the defendant guilty on the evidence of a single witness, upon whose testimony the question of guilt depends, if they have a reasonable doubt of the truth of his statements. Washington v. State, 58 Ala. 355.

264. Burden of Proof in Statutory Crimes.-In all statutory crimes it is competent for the legislature to say that certain facts proven by the commonwealth shall be sufficient to make out a presumptive case against the accused, and cast the burden of proof upon him, provided the burden is cast upon him to prove his innocence, without first requiring the commonwealth to prove some material fact or circumstance conducing to prove the guilt of the accused. For instance, where it has been proven that a faro bank or other table mentioned in the statute has been set up in any of the houses mentioned in the statute, the statute makes such proof evidence that the faro bank or other table was set up by the permission of the person occupying or controlling the house, etc. The constitutionality of this provision has never been questioned. In the case of Buford v. Com. 14 B. Mon. 24, the right of the commonwealth to convict on such testimony was sanctioned. Com. v. Minor, 88 Ky. 422.

265. The Rule Deduced from the Celebrated Stokes Case.--It is a cardinal rule in criminal prosecutions that the burden of proof rests upon the prosecutor; and that if upon the whole evidence, including that of the defense as well as of the prosecution, the jury entertains a reasonable doubt of the guilt of the accused, he is entitled to the benefit of the doubt. The jury must be satisfied on the whole evidence of the guilt of the accused; and it is clear error to charge them, when the prosecution has made out a prima facie case and evidence has been introduced tending to show a defense, that they must convict, unless they are satisfied of the truth of the defense. Such a charge throws the burden of proof upon the prisoner and subjects him to a conviction, though the evidence on his part may have created a reasonable doubt in the minds of the jury as to his guilt. Instead of leaving it to them to determine upon the whole evidence whether his guilt is established beyond a reasonable doubt, it constrains them to convict, unless they are fully satisfied that he has proved his innocence. Stokes v. People, 53 N. Y. 164, 13 Am. Dec. 492.

§ 266. Views of Sir James Stephen.-"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist. If the commission of a crime is directly in issue in any proceeding, criminal or civil, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. . . . The burden of proof in any proceeding lies at first on that party against whom the judgment of the court would be given if no evidence at all were produced on either side, regard being had to any presumption which may appear upon the pleadings. As the proceeding goes on, the burden of proof may be shifted from the party on whom it rests at first by his proving facts which raise a presumption in his favor. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person; but the burden may in the course of a case be shifted from one side to the other, and in considering the amount of evidence necessary to shift the burden of proof the court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence." Stephen, Dig. chap. 13.

267. Summary of the Conclusions Reached. It is idle to pursue this topic further, as there are few legal propositions that are so wholly bereft of technical embarrassments. The formula we may safely adduce from the reported cases as to the burden of proof, may be stated as follows: It is obligatory upon the state to sustain the burden of proof throughout the trial, so far as regards the material averments of the indictment, and the proof of the same. And as regards these averments, the burden of proof never shifts. Where, however, the defense relies upon some distinct substantive matter which is calculated to exempt him from punishment and absolve him from liability, then that is matter foreign to the issue as made by the state in her charge against

him, and the burden of proving it in reason, common sense and law, should be upon the defendant. Ake v. State, 6 Tex. App. 398, 32 Am. Rep. 586. For an exceedingly valuable review of this discussion, the practitioner is referred to an extended note appended to the case of Boswell v. State, 53 Ala. 307, as reported in 53 Am. Rep. 20.

The "ultimate essence" of all reasoning on the subject may be thus expressed: "The evidence given by the prosecution must furnish an adequate foundation for the conclusion of fact involved in the verdict against the accused." Otherwise the state has failed to rid itself of the onus probandi and the trial must result in an acquittal.

CHAPTER XXXVI.

REASONABLE DOUBT.

§ 268. Difficulty in Defining.

269. The Phrase "Moral Certainty" Examined.

270. Observations of Authority on the Term "Reasonable Doubt."

271. Views of the Missouri Supreme Court.

272. Extended Citation of the Authorities.

§ 268. Difficulty in Defining.-Many efforts have been made to define the expression "reasonable doubt," and hitherto the definitions given are not remarkable for clearness of thought or accuracy of expression. They appear generally to be involved in the uncertainty of the subject which they are attempting to define, and it is much easier to say what is not a correct definition of the term than to determine the precise signification of the expression as used in the trial of criminal cases.

The following instruction as to what was meant by "reasonable doubt" was approved by Campbell, Ch. J., in People v. Finley, 38 Mich. 482, viz:

"A reasonable doubt' is a fair doubt, growing out of the testimony in the case. It is not a mere imaginary, captious, or possible doubt, but a fair doubt, based upon reason and common sense. It is such a doubt as may leave your minds, after a careful examination of all the evidence in the case, in that condition that you cannot say you have an abiding conviction, to a moral certainty, of the truth of the charge here made against the respondent."

A reasonable doubt is one arising from a candid and impartial investigation of all the evidence, and such as, in the graver transactions of life, would cause a reasonable and prudent man to hesitate and pause. May v. People, 60 Ill. 119; Miller v. People, 39 Ill. 457; Connaghan v. People, 88 Ill. 460; Dunn v. People, 109 Ill. 635.

A reasonable doubt entertained by some of the members of the jury may not compel an acquittal, but it may so strongly prevail, and among so many, as to warrant others in yielding their opin

ions, and joining in a verdict of acquittal. Stitz v. State, 104 Ind. 359.

It is not easy to define, in a few words, what a reasonable doubt is, and, in some jurisdictions, it is deemed good practice not to attempt any explanation. In Ohio it is common to define the term. When it is attempted, the explanation should be an acuThe definition given by Birchard, J., in Clark v. State, 12 Ohio, 483, note, 40 Am. Dec. 481, is well established as a safe one, and its sufficiency is not impaired by its age. It is safe to follow established precedents. Morgan v. State, 48 Ohio St. 371. The definition referred to is as follows:

rate one.

In

"You will be justified and are required to consider a reasonable doubt as existing, if the material facts, without which guilt cannot be established, may fairly be reconciled with innocence. human affairs absolute certainty is not always attainable. From the nature of things, reasonable certainty is all that can be attained on many subjects. When a full and candid consideration of the evidence produces a conviction of guilt, and satisfies the mind to a reasonable certainty, a mere captious or ingenious artificial doubt is of no avail. You will look, then, to all the evidence and if that satisfies you of the defendant's guilt, you must say so. If you are not fully satisfied, but find only that there are strong probabilities of guilt, your only safe course is to acquit.” Birchard, J., in Clark v. State, 12 Ohio, 495, note, 40 Am. Dec. 181.

In criminal matters nothing is to be taken by intendment, but the utmost strictness of construction prevails in favor of liberty and life. State v. Dickinson, 41 Wis. 299. Again, it is an imperative rule of evidence that the allegations of the prosecutor must be proved beyond reasonable doubt. In civil cases, the law, in general, only requires that the fact in issue shall be established by the party having the burden of proof, to the reasonable satisfaction of the jury. This appears to be the meaning of the phrase "by a preponderance of proof." Com. v. York, 9 Met. 93, 43 Am. Rep. 373; Richardson v. Burleigh, 85 Mass. 479.

The administration of the criminal law is essentially dependent, in a large degree necessarily, on the existence and force of circumstances, for the purpose of making out criminal charges. This results from the fact that crimes ordinarily seek concealment. They are committed ordinarily, openly, and before the public, or before the public eye, but occasions are sought for the commission