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This decision of the Supreme Court of Alabama, in which all the authorities are collected and collated, and to which the court gave due and deliberate consideration, owing to the far-reaching importance of the subject to the medical profession and to the community at large, has been approved and followed in other cases.14

According to the weight of authority in the United States, it would seem that, in the absence of a statute granting to an expert witness special remuneration, his only prudent course is to testify, if ordered to do so by the court, and that he cannot legally insist upon extra compensation, and that he may be punished for contempt of court for refusing to answer even a question calling for a strictly professional opinion.

It would also seem that statutes granting witness fees, to be taxed as costs in the case, being in derogation of the common law, are to be strictly construed,15 and a witness, to be entitled thereto, must bring himself within its express provisions.

On the ground that an undertaking to do that which one is legally bound to do, is without consideration, and will not support a promise, it has been held that special compensation cannot be recovered in an action at law, where a physician was subpoenaed and paid ordinary witness fees, and promised an extra fee for testifying to matters pertaining to his particular branch of science.1

14 State vs. Teipner, 36 Minn., 535,

32 N. W., 678; Summers vs.
State, 5 Tex. Ct. App., 365, 32
Am. Rep., 573; County Com-
missioners vs. Lee, 3 Col. Ct.
App., 177; Flinn vs. Prairie
County, 60 Ark., 204; Clark
County vs. Kerstan, 60 Ark.,

308; North Chicago St. R. R. Co. vs. Zeiger, 182 Ill., 14. " 23 Am. & Eng. Ency. of Law, 2nd Ed., 387; Cadwallader Harris, 76 Ill., 370.

VS.

16 Walker vs. Cook, 33 Ill. App.,

561.

CHAPTER VIII.

BURDEN OF PROOF.

SECTION 53. DEFINITION AND NATURE.

The "burden of proof" is the legal duty resting upon a party litigant, at some stage in the trial of a civil case, to introduce evidence of preponderating weight on an issue which he asserts, to overcome the proof offered on that issue by his opponent.

In a criminal case, the presumption is that every man is innocent until his guilt is proved beyond a reasonable doubt, and the burden is on the State to prove every fact and circumstance essential to the guilt of the accused, and each and every element of the offense charged, beyond a reasonable doubt.!

By some authorities, it is claimed that the burden of proof never shifts; by others it is claimed that it continually shifts. The difficulty seems to lie in the fact that the term is used in two different senses; (1) The duty of introducing a preponderance of evidence; and (2) the duty of meeting and overcoming a prima facie case. According to the decided weight of current decisions, the former remains fixed and inflexible. The latter may shift back and forth with the ebb and flow of the testimony.

In a civil case, when it is necessary to prove the commission of a crime, in some jurisdictions it has been held that such crime must be proved beyond a

1 State vs. Hardelein, 169 Mo., 579;

70 S. W., 130; Huggins vs.
State, 42 Tex. Crim., 364, 60
S. W., 52; U. S. vs. Gooding,
12 Wheat., 460; People vs.
Downs, 123 N. Ý., 558, 25 N.

E., 988; State vs. Bartlett, 43
N. H., 224; Alexander vs.
People, 96 Ill., 96.

Scott vs. Wood, 81 Cal., 398, 32
Pac., 871.

reasonable doubt; and this is especially true where the crime is charged in the pleadings."

Where the evidence is largely circumstantial, some authorities have held that each link in the chain of circumstantial evidence must be proved beyond a reasonable doubt, and that if the jury entertain doubt as to any of the facts they may acquit.

SECTION 54. OVERCOMING PRIMA FACIE CASE.

Where the defendant pleads by way of confession and avoidance, after the plaintiff has introduced sufficient testimony to make out a prima facie case, the burden is then upon the defendant to establish his defense by a preponderance of the evidence, where such matter of defense is denied by the plaintiff. For instance, where the plaintiff sues upon a promissory note, and the defendant pleads payment, the burden of proving such payment is upon the defendant, and if his evidence on this issue is not sufficient to overcome the evidence thereon by the plaintiff, the plaintiff will prevail. The same rule is true where the defendant pleads failure or partial failure of consideration.

Where the plaintiff's replication does not traverse or deny the defense set up by the defendant in his plea, but confesses and avoids the material matters therein alleged, by setting up new facts, which are denied by the defendant, then the burden is on the plaintiff to establish by a preponderance of the evidence the new facts set up by him."

Bissell vs. Wert, 35 Ind., 54; Thayer vs. Boyle, 30 Me., 475; Clark vs. Dibble, 16 Wend., 601; Berckmans vs. Berckmans, 17 N. J. Eq., 453; Fountain vs. West, 23 Iowa, 9. Grimes vs. Hilliary, 150 Ill., 141; German Fire Ins. Co. VS.

Klewer, 129 Ill., 599.
Graves vs. People, 18 Col., 170;
People vs. Aiken, 121 Mich., 1;
Kollock vs. State, 88 Wis., 663.
Meeh vs. Missouri Pac. R. Co., 61
Kan., 630; Clapp vs. Cunning-
ham, 50 Iowa, 307.

CHAPTER IX.

WITNESSES.

SECTION 55. COMPETENCY OF WITNESSES.

A witness is a person who, having first been duly sworn or affirmed according to law, is orally examined before a court, judge, commissioner, or other officer, or an inquisitorial body, as to his knowledge of matters undergoing judicial investigation.

At common law, a party to a suit, who had any interest whatever, in the controversy, however slight, was disqualified on the ground of interest. This disqualification has been removed by statute in the various states, and any party litigant may testify, if there be no other legal ground of disqualification.

Also at common law, the defendant in a criminal case was incompetent to testify in his own behalf.1 Now, by statutes enacted in most of the states, the accused, if he choose, may take the witness stand and give evidence concerning the facts and circumstances of the case.

SECTION 56. ACCOMPLICES AND ACCESSORIES.

Accomplices and accessories are competent witnesses against the accused, and though a conviction may be had upon the uncorroborated testimony of such accessory or accomplice, the testimony should be received with great caution. A promise of immunity to an accomplice may be shown to impair the

1 Hoagland vs. State, 17 Ind., 488;

State vs. Laffer, 38 Iowa, 422; Harwell vs. State, 10 Lea (Tenn.), 544.

Vol. X1.-13.

193

Cohn vs. People, 197 Ill., 482;
Kelly vs. People, 192 Ill., 119.

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