a presumption is only to indulge in loose | actually involved in these cases was whether language. To say that the defendant's the court could in its instruction restrict character shall not be attacked, unless he the use of evidence produced by the defendhimself puts it in issue, is manifestly a very ant as to his good character to simply turndifferent thing from saying that his char- ing the scale by producing a reasonable acter is presumed to be good. In counsel's doubt, and thus prevent the jury from conbrief there are numerous excerpts from text-sidering it generally on the question of debooks and encyclopedias, and some decisions, fendant's guilt or innocence. It is manifest in which this rule of law that the character of a defendant shall not be attacked, unless he himself puts it in issue, is stated in the converse form, that his character is presumed to be good. For example, in 3 Enc. of Evidence, p. 34, the following language is used: "The law presumes the good character of a person accused of crime, and no inference of bad character arises from his failure to offer evidence of good character."

that general language used in such cases as to the presumption of defendant's good character cannot be considered as part of the decision.

Whenever the question has been directly presented for decision it has been held, with a single exception, that unless the defendant puts his character in issue by producing evidence himself, it is wholly outside the case. On the one hand, there is no presumption in regard to his character being either good or bad; and, on the other hand, neither the court nor counsel can properly refer to defendant's character as an element to be considered by the jury. Addison v. People, 193 Ill. 405, 62 N. E. 235; Dryman v. State, 102 Ala. 130, 15 So. 433; Griffin v. State, 165 Ala. 29, 50 So. 962; People v. Johnson, 61 Cal. 142; People v. Griffith, 146 Cal. 339, 80 Pac. 68; People v. Lee, 1 Cal. App. 169, 81 Pac. 969; People v. Bodine, 1 Denio, 281, 315; Danner v. State, 54 Ala. 127, 25 Am. Rep. 662; Gater v. State, 141 Ala. 10, 37 So. 692; McQueen v. State, 82 Ind. 72; State v. Smith, 50 Kan. 69, 31 Pac. 784; State v. Collins, 14 N. C. (3 Dev. L.) 117; Knight v. State, 70 Ind. 375, 380.

By the author these two statements are manifestly regarded as equivalent. It needs no argument, however, to show that they are not so. Counsel cites the following cases which are referred to in the encyclopedias and text-books: People v. Fair, 43 Cal. 137; People v. Gleason, 122 Cal. 370, 55 Pac. 123 (see this case fully explained and cases cited in People v. Griffith, 146 Cal. 339, 80 Pac. 68); Goggans v. Monroe, 31 Ga. 331; Bennett v. State, 86 Ga. 401, 12 L.R.A. 449, 22 Am. St. Rep. 465, 12 S. E. 806; Stephens v. State, 20 Tex. App. 269; Cluck v. State, 40 Ind. 263; Fletcher v. State, 49 Ind. 124, 19 Am. Rep. 673; State v. Kabrich, 39 Iowa, 277; State v. O'Neal, 29 N. C. (7 Ired. L.) 251; State v. McAllister, 24 Me. 139; State v. Upham, 38 Me. 261; People v. Evans, 72 Mich. 367, 40 N. W. 473; Olive v. State, 11 Neb. 1, 7 N. W. 444; Biester v. State, 65 Neb. 276, 91 N. W. 416; Ackley v. People, 9 Barb. 609. An examination of these cases will show that the alleged presumption of good character was not involved in any of them. They all turn upon the question whether error was committed by allowing the state to introduce evidence as to defendant's character when he had introduced no evidence on that subject, or allowing counsel to attack defendant's character under like cir- Our attention is called to the case of Cofcumstances, or the giving of instructions fin v. United States, 156 U. S. 432, 39 L. ed. which invited the jury to consider against | 481, 15 Sup. Ct. Rep. 394. In that case the the defendant the fact that he had put in no evidence as to his previous good character. These were the questions that passed into judgment in those cases. Whatever is contained in the opinions touching the presumption of good character is said by way of illustration or emphasis, and is no part of the judgment. Similar language is also used in People v. Weiss, 129 App. Div. 671, 114 N. Y. Supp. 236; State v. Garrand, 5 Or. 216; Com. v. Cleary, 135 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017. But the question

The so-called presumption of good character is properly classed by Mr. Chamberlayne among the pseudo presumptions. 2 Chamberlayne, Ev. § 1168. His entire discussion of the quite common error of treating a rule of law as a presumption of fact is one of the best to be found in the books. Sections 1159 et seq. See also 2 Wigmore, Ev. § 290, note 2. In so far as Mullen v. United States, 46 C. C. A. 22, 106 Fed. 892, is at variance with these views, we do not consider it to be a sound exposition of the law.

trial court gave a full and accurate charge on the question of reasonable doubt, but refused to give a properly framed request on the presumption of innocence. This refusal was assigned as error. The question raised was whether the refusal to charge as to the presumption of innocence was cured by the giving of a proper charge on the subject of reasonable doubt. This question is examined with much learning in the opinion, and the assignment of error is sustained. In reviewing the subject a passage is quoted

from Greenleaf to the effect that the presumption of innocence is evidence, and that view is developed to some extent in the opinion. It will be seen, however, from the error assigned, that this point was not directly involved, but is rather a part of the argument than a part of the judgment. When the case of Coffin v. United States went back for a second trial, the proposition that the presumption of innocence is evidence in favor of the defendant was wholly omitted from the charge to the jury. The language of the trial court was as follows: "The burden of proving Haughey and the defendants guilty as charged rests upon the government, and this burden does not shift from it. 'Haughey and the defendants are presumed to be innocent until their guilt in manner and form as charged in some court of the indictment is proved beyond a reasonable doubt. To justify you in returning a verdict of guilty, the evidence should be of such a character as to overcome this presumption of innocence, and to satisfy each one of you of the guilt of Haughey and the defendants as charged, to the exclusion of every reasonable doubt.'" On the second appeal this language is quoted (162 U. S. 664, 681, 40 L. ed. 1109, 1116, 16 Sup. Ct. Rep. 943), and in no way criticized by the court. Even more impressive is the action of the supreme court in the case of Agnew v. United States, 165 U. S. 36, 41 L. ed. 624, 17 Sup. Ct. Rep. 235. It was there urged that the trial court erred in giving to the jury the following instruction: "The defendant is presumed to be innocent of all the charges against him until he is proven guilty by the evidence submitted to you. This presumption remains with the defendant until such time in the progress of the case that you are satisfied of the guilt beyond a reasonable doubt," and in refusing the following instruction asked by the defendant: "Every man is presumed to be innocent until he is proved guilty, and this legal presumption of innocence is to be regarded by the jury in this case as matter of evidence to the benefit of which the party is entitled. This presumption is to be treated by you as evidence giving rise to resulting proof to the full extent of its legal efficacy." 165 U. S. 36, 51, 41 L. ed. 624, 629, 17 Sup. Ct. Rep. 241.

It will be noticed that the request which the court declined to give is taken verbatim from the opinion in the Coffin Case (156 U. S. 432, 459, 460, 39 L. ed. 481. 493, 15 Sup. Ct. Rep. 394), and embraces its most distinctive statements as to the presumption of innocence being evidence. The court held that no error was committed in declining to give this request, and observed that,

"the court might well have declined to give it on the ground of the tendency of its closing sentence to mislead."

Inasmuch as the Supreme Court itself thus holds that it is not error to refuse to charge that the presumption of innocence is evidence, it would seem that this subordinate feature of the opinion in the Coffin Case no longer expresses its views on that subject. See also Thayer, Ev. 551; Wig. more, Ev. § 2511; Chamberlayne, Ev. §S 1173, 1175c, 1176c.

Certainly we do not think that the doctrine that the presumption of innocence is evidence should be extended into any new field. To apply it to the pseudo presumption of good character would be peculiarly vicious. The state may rebut the presumption of innocence; all its evidence is leveled directly at that presumption. But against this so-called presumption of good character the state is powerless. It may not meet it by evidence, argument, or instruction from the bench; for, until the defendant has first introduced evidence on the subject of his character, the state may not enter that field. The presumption, if it is allowed at all, must be a conclusive presumption, because it cannot be rebutted by evidence. Thus, in our courts the basest character would be placed in a better position than the most upright; for the latter will usually be shown by evidence, and may be met by counter evidence, while the former will be made whiter than snow by the simple alchemy of presumption. To allow such a presumption would be as unjust to society as the denial of the correct rule of law would be to the defendant. If the presumption exists, counsel have a right to use it in argument, and to require its declaration from the bench. What will be the effect upon juries? When they are told by the court that the presumption exists, and that they must give effect to it in their decision, they are bound to conclude that this means something, though they have no way of knowing what weight they ought to attach to this peculiar "evidence," which has no basis either in testimony or in inference. It would be a poor advocate, indeed, who could not raise a "reasonable doubt" out of such metaphysics. Sound legal administration-an administration that is just to society as well as the defendant-forbids the allowance of any such presumption. When the defendant is given the benefit of the presumption of innocence, and the rule in regard to reasonable doubt, and is protected against any attack upon his past life, either by evidence, argument, or instruction, he is fully protected against injustice. farther is, in the language of Mr. Justice Prewer (in an article in the North Amer

To go

ican Review), "not to protect the innocent, but to make it impossible to convict the guilty."

The judgment is affirmed.

Smith, Circuit Judge:

My views of the subject considered in the foregoing opinion are quite fully expressed in Chambliss v. United States, 218 Fed. 154, and I simply concur in the result of the foregoing opinion.

SOUTH DAKOTA SUPREME COURT.

JOSEPH HOUSKA, Appt.,

V.

JOHN HRABE, Respt.

(— S. D. 151 N. W. 1021.)

Animals

permitting horses to proach fence within which others pastured.

attempting to strike or kick through or over the fence at the visiting horses, becomes entangled in the wire.

(April 6, 1915.)

A the Circuit Court for Brule County granting a motion for a directed verdict, and from an order denying a new trial, in an action brought to recover damages for injuries to plaintiff's horse alleged to have been caused by defendant's negligent maintenance of a fence. Reversed.

PPEAL by plaintiff from a judgment of

The facts are stated in the opinion. Messrs. House & Dyer, for appellant: Defendant was liable for the injury to plaintiff's horse.

Bostwick v. Minneapolis & P. R. Co. 2 N. D. 440, 51 N. W. 781; Van Leuven v. Lyke, 1 N. Y. 515, 49 Am. Dec. 346, 1 Am. Neg. Cas. 428; Tonawanda R. Co. v. Munap-ger, 5 Denio, 255, 49 Am. Dec. 248; Delaney are v. Errickson, 11 Neb. 533, 10 N. W. 451; Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99, 1 Am. Neg. Cas. 300; Dolph v. Ferris, 7 Watts & S. 367, 42 Am. Dec. 246; Louisville & N. R. Co. v. Melton, 158 Ala. 509, 23 L.R.A. (N.S.) 183, 47 So. 1024; Ernster v. Christianson, 24 S. D. 103, 123 N. W. 711; Stockwell v. Sedina, 170 Mich. 476, 136 N. W. 476; McKeever v. Homestake Min. Co. 10 S. D. 599, 74 N. W. 1053. Messrs. Woerth & Carlson for respond❘ent.

The owner of a lot used to pasture horses, adjoining another lot used for the same purpose, between which the respective owners maintain wire fences on their own land several feet from the boundary line, for the purpose of preventing the horses in the respective pastures from quarreling, is liable for the resulting injury in case he permits his fence to get out of repair so that his horses enter the intervening line, reach the land of the adjoining owner, and attract to the fence one of his horses, which, in Note. - Liability for injury of live stocking, and the injury was not the result of any upon one side of fence by live stock on other.

Aside from HOUSKA V, HRABE and Ellis v. Loftus Iron Co. 44 L. J. C. P. N. S. 24, L. R. 10 C. P. 10, 31 L. T. N. S. 483, 23 Week. Rep. 246; Loiseau v. Arp, 21 S. D. 566, 14 L.R.A. (N.S.) 855, 130 Am. St. Rep. 741, 114 N. W. 701, and Johanson v. Howells, 55 Minn. 61, 56 N. W. 460, cited in HOUSKA V. HRABE, no reported cases have been found which have considered the question under annotation, and all these cases are cases where both the animal injured and the animal inflicting the injury were horses.

In the Ellis Case, supra, where a stallion kicked and bit a mare through a wire fence, it was held that trespass was the proximate cause of the injury, as there could have been no kicking and biting unless the stallion protruded some portion of his body over the land of the owner of the mare, and so the owner of the stallion was liable for the injuries inflicted.

In Johanson Case, supra, two horses, one on each side of a boundary fence, were run ning and playing, and one of them, while rearing, came in contact with a sharp post and was injured. As the other horse was on land not owned by the owner of the injured horse, and the horses were not fight

fighting, kicking, or pushing, or other vicious act on the part of the other horse, it was held that there was no trespass, and so, as there was no evidence that the other horse was of a vicious or mischievous disposition, there was no liability on the part of its owner for the injury inflicted.

It will be noted that the disapproval in HOUSKA V. HRABE of the conclusion in Loiseau v. Arp is only upon the point as to proximate cause, and upon the assumption indulged in that case for the purposes of the point, that the colts, running at large on the highway, were trespassers. Non constat that it would have been so held if a decision on the point had been deemed necessary.

Generally, as to the question touched upon in HOUSKA V. HRABE, as to whether anticipation of the particular accident is an element of proximate cause, see note to Kreigh v. Westinghouse, 11 L.R.A. (N.S.) 684, and later cases that may be found by consulting L.R.A. Digests, under the title "Proximate Cause." Many different phases of the subject of proximate cause are treated in notes cited in the Index to L.R.A. Notes, under the title "Proximate Cause."

Generally, as to liability for damage by animals, see Index to L.R.A. Notes, under the title "Animals.” J. H. B.

"6. That thereafter, and during the winter of 1911 and 1912 and the spring of 1912, the defendant took down and permitted his portion of the said fence to remain down Upon cross-examination he testified: and out of repair, so that horses kept by "When I observed the horse playing and him, the said defendant, and on his prem- fighting over the fence, I was working in ises, could and did enter the lane between the field about 60 rods away. My horses the two fences, and wrongfully and care- were fighting with Mr. Hrabe's horses, playlessly permitted such horses to enter upon ing together or fighting. Mr. Hrabe's horses said land and upon land of the plaintiff, and were fighting with my horses. I didn't see to come to and along the fence of this plain- anybody else. All at once I saw one of my tiff on the west side of said lane, while the mare colts jerk and try to get loose; she horses of the plaintiff were being kept in was jerking with her body and she was in his, the said plaintiff's, pasture aforesaid. ' with her left foot; she had her left foot in