| Ala. | Dec 15, 1883
There is no error in the instruction given to the jury by the circuit court. When a person is shown to have been in life at a particular period of time, and seven years thereafter has not expired without intelligence from or concerning him, if the factof his life or death becomes material, upon the party asserting death the law devolves the burden of proof.— 1 Green. Ev., § 41. In criminal cases, the .presumption of life may not, under all circumstances, or generally, outweigh the presumption of innocence which the law indulges. Neither presumption is absolute ; either is disputable ; and the weight to be attached to either must be determined by the facts of the particular case. It is most plain, from the circumstances of this case, that if the wife of the accused died before the commission of the offense with which he is charged, of the fact he had special knowledge, and especial opportunities and means of proving it. A few months only had passed since she was in life, under his care and protection ; and her death without his knowledge, if not impossible, was improbable. If a dissolution of the marriage, by death or otherwise, would have acquitted him of guilt, under these cir
Affirmed.