(b) The various acts constituting the outward part of a crime are sometimes said to constitute a presumption of malice or criminal intent. But most of these instances are to-day understood to be either "conclusive presumptions," i. e. rules of substantive law defining the criminal act (ante, § 2492), or else mere inferences of fact (ante, § 2491) not affecting the accused with a duty to produce evidence.1

§ 2512. Same: (2) Self-defence, Alibi, etc. It is generally said that in criminal prosecutions the burden of proof is on the prosecution for all the facts that are material to the crime; so that, whether or not a particular fact is one which would in a civil action be of the nature of an affirmative excuse, it is nevertheless in a criminal prosecution a part of the burden (in both senses) for the prosecution. The absence of any affirmative pleadings by the accused, and the general policy of caution in favor of accused persons, seem to have been the theoretical and practical reasons for this result. Nevertheless, some inroads have of recent times been made upon this ortho

case. It is to be observed that the opinion in the Agnew case (in 1897) was published subsequently to a notable lecture on the Presumption of Innocence, apropos of the Coffin case, delivered by Professor Thayer, at Yale University (in 1896), in which the history of the presumption was carefully examined, its meaning acutely expounded, and the fallacies of the opinion in the Coffin case exposed in detail; this lecture was reprinted in the learned lecturer's Preliminary Treatise on Evidence (1898), Appendix B, p. 551.

The fallacy of Coffin v. U. S. is substantially repudiated in the following cases: 1899, State v. Soper, 148 Mo. 217, 49 S. W. 1007 (there is not a "two-ply presumption " in favor of one who is charged with wife-murder; repudiating State v. Leabo, 84 id. 168); 1900, State v. Kennedy, 154 id. 268, 55 S. W. 293 (refusal to instruct on the presumption of innocence is not error where an instruction on reasonable doubt has been adequately given); 1896, People v. Ostrander, 110 Mich. 60, 67 N. W. 1079 (similar). The common phrase about the presumption of innocence is illustrated in the following cases: 1898, Bryant v. State, 116 Ala. 445, 23 So. 40; 1897, People v. Winthrop, 118 Cal. 85, 50 Pac. 390; 1899, Emery v. State, 101 Wis. 627, 78 N. W. 145. The following series of rulings shows the influence of the Coffin case: 1898, Bartley v. State, 53 Nebr. 310, 73 N. W. 744 (the phrase sanctioned; but an instruction omitting it is not held erroneous); 1898, Bartley v. State, 55 id. 294, 75 N. W. 832 (the Coffin case noted; question left undecided); 1899, McVey v. State, 57 id. 471, 77 N. W. 1111 (following Bartley v. State).

If a legitimate presumption is raised, so as to create a duty for the accused to produce some evidence to the contrary, and he does not do so, there is no reason why the jury may not be required to find according to the presumption (ante, § 2495); e. g., 1897, Agnew v. U. S., 165 U. S. 36, 17 Sup. 235 (fraudulent intent presumed from false accounts, in the absence of evidence to the contrary sufficient to raise a reasonable doubt). But if the

accused does adduce some evidence, and thus the case comes into the hands of the jury free from the presumption, the rule about persuasion beyond a reasonable doubt (ante, § 2497) is in force throughout for measuring their belief, and they must be so persuaded, in spite of the rule of presumption; this is sometimes incorrectly expressed by saying that the presumption of innocence overcomes presumptions against the accused: 1903, Walton v. State, Ark. 75 S. W. 1 (seduction; chastity being presumed, "the presumption of innocence of the defendant overcomes the presumption of chastity"); 1896, People v. Sanders, 114 Cal. 216, 46 Pac. 153 (overcoming the presumption of regularity of official acts); 1897, Dunlop, v. U. S., 165 U. S. 486, 17 Sup. 375 (the rule does not apply where the other presumption "constitutes a link in the chain of evidence against the defendant "). Other examples are found under the presumption about marriage (ante, § 2506).

4 Cases illustrating a presumption of malice from the use of a deadly weapon: 1892, Gilbert v. State, 90 Ga. 691, 16 S. E. 652; 1878, Farris v. Com., 14 Bush 362, 368; 1845, Com. v. York, 9 Metc. 93, 103; 1855, Com. v. Hawkins, 3 Gray 463 (leading opinion, by Shaw, C. J.); 1893, People v. Wolf, 95 Mich. 625, 630, 55 N. W. 357; 1898, Herman v. State, 75 Miss. 340, 22 So. 872; 1896, Territory v. Lucero, N. M. 46 Pac. 18; 1676, Thomas v. People, 67 N. Y. 218, 224; 1892, State v. Whitson, 111 N. C. 695, 699, 16 S. E. 332; 1873, State v. Patterson, 45 Vt. 308. Cases illustrating a presumption of felonious intent from the taking of goods: 1902, Long v. State, Fla. 32 So. 870; 1898, State v. Judd, 20 Mont. 420, 51 Pac. 1033. These and analogous rules can only be disentangled by a detailed consideration of the substantive law of the crime in question.

There is no real presumption of guilt from flight; compare the cases cited ante, § 276, and the following: 1899, Smith v. State, 106 Ga. 673, 32 S. E. 851; 1898, State v. Adler, 146 Mo. 18, 47 S. W. 794.

dox principle, and in many jurisdictions it is accepted that the burden of proof may for certain sorts of facts be upon the accused. Certainly, the second burden, i. e. the duty of producing some evidence (ante, § 2487), ought in many instances to be upon the accused. The absence of affirmative pleadings in defence is no insuperable objection to such a result. The judicial experience with certain issues on criminal trials has seemed to justify such exceptions; and the fixing of a particular fact on this or that party as a part of his case is in general only a question of sound policy as based on experience (ante, § 2486).

(a) A few Courts seem in general to place on the accused some sort of burden of proof for any fact in the nature of excuse or mitigation.1 (b) A few Courts seem to place upon the accused the burden of showing that he acted in self-defence. (c) It is generally conceded that the accused does not have the burden of proving an alibi. (d) In sundry other instances, a naturally affirmative defence is sometimes apportioned to the accused's burden.4

1 For example: 1899, Brown v. State, 62 N. J. L. 666, 42 Atl. 811 (risk of non-persuasion of guilt is always on the prosecution, but the defendant has a duty to produce evidence of any justification; the opinion is not entirely clear); 1897, State v. Byrd, 121 N. C. 684, 28 S. E. 353 (burden is on the defendant to show excuse or mitigation). Contra, to some extent: 1898, Appleton v. People, 171 Ill. 473, 49 N. E. 708 (under Cr. Code § 155, it is not necessary for a defendant to "satisfactorily establish his defence"); 1898, Herman v. State, 75 Miss. 340, 22 So. 872 (the burden of proving an excuse is not on the defendant).

2 The judicial language is seldom entirely clear as to the nature of the burden. The following cases illustrate both views: 1892, Roden v. State, 97 Ala. 54, 57, 12 So. 419 (assault with intent; the burden is on the defendant); 1893, Boulden v. State, 102 id. 78, 83, 15 So. 341 (similar); 1895, Dent v. State, 105 id. 14, 17 So. 94 (the burden is on the prosecution); 1896, Scheerer v. Agee, 113 id. 383, 21 So. 79 (the risk of non-persuasion beyond reasonable doubt is on the prosecution); 1898, People v. Milner, 122 Cal. 171, 54 Pac. 833 (the burden is on the defendant); 1898, State v. Shea, 104 Ia. 724, 74 N. W. 687 (the burden is on the prosecution, nor has the defendant a duty of producing evidence); 1899, Tucker v. State, 89 Md. 471, 43 Atl. 778 (the burden is on the defendant to persuade by a preponderance); 1897, Strother v. State, 74 Miss. 447, 21 So. 147 (the burden is on the prosecution); 1897, King v. State, ib. 576, 21 So. 235 (same); 1894, Gravely v. State, 38 Nebr. 871, 57 N. W. 751 (the burden is on the prosecution, without shifting); 1894, State v. Barringer, 114 N. C. 840, 19 S. E. 275 (the defendant must prove it "to the satisfaction of the jury"); 1895, Com. v. Mika, 171 Pa. 273, 33 Atl. 65 (if a killing by the defendant is proved, the prosecution has the burden of raising it to the first degree, and the defence that of reducing it below the second degree); 1899,

State v. Yokum, 11 S. D. 544, 79 N. W. 835 (the burden is on the defendant); 1903, Rutherford v. Foster, 60 C. C. A. 129, 125 Fed. 187 (in a civil case, the burden is on the defendant); 1894, Vance v. Com., Va. 19 S. E. 785; 1894, Myers v. Com., 90 id. 705, 19 S. E. 881; 1895, State v. Zeigler, 40 W. Va. 593, 21 S. E. 763 (doubtful).

3 1896, Towns v. State, 111 Ala. 1, 20 So. 598 (the defendant must produce evidence, but the prosecution has the risk of non-persuasion beyond reasonable doubt); 1897, Pickens v. State, 115 id. 42, 22 So. 551; James v. State, ib. 83, 22 So. 565; 1898, Schultz v. Terr., Ariz. 52 Pac. 352 (the defendant has no burden); 1898, People v. Roberts, 122 Cal. 377, 55 Pac. 137 (the burden is on the prosecution); 1899, People v. Winters, 125 id. 325, 57 Pac. 1067 (the defendant must introduce evidence, but need not persuade by preponderance); 1897, McNamara v. People, 24 Colo. 61, 48 Pac. 541 (the burden is on the prosecution); 1897, State v. Ardoin, 49 La. An. 1145, 22 So. 620 (similar); 1895, State v. Harvey, 131 Mo. 339, 32 S. W. 1110 (similar); 1899, State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026 (the duty of production, but not the risk of non-persuasion, is on the defendant); 1897, Beck v. State, 51 Nebr. 106, 70 N. W. 498 (the defendant need not persuade by a preponderance); 1898, Peyton v. State, 54 id. 188, 74 N. W. 597 (burden of proof remains on prosecution throughout); 1896, Borrego v. Territory, 8 N. M. 446, 46 Pac. 349 (the defendant need not persuade by a preponderance); 1897, Wright v. Terr., 5 Okl. 78, 47 Pac. 1069 (the burden is on the prosecution); 1897, State v. Thornton, 10 S. D. 349, 73 N. W. 196 (the defendant has the duty of producing evidence; but the prosecution's case must still be made out to the jury beyond a reasonable doubt).

4 For example, in the illegal sale of liquor, the defendant must prove a license: 1896, Hornberger v. State, 47 Nebr. 40, 66 N. W. 23; 1897, Durfee v. State, 53 id. 214, 73 N. W. 676 (the

§ 2513. Same: (3) Possession of Stolen Goods. One of the most troublesome and fruitless controversies has been whether under certain circumstances the accused's possession of stolen goods raises a presumption that he was the thief. It had long been customary in England to use the language of presumptions for such a situation; but whether the language was intended merely to mean that the specific fact alone was sufficient evidence on which the jury might reach a conviction if they desired (ante, § 2494), or whether it meant that the specific fact alone created a presumption, i. e. placed on the accused a duty of producing evidence, so that if he failed to do so (that is, to offer any "explanation") the jury must convict (ante, § 2490), was seldom made clear. This obscurity has continued in the judicial rulings in the United States; 2 but among the numerous precedents most seem to repudiate any rule of presumption in the strict sense.3

mere possession, irrespective of explanation, raises a presumption of guilt, and shifts the "burden.. to establish" lawful possession); 1898, Parker v. State, 61 N. J. L. 308, 39 Atl. 651; 1897, State v. Shelton, 16 Wash. 590, 48 Pac. 258. In some cases, the burden is clearly stated to be merely the second kind, i. e. the duty of producing evidence: 1897, State v. Lee, 69 Conn. 186, 37 Atl. 75 (under a statute making an abortion criminal, unless necessary to save life, the necessity must be evidenced by the defendant).

1 1836, R. v. Cockin, 2 Lew. Cr. C. 235, and note by the Reporter; 1845, R. v. Dredge, 1 Cox Cr. 235; 1854, R. v. Burton, Dears. Cr. C. 282; 1860, R. v. Harris, 8 Cox Cr. 333; 1866, R. v. Exall, 4 F. & F. 925 (leading case); 1878, R. v. Hughes, 14 Cox Cr. 223.

v. State, 116 Ala. 445, 23 So. 40; 1899, Hale v. State, 122 id. 85, 26 So. 236; 1902, Smith v. State, 133 id. 145, 31 So. 806; Ariz.: 1901, Taylor ». Terr., Ariz. 64 Pac. 423; Cal.: 1898, People v. Luchetti, 119 Cal. 501, 51 Pac. 707 (an explanation entitles the matter to be left to the jury); 1901, People v. Jay, 135 id. xix, 66 Pac. 964; 1902, People v. Wilson, ib. 331, 67 Pac. 322; Colo. 1897, Brooke v. People, 23 Colo. 375, 48 Pac. 502 (the defendant must explain, but not as a rule of going forward; and the prosecution's general burden remains); 1899, Van Straaten v. People, 26 id. 184, 56 Pac. 905; Fla. 1895, Leslie v. State, 35 Fla. 171, 17 So. 555; 1899, Williams v. State, 40 id. 480, 25 So. 143; Ga. 1892, Cornwall v. State, 91 Ga. 277, 281, 18 S. E. 154; 1895, Brooks v. State, 96 id. 353, 23 S. E. 413; 1898, Davidson v. State, 104 id. 761, 30 S. E. 946; 1898, Jones v. State, 105 id. 649, 31 S. E. 574; 1898, Sharpe v. State, ib. 588, 31 S. E. 541; 1901, Turner v. State, 114 id. 45, 39 S. E. 863; Ida.: 1901, State v. Sanford, Ida., 67 Pac. 492; Ill.: 1896, Keating v. People, 160 Ill. 480, 43 N. E. 724; 1902, Williams v. People, 196 id. 173, 63 N. E. 681; 1903, Watts v. People, 204 id. 233, 68 N. E. 563; Ind. 1866, Doan v. State, 26 Ind. 495 (it is not his failure to explain "where it is in his power to do so," because if he was able to explain innocently, though he did not choose to, by hypothesis he is not guilty; but his ability to explain if he were innocent and his then failure); 1897, Pfau v. State, 148 id. 539, 47 N. E. 926; 1898, Campbell v. State, 150 id. 74, 49 N. E. 905 (it is a "strong presumption of fact," i. e. in the absence of satisfactory explanation, "the jury were legally bound to find him guilty"; but the Court erroneously declares that a strong presumption of fact" would have the same effect as a rebuttable presumption of law; the preceding authorities reviewed); Ind. T. 1896, Oxier v. U. S., 1 Ind. T. 85, 38 S. W. 331; Ia.: 1895, State v. LaGrange, 94 la. 60, 62 N. W. 664; 1899, State v. Miner, 107 id. 656, 78 N. W. 679; 1903, State v. Williams, 3 The following cases illustrate the bearings 120 id. 36, 94 N. W. 255; 1903, State v. King, of the question in most jurisdictions; compare id. 96 N. W. 712; Kan.: 1894, State the cases cited ante, § 152; Ala.: 1898, Bryant v. Hoffman, 53 Kan. 700, 708, 37 Pac. 138 (" if

2 1902, Weaver, J., in State v. Brady, Ia., 91 N. W. 801: "The use of the terms presumption of guilt' and 'prima facie evidence of guilt' with reference to the possession of stolen goods has perhaps been too long indulged in by Courts and text-writers to be condemned; but we cannot resist the conclusion that, when so employed, these expressions are unfortunate, and often misleading. In a civil proceeding, when a plaintiff makes a prima facie case, the burden is shifted, and, in the absence of any countershowing, he is entitled to recover as a matter of law. This rule is understood by the average intelligent layman as well as by those learned in the law; and when, in a criminal case, an instruction is given that the showing of a specific fact is prima facie evidence of guilt, jurors may very naturally conclude that the establishment of such fact has the effect to cast upon defendant the burden of proving his innocence of the charge against him. 'Presumptions' of guilt and prima facie' cases of guilt in the trial of a party charged with crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offense with which he is charged."

If no rule of presumption is to be accepted, specific limitations are hardly of any consequence, for the sufficiency of the evidence to go to the jury will usually depend on the variant circumstances of each case. But the following considerations have been emphasized, from the point of view of a definite rule: (a) The possession must be unexplained by any innocent origin; (b) the possession must be fairly recent;5 (c) and the possession must be exclusive. Furthermore, if there is any rule at all, it is generally conceded to apply also on a charge of knowing receipt of stolen goods, and of burglary or the like.8 In many additional instances, by statute, a rule of presumption or of "prima facie evidence" has been declared against persons found in possession of forbidden articles, such as game or liquor; 9 but these rules involve closely the substantive law of the respective crimes.

unexplained, may be sufficient"); 1899, State v. Powell, 61 id. 81, 58 Pac. 968; 1902, State v. Herron, 64 id. 363, 67 Pac. 861; La.: 1898, State v. Kelley, 50 La. An. 597, 23 So. 543 (possession of recently stolen property, not accounted for, raises the presumption); Mass.: 1869, Com. v. Bell, 102 Mass. 165; 1875, Com. v. Randall, 119 id. 107: Mo.: 1897, State v. Wilson, 137 Mʊ. 592, 39 S. W. 80; Nev.: 1898, State v. Mandich, 24 Nev. 336, 54 Pac. 516; N. D.: 1900, State v. Rosencrans, 9 N. D. 163, 82 N. W. 422; Okl.: 1897, Johnson v. Terr., 5 Okl. 695, 50 Pac. 90; 1898, Douthitt v. Terr., 7 id. 55, 54 Pac. 312 (it is "a circumstance only); Or.: 1896, State v. Pomeroy, 30 Or. 16, 46 Pac. 797 (it depends on "the character of the property, the nature of the possession, and its proximity in time with the theft"); U. S.: 1901, Considine v. U. S., 50 C. C. A. 272, 112 Fed. 342; Vt.: 1898, State v. Peach, 70 Vt. 283, 40 Atl. 732 (unexplained possession may be considered); Wash.: 1893, State v. Walters, 7 Wash. 246, 257, 34 Pac. 938, 1098 (no presumption; but the Court whimsically treat a charge calling such possession "a criminating circumstance tending to show" guilt as if it laid down a rule of law; this is strange distortion of words); 1902, State v. Bliss, 27 id. 463, 68 Pac. 87; Wyo.: 1903, Younger v. State,

73 Pac. 551.

Wyo.

4 This is noted in many of the cases supra. 5 1836, R. v. Cockin, 2 Lew. Cr. C. 235 (sacks stolen in February were found in the defendant's possession some twenty days after; Coleridge, J. "If I was now to lose my watch, and in a few minutes it was to be found on the person of one of you, it would afford the strongest ground for presuming that you had stolen it. But if a month hence it were to be found in your possession, the presumption of your having stolen it would be greatly weakened; because stolen property usually passes through many hands"); 1845, R. v. Hall, 1 Cox Cr. 231 (possession of a shirt, six months after it was missed; Pollock, C. B., and Coleridge, J.: "There is a certain period after which I should think it very unfair to assume theft from mere possession, even where the property is proved aliunde to have been stolen"); 1898, State v. Foulk, 59 Kan. 775, 52 Pac. 864.

6 1896, Moncrief v. State, 99 Ga. 295, 25 S. E. 735 (the possession of the house must be exclusive); 1892, State v. Owsley, 111 Mo. 450, 455, 20 S. W. 194 (goods found in a house of the defendant's wife where he did not live; not sufficient). Compare the following: 1900, Sparks v. State, 111 Ga. 830, 35 S. E. 654 (what constitutes possession, examined).

71864, R. v. Langmead, Leigh & C. 427 (Blackburn, J.: "I should have said that recent possession was evidence either of stealing or receiving according to circumstances. . . . When it has been shown that property has been stolen and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver, according to the circumstances"); 1899, State v. Guild, 149 Mo. 370, 50 S. W. 909 (overruling State v. Bulla, 89 id. 595, 1 S. W. 764).

8 1898, Roberson v. State, 40 Fla. 509, 24 So. 474 (if a breaking and entering at the time of taking is shown); 1899, Lester v. State, 106 Ga. 371, 32 S. E. 335 (admissible, if the fact of breaking and entering is first shown); 1902, State v. Brady Ia. 91 N. W. 801 (burglary; local rulings reviewed); 1902, State v. Brundige, 118 id. 92, 91 N. W. 920 (breaking and entering with intent to steal); 1903, State v. Swift, 120 id. 8, 94 N. W. 269; 1893, State v. Moore, 117 Mo. 395, 404, 22 S. W. 1086; 1898, State v. Hodges, 144 id. 50, 45 S. W. 1093 (forged articles); 1902, State v. Yandle, 166 id. 589, 66 S. W. 532; 1897, Johnson v. Terr., 5 Okl. 695, 50 Pac. 90; 1896, Wilson v. U. S., 162 U. S. 613, 16 Sup. 895 (fruits of any crime here money and clothes of the deceased); 1900, Henderson v. Com., 98 Va. 794, 34 S. E. 881. Compare the following: 1894, People v. Hart, 10 Utah 204, 207, 37 Pac. 330 (mere recent possession with no other circumstance, insufficient, on a charge of burglary; misapplying the rule of 2273, ante, that failure to testify creates no inference); 1897, Kibler v. Com., 94 Va. 804, 26 S. E. 858 (no presumption from possession of the fruits of a crime).

9 E. g. Mass. Pub. St. 1882, c. 94, § 4 (pos. session of timber with the marks cut out, etc.,

§ 2514. Same: (4) Capacity (Infancy, Intoxication, Coverture). Capacity is naturally a part of the first burden of proof for the prosecution, although the second burden might well be aided, in the appropriate classes of cases, by a presumption of capacity (ante, § 2487). For infancy, the so-called conclusive presumption of incapacity of criminal intent under the age of seven is of course genuinely a rule of substantive law that the infant "cannot be guilty of felony," as Blackstone correctly puts it. The rule that incapacity is presumed between the ages of seven and fourteen, for sundry crimes, and for rape in particular, is more correctly stated as a presumption of capacity above the age of fourteen. For insanity, the incidence of the burdens has already been considered (ante, § 2501). For intoxication, no doubt the second burden (of producing some evidence) is on the accused; though the first burden (or risk of non-persuasion) remains on the prosecution. For coverture, the coercion of the husband, which in Blackstone's correct phrase may be "an excuse for criminal misconduct" of the wife, may be presumed from the husband's presence; this then creates for the prosecution a duty of adducing evidence of the wife's willing participation; the risk of non-persuasion remaining throughout upon the prosecution.

§ 2515. Ownership; (1) Possession of Land and Personalty.

Where title

to land becomes material, the fact of present possession alone may serve to create a presumption of ownership; the emphasis being on the occupation, or appearance of ownership, and not on the documentary sources of claim; 2 and the rule serving merely to shift to the opponent the second burden, or duty of producing some evidence to the contrary.

raises a presumption of the possessor's unlawful cutting). For instances of the admissibility of this class of evidence, see ante, §§ 149, 153, 154.

1 Commentaries, III, 23. For rape and kindred crimes, the age of fourteen was taken : 1839, R. v. Philips, 8 C. & P. 736; 1839, R. v. Jordan, 9 id. 118; but a distinction may be made as to assault with intent: 1824, Com. v. Green, 2 Pick. 380.

2 1848, State v. Goin, 9 Humph. 174.

3 1893, Sutton v. People, 145 Ill. 279, 286, 34 N. E. 420 (rape; defendant must offer evidence that he is under 14 years of age).

4 1894, State v. Hill, 46 La. An. 27, 14 So. 294.

51898, Davis v. State, 54 Nebr. 177, 74 N. W. 599 (burden of proof remains on prosecution throughout).

61886, Com. v. Flaherty, 140 Mass. 454, 5 N. E. 258; 1887, Com. v. Hill, 145 id. 305, 307, 14 N. E. 124; 1891, State v. MaFoo, 110 Mo. 7, 19 S. W. 222; 1880, Goldstein v. People, 82 N. Y. 231; 1886, Franklin's Adm'r's Appeal, 115 Pa. 534, 538, 6 Atl. 70.

1 The inference rests on the general principle of Relevancy examined ante, § 148. To the following cases, add those cited ante, § 1789, where this presumption comes into play: Cal. C. C. P. 1872, § 1963, par. 11, 12 (it is presumed "that things which a person possesses are owned by him," and "that a person is the owner of prop

The same rule serves in

erty, from exercising acts of ownership over it, or from common reputation of his ownership"); 1903, Cahill v. Cahill, 75 Conn. 522, 54 Atl. 201 (land); 1893, Teass v. St. Albans, 38 W. Va. 1, 22, 17 S. E. 400 (land); Sedgwick & Wait, Trial of Title to Land, § 717.

Distinguish the presumption of a lost grant from long-continued possession (post, § 2522).

2 1897, Hewes v. Glos, 170 Ill. 436, 48 N. E. 922 (deed from grantor, without possession by grantor or grantee, raises no presumption of ownership); 1899, Glos v. Huey, 181 id. 149, 54 N. E. 905 (similar); 1895, Newcastle v. Hay. wood, 68 N. H. 179, 44 Atl. 132 (similar).

3 This is connected with other rules of substantive law, such as the rule that in ejectment the claimant must recover on the strength of his own title and not the weakness of his opponent's.

There are also occasional rules as to the shifting of the second burden in evidencing the various elements under an adverse possession: 1842, Brown v. King, 5 Metc. 173 (writ of entry; a title by disseisin being set up, held, that mere possession by the claimant did not suffice to put the burden of proof on the titular owner to show that possession to be permissive; the burden of showing adverseness was on the claimant throughout): 1894, Skinner v. Skinner, 38 Nebr. 756, 766, 57 N. W. 534 (the exclusive possession of land with the titular owner's knowledge may create a presumption of his permission); 1866,