THE BURDEN OF PROOF, 63 thus operates as touching a part only of thfe total proposition, how does this affect the duty of the actor ? Of course it does not touch the burden as regards the whole issue, which covers not only the presumed thing, but more. Does it then transfer to the other the duty of establishing a part of the issue ? If so, we may easily suppose a variety of presumptions, which would split up the issue in a manner very confusing to a jury or even a judge. What happens in such a case seems rather to be what the Romans called a levamen probationis^ i.e.y the presumption has done the office, as regards a particular fact, of prima facie proof, so that the actor need not in the first instance go forward as to this matter ; his case is proved by this, without evidence, just as it would have been by such an amount of evidence as makes a prima facie case. Of course his case may not be finally proved thus, for he must meet the defendant's counter proof, and must make good his total proposition not merely at the beginning but at the end of the trial. Such is the import of the case of Sutton v. Sadler,^ where, in an action of ejectment by an heir-at-law against a devisee, the court held it a misdirection to instruct the jury that the heir-at-law was entitled to recover unless the will was proved ; but when the ex- ecution of the will was proved the law presumed sanity, and, therefore, the burden of proof shifted and the devisee must pre- 1 3 C. B. N. s. 87, and so Symes v. Green, i Sw. & Tr. 401. So Baxter v. Abbott, 7 Gray, 71 (1856), where a decision on an appeal from a degree of a court of probate allowing a will, sustained the ruling (p. 74) that " the burden of proof was on the appellee to show to their [the jury's] reasonable satisfaction that the testator was of sound mind when he executed the instrument in question; that the legal presumption, in the absence of evidence to the contrary, was in favor of the testator's sanity, and that the appellee was entitled to the benefit of this presumption, in sustaining the burden of proof which the law put upon him." ** We all agree [p. 83] that it [ ' the legal pre- sumption ' ] does not change the burden of proof, and that this always rests upon those seeking the probate of the will." And so Brotherton v. The People, 75 N. Y. 159(1878, Church, C. J.), and People z/. Garbutt, 17 Mich. 9 (1868, Cooley, C. J.) ; Dacey v. The People, 116 111, 555; and a great number of criminal cases in this country holding the like; to the effect that the burden of establishing sanity in an indictment for murder is upon the government, that the presumption of sanity puts upon the defendant the burden of going forward with evidence upon this question, but does not affect the duty of ultimately sustaining sanity, — a fact, which, upon the theory of these cases, is none the less a part of the government's case because it is impliedly and not in terms alleged. This doctrine was adopted in Massachusetts as regards the defence of idiocy, an original absence of natural capacity, in Com. v. Heath, 11 Gray, 303 (1858), and by Chief Justice Gray and Morton, J., as to insanity in general, in Com.z/. Pomeroy (Wharton, Homicide, (2d ed.), Appendix, 753, 754, 756); and it is understood to be now the law in that State.
