that claim, and I would say to you that the burden of proof is as absolute and as binding upon them as upon the State. Their evidence in that case must not be enough simply to raise the suspicion of adultery. They must have more than simply thrown a shadow of doubt over the virtue and chastity of the woman; they must go further on their part of the case and show you beyond a reasonable doubt that the woman has been guilty of adultery. If they have satisfied you that the woman has been guilty of adultery, then that is a sufficient legal excuse and your verdict should be not guilty." The tenth and eleventh reasons of appeal are predicated upon the request and the charge. and the term "reasonable doubt," without clearly discriminating whether the term is applied to the defense or to some part of the prosecution. All authorities agree that the burden is upon the State to make out its accusation in a criminal case beyond all reasonable doubt. It seems to be agreed with substantially the same unanimity that when a defendant desires to set up a distinct defense, such as is above mentioned, he must bring it to the attention of the court; in other words, he must prove it. A fact controverted before any tribunal can hardly be said to be proved at all unless there is more evidence in its support than there is against it. If the evidence for and against it is of precisely equal weight the fact is not proved. If the eviopposing evidence, then the fact is proved. If the excess in weight is slight, then the fact is proved only by a preponderance of the evidence. But if the excess of weight is so great as to exclude all reasonable doubt as to the existence of the fact, then the fact is proved beyond reasonable doubt. Between the line where a fact is proved by only a preponderance of the evidence and the line where it is proved beyond all reasonable doubt, there may be quite a wide field. We think the court was correct in charging that adultery, if proved, was a sufficient defense. A husband may lawfully refuse to sup-dence in support is of greater weight than the port an adulterous wife. 1 Selwyn, Nisi Prius, Wheat. & Whart. ed. 205-207; Gill v. Read, 5 R. I. 343; Hunter v. Boucher, 3 Pick. 289; Schouler, Dom. Rel. 91; 1 Bishop, Mar. and Div. § 573. In criminal cases the general rule is that before a conviction can be had the jury must be satisfied upon all the evidence beyond a reasonable doubt of the affirmation of the issue presented by the State; to wit, that the accused is guilty in manner and form as charged in the information. In criminal jurisprudence the law itself holds an uneven balance; it imposes upon the State the burden of proving the case set forth in the information, in all its parts, beyond a reasonable doubt, and commands juries that if the case is not so proved to acquit the accused. In a criminal trial upon the plea of not guilty, the main issue is-and there is strictly but one-"Is the prisoner guilty or not guilty of the crime charged against him?" Upon that issue the burden of proof is on the State from the beginning to the end of the trial; it never shifts; and the jury in their ultimate analysis of the entire evidence in the case must find, in order to convict, that all the conditions of guilt against the prisoner have been proved beyond a reasonable doubt. If the case is not so proved in every material part, then it is the duty of the jury to acquit. If the defendant relies upon some distinct substantive ground of defense not necessarily connected with the transaction on which the information is founded, as insanity, or self defense, or an alibi, or, as in the case at bar, the adultery of the wife, he must prove it as an independent fact. As to such fact he presents a subordinate issue upon which he goes forward with his evidence and the State rebuts. And as the purpose of such a defense is to subvert or to render doubtful some material part of the case necessary to be proved in order to convict him, it is incumbent upon the defendant to establish the fact, or facts, which constitute his defense, by such a weight of evidence as will be sufficient to accomplish that purpose. The cases differ as to what that weight of evidence is. Some of them hold that the defense must be proved beyond a reasonable doubt; others that the jury should be governed by the preponderance of the evidence, and still others seem to hold that the prosecution must substantially disprove the defense. Some of the difference is apparent rather than real and arises from using the term "burden of proof," The defendant must prove his defense,-that is, he must produce more evidence in support of it than there is against it. When he has done this by a preponderance of the evidence the defense becomes a fact in the case of which the jury must take notice in making up their verdict and dispose of it according to the rule before stated, that the burden is upon the State to prove every part of the case against the prisoner beyond a reasonable doubt. It might happen in some cases that the defense would itself have to be proved to a moral certainty before it would create a reasonable doubt as to any of the conditions of guilt. In other cases it might so happen that when the defense was proved by no more than a preponderance of the evidence it would cause such a doubt as to some material fact in the prosecution. But whether a greater or a less weight of evidence be required, whenever the defense is so proved that a reasonable doubt is caused as to any part of the case, the defendant is entitled to the benefit of that doubt and should be acquitted. This we think is the true rule upon principle, and it is in accordance with the later and better considered cases. State v. Hoyt, 46 Conn. 330; State v. Johnson, 40 Conn. 136; State v. Lawrence, 57 Me. 574; State v. Jones, 50 N. H. 369; Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 N. Y. 377; Walker v. People, 88 N. Y. 81; Com. v. Eddy, 7 Gray, 583; Com. v. York, 9 Met. 93; People v. Garbutt, 17 Mich. 9; State v. Marler, 2 Ala. 43; State v. Nixon, 32 Kan. 205; Hopps v. People, 31 Ill. 385; Dacey v. People, 116 Ill. 555; Ortwein v. Com. 76 Pa. 414. In the case of Brotherton v. People, 75 N. Y 159, cited above, the court, speaking by Judge Church, used the following language: "Crimes can only be committed by human beings who are in a condition to be responsible for their acts, and upon the general proposition the prosecutor holds the affirmative and the burden of proof is upon him. Sanity being the normal and usual condition of mankind the law pre sought to establish the fact that he was at a particular place at any given time, and wished them to take it as an affirmative fact proved, the burden of proof was upon him, and if he failed in maintaining that burden the jury could not consider it as a fact proved in the case; that the burden was, however, upon the government to show that the defendant was present at the time of the commission of the crime, and as bearing upon that question the jury were to consider all the evidence offered by the defendant tending to prove an alibi; and if upon all the evidence the jury entertained a reasonable doubt as to the presence of the defendant at the fire they were to acquit." The charge was held to be correct. See also State v. McCracken, 66 Iowa, 569; State v. Hamilton, 57 Iowa, 596. sumes that every individual is in that state. | structed the jury "that when the defendant Hence a prosecutor may rest upon that presumption without other proof. The fact is deemed to be proved prima facie. Whoever denies this or interposes a defense based upon its untruth, must prove it; the burden, not of the general issue of crime by a competent person, but the burden of overthrowing the presumption of sanity and of showing insanity, is upon the person who alleges it; and if evidence is given tending to establish insanity, then the general question is presented to the court and jury whether the crime, if committed, was committed by a person responsible for his acts; and upon this question the presumption of sanity and the evidence are all to be considered, and the prosecutor holds the affirmative, and if a reasonable doubt exists as to whether the prisoner is sane or not, he is entitled to the benefit of the doubt and to an acquittal." In People v. Schryver, 42 N. Y. 1, the prisoner was indicted for manslaughter. On the trial he claimed that he acted in self defense and that the killing was justifiable. It was held that he must produce the same degree of proof that would be required if the blow inflicted had not produced death and he had been sued for an assault and battery and had set up a justification. He must make it appear to the jury that he was justified. It is not sufficient for him to raise a reasonable doubt, neither is it necessary for him to establish his justification beyond a reasonable doubt. He must make his defense appear to the jury, availing himself of all the evidence in the case on either side. In Com. v. Choate, 105 Mass. 451, the defendant was indicted for burning a barn. The defense was an alibi. On the trial the defendant offered evidence tending to show where he was before, at and after the time of the fire, and that he was so situated that he could not have committed the crime. The judge in In the present case the defendant was charged with having unlawfully neglected and refused to support his wife. There was evidence tending to prove the marriage, and the refusal to support was not denied. The burden of proof to show the unlawfulness of the neglect was upon the State as fully as to show the neglect itself. Ordinarily the conduct of married women is such that when any husband neglects or refuses to support his wife the law itself presumes such neglect to be unlawful. Having shown the marriage and the neglect, the attorney for the State could safely rest upon that presumption. The unlawfulness was deemed to be proved prima facie. And when the defendant interposed a defense based upon such misconduct of his wife as made it lawful for him to refuse to support her, it was incumbent upon him to prove such misconduct as he set up, that is, her adultery, and to prove it, as before stated, by a preponderance of evidence. There was error in the charge of the court upon this point, and a new trial must be granted. In this opinion the other Judges concurred. NEW YORK COURT OF APPEALS. PEOPLE OF the State of NEW YORK, v. John ANDREWS, Appt. and Respt. (....N. Y.....) 1. Although exclusive jurisdiction is given to the court of special sessions by Code Crim. Proc., § 56, subd. 32, as amended by chap. 379, Laws 1884, over prosecutions for violations of the Excise Law, in which complaints are NOTE. Social clubs; evasion of liquor law by. A club properly organized in good faith under Act No. 22 of the Public Acts of 1883 cannot purchase liquors by the quantity and distribute them among its members, receiving pay by the glass, without being liable, under the Laws of Michigan, to pay a retail tax for selling such liquors, and exhibit the tax receipt. People v. Soule (Mich.) 2 L. R. A. 494. Where the steward of a social club furnished liquors to the members at a fixed price sufficient to cover the cost, but not for the purpose of profit, it was held a sale, and in violation of the Local Option Act. State v. Lockyear, 95 N. C. 633. made to a committing magistrate, yet, if during the preliminary examination for the purpose of determining whether a warrant shall issue, the case is withdrawn from the magistrate with his consent, it may be subsequently presented to the grand jury and tried in the court of sessions. 2. Where a number of persons purchase and store liquor and appoint an agent to manage it, and he, without a license, upon the application of one of the number, separates a small quantity of the liquor from the general mass, fixes its value, delivers it to the applicant, Where an incorporated association purchases beer outside of the State of Kansas, and brings it into the State, and then sells chips to its members, each chip representing a drink or glass of beer, the member of the association who sells these chips, and the member of the association who delivers the beer on the return of the chips, and the president of the association, who is present at the time, and knows of these things, may be prosecuted, convicted and punished for selling intoxicating liquor in violation of law. State v. Horacek (Kan.) 3 L. R. A. 687. The officers of a social club, whose steward furnishes the members with food, and with beer by the glass, at a fixed price, to be consumed at the and receives its value or price in money, all the persons being dealt with on a cash basis and receiving no other consideration than is accorded to ready-money customers at a public bar, the transaction is a sale and subjects the agent to prosecution for violation of the Excise Law, and the fact that he claims to be acting as steward for a or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks." Code Crim. Proc. § 56, subd. 32, as amended by chap. 379 of 1884. The provision is so clear and explicit as to require no interpretation. When a complaint is social club which owns the liquor is immaterial. made to a committing magistrate for a violation of the law relating to excise, the magistrate, subject to the power of removal provided for, obtains exclusive jurisdiction to hear and determine the charge. CRESE (October 8, 1889.) ROSS APPEALS from a judgment of the General Term of the Supreme Court, Fifth In this case complaint in writing was filed Department, the People appealing from so much with the magistrate, and under the provisions of the judgment as reverses the judgment of of this section he doubtless acquired exclusive the Cayuga Court of Sessions convicting de- jurisdiction of the case; but it appears that durfendant for violating the Excise Law, and de-ing the preliminary cxamination of the witfendant appealing from so much of the judg- nesses for the purpose of determining whether a ment as grants a new trial. Reversed. warrant should issue, the attorney for the complainant decided to take the matter before the grand jury, and so notified the justice. There was no order of discontinuance entered, but the justice appears to have acquiesced in the proposition to lay the matter before the grand jury, for he thereupon sent the papers to the district attorney of the county. We are consequently of the opinion that what took place amounted to the withdrawal and discontinu The facts sufficiently appear in the opinion of the court and in that of the general term, which is as follows: HAIGHT, J.: he acquiesced and consented to such withdrawal and discontinuance, thus surrendering his jurisdiction of the case, and that the grand jury and 'court of sessions were subsequently invested with jurisdiction. Information was first filed before a justice of the peace, who entered upon an examination of the persons designated in the information. Pending such examination, and before a warrant was issued, the attorneys for the complain-ance of the case before the magistrate, and that ant notified the justice that they had concluded to proceed no further before him, but had decided to take the matter before the grand jury of the county. The justice thereupon did nothing further in the case, but thereupon sent the papers to the district attorney. Subsequently the defendant was indicted by the grand jury of the county, and, upon the trial of the indict ment, and after the evidence was closed, the defendant asked the court to instruct the jury to acquit the defendant, or that his discharge be ordered on the ground that it appears from the evidence that neither the grand jury that found the indictment nor the trial court had or has any jurisdiction of the subject matter, the complaint having been previously made to the court of special sessions of the county for the same offense charged in the indictment. The court denied the requests, and exception was taken by the defendant. The provision upon which this motion is based is as follows: "Subject to the power of removal provided for in this chapter, courts of special sessions, except in the City and County of New York and the City of Albany, have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, as follows: ... When a complaint is made to or a warrant is issued by a committing magistrate for a violation of the law relating to excise and the regulation of taverns, inns and hotels; The defense was that the defendant was a steward of a social club; that the liquor sold by him was to members of the club. The court, in its charge to the jury, stated that it appeared from the evidence that friends of members of the association sometimes visited the clubhouse, and that such friends had been delivered liquor, upon the order of the members, which was paid for by the members; and then charged, in substance, that a delivery of liquors upon the order of a member to a party not a member, and the payment by the member to the steward, constitutes a sale of intoxicating liquors within the provisions of the Statute forbidding such sale without a license. Exception was taken by the defendant to this charge It was the only question submitted to the jury, and the conviction must be deemed to have been made upon this theory. Social clubs, for legitimate purposes, are authorized by the Statute, and when approved by a justice of the supreme court of the district in which the club is located, a certificate may be filed and the club incorporated. Under such organizations the property of the club becomes the joint property of its members, and the furnishing of liquors or wines to the members by club, are not guilty within the Excise Law. Seim | distributed by the glass, the proceeds to go into the v. State, 55 Md. 566, 39 Am. Rep. 419. The rule that the police will be prevented from invading the precincts of a social club or interfering with its property does not apply to a ball given by it, tickets to which are sold to all persons, and at which wines and liquors are sold to all persons willing to pay therefor. Cercle Francais de L'Harmonie v. French, 44 Hun, 123. A club properly organized in good faith, under Michigan Pub. Acts 1883, No. 22, cannot purchase liquors by the quantity and distribute them among its members, receiving pay therefor as they are treasury of the club, to be used in purchasing other liquors or in paying expenses, without being liable, under the laws of Michigan, to pay a retail tax for selling such liquors, and exhibit the tax receipt. People v. Soule (Mich.) 2 L. R. A. 494. Where liquor is sold on the club premises by the steward of the club to persons not members of the club, without a proper license, contrary to the orders of the trustees or managing committee, and without their knowledge or assent, the trustees are not responsible for the unlawful sale by the steward. Newman v. Jones, L. R. 17 Q. B. Div. 132. the steward is not a violation of the Statute, and we do not understand that the entertaining of a guest or friend by a member with wines or liquor at the club-house would be any more a violation of the Statute than it would if such entertainment was given at his private residence. Com. v. Ewig, 145 Mass. 119, 5 New Eng. Rep. 177. We are, consequently, of the opinion that the charge was erroneous and that the exception thereto was well taken. It is contended, on the part of the district attorney, that the club was a fraudulent concern organized for the purpose of evading the Excise Law. The evidence tends to show that the defendant had previously been a saloon keeper occupying the same premises; that he was refused a license, and thereupon this club was organized, and a portion of the premises in which the bar was located was leased to the club; that the defendant became the treasurer and steward of the club; that he has made all the purchases of liquors in the name of the club and sold them to members, to be drank upon the premises, receiving the pay therefor, as such steward. Members on joining the club were required to pay 50 cents, which was returned to them upon their withdrawal. The club was not incorporated. A constitution and by-laws were prepared and introduced in evidence for the purpose of showing the organization of the club. Whilst, as we have stated, the Statute authorizes the formation of clubs for legitimate purposes, it does not authorize the formation of a club for the purposes of evading the laws of the State; and if, as is claimed, this club was organized for such a purpose, if it is merely a scheme and a device to continue the sale of strong and spirituous liquors without a license, thereby evading the laws relating to excise, it operates as no defense or shield to those engaged in the traffic, and it is the duty of the court and jurors to disregard the scheme or device and faithfully execute the law according to its true spirit and intent. The difficulty with this case is, that the trial court did not submit to the jury the question as to whether this organization was a scheme or a device to evade the Excise Law. On the contrary, the court in its charge appears to have assumed that it was a valid and legitimate organization, and that the intoxicating liquors sold by the defendant were the prop erty of the club. The question as to whether the organization was effected for an illegal purpose was one which should have been submitted to and determined by the jury. For these reasons the judgment and conviction should be reversed and a new trial ordered, and for that purpose the proceedings are remitted to the Court of Sessions of Cayuga County. BARKER, P. J., BRADLEY and DWIGHT, JJ., concurred. Mr. A. P. Rich, Dist-Atty., for the People: It is no defense to an indictment for retailing liquors that they were owned by other persons. Laws 1857, chap. 628, § 13. See also Martin v. State, 59 Ala. 34; United States v. Wittig, 2 Low. 466; State v. Mercer, 32 Iowa, 405; Rickart v. People, 79 Ill. 85; Marmont v. State, 48 Ind. 21; Com. v. Smith, 102 Mass. 144. These liquors were not the property of a legally organized club, and the delivery of liquors by Andrews to third persons, and which were paid for, constituted a sale, and it makes no difference who paid for them. Code Crim. Proc., § 56, subd. 32, must be construed to apply to cases where the filing of the information is followed up by the arraignment and trial. See People v. Westbrook, 12 Hun. 646. Mr. H. Greenfield, for Andrews: The complaint having been made to the committing magistrate, the oyer and terminer had no jurisdiction to indict, or the sessions to try the defendant; and upon the reversal of the judgment herein, the defendant should have been discharged. Code Crim. Proc. § 56, subd. 32; People v. Starks, 17 N. Y. S. R. 234; People v. Palmer, 43 Hun, 397, 6 N. Y. S. R. 341. The magistrate's duty, after complaint is made, is to issue a warrant, if he is satisfied that the crime complained of has been committed. Code Crim. Proc. § 150. He has no power to allow the committee, or the complainant, to withdraw or discontinue the proceedings. That can only be done in certain specified cases. Code Crim. Proc, § 663. The undisputed evidence showed no sale of intoxicants by defendant, and for that reason the judgment of reversal was proper and the defendant should have been discharged. Com. v. Ewig, 5 New Eng. Rep. 177, 145 Mass. 119; Seim v. State, 55 Md. 566. Danforth, J., delivered the opinion of the court: The defendant was accused of violating the Excise Law (Laws 1857, chap. 628). The charge is that on the 10th of July, 1887, at Moravia, in the County of Cayuga, he sold by retail to various persons strong and spirituous liquors in quantities less than five gallons, without having a license therefor. He was convicted. The General Term of the Supreme Court has reversed the conviction and ordered a new trial. The plaintiff appeals from the order of reversal, and the defendant appeals from the order directing a new trial. Two questions are presented: (1) as to the jurisdiction of the court; (2) whether, within the meaning of the Statute (supra), there was any sale of liquor by the defendant. The first question was properly disposed of by the general term. 50 Hun, 591. As to the second we are unable to agree with that court. Upon the trial one S., describing Andrews' place, says: "Before the 1st of May, 1887, Andrews occupied the premises as a saloon. The front room is used for a fruit, confectionery and tobacco store. Back of that and partitioned off is a room with a bar, table and chairs." He also says: "I got whisky and ale of Andrews in the back room and paid him for it. Some I drank there and some I took home and drank. Paid him 10 cents for that I drank there and a shilling for that I took home." C., a minor attending school, was often at this place and drank both ale and whisky and paid for it. Bought it for others and paid for it. J., had ale and whisky there, and on one occasion bought half a pint of whisky for which he paid 25 cents and carried it away. Chase drank there several kinds of liquorgin, whisky and beer-and paid for it, 10 cents for gin and whisky, and 5 cents for beer. Jones says the place was a saloon soon after it was built and Andrews has always run it. Jones frequently drank there, bought whisky by the glass and paid Andrews or Keeler for it. Keeler testified that he was employed by the defendant at this place and paid by him. He says: "I wait on customers to cigars, fruits and confectionery, and also wait on members of the club. Since July 10 last I have delivered both ale and whisky to members of the club there by the drink and took pay therefor in cash. Have done this a good many times. The sales that have been made by me have all been made by Andrews' direction." Upon cross-examination by defendant of these witnesses, they described themselves as members of the "Valley Social Club," and it appeared that when persons not members came in with a member and called for liquor it was supplied, but payment made by the member. It was shown that neither Andrews nor the club had a license. It was refused to Andrews in May, 1887, and on the 1st of June, 1887, the club was organized. At the close of the plaintiff's case the defendant asked to be discharged upon the ground that there was no proof of a sale of intoxicating liquors, ale or wines by him, and, being refused, went into evidence. Andrews, the defendant, testified that the description of the place by witness S. was correct: that in the front room he had cigars, tobacco, fruit and confectionery, and that was his own private business; that the room back of that was leased to the "Valley Social Club" by himself and wife for the term of one year from the 23d of May, 1887. He was steward of that club. He said, "I have heard the witnesses sworn on the part of the People. Heard them testify that they were members of the club and procured drinks at that place. That I do not deny in any way. None of the drinks had by any of the witnesses was my property, nor did I receive any pay of my own therefor whatever. The liquors did not belong to me, they belonged to the men that drank them. They were not bought in my name but in the name of the Valley Social Club, and bills were rendered to that organization for them. The club was organized about the 1st of June, 1887, with William D. Harris as president, and six trustees." It further appeared that he was treasurer, and that all the moneys of the club came to his hands and had done so since its formation. The club was not incorporated. Twenty or twenty-five men met together and made the arrangements. Others subsequently joined, so that the present number is 500. Andrews took the rent and paid the wages of himself and Keeler. This he said was in pursuance of a standing order of the officers of the club. The matter of dividends has been considered by the club, and it was, upon motion, decided to use the money on hand to defend this suit and make a dividend of what is left when the suit is ended. The trial judge, in submitting the case to the jury, assumed that the liquors belonged to the club, and, waiving the question as to the liability of the defendant for liquors sold or delivered to the members of the club, said, in substance, "that where any person, acting as agent or steward of such an association, does, upon request of a member, deliver to a person not a member liquors belonging to that association, and takes pay for it, although from that member, the transaction constitutes a sale within the meaning of the Statute, and the offense charged in the indictment is complete." In that we find no error. The liquor belonged to the association, not a legal entity as a corporation, but as joint owners or tenants in common. I do not say that circumstance distinguishes this case from one where the liquor is owned by an incorporated club; that need not be considered. It is the character in which they act. Five hundred men buy a quantity of liquor; they store it and appoint an agent to manage it. On the application of one of the 500 the agent separates a small quantity from the mass of liquor, fixes its value, delivers the quantity so separated, as directed, and receives its value or price in money. What is that but a sale? It is not an evasion of the Statute, it is a violation of it. We have before us the scheme of the association and its by-laws, and can see that the transaction was not in conformity to either. We are therefore not called upon to say whether, if it had been, it would or would not have relieved the defendant. The scheme as declared in the eighth by-law is that "the expenses of this club shall be sustained by voluntary contributions to its funds by the members, and the refreshments furnished shall be enjoyed by the members in proportion to the amount contributed by each. Such contribution shall be receipted for by the treasurer by certificates, and, as a means of adjusting the expenses equitably between the members, such certificates shall be surrendered to the employés of the club as such refreshments are consumed by such members." In the case before us no certificates were given and none of course surrendered. Nothing was done by means of which the equities between the members could be adjusted. Nothing remained to be done. The transactions were on a cash basis; the purchasing money went into the hands of the treasurer, with no other ceremony than attended a similar purchase, when, instead of filling that character, he stood behind the same bar as a saloon keeper. Liquor was purchased; liquor was paid for by money. The occurrence was not exceptional, but the members were dealt with on a cash basis, and, whether men or boys, received no other consideration than is accorded to ready-money customers at a public bar. Whatever may be the merit of the scheme prescribed by the organization, it has no effect here. It did not control or govern the parties. We are referred to the case of Com. v. Ewig, 145 Mass. 119, 5 New Eng. Rep. 177, as an authority to sustain the defendant's appeal. In that case the defendant was convicted because the scheme on which he relied was deemed an evasion of the License Law. We do not regard that question as before us; and if there are observations in the course of the opinion of the |