The lack of precision which attaches to the use of the word presumption springs naturally from the variety of the uses to which the word is applied. Of these Prof. J. B. Thayer in his pamphlet on the Pre sumption of Innocence (much of which is reprinted as Appendix B, in his Preliminary Treatise on Evidence) enumerates seven : (1) The presumption of facts properly de fined, where a fact or set of facts furnishes I I evidence or inference of another. (2) The presumption of law properly defined, as, where a fact or set of facts is considered sufficient evidence of another in the ab sence to the contrary. (3) Where a fact or set of facts makes out a case which shall stand until overthrown by a specific quan tity of evidence ; (a) sufficient to satisfy a jury ; (b) a preponderance ; (c) evidence beyond a reasonable doubt. (4) Where the term is used to imply that a certain fact is the legal equivalent of another fact; e. g. the presumption of malice. (5) Where the contrary of the so-called presumption is not to be taken as true without evidence, the effect being to regulate the burden of proof.
(6) Where neither a fact nor the contrary of it is to be assumed as true without evi dence, the presumption being of the truth of what is termed a neutral fact, or in other words; that there is no presumption; as in case of shipwreck where there is no pre sumption of survivorship. 8 H. L. Cas. 183.
(7) Where the word is used as a rhetorical term to express a legal doctrine as the pre sumption of innocence. See, for a discussion of this classification and a collection of cases relating thereto, Chamb. Best, Ev. 306.
A legal presumption does not take the place of evidence, but only determines the burden of proof ; Graves v. Colwell, 90 Ill. 612, 616; Vincent v. Life Ass'n, 77 Conn. 281, 58 Atl. 963; 4 Wigm. Ev. § 2491; no pre sumption can be evidence; it is a rule about the duty of producing evidence; id. §§ 2490, 2511; State v. Linhoff, 121 Ia. 632, 97 N. W. 77.
The frequent statement that the presump tion of innocence does not cease on the sub mission of the case to the jury is "based on a misunderstanding of loosely used phrase that the presumption of innocence is to be regarded by the jury in every case as a matter of evidence" but which merely means that the burden of proof is on the other party; Gr. Ev. (16th ed.) § 34. It is not error to refuse to instruct the jury that they ought to regard a presumption of inno cence as evidence; Wooten v. State, 24 Fla. 335, 5 South. 39, 1 L. R. A. 819. In a much cited case, Coffin v. U. S., 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481, a conviction was reversed because a charge that in order to be convicted there must be proof of guilt be yond a reasonable doubt did not sufficiently embody the statement of the presumption of innocence. That case, which held that the
presumption of innocence is evidence, has been very much discussed, and has been said to have been possibly overruled in Agnew v. U. S., 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624, and it was rejected in State v. Soper, 148 Mo. 217, 49 S. W. 1007; State v. Kennedy, 154 Mo. 268, 55 S. W. 293; Peo ple v. Ostrander, 110 Mich. 60, 67 N. W. 1079. In those cases the court preferred to follow Morehead v. State, 34 Ohio St. 212, and Stevens v. Corn., 45,S. W. 76, 20 Ky. L. I Rep. 48. In Ogletree v. State, 28 Ala. 693, and People v. Lenon, 79 Cal. 625, 21 Pac. 967, it was held that the presumption of in nocence and the doctrine of reasonable doubt were practically synonymous. The Coffin case was followed in People v. O'Brien, 106 Cal. 104, 39 Pac. 325, and People v. Mc Namara, 94 Cal. 509, 29 Pac. 953. In the Iowa case cited, the refusal to charge in the language of the opinion in the Coffin case was assigned as error and the exception overruled upon the ground that that case had been repudiated ; Agnew v. U. S., 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624; but in Kirby v. U. S., 174 U. S. 47, 55, 19 Sup. Ct. 574, 43 L. Ed. 890, the declaration in the Coffin case that presumption is an in strument of proof was quoted with apparent approval. See Thayer, Evid.
There is no added presumption of inno cence in favor of a husband who had killed his wife; State v. Soper, 148 Mo. 217, 49 S. W. 1007.
In giving effect to presumptions of fact, it is said that the presumption stands until proof is given of the contrary ; 1 Cr. M. & R. 895; Miller v. The Resolution, 2 Dall. (Pa.) 22, 1 L. Ed. 271; Livingston v. Living ston, 4 Johns. Ch. (N. Y.) 287, 8 Am. Dec. 562. See BURDEN OF PROOF ; ONUS PRQ BAND" This contrary proof may be a con flicting presumption ; and Mr. Best lays down the following rules for application in such cases : first, special presumptions take the place of general ones ; see 8 B. & C. 737; 5 Taunt. 326; Hazzard v. Smith, 1 J. J. Marsh. (Ky.) 68; second, presumptions de rived from the ordinary course of nature are stronger than casual presumptions; 4 B. & C. 71; Co. Litt. 373 a; third, presumptions are favored which tend to give validity to acts; 1 Mann. & R. 668; 3 Camp. 432; 7 B. & C. 573 ; Tilson v. Thompson, 10 Pick. 359; Ripple v. Ripple, 1 Rawle (Pa.) 386; People v. McElroy, 72 Mich. 446, 40 N. W. 750, .2 L. R. A. 609; State v. Peterson, 38 Minn. 143, 36 N. W. 443; and see MAxims, amnia prw sumuntur, etc.; fourth, the presumption of innocence is favored in law; 4 0. & P. 116; Russ. & R. 61; 10 M. & W. 15.