The defendant at the former trial was convicted on the first count of the indictment, and acquitted upon the second and third counts. A new trial having been granted, some difference of opinion has been expressed elsewhere upon the question whether a defendant under such circumstances could rightly be placed on trial again on the second and third counts. 1 Bish.'Crim. Law, (8th ed.) §§ 1004, 1005. Assuming that he could not be, the prosecution of those counts in the present case was abandoned before the arguments to the jury, and the judge in his charge to the jury informed them that no claim was made of a conviction upon those counts, and that they might return a verdict of not guilty upon them, which the jury accordingly did. No evidence was introduced on either side except such as was competent and material on the first count. If it was erroneous to put the defendant to trial upon those counts, the error was cured by the abandonment of them, and by the verdict, and we cannot see that .he was in any way prejudiced. Many decisions illustrate this, though upon slightly different facts. Commonwealth v. Packard, 5 Gray, 101. Commonwealth v. Lincoln, 9 Gray, 288. Commonwealth v. Chase, 127 Mass. 7. Commonwealth v. Adams, 127 Mass. 15. Commonwealth v. Andrews, 132 Mass. 263. Commonwealth v. Boston & Maine Railroad, 133 Mass. 383. Commonwealth v. Miller, 150 Mass. 69. Commonwealth v. Jacobs, 152 Mass. 276. Commonwealth v. Meserve, 154 Mass. 64, 69. Commonwealth v. Lapham, 156 Mass. 480. Commonwealth v. Bingham, 158 Mass. 169.
The instructions to the jury upon the matters embraced in the first two requests for instructions were clear and sufficient. *551The judge told them that the proof must establish the charge beyond all reasonable doubt; that a well grounded suspicion was not enough, no matter how strong the suspicion might be; that something more must be shown than a probability of guilt, however strong that might be; and reasonable doubt and moral certainty were carefully explained. The remarks upon the nature of circumstantial evidence went as far as the law required, and it was not necessary to adopt the words used by counsel. The judge also clearly instructed the jury that the defendant was not bound to prove his innocence, or to disprove the charge against him. The greater part of the third request was given in terms. The first part of it, and also the request after the conclusion of the charge, were plainly wrong. They went too far. It was not necessary for the government to prove that the criminal act could not have been done by anybody else than the defendant, or that no other person than the defendant had an opportunity to do it. Many honest persons, against whom no suspicion existed, might have been able to do it, and have had an opportunity to do it. In order to prove that the defendant committed a crime, it is not necessary to show that it could not have been committed by anybody else, or that nobody else had an opportunity to commit it. All of the defendant’s rights were preserved by the instructions to the jury.
Exceptions overruled.