#### Crilley vs. The State.

Practice— *Writ of errm'*— Instructions *to jury m criminal*action.

1. When a cause is brought to this court by writ of error, the original papers should not be sent up, but a certified copy.

2. A writ of error does not lie where there is no final judgment.

3. "Where the jury, in a criminal case, were instructed that the burden was upon the state of proving the defendant’s guilt, and he must be presumed innocent unless the whole evidence satisfied them beyond a reasonable doubt that hewas guilty, it was not error to refuse to instruct them further, in so many words, “that the burden of proof did not *shift,*during the trial, to the defendant.”

4. The indictment being for larceny, it was not error to instruct the jury that if they were satisfied that the property so stolen was, within a short time after-wards, found in the possession of the prisoner, the burden devolved upon him of showing how he came by it, otherwise he may be presumed to have obtained it *feloniously;*especially when the court proceeded further to instruct them that *“*such presumption might be rebutted by the circumstances proved,” and that it was “ a presumption of fact, and if the evidence led to a reasonable doubt whether the presumption was well founded, that doubt would avail in favor of the accused.”

EEEOE to tbe Municipal Court of tbe City and County of *Mihuaulcee.*

Tbe bill of exceptions in tbis cause is no longer on file in tbis court; but tbe essential facts will sufficiently appear from tbe opinion.

*F. Fox Cooh,*for plaintiff in error.

*Chas. F.*Qill, Attorney General, for tbe state.

*232Downer, J.

Tbe writ of error in this case must be dismissed, as there is no final judgment. Still it is insisted that, inasmuch as there is a bill of exceptions signed by the judge who tried the case, it is properly here under the provisions of chapter 180, R. S., and we orrght to proceed and decide upon the errors alleged.

The bill of exceptions on its face shows that it was made with a view to a writ of error, and the original papers are sent up by the clerk of the municipal court, and not a copy as the law requires where the case is certified to this court on exceptions. The original papers ought not to be sent up when the case is removed to this court by writ of error, but a certified copy. We have, however, at the request of the attorney general and of the counsel for the defendant below, examined the alleged errors. They are, that the court below refused to give the first and fifth instructions asked by the defendant below.

By the first instruction, the court was asked to charge the jury that “ the burden of proof of every material fact alleged in the indictment is on the prosecution, and *does not shift during the trial to the*defendantIf the municipal court had charged the jury that the burden of proof did shift during the trial to the defendant, it would undoubtedly have been error; but we do not think his refusal to charge in so many words that it did not shift, especially when we take into consideration the instructions given, was error. The true rule is, that the burden of proof is upon the state to prove the guilt of the defendant, and that he is presumed innocent unless the whole evidence in the case satisfies the jury, beyond a reasonable doubt, that he is guilty, ¿knd the court so instructed the jury. But the counsel for the plaintiff in error contends that the court did charge the jury that the burden of proof during the trial shifted. The charge referred to is, that if the jury find that the property was stolen and belonged to Yan Cott, “ and that any part of the 'property so stolen was within a short time after-*233wards found in tlie possession of tbe prisoner, tbe burden devolves upon bim, of showing bow be came by it; otherwise be may be presumed to have obtained it feloniously.” We do not think this was or could have been understood by tbe jury as an instruction that tbe burden of proof shifted or changed from tbe prosecution to tbe defendant, on tbe defendant being proved in possession of tbe stolen goods soon after they were stolen. It is clearly only to tbe effect that there might or would be a presumption from such possession of tbe guilt of tbe prisoner, unless be accounted for tbe possession. And tbe court then further told tbe jury that such presumption might be rebutted by tbe circumstances proved; also, in tbe third instruction asked by tbe defendant and given, that such presumption was a presumption of fact, and if tbe evidence led to a reasonable doubt whether tbe presumption was well founded, that doubt would avail in favor of tbe accused.

Tbe fifth instruction asked by tbe defendant below, and refused, was in substance, though not in terms, given. On tbe whole, we are satisfied that tbe charge of tbe court was as favorably to tbe prisoner as tbe law would permit, and that there was no error to bis injury. We advise tbe municipal court to proceed and render judgment on tbe verdict

*By the Court.*— Tbe writ of error is dismissed, and tbe papers, with a copy of this opinion, ordered to be remitted to tbe court below.