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. Cunningham, 50 Iowa, 307. SECTION 55. CHAPTER IX. WITNESSES. 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; credibility of the witness, though it was not made by the prosecuting attorney, if it was made in his presence and the witness was a person of weak mind. But a conviction upon the uncorroborated evidence of a witness who admits that he has been promised immunity, insufficient to sustain a conviction.1 SECTION 57. HUSBAND AND WIFE. It was the general rule of the common law that neither husband nor wife was a competent witness for or against the other. This rule was based upon grave reasons of public policy, having reference to the preservation of that hallowed confidence and mutual happiness of parties joined together in the marital relation. This rule was subject to several exceptions to be hereafter noted. This is a matter now regulated by statute in the various jurisdictions, which declare that neither husband or wife shall be a competent witness for or against each other, except in certain cases therein enumerated. Most of these exceptions, being in express derogation of the common law, are strictly construed, and in order to make the witness competent, it must be shown that he or she is clearly within the exception.5 Among these exceptions are: (1) Where the action is between the husband and wife; (2) Where the husband or wife has acted as the agent of the other; (3) Where the husband or wife would, if unmarried, have been plaintiff or defendant; and (4) Where the litigation concerns the separate property of the wife. Conley vs. People, 170 Ill., 587. Cochran vs. People, 175 Ill., 28, citing Campbell vs. People, 159 Ill., 9, and Hoyt vs. People, 140 Ill., 588. Huot vs. Wise, 27 Minn., 68. SECTION 58. CHILDREN. The competency of children under fourteen years of age to testify rests in the discretion of the court, and depends mainly on the moral sense, intelligence and understanding of the individual. It is the intelligence and understanding, and not the age, of the person of tender years, which must govern in determining his competency as a witness. If it be manifestly shown that a child, even six or seven years old, knows the difference between right and wrong, and understands the nature and obligation of an oath, and that he must speak the truth, such child is a competent witness. What weight is to be given to the testimony of a boy of such tender years, is a matter for the jury to determine. The fact that a witness is not of sound mind does not in itself constitute ground for his exclusion. His testimony can properly be excluded only when his affliction is such that he is unable to retain in his mind a recollection of that which he has seen or heard, and about which he is called to testify, or that he is unable to distinguish between right and wrong. He must, of course, have sufficient mental capacity and understanding to comprehend and appreciate the obligation of an oath, and to give a reasonably accurate statement of what he has seen or heard, bearing on matters at issue in the proceeding on trial.' The weight to be accorded the testimony of such witness is a question exclusively for the jury. • Featherstone vs. People, 194 Ill., 325. ' Cannady vs. Lynch, 27 Minn., 435; Walker vs. State, 97 Ala., 85. SECTION 60. FELONS AND CONVICTS. At common law, persons convicted of infamous crimes were incompetent as witnesses. Infamous crimes are generally defined to be those punishable by death or imprisonment in the penitentiary. The reason was, that men who have been guilty of such heinous crimes had become so depraved as to be unworthy of belief; that the individual has sunken so low in the moral realm as to be insensible to the sanctity of an oath, and to be reckless in the handling of truth; that the credit of his oath is overcome by the stain of his iniquity. To disqualify him, even at common law, however, he must have been adjudged guilty of such crime. It is the record of the judgment of a court of competent jurisdiction, passing sentence upon him, that disqualifies him as a witness. Such witness could testify, however, in his own behalf. This disqualification has generally been removed by statute, but it may be shown as strongly affecting the credibility of the witness. 8 SECTION 61. INFIDELS AND ATHEISTS. At the common law, a person who had no religious belief, and who did not acknowledge, but openly and avowedly denied, the existence of a Supreme Being, and who did not feel himself accountable to any moral punishment here or hereafter, even though he acknowledged his amenability to the criminal law, could not become a witness. The unbelief of such person is best established by others. The proper question to be asked of a witness, is whether he believes in God, the People vs. McGloin, 91 N. Y., 241; Com. vs. Gorham, 99 Mass., 420. • Central Military Tract R. R. Co. vs. Rockafellow, 17 Ill., 541. |