Unaided by any inference from the defendant’s silence, or his omission to produce evidence to explain the circumstance, the mere fact of his being in the room adjoining and opening into that in which the liquors were kept, and in his shirt sleeves, does not seem to us to furnish that fulness of proof which is required to remove all reasonable doubt in criminal cases. He might have been a mere loiterer, or a neighboring customer, equally unsuccessful as the officer in an attempt to find the keeper of the place. But as the narration of the facts at the trial may have given them an appearance of more significance than they bear in the written statement, we are not prepared to say that the evidence as exhibited to the jury was not legally sufficient to warrant the verdict.
We think, however, that the instructions given to the jury were calculated to induce them to give undue force to the evidence, if not to disregard the spirit of the statute which forbids any presumption to be drawn against a defendant in criminal proceedings, from his neglect or refusal to testify.
Instructions, legally correct in themselves as independent propositions, or as applied to an appropriate state of facts, are erroneous if applied to a state of facts to which they are not adapted. Pond v. Williams, 1 Gray, 630, 635. Wright v. Old Colony & Fall River Railroad Co. 9 Gray, 413. Brightman v. Eddy, 97 Mass. 478. They tend to mislead the jury either into the supposition that a proper state of facts exists to which the propositions are to be applied by them, or into drawing the suggested inference from facts which do not authorize it.
We do not see that the proof offered by the Commonwealth fairly put the defendant to any explanation except such as would require his own personal testimony. On the supposition of his innocence, the fact of the real ownership of the place was not more accessible to him than to the Commonwealth; and it was for the Commonwealth, and not for him, to produce the proof, if it bore on the issue. The same is true of the question who was the real keeper of the place, or the regular occupant of the premises.
*214The result would naturally follow, especially upon minds untrained to careful distinctions, that the instructions would be applied to the case, and the inference thus suggested would be drawn against the defendant without any clear apprehension of the precise conditions which would warrant such an inference. The statute is explicit; and the exemption should be scrupulously secured to the defendant. Commonwealth v. Harlow, 110 Mass. 411. It is doubtless intended to carry out the spirit and purpose of the clause in the Declaration of Rights, that no subject shall “ be compelled to accuse or furnish evidence against himself.” A bare literal compliance with the terms of this provision is not all that a defendant is entitled to. In extreme care for literal observance may lurk the unintended suggestion which leads to a violation of its spirit. Our apprehension that such may have been the effect in this case requires us to
Sustain the exceptions.