¶1 (concurring). — The rule does not obtain in this State that the presumption of innocence in favor of an accused person on trial for a criminal offense is to be. considered as evidence. While it abides with him throughout the trial it merely determines the burden of proof. When the jury come to deliberate upon their verdict, they weigh no presumption — they weigh the evidence and evidence only.
¶2 The presumption of innocence requires the State to proceed with the evidence and establish guilt beyond a reasonable doubt. The question of guilt is one purely of proof. Assuming that the presumption has the force and effect of a prima facie case and temporarily relieves the. accused from going forward with the evidence, that is its sole office and effect. If nothing further is adduced it merely settles the case in favor of the party for whom it works and when the other party has gone forward with his evidence and the prima facie case is overcome the presumption is spent.
¶3 The idea that the presumption of innocence is of the nature of evidence proceeds, as Professor Thayer said in his lecture on the Presumption of Innocence, from a loose habit of speech.
¶4 ■ In the case of Coffin v. United States, 156 U. S. 432, 39 L. Ed. 481, 15 Sup. Ct. Rep. 394, Mr. Justice White said that the presumption was evidence in favor of the accused, but in the case of Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624, 17 Sup. Ct. Rep. 235, the court held that a trial court properly refused to charge a jury that the presumption of innocence is evidence in favor of the accused.
¶5 . For an excellent discussion of the subject see Culpepper *583 v. State, 4 Oklahoma Crim. Rep. 103, 111 Pac. Rep. 679; 8 R. C. L. 174.