The opinion of the Court, Shepley J. taking no part in the decision, having been employed in holding the Court at Machias at the time of the argument, was drawn up by
Tenney J.
— The Court declined to direct the prosecuting officer to elect upon which of the four counts in the indictment he would proceed. In point of law it is no objection that two or more offences of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts in the same indictment; the Court may, in the exercise of a discretion, compel the prosecutor to elect on which charge he will proceed. It is usual to charge a felony in different ways in several counts, with a view to meet the evidence, as it may turn out on the trial; and if the different counts are inserted in good faith, for the purpose of meeting a single charge, the Court will not ever compel the prosecutor to elect. 8 Wend. 211.
Another ground of exception is, that the indictment being for forgery of an order, and the proof being for an alteration merely, a conviction could not legally take place. The definition of forgery at common law is, “ the fraudulent making or alteration of a writing to the prejudice of another man’s rights.” [317]*3174 Bl. Com. 247. By Rev. Slat. chap. 157, entitle?! “of forgery and counterfeiting,” any person is to be punished in the mode provided, who with intent to defraud, shall falsely make, alter, forge or counterfeit any instrument in writing, being or purporting to be the act of another, by which any pecuniary demand or obligation, or any right or interest in ot-to any property whatever shall be, or purport to be created, increased, transferred, conveyed, discharged or diminished.
The counsel for the defendant, contended, that it was necessary for the government to prove that the persons whose names were signed to said order as selectmen, were in fact such officers; but the Court ruled otherwise. On an indictment for the forgery of an order, it is necessary that the order should import, that the persons in whose names it was made have a disposing power over the subject of the order, or that it should be proved, that the persons in whose name it was made had such power. Rex v. Baker, Ry. & Mood. C. C. 231. The order in question purports to be drawn by persons acting in the character of selectmen, and is for school books. Selectmen of towns in certain cases have the power to furnish such books at, the expense of the town. Rev. St. c. 17, § 11.
It is unnecessary that the characters and figures on the margin of the order should be set out in the indictment, as the defendant’s counsel contended. This is settled in Commonwealth v. Bailey, 1 Mass. R. 62, and in same v. Stevens, Ib. 203.
The exceptions taken to the rulings of the Judge, which have been examined, cannot be sustained. But the instruction to the jury, which the counsel for the defence contend with more confidence was erroneous, deserves further consideration. The jury were instructed, “ that if it was proved, that the order came into the hands of the defendant, unaltered, and came out of his hands altered, the burthen was on the defendant to prove that he did not alter it.” The prosecuting party is bound to make out his case; in civil proceedings to the satisfaction of the jury, and in criminal, beyond a reasonable doubt. The burthen of proof does not shift from the [318]*318party upon whom it was originally thrown upon the production of evidence by him, sufficient to make out a prima facie case. But when the other party relies upon facts to establish another and a distinct proposition, without attempting to impugn the truth of the evidence against him, it is otherwise. If the result of the case depends upon the establishment of the proposition of the one, on whom the burthen was first cast, the burthen remains with him throughout, though the weight of evidence may have shifted from one side to the other, according as each may have adduced fresh proof. Powers v. Russel, 13 Pick. 69.
There is a wide distinction between the requirement in a criminal prosecution, that the accused shall prove his innocence, when a presumption is raised, against him, and the necessity of his explaining in some degree the facts on which that presumption rests. In Commonwealth v. Dana, 2 Metc. 329, which was an indictment against the defendant for having unlawfully in his hands certain lottery tickets, with the intention of offering the same for sale, the jury were instructed, that “ if from the whole evidence on the part of the Commonwealth, they were led to the belief, that the defendant did sell and deal in lottery tickets, and had them in his possession for that purpose, as charged in the indictment, they would be authorised to find him guilty; unless he had succeeded on his part, as it had become his duty to do, to explain those facts and circumstances consistently with his innocence of that unlawful intention.” The whole Court say, “ the remark, that it was the duty of the defendant to explain those facts and circumstances against him consistently with his innocence, meant no more than that he ought to do so; but if he failed, they were not to find a verdict against him, unless on the whole evidence they believed him guilty. If they doubted, they were to acquit him. Not unlike the principle of the case just referred to, is that of the case of The People v. Bodine, 1 Denio, 281. The instruction to the jury was, “that if the testimony on the part of the prosecution, had shown that the prisoner might have been at the scene of tire fire, the onus [319]*319was cast upon her to get rid of that suspicion, which thus attached to her, or to show where she was at the time.” But the Court said, that the mere fact, tiiat the prisoner might have been present, was no cause of suspicion, because hundreds of others might have been present living near, and the position was held too narrow. But the Court go on to say, that if there were other facts in the case connected with the crime, that the prisoner was in such a situation at the time of the fire that she might have been actually present, furnished very cogent grounds for suspicion against her; and in such a state of facts, the instruction would not have been wrong. But even under such evidence as was supposed might have been adduced, and not reported in the bill of exceptions, it does not appear, that she would have been required to show herself innocent of the charge against her; but that it might be presumed, that she was able to show that she was at another place, if such was the fact; and by omitting this, the circumstance, which was calculated to awaken suspicion, remained unexplained.
In Commonwealth v. Kimball, 24 Pick. 373, the Judge instructed the jury, that “ when the government had made out a prima facie case, it is then incumbent on the defendant to restore himself to that presumption of innocence, in which he was at the commencement of the trial.” The Court say, “ making out a prima facie case, does not necessarily or usually change the burthen of proof.” “ The presumption of innocence remains in aid of any other proof offered by the defendant to rebut the prosecutor’s prima facie
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The opinion of the Court, Shepley J. taking no part in the decision, having been employed in holding the Court at Machias at the time of the argument, was drawn up by
Tenney J.
— The Court declined to direct the prosecuting officer to elect upon which of the four counts in the indictment he would proceed. In point of law it is no objection that two or more offences of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts in the same indictment; the Court may, in the exercise of a discretion, compel the prosecutor to elect on which charge he will proceed. It is usual to charge a felony in different ways in several counts, with a view to meet the evidence, as it may turn out on the trial; and if the different counts are inserted in good faith, for the purpose of meeting a single charge, the Court will not ever compel the prosecutor to elect. 8 Wend. 211.
Another ground of exception is, that the indictment being for forgery of an order, and the proof being for an alteration merely, a conviction could not legally take place. The definition of forgery at common law is, “ the fraudulent making or alteration of a writing to the prejudice of another man’s rights.” [317]*3174 Bl. Com. 247. By Rev. Slat. chap. 157, entitle?! “of forgery and counterfeiting,” any person is to be punished in the mode provided, who with intent to defraud, shall falsely make, alter, forge or counterfeit any instrument in writing, being or purporting to be the act of another, by which any pecuniary demand or obligation, or any right or interest in ot-to any property whatever shall be, or purport to be created, increased, transferred, conveyed, discharged or diminished.
The counsel for the defendant, contended, that it was necessary for the government to prove that the persons whose names were signed to said order as selectmen, were in fact such officers; but the Court ruled otherwise. On an indictment for the forgery of an order, it is necessary that the order should import, that the persons in whose names it was made have a disposing power over the subject of the order, or that it should be proved, that the persons in whose name it was made had such power. Rex v. Baker, Ry. & Mood. C. C. 231. The order in question purports to be drawn by persons acting in the character of selectmen, and is for school books. Selectmen of towns in certain cases have the power to furnish such books at, the expense of the town. Rev. St. c. 17, § 11.
It is unnecessary that the characters and figures on the margin of the order should be set out in the indictment, as the defendant’s counsel contended. This is settled in Commonwealth v. Bailey, 1 Mass. R. 62, and in same v. Stevens, Ib. 203.
The exceptions taken to the rulings of the Judge, which have been examined, cannot be sustained. But the instruction to the jury, which the counsel for the defence contend with more confidence was erroneous, deserves further consideration. The jury were instructed, “ that if it was proved, that the order came into the hands of the defendant, unaltered, and came out of his hands altered, the burthen was on the defendant to prove that he did not alter it.” The prosecuting party is bound to make out his case; in civil proceedings to the satisfaction of the jury, and in criminal, beyond a reasonable doubt. The burthen of proof does not shift from the [318]*318party upon whom it was originally thrown upon the production of evidence by him, sufficient to make out a prima facie case. But when the other party relies upon facts to establish another and a distinct proposition, without attempting to impugn the truth of the evidence against him, it is otherwise. If the result of the case depends upon the establishment of the proposition of the one, on whom the burthen was first cast, the burthen remains with him throughout, though the weight of evidence may have shifted from one side to the other, according as each may have adduced fresh proof. Powers v. Russel, 13 Pick. 69.
There is a wide distinction between the requirement in a criminal prosecution, that the accused shall prove his innocence, when a presumption is raised, against him, and the necessity of his explaining in some degree the facts on which that presumption rests. In Commonwealth v. Dana, 2 Metc. 329, which was an indictment against the defendant for having unlawfully in his hands certain lottery tickets, with the intention of offering the same for sale, the jury were instructed, that “ if from the whole evidence on the part of the Commonwealth, they were led to the belief, that the defendant did sell and deal in lottery tickets, and had them in his possession for that purpose, as charged in the indictment, they would be authorised to find him guilty; unless he had succeeded on his part, as it had become his duty to do, to explain those facts and circumstances consistently with his innocence of that unlawful intention.” The whole Court say, “ the remark, that it was the duty of the defendant to explain those facts and circumstances against him consistently with his innocence, meant no more than that he ought to do so; but if he failed, they were not to find a verdict against him, unless on the whole evidence they believed him guilty. If they doubted, they were to acquit him. Not unlike the principle of the case just referred to, is that of the case of The People v. Bodine, 1 Denio, 281. The instruction to the jury was, “that if the testimony on the part of the prosecution, had shown that the prisoner might have been at the scene of tire fire, the onus [319]*319was cast upon her to get rid of that suspicion, which thus attached to her, or to show where she was at the time.” But the Court said, that the mere fact, tiiat the prisoner might have been present, was no cause of suspicion, because hundreds of others might have been present living near, and the position was held too narrow. But the Court go on to say, that if there were other facts in the case connected with the crime, that the prisoner was in such a situation at the time of the fire that she might have been actually present, furnished very cogent grounds for suspicion against her; and in such a state of facts, the instruction would not have been wrong. But even under such evidence as was supposed might have been adduced, and not reported in the bill of exceptions, it does not appear, that she would have been required to show herself innocent of the charge against her; but that it might be presumed, that she was able to show that she was at another place, if such was the fact; and by omitting this, the circumstance, which was calculated to awaken suspicion, remained unexplained.
In Commonwealth v. Kimball, 24 Pick. 373, the Judge instructed the jury, that “ when the government had made out a prima facie case, it is then incumbent on the defendant to restore himself to that presumption of innocence, in which he was at the commencement of the trial.” The Court say, “ making out a prima facie case, does not necessarily or usually change the burthen of proof.” “ The presumption of innocence remains in aid of any other proof offered by the defendant to rebut the prosecutor’s prima facie case.” “ The Court are of the opinion, that the jury should have been instructed, that the burthen of proof was upon the Commonwealth to prove the guilt of the defendant, that he was to be presumed innocent unless the whole evidence in the case satisfied them that he was guilty.”
On an indictment for larceny, proof that the stolen goods were found upon the prisoner, is presumptive evidence against him, so as to call upon him for his defence, and may be sufficient to convict him, if no facts appear in evidence to repel [320]*320that presumption. When a horse is stolen and is found in the possession of a man, so soon after the theft, that he must have come directly from the place, where he was missed, this raises a violent presumption, that he was the taker, and a jury would be authorized to infer his guilt, from these facts. But any circumstances inducing a probability, that the prisoner may have gotten the horse honestly, will render it improper, for a jury to convict. 1 Phil. Ev. 129, 130, and note (a). In accordance with the same principle is the doctrine of the case of State v, Merrick, 19 Maine R. 398, which was, that the guilt of larceny being presumed from the possession of the stolen property by the accused, soon after the theft, the evidence adduced by him may fall far short of showing that he did not steal the property, and yet create a reasonable doubt of his guilt in the minds of the jury, which will require his acquittal.
In the case at bar, the forgery attempted to be proved, was the alteration of a town order, from “Nine” to “ Nineteen” dollars, drawn in favor of Hale, and delivered to the defendant. The defendant denied that he had committed the crime alleged. The prosecuting officer was bound to prove the alteration ; and that the defendant falsely made it; these were the propositions both of which it was necessary to make out, beyond a reasonable doubt, or the defendant was entitled to a verdict of acquittal. To prove, is to establish, or ascertain, as truth, reality or fact by testimony or other evidence. Proof that the order came to the hands of the defendant unaltered and came out of his hands altered, unexplained, might raise the presumption, that he made the alteration and make out a prima facie case for the State; and it might be very difficult to rebut or control such presumption. But this evidence was only presumptive, and not conclusive; the burthen was still upon the government as before, which the prosecuting officer does not controvert; the jury are bound to acquit, unless from all the evidence, every reasonable doubt was removed. By the instruction, the fact of the alteration between the time, when the order came into the defendant’s hands, and when it [321]*321came out, threw a burthen on to the defendant. What was that burthen ? It was not merely to give such an explanation as would raise a reasonable doubt of his guilt, or even to render it probable, that he did not alter it; but to establish as a fact, a truth, a reality by evidence, that he did not do it. Proof that another had the means, and the inducement to make the alteration, would not prove, though it might in the opinion of the jury render it probable, that the defendant did pot do it; but this would not meet the requirement, as the jury probably understood it.
Exceptions sustained.