¶1The accused was arraigned upon an indictment for smuggling. The court in their charge instructed the jury, that it was not incumbent upon the Crown to show that a person having liquors in his possession had not paid the duties thereon, but that the burthen of proof rested upon the accused. Chief Justice Lee remarked in his charge that to say, that the on-s probandi of showing the legal importation and payment of duties on liquors, which burthen is imposed by statute upon legal traders, should not extend to the smuggler, would be not only unjust but absurd.
¶2The jury after an absence of many hours returned into court and stated that they could not agree, and they were discharged. It is. said the jury stood eight for conviction and four for acquital.