Paddock, 18 Johns. 141; Bradley v. Bradley, 4 Whart. 173; Loring v. Steineman, 1 Met. 210.

b. No Presumption as to the Time of Death Arises from Mere Absence.-Although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death; and, therefore, if anyone has to establish the precise period during those seven years at which such person died, he must do so by evidence and can neither rely, on the one hand, on the presumption of death, nor, on the other, upon the continuance of life. These views are in harmony with the settled laws of the English courts, as will be seen from an examination of the authorities. Hopewell v. DePinna, 2 Campb. 113; Reg. v. Lumley, L. R. 1 C. C. 196; Dunn v. Snowden, 32 L. J. Ch. 104; Lambe v. Orton, 29 L. J. Ch. 286; including the leading case in the court of exchequer of Nepean v. Knight, 2 Mees. & W. 894, in error from the Court of King's Bench. In that case Lord Denman, Ch. J., said: "We adopt the doctrine of the Court of King's Bench that the presumption of law relates only to the fact of death, and that the time of death, whenever it is material, must be a subject of distinct proof." To the same effect is the preponderance of authority in this country. McCartee v. Camel, 1 Barb. Ch. 456, 5 L. ed. 453; Lancaster v. Washington L. Ins. Co. of New York City, 62 Mo. 121; Stouvenel v. Stephens, 2 Daly, 319; Hancock v. American L. Ins. Co. 62 Mo. 26; Stevens v. McNamara, 36 Me. 176; Whiting v. Nicholl, 46 Ill. 230, 92 Am. Dec. 248; Smith v. Knowlton, 11 N. H. 191; Flynn v. Coffee, 12 Allen, 133; Loring v. Steineman, 1 Met. 204; Spurr v. Trimble, 1 A. K. Marsh. 278; Doe v. Flanagan, 1 Ga. 538; Smith v. Smith, 49 Ala. 156; Gibbes v. Vincent, 11 Rich. L. 323.

For an exhaustive review of the authorities sustaining this presumption, see the opinion of Mr. Justice Harlan in Davie v. Briggs, 97 U. S. 628, 24 L. ed. 1086. See also Whiting v. Nicholl, 46 Ill. 230, 92 Am. Dec. 248; Youngs v. Heffner, 36 Ohio St. 232; Adams v. Jones, 39 Ga. 479; Wentworth v. Wentworth, 71 Me. 72; Smith v. Smith, 49 Ala. 156.

c. How Established. Any evidence calculated to negative the presumption of life is competent to establish the presumption of death. Anderson v. Parker, 6 Cal. 197; Ruloff v. People, 18 N. Y. 179; Crouch v. Eveleth, 15 Mass. 305; Hancock Mut. L.

Ins. Co. v. Moore, 34 Mich. 41; Bailey v. Bailey, 25 Mich. 185; Scheel v. Eidman, 77 Ill. 304; Jackson v. Etz, 5 Cow. 319.

d. Importance of this Presumption in Criminal Law.— The presumption of life or death is one of great importance in criminal law. For an elaborate discussion of the principles underlying this presumption, see the opinion of Johnson, Ch. J., in Ruloff v. People, 18 N. Y. 179.

Mr. Wills, in his treatise on Circumstantial Evidence, says: "Death may be inferred from such strong and unequivocal circumstances that render it morally certain and leave no ground for doubt." p. 208.

e. Suicide. In the case of Persons v. State, 90 Tenn. 291, the court below charged the jury in the manner following: "All things being equal you are to presume that a party found dead did not die by his own hands. In all cases of sudden death the presumption of the love of life negatives the idea of suicide. It is true, however, that this presumption of death other than by suicide, yields at once to any inference that may be logically inferred from the facts of the case."

On appeal, the supreme court, speaking through Turney, Ch. J., held this to constitute reversible error in that it left the jury to conclude that if the proof preponderated against the contention for suicide, or was evenly balanced, then it was, by a rule of law, required to find against the insistence of the defense; that the defendant was not entitled to the benefit of a reasonable doubt, but must make out to the satisfaction of the jury that the deceased took his own life. It placed the defendant in the relation of prosecutor to make clear a case of suicide before he could insist upon such facts as conducing to prove an hypothesis inconsistent with his own guilt.

When the defendant has shown conduct, declarations, and circumstances pointing to a suicidal intent, then it devolves upon the state to show satisfactorily and beyond a reasonable doubt it was not suicide, before the defendant can be deprived of the benefit of such reasonable doubt as his facts would create. The charge of the judge reversed the rule, and put the burden of full proof on the defendant. Persons v. State, 90 Tenn. 291.

In civil cases, where one has been found dead, even with marks of violence, nothing else appearing, the presumption is that the deceased did not commit suicide, as also that he or she was not

murdered. Accident Ins. Co. of N. A. v. Bennett, 90 Tenn. 236. Further it appears that upon a charge of homicide, even when the body has been found, and although indications of a violent death be manifest, it shall still be fully and satisfactorily proved that the death was neither occasioned by natural causes, by accident, nor by the deceased himself. 1 Starkie, Ev. 575.

While it is unquestionably true that the rules of evidence are the same in civil and criminal cases, it does not follow that because the rule is the same that presumptions applicable in one are always applicable in the other. An antagonistic presumption may exist, and does in criminal cases-that is, the innocence of the defendant. So the presumption that a deceased did not commit suicide cannot be applied in criminal cases against the presumption of innocence. Persons v. State, 90 Tenn. 291.

§ 19. Presumption of Sanity and Responsibility.—Should the question of insanity become one of any importance in a criminal proceeding, reliance may be had upon the postulate of law which attributes to all persons the possession of their faculties. Where the contrary is alleged it must be proved. Lilly v. Waggoner, 27 Ill. 395; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; Stubbs v. Houston, 33 Ala. 555; Thornton v. Appleton, 29 Me. 300; United States v. McGlue, 1 Curt. C. C. 1; Runyan v. Price, 15 Ohio St. 1, 86 Am. Dec. 459; Cotton v. Ulmer, 45 Ala. 378, 6 Am. Rep. 703; Farrell v. Brennan, 32 Mo. 328, 82 Am. Dec. 137; State v. Smith, 53 Mo. 267; Porter v. Campbell, 2 Baxt. 81; Saxon v. Whitaker, 30 Ala. 237; Den v. Vancleve, 4 Wash. C. C. 262; Jackson v. Van Dusen, 5 Johns. 158, 4 Am. Dec. 330; Jackson v. King, 4 Cow. 207, 15 Am. Dec. 354; Egbert v. Egbert, 78 Pa. 328; Anderson v. Cranmer, 11 W. Va. 562; Weed v. Mutual Benefit L. Ins. Co. 70 N. Y. 561; Brown v. Torrey, 24 Barb. 583; Walter v. People, 32 N. Y. 147; Gardner v. Gardner, 22 Wend. 526, 34 Am. Dec. 340. In Weed v. Mutual Benefit L. Ins. Co. it was said: "The sanity of every individual is presumed, and insanity cannot be presumed from the mere fact of suicide."

Sanity is a normal condition, and the criminal law harbors the presumption that all men are in possession of their faculties to the extent of intending or contemplating the natural results of the act they commit. It follows, that where the prosecution has proved the commission of an offense, the legal presumption as to

sanity may be invoked as supplemental to this proof, and the state has made out a prima facie case sufficient, without rebutting testimony, to sustain the conviction.

Upon this showing, where the defendant seeks to avoid the consequences of his offense through the plea of insanity, the burden of proof in a certain sense shifts, and it devolves upon him to show that the presumption of insanity is to be ignored. It should be added that the presumption of innocence clings to the accused throughout the entire trial. Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231; Alexander v. People, 96 Ill. 96; Bradley v. State, 31 Ind. 492; McDougal v. State, 88 Ind. 24; State v. Jones, 64 Iowa, 349; State v. Crawford, 11 Kan. 32; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; Wright v. People, 4 Neb. 407; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State v. Waterman, 1 Nev. 543; O'Connell v. People, 87 N. Y. 377, 41 Am. Rep. 379; Dove v. State, 3 Heisk. 348; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200. There is considerable contradiction upon this subject, and the practitioner must observe the lex fori in all cases.

When the evidence of sanity on the one side, and of insanity on the other, leaves the scale in equal balance, or so nearly poised that the jury have a “reasonable doubt," there a man is to be considered sane and responsible for what he does. But if the probability of his being insane at the time is, from the evidence in the case, very strong, and there is but a slight doubt of it, then the jury ought to say, that the evidence of his insanity was clear. The proof of insanity at the time of committing the act, ought to be as clear and satisfactory, in order to acquit him on the ground of insanity, as the proof of committing the act ought to be, in order to find a sane man guilty. State v. Spencer, 21 N. J. L.

196.

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§ 20. Presumption where Accused is Under Seven Years of Age. A child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to understand the act or neglect charged against him, and to know its wrongfulness. Whenever in any legal proceedings it becomes necessary to determine the age of a child, the child may be produced for personal inspection, to enable the magistrate, court or jury to determine the age thereby; and the court or

magistrate may direct an examination by one or more physicians, whose opinion shall also be competent evidence upon the question of age. A copy of the record of baptism of any child in any parish register, or register kept in a church, or by a clergyman thereof, or a certificate of baptism duly authenticated by the person in charge of such register, or who administered said baptism, and also a transcript of the record of birth recorded in any bureau of vital statistics or board of health, duly authenticated by its secretary or under its seal, and the entries made in a family Bible, shall also be competent evidence upon the question of the age. N. Y. Penal Code, § 19.

An infant is capable of testifying to his own age. Cheever v. Congdon, 34 Mich. 296; Morrrison v. Emsley, 53 Mich. 564; Central R. Co. v. Coggin, 73 Ga. 689.

The court may rely upon its own judgment as to the prisoner's age, or the jury may determine it by general inspection or by any evidence in the case. People v. New York County Justices, 10 Hun, 224; Com. v. Emmons, 98 Mass. 6. Evidence may be received from any person capable of giving it for the purpose of proving the fact, or where the appearance of the prisoner sufficiently indicates his proper age, that may be acted upon as evidence of the fact. State v. Arnold, 35 N. C. 184; contra, Ihinger v. State, 53 Ind. 251.

§ 21. Continuance.-Another presumption of law and one that is believed without qualification is this: Where a condition or state regarding persons or things is shown to exist, that condition or state is presumed to continue until the contrary is shown. Kidder v. Stevens, 60 Cal. 415; Mullen v. Pryor, 12 Mo. 307; Eames v. Eames, 41 N. H. 177; Garner v. Green, 8 Ala. 96; Hood v. Hood, 2 Grant, Cas. 229; Gould v. Norfolk Lead Co. 9 Cush. 338, 57 Am. Dec. 50; Montgomery & W. Plank Road Co. v. Webb, 27 Ala. 618.

In criminal law as in civil cases, a fact continuous in its character and nature is presumed to continue. Wilkins v. Earle, 44 N. Y. 172, 3 Am. Rep. 655; Poe v. Dorrah, 20 Ala. 289, 56 Am. Dec. 196; Magee v. Scott, 9 Cush. 148, 55 Am. Dec. 49; Smith v. New York Cent. R. Co. 43 Barb. 225; Eames v. Eames, supra; Graves v. State, 12 Wis. 593; Laughlin v. Chicago & N. W. R. Co. 28 Wis. 204, 9 Am. Rep. 493; Farr v. Payne, 40 Vt. 615. It must be remembered that all presump