not talk with any person about any case that is to be tried, nor listen to any conversation between others in regard thereto. The instruction in this case contained this caution, and others of like import.

2. It is next insisted that the proofs do not show that the crime was committed in the day-time. Mr. Frazier was in his barn at 9 o'clock on the night previous, and shut and fastened the doors. The wool was then in the barn. He testified that he went to the barn about sunrise, and found that 12 of his best fleeces had been stolen. The others were scattered over the floor. An investigation showed that a short distance from the barn a horse' and buggy had been driven into the bush, the horse hitched, and fed with hay. It was a fair inference that the horse had stood there for some time. It was argued by the prosecuting attorney that the horse was driven to this secluded place in the night, and left there to await daylight, in order that the thief might see to select the best fleeces. There was also evidence that the respondent drove to the house of one of the witnesses after daylight of that morning, and asked to put some bags in a room in his house. We cannot say that this evidence did not fairly tend to show that the entry into the barn was made after daylight. The question was one for the jury, and their verdict is conclusive. People v. Howard, 50 Mich. 240.

3. Defendant's counsel contends that there was no sufficient identification of the property stolen. Twelve fleeces were taken. Twelve fleeces were found in the possession of the respondent on the next day. He took them to a wool dealer to sell. When asked his name, he gave it as Young. Meanwhile. notice had been given to the wool dealers in the vicinity of the larceny of these fleeces. The wool was left with the dealer to whom respondent had sold it. He was then and there informed that 12 of Mr. Frazier's fleeces had been taken. He immediately acknowledged that he had

taken them, and desired to settle the matter up without further trouble. After his arrest, he made no effort to recover the wool or its value, and Mr. Frazier, upon an order of the sheriff to the wool dealer, received payment for it. The identification was complete.

4. Several witnesses testified to confessions made by the respondent. The evidence on the part of the people tended to show that these confessions were made voluntarily, and not under any threats, duress, or promises. Their testimony was competent. Its weight was for the jury.

The charge of the court was unusually full and fair, and included all the instructions necessary to secure a careful consideration of the facts by the jury.

Conviction affirmed.

The other Justices concurred.

THE PEOPLE V. DAVID J. McWHORter.

Criminal law-Burden of proof-Instructions to jury.

It is error to instruct the jury in a criminal case that, if they find that the people have made a case which convinces them beyond a reasonable doubt of the respondent's guilt, the burden of proof shifts, and it is incumbent upon him to introduce evidence to restore the original presumption of innocence which the law raised in his favor.

Error to Kent. (Adsit, J.) Argued November 17, 1892. Decided December 2, 1892.

Respondent was convicted of rape, and sentenced to the State prison for 8 years. Judgment reversed. The facts are stated in the opinion.

93 MICH.-41.

Nathan P. Allen, for respondent.

A. A. Ellis, Attorney General, and William F. McKnight, Prosecuting Attorney, for the people.

LONG, J. The respondent was convicted in the circuit court for Kent county of the crime of rape.

In his general charge the court instructed the jury as follows:

"At the outset of this trial the respondent stands before you surrounded with the presumption of innocence. The burden is upon the prosecution to remove this presumption of innocence which surrounds him by evidence of guilt sufficient to satisfy you beyond a reasonable doubt of its truth. The respondent can rest secure until the prosecution have satisfied you by good and sufficient evidence, beyond a reasonable doubt, that he is guilty as charged. You will, therefore, first consider the evidence introduced and received on the part of the prosecution, and, unless it satisfies you beyond a reasonable doubt of the guilt of the respondent, you need examine the case no further, and return a verdict of Not guilty.' On the other hand, if such evidence satisfies you beyond a reasonable doubt that the respondent is guilty of the charge set forth in the information, then it becomes your duty to examine the evidence offered and received on the part of the respondent, for the presumption of innocence has been then removed, and the burden is then on him to satisfy you by evidence received in the case sufficient to contradict the evidence offered by the prosecution, and restore the original presumption of innocence on the part of the respondent; and in that case, unless the presumption by evidence offered and received on rebuttal should have contradicted, or satisfied you that the evidence so offered by the respondent was untrue, or on the whole was insufficient to remove from your minds the conclusion that the respondent is guilty beyond a reasonable doubt, you will acquit him.'

This was error. The people must make their case by evidence which convinces the jury, beyond a reasonable doubt, that the respondent is guilty of the crime charged against him. The presumption of innocence is only removed when the people have made such a case. The

charge of the court was based upon the theory that if the jury found that the people had made a case which convinced them beyond a reasonable doubt that the respondent was guilty as charged, then the burden of proof shifted, and it was incumbent upon the respondent to introduce evidence to restore the presumption of innocence. This is not so in criminal trials. The burden is always upon the people during the whole trial to prove the respondent guilty as charged. In the present case the respondent introduced proof of his good character only, and offered no other testimony. The jury may well have understood from the charge that, if the people had made their case, the jury might then consider the proof of good character, and, if from that they were satisfied the respondent was innocent, they could acquit, but that the burden was upon the respondent to overcome the case the people had made. In Baker v. State, 80 Wis. 421, the court below charged the jury as follows:

"After the state had introduced its evidence, it became necessary for the defendant to overthrow the presumption which such evidence has created, and the burden of proof rested upon the defendants to account for the money which was proven to have been in their possession."

The supreme court said of this charge:

"This certainly comes perilously near being an instruction that the burden of proof shifted during the trial to the defendant, and we think a jury would so understand it. Within the rule laid down in Crilley v. State, 20 Wis. 231, we hold this to be error."

See, also, the following cases: Sullivan v. People, 31 Mich. 1; People v. Pearsall, 50 Id. 233; People v. Howard, Id. 240; People v. Millard, 53 Id. 63; People v. Coughlin, 65 Id. 705; People v. Aikin, 66 Id. 460; People v. Murray, 72 Id. 10; People v. Macard, 73 Id. 25; People v. Potter, 89 Id. 353.

We need not discuss the other questions raised.

The verdict and judgment must be set aside, and the cause remanded for a new trial.

The other Justices concurred.

IN THE MATTER OF BERTHA GATES ON HABEAS CORPUS.

· Industrial home for girls-Commitment.

A commitment, issued by a justice of the peace, for the imprisonment of a girl at the State Industrial Home for Girls at Adrian, should be accompanied by his certificate as to the age of the girl committed, as ascertained by him from testimony taken under oath before him, or in such manner as he shall direct; and a recitation in the commitment that the jury found the girl to be of a given age does not answer the requirement of the statute (3 How. Stat. § 9836).

Certiorari to Lenawee. (Lane, J.) Argued November 17, 1892. Decided December 2, 1892.

Certiorari to review proceedings on habeas corpus instituted by Henry H. Gates to inquire into the cause of the detention of his daughter, Bertha Gates, at the State Industrial Home for Girls. Prisoner discharged. The facts are stated in the opinion.

P. J. Ashdown, for petitioner.

A. A. Ellis, Attorney General, for the people.

MCGRATH, C. J. This is habeas corpus to inquire into the cause of the detention of Bertha Gates at the State Industrial Home for Girls at Adrian.

The mittimus, issued by a justice of the peace, recites