
    Oliver Fuller v. The State of Ohio.
    1. Upon the trial of all criminal causes, the law presumes the party charged with crime to be innocent, and the burden of proof is upon the proseoutor, unless a different rule has been provided by statute.
    2. This legal presumption of innocence, can be overcome only by full proof, such as will exclude all reasonable doubt of the guilt of the accused. And the reason of this rule, resting upon the presumption of innocence, makes it applicable in all criminal trials.
    Error to the court of common pleas of Yinton county.
    The plaintiff in error was indicted, in the court below, under the first section of the “ act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio,” for selling intoxicating liquors, to be drank at the place where sold.
    To this indictment he pleaded not guilty; and it is shown by the record, that upon the trial of this issue, the state having offered evidence, by a single witness, and to some extent merely circumstantial, tending to prove the defendant guilty of the fact charged, the defendant asked the court to charge the jury, “that they should be satisfied, beyond a reasonable doubt, of the' truth of each and every material allegation of the indictment, before finding a verdict of guilty against the defendant; and that if they entertained a reasonable doubt, as to the truth of any material allegation of the indictment, they should return a verdict of hot guilty.” Which instruction the court refused to give, but on the contrary charged the jury, “that if they found only a fair preponderance of. evidence in favor of all the material allegations of the indictment, they should find the defendant guilty.”
    The defendant having been found guilty, by the verdict of the jury, moved for a new trial, for the reason, among others, that the court erred in the instructions given to the jury, and in refusing to charge as requested. This motion was overruled, and the defendant sentenced to pay a fine of twenty-five dollars, and the costs of prosecution, and to be imprisoned for fifteen days, in the county jail.
    The refusal of the court to give the instructions asked, and the instructions given to the jury by the court, are now, among other things, assigned for error.
    
      F. F. Bingham and Milton L. Clark, for plaintiff in error.'
    
      James Murray, attorney general, for the state.
   Scott, J.

In all civil cases, where no presumption of law, or prima facie right, operates in favor of either party, a mere preponderance of evidence, on either side, is sufficient to determine the verdict of the jury. 1 Starkie Ev. 451.

But in all cases where a party stands charged with a crime or offense, his innocence is presumed, and the burden of proof is upon the prosecutor, unless a different rule has been expressly provided by statute. United States v. Gooding, 12 Wheat. 460; 1 Greenl. Ev., secs. 34,35; Cowen & Hills’ Notes to Ph. Ev. 483. And the elementary writers on the subject of evidence, seem all to agree in saying, that this presumption of innocence can only be'overcome by full proof of guilt, such as excludes all reasonable doubt.

The law upon this subject, is thus stated by Mr. Starkie: “ Evidence which satisfies the minds of the jury of the truth of the fact in dispute, to the entire exclusion of every reasonable doubt, constitutes full proof of the fact; absolute mathematical or metaphysical certainty is not essential, and in the course of judicial investigations would be unattainable. Even the most direct evidence can produce nothing more than such a high degree of probability, as amounts to moral certainty. From the highest degree, it may decline, by an infinite number off gradations, until it produces in the mind nothing more than a mere preponderance of assent, in favor of the particular fact. The distinction between full proof and mere pre ■ ponderance of evidence is, in its application, very important. In all criminal eases whatsoever, it is essential to a verdict of condemnation, that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt.” 1 Starkie Ev. 451.

In Phillips’ Law of Evidence, it is said: “ The principal difference to be remarked between civil and criminal cases, with reference to the modes of proof by direct or circumstantial evidence, is, that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment than in the latter case, which affects life and liberty. In criminal prosecutions, it has been observed, the circumstantial evidence should be such as to produce nearly the same degree of certainty, as that which arises from direct testimony, and to exclude a rational probability of innocence. Doubtless, the circumstances ought to be of such a nature as not to be reasonably accounted for, on the supposition of the prisoner’s innocence, but perfectly reconcilable with the supposition of his guilt.” 1 Phil. Ev. 166, 167.

The subject is also discussed, and the same rule laid down by Mr. Greenleaf. He says: “ In civil cases, it is the duty of the jury to weigh the evidence carefully, and to find for the party in whose favor the evidence preponderates, although it be not free from reasonable doubt., But in criminal trials, the party accused is entitled to the benefit of the legal presumption in favor of innocence, which, in doubtful cases, is always sufficient to turn the scale in his favor. It is, therefore, a rule of criminal law, that the guilt of the accused must be fully proved,” etc. 3 Grreenl. Ev., sec. 29. He cites also, with approbation, the humane rule given by Sir Matthew Hale, in 2 P. C. 290. “ Tutius semper est errare in acquietando, quam in puniendo, ex parte misericordice, quam ex pccrte justitice.”

This distinction between civil and criminal trials, in regard to the requisite measure or degree of proof, has, beyond question, always been maintained in this state, in capital cases.

In the case of The State v. Turner (Wright’s Rep. 21), this rule of law was said to be adopted in favor of life, and that it is applicable only in capital cases. But in thus limiting the rule, the court was clearly not sustained by the authorities, and that decision has not been followed in this state.

In commenting upon the ruling in this case, it is said by Mr. Wharton in his American Criminal Law, p. 330: “ It can not be doubted, however, that, in making such a distinction, the learned judge was in error. Doubts as to a defendant’s guilt, are to weigh in his favor, because the law presumes him innocent, until he is shown to be guilty; and if such a presumption exists at all, it exists in every case alike.”

However important it may be to secure the conviction of the guilty, yet a humane and just policy regards the acquittal of the innocent as still more desirable. If the rule is to be applied in cases only involving a certain grade of crime, where shall the line be drawn ? And upon what principle shall the distinction be justified? If convictions be permitted upon a bare preponderance of proof, then, according to the doctrine of probabilities, we might expect to find a bare majority of such convictions, to be cases of actual guilt. The protection of the innocent demands more than this.

We think the instructions asked for, upon this subject, by the plaintiff in error, should have been given to the jury, and that the court erred in charging otherwise.

Judgment reserved, and case remanded.

Sutliej?, C.J., and Peck, Gholson and Brinicerhoee, J J., concurred.  