THE BURDEN OF PROOF, 55 prove every part of the case against the prisoner beyond a reason- able doubt. "1 The court here avoid saying in terms that the de- fendant has any "burden of proof," but they say it in substance. If the defendant must establish the insanity or alibi by the pre- ponderance of the evidence, he has the burden of proving it. It would seem that the true theory of this case is that the defence has nothing to " prove, "^ but has only to do what the court inti- mated in Com, v. Choate (105 Mass. 451), when it said: The evidence which tended to prove the alibi, even if it failed to estab- lish it, was left to have its full effect in bringing into doubt the evi- dence tending to prove the defendant's presence at the fire." So here, defendant need not establish the adultery; he need only bring the jury to a reasonable doubt about it ; for, according to the theory of the case, that is a reasonable doubt of the defendant's guilt.^ III. The subject is, of course, very intimately connected with that of pleading. (i.) It is important to notice further one or two peculiarities of the Roman law, already alluded to ; for that body of law has given us the term onus probandi and a variety of often-quoted maxims about it. Under the system which prevailed in classical times, and for two or three centuries after the Christian Era, — a period which includes the great jurists whose responses are pre- served in the Digest, — the Praetor sent to the judex a formula con- taining a brief indication of the plaintiff's claim, of the affirmative defence, if any, of the affirmative replication, if any, and so on, — with instructions to hear the parties and their witnesses, and then decide the case. No denials were mentioned in the formula, but each affirmative case was understood to be denied. Then fol- lowed a trial of each of these cases separately, — first, the plain- tiff's ; then, unless that failed, the defendant's ; and then, unless that failed, the plaintiff's replication ; and so on. What, in our
- For this exposition the court cite, among other cases, Brotherton v. The People, 75
N. Y. 159, and the charge in Com. v, Choate, 105 Mass. 451; and they remark that this last charge was ** held to be correct." But surely this is misleading. The Massa- chusetts court held in effect that the charge was inconsistent and in part bad, but that it contained its own antidote, and therefore the verdict might stand.
- " It is a prisoner's burden, the only burden ever put upon him by the law, that of sat-
isfying the jury that there is a reasonable doubt of his guilt." R, H, Dana, arguendo, York's Case, 9 Met. p. 98.
- See the clear statements in State v, Crawford, n Kans. p. 44-5 (1873), and in
Scott V. Wood, 81 Cal. 398 (1889).
