all such matters are open under the general issue, and the affirmative, namely, proof of the crime charged, remains in all stages of the case upon the government." Com. v. McKie, 1 Gray, 61, 61 Am. Dec. 410. Continuing, the learned judge remarks-and this is the qualification of the general rule: "There may be cases where a defendant relies on some distinct, substantive ground of defense to a criminal charge, not necessarily connected with the transaction on which the indictment is founded (such as insanity, for instance) in which the burden of proof is shifted upon the defendant." In fact, we know of no case where it has been held that the rule that "the burden of proof never shifts from the state," has been held to extend further than proof of the case as charged in the indictment; nor of any case where, if the defendant seeks to excuse himself from liability on account of some substantive, distinct matter, he has not been held to have the laboring oar, and the onus of making good his issue thus presented. Much has been written, and there is much hypercriticism in the discussion of the propositions that in criminal prosecutions the onus is never shifted, and that the presumption of innocence accompanies the prisoner through all the stages of his trial. These are valuable canons of the law, but, like most other general rules, are subject to some modifications in their application, the observance of which is essential to the good order and well-being of society. Braswell v. State, 2 Crim. L. Mag. 32. ""All the presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proven guilty. If, upon such proof, there is a reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal.' In the decision of a criminal case, there must be more than a preponderance of evidence. It would not be sufficient to justify a conviction if the jury should be satisfied of the guilt of the defendant to such a moral certainty as would influ ence their minds in the important affairs of life. But the evidence must entirely satisfy the jury of the guilt of the defendant before they can convict. If the jury are not entirely satisfied, they should acquit." People v. Levine, 85 Cal. 39. 259. Never Shifts, but is with Prosecution throughout.-"Properly it (the term 'burden of proof') is applied only to a party affirming some fact essential to the support of his case. Thus used it never shifts from side to side during the trial. Loosely used . . . it is confounded with the weight of evidence, a very different thing, which often shifts from one side to the other as facts and presumptions appear and are overcome, and in this indiscriminate use of the term 'burden of proof,' much of the apparent conflict in the cases has its origin. For, after all, the test of the burden of proof is very simple, and so is the question of the weight of evidence, and there is no contrariety in the principle adopted by the authorities." Pease v. Cole, 53 Conn. 53, 55 Am. Rep. 53. The true rule is that the burden of proof never shifts; that in all cases, before a conviction can be had, the jury must be satisfied from the evidence, beyond a reasonable doubt of the affirmative of the issue presented in the accusation, that the defendant is guilty in the manner and form as charged in the indictment. Com. v. McKie, 1 Gray, 64, 61 Am. Dec. 410; Com. v. York, 9 Met. 125, 43 Am. Dec. 373; Com. v. Webster, 5 Cush. 305, 52 Am. Dec. 711; Com. v. Eddy, 7 Gray, 584. "The proposition that the burden of proof never shifts on the defendant at any stage of the proceedings is not strictly correct. It is true the state must prove the offense charged beyond a reasonable doubt. The statute then casts the burden of proof as to matters of mitigation or excuse upon the defendant. The public prosecutor cannot be compelled to search for and put in evidence all the facts connected with the transaction, or exculpatory facts in the prisoner's favor. The policy of the law, as evinced by the presumption of innocence and the doctrine of reasonable doubt, would require the public prosecutor to introduce such proof as will give a fair account of the transaction. This being done, it devolves upon the defendant to produce in evidence such matters of mitigation, justification, or excuse, if any such exist, as may tend to explain his action and show the necessity therefor; otherwise a verdict of guilty must necessarily be returned against him. He is not required by the statute however, to prove such circumstances beyond a reasonable doubt or to the extent of satisfactorily establishing his defense. He is only required to prove the same as any other facts are required to be proved; and if the matters relied on be supported by such proof as would produce a reasonable doubt in the minds of the jury as to the guilt of the prisoner, when the whole evidence concerning the transaction comes to be considered by the jury, the rule of law is that there must be an acquittal." Alexander v. People, 96 Ill. 96; Kent v. People, 8 Colo. 563. 260. Where a Fact is Peculiarly within the Knowledge of a Party.—But where a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law, will not render it incumbent upon the other side to prove the negative; but the party who must know the fact is put to the proof of it. United States v. Hayward, 2 Gall. 485. It was said by Abbott, Ch. J., that the party was called on to answer for an offense against the excise laws, sustains not the slightest inconvenience from this general rule, for he can immediately produce his license; whereas if the case is taken the other way, the informer is put to a considerable inconvenience. Harrison's Case, cited in Paley, Convictions (2d ed.) 45, note. See also Rex v. Smith, 3 Burr. 1476. The same rule has been frequently acted upon in civil cases. Thus, on an action against a person for practicing as an apothecary, without having obtained. a certificate, the proof of the certificate lies upon the defendant, and the state need not give any evidence of his practicing without it. Apothecaries Co. v. Bentley, Russ. & M. 159; People v. Nyce, 34 Hun, 298. The law is well settled that "in an action for a penalty given by statute, it was not necessary for the prosecutor to disprove any qualification; that in such case the onus probandi lay upon the defendant." People v. Quant, 2 Park. Crim. Rep. 410. Thus, on an indictment for a breach of the excise law, evidence of a sale of spirituous liquors by the defendant, in less quantities than five gallons, establishes, prima facie, the offense. It is in such case for the defendant to show that he has the license required by law. Smith v. Joyce, 12 Barb. 21. § 261. When Accused must Establish the Defense of Insanity. Crimes can only be committed by human beings who are in a condition to be responsible for their acts; and upon this general proposition, the prosecutor holds the affirmative, and the burden of proof is upon him. Sanity being the normal and usual condition of mankind, the law presumes that every individual is in that state. Hence a prosecutor may rest upon that presumption without other proof. The fact is deemed to be proved prima facie. Whoever denies this, or interposes a defense based upon its untruth, must prove it. The burden, not of the general issue of crime by a competent person, but the burden of overthrowing the presumption of sanity and of showing insanity, is upon the person who alleges it; and if evidence is given tending to establish insanity, then the general question is presented to the court and jury whether the crime, if committed, was committed by a person responsible for his acts; and upon this question the presumption of sanity and the evidence are all to be considered, and the prosecutor holds the affirmative, and, if a reasonable doubt exists as to whether the prisoner is insane or not, he is entitled to the benefit of the doubt, and to an acquittal. Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 N. Y. 377, 41 Am. Rep. 379; Walker v. People, 88 N. Y. 81; Casey v. People, 31 Hun, 158; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; People v. Schruyver, 42 N. Y. 1, 1 Am. Rep. 480; Walter v. People, 32 N. Y. 147; O'Brien v. People, 48 Barb. 274; People v. Robinson, 1 Park. Crim. Rep. 649; State v. Hoyt, 46 Conn. 330; State v. Lawrence, 57 Me. 574; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; Dacey v. People, 116 Ill. 555; State v. Crawford, 11 Kan. 32. § 262. Proving a Negative.-The burden of proving the defendant's guilt may require the prosecution to prove a negative. Com. v. Samuel, 19 Mass. 103; State v. Morphy, 33 Iowa, 270; State v. Hirsch, 45 Mo. 429; State v. Wilbourne, 87 N. C. 529. But where the fact is peculiarly within the knowledge of one party rather than the other, the burden of proof may be imposed on the one having the means of proof. State v. Arnold, 35 N. C. 184; Pounders v. State, 37 Ark. 399; State v. Camden, 48 N. J. L. 89; Wheat v. State, 6 Mo. 455; Williams v. State, 35 Ark. 430; People v. Nyce, 34 Hun, 298; Flower v. State, 39 Ark. 209; State v. Higgins, 13 R. I. 330; State v. Keggon, 55 N. H. 19; Com. v. Locke, 114 Mass. 288; Abbott, Trial Brief, §§ 739, 740. See § 4, ante. There are many negative propositions which admit of easy and certain proof; for instance, that a man was not at a given place; this may be established by showing that he was at another place, so distant as to render it impossible to suppose that he was at both; and in this and similar cases, the difficulty of showing a negative will have little or no weight in determining upon whom the onus lies. Phil. Ev. Cowen & Hill's Notes, note 346. "An affirmative proposition is to be proved by the party advancing it; and so a negative proposition. Among the most authoritative exponents of this view is Mr. Best, in his treatise on Evidence. The general rule,' he declares, 'is, that the burden of proof lies on the party who asserts the affirmative of the issue, or question in dispute,—according to the maxim, Ei incumbit probatio qui dicit, non qui negat;' and to this effect he cites Mr. Starkie and Mr. Phillipps, sustaining his views by a copious exposition. The negative, it is argued, is not susceptible of proof. An affirmative proposition, therefore, is the only kind of proposition which a party can be called upon to prove. "But to this it has been well replied, that there is no proposition which does not blend negation with affirmation, and in which affirmation of one side does not involve a denial of the other side. An alibi, for instance, is at once a negation of the defendant's presence at a particular spot at a particular time, and an affirmation of his presence at another place at the same time. Or the defense of insanity is in like manner both an affirmation and a negation-an affirmation of the existence of disturbing mental conditions, a negation of sanity. Nor is this all. In many cases each party unites, with an affirmation on his part of his own rights, and a denial of the rights of his opponent; and the affirmation and denial are so mixed as to be incapable of severance in proof." Whart. Crim. Ev. §§ 19, 320. § 263. A Prima Facie Case will not Rebut the Presumption of Innocence.—In a criminal case, a prima facie case of guilt does not generally rebut the presumption of innocence, or shift the burden of proof. Until the state proves, in the first instance, beyond a reasonable doubt, the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence. The jury are not authorized to find |