It is conceded to be necessary in order to-complete the charge against the defendant, that the bill of indictment should contain an averment to the effect that he-did not own the bonds in question, or have them in hi-s possession, as he pretended to the prosecutor, and upon the strength of which- pretence he obtained- the prosecutor’s-money.-
The only question then is, as to the burden of proof, whether it rested with the state to prove this negative averment, or whether as the judge instructed-the jury it was so-shifted, under the circumstances of the case, as to make it incumbent upon the defendant to exculpate himself, by producing the bonds or giving'a satisfactory account of the manner in which he had disposed of them.
The general rule most undoubtedly is that the truth of every averment, whether it be affirmative or negative, which is necessary to constitute the offense charged must be estab*533lished by the prosecutor. The rule itself is but another form of statiüg the proposition, that every man charged with a criminal violation of the law is presumed to be innocent until shown to be guilty, and it is founded, it is said, upon principles of natural justice; and so forcibly has it commended itself by its wisdom and humanity to the consideration of this court, that it has never felt willing, whatever circumstances of difficulty might attend any given case, to disregard it.
In State v. Morrison, 3 Dev., 299, it was held that upon a charge for unlawfully retailing spirituous liquors, it was incumbent upon the defendant to prove the license, in case he relied upon one for his defense, and we were referred to that case, by the Attorney-General, in his argument here, as an instance, in which the court had shifted the burden, when the proof lay peculiarly in the knowledge of the accused party, and such most certainly does seem to be its import.
But that decision came under review in the latter case of State v. Woodly, 2 Jones, 276, and it was then construed as meaning, not that the burden of proof was shifted in such a case, from the prosecutor to the defendant, but that a failure of the latter to produce a license might under certain circumstances become a cogent fact to be considered by the jury, in connection with the other facts of the case, tending to support the averment of the indictment. As thus understood, it ceases to be an exception to the general rule stated, but rather becomes a support for it, and as Battle, J., declares, “ the great conservative principle so essential to the security of those charged with crime, that they shall be presumed to be innocent until the contrary is shown, is .preserved in all its integrity.'”
As we had occasion to say in State v. McDaniel, 84 N. C., 803, it is manifest from the tenor of the decision in State v. Woodly, supra, and also in State v. Evans, 5 Jones 250, that the court has never been satisfied to go to the length of the *534argument made in Morrison’s case, and though not willing expressly to overrule it, have been at great pains to limit its authority, as a precedent, strictly to the facts of the case, and to deny that any general principle could be drawn from it for general application.
Accordingly in both those cases, it was .held that the want of a license, in a prosecution for dealing with slaves, must be proved on the part of the state.
We were also referred to Rex v. Stone, 1 East., 639; Rex v. Turner, 5 M. and S., 206, and Bower v. Mississippi, 41 Miss., 470, as other instances in which the courts had departed from the general rule, but in all. these cases it will be found upon examination, either, that the negative averments had reference to- some personal qualification peculiar to the defendants, or that the proof thereof depended upon the contents of some written document, committed to the sole custody of the person accused, and consequently they can have but little or no application to a case like the present.
So far as our researches go, there is no case to be found in which such a doctrine has been so. far-extended as to dispense with proof, on the part of the state, of an averment connected with the transaction out of which the prosecution grew, and forming, as it does in this instance, so essential and substantive a part of the charge against the defendant. So to extend it, Battle, J., declares in Woodly’s case, would be to do violence to the fundamental principle that every .person accused of crime is presumed to be innocent until shown to be guilty; which principle, he says, has no limit, but applies to the whole charge, and embraces every averment necessary to constitute the alleged offence.
As was wisely said in Commonwealth v. Thurlow, 24 Pick., 374, it will not do to allow the difficulty of obtaining proof to dispense with the necessity of it altogether, so as to enable a party upon whom the burden should rest,to succeed without proof.
*535His Honor, in this case, might with much propriety have instructed the jury, that they might consider the defendant’s failure to produce, or account for, the bonds, as a circumstance to be weighed with the other testimony in the case, in determining the truth of the averment, which negatived such possession on his part; and had the jury, acting under such instructions, pronounced the defendant guilty, we can see no possible grounds upon which their verdict could have been justly criticised.
But when His Honor instructed the jury that they should accept as true that averment in the indictment, and hold it to be such, until the defendant should conclusively disprove it (and.such we understand to be the purport of the instructions given) we are constrained 'to say that he went beyond the law as we understand it, and overlooked for the moment the humane presumption Of innocency, with which it clothes every person accused of crime, and consequently there must be a venire de novo.
Error. Venire de novo.