moral certainty, as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt. (a)

The onus of proving every thing essential, to the esta blishment of the charge against the accused, lies on the prosecutor This rule is derived from that maxim of law, that every person must be presumed innocent until proved guilty. It is, however, in general, sufficient to prove a prima facie case; then, if circumstances calling for explanation are not explained, the case becomes stronger, for, as has been remarked, imperfect proofs, from which the accused might clear himself, and does not, become perfect. (b) The presumption of innocence only obtains before verdict; after verdict of guilty, all presumptions will be against it. (c) The rule that the burden of proof lies on the party, who, substantially, asserts the affirmative, is applicable in criminal cases. (d)

But in some cases, where negative proof is peculiarly within the knowledge of a party, he is bound to adduce it. The rule of law is plain, that, where any one is proceeded against for doing an act, which he is not permitted to do, unless he has some special licence or qualification in his favour, it is sufficient to charge this want of licence or qualification against the party, and it is for the latter to prove it affirmatively (e); for it is not incumbent on the prosecutor, to give any negative evidence. (ƒ)

A doubt was suggested in Barrett's case, as to whether the prosecutor must not first give some general evidence, to cast the onus on the other side. (g)

(a) Reg. v. Jones, 28 U. C. Q. B. 421, per Richards, C. J.

(b) Reg. v. Jones, 28 U. C. Q. B. 425, per Richards, C. J.; Reg. v. Atkinson, 17 U. C. C. P. 303, per J. Wilson, J.

(c) Reg. v. Hamilton, 16 U. C. C. P. 361, per Richards, J.

(d; Re Barrett, 28 U. C. Q. B. 561, per A. Wilson, J.; Rex v. Hazy, 2 C. & P. 458.

(e) Re Barrett, supra, 561, per A. Wilson, J.; Rex. v. Turner, 5 M. & S.

206.

(f) Ex parte Parks, Allen, 237.

(g) See Elkin v. Janson, 13 M. & W. 662, per Alderson, B. See, however Apoth. Co. v. Bentley, R. & M. 159.

In criminal cases, whether the evidence be circumstantial, or direct and positive, the jury must decide, not simply that all the facts are consistent with the prisoner's guilt, but, that they are inconsistent with any other rational conclusion than that the prisoner is the guilty person. (a)

The prisoner cannot be convicted, if there is a reasonable doubt of his guilt, however strong the weight or decided the perponderance of evidence may be against him. (b)

Whether, the evidence is circumstantial, or direct and positive, its weight and credibility are to be decided by the jury. They must make all necessary inferences from the facts proved, and it lies within their peculiar province to decide on the credibility of witnesses (c)

In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but, where such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion, to which the proof tends be untrue, and the accused offers no explanation or contradiction, the conclusion, to which the proof tends, becomes almost irresistible. (d)

In regard to deciding on the credibility of a witness,

(a) Reg. v. Greenwood, 23 U. C. Q. B. 258, per Draper, C. J.; Taylor's Ev., 84; and see Reg. v. Jones, 28 U. C. Q. B. 416.

(b) Reg. v. Atkinson, 17 U. C. C. P. 305, per J. Wilson, J.; and see Reg. v.. Chubbs, 14 U. C. C. P. 43 n.

(c) Reg. v. Jones, 28 U. C. Q. B. 416; Reg. v. Greenwood, 23 U. C. Q. B. 255; Reg. v. Chubbs, 14 U. C. C. P. 32; Reg. v. Seddons, 16 U. C. C. P. 389; Reg, v. M'Ilroy. 15 U. C. C. P. 116.

(d) Reg. v. Atkinson, 17 U. C. C. P. 305, per J. Wilson, J.

the jury should consider the nature of the story he tells, and his manner of telling it; the probability of its being true; his demeanour and his readiness to answer some questions; as well as his unwillingness to answers others, and his whole conduct indicating favour to one side or the other. On the other hand, the jury should consider, whether the witness exhibits a frank straight-forward manner of answering questions, without regard to conse quences to either party; a desire to state all the facts, and no hesitation to answer the various questions put to him. (a)

Where a witness, examined on the trial, directly confessed the crime, it was held that the Judge was not bound to tell the jury that they must believe this witness, in the absence of testimony to shew her unworthy of credit, but that he was right in leaving the credibility of her story to them; and, if from her manner he derived the impression that she was under the influence of some one in Court, it was not improper to call their attention to it in his charge. (b)

A prisoner, being indicted for the murder of one H., the principal witness for the Crown stated that the crime was committed, on the 1st of December, 1859, on a bridge over the river Don, and that the prisoner and one S., threw H. over the parapet of the bridge into the river. S.. had been previously tried and acquitted. The counsel for the prisoner proposed to prove by one D., that S. was at his (D.'s) place fifty miles off on that evening, but the learned Judge rejected the evidence, saying that S. might be called, and if the Crown attempted to contradict his evidence, he would allow the prisoner to call witnesses to corroborate it. D.'s evidence was rejected, on the

(a) Reg. v. Jones, 28 U. C. Q. B. 419, per Richards, C. J.

(b) Reg. v. Jones, supra,416.

ground that S.'s presence was a fact collateral to the enquiry, whether the prisoner was guilty of the murder, and if the evidence of third parties were received to prove an alibi on the part of S., the Judge might be called upon to try many other collateral issues S. was called, and swore that he was not present at the time, and that he was not on the bridge with the prisoner, at any time, during that year. He was not contradicted by the prosecution, and they called no rebutting or impeaching testimony. The prisoner's counsel inferred from the remarks of the judge that D. would not be admitted, and he did not, therefore, call him. It was held that the presence of S. was a fact material, and not collateral to the enquiry, and that D., therefore, should have been admitted, when tendered, on the broad principle that he was called to speak on a matter, directly connected with the very fact under investigation, and his evidence would affect the credibility of the evidence for the prosecution. (a)

Where two prisoners are jointly indicted, one of them may, in certain cases, be acquitted, and called as a witness for the other. The general rule on this point is where the prosecutor, in order to exclude the evidence of a material witness for the defendant, prefers his indictment against two jointly, and no evidence whatever is given against the person, thus unjustly made a defendant, the Judge, in his discretion, may direct the jury to acquit either during the progress, or at the termination of the enquiry, so as to give an opportunity to the other defendant to avail himself of his testimony. (b)

The ground of this rule is to prevent the prosecutor

(a) Reg. v. Brown, 21 U. C. Q. B. 330.

(b) Reg. v. Kennedy, 2 Thomson, 218, per Wilkins, J.; Reg. v. Hambly, 16 U. C. Q. B. 617; Rex. v. Owen, 9 C. & P. 83; Rex. v. O'Donnell, 7 Cox, 337; Arch. Cr. Pldg. 274.

from excluding the evidence of a material witness, by joining him in the indictment. But, as in a criminal case, the indictment against all the prisoners is usually found by a Grand Jury, and should only be found upon, at least, a prima facie case of guilt against all, it is somewhat distinguishable from a civil action, and seems to call for the exercise of a more guarded discretion on the part of the Judge, lest an accomplice in guilt escape through an unfortunate and premature acquittal. The cir cumstance, that the indictment is found by the Grand Jury, affords less ground for the suspicion that the party is made a defendant, for the purpose of excluding his testimony. (a) In a criminal case, though no evidence appears against one defendant, there is no necessary infernce that he was made a defendant for this purpose. (b) Where there is no evidence, whatever, against one defendant, he should be acquitted at the close of the prosecutor's case (c); but it seems this is discretionary with the Judge. (d) If there is some evidence, though very slight against the prisoner, his case must be submitted to the jury. (e)

If, after the close of the prisoner's case, there is no legal evidence of his guilt, it seems the Judge would be bound to direct an acquittal. (f) The correct and reasonable rule would appear to be that it is discretionary with the Judge to direct an acquittal, if applied for before the close of the prisoner's case; but that it is obligatory upon him to do so, when the case for the defence is closed, particularly if it appears the prisoner was made a defendant, for the purpose of excluding his testimony.

(a) Reg. v. Kennedy, 2 Thomson, 211, per Bliss, J.

(b) Ib. 219, per Wilkins, J.

(c) Reg. v. Hambly, 16 U. C. Q. B. 617.

(d) Ib.; Reg. v. Kennedy, 2 Thomson, 203.

(e) b.; Reg. v. Hambly, supra, 625.

(f) Reg. v. Kennedy, supra.