Year: 1879

Neither OF t0e6e prOpOslt1ou6 l5 coIItct4y
stated, or will stand G moments analysis. OF
course every one perceives that the same law
cannot at the same time presume the same
persore Oh the same state Of facts to be
both guilty and innocent. Whenever, on a
given state of facts, the legal presumption Of
guilt begins, it is because the pre-existing
legal presumption Of innocence has ceased,
i. e., has been e1tinguished by the evidence.
Judge McA111sTEn, therefore, in asserting
that the presumption Of innocence, !. e.. the
presumption that the accused did not commit
tho criminal act until he is proved to have
committed it, was binding on the jury at the
time he rendered Ills charge, !. e., notwith-
standing all the proof of guilt that had then
been adduced, asserts, in effect, that on the
facts of the case, as then proven, the pre-
sumption of innocence Ind not been over
come. For the moment the legal presump-
ton of innocence, with which every criminal
trial sets out, is overcome by such evidence
as changes the legal presumption to one OF
guilt, then the presumption of innocence
cuts no further figure In the case until still
further evidence again changes the legal pre-
sumption. No sooner was it proven, there
fore, TINT HANFoRD, while in the peace of the
people, came to his death by shot fred by


SULLIVAN, and that SULLIVAN was then OF
sufficient mental capacity to commit crime,
than the presumption Of innocence ceased
and presumption Of guilt arose. 10 assert,
therefore, that the presumption of innocence
was binding on the jury, !. g., that they we're
still bound by law at the end Of the trial to
presume SULLIVAN innocent, was to assert IN
effect what the weight of proof then was,
and that it had not once raised tho opposing
presumption Of guilt. And it is not saved
from mental obscurity and absurdity by the
introduction of the subsequent qualification
that if they feel compelled by the evil
dence to find SULLIVAN guilty, they may. He
should not have charged that compulsory -
evidence is required to extiuguish the mere
presumption of innocence, for two reasons,
viz. 8: the term compulsory as applied to eVI-
dence is new importation into the law, II,
indeed, its use by McAL11sTER is sufficient
to get it into the law. If, as would
seem, it hns the force OF "oonoluslve :"
or indisputable, then it is bad law aud sheer
nonsense to sny that the presumption Of in
nocence can only be extinguished by 1ndls-
putable or conclusive evidence. For when
the killing of peaceable person by another,
supposed to be sane, by the use OF deadly
weapon, is proven, thus raising the presump-
ton of guilt, the prisoners counsel lmme~
diately proceeds to show either that the de-
ceased was not in the peace OF the people at
the time, but was the first aggressor, or that
the prisoner was insane, or was justified, or
what-not, thereby showing that the pre-
sumption of guilt need not be raised by
compulsory " evidence, using that term in
the sense OF conclusive Or indisputable. The
second reason why compulsory evidence
should not be- required to extinguish the pre-
sumption Of innocence is that the term is IN
definite, not in use in the law, and is mean
ingless. As to the inference OF intent to
kill from the use of deadly weapon,
it is of much the same nature
as the inference Of al intent to commit
adultery inferred from one married man
sharing the same bedroom with anothers
wife, OF the intent to utter counterte1t