In criminal cases the effect of presuming innocence is to throw the burden of proof upon the prosecution, i. e. establish a prima facie case in favor of the defendant.5 The rule that guilt must be established beyond a reasonable doubt adds the element that the evidence adduced by the prosecution must be persuasive beyond a reasonable doubt. Theoretically all that a presumption can avail is to throw the burden of proof upon the prosecution. But when the charge is that "the jury are bound to commence their deliberation of the evidence in the case by a presumption that Edith Lavoy committed suicide," it is questionable whether the court intends the charge to have such a restricted effect. It would seem that the court intends to do more than to explain to the jury that the burden of proof is upon the prosecution. If the restricted meaning is intended, what logical reason can there be for insisting that innocence be presumed upon a specific ground? Does not the court rather intend that the presumption be treated by the jury as evidence of suicide to be rebutted? It would seem that the court is attempting to apply the doctrine of proving guilt beyond a reasonable doubt by treating a presumption of innocence as evidence to be rebutted. If this is so, it is improper, for a presumption is solely a rule of offering evidence and is never to be treated as evidence. As a matter of practical result in the principal case, the jury would probably not be greatly misled by the charge requested, even though it is perhaps based upon erroneous theory. But even if it be granted that the charge is permissible in a specific case as not dangerously misleading to the jury, it is difficult to see why it constituted reversible error to refuse to charge that the defendant must be presumed innocent upon the ground that his alleged victim committed suicide. R. K. Parsell. Criminal Law: Larceny of intoxicating liquor.-The Volstead Act1 makes the rather sweeping statement that no property rights shall exist in intoxicating liquor held in contravention of the Act, but as to whether or not this statement makes impossible the larceny of liquor illegally held, both courts and writers have disagreed. It is admitted that an article must be of value and be capable of being owned in "Wigmore, Evidence (2nd ed.), sec. 2511. 'Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 551 at P. 575. "Wigmore, Evidence (2nd ed.), secs. 2497 and 2511. "Supra, n. 4. "But the moment these conceptions give way to the perfectly distinct notions of evidence proper-i. e., probative matter, which may be a basis of inference, something capable of being weighed in the scales of reason and compared and estimated with other matter of probative sort-so that we get to treating the presumption of innocence or any other presumption, as being evidence in this its true sense, then we have wandered into the region of shadows and phantoms." Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 551 at p. 576. 141 Stat. L. 305. Sec. 25 of this Act provides: "It shall be unlawful to have or possess any liquor or property for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property." order that it may be the subject of larceny. When the statement is made that there is no property in an article, the result predicated is that all rights in connection with it disappear, among them being the right of ownership. If the statute is given an interpretation which at first blush seems natural, liquor illegally held is incapable of being owned by anybody, the right of ownership being non-existant. If, therefore, a thief takes liquor while it is illegally possessed, the liquor is incapable of being owned at the time of the taking, and the taking cannot be larceny.2 In People v. Otis, 235 N. Y. 421 (1923), the Act was given a narrower interpretation. According to the New York court, sections 25, 26, and 27 are but three of a number of sections providing for proper enforcement of the Act. The clause of section 25 as to property rights is mingled with provisions for seizing and disposing of liquor by proper court officers, the purpose of the clause being to prevent questions from arising on account of taking and destroying property without formal condemnation by court decree. The clause cannot be "wrenched from its context.' "Section 25 is merely a police regulation, adapted to aid the enforcement of the prohibition law and to be applied with that end in view."4 "However broad the language used its effects should be confined to the purpose for which it was intended." By this interpretation of the statute, an unlawful possessor of intoxicating liquor has no right of ownership violated. when there is seizure by proper court officers, but has a right of ownership violated when there is seizure by a thief. Thus is avoided objection to conviction for larceny on the ground that the thief takes property incapable of being owned. The court also says there is no objection on the ground that the property is of no value to the possessor pointing out that the correct test of value, where larceny is in issue, is the intrinsic value of the property taken, rather than the value of it to its possessor. In short, larceny of intoxicating liquor illegally held was declared possible, notwithstanding section 25 of the Volstead Act. The result seems to be in accord with the majority of recent decisions. 'Supporting this view: 2 Boston U. L. Rev. 216; 7 CORNELL LAW QUARTERLY, 57; 4 I11. L. Q. 144. See People v. Spencer, 54 Cal. App. 54 (1921) where the clause of the Volstead Act as to property rights is construed in connection with section 654 of the Civil Code which provides that "the thing of which there may be ownership is called property" and larceny declared impossible. 'Principal case, at p. 424. 'Principal case, at p. 425. "Principal case, at p. 425. "People v. Wilson, 298 Ill. 257 (1921). The case was criticized and an opposite view taken in the CORNELL LAW QUARTERLY, supra, n. 2. That it is not necessary to show intoxicating liquor is lawfully possessed in a charge of larceny, State v. Friedman, 120 Atl. (N. J.) 8 (1922). "The right of the state to seize and confiscate intoxicating liquor, when unlawfully possessed, through proper court action, does not include the right of the individual to confiscate such property at the point of a gun." "A lawful right of the sovereign people is urged to sustain the unlawful conduct of the individual” -this is fallacy. Arner v. State, 197 Pac. (Okl.) 710, 712 (1921). This case is on all fours with the principal case. Also see Edwards v. State, 91 Tex. Crim. Rep. 196 (1922). That the state The argument of the court at least recognizes that the clause as to property rights is ambiguous, there being a broad and a narrow interpretation of the words possible. Section 3 of the Act provides that the "Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." This section would seem to imply that a narrow construction is proper when the use of liquor as a beverage would be prevented or when, although the use of intoxicating liquor as a beverage be in no way affected, some other end of justice is thereby accomplished. It is difficult to see how it would lessen the use of intoxicating liquor as a beverage to license the theft of it, for undoubtedly the liquor would be drunk anyway unless some happened to be spilled in the taking. On the other hand the public is benefitted by the punishment of those who are morally deserving of punishment. In further support of the narrow interpretation of the Volstead Act which was indulged in by the New York Court of Appeals, it is to be remembered that a statute in derogation of the common law is properly construed strictly. Moreover the statute, otherwise interpreted, embodies a rather startling fiction. A fiction at common law is only indulged in when there is some basic end of justice accomplished thereby, the fiction not being applied when the reason for it is absent. It might be argued by the same reasoning that the statutory fiction that there is no property in unlawfully held intoxicating liquor should not be extended to protect thieves from criminal liability. R. K. Parsell. Domestic Relations: Alienation of Affections; Necessity of proving Adultery or Abduction.-In Longe v. Saunders, 140 N. E. (Mass.) 741 (1923), the complaint contained two counts. The first was essentially for alienation of affections, no allegations of adultery with the plaintiff's spouse or inducing her to leave the plaintiff being set out. The second count was for criminal conversation. The jury found for the defendant on the second count. It was held that there could be no recovery upon the first count on the ground that “*** alienation of affections is not a substantive cause of action * * * but is merely an aggravation of damages for loss of consortium. The denial in Massachusetts of a right of action for mere alienation of affections seems to have its inception in the comparatively recent case of Neville v. Gile1 where the plaintiff alleged that the defendant "induced and allured the said Neville (the plaintiff's husband] from his and plaintiff's home *** and alienated the affections of the said punishes an offense against the majesty of its laws and the criminality of an act, as well as the wrong done to an individual, and that laws directed against one offense cannot be made a shield against another offense (larceny), see State v. Schoonover, 122 Wash. 562 (1922). For articles discussing the larceny of intoxicating liquor and saying that it is the better policy to recognize it as a crime, see 31 Yale L. J. 305 and 70 U. of Pa. L. Rev. 203. A note in 6 Minn. L. Rev. 165 also discusses the question and cites many decisions under state statutes similar to the national act as to property rights which permit larceny of intoxicating liquor. 174 Mass. 305 (1899). Neville from the plaintiff." The court held that the plaintiff had failed to state a cause of action in that no allegation of loss of consortium had been made. Thus, by this holding, the court refused to consider an alienation of affections as a loss of consortium, citing as authority Evans v. O'Connor, Bigaouette v. Paulets and Lellis v. Lambert.4 From an examination of these cases it appears that no one of them is in point. Evans v. O'Connor is a case of criminal conversation and the words of the court (which appears to be the basis of the holding in Neville v. Gile) to the effect that, in an action for criminal conversation, "alienation of affections is not the gist of the action, but is merely a matter of aggravation," are, as the court freely admits, mere dictum, since no instruction was requested upon that point. The case cannot be construed as an authority for the proposition that there can be no loss of consortium through an alienation of affections. At most the case holds that, in an action for crim. con., it is unnecessary to prove an alienation of affections but this may be introduced in aggravation of damages. The same may be said of Bigaouette v. Paulet." The allegations set out a case for criminal conversation. The court held that, in this action, adultery with the plaintiff's spouse must be proved and an alienation of affections may be shown in aggravation of damages but proof thereof is not necessary to sustain the action. This does not establish the proposition that there is no action for alienation of affections or that an alienation of affections is not a loss of consortium. Indeed jurisdictions where recovery is permitted for alienation of affections permit evidence thereof to be introduced in aggravation of damages in actions of criminal conversation. Lellis v. Lambert, also cited in Neville v. Gile,10 is not in point. The case merely decides that, under the Married Womens' Property Act, an action will not lie by a married woman against another woman for alienation of affections. This is not a denial of such a right to the husband. The views of the court in Neville v. Gile11 may possibly be explained by a quotation from Blackstone12 cited in Bigaouette v. Paulet13 in which he enumerates three instances in which a husband may recover for a violation of his marital rights, i. e., abduction or taking away a man's wife; adultery or criminal conversation with her; and beating or otherwise abusing her. Evidently the court concluded that, since these were the only actions mentioned by Blackstone, recovery in England for mere alienation of affections would be refused. This conclusion is questioned in Heermance v. James, 14 the earliest American case in which the question was decided. The court says, "Separation is the usual consequence of such interference [alienation of affections], and the cases found in the books are, it is true, cases of 2174 Mass. 287 (1899). 134 Mass. 123 (1883). 424 Ont. App. 653 (1897). Supra, n. 2, at p. 291. •Supra, n. I. "Supra, n. 3. See n. 17, post. 123 Bl. Comm. 139 13 Supra, n. 3. 1447 Barb. (N. Y.) 120 (1866), at pp. 123 and 126. actual separation from the house and home of the husband; and upon this authority it is insisted that an allegation of pecuniary loss or loss of services by an actual leaving or continuing away from service, is necessary to make out a cause of action. I do not think that this argument is sound." The court points out that the gist of the action is the loss of the "comfort and society" of the wife and this could as effectually be lost where the parties had not separated as where they had been separated by the wrongful acts of the defendant. "Her actual presence in his house," says the court, "and with him under such circumstances, maintaining and exhibiting towards him such feeling, could afford him no relief from the injury inflicted, but would rather add the provocation of insult to the keenness of suffering." The rule in Heermance v. James15 seems to have been universally followed among American jursidictions, with the exception of Massachusetts. The courts recognize the existence of one action for criminal conversation and another, entirely separate and distinct, for alienation of affections.16 In crim. con., adultery with the plaintiff's spouse must be shown; in alienation of affections neither adultery17 nor an enticing away of the plaintiff's spouse18 are necessary elements of the tort. As the Colorado court in Sullivan v. Valiquette1 aptly puts it, "There are two primary rights in the case; one is the right of the plaintiff to the body of his wife and the other to her mind, unpolluted." There seems no real basis in reason for the doctrine of the instant case. The Massachusetts courts have repeatedly held that a husband may recover for a loss of consortium. In Bigaouette v. Paulet20 consortium is defined as "the right to the conjugal fellowship of the wife, to her company cooperation and aid in every conjugal relation."21 As a recent writer has pointed out22 it is something more 15 Supra, n. 14. 16See Schouler, Marriage, Divorce, Separation and Domestic Relations, p. 1585. 17Barlow v. Barnes, 172 Cal. 98 (1916); Valentine v. Pallak, 95 Conn. 556 (1920); Higham v. Vanosdol, 101 Ind. 160 (1884); Adams v. Main, 3 Ind. App. 232 (1891); Hamilton v. McNeill, 150 Iowa 470 (1911); Merritt v. Cravens, 168 Ky. 155 (1916); Callis v. Merriweather, 98 Md. 361 (1903); Rinehart v. Bills, 82 Mo. 534 (1884); DeFord v. Johnson, 152 Mo. App. 209 (1911); Rust v. Oltmer, 74 N. J. L. 802 (1907); Hoard v. Peck, 56 Barb. (N. Y.) 202 (1867); Weston v. Weston, 86 App. Div. (N. Y.) 159 (1903); Ireland v. Ward, 51 Or. 102 (1908); Pugsley v. Smyth, 98 Or. 448 (1921); Keath v. Shiffer, 37 Pa. Super. 573 (1908); Roberts v. Jacobs, 37 S. D. 27 (1916). 18Valentine v. Pollak, supra, n. 17; Sullivan v. Valiquette, 66 Col. 170 (1919) Adams v. Main, supra, n. 17; Callis v. Merriweather, supra, n. 17; Rinehart v. Bills, supra, n. 17; DeFord v. Johnson, supra, n. 17; Heermance v. James, supra, n. 14; Hoard v. Peck, supra, n. 17; Roberts v. Jacobs, supra, n. 17. 19 Supra, n. 18, at p. 172. 20 Supra, n. 3. 21 But in this connection note that Massacusetts and a few other states make another limitation upon the generally accepted definition of consortium where recovery by a husband for loss of consortium of his wife through injury occasioned by the negligence of the defendant is restricted to a loss of services and if no loss of services can be shown, no recovery can be had. See Minihan v.Boston Elevated Ry. Co., 205 Mass. 402 (1910); Feneff v. N. Y. C. & H. R. R. R. Co., 203 Mass. 278 (1909); Marri v. Stamford St. R. Co., 84 Conn. 9 (1911); Blair v. Seitner Dry Goods Co., 184 Mich. 304 (1915); and Golden v. Greene Paper Co., 44 |