jury to the features of the case, so that they may better understand the evidence as it is introduced.

§ 64. Separation and competency of witnesses. At the request of either side, it is a usual custom that all witnesses are called and sworn, and then an order made for them to remain out of the room except when called to testify. A witness who remains in the room, contrary to the order, is not necessarily rejected, but may be punished for contempt of court. In both civil and criminal cases, a child of tender years is interrogated before he is sworn, and if he appears to have a sufficient knowledge of the nature of an oath he is usually permitted to testify. As a general rule, neither husband nor wife is permitted to be a witness for or against the other in a criminal case, except where the charge is, one of personal violence from the one to the other, in which case he or she may testify on either side. In some states this is regulated by statute.

§ 65. Defendant as a witness. At common law one accused of crime was not permitted to testify in his own behalf, but it is now generally provided by statute that the accused may so testify; but, if he remains silent, neither the judge nor the prosecuting attorney is permitted to call attention to that fact in the presence of the jury. If the verdict is guilty, a violation of this rule by either court or counsel may be grounds for a new trial. An accused cannot be compelled to testify against himself; nor can he be called upon in open court to produce any document or other thing which can be used in evidence in the

case.

§ 66. Order of proof. Motion for verdict. Jury ex

cluded. At the close of the opening statement or statements, the prosecution offers its testimony to sustain the indictment. The accused may then either submit the case without further evidence or offer proof. When the accused has closed his proof, the prosecution may offer evidence in rebuttal; but such evidence should be purely evidence in rebuttal, and not evidence that should have been introduced as its main proof, unless a valid excuse is given for such delay.

At the close of the prosecution's opening evidence and before any evidence is offered by the accused, the accused may move for a verdict of not guilty; but the court should overrule this motion, unless there is a clear failure of proof, for it is the province of the jury to weigh the testimony. When all the evidence on both sides of the case is in, the accused may renew this motion, and the duty of the court is practically the same as on the original motion.

It sometimes happens, during the course of a trial, that questions arise as to whether certain evidence should or should not be introduced, which would be so prejudicial that a mere suggestion of it might have its effect upon the jury. In such a case it is usual for the jury to retire to its room while the argument on the objection is being made.

§ 67. Burden of proof. Presumption of innocence. Reasonable doubt. Grades of offenses. As to the amount of evidence required, there is a marked difference between civil and criminal suits. In civil cases the rights of litigants are at issue, and the cases are decided upon

the comparative weight of the evidence. In criminal cases, the issue is not based on conflicting claims, but the question is whether the accused has done that for which a punishment should be inflicted. The law does not delight in punishing its subjects; accordingly it very justly and humanely declares, that no man should be convicted of crime unless proven guilty beyond all reasonable doubt. This rule is broad in its interpretation and clothes the accused with the presumption of innocence throughout the entire trial. The indictment is no evidence of guilt, nor does it raise any inference or presumption of guilt. It is simply the accusation on which the accused is being tried. This doctrine should be impressed on the minds of the jurors when they are being examined as to their fitness, so they may guard against forming hasty conclusions during the early stages of the trial. A juror should listen to all of the evidence and argument on each side and to the instructions of the court, and keep his mind free from any fixed and unalterable opinion until the case is submitted to the jury. Then it becomes the duty of the entire jury to consider the case, and answer the crucial question: Considering all of the testimony, in the light of the law, has the accused been proven guilty beyond all reasonable doubt?

The doctrine of reasonable doubt applies to the grade of the offense, as well as to the question of guilt. Thus, if the indictment is for assault with intent to commit robbery and the jurors are convinced by the evidence, beyond all reasonable doubt, that an unlawful assault has been committed, but entertain a reasonable doubt as to

the intent to rob, the verdict should be "guilty of assault," which is an acquittal of a higher grade of offense.

§ 68. Reasonable doubt: Alibi. In common parlance we hear of "proving an alibi." This is a misconception. The word "alibi" means "in another place." The prime issue in the case is whether the defendant was present and committed a crime as charged, and not whether he was at another place. Some courts have held that where the accused denies his presence, it devolves on him to prove that he was at another specific place; while other courts have held that it is sufficient if his proof "creates" a reasonable doubt. Both of these theories are wrong. It devolves on the prosecution to prove his presence. Any evidence that he may offer to the effect that he was absent from the place of the alleged crime is simply negative and rebutting testimony. The phrase "creating a reasonable doubt" is inaccurate. That which is self

existent cannot be created. The defendant is clothed with the presumption of innocence, of which a reasonable doubt is an essential element. The real inquiry is: After considering all the testimony on both sides, have the presence and the guilt of the accused been proven beyond all reasonable doubt (3)?

§ 69. Corpus delicti. The term "corpus delicti" means the body or fact of the crime, which must be clearly established. Thus, in a homicide case, not only must

(3) On this subject see 11 Am. Cr. Rep. 31-88; 12 Am. Cr. Rep. 13-31; Johnson v. State, 21 Tex. Crim. Rep. 368; State v. Hamilton, 57 Iowa 596; Walters v. State, 39 Ohio St. 215.

the death be proven, but it must be shown that the death was produced by criminal means.

"I would never convict any person of murder or manslaughter," says Sir Mathew Hale (4), "unless the fact was proved to be done, or at least the body found dead." Continuing, he tells of a case where a man was convicted and executed for a supposed murder, when in fact the accused had compelled the supposed victim to go to sea, which was also a capital offense. Thus, although the accused was not guilty of murder, yet he dared not disclose his real defense. Within a year after his execution, the supposed dead man appeared alive.

Sir Edward Coke records a case in which an uncle was the guardian of an orphan niece and the custodian of her property. When chastising her, she cried out: "Oh good uncle, kill me not." She disappeared; and after some time he was arrested, admonished to produce her by the next assizes, and was bailed. He attempted to deceive the judge by producing another girl of like appearance. The fraud was detected, and he was tried, convicted, and executed. Several years afterwards she re-appeared alive. When chastised, she ran into an adjoining county and was enabled to find a home and earn a livelihood. On becoming of age, she returned to possess her property (5).

§ 70. Same: Cannot be proved by confession. By the better view a confession is an admission of guilt but is not proof of the act. It connects the accused with the

(4) 2 Hale's P. C. 290.

(5) 3 Coke's Inst. 332.