¶1I concur in the judgment rendered in this case; but for reasons which are altogether different from those assigned in the opinion of the court, as well as those given by the Chief Justice. It is altogether legitimate, I think, for the State’s counsel, in presenting to the jury, in the trial of one charged with crime, his reasons why a verdict of guilty should be returned, to comment on the fact that the evidence introduced showed that a particular person was present at the time it is alleged that the offense was committed, and was therefore acquainted with the facts which it is alleged constitute the offense, which person by reason of age and relationship is peculiarly under the control of the accused, that the evidence showed such person to be accessible, and that she was not produced as a witness; — not for the purpose of contending that the accused should be convicted because of the non-production of the witness, but on the line that the evidence, if presented, might make plain any fact left in doubt by the evidence introduced; and that the withholding of such evidence is a circumstance which the jury might consider in determining the weight or truth of certain evidence produced. The argument of counsel and his reasons are not obliged to be accepted by the jury. There is nothing authoritative about the argument; at the most, it is only persuasive. It is supposed to be reasoning on the law and the facts to assist the jury to arrive at the desired result, the truth. And while the accused must *376not, in any case, be convicted on account of tbe absence of evidence which could he produced, it is nevertheless a fact that the evidence produced is frequently weakened, to a certain extent at least, when it appears that there was other evidence bearing on the facts in issue, accessible to the party, which he deliberately failed to bring into court. And while a conviction can only legally be had when it is the result of competent evidence, yet when it is proved that there is other evidence in the control of the accused which would, if it had been introduced, explain any doubtful question at issue, the fact that there is other evidence is one of the facts in the case, and as such, counsel has a right to comment on its absence and to draw inferences thereon. But if in doing so he seeks to have the jury draw unauthorized conclusions, the judge should, in the interest of a fair trial, so charge the jury in relation thereto as to protect the rights of the accused; and when properly requested, I think he is legally bound to do so.
¶2In this case, after giving a written request, the judge charged the jury as follows: “ And though the general rule is, where a party has evidence in his power by which he may repel or rebut a charge or claim against him, and fails to do so, and where in that [?] which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded, this presumption may be rebutted even by circumstances coming under your knowledge and observation in the course of the trial.” This charge, I think, was error. While presumptions arise under certain proved facts that a criminal charge against the accused is well founded, such presumption can never arise except from proved facts; and the principle given to the jury is, in my opinion, entirely inapplicable to criminal cases. In effect, it tells the jury that if the defendant had evidence by which he might repel or rebut the charge and failed to introduce it, the presumption then arises that he is guilty. This violates the fundamental principle of criminal law that the guilt of the accused must be shown by competent evidence, before a conviction can be legally had. One accused of crime has a right to stand mute, and unless it affirmatively appears by the evidence that he is guilty, he can not be legally so held. The presumption of law is that he is innocent, and this presumption remains until he is proved to be guilty. While these principles, are true and sound, they do not contravene, as I think, the right of counsel to comment on the fact *377that the defendant, according to the evidence, is withholding a witness who might make plain something which is doubtful, and this fact goes to the jury, with others, as part of the evidence, and may explain, add to, or detract from the facts to which other witnesses have testified.