'.

0 (1831); or that the party who has the " affirmati v e of any proposition " has the bur- den of proo F People v Schry v er, 42 N Y 1, 1 Am Rep 480 (1870) ; Simon v Krimko, 123 N Y Supp 697 (1910 ) This iS in reality, a misapprehensio N Where the defendant in a ci v il action for wrongful death admits the killing but puts in e v idence sufficient to jus- tify it as in self-defense, it has been recently held that the burden is on the plaintiff to show by independent testimony that the kill- ing was wrongfuL This decision seems to be contrary to the weight of authority Welch v Creech, 88 Wash 429 153 Pac 355, L r A 1918A 353 45 Douglass v Willar D129 CaL 38, 61 Pac 572 (1900) ; Cle v elan DO , etc, R Y Co v Moore, 170 Ind 328, 82 X E 52, 84 N E 540 (1908) ; Phipps v Maho N 141 Mass 471, 5 X E 835 (1886) ; Schlesinger v Hexter, 34 N Y Supe r Ct, 499 I 1872) ; Pusey v Wrigh T 31 Pa St 3S7 ( 1858) : 2 Cham B E v , 049, note 6, and cases cite D46 Baird v Brown, 28 L A An N 842 (1876): Eastman v Goul D63 X H 89 (1884): 2 Chamb, E v 949, note 7, and cases cited 47 Atlantic Trust Co v Crystal Water Co, 72 X Y App Di v 539, 76 X Y Supp 647 (1902): Western Union TeL Co v Jackson, 19 Tex Ci v App 273 4fi S W 279 (1898) ; 2 Chamb, E v , 949, note 8, and cases cite DThe substanti v e law may require- that the existence of conditions antecedent to liability should be negati v ed ; 4S and, so far as can reasonably be demanded in any particular case, 41 * the party ha v ing the burden of proof may fairly be expected to establish the truth of such negati v e allegations, e v en where special knowledge is possessed by his antagoni St 397 [Position of Burden of Proof] ; Equity Pleadin g In equity, as at law, the burden of proof is on the party who has the affirmati v e of the issue raised by the pleadingS 50 There being no constructi v e admission in equity, as distinguished from common law pleading, a plaintiff or complainant has the burden of proof as to all material facts not expressly admitted by the answe r 51 Under the general rule the defendant has the affirmati v e of the issue as to any plea set up by him, 52 or any affirmati v e defences relied upon in the answer, and, by consequence, as to these has the burden of proo F 398 [Position of Burden of Proof] ; Statutory Pleading Under code pleading the plaintiff, or complainant, states such facts as, in his opinion, en- title him to relie F The burden of proof is on him as to all allegations not specifically admitted by the defendant in his answe r 53 Such allegations are regarded as denied, 54 though the denial be merely argumentati v e: 55 as where it sets up a different price, 50 or relies upon another contra Ct 57 Should the distinct admissions made by the defendant's answer suffice to establish the plaintiff's prima facie case, 58 the burden of proof is upon the defendant as to any matter relied upon in a v oidance of the effect of these admissionS 59 48 Bufford v Eane Y 122 Al A 565, 26 So (1867 ) It is an established rule of e v idence 120 (1898) ; Atlantic Trust Co v Crystal in equity, that where an answer which is put Water Co, supra; 2 Chamb, E v , 949, note in issue, admits a fact, and insists upon a dis- 9, and cases cite Dtinct fact by way of a v oidance, the fact ad- 49 Delachaise v Maginnis, 44 L A An N mitted is established, but the fact insisted 1043, 11 So 715 (1892); Thayer v v iles, upon must be pro v ed: otherwise the admis- 23 v t 494 (1851 ) sion stands as if the fact in a v oidance had Administrati v e DetailS In many juris- not been a v erre DI Ddictions, the right to " open and close the 53 Chamberlain Banking House v Wool- case itself" rest upon the party ha v ing the sey, 60 Ne B 516, 83 X W 729 (1900 ) burden of proo F New Ellerslie Fishing Club 54 Car v er v Eads, 65 Al A 190 (1880); v Stewart, 29 K Y L Rep 414, 93 S W598 Woodson Ma Ch Co v Morse, 47 Ka N 429, 28 (1906 ) Pac 152 (1891 ) 50 Pusey v Wright, 31 Pa St 387 55 Homire v Rodgers, 74 Iowa 395, 37 N (1859) ; Pritchard v Pritchard, 2 Ten N C r W 572 (1888 ) App 294 (1902): Cochran v Blount, 161 U 56 Connolly v Cl Ark 20 Misc ( N Y) S 350 16 S Ct 454, 40 L e D729 (1895 ) 415 45 N Y Supp 1042 (1897 ) But see Huston v Harriso N 168 Pa St 136, 57 Mott v Baxter, 20 Colo 418 68 Pac 31 Atl 987 (1895 ) 220 (1920) : Phipps v Maho N 141 Mass 471, 51 Pusey v Wright, supra: Clifton v Wes- 5 N E 835 (1886) : Consumers' Brewing Co ton, 54 W v A, 250 46 S E 360 (1903); 2 v Lipo T 21 Misc (X Y ) 532 47 N Y Cham B E v 951, note 3, and cases cite D Supp 718 (1897) : 2 Chamb, E v 952 note Where the plaintiff files a replication, or the law files one for him, he has the burden of proof as to any new matter which is set u P" This looseness of pleading frequently causes a change of legal situation which strongly resembles a shifting of the burden of proof, which is said to take plac E This, in reality, is impossibl E 61 A party, being at liberty, at the trial, to bring out in his e v idence what, under a more scientific system of pleading, would be matter of an affirmati v e plea, although his position is still, on the record, merely that of denying the allegations of his antagonist, the burden of proof, being upon him as to this affirmati v e plea, this burden is said to ha v e shifte D" The simple fact is, that under this mode of pleading, as compared with a strictly accurate mode, the time fixed for setting up the affirmati v e case is different ; instead of requiring that it be disclosed before the pleadings are ended, it is allowed to be made known during the progress of the triaL" 62 Some slight color of principle is gi v en this process by the fact, abo v e referred to, 63 that many de- fences which, under common law pleading were affirmati v e, e g, infancy, co v erture and the like, really show that the other party ne v er had a cause of actio N 04 Of these the defendant in a trial conducted under statutory plead- ing may properly a v ail himself, though his only statement is a general denial of the plaintiff's cas E 65 Counterclaim or Set-Of F The filing of a counterclaim or set-off does not affect the burden of proof in the main actio N 66 It merely amounts to a cross- action, in which the burden of proof is as it would ha v e been if that suit had been brought as an independent proceedin g As to all allegations in his declaration, or affirmati v e replication which are denied, the plaintiff in set-off or counterclaim has this burden of proo F 67 including the allegation of dam- ageS 08 As to any affirmati v e plea, either in answe r 69 or rejoinder, the de- fendant in set-off or counterclaim has the burden of proo F The same rule applies when cross bills in equity or cross complaints at the law are tried to- gethe r Each of the contending parties has the same burden as if the suit, as to which the inquiry is made, had presented the sole issue for triaL"' 399 [Position of Burden of Proof] ; Actions in Rem, etc Where there are no common law pleadings, as where one inter v enes in a pending proceeding as claimant,' 1 the burden of proof is plac E.

! by procedure or administration in accordance with the natural rule upon the defendant, claimant or party seek- ing affirmati v e actio N tSo, where one institutes an action in rein, seeking affirmati v e action in his own behalf: as for the probate of a will, 72 or seeks relief in any other special proceeding as where the party appeals from an order, 73 or sues to condemn land, 74 or to reco v er damages arising from the exercise of the right of eminent domain, 75 the burden of proof is upon hiM So also, where a petitioner asks to be declared elected to an offic E 70 An inter- v eiior who fails to support his claim by proof will be defeate D77 400 [Position of Burden of Proof] ; Criminal Cases ; Burden on Prosecutio N The rules regulating the burden of proof in either of its dual senses, are the Bame in criminal as in ci v il caseS Where no statutory regulation exists to the contrary, 78 the burden of proof is upon the go v ernment to establish beyond a reasonable doubt, 7 " e v ery material allegation necessary to the existence of the offence charged, s " including that alleging any specific intent necessary to con- stitutes the offence,** 1 or any mental state, such as knowledg E 82 required by 71 Eastmore v Bunkley, 113 G A 637 39 X E 903 (1899); State v Sche v e, 65 Ne B S E 105 (1901): Miller v Prys E 20 K Y L *53, 93 X W 169 59 L r A 927 (1903); Rep 1544, 49 S W776 (1899) : 2 Chamb, People v Baker, 96 X Y 340 (1884) ; Agnew E v , 955, n 1, and cases cite D v T S, 165 U S 36, 17 S Ct 235 (1896) ; 72 Ware v War E 8 GreenL ( Me) 42 2 Cham B E v , 956, N 2 and cases cite D(1831): Crowninshield v Crowninshiel D2 80 Fitch v Peopl E 45 Colo 298 100 Pac Gray (Mass) 524 (1854); 2 Chamb, E v , 1132 (1909): Jones v State 113 G A 271, 955, N 2, and cases cite D38 S E 851 (1901); State v Grimstead, 62 75 Montgomery Southern r Co v Sayre, 1006 (1902) ; 2 Chamh, E v , 950, N 3, and 72 Al A 443 (1882) : Williams v Macon, etc, cases cite D 76 In re Stanstead Election Case, 20 Ca N Am Dec 410 (1854): State v Judd, 20 Supreme Ct 12 (1891 ) Mont 420 51 Pac 1033 (1S9S): Jones v 77 Campbell v J I Campbell Co, 117 L A State 51 Ohio St 331 38 X E 79 (1894); 402 41 So 696 (1906 ) 2 Cliam B.

E v 956 n 4 and capes rite D 78 Sanders v State, 94 Tn D147 (1S83) - 82 Binklpy v State, 51 Te X C r r 54, 100 Ortwein v CoM, 76 Pa St 414 18 Am Rep S W7SO (1907 ) 420 (1874); Re v oir v State 8 WiS 295, 52 substanti v e law to pro v e the criminal liability of the accuse D83 The truth of all such allegations is' put in issue by the general negati v e plea of not guilt Y 84 Presumption of Innocenc E The procedural rule of the burden of proof upon the prosecution is stated in the re v erse form, i e, in terms of the de- fendant's right to insist upon the more affirmati v e rul E Thus, "all persons are presumed to be absolutely innocent of the crime charged against them, in its entirety and in all its material parts, until the jury tinds to the contrary, on proper instructions, based on competent and rele v ant testimon Y'' s5 Corpus Delict I The affirmati v e proof logically and therefore legally SG in- v ol v es, in a criminal case, two main propositions; (1) The crime charged was committed; (2) It was committed by the accuse DProof that some one has committed the offence charged, i e, that the corpus delicti, the body of the offence, or the offence itself, must be clearly established, 87 as a necessary pre- liminary in order that the attention of the tribunal should be directed to the second proposition, i e, that the accused committed i T 88 Competency of E v idence It is the duty of the state to show affirmati v ely that its e v idence is competent, that its witnesses are qualified by knowledge and otherwise, to testify, that no pri v ilege exists in the matte r The state must show, if objection is made, that it is not v ali DTn case of documentary e v idence, it must show that it is admissibl E Thus, a confession 89 must be Negati v e AllegationS Where proof of the offence charged in v ol v es show- ing negati v e allegations, the state's burden of proof may require, that so far as reasonably capable of proof, these should be established by the prosecutio N And where the legislature or judiciary has established certain exceptional states of fact under which the penalties prescribed by law do not attach, it is the duty of the state to negati v e the existence of these both in allegation and proo F 91 So where the obser v ance of a particular procedural requirement, e g, corroboration, 92 is made a pro v iso upon the operation of a statute, the burden is on the prosecution to show compliance with the conditio N 83 State v Lax, 71 X J L 386, 59 Atl 87 Younkins v State 2 Cold (Ten N) 219 18 (1904 ) (1865) ; 2 Chamb, E v 95S 84 Cooper v State, 2 Q A App 730 59 S 88 I".

S v Searcey, 26 Fed 435 (1885 ) E 20 ( 1907) ; State v Pressler, 16 Wy O 214, 89 2 Chamb, E v , 959, 1472 et seq 92 Pac 806 (1907 ) Special pleas in bar are 90 Smith v State, 74 Ark 397 85 S W not, as a rule, required, and affirmati v e pleas 1123 M905 I by way of confession and a v oidance are but 91 Ferguson v State, 1 G A App 841, 58 seldom requ Ired S E 57 (1907) ; 2 Cham B E v , 960 85 Cook v State 85 Miss 738 749 38 So 92 State v Connor, 142 X c 700 55 S E 110 (19051 See United States v Heike ( N 787 (1906 ) Certain distinctions are, how- Y 1910), 175 Fed 852 2 Chamb, E v , e v er, to be take N See Richardson v State, 957 77 \r K 321 91 S v Y 758 (1905) - State v 86 2 Chamb, E v 385 et seq Mills, 182 Mo 370, 81 S W867 (1940 ) that the alleged acts were done at a time when it was unlawful to do them, 93 i e, after the passage of a statute prohibiting the doing of the acts in question, 94 before the finding of the indictment, 95 and also that the prosecution is not barred by any general or special statute of limitatio N 96 Sanit Y Within this burden is that of showing that the act alleged was committed by a person mentally responsible, in a legal sense ; 97 that is, that the accused was sane at the time he did the act in question to an extent which makes him amenable to its legal consequenceS The defence of insanity, there- fore, merely raises a question as to the position of the burden of E v idence 98 It is not an affirmati v e defenc E 99 E v idence with regard to it may be gi v en under a general plea of not guilty, 1 and should a reasonable doubt as to the prisoner's sanity be found by the jury he is entitled to be adjudged not guilty by reason of insanit Y As in ci v il cases, 2 and actions in rem, e g, proceedings in v ol v ing the probate of a will, 3 the presumption of law as to sanity 4 has no effect upon the burden of proof ; 5 howe v er strongly it may sustain or " shift " the burden of e v idence? v enu E The go v ernment's proof must meet the requirements of place, as well as those of ti Me The offence must be shown to ha v e been committed in the county alleged in the indictment, i e, the proper v enue must be estab- lishe D7 Thus, on an indictment in the Federal courts it must be shown by the state, if the offence was committed on land that the particular place was within the jurisdiction of the United StateS If on the high seas, the proof is that it was committed 011 a v essel belonging to a citizen of the countr Y 8 401 [Position of Burden of Proof]; Affirmati v e DefenceS The prosecu- tion's burden of proof in criminal cases requires from it ultimate proof of 93 State v Newton, 39 Wash 491, 81 Pac SBaxter v Abbot, 7 Gray (Mass) 71 1002 (1905 ) (1856 ) 94 Lawrence v ille v Crawford, 60 G A 162 4 , infra; 2 Chamb, E v , 1055 (1878 ) 5 Dacey v People, 116 111 555 (1886); 95 CoM v Gra v es, 112 Mass 282 (1873) ; People v Garbutt, 17 Mich 9 (1868) ; Broth- State v Hughes, 82 Mo 86 (1884) ; 2 Chamb, erton v People, 75 N Y 159 (1878 ) E v , 961, N 3, and cases cite D6 CoM v Heath, 11 Gray (Mass) 303 96 Askew v State, 3 Ga App 79, 59 S E (1858) ; 2 Chamb, E v , 962, N 9, and cases 311 f 190" ) ; State v Schuerman, 70 Mo App cite DSee also Da v is v L T S, 160 v S 469, 518 (1897) ; State v Carpenter, 74 X c 230 485 (1895 ) (1876) ; 2 Chamb, E v , 961 N 4, and cases 7 Barnes v State, 134 Al A 36, 32 So 670 cited (1901); People v Tarpey, 59 CaL 371 97 State v Crawford, 11 Ka N 32 (1873) ; (1881) ; Jones v State 113 G A 271, 38 S E Fife v CoM, 29 Pa 429 (1857); 2 Chamb, 851 (1901); Huston v People, 53 111 App E v , 962, N 1 501 (1893) : State v Tosney, 26 Minn 262, 3 98 404: 2 Chamb, E v , 974 X W 345 (1879); State v Young, 99 Mo 99 State v Pressle r supr A 284, 12 S W642 (1889); Larkin v People, 1 State v Speyer, 207 Mo 540, 106 S v v 61 Bar B ( X Y) 226; 2 Chamb, E v , 963 505 (1907 ) and oases cite D 2 See Jones v Granite State Fire InS Co, 8 I".