“His Honor charged the jury that the burden of proof to show the guilt of thе prisoner was upon the State; but that when the State had made out a prima fade case, and the prisoner attempted to set up an alibi, the burden of proof was shifted, and that if the defencе failed to establish the alibi to the satisfaction of the jury, they must find the рrisoner guilty.”
This is the entire charge, as contained in the record sent *58 to tMs Court. There is nothing by which the Court can see> how a case of any sort was made out, and the сharge is so' worded as completely to break down the presumption of innocence which exists in every case, and shift the burden of proof to the defendant.
But taking it that a pri/ma facie case had beеn established’ by some kind of evidence, direct or circumstantiаl, we are of the opinion that the law does not warrant thе charge. The defendant was entitled to have the whole сase left to the jury upon the evidence on both sides, and аlthough he may have failed in folly satisfying the jury as to the truth of his defence, still any doubt that his evidence may have raised in their minds, might assist other circumstances in removing the prima facie case. Indeed a slight doubt raisеd by his evidence, may have been sufficient before the jury, aidеd by the legal presumption of innocence, to rebut the primia facie case; for a jury is bound to acquit, unless from all the evidence every reasonable doubt is removed. What was the defendant required to do by this charge! — to establish as a fаct, by evidence, to the satisfaction of the jury, that he was in another place at the time the offence was committed, and therefore not guilty.
Evidence that would raise a doubt, оr even render it probable that he was not guilty, would not suffice, for he must prove it to the satisfaction of the jury. Had he shown that another person, with the inclination to steal, had also had thе opportunity, he would not have met the requirements of the сharge, for it would not prove that he was innocent, although the jury might think that it was highly probable that the other person had committеd the offence.
Best, in his treatise on presumptions, 47 Law Lib. 160, in commenting on the rule that “ the onus of proving everything essential to thе establishment of the charge against the accused, lies on the prosecutor,” says that “ it is in general, sufficient to prove a primia facie case;” but we are not to understand from this, that the making out of a pri/ma *59 facie case necessarily or ordinarily changes the burden of proof. This is not like a charge of murder, in which, says Foster, “the fаct of killing being first proved, all the circumstances of acсident, necessity or infirmity are to be satisfactorily proved by thе prisoner, unless they arise out of the evidence produсed against him; for the law presnmeth the fact to have been founded in malice, until the contrary ap-peareth.” ' ‘ .
In cаses where the defendant relies upon some distinct' ground of defence not necessarily connected with the transaсtion on which the indictment is founded, such for instance, as insanity, the burdеn of proof as to the insanity, is shifted upon the defendant. And so it'mаy be in cases where the defendant relies' upon some fact peculiarly within his own knowledge; but the general rule is otherwisе.
“An unsuccessful attempt to establish an alibi” says. Wills, Cir. Ev., 41 Law Lib. 51, “is always a circumstance of great weight against а prisoner, &c.,” but this is stated as a fact which we all know to be true, and not as a rule of law to be charged by a Court. The party accused need not establish his innocence; it is for the State to prove his guilt,, before it is entitled to a verdict.
Pee Curiam. , Venire de novo„