Streuber

The defendant has been convicted of a felony and appeals from the judgment and order denying his motion for a new trial. By the appeal he attacks the law given and refused by the trial court.

Complaint is first made because the court refused to instruct *432 the jury to the effect that, in a case otherwise doubtful upon the evidence, evidence of good character was conclusive of defendant’s innocence. This instruction was properly refused, one reason justifying this refusal being that upon no conceivable state of facts is the court authorized to instruct a jury that the defendant’s innocence conclusively appears. Other good reasons are plentiful to support the action of the court.

The court gave to the jury the following instruction: “It is not incumbent upon the defendant to prove his innocence, nor is it incumbent on him to explain suspicious circumstances unless they shall tend in some degree to establish his guilt.” This instruction does not contain a satisfactory statement of the law. We believe it may be said that in no case, except in those cases where the burden of proof shifts to the defendant, is it necessary or even incumbent on him to explain anything. He has the…