54 HARVARD LAW REVIEW. that when he does have this and makes a prima facie case, the other party, and not he, is the one who then has the 07ius probandi ; so that then Baron Parke's remark will apply to him.^ Baron Parke's expression appears to be consistent with either view, since the duty of beginning and that of finally establishing, may rest upon different persons. ^ l^d.) A recent case in the Supreme Court of Connecticut ^ is a striking illustration of the perplexity that attends many attempts to deal with this subject in criminal cases. The defendant was prosecuted under a statute, tor neglecting and refusing to support his wife. At the trial, under the usual plea of not guilty, he set up her adultery. The jury were charged that the defendant had the burden of proof to sustain the adultery beyond a reasonable doubt. A verdict for the State was set aside, and a new trial granted for misdirection. It was laid down by the court ( Andrews, C. J. ) that the burden of proof is on the government to prove its case in all its parts ; that the issue is but one, the defendant's guilt, and that whenever a defence is so proved that a reasonable doubt is caused as to any part of the case, the jury should acquit. But in setting this forth, the court at the same time says : " If the defendant relies upon some distinct substantive ground of defence not necessarily connected with the transaction, . . . as in- sanity or self-defence, or an a/tdif or, as in the case at bar, the adultery of the wife, he must prove it as an independent fact. . . . It is incumbent upon the defendant to establish the fact. . . . All authorities agree that the burden is upon the State to make out its accusation . . . beyond all reasonable doubt. . . . When a defendant desires to set up a distinct defence, ... he must bring it to the attention of the court ; in other words, he must prove it, . . . that is, he must produce more evidence in support of it than there is against it. When he has done this by a pre- ponderance of the evidence, the defence becomes a fact in the case of which the jury must take notice . . . and dispose of it accord- ing to the rule before stated, that the burden is upon the State to
- Such is Baron Parke's own use of the term in Elkin v. Janson, 13 M. & W. pp.
662-3, and Lord Halsbury's and Lord Watson's in Wakelin v. London, etc. Ry. Co., 12 App.Cas. 41; where also Lord Blackburn, having read Lord Watson's opinion, remarks: " In it I perfectly agree. " See also Stephen, Dig. Ev. arts. 95 and 96, and L. J. Bo wen, anig, p. 49. ' See infra, p. 66. ' State V. Schweitzer, 57 Conn. 532 ( 1889 ).
