Crilley v. State

| Wis. | Jan 15, 1866

Downer, J.

Tbe writ of error in this case must be dismissed, as there is no final judgment. Still it is insisted that, inasmuch as there is a bill of exceptions signed by the judge who tried the case, it is properly here under the provisions of chapter 180, R. S., and we orrght to proceed and decide upon the errors alleged.

The bill of exceptions on its face shows that it was made with a view to a writ of error, and the original papers are sent up by the clerk of the municipal court, and not a copy as the law requires where the case is certified to this court on exceptions. The original papers ought not to be sent up when the case is removed to this court by writ of error, but a certified copy. We have, however, at the request of the attorney general and of the counsel for the defendant below, examined the alleged errors. They are, that the court below refused to give the first and fifth instructions asked by the defendant below.

By the first instruction, the court was asked to charge the jury that “ the burden of proof of every material fact alleged in the indictment is on the prosecution, and does not shift during the trial to the defendantIf the municipal court had charged the jury that the burden of proof did shift during the trial to the defendant, it would undoubtedly have been error; but we do not think his refusal to charge in so many words that it did not shift, especially when we take into consideration the instructions given, was error. The true rule is, that the burden of proof is upon the state to prove the guilt of the defendant, and that he is presumed innocent unless the whole evidence in the case satisfies the jury, beyond a reasonable doubt, that he is guilty, ¿knd the court so instructed the jury. But the counsel for the plaintiff in error contends that the court did charge the jury that the burden of proof during the trial shifted. The charge referred to is, that if the jury find that the property was stolen and belonged to Yan Cott, “ and that any part of the 'property so stolen was within a short time after-wards found in tlie possession of tbe prisoner, tbe burden devolves upon bim, of showing bow be came by it; otherwise be may be presumed to have obtained it feloniously.” We do not think this was or could have been understood by tbe jury as an instruction that tbe burden of proof shifted or changed from tbe prosecution to tbe defendant, on tbe defendant being proved in possession of tbe stolen goods soon after they were stolen. It is clearly only to tbe effect that there might or would be a presumption from such possession of tbe guilt of tbe prisoner, unless be accounted for tbe possession. And tbe court then further told tbe jury that such presumption might be rebutted by tbe circumstances proved; also, in tbe third instruction asked by tbe defendant and given, that such presumption was a presumption of fact, and if tbe evidence led to a reasonable doubt whether tbe presumption was well founded, that doubt would avail in favor of tbe accused.

Tbe fifth instruction asked by tbe defendant below, and refused, was in substance, though not in terms, given. On tbe whole, we are satisfied that tbe charge of tbe court was as favorably to tbe prisoner as tbe law would permit, and that there was no error to bis injury. We advise tbe municipal court to proceed and render judgment on tbe verdict

By the Court. — Tbe writ of error is dismissed, and tbe papers, with a copy of this opinion, ordered to be remitted to tbe court below.