The opinion
DORAN, J.,
Dissenting. — I dissent, although I am in entire accord with much of that which is enunciated in the prevailing opinion. That “there is a presumption that a person is innocent of crime or wrong, the benefit of which can only be destroyed by evidence’’, as declared in the prevailing opinion, there can be no question. It must be emphasized, however, that this presumption is merely a disputable presumption. In my judgment, the evidence adduced by the plaintiff with regard to the loss by him of the photograph and the possession of a copy of such photograph by the defendant newspaper, was sufficient to overcome the presumption and shift the burden of proof to the defendant. In that connection, the obvious interest of the defendant newspaper in obtaining a photograph was a circumstance of no little consequence.
In the light of the record, and the burden of proof having shifted, the defendant was bound to explain the lawful possession of the photograph as well as the justification for its publication. Such questions of fact were properly for the *316 jury’s determination. Upon this premise in my opinion, the order granting the motion for an instructed verdict was error.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 28, 1939. Carter, J., voted for a hearing.