(2.) Presumptions of law (presumtiones juris) are presumptions which the law declares to be prima facie true; but which (unlike presumtiones juris et de jure) may be rebutted by evidence. Among these may be mentioned the presumption of regularity in business transactions (naturalia negotii), which transactions, if on their face regular, the law presumes to be free from defects, until the contrary be shown. With this may be mentioned the presumption, pater est is, quem nuptiæ demonstrant, which may be rebutted by proof of the illegality of the marriage, or that the father was absent during the period in which conception was possible; m and the presumption of matrimonial capacity, supposing a marriage is duly proved. In the Anglo-American penal common law, the most prominent of these presumptions is the presumption of innocence; a presumption which the law, as a matter of law, in all cases proclaims, but which may be rebutted by proof of guilt; n and the presumption of sanity, which may be rebutted by proof of insanity. o (3.) Presumptions of fact (presumtiones facti, hominis, judicis, in the German law unjuristische Wahrscheinlichkeiten), which are virtually inferences, based on inductive as distinguished from deductive proof. Among these we may mention the inference of criminal intent or malice drawn from an illegal act; p the inference of guilt drawn from attempts to escape or evade justice, or from suspicious deportment where charged with guilt. q Similar inferences may be drawn from forgery of evidence; r from antecedent preparations; 1 from declarations of guilty intentions and threats; 8 and from possession of the fruits of the offence. t Presumptions of this class are of fact, and not of law, and are simply logical inductions. u Such being the classification of presumptions, they will now be examined specifically as follows: — (a.) With a view to self-exculpation, § 9. PRESUMPTION ARISING FROM POSSES716. (b.) Maliciously, with the intention of injuring the accused or others, § 718. SION OF FRUITS OF OFFENCE, § 728. 10. PRESUMPTION ARISING FROM EXTRIN SIC AND MECHANICAL INCULPATORY INDICATIONS, § 731. 1. Presumption of Innocence, and herein of Presumption of Sanity. § 707 a. Every man is presumed to be innocent until the contrary be proved, and if there be reasonable doubt as to his guilt, the jury are to give him the benefit of such doubt; and this is a presumption of law (presumtio juris), which the law makes arbitrarily in all cases, but which, unlike the presumtiones juris et de jure, may be rebutted by evidence. There is a ground of distinction in this respect, between civil and criminal cases: in the former, the jury weigh the testimony, and after striking a fair balance, decide accordingly; but in criminal cases the testimony must be such as to satisfy the jury beyond a rational doubt, that the prisoner is guilty of the charge alleged against him in the indictment, or it is their duty to acquit. d Such doubt, however, should be actual and substantial, not mere possibility or speculative. e "It is not mere possible d Hiller v. State, 4 Blackf. 552; State v. Thompson, Wright's R. 617; Sumner v. State, 5 Blackf. 579; Emmons v. Stahlnecker, 1 Jones's Pa. R. 369 Coulter, J.; Shultz v. State, 13 Texas, 401; Jane v. Com. 2 Metc. Ky. 30; State v. Collins, 20 Iowa, 86; People v. Shuler, 28 Cal. 493; State v. Waterman, 1 Nev. 543; State v. Dineen, 10 Minn. 407; Bowler v. State, 41 Miss. 570; R. v. Jones, 28 Up. Can. Q. B. 421; post, § 737. e Com. v. Harman, 4 Barr, 270; Pate v. People, 3 Gilman, 644; U. S. v. Foulke, 6 McLean C. C. R. 349; Giles v. State, 6 Georgia, 285; State v. Schoenwald, 31 Missouri, 147; Winter v. State, 20 Alab. 39; Com. v. Drum, 58 Penn. St. 9; Long v. State, 38 Ga. 491; R. v. Greenwood, 23 Up. Can. Q. B. 258. 625 doubt; because," says Chief Justice Shaw,f "everything relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition, that they cannot say they feel an abiding conviction to a moral certainty, of the charge." g out. Burden of proof. — In an ordinary issue before the jury, when the defendant sets up in defence no distinct and independent fact, but contends that upon the facts and circumstances, as proved by the evidence on both sides constituting the transaction charged as criminal, he is not guilty, the burden of proof is on the prosecution to satisfy the jury that its whole case is made Thus on an indictment for assault and battery, when such a course of trial is pursued, the burden is on the prosecution to show that the assault was unjustifiable. h So where a blow is admitted, the prosecution must satisfy the jury that it is intentional, i and the inference of intent is to be made from the facts in evidence in the whole case. So, in an indictment for seduction, the chastity of the prosecutrix must be proved, not presumed. j1 And the principle may be broadly stated, that when the defendant relies on no separate, distinct, and independent fact, but confines his defence to the original transaction on which the charge is founded, with its accompanying circumstances, the burden of proof continues throughout with the prosecution. Each item of the charge must be proved in the f Bemis's Webster case, 190; Com. v. Webster, 5 Cush. 320; Com. v. Goodwin, 14 Gray, 55. See R. v. White, 4 F. & F. 383, and post, § 732. g See, also, 1 Phillips Ev. 156; 1 Starkie on Ev. 478; 3 Greenl. Ev. § 29; Pilkinton v. State, 19 Texas, 214; Donelly v. State, 2 Dutch. (N. J.) 601; French v. State, 12 Ind. 670; James v. State, 45 Missis. 572; State v. Ostrander, 18 Iowa, 435. h Com. v. McKie, 1 Gray, 61; see Com. v. Kimball, 24 Pickering, 366; Com. v. Dana, 2 Metc. 340; R. v. Allen, 1 Moody C. C. 154; see Bennett & Heard Lead. Cas. 356. i U. S. v. McGlue, 1 Curtis C. C. 1. j Post, § 710. j1 West v. State, 1 Wisc. 209; see Crilley v. State, 20 Wis. 231. k Com. v. McKie, 1 Gray, 61. In this case, after stating the general rule as to the burden of proof, Bigelow, J., said:— "In the application of these familiar principles to particular cases, many nice distinctions have arisen, which it is unnecessary now to consider; because we are all of opinion that the case at bar falls clearly within the general rule. However the rule may be in cases where the defendant sets up, same manner as if the whole issue rested on it. k1 The proof to overcome the burden, however, need not be by oral testimony in answer to a criminal charge, some separate, distinct, and independent fact, or series of facts, not immediately connected with and growing out of the transaction on which the criminal charge is founded, there can be no doubt that in a case like the present the burden of proof remains on the government throughout, to satisfy the jury of the guilt of the defendant. It appears by the evidence, as stated in the bill of exceptions, that the justification, upon which the defendant relied, was disclosed partly by the testimony introduced by the government and in part by evidence offered by the defendant; and that it related to and grew out of the transaction or res gestæ, which constituted the alleged criminal act. The defendant did not set up any distinct, independent fact in defence of the charge; he neither alleged, nor assumed to prove, anything aside or out of the case on the part of the government; but he contended, taking the facts and circumstances, as proved by the evidence on both sides, constituting the transaction itself on which the case for the prosecution rested, that he was not shown to be guilty, because they did not prove, beyond a reasonable doubt, that he had committed the of fence laid to his charge. An assault and battery consists in the unlawful and unjustifiable use of force and violence upon the person of another, however slight. If justifiable, it is not an assault and battery. 1 Hawk. c. 62, s. 2; 1 Russ. on Crimes (7th Amer. ed.), 750; 3 Bl. Com. 121; Bac. Ab. Assault and Battery, B.; 5 Dane Ab. 584; Com. v. Clark, 2 Metc. 24. "Whether the act, in any particular case, is an assault and battery, or a gentle imposition of hands, or a proper application of force, depends upon the question whether there was justifiable cause. 2 Metc. 25. If, therefore, the evidence fails to show the act to have been unjustifiable, or leaves the question in doubt, the criminal act is not proved, and the party charged is entitled to an acquittal. To illustrate this, it is clearly settled, that when an injury to the person is accidental, and the party defendant is without fault, it will not amount to an assault and battery. Rosc. Crim. Ev. 289. Now in a case of this sort, if the evidence. offered by the government leaves it doubtful whether the injury was the result of accident or design, there can be no question of the right of the defendant to an acquittal, because it is left doubtful whether any criminal act was committed. But can the government, in such a case, on proving simply the injury to the person, rest their case, and call on the defendant to assume the burden of the proof and satisfy the jury that it was accidental, or else submit to a conviction? If so, then a criminal charge can always be shown by proving part of a transaction, and the burden of proof can be shifted upon the defendant, by a careful management of the case on the part of the government, - so as to withhold that part of the proof which may bear in his favor. But further: the rule of the burden of proof cannot be made to depend upon the order of proof, or upon the particular mode in which the evidence in the case is introduced. It can make no difference, in this respect, whether the evidence comes from one party or the other. In the case supposed, if it is left in doubt, on the k1 Henderson v. State, 14 Texas, 503; State v. McCluer, 5 Nev. 132. 1 as to facts. Indeed facts, viewing them baldly, form but a small part of the proof of a case in comparison with inferences from facts. Thus on the evidence of a premeditated killing, the law infers or presumes malice, and by this inference or presumption the burden as to malice is removed. § 708. When burden shifts. It has already been considered, l whether, where the defendant, conceding the facts of the prosecution, sets up a matter of excuse or avoidance, doubts as to the validity of such matter of defence are to continue to weigh in his favor; or whether, on the other hand, a preponderance of evidence is not necessary to satisfy, in such respects, the jury. Thus, for instance, where, on an indictment under the license laws, the defendant is shown to have retailed liquor; the question is, whether on his setting up as a defence a license to sell, the jury must acquit if they find reasonable doubt as to the existence of the license, or whether they are justified in convicting unless a preponderance of evidence shows such a license to exist. And the law is, that in such cases the presumption of whole evidence, whether the act was "Even in the case of homicide, where stance attending the homicide. Com. v. York, 9 Metc. 116; Com. v. Webster, 5 Cush. 305. "There may be cases where a defendant relies on some distinct, substantive ground of defence 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. But in cases like the present (and we do not intend to express an opinion beyond the precise case before us), where the defendant sets up no separate, independent fact in answer to a criminal charge, but confines his defence to the original transaction charged as criminal, with its accompanying circumstances, the burden of proof does not change, but remains upon the government to satisfy the jury that the act was unjustifiable and unlawful. Com. v. M'Kie, 1 Gray R. 63, 64, 65." Ante, § 614, 615. |