¶1—
¶2The plaintiffs in error were indicted in the Circuit Court of Marion for feloniously aiding two slaves, Henry and George, to escape from their master’s service. The State proved that Henry and George were mulattoes, that they had lived with one Jones for several years, when Jones died, and the prosecutor, Ship, became his administrator, but did hot include in his inventory the boys Henry and George. The plaintiffs in error then introduced proof of facts, tending strongly to show that Henry and George were not slaves, but free persons of coloi\ On this proof the court charged the jury, among other things, that, “If the presumption of slavery was raised, and fixed by color, the defendants must rebut that presumption by proving clearly that the boys were free; and if the matter as to the question of freedom or slavery was left in equipoise, they could not on that account alone acquit.” To this ruling of the court the plaintiffs in error excepted. Several other exceptions were taken to the ruling of the court below, which it is not necessary for us to note.
¶3No rule is better settled than that which requires a plaintiff whether in a civil action or criminal prosecution, to prove the affirmative of the issue, before the defendant can be called on to exempt himself from the charge: in the former by a preponderance of proof, and in the latter beyond all reasonable doubt. It is also well settled that if, upon the whole proof, the charge is not made out beyond a reasonable doubt, the defendant must prevail; and if from the proof, the fact of guilt or innocence is left in equipoise, the jury should acquit. These principles are so well settled and established, that no citation of authority is necessary to sustain them.
¶4• To make out the charge against the plaintiffs in error, it was necessary that the State should have proved that .the prisoners aided the boys Henry and George to escape, and that they were the slaves of the person whose property they are averred to be in the indictment. If it fail to establish either of these points beyond a reasonable doubt, or if, upon the whole proof, a doubt existed as to either, the prisoners, for this cause alone, should have been acquitted.
¶5The Circuit Court having ruled to the contrary, the judgment must be reversed, and. the cause remanded.