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Un des symboles sulvants apparaltra sur la dernidre image de cheque microfiche, selon le cas: le symbols — »• signlfie "A SUIVRE ", le symbols y signlfie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely Included In one exposure are filmed beginning In the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmte A des taux de rMuctlon diff Arents. Lorsque le document est trop grand pour Atre reprodult en un seul cllch6, 11 est film* i partir de Tangle suptrieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nteessaire. Les diagrammes sulvants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 A TREATISE THE LAW Circumstantial Evidence ILLirSfRATED BY NUMEROUS CASES. sr ARTHUR P. WILL, OF THB CHICAGO i»4 B. PHILADELPHIA: T. & J. W. JOHNSON & CO., 1896. COPTRIOHT, 1896, T. & J. W. Johnson & Co. TABLE OF CONTENTS. PART I. PREWMmARY OONSIDBRATIONS. DIVISION I. EVIDENCE IN GENERAL. CHAPTER L THE NATURE OP EVIDENOB. The Object of InteUectual Research . '*** The Judgment, what is . . , '•••••. 1 Evidence, wliat is . . * , * Testimony, what is . . * , ' ' ' ' ' * • • * Evidence, Law of, embraces what' ? Evidence, Rules of, what are • 8 Proof , distinguished from Evidence *'*•••• 8 *•••••• 8 CHAPTERn. THB VAWOCS KINDS OF EV1DB]K». The Nature of Truth ... Intuition and Demonstration contrasted f Moral Evidence, what is . . , * The Design of this Work • • ^5 6 CHAPTER HI. NATUTE OF THE ASSURANCE PRODUCED BV D^TERENT KINDS OK EVIDENCE. The Nature of Belief Probability, Meaning of . ® Probability, contrasted with Certa'intv ^'"^ Moral Probability ... ' ' • 7 Moral Certainty 7 8 m IV CONTENTS, Moral Certainty not to be Expreased by Numbers Experienoe Analogy, Use of 8,9 10, 11 U DIVISION II. CIROUMSTAKTIAL BYIDBNOB. CHAPTER I. THB CnARAOTERISnoS OF CIROVMSTANTIAL EYIOBNCE. As compared with Direct Evidence IS Definition of Circumstantial Evidence 15, 16 Presumptive Evidence not synonymous with Circumstantial Evi- dence 10, 17 Upon what Force of Circumstantial Evidence depends . . . 17 CHAPTER II. PRESUMPTIONS. What is Imported by Presumptions ....... 18 Legal Presumptions and Natural Presumptions contrasted . 10, 20 Presumptions are based upon Reason 21 Presumptions are varied as Circumstances 22 There can be no Arbitrary Rules to estimate Force of Presumptions 22, 23 Certain Classifications of Presumptions 24 Statutory Presumptions 25 CHAPTER III. REIATTVB VALTTB OF DIl^CT AND CIRCUMSTANTIAL EVIDENCE. Circumstantial Evidence is inferior to Direct 27 Inaccurate Judicial Language . . . . . . . 28, 20 Proper Elffect of Circumstantial Evidence 20 All Evidence Circumstantial 80 Circumstantial and Direct Evidence not mutually opposed . . .31 Fallibility of Testimony 32, 33 Cautionary Suggestions 433, 3 CHAPTER IV. THE SOURCES OF aRCUMSTANTIAL EVIDENCE. What are Sources of Facts 85, 86 A Crime is an Act proceeding from a Wicked Motive .... 36 Latitude to be allowed in Admission of Evidence . . . . 30, 87 CONTENTS. PART II. INCULPATORY INDICx\TIONS. DIVISION I. INCULPATORY MORAL INDICATIONS. INTRODUCTORY REMARKS. CHAPTER I. MOnvBa TO CRIMK strict Meaning of Motive , , """ The Foundation of Responsibility * . ' f? Inadequacy of Motives to Crime ii ll Some Common Motives to Crime . . ' . * ' ' m Presumption arising from Marital Relation . ' ' ' ' 43 44 Desire to obtain Insurance Money as a Motive . . ' * ' ' JJ Proof of Motive fortifies other Circumstances pointing to Guilt' ' 47 Danger of attaching undue Importance to External Circumstances . ' 47 Adequacy of Motive of Uttle Importance . 49 Every Man accountable for Natural Consequences of his Act^ . ' . " 60 As to the Rule of " tn/awrem wfte." . Jj CHAPTER II. THE INTENTION AND DECLARATIONS AND ACTS INDICATIVB THEREOP. SBtmoN I. Consideration of ths PHnciples_ Governing Proof of the Intent. The Influence of Malice As to the Amount of Evidence to show Intent .'.'.'.'.' 53 Section II. TTireats. Admissibility in Evidence of ThreatB, and Ground therefor . . 53 As to Threats made in General Terms 55 Question of Time as bearing on Threats . ..... M Proof of Thr^ts dues not dispense with Proof of Criminal Act . .67 VI CONTENTS. Section III. Evidence ofPreviout Atterhpta and other Crimea. The General Rule k-'**! I, .. > • 57, 68 Exceptions, _- Rarity of Express Declarations of Intention, ..... 01 The Rule in Pennsylyania, . . . , , . ... 68 Statutory Provisions, . , , , .*,'.*.' ' (u The Proof of Guilty Knowledge, . . .*.'.'.'.'.' 78 CHAPTER III. PRBPAHATION AND OPPORTUNITY FOR THE COMMISSION OP CRIME. What evinces Preparation U et sea Opportunity is Essential ' \ ^j Possession of Means of Crime, . . . ...... 77 CHAPTER IV. RECENT POSSESSION OF THE FRUIT6 O* CRIltE. Section I. General Statement of the Law on thU Siibject. Possession usually relied on in Theft and Robbery, .... 78 Necessity of making out Corpus Delicti, . . . .'.'.' W Ik is the Nature of th6 PbBseaeion that is Important, .... 79 Th« Effect to be given to Proof of Possession, . . . . 19eta4q Is the Question one of Law or of Fact ? . . . . ' 79 c« acg! The Defendant may explain Possession, . . . , * . .84 What Possession raises the Presumption, . . .... 86 Suspicion may arise from Explanation, . . .*.*.'.' 68 Effect ol Good Gbsracter on this Question, . ..... 87 SeoTiow II. The Element of Time. Fdtce of Rule depends on Recency of Possession, (jg Question of Recency is one of Fact, ' . ' 89 Possession whether Recent or Remote is for Jury, . .'.'.*. 90 Section III. 2%e Nature of the Possession. Possession must be Exclusive , 90 As to Possession of Married Man, . . . .'.'.'.'. 91 The Fact of Possession is a Question of Fact, . . ,',*.* 93 I CONTENTS. yil Srction IV. The Nature of the Crime to be Itiferren. PoMeBflion may Point to Theft PoMeasion may Point to Reoeiving Stolen Oooda ' . PoiiHvm.. i may Point to Arson PosseHsion may Point to Burglary . Possession may Point to Murder . . .'.*.*. Rule must be applied cautiously .... Necessity 6t Identifying the Goods . . ' , ' »4M . 94 04 . 05 96 . 98 99 . 100 SecrroN V. Corroborative CiroumatanceH. Corroboration is UHual .... Corroboration need not bo Direct. 102, 103 CHAPTER V. CNEXPLAINED APPEARANCES OF SUSPICION AND ATTEMPTS TO ACCOUNT FOR THEM BY FALSE BEPKE8ENTATION8. Reasonableness of requiring Explanations 104 Suspicious Ciroumstanoes, even without ExpUnation, not sufficient . ' 108 108 109 Force of the Rule The Effect of Mendacity CHAPTER VI. CONFESSIONAL EVIDgNCE. Section I. General Cormderation of the Rules relating to CohfeaHotU. Confessions are Direct Evidence Confessions are Judicial or Extra-judicial . Confessions must be Voluntary What constitutes Undue Influence . Burden of Proving a Confession Voluntary Weight of Voluntary Confessions Confessions to be receit^ed with Caution. Confessions must be Corroborated Confessions must be taken as a Whole . Credibility of Confessions is for the Jury . Credibility of Confessions made while Intoxicated Section II. Indirect Confessional Evidence. Caution to be observed .... . lis 113 . 118 . 114 . 114 115 115, 116 116, 117 . m 138 . 125 126 Tiii CONTENTS. Acta «id Worda coimtltut* Conf«»lon«l Evidence . . 'tS EffeotofSUenceinCrirae .... 12 Effect of Flight, Conoealment, etc. IJJ Caution aa to FUght JJ Weight to be attwjhed to thia Kind of Evidence. ..'.'.'. laJ CHAPTER VII. Tim SlHTOEBMOIf, DJCSTBUOTION, AND FABRICATION OF BVIDENCT. Weight of Evidence depends on what . , Exception in Favor of Skilled Witnesses . . ' * 158 LegiU and Moral Obligations not Subject of Expert Testimony* . " 154 The Exception Limited to what ... 1K4 ikk Opinions not Allowed whera Facia Uncontroverted *.'.*. ' Jm Manner of Interrogating Expert .... J« How the Hypothetical Question must be Framed .'.'.'. 162 Section n. Hk« Valm of Expert Testimony. Rests on same Bads as other Evidence . . ,« Dangers of Expert Testimony ... * * ' im Expert Teetimony as to Blood-stain* . . , * * 'ivj'etaeq CX)NTENm DIVISION II. KTRINSIO AND MECHANICAL INCULPATORY INDICATIONS. INTRODUCTORY REMARKS. CHAPTER I, IDENnnOATION OF PSR80N. Proof Of Identity by Circumstantial Evidence . . "" Identification frequently Difficult "* Fr^"^,"'*'"**^«/"«'««^'°Ca«e of Inference . Fam ly LikeneHfl as bearing on Identification Identification by comparing Fragment!, of Garments etc Identification by Means of Permanent Marks Identifloation by Means of Instruments of Crime \ u ' Identification by Means of Blood-stains Identification by Means of Tracks 183 188 188 186 190 191 198 m CHAPTER II. IDENTmCATION OF ARTICLES OF PROPERTY. Property may be Identified by Circumstantial Evidence . SOdetaeq. CHAPTER III. PROOF OF HANDWRITINO. Section I. Proof by Direct Evidence. Usual Mode by Direct Evidence . Who may Testify to Handwriting ^^^ ** 210 Section II. Proof by Indirect Evidence. Proof by Comparison The Former Rule as to Comparison ' ' ' ' ' • n» S«p?r''5"'''"'**'^«^^««p«°"«t''ereto' .' .' • • • !;i The Rule m the various States ^*** Qautionary Suggestions 220 * 221c<»eg. X CfJiNTENTS. gEcnoN III. The Seliability of Evidence nti this Subject. Evidence as to Handwriting is Inconclusive . . . '328 The Weight of Evidejice of Skilled Witnesses , ..." 235 CHAPTER IV. -VEBIFICATION Ot DAMS AND TIME. Internal Evidence of Doctmiettts 237 Wfflculty of Measuring Titie . . . .'.'.*,* * 230 PART III. aXCULPATORY PRESTTMPTIONS AKD CIRUMSTANTIAL EVIDENCE. CHAPTER I. THE PRESUMPTION O'' INNOOENCE. EflFect of Establishing a Prima Foci'c Case 233 Extent of the Presumptiun * . * . ' 8d4 CHAPTER II. THE CREDIBILITY OF TESTIMONY. Jurors Best Judges of Testimony .237 The Presumption of Truth extends how far ..*.*.*. 238 CHAPTER III. OrotoCCT OF THE COM?LAININO PARTY AS OIVINa RISE TO THE PRESUMPTION OF iNNOCENOr, The Demeanor of One Wronged 041 Cautions as to Accusations of Rape <) ^o Caution &s to Accusations of Other Crimes . . ... 243 Motives of Complainant important ' . ' . 244 CHAPTER IV. -HE rONftUCT OF THE ACOUSET) AS RAISING A PRESUMPTION OF INNOCIXCK. From whut this Presumption ff«ay arise of5 As^*CT Voluntary Surrender and Absence of Indications (yt Fear . . 2 17 X CONTENTS. , CHAPTER V. THE 8FPEOT OP THE ABSENCE OF APPARENT MOTIVE TO COMMIT THE CEIME Absence ot Motive Immaterial where Ptoot of Guilt is Clear 'til Absence of Motive Strengthens Presumption of Imiocence .' .' m CHAPTER VI. DECLARATIONS AND THREATS OF THE DECEASED. Thwre must have been an Overt Act As to Uncommunicated Threats . , r*^ Thtiee are admissible when ^^ 254 CHAPTER VII. THE EXPLANATION OF UNFAVORABLE CTRCUMSTANCES. Appearances are Deceptive Fabrication of CitcamstMicM by Accuser * ^ CHAPTER VIII. BVIDHNCB OF CHARACnCft. Good Character is Important Benefit of Character not Restricted to *Minor Offence^ '.* * !S Value of, depends on Circumstances . * ' o«o Negative Testimony may support . . . ' . ' * * * ^ Chrracter is Proved by Reputation . . ^ Correct Mode of Inquiry . . * ' ' " o*« Defendant as a Witness 3TO«*(*«gf. ttee to which applicable . ' *. *S *♦•••• 870 CHAPTER IX. THE DEFENCE OF AUBI. Importance of . . . Who may Judge of Weight of Evidence as'to *.'*** SS To what Period must apply ... ••..»■« As to Credibility of Evidence as to J!J Defence Easy of Fabrication . . ?!* Withholding of Obtainable Proof . Jil Effect of Resorting to Alibi Fraudulently ' , \ ' ' ' * JJJ Xll CONTENTS. PART IV. RULES OF INDUCTION SPECIALLY TO BE OBSERVED IN CASES OF CIRCUMSTANTIAL EVIDENCE. INTRODUCTORY REMARKS. CHAPTER I. PROOF OF THE FACTS ALLEGED IS REQUISITE. This Rule is Indispensable 2gQ Immaterial Facts need not be Established . . . . . 283 lUustrations 28Set»eq. CHAPTER II. THE BURDEN OF PROOF. It is on the Party Asaes-ting Existence of a Fact. A Universal Rule ggj Origin of the Rule * . * . ' 291 Burden of Establishing Guilt is on Prosecution 808 Rurden of Establishing a Defence is on Defendant . . . . * 295 - CHAPTER III. THE BEST EVIDENCE MUST BE ADDUCED. Object of the Rule 2n As to Proof of Corpus Delicti * 397 Where Non-consent is an Ingredient 296 The Effect of Lapse of Time upon Evidence . . , CHAPTER IV. THE QUANTITY OP EVIDENCE NECESSARY TO CONVICT. Section I. The Facts must be Incompatible with Innocence. This ia a Fundamental Rule 3qq Not Necessary to Exclude every Hypothesis but Guilt . . ' . 800 Circumstances must Exclude to a Moral Certainty everyone but Guilt. 801 True Test of Sufficiency 3Q2 Moral Certainty Defined . , ' 803 Evidence need not equal Testimony of one Witness . . . . 306 CONTENTS. jijj " Absolute Moral Certainty " Disapproved ..... .'^ Guilt beyond a Reasonable Doubt * . ' . ' 307 As to the Words of a Charge on this Subject . . . * . ' 810 Amount of Proof needed to Establish Alibi . .... 315 Different Rules as to * . ' . ' '315 Amount of Proof needed to Establish Insanity . ' . * . * . ' .319 Section II. If the Evidence fails to Attain the Required Standard an AcquiUal must Follow. A Consequence of the Preceding Rule ...... 321 Difference between Civil and Criminal Cases ..*.'.* 333 As to Probability of Innocence ' . ' . * 834 What is a Reasonable Doubt . . . .... 835 e/ «eo Rules of Evidence same in Civil as in Criminal Cases ... 338 As to Civil Cases where a Crime is Imputed . , ... 840 PART V. PROOF OF THE CORPUS DEUCTI. DIVISION I. GENERAL PRINCIPLES. CHAPTER I. GENERAL DOCTRINE AS TO THE PROOF OF THE CORPUS DEUCTI. What is Meant by Corpus Delicti ...... 845 In Various Offences ... ' ' ' qak 1 • . 845 et aeq, CHAPTER II. PROOF OF THE CORPUS DELICTI BY CIRCUMSTANTIAL EVIDENCE. No one Kind of Evidence can be Demanded 354 What is Essential * * ' 864 lUustrations '.'.'.'. \55etseq. Kfar CONTENTS. DIVISION n. APPLICATION OF THE GBNKRAL PRINGIPMB TO PROOF OF THB CORPUS DELICTI IN CASES OP HOMICIDE. CHAPTER I. THB MSQQVWlir OF TMS 9PU?. What is the Corpus Delicti in Murder . . *^ Rule in Texas ' ' ' * ' ^ DiBcovery of Body not always R«Quiy^ '..*..* * mm D«ath may be Inferred fronj Circumstances ..*.'.'.' MB CHAPTER II. THE IDKNTIFCATION OF THE BOOT. Identification necessary -^ Identification by Direct Evidence not Necessary JH lUustrations ... o«'. . • • • • S74 etaeq. CHAPTER III. THE CAUSE OF DEATH. The True Cause must dearly Appear ... 379 880 The True Cause may be Shown by Circumstantial Evidence* . * ' m Illustrations .... 00/ ^ . 881 et aeq, DIVISION III. APPLICATION OF THE GENERAL PRINCIPLES TO PROOF OF THE CORPUS DELICTI IN CASES OF POISONING. CHAPTER I. THE CAUSE OF DEATH. Who may Testify as to _^ Characteristics of Poisons ' * ' * ' ooT Corroborative Circumstances , . . 007 Evidence of Chemical Tests . . * f;^ Ae to Pos< Jlforton Imbibition . . .*.*.*.' ' 3J9 Circumstantial Evidence suflicient to show Cause of Death . . 8»3 CONTENTS. ^ CHAPTER II. THE ADMINISTRATION OP THE POISON. BsenoN I. I'oaaeasion of Poison by the Acmaed, This is au Important Fact '395 lUustrations '.*.'. 'm'etaeq. Section II. Opportunity inuat be Shoym. This is Indispensable •...-... 307 Illustrations . ' . ' . m et aea. Eflfect of Proof of Former Attempts 412 CHAPTER IIL CASES IN ILLOBTBATION OF THE POEKOOINa RULES, lUustrations Metaeq. DIVISION IV. APPLICATION OF THE GENERAL PRINCIPLES TQ PBQOF OF THE CORPUS DELICTI IN CASES OF INFANTICIDE. CHAPTER I. PREGNANCY MUST BE ESTABUSHED. Reason of this Rule ^» CHAPTER II. THE BIRTH OP A UVINQ CHILD MUST BE SHOWN. Child must have had an Independent Circulation .... 449 Whether Child was Born Alive is for the Jury . . . * . ' , 450 CHAPTER III. THE NATURE OP THE MOTIVE. Various Motives may lufluenc-j this Crime ...,,, 453 Various Statutes on the Concealment of Birth . . ... 454 Xvi CONTENTS. PART VI. THE FORCE AND EFFECT OF CIRCUMSTANTIAL EVIDENCE. CHAPTER I. GENERAL QROUNDS OF THE FORCE OF CIRCUMSTANTIAL EVIDENCE. Faith in Moral Evidence Orouuded on what ^Ita General Olwervations . ' ' ' ' irk f As to Corroboration of AccomplioeTeHtimony . ' . ' ' ^'^ ''^ '^^ The Law in England • ... 408 The Law in America . 'ako \ ^^^ When there ifl a Moral Certainty of Guilt '.*.'.■.■ . m CHAPTER II. CONSIDERATIONS WHICH AUGMENT THE rORCE OF CIRCUMSTANTIAL EVIDENCE IN PARTICULAR CASES. CHAPTER in. THE VALUE OF CIRCUMSTANTIAL EVIDENCE. CHAPTER IV. CASES IN ILLUSTRATION OF THE FORCE OF CIRCUMSTANTIAL EVIDENCE. NTIAL QENCE. PAOB • 450 456 et Heq. • 458 . 459 469 e( seq. • • 461 EVIDENCE [DBNCE. PART I. PRELIMINARY CONSIDERATION& DIVISION I. EVIDENCE IN GENERAL. CHAPTER I. THE NATURE OP EVIDENCE. The great object of all intellectual research is the discovery of TRUTH, which is either objkotivb and absglitte, in which sense it is synonymous with being or existence, or sinwEorivE AND relative, in which acceptation it expresses the conformity of our ideas and mental convictions with the nature and reality of events and things. The Judgment is that faculty of the mind which is princi- pally concerned in the investigation and acquisition of truth ; and its exercise is the intellectual act by which one thing is perceived and affirmed of another, or the reverse. Every conclusion of the judgment, whatever may bo its sub- ject, is the result of evidence— a word which (derived from words in the dead languages signifying to see, to know) by a natural transition is applied to denote the means by which any aUeged matter of faxjt, the truth of which is submitted to in- vestigation, is established or disproved.^ Testimony is not synonymous with evidence : » the latter is the more compre- > 1 Greenl. on Ev c. i. § 1. That which is legally oflFered by the litigant parties to induce a jury to decide for or against the party alleging such facts as. contradistinguished from all comment and argument on the subject, faU within the description of evidence. Stark, on Ev. (10th Am. MM.) 13. a Harrey v. Smith, 17 lad. 273. 2 THE NATURE OF EVIDENCE. m»« dl™.t° »""»"'™t "f witnesses or the oontonL o papers, doculnell^ or records, or the inspection of whatever tria^. By the Calitorma Code of Civil Procedure i,JJ^,T evidence is defined as the means sanctionedTyTaT o^'r tammg m a judicial pr«=eeding the truth respecting a Z^n tion of general rules estabUshed by law - 1. For declaring what is to be taken as true without proof • 2. For declaring the presumptions of law, both thoseSh are disputable and those which are conclusi™ ; and 3. For the production of legal evidence ; 4. For the exclusion of whatever is not legal • evidelreV ""«"' "^'"^^"^^ thevaluUnd eifect of The rules of evidence are the maxims which the sagacity and experience of ages have established aa the bestXan^ tfZ^'^VT *""' '""'' »" »' contracting L TWhwe their oril™^"^"' 'T"''" "' ^"^"^ '>'««'««»"• and a Z.„I T- ^^ f """' ''*"™' '^ *» iMeUectual and a moral being; and "are founded" (to use the Ian guage of one of the most eloquent of a^lvocate ) " tathe chari-' ties of rohgion, m the philosophy of mature, in the truths of ^ Whart. Cr. Law, § 788. ' Bouvier's LawDict. (15th Ed.) vol. ii. p. 723, tit. " Testimony " » Jones t^.Gregoiy, 48 111. App. 230. f 8 S^ " r;>aBon, independently of any artificial rules otllwTTZJ?^ -T*"!"^^ THE NATURE OF EVIDENCE. olr™ wwt "° ""'"' ^•""P^'-' -""than a^o ht ^:': either W or^L^^'^ Ctr O?"" ," ^''"'"'"'' '* '^ the consequence of Zof andTpLf °"/ jf S™«»^ "'«". ««• priateeJence whiL t'o^l'ZiLTZT^:;'^ aence, therefore, differs from proof, as c.ZfZ7Z'* ' 29 St. Tr. 166. much more tl„m merely. pario the' llTT" '" "' •"'''"°« » T. Mo., 107 U, S. 221, The rale h!tf°"',°'"«'"'°»«'"«™' «""« ..i«.d unheard, and b/a hSrin^ XX T!k "f " '*' »"*■»->•> -r dli given toprod«eeall„fLevZ™a„dTon« «", "PPort-n'ty b1,.U b, LrrHrai. U'::;rint.j„r?^-»""^^^^^^ Experience. 11. Analomr 19 ? ^ opinion. 9. Memory, lo. .aUonsoonoerniitSS W^rWol, ^^. J^HT *• " <"'- CHAPTER II. THE VARIOUS KINDS OF EVIDENCE. Truth is either abstract and necessary, or probable and con- tnigent; and each of these kinds of truth is discoverable bv appropriate but necessarily different kinds of evidence This cla^iiication, however, is not founded in any essential difference m the nature of truths themselves, and has reference merelv to our imperfect capacity and ability of perceiving them ; since to an Inhnite Intelligence nothing which is the object of knowl- edge can be probable, and everything must be perceived absc lutely and really as it is.» In many instances the correspondence of our ideas with reahties IS perceived instantaneously, and without any conscious mtermediate process of reasoning, in which cases the judgment IS said o be INTUITIVE, from a word signifying to look at ; and the evidence on which it is founded is also denominated intui- tive; though It would perhaps be more correct to use that word as descriptive of the nature of the mental operation, rather than of the kind of evidence on which it rests Intuition is the foundation of demonstration, which consists ot a series of steps severally resolvable into some intuitive truth iJemonstration concerns only necessary and immutable truth- and Its first principles are definitions, which exclude all ambi- guities of language, and lead to infallibly certain conclusions » ^ut the subjects which admit of the certainty of intuition and demonstration are comparatively few. Innumerable truths the knowledge of which is indispensable to happiness, if not to existence, depend upon evidence of a totally different kind and admit of no otherguide than our own observation and experi- ence, or the testimony of our feUow-men. Such truths involve questions of fact or of actual existence, which, as they are not of a necessary nature, may or may not have existed, without ' Butler's Analogy, Introduction. * 8 Stewart's Elements of the PhUosophy of the Human mind, c. ii. § 3, THE VARIOUS KINDS OF EVIDENCE. g involving any contradiction, and as to which our reasoning and dechictions may bo erroneous. Such evidence is called MOHAL evidknoe; probably because its principal appUcation is to subjects directly or remotely connected with moral conduct and relations.* Of the various kinds of moral evidence, that of testimony is the most comprehensive and important in its relation to human concerns ; so extensive is its application, that to enter on the subject of testimony at large would be to treat of the conduct of the understanding in relation to the greater portion of human affairs. TiiK design of this work is limited to the consideration of some of the principal rules and doctrines peculiar to circum- 8t uitial evidence as applicable to criminal jurisprudence, one ol the leading heatls under which philosophical and juridical writei-8 consider the subject of testimonial evidence. Kor is it proposed to treat, except cursorily and incidentally, of chouineii- ^^/-y circumstantial evidence; a subject which, however inter- esting in itself, is applicable principally to discussions upon the genuineness of historical and other writings ; and such cases of this description as occasionally happen in the concerns of com- mon life are referaole to general principles, which equallv apply to circumstantial evidence of every kind. Considering how many of our most momentous determina- tions are grounded upon circumstantial evidence, and how im portant it is that they should be correctly formed, the subject IS one of deep interest and moment. It would be most erron- eous to conclude that, because it is illustrated principally by forensic occurrences, it especially concerns the business of the members of a particular profession. Such evenU are amongst the most interesting occurrences of social life ; the sxihject relates to an intellectual process, called into exercise in almost every branch of human speculation and research. «inil'J™*^' alone" (say the civilians) « which depend on abstract prin copies are susceptible of demonstrative evidence; truths that depend ol matters of fact, however complete may be the evidence by which they are established, can never become demonstrative In demonstrative evi- dence there are no degrees : one demonstration may be more easily com- prehended ; but, t cannot be stronger than other. Every necessary truth leaves no po^ib.lity of its being false. In moral evidence we rSe^^in, fcr,rr't°"rr*"""' . V^^^^^y^f w prouabuity, and from probability to Mie highest degree of moral certainty." Wilson's Works, pp. 498, 490. ('[ CHAPTER III, NATURE 0PTHEA88UBAKCE PRODUCED BV DIFFERENT KINDS OP EVIDENCE. more y whui ks not unci cannot bo true, bi.t wluttif Z absL,n Unlike the n^ent, which is tho inevitable result of ni«fW matictl re,^oning, ukukt in the truth of events mav be .^f ous degrees, from moral certaintv, the hiXst ToThat "/''"" probability, the lowest ; between which ext^;!« h ""^'^ numerable degrees and'shules "rn;ietLn S^^^^^^^ " P-ontci in tho words potability and cerWnr " Tw general meaning of the word pk„„a„„.„v j, ijk.„_ „^ «or,l,,rob,,l„l,ty,s„se,| to express the pre,»mieraneo of the ^. ". IV. u. XV. , CIO. De Inventionc, c. 47. ASSURANCE BY DIFFERENT KINDS OF EVIDENCE. 7 evidence or arffiimonts in favor of the existence of a particular event or proiH>8ition, or adverse to it; and Honictimes aa as- sertive of the abstract and intrinsic credibility of a fact or event. In its former sense the word probability is applied as well to certain mathematical subjects as to .p.oations dependent upon moral evidence and expresses the ratio of the favorable cLs to all the rK>ssible cases by which an event may luippen or fail • and It IS represented by a fraction, the numerator of which is the sum of the favorable cases, and the denominator the whole number of possible cases, certainty bein^ represented by unity. If the number of chances for the happening of the event he J) and the event be consequently impossible, the expression foi^ that chance will be==() ; and so, if the number of chances of the failure of the event be=(), and the event be therefore cer- tain, the expression for the chance of failure will also be^o If m+n be the whole number of cjises, m the favorable, and n he unfavorable ones, the probability of the event is 7n:m+n. It follows that If there be an equality of chances for the happen- ing or the failing of an event, the fraction expressive of the probability is^i the mean between certainty and impossibil- ity;» and probability, therefore, includes the whole ranire between those extremes. * fi Jt' r^'""' °««^'A^^Tv and probabilitv are, however, essen- tially different in meaning as applied to moral evidence, from what they import in a mathematical sense ; inasmuch as the ele- ments of moral certainty and moral probability, notwithstand- ing the ingenious arguments which have been urged to the contrary, appear to be incapable of numerical expression, and because it is not possible to assign all the chances for or against the occurrence of any particular event. The expression moral probability, though liable to objection on account of its deficiency in precision, is, for want of one more defimte and appropriate, of frequent and necessary use- nor will its application lead to mistake, if it be remembered that it denotes only the preponderance of probability, resulting irora the comparison and estimate of maral evidence, and that If this were capable of being expressed Avith exactness, it would deraonstrTt?''^'*^ characteristic and possess the certainty of » Kirwan'B Logic, part iii. c. vii. § 1. 'I! it! 8 NATURE OF THE ASSURANCE PRODUCED The preceding strictures equally apply to the tenr mobalcer TAiNTv or Its equivalent, hokal cc!;vLiox, which must be ^.ra^otl^riel^ir ^'^ --^— Which it na^urlll; of ^Pvt?!^""'' ^"'i^-^ f^ powerfully remarked that « the degree of excellence and of stre-gth to which testimony may r!e seems almost mdefinite. There i, hardly any coincTwMch It IS .ot capable, by possible supposition, of'^a Zn^nl 'ft encUess multiphcation of ^vitnesses, the unbounded variety of the,r habits of thinking, their prejudices, their interestsr^ord the means of conceiving the force of their testimony aug^x^ ted ad ^r,^^tum because these circumstances afford the if^ns of d^mmishrng mdefinitely the chances of their being all mSen all misled, or all combining to deceive us." » B^t e^S We reasonable ground for doubt, the conclusion cannot be pri^ii:;r:;;rer ''--' -^^^ ^^ ^^^ p-^-^— '? tionrfl"'^'^'"'^*''^^ '^'^^'' ^^^^ propounded numerical frac- blpn f Trr^ T'^^ '^^*^^^*^' "^^^^^ ^ «^iffht have nature of the subject precludes the possibility of reducing to the form of arithmetical notation the subtle, shifting and evanescent elements of moral assurance, or of br^ofig ^o quantitive comparison things so inherently Afferent as ceHafnt v andprobabilityTheattemptto reduce cLumsta^^^^^^^^^^ nto aritnmetical proportions is merely fanciful, and no rules S that kind have been settled by any adjudged cLe.3 ma^^aTflr^To f '"' ^" ' "^"'^ ^^"^^^^ "^^^^'^^ "^^tbe- matical form to moral reasonings and iudffments • hnt if i= qi^stjonable if they have done so'with an^ uS^e'suU h w ev er they may have shown their own ingenuity.* Thouih it Is true that some very important deductions from the doctrine of ^^^2 Stewart's Elementa. c. ii. § 4 ; Encyclopedia Brit., art. MetapKysics, » Lard Brougham's Disc, on Natural Tlieology, 251 State t,. Roe, 12 Vt. 93 ; Wilsons Works. 226! See infr, p 14 n- 3 ^ *Kirwan's Log»c. part iii. c. vii. § 21 ; Whately's ligic.Vi; c ii BY DIFFERENT KINDS OF EVIDENCE. 9 Chances are applicable to events dependent upon the duration of human life, such as the expectation and the decrement of life the law of mortality, the value of annuities, and other contin- gencies and also to reasoning in the abstract upon particular cases of testimomal evidence, yet it is obvious that all such con- clusions depend upon circumstances, which, notwithstanding that to the unreflecting observer they appear casual, uncertain! and irreducible to principle, unlike moral facts and reasonings elemTnte ^'^ ""^^^^^^^^ '^P^^ ^^^ deducible from numerical A learned writer, whose Avritings, in despite of his eccentrici- ties of matter and of style, have exercised great influence in a^va,kemng the spirit of judicial reformation, asks,i " Does iustice reqmre less precision than chemistry ? » The truth is that tae precision attainable in the one case is of a nature of which the other does not admit, it would be absurd to require the proof of an historic event by the same kind of evidence and reason- ing as that which establishes the eqaaUty of triangles upon equal bases, and between the same parallels, or that the latua rectum in an eUipse is a third proportional to the maior and minor axes. ^ This conscript father of legal reforms^ has himself supplieda memorable Hlustration of the futility of his own inquiry He has proposed a scale for measuring the degrees of belief, with a positive and negative side, each divided into ten degrees respectively affiruiing and denying the same fact, zero denoting the absence of belief ; and the Avitness is to be asked what degree expresses his belief most correctly. With characteristic ardor, the venerable author gravely argues that this instru- ment could be employed without confusion, difficulty, or in- convenience.3 But man must become wiser and better before the mass of his species can be entrusted with the use of such a moral gauge, from which the unassuming and the wise wouH shrmk while it would be eagerly grasped by the conceited, the interested, and the bold. 1 Bentham's Traite des Preuves Judiciairies, b. i. c. xvii. ; Mackintosh's Discoui-se on the Progress of Ethical Philosophy, 290. Mackintosh b ^ Hoflfman's Course of Legal Study, 864. •Bentham's :clationale of Judicial Ev. h. j. ^ .h g 1 _-j ^^ . yi 10 NATURE OF THE ASSURANCE PRODUCED But though a process strictly mathematical cannot be ap- plied to estimate the effect of moral evidence, a proceeding somewhat analogous is observed in the examination of a group of facts adduced as grounds for inferring the existence of some other fact Although an exact value cannot be assigned to the testimonia evidence for or against a matter of disputed fact the separate testimony of each of the witnesses has nevertheless whttitT^ u f f '"'• '^^^"'' ^"P^^^^^S "P^" considerations which It would be foreign to the present subject to enumerate. Un one side of the equation are mentally collected all the facts and circumstances which have an affirmative value; and on he other aU those which either lead to an opposite nfer- ence, or tend to dimmish the weight, or to show the non- nut InT^\ '" "'r^'f '''' circumstances which have been put into the opposite scale. The value of each separate portion Id^LriT ^«7^^^^^1y««timated, and, as in algebraic ,!.tr' aV^^T^^ quantities, positive and negative, are umted and the balance of probabilities is what remains a the ground of human belief and judgment. v.^ohZ^'^ ^r"" i'l"^^ intimated, there is another sense in which the word probabUity is often used, and in which it de- ^ul'llTJl^r """ '7^^''^'^ rBOBABxi.iTY, and expresses our judgment of the accordance or similarity of events with which we become acquainted, through the medium of testimony, with facts previously known by experience.i The results of kxpkbienoe are, expressly or impliedly assumed as the standard of credibility in all questions depend- ent upon moral evidence. By means of the senses and of our own ZrrT '"! ^''°'"' acquainted with external nature, and Avith the charaxiteristics and properties of physical things and mora beings, which are then made the subjects of memory reflection and other intellectual operations; and thus ult^ matey the mind is led to the recognition of the principle of aTstlnd'^f f " necessary truths, which become the basis and standard of comparison in similar and analogous circum- stances. The groundwork of our reasoning is a! instinctTe and inevitable belief in the truthfulness and^itimacy of ou own faculties and in the permanence of the order of external nature, as also in the existence of moral causes, which operate with an unvarying uniformity, not inferior to, and, perhaps, 1 Abercrombie on the Intellectual Powers, part ii. § 3. BY DIFFERENT KINDS OF EVIDENCE. 11 surpassing even, the stabUity of physical laws ; though, rela- tively to our feeble and limited powers of observation and com- prehension, and on account of the latency, subtlety, and fugi- tiveness of mental operations, and of the infinite diversities of individual men, there is apparently more of uncertainty and confusion in moral than in material phenomena.^ Experience comprehends not merely the facts and deductions of personal observation, but the observations of mankind at large of every age and country. It would be absurd to dis- believe and reject as incredible the relations of events because such events have not occurred within the range of individual experience. We may remember the unreasonable incredulity of the King of Siam, who, when the Dutch ambassador told him that m his country the water in cold weather became so hard that men walked upon it, and that it would even bear an elephant, replied, « Hitherto I have believed the strange things you have told me, because I look upon you as a sober, fair man but now I am sure you lie." 2 ' By experience, facts or events of the same character are referred to creases of the same kind; by analogy, facts anc events similar in some but not in ail of their particulars to other facts and occurrences, are concluded to have been produced bv a similar cause : so that analogy vastly exceeds in its range the limits of experience in its widest latitude, though their boundaries may sometimes be coincident, and sometimes un- distinguishable. It has been profoundly remarked that « in whatever manner the province of experience, strictly so called comes to be thus enlarged, it is perfectly manifest that, with- out some such provision for this purpose, the principles of our constitution would not have been duly adjusted to the scene in which we have to act. Were we not so formed as eagerly to seize the resembling features of different things and different events, and to extend our conclusions from the individual to the species, life would elapse before we had acquired the first rudiments of that knowledge which is essential to our animal existence.^ Every branch of knowledge presents in- 1 Hampden'8 Lectures on Moral Philosopliy, 150 ; Abercrombie's Philos- ophy of the Moral Feelings, Prelim. Obs., § ii, '^ Locke on the Human UnrlergtanHin"- h iv /> w '^ t e^ j ci. • on Ev. (10th Am. Ed.) 833. -^-^^^-^"°' ^^ "• <^- ^>- S 5. Seu also StarK. 8 2 Stewart's Elements, ut supra, c. ii. § iv. 12 NATUKE OF THE ASSURANCE PRODUCED structive examples of the extent to which this mode nf r«n •w. .rV„i., ,1. lis™ »;*,."' "7," ,',•," -;st>n the state of the case may be „,W„; ITl'etL' that conduct, as to other causes, which are shut Z^T view, when our attention is flxcl on the^L; , "'"' a;U.„cod for the purpose of the t,I„t '".rt;tTst s nctlv on our ^uar,! against transferring to 1T„1L" thmg merely contingent ami ,«culiar to the instmces rS," our reasoning is founded. And this is what an W„Tr a™^ ing requu'cs and enahles us t„ do. If ri-htlv „nl?.l i ■. p.,™, at ouce ,K.th in generalising l^lSi X ; .': Z acute perception at once of points of agreement and^^illL of BY DIFFERENT KINDS OF EVIDENCE. 13 difference. The acme of the philosophical power is displayed in the perfect co-operation of these two opposite i)roceedings. ^y■e must study to combine in such a way as not to merge real differences; and so to distinguish as not to divert the eye from the real correspondence." * It may be objected, that the minds of men are so differently constituted, and so much influenced by differences of experience and culture, that the same evidence may produce in different individuals very different degrees of belief; that one man may unhesitatingly believe an alleged fact, upon evidence which Avill not in any degree sway the mind of another. It must be admitted that moral certainty is not the same fixed and unvary- ing standard, alike in every individual ; that scepticism and credulity are modifications of the same princii)le, and that to a certain extent this objection is grounded in fact ; but never- theless, the psychological considerations which it involves have but little alliance with the present subject; the argument, if pushed to its extreme, would go to introduce universal doubt and distrust, and to destroy all confidence in human judgment founded upon moral evidence. It is as impossible to reduce men's minds to the same standard, as it is to bring their bodies to the same dimensions ; but in the one case, as well as in the other, there is a general agreement and similarity, any wide departure from which is instantly perceived to be eccentric and extravagant. The question is, not Avhat may be the pos- sible effect of evidence upon minds peculiarly constructed, but what ought to be its fair result with men, such as the gener- ality of civilized men are. It is of no moment in relation to criminal jurisprudence, that exact expression cannot be given to the inferior degrees of belief. The doctrine of chances, and nice calculations of probabilities, cannot, except in a few cases, and then only in a very general and abstract way, be api)lietl to human actions, which are essentially unlike, and dependent upon peculiarities of persons and circumstances which render it impossible to as- sign to them a precise value, or to compare them with a com- mon numeral standard ; nor are they cai)able in any degree, or under any circumstances, of being applied to actions which infer legal responsibility. In the common affairs of life men are frequently obliged, from necessity and duty, to act upon ' Hampden's Lectures, ut supra, 178. 14 ASSURANCE »Y OIFFEUKNT KINDS OF EVIDENCE. ; KHHay on tl.o II,u„a„ Un.lo,-stan,linK. bk. iv. o. xiv « ] IH'.uv, and fartln./ul T. A * ' • '"'^ ''"""^'"' ""^^ Hl.illinKs. and full proof. U,K>n tin , So ^ 'i ^rT'"""^ «ro«ndUvs«. constitute a the wlu.,.l. . 1'""^ 'Plo .t was that poor Calas was condemned to " Evidonco is that which nioducps h..li«f n i- * • •"'-' -ore easily oxponHu.dtnd '^^^^^^^^^^^ Behef js a snnple act of the weakness cannot, like those of h^t and c . „« ?"'"' f ''*"^"*^"' ''•• Boah. of an artilicial thernu>nu." T ,, ^ ^^H" "'"'' '^'"'^' P''""*^'^ ffltand distinguished hva soun.l .n i Ve ' '"'^^evpr. are naturally tlu.refore.the^.nnnon^:rZi'rt :;.•.';• Y"'*''""^^^"'^»"""^>'- ooncerniuK the force or credihiH v nf '^" '»"'"''""' •''^'"*^^'" "^ ''"'i'" the unhiase.! and unad d e.^te 1 " '* '"'T • ' '"■"''^' '""^'"^ "'*"» ^° Wilsons Works, vol. ^ o! 5 .og' sentiments and in,pressions of the jury." DIVISION II. CIRCUMSTANTIAL EVIDENCE. CHAPTER I. THE CHARACTERISTICS OP CIRCUMSTANTIAL EVIDENCE. On a superficial view, direct and indirect, or circumstantial, would appear to be dhtinet species of evidence; whereas these words denote only the different modes in which those classes ot evidentiary facts operate to produce conviction. Circum- stantial evidence is of a nature identically the same with direct evidence ; the distinction is, that by direct evidenck IS intended evidence which applies directly to the fact which forms the subject of m^imry^iho factum prolandum ; circum. 8TANTIAL EvinENCE is ccpially direct in its nature, but, as its name imports, it is direct evidence of a minor fact or facts in- cidental to or usually connected with some other fact as its accident, and from which such other fact is therefore inferred. By the (ieorgia code circumstantial evidence is defined as tliat which only tends to establish the issue by proof of various facts sustaining, by their consistency, the hypothesis claimed » A witness deposes that he saw A. inflict on B. a wound of which he instantly died ; this is a case of direct evidence ' B dies of poison; A. is proved to have had malice and uttered threats against him, and to have clandestinely purchased poison wrapped in a particular paper, and of the same kind as that which has caused death ; the paper is found in his secret drawer and the poison gone. The emdence of these facts is direct ; the tacts themselves are indirect and circumstantial, as applicable to the inquiry whether a murder has been committed, and » Ga. Code, 4^ 3748. 15 IG CHARACTERISTICS OF CIRCUMSTANTIAL EVIDENCE. Whether it ,v'us committed by A.i Circum«tnnfn,i • i consists in reasoning from iacts which are ZtT to eslbTh such as are conjectured to exist « ^ estabhsh So rapid are our intellectual processes that it is frequentlv not so,soem to be contemporanlT B„? t: l "^ ''""^ ^.71!!!'- ^ '' ''"^^ ^^ comparison with the result. ™„s expenenoe of the onUnary connection b'etLTS:k2™ until tho,e foot^ have il emSv,^ S^„'? ""T"/""' ""'' """«'»' '«•"» by actual oterv.ti«„„?Mrr„t!°rj''°''f**>'"»''''"»ked, either derived their J,„owledBetr«T„h .""^ '™'" '"'""' "''O have stantial evidence as a "snAoioc ^f*^^^^ ^^^ ^d.), p. 1069, defines circum- that where there fno saSri ' ""ev'T^*'! T'^^^^ ^°"«^«»^ '" "-^. which are assumed ^o ifv^ttd aro^^^^ 1 ''''''' '"'*' '^'^*'^'" ''"'^'^ fact are proved from thlpvW , ' °/ *^^" attendant on, the main this passage was criticised the .h^ % ' u ^'^^ ^^^"^ ^" ^'^^ language of word "aiumed." r^a; clteS^^^ *^ ^'^^ "«« «?«>« assume the existence offal wh'hw ^*. ""' authorized the jury to held that no such coLtu^tronl^Tr^* P'^^"'*- ^he court, however, ' ' -med " heing evid^" ^eS i^^e Lro;:,^ ^ ^"^^^ *^« ^^^ « People V. Kennedy, 33 N. Y. 141. «aimec(. li CIIAUACIKRISTICS OK CIRCUMSTANTIAL EVIDENCE. 17 and inferred facts, and independently of any process of reason in the particular instance.^ And the adjunct "presumptive" as applied to evidentiary facts, m^^;,* the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to partic ular inferences; for the facts may be indisputable, and vet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence Uitter, therefore, as genus and si)ecies. The force and effect of circumstantial evidence depend upon Its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembhng the method of demonstration by the reductio ad ahsurdum. But this is a part of the subject which will more appropriately admit of amplification in a subsequent part of 2 » Stark. Ev. (10th Am. Ed.) 839. CHAPTER II. PRESUMPTIONS. It is essential to a just view of our subject that our notions of the nature of presumptions should be precise and distinct Aprksumption is a probable consequence, drawn from facts (either certain or proved by direct testimony), as to the truth of a fact alleged, but of which there is no direct proof. It follows, therefore, that a presumption of any fact is an in- ference of that fact fron^ others that are known.J The word "presumption," therefore, inherently imports an act of reason- ing a conclusion of the judgment ; and it is applied to denote such facts or moral phenomena as from experience we know to be invariably or commonly connected with some other related fact. A wounded and bleeding body is discovered ; it has been plundered; wide and deep footmarks are found in a direction proceeding from the body ; or a person is seen run- ning from the spot. In the one case are observed marks of flight, m the other is seen the fugitive, and we know that guilt naturally endeavors to escape detection. These circumstances induce the presumption that crime has been committed ; the presumption is a conclusion or consequence from the circum- stances. The antecedent circumstances, therefore, are one thing, the presumption from them another and different one Of presumptions afforded by moral phenomena, a memorable in- stance IS recorded in the Judgment of Solomon, whose knowl- edge of the all-powerful force of maternal love supplied him with an infallible criterion of truth." So, when Aristippus, who had been cast away on an unknown shore, saw certain geometrical figures traced in the sand, his inference that the country was inhabited by a people conversant with mathe- v.V!:;it^Ti:J5a"' '"''"'• '''"''*^^ B.&Ald.l61. See ako Robert, a Domat's Civ. Law, b, iii. tit. 6. 18 PREHUMPTIONS. 19 matics was a presunjption of the same nature.* It is evident that tliis kind of reasonin<> is not peciil r to legal science, but is «. logical process common to every subject of human investi- gation. All i)resumption8 connected with human conduct are infer- ences founded upon the observation of man's nature as a sentient being and a moral agent ; and they are necessarily infinite in variety and number, differing according to the diversities of individual character, and to the innumerable and ever-changing situations and emergencies in which men are placed. Hence the importance of a knowledge of the instincts, affections, desires, and moral capabilities of our nature, to the correct de- duction of such presumptions as are founded upon them, and which are therefore called natural presumptions." Lm\L PRESUMPTIONS are founded upon natural presumptions, being such natural presumptions as are connected with human actions, so far as they are authoritatively constituted by the legislator or deduced by the magistrate.^ The civilians divided legal presumptions into two classes, mme\y,prcesumptione3 juris et dejure, SivAprmumptianea juris simply. Presumptions of the former class were such as were consid- ered to be founded upon the connection and relation so intimate and certain between the fact known and the fact sought, that the latter was deemed to be an infallible consequence from the existence of the first. Such presumptions were csi\\ed.prasump- tiones juris, because their force and authority were recognized by the law ; and d^jure, because they were made the founda- tion of certain specific legal consequences,* against which no argument or evidence was admissible ; while prcBsumptiones juris simply, though deduced from facts characteristic of truth, were always subject to be overthrown by proof of facts lead- ing to a contrary presumption. And our own Avriters, having regard to this classification, have considered presumptions of law under two heads, conclusive and disjmtable, or rebuttable.^ In matters of property, the principal modifications of > Gambiei's Introduction to the Study of Moral Ev. 55. * 3 Mascardus De Probationabus, Concluaio Mccxxvi. » Such, for instance, as that a child under seven years of age is incapable of committing a felony, * Menochius De Praesumptionibus, lib. i. q. 3. fi 1 Greenl. on Ev. (14th Ed.) § 14 et seq. |f'! U I 20 PRESUMPTIONS. which are matters of {msitivo inHtitution, the laws of every country have created artificial legal ])rosum])tion8, grounded upon rejisons of policy and couvf^nionce, to prevent social dis- cord, and to fortify private right. The justice and policy of such regulations have been thus olo(iuently enforced : " Civil cases regarded property ; now, although property itself is not, yet almost everything concerning property, and all its modifica- tions, is, of artificial contrivance. The rules concerning it become more positive, as connected with }x>8itive institutions. The legislator, therefore, always, the jurist frequently, may ordain certain methods, by which alone they Avill suff'er such mat- ters to be known and established ; because their very essence, for the greater part, depends on the arbitrary conventions of men. Men act on them with all the power of a creator over his creat- ures. They make fictions of law and presumptions of law {pra»umj)tionea juris et de jure) according to their ideas of utility, and against those fictions, and against presumptions so created, they do and may reject all evidence." ^ But in penal jurisprudence, man as a physical being and a moral agent, such as he is by natural constitution, and by the influences of social condition, is the subject of inquiry. Puni- tive justice is applied to injurious actions proceeding from malignity of purpose, and not to physical actions merely. It has been said with great force and accuracy that " where the subject is of a physical nature, or of a moral nature, inde- pendent of their conventions, men have no other reasonable authority than to register and digest the results of experience and observation ; " and that " the presumptions which belong to criminal cases are those natural and popular presumptions which are only observations turned into maxims, like atlagesand apophthegms, and are admitted (when their grounds are estab- lished) in the ])lace of proof, where better is wanting, but are to be always overturned by counter-proof." » Hence, therefore, a third class of presumptions, Avhich the civilians called _^(b«ww^ timis homims, because they were inferred by the sagacity and discretion of the judge from the facts judicially before him. Such presumptions are in fact natural presumptions simply, > 2 Burke's Works, 623 ; ed. 1834, by Holdsworth and Ball ; 3 Mascardus, ut supra, Conclusio mccxxviii, a Burke's Works, ut supra, 623 ; 8 Mascardus, ut supra, Conclusio PRESUMPTIONS. 91 deriving their force from that relation and connection which are recognized and acknowledged by the unsophisticated rea- son of all observing and reflecting men. Presumptions of every kind, to l)e just, must bo dictated by nature and reason ; and, except under special and peculiar cir- cumstances, it is impossible, without a dereliction of every rational principle, to lay down positive rules of presumption, whore every case must of necessity be connected with peculiar- ities of personal disposition and of concomitant circumstances, and bo therefore irretluciblo to any fixed principle. In criminal jurisprudence, therefore, arbitrary presumptions should be and indeed are, sparingly admitted ; and even when they are so, they occasionally work injustice.* On the conviction of the captain of a schooner for having naval stores in his possession, Mr. Baron Aldorson, in passing sentence of six months' imprisonment, said that he was satisfied he had become possessed of the stores in ignorance of the Act of Parliament, but that it was of the greatest importance that its provisions should be generally known, and expressed his hope that his good character would operate to obtain a mitigation of the sentence." It would be as unreasonable to subject human actions to unbending rules of l)re8umption, as to prescribe to the commander of a ship in- flexible rules for his conduct without any latitude of discretion in the unforeseen and innumerable accidents and contingencies of the tempest and the ocean. Where a peremptory presumption of legal guilt is not pernicious and unjust, it is in general at least unnecessary ; for, if it be a fair conclusion of the reason, it Avill be adopted by the tribunals, Avithout the mandate of the legislature. There may, no doubt, be cases where the provis- ions of the law are peculiarly liable to be defeated or evaded by subtle contrivances and shifts most difficult of prevention. But, even in such cases, legal presumptions can only be justifi- able where the proximate substituted fact of presumption is clearly of a guilty character and tendency per se, and would aftord, even in the absence of legal enactment, a strong moral ground of presumption indicative of the particular sect 1 Artificial presumptions can never be safely established as a means of proof m a criminal case. To convict an innocent man is an act of positive mjustice, which, according to one of the best and most humane prin- cip es of our law, cannot be expiated by the conviction of an hundred crim- nials who might otherwise have escaped. 2 Hale, 289. •^ Beg. V. Trannock, Liverpool Winter Ass., 1848. 22 PRESUMPTIONS. ! I I! of criramality intended to be repressed ;» and however explicit and conclusive may be the language of the legislature, the tri- bunals must by an inherent necessity give eifect to all such surrounding circumstances as tend to repel or modify the par- ticular presumption, or to create a counter-presumption of equal or superior weight. It is impossible to recall Avithout horror the sanguinary law » which made the concealment of the death ot an Illegitimate child by its mother conclusive evidence of murder, unless she could make proof, by one witness at least, that the chiki w,is born dea.1, and which too long disgraced our statute book; whereas in truth it affoi-ds no ground to warrant such a conclusion, since it is more natural and more just to attribute the suppression to a desire to conceal female sname, and to escape open dishonor. As evidentiary circumstances and their combinations are in- finitely varied, so also are the presumptions to which they lead • and a complete enumeration would in either case be impracti- cable. The wnters on the civil law have made a comprehensive and instructive collection of facts and inferential conclusions m relation to a va^t number of actions connected with legal accountability. But many things advanced by those laborious and elaborate authors have relation to a state of society, and to legal institutions and modes of procedure, wholly dissimilar from our own. The law of England admits of no such thing as the mm^pUna probatio, founded on circumstances of con VZt '"T'^'' ""I-^' ^^""^^ ^" "^^"^ ««""*"«« governed by the Koman law, was held to warrant the infliction of torture with a view to compel admissions and complete imperfect proof Hence the total inapplicability with us of the subdivisions of ^nd^cm, etgrui, adminicula, cmjectv^rm, duUa, and mspiciones, which are found in the writers of other countries whose juris- prudence IS founded upon that of Eome, subdivisions whicli appear to be arbitrary, vague, and useless. But it is manifest that, under legal institutions which admitted of compulsorv self-a.3cusation, in order to complete proof insufficient and in- conclusive in Itself, and Avhere the laws were administered by a single judge, without the salutary restraints of publicity and popular observation, an accurate and elaborate record of the multitudinous actions and occurrences which had been submitted 1 Traits dee Preuves, par Bonnier. 702 ; 8d Ed •'' Stat. 21 Jac. I. c. 87 ; repealed by 43 Geo. III. c. 68, § 3. PRESUMPTIONS. 23 to the criminal tribunals operated as an important limitation upon the tyranny and inconstancy of judicial discretion. It is calculated to excite surprise that arbitrary technical rules should ever have been adopted for estimating the force and effect of particular facts as leading to presumptions ; a matter purely one of reason and logic. It is probable, never- theless, that the attempt originated in the desire t6 escape a still greater absurdity. " Testis unus, testis nullus,^^ " unus testis non est audiendus,^^ were fundamental maxims of the text-writers on the Civil and Canon Laws, and of most ancient codes,* as they still are of judicial procedure in many parts of Europo.2 Since presumptions have not the same force as direct evidence, it was hence supposed to be required, as a logicctl sequence, that there should be a concurrence of three presump- tions, as the imaginary equivalent for the testimony of two ocular witnesses, where such testimony was not to be had. It is discreditable to the state of moral and legal science that these absurd and antiquated notions, worthy of the darkest ages of society, should have been countenanced and perpetuated in bhe legislation of several of the nations of Europe even to the pres- ent day .2 It is obvious that a single presumption may be con- clusive, and that an accumulation of many presumptions may be of but little weight. The simplest and most elementary dictates of common sense require that presumptions should not be numbered merely, but that they should be weighed accord- ing to the principles which are applied in estimating the effect of testimonial evidence. The prevalence of these fallacious methods of judging of the force of evidence explains the foundation of the practice, ab- horrent to every principle of judicial integrity, and which still extensively prevails, of condemning to a minor punishment persons who may be innocent, but against whom there may exist apparent grounds of strong presumption, though not that exact kind and amount of proof which the rules of evidence arbitrarily and unreasonably require ; as if a middle term in criminal jurisprudence were not an absurdity and self-contra- 1 Deut. xvii. 6, 7, xix. 15 ; Numb. xxxv. 30 ; 4 Michaelis on the Laws of Moses by Smith, Art. ccxcix. " Code HoUandais, 1838 ; Ckxie Penal d'Autriche ; Code de Baviere, and many other German Codes. 'Code Crf *nel de Prusae, 1805; Code de Procedure Criminelle d'Au- triche, 1858 ; ditto de Moddne, 1855. w- 1 i 24 PRESUMPTIONS. die ory.i An eminent foreign jurist well remarks, that " Jamais 1 nya eu plus de condamnations injustes que sous IWe d une jurisprudence qui d6fendait de prononcer la peine capT tale sur de simples indices." » ^ ^ The unreasonable stress which, in many countries whose cnmina^ procedure is derived from the Civil Law. sTaid upon heconfession of the accused, and the unwarrantab^^ means which are resorted to in order to obtain it, are the naturTre salts of arbitrary and unphilosophical rule^ of evidence which truth and frequently render it so difficult to obtain full lecal proof of crime, that a late eminent jurist and criming iure public, or to confess them, he need not fear a conviction.' Attempts have been made by our own judicial writers hnf wi^ no useful results, to classify presumpLns i^ a more ^^^^^^^ eral way under terms expressive of thei^ effect, as vioLKNfor KKOEssARv, PKoBABLK or oBAVK and suoHT.* But this arrangr^ mentis specious and fanciful rather than practical and S nor as it entirely accurate, since a presumpdon may be violent and yet not necessary.* A more precise and intellfgibleXst iication of presumptions is into violent or strong, a^ slight a JJZZlroJ'lt San" 0^?:^^? r r'/'^^ "^^^^^ ^^^^«' Berne, in 1843, a man a^,^d of Z,^ k ^- ^ ^"^ °°'"^°"- ^^ ^i.y^rs'i.pHsonnltr^^'S'.l^r^^ ^^ -*«-d to " Bonnier, ut supra, 677 becuse the prfaoner wouU nof^nZ IT "»»«'«■*■' ""-o' 'fUy proved * Menochius, ut supra, lib. i. 3 Nn« 1 51 q . 1? • j ^ Gabriel. 378; Best on Pr;8umptions '^ ' ' '' ^^' '^^ ^'•^"^'^«' P^^ •Judge Walworth, in Peoples. Videto. 1 Park C n m^ a- a . sumptions into tliree classes thus -t VinlL. T^ lu .^' '^'''''^^ P"*®" stances are those y^hicl^^^'llZ^lT 7 ^ """ ^^"^ *"^ ^•^«"'»- where the facts and clrcumsZl^a^l^r , ^,* ^"^""^^ ' ^^ ^''^''^blo, presented; 3. light or r^hXrHT T'""'' "'^^^ «^« f'^-* probably attend tfre fact L^r^ '""'' circumstances might presumptionTw ere a In^s^^^^^^^^^ Tf'?'' as an instance of a violent is found ranking out of tha ';"" m'"'^. '^'"^ '" '^ '•'^'"' '^"^ «"°«'-r Starlcie points oJtrtttTinTr,i::?.r'.Tc^^^^^^^^ ^". ^^^ T"^'-" and not properly presumptio, in the strict sense If^^X^'^J^^:!:^;; PRE8UMPTI0NS. 25 But it is impossible thus to classify more than a comparatively few of the infinite variety of circumstances connected with human actions and motives, or to lay ctovvn rules for distin- guishing presumptions of one of these classes from those of another; and the terms of designation, from the inherent imperfections of language, although not wholly destitute of utility, are unavoidably defective in precision. We can therefore only usefully apply these epithets as relative term.s ; and the effect of particular facts nuist of necessity depend upon the reality and closeness of the connection between the princi- pal and secondary facts, and upon a variety of considerations peculiar to each individual case, and can no more be predicated than the boundaries can be defined of the separate colors which form the solar bow. It is convenient, and may be advantageous even, in order to obtain a comprehensive view of the tendencies and effect of a number of circumstances, to group them together in their chronological relation to the faetum proband icm, as antecedent, CONCOMITANT, and subsequent; but to require the concurrence of these several kinds of presumption, as is the case in the criminal code of Bavaria, is an outrage upon all legal and philosophical principle. ' By various statutes, many acts are made legal presumptions of guilt, and the onus of proving any matter of defense is ex- pressly cast upon the party accused ; but, with these exceptions, the truth of every accusation is determined by the voice of a jury, upon consideration of the intrinsic and independent merits of each particular case, acting upon those principles of reason and judgment by Avhich mankind are governed in all other cases where the same intellectual process is called into exercise, unfettered by any obligatory and inflexible presumptions. The mexpediencyand ineflicacy of positive presumptions, as indica- tions of the criminality of intention, in which alone consists the essence of legal guilt, have been thus exposed with equal force and elegance by the htmcl of a master : « The connection evident that a witness who had never seen such a transaction before would as readily come to the proper conclusion, as one who had actually had ex- penence of similar facts ; and consequently that reason, and not any pre- (Toth An?ST' ""^ '™"*' association, supplies the inference." P. 753 ■ I ii iiiii 1 fii ,6 I M PRESUMPTIONS. I I! of the intention and the circumstances is plainly of such a nature as more to depend on the sagacity of the observer than on the excellency of any rule. The pains taken by the civilians on that subject have not been very fruitful ; and the English law-writers have, perhaps as wisely, in a manner abandoned the pursuit. In truth, it seems a wild attempt to lay down any rule for the proof of intention by circumstantial evidence." ^ 1 2 Burke's Works, ut supra, 638. In tliis chapter and in the preceding chapters of the volume, constant re- sort haa been had to the reasoning of Mr. William Wills. (See Preface ) With one exception no other legal autlior with whose works the writer is familiar has understood so thoroughly the true nature of evidence. It haa been thought that any attempt at an entirely new and original treatment of the matters thus far considered, must be, in comparison, weak and un- satisfactory. The exception referred to above is Mr. Justice Wilson, whose lecture on " The Nature and Philosophy of Evidence" is a masterpiece, and weU worthy the careful perusal of every lawyer or layman who has an am- bition to be well informed " concerning the sound and genuine sources and principles of evidence." Wilson's Works, vol. i, p. 457 et seq. The author cannot refrain from calling attention to the simUarity of the methods of these two distinguished philosophera CHAPTER III. RELATIVE VALUE OF DIRECT AND CIRCUMSTANTIAL EVIDENCE. The foregoing observations naturally lead to a comparison of the relative value of Direct and Indirect or Circumstantial Evidence ; an inquiry which becomes the more necessary, on account of some novel and questionable doctrines which have received countenance even from the judgment seat. The best writers, ancient and modern, on the subject of evi- dence, have concurred in treating circumstantial as inferior in cogency and effect to direct evidence; a conclusion which seems to follow necessarily from the very nature of the differ- ent kinds of evidence. But language of a directly contrary import has been so often used by authorities of no mean note, as to have become almost proverbial, and to require examina- tion. It has been said that " circumstances are inflexible proofs ; that witnesses may be mistaken or corrupted, but things can be neither." * " Circumstances," says Paley, " cannot lie." ^ It is astonishing that sophisms like these should have passed current without animadversion. The " circumstances " are assumed to be in every case established beyond the possibility ot mistake ; and it is implied that a circumstance established to be true possesses some mysterious force peculiar to facts of a certain class. Now a circumstance is neither more nor less than a minor fact, and it may be admitted of all facts that they can- not lie ; for a fact cannot at the same time exist and not exist : so that in truth the doctrine is merely the expression of a truism, that a fact is a fact. It may also be admitted that " circumstances are inflexible proofs," but assuredly of nothing more than of their own existence : so that this assertion is only a repetition of the same truism in different terms. Circum- 1 Burnett's C. L. of Scotland, 533. * Principles of Moral and Political Philosophy, b. vi. o. ix. 27 28 RELATIVE VALUE OP (1 ■'! stantial proof, it has been said, loses nothing by the lapse of time, and may preponderate over the recollection of a credible witness.1 And again, « Circumstantial evidence is often stronger and more satisfactory than direct, because it is not liable to delusion or fraud." > A distinguished statesman and orator has advanced in unquali fied terms the proposition, supported, he alleges, by the learned that «' when circumstantial proof is in its greatest perfection' that IS, when i* • s* abundant in circumstances, it is much superior to po.. 'oof."" Paley has said, with more of caution, that « coi. ..rrence of .veil-authenticated circumstances composes a stronger ground of assurance than positive testi- mony, unconfirmed by circumstances, usually affords » * Juries have been told that circumstantial evidence is as good as any other kind of evidence ; ^ that strong circumstances of suspicion may overcome positive evidence ;« and that circumstantial evi- dence IS often more persuasive to convince the mind of a fact than the positive evidence of a witness^ Mr. Baron Legge, upon a trial for murder, told the iurv that where a « violent presmnption mcessarU>/ arises froni circum- stances, they are more convincing and satisfactory than any other kmd of evidence, because/acts cannot lie.'' 8 Mr Justice BuUer, m his charge to the jury in Donellan's case, said " that a presumption which necessarily arises from circumstances is very often more convincing and more satisfactory than any other kind of evidence, because it is not within the reax)h and "ZTVir^"" abilities to invent a ..ain of circmnstances which shall be so connected together as to amount to a proof of guilt, ^vl hout affording opportunities of contradictiL a great part, if not all, of those circumstances " » It IS obvious that the doctrine laid down in these several passages is propounded in language which not only does not ' Ridley v. Ridley, 1 Cold. 333 ," 7^"f''^\?r' "!•' ^^^ ^- Thomas, 6 Law Rep. 64. » 3 Burke's Works, 634, ut supra. * Moral and Political Philosophy, b. vi. c. ix « West V. State, 76 Ala. 08. ' Nelson v. U. S., Pet. C. C. 335. 1 87 ^Th q/°*'°1' ^ ^^^- ^- ^- ^^^- ^°^ «^« The Robert Edwards, 6 Wheat DIRECT AND CIRCUMSTANTIAL EVIDENCE. 29 accurately state the question, but implies a fallacy, and that extreme cases, the strongest ones of circumstantial and the weakest of positive evidence, have been selectetl for the illustra- tion and support of a general position. " A presumption which necessarily arises from circumstances " cannot admit of dispute, and requires no corroboration ; but then it cannot in fairness be contrasted with and opposed to positive testimony, unless of a nature ecjually cogent and infallible. If evidence be so strong as necessarily to produce certainty and conviction, it matters not by what kind of evidence the effect is produced ; and the intensity of the proof must be precisely the same, whether the evidence be direct or circumstantial. It is not intended to deny that circumstantial evidence affords a safe and satisfactory ground of assurance and belief ; that it may often be as con- clusive upon the understanding as direct and positive evidence Avould be ; ^ nor that in many individual instances it may be superior in proving power to other individual cases of proof by direct evidence. But a judgment based upon circumstantial evidence cannot, in any case, be more satisfactory than when the same result is produced by direct evidence, free from sus- picion of bias or mistake. Perhaps no single circumstance has been so often considered as certain and unequivocal in its effect as the anno domini Avater-mark usually contained in the fabric of writing paper ; and in many instances it has led to the exposure of fraud in the propounding of forged as genuine instruments. But it is be- yond any doubt that issues of paper have taken place bearing the water-mark of the year succeeding that of its distribution, a sti cing exemplification of the fallacy of some of the argu- ments which have been remarked upon. The proper effect of circumstantial as compared with direct evidence was thus accurately stated by Lord Chief Baron Mac- donald : " When circumstances connect themselves closely Avith each other, when they form a large and a strong body, so as to carry conviction to the minds of a jury, it may be proof of a more satisfactory sort than that which is direct. In some la- mentable instances it has been known that a short story has been got by heart by two or three witnesses ; they have been consistent with themselves, they have been consistent with each - Law V. State, 33 Tex. 37 ; Jewett v. Baiiiiliig, 2i N. Y. 27 ; U, S. v. Cole, 5 McLean, 601 ; U. S. v, Gilbert, 2 Sunm. 19. 80 RELATIVE VALUE OP il I other, swearing positively to a fact, which fact has turned out a terwards not to be true. It is almost impossible fora variety of witnesses, spealang to a variety of circumstances, so t7col sort to rr . "T'" "P*^'^ ^ J"^^ ^y ^ fabrication of that sort, so that where ,t is cogent, strong, and powerful, where he witnesses do not coi tradict each other, or do not contradiS themselves, it may bk vidence more satisfactory than even direct evidence; and theie are more instances than one where that has been the case." i In another case the same learned judge said, « Where the proof arises from the irresistible force of a number of circumstances which we cannot conceive to be fraudulently brought together to bear upon one point, that is less fallible than under sorm eirmmstances direct evidence may BE. And It l)as been said that the law cannot declare in general which is the more satisfactory by any defined combi- nations of facts, so much does the question depend upon the minute and peculiar circumstances incident to each case« It has bcjn held improper to charge that direct testimony is al- ways the more satisfactory.* On the other hand, a charge that the law makes no distinction between circumstantial and posi- tive evidence," is faulty. It is too broad ; and, especially in the absence of any caution by the court as to the care to be used m applying such evidence, is it liable to mislead.^ Some instructive remarks on this subject were made in a recent cele- brated case by a learned judge of the New York Court of Appeals : ° " All evidence is, in a strict sense, more or less circumstantial ' whether consisting in facts which permit the inference of guilt or given by eyewitnesses of the occurrence ; for the testimony of eyewitnesses is, of course, based upon circumstances more or less distinct y and directly observed. But of course there is a difter- ence between evidence consisting in facts of a peculiar nature, and nence giving rise to presumptions, and evidence which is di- > Rex V. Patch, Surrey Spring Assizes, 1806. by ^rnl;.^'""''' '°' ^'^"°' ""'^ ^''''^' ''""^ ^'' '^'^- Shorthand Report • State V. Van Winkle, 6 Neb. a44, quoting Starkie. People V. Johnson, 140 N. Y. 350 ; 55 N. Y. S R 783 * Burt V. State (Miss. ) , 16 So. 348. « Remarks of Gray, J., in People v. Harris, 136 N. Y 423 See also remarks of Gibson. C. J., in Onm „ H"-nan 4 "a oaq - rt, difference being only in degree." - -^ • "-- "an, 4 . a. 2S9 : -• The Li , DIRECT AND CIRCUMSTANTIAL EVIDENCE. 81 reot as consisting in the positive testimony of eyewitnesses ; and the difference is material according to the degree of exactness and relevancy, the weight of the circumstances, and the credibility of witnesses. The mind may be reluctant to conclude upon the issue of guilt in criminal cases upon evidence which is not direct, and yet if the facts brought out, when taken together, all point in the one direction of guilt, and to the exclusion of any other hypo- thesis, there is no substantial reason for that reluctance. Purely circumstantial evidence may be often more satisfactory and a safer form of evidence, for it must rest upon facts which, to prove the truth of the charge made, must collectively tend to establish the guilt of the accused. For instance, if any of the material facts of a case were at variance with the probabilities of guilt, it would be the duty of the jury to give to the defendant the benefit of the doubt raised. A fact has the sense of, and is equivalent to, a truth, or that which is real. It is in the ingen- ious combination of facts that they may be made to deceive, or to express what is not the truth. In the evidence of eyewit- nesses to prove the facts of an occurrence, we are not guaranteed against mistake and falsehood, or the distortion of truth by exaggeration or prejudice ; but when we are dealing with a number of established facts, if, upon arranging, examining, and weighing them in our mind, we reach only the conclusion of guilt, the judgment rests upon pillars as substantial and sound as though resting upon the testimony of eyewitnesses." In truth, direct and circumstantial evidence ought not to be placed in contrast, since they are not mutually opposed ; ^ for evidence of a circumstantial and secondary nature can never be justifiably resorted to, except where evidence of a direct and, therefore, of a superior nature is unattainable." And when, in the nature of the case, direct evidence is not to be had there ought to be no hesitancy in resorting to circum- stantial evidence ; for, as has been pointed out, this kind of evi- dence may be as conclusive as the higher class. Circumstantial evidence must generally be relied on to establish adultery .^ Direct proof is not requisite to establish a conspiracy : it may be shown by inference from facts and circumstances.* Aud 1 Terr. v. Egan, 3 Dak. 119. a Stark, on Ev. (10th Am. Ed.) 874. • Cooke V. Cooke 152 111, 236, * Grimes v. Bowerman, 92 Mich. 458 ; Redding v. Wright, 49 Minn. 382. .u 1 \\ M i;i ' 'I i 82 RELATIVE VALUE OF fraud may be as properly established by circumstantial evidence, as by presenting the more positive and direct testimony of actual purpose to deceive. Indeed, in most cases circumstantial ])roof can alone bring fraud to light. Fraud is peculiarly a wrong of secrecy and circumvention, and is to be traced not in the open proclamation of the wrong-doer's purpose, but by the indications of covered tracks and studious concealments. The court or jury must be cautious in deducing the fraud.^ The argument founded upon the abundance of the circum- stances, and the consequent opportunities of contradiction which they afford, belongs to another part of the subject. While each of these incidents adds greatly to the probative force of circumstantial evidence in jparticxdar cases, they have clearly no connection with an inquiry into the value of circum- stantial evidence in the ahstract. However numerous may bo the independent circumstances to which the witnesses depose, the result cannot be of a different kind from, or superior to, that strong moral assurance which is the consequence of satis- factory proof by direct testimony, and for which, if such proof be attainable, every tribunal, every reasonable mind, would reject any attempt to substitute indirect or circumstantial evi- dence, as inadmissible, and as affording the strongest reason for suspicion and disbelief. It has been said that " though in most cases of circumstan- tial evidence there be a, possibility that the prisoner may be in- nocent, the same often holds in cases of direct proof, where witnesses may err as to identity of person, or corruptly falsify, for reasons that are at the time unknown." " This observation is unquestionably true. Even the testimony of the senses, though it affords the safest ground of moral assurance, cannot be implicitly depended upon, even where the veracity of the witnesses is above all suspicion. An eminent barrister, a gen- tleman of acute mind and strong understanding, swore posi- tively to the persons of two men, vhom he charged with rob- bing him in the open daylight. But it was proved by conclusive e\'idence that the men on trial were, at the time of the robbery, at so remote a distance from the spot that the thing was ira- iCooley's Elements of Torts, 191. And see Sturm v. Chalfant(W. Va.), 18 S. E. 451 ; Barndtu. Frederick, 78 Wis. 1 ; 11 L. R. A. 199 ; Gumberg v. Treusch (Mich.), 61 N. W. 872. a Burnet, C. L. of Scotland, 534. DIRECT AND CIRCUMSTANTIAL EVIDENCE. 33 possible. The consequence was that they were acquitted, and some time afterwards the robbers were taken, and the articles stolen found upon them. The prosecutor, on seeing these men, candidly acknowledged his mistake, and it is said gave a rec- ompense to the persons he prosecuted, and who so narrowly escaped conviction.* It is probable that he was deceived by the broad glare of sunlight, but there can be no doubt of the sin- cerity of his impressions. Many similar instances are upon record of the fallibility of human testimony, even as to matters supposed to be grounded upon the clearest evidence of the senses, and where the miscon- ception has related to the substantive matters of judicial in- quiry. It has been said with the strictest philosophical truth, that " proof is nothing more than a presumption of the highest order." " Bat these considerations, instead of establishing the superior efficacy of circumstantial evidence, seem irresistibly to lead to the conclusion that it is, dfortioH, more probable that similar misconception may take place as to collateral facts and incidents, to which, perhaps, particular attention may not have been excited. There is another source of fallacy and danger to which, as already intimated, circumstantial evidence is peculiarly liable, and of which it is necessary to be especially mindful. Where the evidence is direct, and the testimony credible, belief is the immediate and necessary result ; whereas, in cases of circum- stantial evidence, processes of inference and deduction are essentially in solved, frequently of a most delicate and perplex- ing character, liable to numerous causes of fallacy, some of them inherent, in the nature of the mind itself, which has been profoundly compared to the distorting po\^'er of an uneven mirror, impacting its own nature upon the true nature of things.8 Mr. Baron Alderson, upon a trial of this kind, said : " It was necessary to warn the jury against the danger of being misled by a train of c'rcumstantial evidence. The mind was apt to take a pleaeure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole ; and the more ingenious » Rex V. Wood & Brown, 88 St. Tr. 819. " Lord Erskine in the Banbury Peerage Case. 8 Novum Organum, lib. i. A ph. 41, 45 ; Best on Presumptions, 235; aad see 3 Bentham's Jud. Ev. b. v. c. xv. 8 iv. 8 1 84 VALUE OF DIRECT AND CIRCUMSTANTIAL EVIDENCE. tlie mind of the individual, the more likely was it, in consider- ing such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories, and necessary to render them complete." ^ Circumstantial evidence, therefore, must always be scanned with great caution." It may be objected that the foregoing observations tend to create distrust in all human testimony. While it must be admitted that the senses cannot be implicitly depended upon, it is certain that their liability to mistake may be greatly diminished by habits of accurate observation and relation. The general conformity of our impressions to truth and nature, and the universal opinion and practice of mankind, establish the reasonableness and propriety of our faith in testimonial evidence. The interest to which all controverted matters of fact give occasion is a manifestation of the preference in the human mind of truth to falsehood ; and, finally, the number of mistaken inferences from the testimony of the senses is incon- ceivably small, as compared with the almost infinite number of judgments which are correctly drawn from evidence of the kind in question. > Reg. V. Hodges, 2 Lewin's C. C. 227. •Dean r. Com., 82 Grat. 912. CHAPTER IV. THE SOURCES OP CIRCUMSTANTIAL EVIDENCE. In the present state of knowledge there can be little danger of mistake as to the legitimate subjects of human belief ; but how melancholy is the degradation of the human intellect ex- hibited in the records of superstition, imposture, and delusion, of enthusiasm and credulity, of judicial darkness and cruelty, in the pages of our own history, as Avell as in those of every other nation ! A profound ignorance of the laws of nature, an inability to account for the origin of evil, and to reconcile its existence with the Divine attributes, and the impulse to avenge ^vrong8 for which human institutions afforded no remedy, led to a uni- versal belief in the supernatural interposition of the Supreme Being on behalf of his injured moral offspring. Of this per- suasion, augury, divination, judicial combat, the various forms of trirtl by ordeal, the supposed intimations of truth cotveyed by means of apparitions and dreams, the bleeding of a corpse in the presence of the murderer, and his reluctance to touch it,* were thought to be so many manifestations ; while, with the wildest inconsistency, the belief was equally general in the ex- istence and influence of witchcraft, and other modes of demon- iacal agency over the minds and actions of men. The history of all nations affords lamentable memorials of judicial murders the natural consequences of such mistaken and degrading views. "Without adverting to other reasons, it is conclusive against all departure by the Supreme Being from the ordinary course of his administration, that so many instances of errone- ous conviction and execution havo occurred in all ages and in all countries. The course of external nature, and the mental and physical constitution of man, and his actions and moral and mechanical » Rex V. Standsfleld, 11 St. Tr. 1403, and Rex v. Okeman, 14 Id. 1384 86 ' 86 THE SOURCES OP CIRCUMSTANTIAL EVIDENCE. M |j 1 v i- i 1 i ! 1 1 1 : relations, are the only true sources of those facts which con- stitute circumstantial evidence. . In every inquiry into i,he truth of any alleged fact, as to which our means of judgment are secondary facts, there must exist relations and dependencies, inseparable from the principal fact, which will commonly be manifested by external appear- ances. No action of a rational being is indifferent or independ- ent ; and every such action must necessarily be connected Avith antecedent, concomitant, and subsequent conditions of mind, and with external circumstances, of the actual existence of which, though it may not invariably be apparent, there can be no doubt. A crime, so far as it falls within the cognizance of human tribunals, is an act proceeding from a w icked motive / it follows, therefore, that in every such act there must have been one or more voluntary agents ; that it must have had corresponding relations to some precise moment of time and portion of space ; that there must have existed inducements to guilt, prepara- tions for, and objects and instruments of crime; these, the acts of disguise, flight, or concealment, the possession of plun- der or other fruits of crime, and innumerable other particulars connected with individual conduct, and with moral, social, and physical relations, afford materials for the determination of the judgment. In a case depending on circumstantial evidence, the mind seeks to explore every source from which any light, how- ever feeble, may be derived ; and the jury in such a case should have before them every fact, however slight, Avhich may aid them in coming to a satisfactory conclusion.^ As jurors have become more capable of exercising their functions intelligently, judges, both in England and in this country, have struggled to open the door as wide as possible, and to let in all facts calculated to affect the minds of the jury in arriving at a correct conclusion.^ The nature of the case in many instances demands a greater latitude in the presentation of the evidence of circumstances than where a conviction is sought upon direct testimony .^ 1 Cooper V. State, 19 Tex. 449. See Noftsinger v. State, 7 Tex. Crim. App. 301 ; Hart v. State, 15 Id. 208 ; Preston v. State, 8 Id. 30 ; Bouldin v. State, 8 Id. 333; Howard I). State, 8 Id. 53; State w. Reno, 67 Id. 587 ; State v. Rhodes (N. C), 15 S. E. 1038 : Holmes v. Goldsmith, 147 U. S. 150 ; 87 L. Ed. 118. ■■* Jolinson V. State, 14 Ga. 55. ' Ballew V. State, 36 Tex. 98. THE SOURCES OF CIRCUMSTANTIAL EVIDENCE 37 It is of the essence of justice that no facts or circumstances shall be excluded from the jury which have relation to or bear upon the principal fact : not facts which owe their origin to subsequent events, but such as were of necessity connected Avith or could have had no existence except for the principal fact.* It is understood that when the case is obscure and guilt is to be established by conclusions or presumptions ai, ising from circumstances, and there is a doubt as to the admissibility of evi- dence, the doubt should be resolved in favor em vitm et lihertatis!^ The jury must be trusted to distinguish the significant from the unimportant facts in a case.' For instance, in an action to recover the value of a horse alleged to have been killed by the defendant, it was relevant and competent to show that the defendant had some motive as well as an opportunity to kill the horse, by showing that the horse was in the habit of trespassing, and did, immediately before he was killed, trespass upon the defendant's corn crop.* On a trial for the larceny of a horse, Avhere it was claimed that the defendant had taken the horse from the pasture-field, it having been shown that the horse was found in the posses- sion of the defendant, it was held proper to prove that the horse had failed to come to the stable at night, as was his habit, as a slight circumstance to be taken in connection with the other f act.^ On an indictment for burglary it is proper to be shown for the consideration of the jury, that the defendant knew there was money in the house.® Evidence tending to show defendant's presence near the scene of the homicide on the night it occurred is admissible on a trial for murder.^ On a trial for murder by drowning persons in a boat, evidence that defendant possessed an augur corre- sponding in size to holes bored in the boat a short time before the crime was committed, is admissible.^ But it would be impracticable to enumerate the infinite va- riety of circumstantial evidentiary facts, which of necessity are 1 People V. O'Neil, 6 N. Y. Cr. R. 274. » Pharr v. State, 9 Tex. Crim. App. 129. 8 People V. Bemis, 51 Mich. 422, * Gannon v. Stevens, 13 Kan. 447. * Johnton v. State, 47 Ala. 62. ' Stat« V. Kepper, 65 la. 745. ' Reynolds v. State (Fla.), 16 So. 78. * Nicholas v. Com. (Va.), 31 S. E. 364. ■^1 «8 THE SOURCES OF CIRCUMSTANTIAL EVIDENCE. ras various as the modifications and combinations of events in actual life. As was well said by an eminent philosopher and stetesman, " All the acts of the party, all things that explain or throw light on these acts, all the acts of others relative to the affair, that come to his knowledge and may influence him ; his friendships and enmities; his promises, his threats, the truth of his discourses, the falsehood of his apologies, pretences, and explanations ; his looks, his speech, his silence where he was called to speak ; everything which tends to establish the con- nection between all these particulars ; every circumstance, pre- cedent, concomitant, and subsequent, become parts of circum- stantial evidence. These are in their matter infinite, and can- not be comprehended within any rule, or brought under any classification." ^ »3 Burke's Worka, ut supra, 638. PART 11. INCULPATORY INDICATIONS. DIVISION I. INCULPATORY MORAL INDICATIONS. INTRODUCTOEY REMARKS. It is not necessary, in a work of this nature, nor, for reasons which have been explained, is it practicable, to set forth a complete enumeration of facts as invariably conjoined with authoritative presumptions. Nevertheless, in connection with the following statement of the general principles which deter- mine the relevancy and effect of circumstantial evidence, there will be noticed, by way of illustration, some particulars of moral conduct, which have been considered, by the tribunals which have had occasion to consider their effect, as leading to important and well-grounded presumptions. 89 Il W V H I III : |i CHAPTER I. MOTIVES TO CRIME. As there must pre-exist a motive to every voluntary action of a rational being, it is proper to comprise in the lass of moral indications such particulars of external relations as are usually observed to operate as inducements to the commission of crime, as well as such indications from language and conduct as more directly and unequivocally manifest a connection between the deed and the mind of the actor. In strictness the word " motive," though popularly applied to denote the external objects potentially calculated to act on the mind, ought to be limited to the designation of such objects only as have actually influenced the will, as the efficient causes of moral action. The metaphorical origin of this word has given rise to serious misconception as to the nature of moral and legal responsi- ility, upon which it is essential that our conceptions should be accurate. From its primary application to material force, an miaginary analogy has been supposed between the action of moral and physical agencies. In reality, however, there is no resemblance between the fatal and irresistible constraint of mechanical power and the influence of motives on the self- orginating will of an mteUigent and free agent. Man is not the passive subject of necessity or chance ; nor are his moral judgments merely the abstractions of logic ; on the contrary, he is endowed with instincts, passions, and affections, and above all with reason, and the capacity of estimating the quali- ties and tendencies of his volitions and actions, and with the power of choosing from among the various inducements, emo- tional and rational, whic^ are presented to him, the governing principles of his conduct.^ Mankind are moved by certain pas- sions, feelings, and motives. Under given circumstances men > 6 Stewart's Collected Works, 349 ; Cousin, Cours de I'Hist. de Philoso- phie, prem. ser. tome 4, Legon xxi' . 40 MOTIVES TO CRIME. 41 will £ict in a certain way, which is indicated as ascertained by experience and common sense.* These considerations constitute the foundation of moral and legal responsibility ; and it follows from them, that in all their important actions we naturally, reasonably, and safely judge of men's motives by their conduct, as we conclude from the nature of the stream the qualities of its source. The various springs by which human motives are supplied are frequently difficult to trace.2 It is indispensable, therefore, in the investi- gation of imputed guilt to look at all the surrounding circum- stances Avhich connect the actor with other persons and things, and may have operated as :notives and influenced his actions. And the prosecution may offer any evidence tending to prove a motive for the commission of the crime.^ On a trial for murder whatever tends to show defendant's feeling toward the person killed is admissible.* All testimony tending to show motive is material to the issue.* It is of the essence of moral weakness that it forms a mistaken estimate of present good, and a want of proportion will, there- fore, of necessity be found between the objects of desire and the means employed to obtain them. It is impossible to see the operations of ' ■ e human mind. The characters, instincts, and intents of persons differ so, that what might be an adequate motive for one, for a certain act, will not be for another.^ The motive need not be commensurate with the crime.' The as- sassin's dagger may be put into requisition for a few pieces of gold, and the difference between that and other inducements to crime is a difference only of degree. Indeed, tried by the strict rules of morality, there can be no such thing an an ade- quate motive to the commission of crime. The common inducements to crime are, the desire of reveng- ing some real or fancied wrong ; ^ of getting rid of a rival ^ or 1 Ludlow, P. J., in Com. v. Cullen, 36 Leg. Int. 252. a Hunter v. State, 43 Ga. 483. < estate V. Lackin, 11 Nev. 314 ; Hart v. State, 15 Tex. App. 203. * People V. Kern, 61 Cal. 244 ; Marler v. State, 67 Ala. 55 ; State u.Gooch, 94 N. C. 987 ; WeUar v. People, 30 Mich. 16. sPraser v. State, 55 Ga. 325 ; McCue v. Com., 78 Pa. St. 185. •Platt, J., in People v. Rubenstein, New York Oyer and Terminer, cited in Rice on Crim. Ev. § 844. ' Whart on Homicide, § 670 a ; Cheverins v. Com., b • irim. L. Mag. 760. 8 Kelly V. State, Dean v. Com., Breedlove v. State, and Fraser v. State, infra. » Hunter v. State, infra. ; 42 MOTIVES TO CRIME. an olmoxious connection ; i of escaping from the pressure of pecuniary or other obligation or burden ;* of obtaining plunder or other coveted object ;« of preserving reputation, either that of general oharaoter, or the conventional reputation, of pro- fession or sex ; * or of gratifying some other selfish or malig- nant passion. That there has been an indictment found against the defend- ant's brother for theft from the deceased, is a fact proper to be shown.* That the defendant was indicted and punished at the instance of the deceased is material as it goes to show a motive for anger expressed by the defendant.^ In a recent case where the defendant was tried for the murder of A., who was shot from ambush while sitting on the veranda of a house with one K., and the theory of the prosecution was that the defendant had intended to shoot K., to connect the defendant with the crime and support this, it was proved that the defendant had heard that K. had committed adultery with the defendant's wife.' In another case, the defendant, whose wife was dead, had cohabited illicitly with one of his step-children and had sought to marry her. The children had all refused to live with him Iwiger, and had been sheltered by the deceased. The defend- ant had made many, but futile, efforts to get them back. These facts were admitted in evidence.^ In a recent case, where the prisoner was on trial for the murder of the watchman of a mill in which the defendant had formerly been employed, the deceased was found lying in his blood, with his skull crushed in, on the floor of the mill, and beside him a pair of heavy tongs which were in constant use in the mill, and with which the wounds had evidently been inflicted. The theory of the prosecution was that the prisoner, while in the mill at night for a criminal purpose, had been » state V. Moxley, People v. Hendrickson, Shaw v. State, State v. Jones, State V. Kennedy, McMeen v. Com., Pate v. State, Siebert v. People, Mack V. State, State v. Watkina, People v. Kesler, Wharton v. State, infra. ' State V. Rainsbarger, People v. Hendriokeon, infra. • Roe V. State, Marion v. State, infra, * State V, Posey, Cheverins v. Com., infra. •Coward v. State, 6 Tex. Grim. App. 59. •Kelly V. State, 49 Ga. 12. And see Carter v. People (111.), 87 N. E. 344. See also Dean v. Com., 82 Grat. 912. uicTruiure v. oiaiu, TiX} leX. iVpp. 440. ' Fraser v. State, 55 Ga. 835. MOTIVES TO CRIME. 4Z overtaken by the watchman going his rounds, and to shield himself from detection had killed the latter. And it was per- mitted to be shown that the accused had been recently dis- charged from the mill, and that he made threats of vengeance, and that he had said that if the machinery got out of order he Avas the only person in town who could fix it.* It may be shown in the trial of one accused of murder that the defendant believed that a charge of larceny brought against him by the deceased was the cause of his losing his position.* So, also, that the defendant is the paramour of a woman whom the deceased assaulted in the defendant's presence.^ On the trial of accused for the murder of a slave circum- stances were allowed to be proved, as showing a motive for the crime, which tended to show that, a short time previously, the accused had procured the murder of his wife by the slave.* In a trial for the murder of a young woman, a letter by the prisoner to the deceased describing the seduction of a woman was admitted, as tending strongly to show that the accused was the seducer of the deceased, where it appeared that the deceased was pregnant at the time of her death.* Perhaps no motives are more difficult to trace than those having their fountainhead in envies and jealousies which agi- tate the human heart. Where the defendant was on trial for the murder of the accepted suitor of a young woman who had rejected the defendant, for the purpose of showing motive upon the part of the accused, it may be shown that there was a rumor of the approaching marriage of the deceased to the young woman, and that the rumor reached the ears of the defendant.^ Where one is accused of the murder of a wife, the marital relation affords a strong presumption of his innocence. In the absence of proof to the contrary, it is to be presumed that he loves her and will protect her. In a case where t 9 Conn, 47. « People V. Kesler, 3 Wheel. Cr. Caa. 18. ' if 4« MOTIVES TO CRIME, tween the defendant and his Avife, and he had declarea amone other things that " lie did not like her," and " would not live with her/' The defendant introduced evidence showing that the marital relations were resumed a short time before the killmg, and that they were living together at that time. There was no proof of the extent or bouajide of the allegetl reconcil- iation. These fjicts were relevant as tending to jirove a paci- flcation, entirely oblivious of past vindictiveness. But the jury were not compelled to believe that such was the case, and an instruction was properly refused to the effect that, " although they might believe from the evidence that, before the killincr the defendant and his wife sejmrated, yet if they believed that before the kilhng they had become reconciled, and were living together, then the law presumes there was no malice or ill-will between the parties at the time of the killing from the fact of such separation and statements; and the State cannot rely on this tact and statement to show a motive in the defendant to kill his Avife, if he did kill her." i On the trial of a husband for the murder of his wife, it raav be sHown that pecuniary expectations, which the defendant en- tertained by reason of the marriage, hud been disappointed » ibere are many instances of cases where the presumable motive has been to obtain the insurance on the life of the de- ceased.8 It may be shown as a motive for the killing that deceased was a burden on defendant, and that deceased carried lite insurance which defendant considered to be pledged to him to reimburse him for advances.* Where the defendant was on trial for having set fire to the house in which she lived, it was suggested as a motive that she wished to realize the insurance on her furniture. To negative such a motive evidence was ad- mitted that the defendant was in easy circumstances and never in want of money .^ It was lately held competent to prove that shortly before the accused and the deceased left the town where the deceased was last seen alive, the accused had purchased from the deceaseil personal property, which, by the terms of a contract entered' » Wharton v. State, 73 Ala. 366. "People V. Hendrickson, 1 Park. Cr. R. 406. « Roe V. State, 25 Tex. App. 33. ♦ State V. Rainsbarger, 74 la. 196 539, J^f.^' ^'■"'*' * *'• * ^- 822. And see Farmers' Ins. Co. v. Garrett 49 Micb. 2s9. " ""' " MOTIVES TO CRIME. 47 into between thorn, was to contmue in the ]K)sses8ion of decuased until paid for by the accuse*! ; and that a few days after their departure together the accused returned alone with the prop- erty.^ Whei-e the theory of the State was that the murder was coiiimittetl to enable the prisoner to get his brother's prop- erty, evidence of their business and social relations for a rea- sonable time before avus held admissible.* When the case depends on circumstantial evidence, and the circumstances point to any particular person as the criminal, the case against him is much fortilied by proof that he had a motive to commit the crime.^ Says Roscoe, sj)eaking of the crime of murder : " It is but reasonable, in a case of doubt, to expect that some motive, and that a strong one, should be as- signed as an inducement to commit an act from which our nature is abhorrent, and the consequence of which is usually so fatal to the criminal." * It is always a satisfactory circum- stance of corroboration when, in connection with convincing facts of conduct, an apparent motive can be assigned. But, as the operations of the mind are invisible and intangible, it is impossible to go further; and it must be remembered that there may be motives which no human being but the party himself can divine. And, therefore, the prosecution is never bound to establish an adequate motive,^ nor, indeed, any mo- tive at all, for the alleged crime. The fact of homicide, for instance, being established, the inability to discover the motive does not disprove the crime. Nor must undue importance be attached to external circum- stances supposed to be indicative of guilty motive, for there are few men to whom some or other of the forms of crime may not apparently prove advantageous. Neither ought the exist«^nce of such apparent inducements to supersede the necessity or the sam : amount of proof as would be deemed necessary in the absence of all evidence of such a stimulus. Suspicion, too readily excited by the appearance of supposed inducement, is incompatible Avith that even and unprejudiced state of mind which is indispensable to the formation of correct and sober judgment. While true it is that frequently " imputation and » Marion v. State, 20 Neb. 233. ''Clough V. State, 7 Neb. 320. See Murphy r. People, 63 N. Y. 5©0. •RaRI.^.T in Piorurin 1, Piu%.,l.> TOM \7 /(on * Roscoe, Cr. Ev. (8th Am. Ed.) 943. 6 McLain v. Com., 99 Pa. St. 88. -T'Tr M t \H 48 MOTIVES TO CRIME. strong circumstances . . . lead directly to the door of trutli," itise<|iially true that entirely to penetrate the mind of man is out of human ]K)\ver, and that circumstances which apparently have j)resented |)ovverful motives, may never have acted as such. Who can say that some " uncleanly apprehension," some tran- sient thought of sinister aspect, in the dimness of moral light inomontarily mistaken lor good, may not float unbidden across the purest mind 'i And how often is it that man has no control over circumstances of apparent power over his motives? It follows from the foregoing remarks that evidence of collat- eral facts which may appear to have presented a motive for a particular action deserves pe?' se no weight. With motives merely the legislator and the magistrate have nothing to do ; ACTIONS, AS THE OBJECTS OR RESULTS OK MOTIVES, are the Only legitimately cognizable subjects of human law. Actus nonfacit ream nisi mens sit red is a maxim of reason and justice not less than of positive law.^ Motives and their objects differ, it has been remarked, as the springs and wheels of a watch differ from the pointing of the hour, being mutually related in like manner.'* But such evidence is most pertinent and important when clearly connected with declarations which demonstrate that the particular motive has passed into action, or with in- culpatory moral facts which it tends to explain and co-ordinate, and which would otherwise be inexplicable. But care must be exercised not to open too wide a field fcJr extrinsic explanation. To let in collateral facts the court must be able to perceive that they tend naturally to elucidate the act or intent charged. Each case must depend, in a large degree, on its own attending facts and circumstances.^ The particulars of external relation and moral conduct Avill in general correctly indicate the character of the motive in which they have originated. On the other hand, the entire absence of surrounding circumstances, which on the ordinary principles of human nature may reasonably be supposed to have acted as aii inducing cause, is justly regarded, whenever upon the general evidence the imputed guilt is doubtful, as affording a strong presumption of innocence.* It occasionally happens that actions of great enormity are > 3 Inst. 107. * Hampden'a Lect., ut supra, 241. » 1 Rrirk. Dig. ."iOS, 8 82.S et sea. Durett v. State. 72 Ala. 404. ♦ People V. Rubenstein, supra. MOTIVES TO CRIME. 49 committed, for which no ai)parent motive is discoverable. It must not be concludc^d, however, that no pre-existent motive has ojjcrated ; and upon principles of reason and justice essential to common security, unless it is clearly and indubitably shown that the actor is berelit of reason and moral power, he is held to be legally accountable for his actions.^ Crim .s the most horrible are often committed without apparent motive save to gratify an inherent passion for wickedness which mocks at social restraint and recklessly defies the laws of God and man. While in cases depending upon circumstantial evidence the ex- istence or want of motive is sometimes of vital importance, yet the indication of the law is not made to rest upon so narrow and frail a foundation, nor can the demands of justice be met and foiled by an averment that no motive for the prisoner's conduct has been made to appear.* But a sense of injury, and long-cherished feelings of resentment, may ultimately induce a state of mind independent of self-restraint, and render their victim the sport of ungovernable impulses of passion ; » but the distinction is evident and just between such actions as are the consequences of a voluntary abdication of moral control, and actions committed under the over-mastering power of a delusion of the imagination, which, though groundless, operates upon the mind with all the force of reality and necessity.* Lord Chief Justice Campbell, on a trial for murder, thus summed up the doctrine under discussion : " With respect to the alleged motive, it is of great importance to see whether there was a motive for committing such a crime, or whether there was not;^ or whether there is an improbability of its having been committed so strong as not to be overpowered by positive evidence. But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from the experience of criminal courts, that atrocious crimes of this sort have been committed from very slight motives ; not merely from malice and re- ^ state V. Dill, 18 Atl. 763. 2 People V. Robinson, 1 Park. Cr. R.655; Preston v. State, 8 Tex. Crim. App. 30. « Rex V. Earl Ferrers, 19 St. Tr. 885. «Rexu. Hadfield, 27 St. Tr. 1281 ; Rex v. Martin, York Sp. Ass. 1831, Shorthand Rep. by Fraser ; Rex v, Oflford, 5 C. & P. 168. 6 Lake v. People, 1 Park. Cr. R. 495. !i!< 50 MOTIVES TO CRIME. ■ vr: venge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties." * It is a general rule for the interpretation of conduct as in- dicative of motives, demanded by social security and founded on substantial justice, that every man shall be held to have intended, and therefore to be legally accountable for, the natural and probable consequences of his actions ;« and no one can be permitted to speculate with impunity upon the precise extent to which he may securely carry his mischievous inten- tions, the reality and degree of which it is alike impossible to determine. If, therefore, the motive have been to commit, not the particular crime, but another of equal legal degree, then the maxim applies that in criminalihua mfficit generalis malitia intentionis mm facto paris gradus? "All crimes," says Bacon, "have their conception in a corrupt intent, and have their consummation and issuing in some par- ticular fact, which, though it be not the fact at which the- intention of the malefactor leveUed, yet the law giveth him no advantage of the error, if another particular occur of as high a nature. Therefore, if an empoisoned apple be laid in a place to empoison J. S., and J. D. cometh by chance and eateth of it, this is murder in the principal, that is actovy and yet the malice in indvviduo was not against J. D." * On an indictment for disposing of a forged bank-note with intent to defraud, it was held, that the jury ought to infer an intent to defraud the person who would have to pay the instrument if genuine, although from the manner of executing the forgery, or from that person's ordinary caution, it would not be likely to impose upon him, and although the object was general to defraud whoever might take the instrument, and the intention of defrauding the person in particular who would have to pay the instrument if genuine, did not enter into the prisoner's contemplation.^ 1 Reg. V. Ptilmer, Shorthand Repcrt, 308. 2 Rex V. Fariington, R. & R. 209 ; Rex v. Harvey, 2 B. & C. 257 ; Rex v. Dixon, 2 M. & S. 11 ; Hill v. Com., 2 Grat. 594. Uttering a forged stock- receipt to a person who employed the prisoner to buy stock to that amount and advanced the money, is sufficient evidence of an intent to defraud that person ; and the oath of the person to whom the receipt was uttered, that he believes the prisoner had no such intent, will not repel the presumption. Rex V. Sheppard, R. & R. C C. 109. = Bacon's Max. Reg. xv. * Bacon's Max. Reg. xv. Rex v. Mazagora, R. & R. C C. 291. MOTIVES TO CRIME. 61 "In capital cases," declares the high authority quoted above, « in favorem vitoB, the law will not punish in so high a degree,' except the malice of the will and intention appear."* The malice necessary to constitute the crime of murder is not con- fined to an intention to take away the life of the deceased, but includes an intent to do any unlawful act which may probably end in depriving the party of life.a The malice prepense, says Blaxjkstone, essential to murder, is not so properly spite or malevolence to the individual in particular as an evil design in general.8 A blow with a dangerous weapon calculated to pro- duce, and actually producing death, if struck without such prov- ocation as reduces the crime to manslaughter, is deemed by law malicious, and the killing is murder.* But nevertheless the rule under discussion has been extended beyond all reasonable ap- plication, as where two p rsons were convicted of lying in wait and slitting the prosecutor's nose with intent to maim and dis- figure, an offence then capital by the statute 22 & 23 Car. II., c. 1, though the real intention was to commit murder in order to obtain an estate, an oflfence not capital, and there was no such special intent as the statute required;*^ a case which, as extending a criminal law by equity, is inconsistent with the general principles of jurisprudence, and with the spirit of many later cases.^ ^ Bacon's Max. Reg. vii. «Roscoe, Cr. Ev. (8th Am. Ed.) 954; State v. gjhoenwald, 31 Mo. 147; Maher v. People, 10 Mich. 212. a 4 eijj. Com. 199. * U. S. V. McGhee, 1 Curt. C. C. 1. 'Rex v. Coke, 16 St. Tr. 54. « 4 Camp. Lives of the Lord Chancellors, 601 ; Rex v. Bell, Foster's Dis- courses on Crim. L. App. ; Rex v, CarroU, 3 East P. C. 400 ; Rex v. Duffln, R. & R. 365. ! }■ • CHAPTER II. THE INTENTION, AND DECLARATIONS AND ACTS INDICATIVE THEREOF. Section I. Consideration of the Principles Governing Proof of the Intent. Though malice is not presumed merely from the fact of killing, yet the circumstances attending the homicide may be such as to give rise to an inference of malice.^ Intention, delib- eration, and premeditation are operations of the mind, and their existence must be determined from the facts and circum- stances of the case. The inference is one of fact only and for the jury .2 Direct proof is not required, nor can it be obtained. The intent may be inferred from what the party does and says, and from all the circumstances and acts accompanying the crime. The character of the evidence is never deemed to im- pair the vitality of the proof .^ On a trial for homicide any facts may be proved which tend to show the intent with which it was committed* But in order that collateral facts may be admitted, the court must be able to perceive that they tend naturally to elucidate the intent charged.^ No strict rule ca,n be laid down as to the character or amount of evidence neces- sary to show the existence of a deliberate and premeditated 1 U. S. V. Armstrong, 3 Curt. C. C. 446 ; U. S. v. Mingo, 2 Curt. C. C. 1 ; Com. V. Hawkins, 3 Gray, 463. * Perry v. State, 44 Tex. 473 ; Murray v. State, 1 Tex. Crim. App. 417 ; People V. Conroy, 33 Hun, 119 ; People v. Kelly. 35 Hun, 395. » Booth V. Cora. 4 Grat. 535 ; Padgett v. State, 103 Ind. 550 ; State V. Woodard, 50 N. W. 885 ; State v. Teeter, 69 la. 717 ; State v. Munco, 13 La. Ann. 635 ; State v. Maxwell, 43 la. 308. ♦ Austin V. Stftt^, 14 Ark. 555. 6 1 Brick. Dig. § 823 et seq. ; Durett v. State, 73 Ala. 434. 52 THE INTENTION, AND DECLARATIONS AND ACTS. 53 design to effect death. Each case must depend on its own facts and circumstances. One case may be proved by a long train of circumstances and events ; another by a few sharp and startling facts ; and in another the jury may find in the man- ner in which the killing was done, the weapon used, the num- ber of blows and wounds, the time and place where effected, the disposition of the victim, everything requisite to satisfy them of the presence of deliberation and premeditation.^ Section II. Threats. It is very common with persons who have been engaged, or are about to engage, in crime, to make obscure or mysterious wlusion to their criminal acts or purposes, or to boast to others Whose standard of moral conduct is the same as their own, of what they have done or will do, or to give vent to expressions of revengeful feelings 2 or of malignant satisfaction at the accom- plishment or anticipated occurrence of some serious mischief. Such declarations or allusions are of great moment when clearly connected by independent evidence with some anterior or subsequent criminal action. And evidence of threats, gen- eral or special, or verbal indications of a similar nature, of the intended commission of a wrongful or criminal act, is ad- missible in criminal cases.^ When an act is of such a nature as not necessarily to imply a guilty intention, and such intention is the specific point in issue, then the evidence of declarations by the party, or of collateral circumstances, may be of the last importance, as explanatory of his motives and purposes. In regard to declarations referring to former and existing fac5, Lord Chief Justice Eyre said that " Such declarations are the explanation and connection of those facts which serve to make them intelligible. What a prisoner has said respecting a particular fact is admissible evidence, not in the nature of ' See opinion of the court in People v. Walworth, 4 N. Y Cr R 355 See nlRo R, r, Jones, 9 C. & P. (38 E. C. L.) 2o8. ^ Heron v. State, 22 Fla. 86. » Culbcrtson v. Hill, 87 Mo. 553 ; Carver v. Heskey, 79 Mo. 509. t: t It 54 THE INTENTION, AND DECLARATIONS a confession, but in evidence of the particular fact ; and such declarations are, therefore, receivable in all cases what- ever, in order to explain and to establish the state of any matter of fact which is in dispute or the subject of inquiry before a jury." ^ After one was indicted for an assault with intent to kill, and before the trial he said to the injured party, '• I'll get you yet," this was held admissible as manifesting the defendant's state of feeling, not only at the time of the menace, but also at the time of the assault.^ A prisoner on trial for murder returned to the place of the ai sault about half an hour after the engagement, and declared that he had " come to kill," and this was admitted on the trial as tending to repel the idea that the fatal blow had been struck in a sudden transport of passion.3 In Stewart's case * evidence was admitted that the accused had said that he " 1 ated all of the name of Campbell." In a recent case there a\ as proof of a quarrel a week before the mui- der, and remark by the defendant, that deceased " had treated him that way tAvo or three times, but that she could never do it again." ^ In another case,^ the defendant and deceased, both negroes, had a difficulty a couple of days before the killing, when the defendant said that he " had killed two or three niggers and could kill another." In State v. Dickson,^ the defendant had said, " lie shall not eat my bread and m?.at much longer." On a trial for the murder of a policeman, a witness was allowed to testify that he had heard the defendant say, two years before, that he " would kill any policeman who tried to arrest him again." ^ Very often the threat is accompanied by an exhibition of, or reference to, a weapon which later on becomes the instrument of the crime. In Benedict v. State,^ the prisoner, exhibiting a knife with Avhich he was charged Avith subsequently commit- ting the murder, said it would probably be the death of some 1 Rex V. CroBsfield, 26 St. Tr. 215. « Walker v. State, 85 Ala. 7. « McManus v. State, 36 Ala. 285. And see Coverus v. Jones, 61 N. H. 653. * 19 St. Tr. 100. 6 Johnson v. State, 18 Tex. App. 385. » Jackson v. State, 9 Tex. App. 114. 7 73 Mo. 438. ' State v. Grant, 79 Mo. 113. » 14 Wis. 459. And see Whittaker v. Com. , 13 Ky. L. Rep. 504 ; and People V. Palmer, 99 Mich. 580, where the deceased had not only uttered threats, but had exhibited a loaded revolver wrhich he had recently purchased. AND ACTS INDICATIVE THEREOF. 56 person before the week was out, as he " had made up his mind to kill a man." But threats made in general terms, by the defendant, some time before the homicide, and which applied to the members of his own family, if to any one in particular, were wrongly admitted when the deceased and the defendant had been on friendly terms till the fatal meeting.^ Threats made by the defendant against persons other than the one for whose murder the defendant is on trial are not, as a general rule, admissible.* Threats against a particular person with whom the accused had a quarrel, might not have any weight with a jury as to the malice or intention to kill another person with whom, at the time, he had no quarrel, and whom he afterwards killed.^ On a trial where the deceased was the proprietor of a news- paper, in which had appeared an article offensive to the defend- ant, it was held not proper to admit evidence of a previous threat by the defendant to *' get even " with the person whom he, at the time, mistakenly supposed to be the author of the article.* But where one had killed an officer while resisting arrest, the prosecution was allowed to show that the defendant had said that he expected to be arrested by another officer, and, exhibiting a revolver, sa'd that he would let him " hear from this," the threat being not so much against the latter officer as against any one who should attempt to make the arrest.* And where a conspiracy has been proved to kill the deceased and others, threats made against the latter are admissible on the trial for the murder of deceased alone.^ And on the trial of one who was a member of a mob by whom the deceased was killed, threats made after the killing, against another person for whose destruction the conspiracy was formed, were admissible to show the character and object of the conspiracy.'^ Threats made by the defendant against a railroad company are admissible on the trial of an indictment for an assault on an employe of the company. " It is a matter of common knowledge," said Judge WiJker, in a case 1 state r. Crabtree, 111 Mo. 136. a carr. v. Stat:, 2& Neb. 749. • Abemethy v. Com., 101 Pa. St. 822. • People V. Powell, 87 Cal. 348 ; 11 L. R. A. 75. $ Pa1.v%£»** •• 'Dvw>*^.1.<« lOQ Til Qtza ^ xtviiiir~T t', i trOpic» ivr_T in, t?ai/. • Slade V. State, 29 Tex. Crim. App. 881. f State V. McCahiU, 72 la. IIU If I I t 56 THE INTENTION, AND DECLARATIONS of this sort, " that the business of raib-oad companies is con- ducted by their employes. If threats are made against such a company, it is for the jury to determine from the character of the threats whether the employes of the company come within then* scope. The company and its employes are in a measure identified, and the carrying out of a threat against the company may necessarily involve peril to or an assault upon its employes." ^ It may be shown that one who had made threats was intoxi- cated, that the jury may judge whether the threats were the deliberate words of a vicious man, or the coarse and idle language of a drunken man." But the fact of intoxication, though it may lessen the weight which the jury will attach to the threat, win not render evidence of the language incompetent.^ Thp remoteness of threats against life from the time of the homicide is a circumstance to be considered in determining the -»'-eight and effect to be assigned them.* But the remoteness or nearness of time as to threats pointing to the act subse- quently committed makes no difference as to the competency of the testimony .6 And in the various cases cited hereto, threats made respectively one month,^ four months,'^ eight months," and three years,* before the conunission of the offence charged, have been admitted for the consideration of the jury. And in a late case, where there was other evidence of long- continued hostility, threats of the accused to shoot the deceased, made thirty years before the homicide, were admitted.io In one case, where threats by the prisoner against the life of the deceased, during a period of two years, Avere admitted, it was well said by the court that long-continued animosity and ill-will are better evidence of a state of mind Avhich would 1 Newton v. State, 92 Ala. 33. " People V. Eastwood, 14 N. Y., 562. « Smith V. Com., 86 Ky., June 2, 1887. . * Eluott, J., in Goodwin v. State, 96 Ind. 550 ; 4 Crim. L. Mag. 565. » Carver v. Heskey, 79 Mo. 509 ; State v. Hoyt, 46 Conn. 330 ; State v. Grant, 79 Mo. 113; Keener v. State, 18 G;., 194; State v. Ford, 3 Strohh. 617 ; State v. Bradley (Vt.), 32 Atl. 238 ; 64 Vt. 460. • State V. Campbell (S. C), Jan. 7, 18Pi ; People v. Lyons, 17 N. E. 791. ' Pate V. State, supra. « State v. Bradley, 64 Vt. 466. ^ F< fcerson v. Toner, 80 Mich. 55C\ i'' Goodwin v. State, supra. AND ACTS INDICATIVE THEREOF. 67 ripen into deliberate murder than the hasty ebullition of passion.* But evidence of such language cannot dispense with the obligation of suiRcient proof of the criminal facts ; for, though malignant feelings may possess the mind, and lead to intem- perate and criminal expressions, they nevertheless may exer- cise but a transient influence, without leading to action." It must be borne in mind, too, as in regard to the proof of lan- guage in general, that declarations may be obscure in them- selves, or imperfectly remembered, and that witnesses may speak without a strict and due regard to truth .^ « Words " says Mr. Justice Foster, " are transient and fleeting as the wind; they are frequently the effect of sudden transport, easily misunder«< 3od, and often misreported." * It has been well remarked t? at, " Mere threats often proceed from tempo- rary irritation without deep-rooted hostility. They indicate a rash and unguarded, rather than a determinedly malignant, character ; and the very utterance of them, as every one well knows, tends to defeat their execution. The man who has resolved on a crime is more apt to keep his purpose to himself, or * ■) confide it to an associate, under the seal of secrecy. Even the most wary, however, sometimes let their wicked purposes peep out accidentally in the freedom of companionship, or the weakness of drunken confidence. When such unguarded hints, dark and apparently unmeaning at the time, coincide with the subsequent tokens of guilt, they are strong cords in the net of criminating evidence." ^ Section III. Evidence of Previous Attempts and other Crimes. It is not permitted in explanation of a party's motive to give evidence of a distinct and different offence committed against another person, unconnected with and unrelated to the particular 1 Jefferds v. People, 5 Park. Cr. Rep. 533. See further on this point, Terr. v. Roberts, 9 Mont. 13 ; Babcock v. People, 13 Col. 515. 2 3 Benth. Jud. Ev. b, 5, c. 4. « Per Dallas, J., in Rex v. Turner, 30 St. Tr. 1133. * Foster's Cr. L., ut supra, Disc. 1. 5 1 Dickson's L. of Ev. in Scotland, 157. ffT- 58 THE INTENTION, AND DECLARATIONS act in question.! It is not proper to raise a presumption of guilt on the ground that, having committed one crime, the depravity it exhibits makes it likely he would commit another." It is a well-settled rule of the criminal law that the general character of a defendant cannot be shown to be bad unless he shall first attempt to prove it otherwise. It ou-rht not to be assailed indirectly by proof of misconduct in other transactions, even of a similar description.^ It is of the utmost importance to the accused that the facts laid before the jury shall consist exclusively of the trans- actions which form the subject of the indictment, and which alone he can be expected to come prepared to answer. It is not just to him to require him to answer for two offences when he is indicted for one, and thus to blacken his character and to create impressions on the minds of the jury unfavorable to his innocence.* Therefore it was held that it was not com- petent for the prosecutor, in proof of the guilty knowledge of the prisoner, to give in evidence that, at a time previous to the receipt of the prosecutor's goods, he had in his possession other goods of the same sort as those mentioned in the indict- ment, but belonging to a different owner, and that such goods had been stolen from such owner.^ Lord Chief Justice Camp- bell said that " the law of England does not allow one crime to be proved in order to raise a probability that another crime has been committed by the perpetrator of the first. The evi- dence did not tend to show that the prisoner knew that the particular goods were stolen at the time he received them." On a trial for stealing a watch, eviuence was introduced, to prove the intent, to show that the prisoner had taken a cloa' from another person. In this case a new trial was awarded.^ In an English case the prisoner Avas charged with obtaining a specific sum of mo^fsy from one Hirst by false pretences. He was employed to take orders, Init was forbidden to receive moneys, and he was proved to have obtained the sum from Hirst by representing that he was authorized to receive it. Evidence was then admitted of his having, within a week from 1 Barton i'. State, 18 Ohio, 221. !" Shaffner v. Com., 72 Pa. St. 60 ; Jordan v. Osgood, 109 Mass. 457. « State V. Lapage, 57 N. H. 245. * Trogdon v. Com., 31 Grat. 862. * Reg. V. Odd}", 20 L. J. M. C 198, and 5 Cox's C. C. 210, * Walker v. Com., 1 Leigh, 574. AND ACTS INDICATIVE THEREOF. 59 the above obtaining, obtained another sum of money from another person, by a similar pretence. But it was held by the Court of Criminal Appeals that such evidence was not admis- sible to prove the intent of the prisoner when he committed the act charged.! In a recent case in Massachusetts the defendant was indicted for false pretences made in the sale of a horse, and the govern- ment was permitted to offer in evidence the circumstances and details of three other sales made to different parties within a short time previously to the one which was the subject of the indictment, and the parties to such sales were permitted to testify that the pretences made by the defendant at each of these sales as to both soundness and kindness of the horses were false. This evidence, though limited in the instructions to the sole purpose of showing the intent with which the sale charged in the indictment was made, was held to have been improperly admitted.^ But to this rule there are exceptions ; and, indeed, as was said in a lete case, when we examine the cases bearing upon the question, it is difficult to determine which is the more ex- tensive, the doctrine or the acknowledged exceptions.^ Lord EUenborough, delivering the opinion in a leading crim- inal case,* said : " If several distinct offences do intermix and blend themselves with each other, the detail of the parties' whole conduct must be pursued. There is a case where a man com- mitted three burglaries in one night, and stole a shirt at one place and left it at another ; and they were all so connected that the court heard the history of the three difffirert burglaries." In a recent English case the prisoner was indicted for tie murder of one H., and there was another indictment pending against him for feloniously wounding W. The facts were these : The prisoner, a pawnbroker's assistant out of employ- ment, after having spent the evening in the company of a friend in different saloons, started home alone. Between 12.30 and 1.45 A. M. he was seen going along a certain road m the direc- 1 Reg. V. Holt, 8 Cox C. C. 411. a Com. v. Jackson, 132 Mass. 16. * Trogdon v. Com., supra. * King t'. Whitney, 1 Lead. Cr. Cas. 185. And see 2 Russ. Cr. 775 et seq. Reg. V. Blaesdale, 2 C. ut an hour later the prisoner was seen to ap- proach TV'., who wjw sleeping a short distance from the hospital and strike her en the head. Ik- g pursued ami taken, there was founa in his pocket a ponknite, the blade of which, and a quarter of an inch of the handle, were smeared with blood The wound inflicted on W. was a small cut at the entrance to the ear, which h-al ^o vu cu ^m artery. II. had died from a wound in the neck, severing the carotid artery and entering the pharynx. The medical witnesses examined said that aU the wounds might have been produced by the knife found on the prisoner, and one of them said that, the wounds of W. being superficial, the blood on the knife could not be accounted for m that way. The prosecutor, in opening the case, proceeded to narrate the circumstances of the attack on W., but the prisoner's counsel objected, submitting that this was irrelevant, and that it was not competent to give evidence of a felony other than that charged in the indictment, unless it was im- possible to describe one without going into the other. Charles, J., hold that the facts proposed to be detailed were necessary to explain the case, and that they ought to be admitted as " facts explaining relevant facts.'^i On a trial for the larceny of a rifle which the defendant had borrowed under the pretence of going a-hunting, evidence that the prisoner at the same time hired a ho-se, saying that he was going to a neighboring town, but that he wentoflf in an opposite direction and fold the horse' was held admissible to show the intention with ^vhlch the gun was borrowed.2 It would be a singular rule of law that a person accused of a grave crime could compel the exclusion of important and rele- vant testimony merely by committing two felonies at the same time, or so nearly and intimately connected that the one could not be proven without also proving the other. Where the defendant was accused of the theft of a horse and was traced by wagon tracks, a witness testified that he had seen the wagon, and as to peculiarities of its running, and then that the doubletrees on the wagon Avere the property of the witness.^ 1 Repr. V. Crioknier, 18 Cos C. C. 701. See Stepl.ei.'a Dig. C. 2, Art 9 ' White V. State, 11 Tex. 769. 8 gtate v. Folwell, 14 Kan. 105. ' AND ACTS INDICATIVE THEREOF. 61 And, says Iloscoe, " the notion that it is in itself an objection to the admission of evidence that it discloses other offences, especially Where they are the subject of indictment, in now ex- ploded * (as has been made clear by several of the foregoing illustrations). The circumstantial connection between facts of a criminal nature may be so intimate as to require proof of them all. And the prosecutor may show motive, purpose, prep- aration, or concealment, though it involves proof ol" a distinct crime. And such evidence is received to show identity of per- son, local proximity, or other facts calculated to connect defendant with the commission of the crime.^ Evidence which tends to prove the commission of the crime charged is not in- competent merely because it tends to prove the commission by the defendant of another crime, when such evidence goes to the question of motive, intent, or guilty knowledge, or relates to a plan by which the accused procured the crime to be com- mitted .^ On a trial for murder, evidence of criminal intimacy between defendant and the wife of the deceased, of which the deceased had knowledge, is admissible to show motive in defendant for the crime.* And upon the issue whether the acts charged against him were designed or accidental, or to rebut a defence otherwise open to him, evidence tending to shoAV other criminal acts by the defendant is admissible.^ On a trial for murder by drowning the deceased in a boat, evidence that defendant had previously tried to poison the deceased was held admissible to rebut the theory of accident.^ Express declarations of intention, or confessions, are com- paratively rare ; and therefore all the circumstances of the defendant's situation, coi duct, speech, silence, or motives may be considered. The plan itself, and the acts done in pursuance of it, may all be proved by circumstantial evidence, if they are of themselves relevant and material to the case on trial. In such a case it makes no difference whether the preliminary acts are criminal or not. It is sometimes said that such evi- dence may be introduced where the several crimes form part of one entire transaction ; but it is perhaps better to say where 1 Roscoe Cr. Ev. (8th Am. Ed.) 138. And see Thomas v. State, 103 Ind. 419. a State V. Kelly (Vt.), 27 Atl. 203 ; 37 Cent. L. J. 373. 8 State V. Madigan, 57 Minn. 425. * State V. Reed, 53 Km. 767 ; State v. Phelps (S. D.), 59 N. W, 471. * aiakin v. New South Wales (L. 11. 1894), A. C. 57. « Nicholas v. Com. (Va.), 21 S. E. 864. 'fl 62 THE INTENTION, AND DECLAUATI0N8 they have some connection with each other, as a part of the Banie phm or inchiced by the same motive. Precedent acts which render the commission of the crime chared more easy, more safe, more certain, more effective to prothice the ultimate result which formed the j^eneral motive and inducement, if done with that intention and puri)08e, have such a connection with the crime charged as to he admissible, though they are also of themselves criminal.' For example, adulterous inter- courae may be i)roved as a circumstance leading to the commis- sion of a crime.a And evidence of familiarities on former oc- casions is admissible to corrobt)rat«! other evidence tending to show a commission of the act of adultery at a particular time.s But testimony of adulterous conduct of defendant subsequently to the commission of incest for whic-h ho is being tried cannot bo considered as having a bearing upon the question of his guilt of the crime charged.* Though acts prior and also subsequent to the act charged in the imlict- ment, when indicating a continuousness of illicit inter- course, are atlmissible in evidence as showing the relation and mutual disposition of the parties. The reception of such evidence must be largely controlled by the judge who tries the case, and the evidence should be submitted to the jury with proper explanation of its purpose and effect.* Where the prisoner was indicted for the murder of one F., her brother-in-law, by poisoning, to i)rove a motive for the crime it was shown that F. was insuied in favor of his wife, and that, on the decease of the latter, a short time before F.'s death, he named the defendant beneficiary in place of his wife. It was noted that if evidence should be introduced tending to show that the defendant knew, before her sister's death, of the existence of the insurance, and that it could be transferred on the death of her sister to herself, and made payable to herself on the death of her brother-in-law; and ' See opinion in Com. t». Robinson, 6 N. Eng. 217. « Com. V. Terrigan, 8 Wright, 386 ; Turner v. Com., 86 Pa. 64 • State v Watkins, 9 Conn. 47. ' « State V. Wallace, 9 N. H. 515 ; Com. v. Merriam, 14 Pick. 518 • State t'. Clawson, 83 Mo. App. 93 ; Cora. v. Bell (Pa.), 86 W. N. C. 146 • 31 Atl 123 ; People v. Patterson (Cal.), 36 Pac. 436. * See Porath v. State (Wis.), 63 N. W. 1061 ; People v. Fowler (Mich.), 68 N. W. 573. 6 State V. Witham, 73 Me. 531. AND ACTa INDICATIVE TI1KREntire history of the fraud." A single act or representation woultl not, in many cases, be decisive, especially where the accused has sustained a previously good character. But where it is shown that he made similar representations about the same time to other persona, and by means of such representations, all of Avhich were false, obtained goods, the presumption is greatly strengthened that he intended to defraud .^ And where a conspiracy to defraud is alleged, other fraudulent purchases than these set out in the indictment, made about the same time and in pursuance of the conspiracy, are admissible for the purpose of showing the intent with which the goods were purchased.* Still greater caution has been observed in framing the rule in Pennsylvania, where it has been said that to make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them to- gether for some purpose he intended to accomplish ; or it must be necessary to identify the person of the actor, by a connec- tion which shows that he who committed the one must have done the othor."^ Where an act is shown to have been done by a party entrusted with money, and the inquiry is whether it was an act ' Com. V. Robinson, supra, " Com. V. Blood, 3 N. Eng. 393. See Com. v. Choate, 105 Mass. 451 ; Com. V. Scott, 123 Mass. 222. « Trogdon v. Com., 31 Grat. 862. * Rex V. Roberts, 1 Camp. 399 ; Com. V. Eastman, 1 Cush. 189 ; Bottomley V. U. S., 1 Story, 135. * Shaffner v. Com., 72 Pa. St. 60. 64 THE INTENTION, AND DECLARATIONS f of embezzlement, other similar acts in the conduct of the same business are admissible as showing his criminal intent.^ On the principle of these cases, it has been provided by- statute in England, that the prosecutor may give evidence of any number of distinct acts of embezzlement, not exceeding three, committed against the same master,2 or of larceny com- mitted against the same person ^ respectively within six calendar months from the first to the last of such acts ; and by St. 2 Wm. IV. c. 34, § 7, any person uttering counterfeit coin, and having in his possession at the same time one or more pieces of counterfeit coin, or who either on the day of such uttering, or within ten days, shall utter other counterfeit coin, is made guilty of a much more aggravated offence than that of simply uttering base coin. Where, in a recent case, there were three charges of embezzle- ment in one indictment, it Avas held that the jury were properly told that they might lawfully consider the conduct of the prisoner in relation to the matter referred to in all the counts when considering any one of them, in order to determine Avhether the prisoner had failed to pay over the money acci- dentally or fraudulently.* And where, upon the trial of a man for setting fire to a stack of straw, it appeared that it had been set on fire by his having fired a gun very near to it, evidence was admitted that the stack had been set fire to the day before, and that the prisoner was very near to it with his gun at the same time ; ^ and in a similar case, Mr. Justice Patterson admitted evidence of the prisoner's presence and demeanor at incendiary fires of other ricks, the property respectively of two other persons, which occurred the same night, although those fires were the subjects of other indictments against the prisoner; but the learned judge held that evidence could not be given of threats, state- ments, and particular acts pointing alone to such other charges, niul not tending to explain the conduct of the prisoner in reference to the fire in question .« So in a later case where the prisoner was accused of arson and the question became one of 1 Rex V. Ellis, 6 B. & C. 145 ; Reg. v. Richardson, 3 F. & F. 343 ; Coin. V. Tuckeman, 10 Gray, 173 ; Com. v. Shepard, 1 Allen, 575. 2 7 & 8 Geo. IV. c. 29, § 48. s 14 & 15 Vict. c. 100, § 18. * Reg. V. Stephens, 16 Cox C. C. 387. 6 Reg. V. Dossett, 2 C. & K. 306. coram Maule, J. « Reg. V. Taylor, 5 Cox C. C. 138. i AND ACTS INDICATIVE THEREOF. 65 identity, evidence was rejected to show that a few days before c^nother building of the prosecutor's was on fire and the prisoner was seen standing by, evincing signs of gratification, and inter- fered with another who would have put the fire out.i In dehvering the opinion in this case, "Willes, J,, took occasion to affirm the principle laid down above, citing the cases mentioned in the notes. On a trial for arson with intent to defraud insurance com- panies, evidence was admitted that the prisoner had made claims in insurance companies with respect to two other fires which had occurred in houses successively occupied by him. The nature of the fires was not proved, nor their cause ; nor was there any proof that the prisoner was in or near either of the houses, or that he was in England at the time when the fires occurred.2 A defendant was convicted of the crime of arson, and it was shown on the trial that the watch-dog had died from eating meat Avith strychnine on it, and that the defendant having been arrestv.d for stealing a chicken from a barn where he had slept that night, there were found in his possession two pieces of meat poisoned by strychnine and tied with twine similar to twine found in the stomach of the dog and to that around pieces of meat found in the yard on the morning after the fire. This testimony was all objected to, but the Supreme Court affirmed the judgment. In the course of the opinion it - f as said : " If the only object was to prove that the defendant committed these crimes [larceny of the chicken and poisoning of the dog], the evidence would have been improper, except to show a motive for the commission of the crime charged. It was proper to show that the defendant poisoned the watch- dog, as this might imply malice towards the owner, and fur- nish a motive for the arson. Or the dog might have been killed to prevent an alarm before the consummation of the crime or detection afterwards. The killing of the dog by poisoned meat, and proof that similar packages of poisoned meat were found on the pt^rson of the accused, aiforded important evi< dence of his identity with the person who killed the dog, and that he was present on the premises that night and about the time the fire was set. These were facts and circumstances bearing directly on the crime charged, and the proof of 1 Reg. V. Harris, 4 F. & F. 342. 5 ■^ Reg. V. Gray, 4 F. & F. 1102. 1 i -( i '• P ■ 66 THE INTENTION, AND DECLARATIONS another crime was only incidental to this main purpose. If the examination of any case of crime must be suspended, lest the evidence might show the accused to have been guilty of other offences, while at the same time it is relevant and neces- sary to prove the crime charged, then the person guilty of the greatest number of crimes may often hold them before him as a shield and protection against the full disclosure of such facts and circumstances as may convict him of the crime charged." ^ Mr. Justice Erie said his experience had taught him that in cases of arson intlications of guilt were often found in ex- tremely minute circumstances, which were not the less cogent on that account ; that it was to the words, whether true or false, by which a man accounted for himself at the critical time, to his conduct when the fire was in progress, to his man- ner of offering assistance, and other such particulars, that attention should be directed, and that in the absence of broad facts, such minute circumstances often afforded satisfactory evidence.2 Where the defendant was indicted for the crime of lewdness, by Avilfully exposing his person in a public place, and evidence of acts of a similar chs ^oter committed by the defendant at the same place, on the ^ame day, and also on the preceding day, in the presence of parties other than the prosecuting wit- ness, Avus admissible. And it Avas held likewise proper to show that, in connection with one of these acts, the defendant had made an indecent proposal to a young lady.^ In another case the defendants were indicted and convicted for stealing one mare, the property of N. On the trial the prosecution gave evidence tending to show that the animal described was stolen from N.'s pasture on the night of the 12th of October ; and tliat on the same night another animal was stolen from one A., and a saddle and bridle from B. On the 15th the defendants were seen at p. toll-gate with these two animals in their possession, but having no money to pay toll, were compelled to turn back. Two days Later the animals were turned into a pasture near the toll-road, where they remained until the night of the 30th, when they were taken 1 State V. Halleck, 05 Wis. 147 ; 7 Crini. L. Mag. 643. 2 Cliarge to tlie Grand Ju:y : Warwick Spring Ass., 1859. ■' State V. Stice. 88 la. 27. AND ACTS INDICATIVE THEREOF. 67 out without the knowledge of the owner of the pasture, and without the pasturage having been paid. On th«! same ni^ht that the animals were taken from the pasture, and on the direct route to the town of S., there was stolen from R. a hack a set of harness, and a robe, and from C. a pair of single lines' a buggy cushion, and tAvo blankets. On the evening of the following day the defendants were arrested at S., when they had in their possession both of the stolen horses and the prop- erty stolen from A., B., R., and C. Here the evidence tending to show that the property found in the defendants' possession at the time of their arrest was stolen property, was so inter- mingled and connected with the evidence tending to show that defendants committed the crime charged, as to form one entire transaction, and to identify the actor by a connection which legally tended to show that he who committed the one must have committed the other. To exclude the evidence relating to the larcenies for which the prisoners were not on trial, would have broken the chain, formed of links more or less perfect, connecting them with the one which constituted the subject-matter of the trial, for it was impracticable for the prosecution to trace the animal of N., and the defendants' con- nection therewith from the time it was stolen till their arrest, without disclosing the commission of the other crimes.^ Instances of killing to conceal other crimes are frequent, and evidence of the murder of one person may be given in evidence upon a trial for the murder of another, if such evidence tend to show that the prisoner might have had a motive arising out of the other murder for committing that with which he is charged.'* Where the prisoner was indicted for the murder of her child by arsenical poisoning, it appeared that she had several times complained of the cost of the child's support, and that she had its life insured. In analytical chemist testified that he had found in the stomach of the deceased more than sufficient arsenic to produce death. The principal point in the case was the admission of testimony of the same witness to the effect that he had examined the bodies of two other children of the deceased and another person who had lived in the house— the » State V. Baker, 33 Ore. 441. See opinion o. Lord, C. J. « Com. V. Ferrigan, 8 Wright, 386 ; Rex v. Clewes, 4 C. & P. 221. And see Reg. v. Geering, infrn. 68 THE INTENTION, AND DECLARATIONS bodies having been exhumed for the purpose — and that he had found arsenic in each. The ])risoner wiis found guilty.^ This case was followed by one where the prisoner was in- dicted for the murder of her chikl by suifocation. It was aUowed to be proveil that several other children of the prisoner had died at early ages, Lush, J., saying that the value of the evidence did not affect its a'hnissibility. But a physician hav- ing testified that death might have occurred by the mother accidentally overlying the child, or by the clothes covering it, an acquittal was directed.^ Evidence has frequently been held admissible of other trans- actions where previous attempts have been made unsuccess- fully to commit the same crime. On an indictment for mali- ciously bui'ning a building, evidence was admitted tending to prove that the defendant set fire to the same building a few nijrhts before, and that the fire was then discovered and ex- tinguished by a neighbor.^ And on the question of intent, the government was permitted to show tliat the defendant, a few nights before, set fire to a shed ten feet distant from the build- ing burned, and connected therewith by a flight of steps.* The prisoner in one case was on trial for an assault with intent to murder, alleged to have b*ien committed in March, 1891. In the summer of 1891 he had been convicted of a similar assault upon the same party which lu*d occurred in December, 1890. To show motive and ill-will, tbfr prosecution was permitted to prove tlie prior lussault and conv ,:;tion.'' On the trial of one for procuring a miscarriage? by the use of a quill, evidence was admitted to prove other similar acts by the prisoner by the use of a similar instrument both before aad after the act in question to show intent.'' On an indictment for burning property with intent to defraud the insurance compa)i\% evidence was admitted of a previous conspiracy to burn the same property.^ On a trial for murder, evidence that two or three weeks prior to the killing the deceased Jiad been Avaylaid and shot at, and 1 Reg. V. Cotton, 12 Cox C. C. 400. ' Reg. V. Roden, 12 Cox C. C. 630. By these cases, Reg. v. Winslow, 8 Cox C. C. 397, was virtually overruled. 8 Com. V. Bradford, 126 Mass. 42. ♦ In Com. V. McCarthy, 119 Mass. 354. And see Martin v. State, 28 Ala. 71. 6 Crass V. State, 30 Te;:. App. 480. « R«g, v. Dale, 16 Cox G. C. 703. ' Melster u. People, 31 Mich. 99. AND ACTS INDICATIVE THEREOF. 60 that the defendant had said that he did it, was held admissible as strongly tending to idc-! tify the guilty party, and as showing the animus of the accused towards the deceased.^ And in another case the State introduced evidence showing that de- fendant attempted to cut the deceased with a knife, the night before the murder, and a witness was allowed to testify to having seen a cut in deceased's dress." And on a trial for a.»sault by shooting, to show malice, it was permitted to be proved that just previous to the shooting the accused had made an assault upon the same person with a knife, it being part of a contmuous act." And again upon a charge of maliciously shooting, where the question was whether the act proceeded from an accident or design, evidence was admitted that the prisoner had intention- ally shot at the same person about a quarter of an hour before.* On a trial fur murder by administering prussic acid in porter, Mr. Baron Tarke admitted evidence that the deceased had been taken "' several months before, after partaking of porter with the prisoner, and said that although this was no direct proof of an attempt to poison, the evidence was nevertheless admis- sible, because anything tending to show antipathy in the party accused against the deceased was admissible.^ On an indictment for murder, an indictment against the defendant for assault with intent to murder the same person about two years before the killing, which indictment ^vas still pending, was admitted to show motive.s A recent case was an indictment fo'- assault with intent to commit sodomy. The assault was committed on board a train moving from Oregon into Wjishington. If the evidence had been confined to what happened in the county in which the venue was laid, it would have been oiificult to make out the case, for the facts in evi- dence would have left it doubtful what the appellant wjis trying to do. But the prosecution was allowed to show the particulars of a former assault made on the same person while the train was yet in Oregon, where the intent Avas very clear, to assist fho> ^ury to come to a conclusion as to the defendant's real in- tention in making the second assault.^ 1 Washington v. State, 8 Tex. App. 377. a State v. Lewis, 80 Mo. 110. » State V. Porter, 45 La. Ann. And see State v. T'atza, 8 La. Ann. 513. * Rex V. Coke, R. & R. 653. 6 Rp^ v. Tawell, infra. « Hart V. State, 15 Tox. App. 302. t st^ite v. Place (Wash.), 33 Pac. 736. 70 THE INTENTION, AND DECLARATIONS :f, 'U The rule is recognized as well established that in cases where guilty knowledge is an ingredient of the offence charged, the same may be proved, as other facts are proved, by circumstan- tial evidence, and that other acts of a like character, although involving substantial crimes, may be given in evidence to prove the scienter. The principal limitation of the rule is, that the criminal act which is sought to be given in evidence, must be necessarily connected with that which is the subject of the prosecution, either from some connection of time and place, or as furnishing a clue to the motive on the part of the accused.^ On the trial of an indictment for the theft of a horse where the defendant, when arrested, had been found in possession of articles stolen by his companion a few days before, evidence of this fjiot was admitted, as well as of the circumstances of the previous thefts, as manifesting that the two were engaged jointly in a series of thefts, Avhich included the one for which the defendant was on trial, and as tending to establish guilty knowledge and participancy in the theft charged.2 feo on a t! i'^A for attempting to obtain money from a pawn- broker on u Avorthless ring, by representing it to be a diamond ring, evidence was admitted to show guilty knowledge that a few days before the defendant had obtained money from an- other pawnbroker on a worthless chain which he had repre- sented to be a gold chain. Such testimony was not conclusive, btit it tended to show that he had been pursuing a similar course, and raised the presumption that he '♦vas not acting under a mistake, and that he was not the dupe of any onc.^ And on a charge of sending an obscene letter through the mails, it being necessary to prove guilty knowledge, another letter re- ceived by the same person and the address upon the envelope thereof were held admissible.* In a case to which reference has been heretofore made,^ Lord Chief Justice Campbell said that the rule which had " prevailed in the case of indictment for uttering forged notes, of allowing evidence to be given of the uttering of other forged notes to different persons, had gone great lengths, and he would be un- 1 Coleman v. People, 58 N. Y. 555. » Hardin v. State, 8 Tex. App. 653. 8 Reg. V. Francis, 13 Cox C. C. 612. M. C. 51. » Reg. V. Butler, 2 C. & K. 231. And see Reg. v. Roebuck, 25 L. J. * Thomas v. State, 103 Tncl. Hf). 1i AND ACTS INDICATIVE THEREOF. 71 Willing to see the rule applied generally in the administration of the criminal law." A base coin or counterfeit bill is often passed innocently. It is important therefore to show a guilty knowl- edge of their character on the part of the person uttering them in order to lay the foundation of a just inference of crime against him. His knowledge of the thing uttered is shown by his familiarity with it, as shown l)y liis use of it, or similar instruments, on former occasions. Therefore the admissibility of evidence, m a trial for uttering counterfeit bills or base coin of the utterance of similnr bills or coin to other persons about the same tnne, is Avell established in England and America i Upon a charge of uttering forged notes, the forged notes either of the same or of a diflf erent bank, found on the prisoner's person, were allowed to be given in evidence to show guilty knowledge; a and upon an indictment for uttering a forged Bank of England note, evidence was admitted that other notes of the same fabrication had been found on the files of the Bank with the prisoner's handwriting on the ba(;k of tliem.3 ' On the question of the defendant's knowledge that the bills m issue were not genuine, his iwssession and use of other similar false bills, about the same time, whether before or after- Avards, m a continuous series of transactions, with the same persons, under the same contract, was competent to show that his use of the former was not innocent.* Evidence of the sub- sequent uttering of another forged note has been l.eld inadmis- sible to prove guilty knowledge, unless the latter uttering is m some Avay connected Avith tJie uttering which is the subject of indictment, a<- by showing that all of the notes are of the same manufacture/' To make such circumstance evidence, it has been saul there must be a strong connection on the subject- matter. And on a trial for passing counterfeit coin, it may not be shown that the prisoner had in his possession an engraved print m imitation of a bank-note.« " No doubt," says Roscoe ' there would be some limits both as to time and circumstances 1 Com. V. Stine, 4 Met. 43; Com. v. Bigelow, ' Met. 235 ;^Rex V Sunderland, 1 Lewin, 102; Rex v. Hodgson. Id. 103- Rex v R. & R. 245 ; Reg. v. Green, 3 C. & K. 209. » Rex V. Ball, 1 Campbell, 324 ; R. & R. 132. ♦ Com. V. White, 145 Mass. 392 ; Devere v. State, 5 Ohio C. C 509 ; Rex V. Taverner, 6 C. & P. 413. And see Reg. v. Smith, Id. " « Stalker v. State, 9 Conn. 341. Ill !'■ ■> : i Hi 12 THE INTENTION, AND DECLARATIONS beyond which evidence of uttering forged instruments on other occasions would not be permitted."^ And it has been held that if the passing of the other note be at a remote period, it is not suflBcient." The possession of a large quantity of counterfeit coin, many of each sort being of the same mould, and each piece of it being wrapped in a separate piece of paper, and the whole distributed in different pockets of the dress, was held to be evidence that the prisoner knew that the coin was counterfeit, and intended to utter it.^ And it has been held that where other coins of the same denomination as those on which the prosecution is based are found in the prisoner's possession, they need not be produced in court.* The principle was carried rather far on an indictment for uttering a counterfeit crown- piece, knowing it to be counterfeit, where evidence was ad- mitted, in order to prove the guilty knowledge, that the prisoner on a day subsequent to such uttering uttered a coun- terfeit shilling.^ " The uttering of a piece of bad silver," said the court, " although of a different denomination from that alleged in the indictment, is so connected with the offence charged, that the evidence of it was receivable." The guilty knowledge, which is an essential of the crime of receiving stolen goods, knowing them to have been stolen, is rarely the subject of direct proof ;^ and evidence that other goods, known to have been stolen, were previously received by defendant from the same thief, is admissible for the purpose of showing guilty knowledge.^ The circumstance of itself may be of little value, for it does not necessarily follow that the goods mentioned in the indictment were stolen because the others were, but where taken in connection with other circum- stances, such as that the goods mentioned in the indictment were sold under value, received at night, or concealed, it might strongly tend to fasten guilt upon the defendant. 1 Cr. Ev. (8th Am. Ed.) 146. 2 Dougherty's Case, 3 City HaU Rec. 148. » Reg. V. Jarvis, 25 L. J. M. C. 30 ; Rex v. Fuller, R. & R. 308. ♦ McGregor v. State, 16 Ind. 9. » Reg. V. Foster, 6 Cox C. C. 521 ; 24 L. J. M. C. 134. See State v. Houston, 1 Bail. 300 ; Martin v. Com., 5 Leigh, 707. < Adams v. State, 52 Ala. 379. T Shriedley v. State, 33 Ohio St. 130 ; State v. Ward, 49 Conn. 529 ; Devoto V. Com., 3 Met. (Ky.) 417. :') t .1 i AND ACTS INDICATIVE THEREOF. 78 Where, upon an indictment for receiving goods knowing them to have been stolen, it appeared that the articles hatl been stolen, and had come into the possession of the prisoner at several distinct times, the judge, after compelling the prosecutor to elect upon which act of receiving he would proceed, told the jury that they might take into their consideration the cijcum- stances of the prisoner having the various articles of stolen property in his possession, and pledging or otherwise disposing of them at various times, as an ingredient in coming to a determination whether, when he received the articles for which the prosecutor elected to proceed, he knew them to have been stolen.^ In like manner, upon an indictment against principal and receiver, where goods were found upon the receiver's premises, which had been taken from the prosecutor's premises, it was held that the prosecutor might give evidence of the find- ing of other goods at the house of the principal, notwithstand- ing there was no evidence to connect the receiver Avith them, and that he was not bound to elect." But in order that the possession of other goods may be proved for the purpose of showing guilty knowledge as allowed by St. 34 & 35 Vict, c. 112, § 19, the possession of such property must be shown to have existed at the time when the prisoner was found in possession of the property mentioned in the indictmen' .^ > Rex V. Dunn, 1 Moo. C. C. 150. And see Reg. v Bleasdale, 2 C. & K. 766. 2 Reg. V. Hinley, 1 Cox C. C. 13. « Reg. V. Drage, 14 Cox C. C. 85 ; Reg. v. Carter, 15 Cox C. C. 418, ^■l B |, ^H['I ^ Biilf ^^B; ] 1 H^ri Hip CHAPTER III. PREPARATION AND OPPORTUNITY FOR THE COMMISSION OF CRIME. Premeditated crime must necessarily be preceded, not only by impelling motives,- but l>y appropriate preparations. Pos- session of the instruments oj- means of crime, under circum- stances of suspicion, as of poison, coining instruments, combusti- ble matters, picklocks, housebreaking instruments, dark-lanterns, or other destructive or criminal or suspicious weapons, materials, or instruments, and many other acts of apparent preparation, are important facts in the judicial investigation of imputed crime. The possession of a quantity of counterfeit coin upon the person or the premises of the party implicated warrants the inference that he made it. And this inference is greatly strengthened by proof that instruments or tools designed for the manufacture of such coin were found in the possession of the accused person. But this presumption of guilt may be nega- tived by evidence showing that the false coin, though manu- factured by him, was made for an innocent purpose, or a pur- pose not rendering the act criminal.^ Where a man had in his possession a large quantity of coun- terfeit coin unaccounted for, and there Avas no evidence that he was the maker, it Avas held to raise a presumption of an inten- tion to utter it." Where it is shown that wounds on the person of deceased could have been made with certain instruments, it may be shown that defendant had in his possession, shortly before the homicide, such instruments.^ And it may be shown that a few days before the murder the defendant purchased, at a store in 1 United States v. King, 5 McLean, 208. « Rexu, Fuller, R. & R. 308 ; People v. Pomeroy, 2 Wheel. Grim. Rep, 159 ; People V. Haggerty, Id. 195 ; People v. Gardner, Id. 23 ; Galbrant's Caae, 1 CUty Hall Rec. 109. » State v. Rainsbarger, 74 la. 196, 539. 74 PREPARATION AND OPPORTUNITY FOR CRIME, 75 the neighborhood, shot corresponding in size with that found in the body of the deceased.^ Hurghirious tools found in the |K)S80ssion of defendant after the commission of a burglary may be offered in evidence when they constitute a link in the chain of circumstances which tend to connect the defendant with the commission of the particular burglary charged.' But before such tools can bo received in evidence, it must be shown that the burglary charged was in fact committed, and that it was committed with the aid of tools like those proposed to bo shown, and that the defend- ant was in the vicinity at or about the time Avhen the offence was committed. And where the defendant was accused of robbing a stage on the morning of August 11, and it was shown that on the afternoon of that day he was thirty miles from the scene of the robbery, and the offence was not committed by the aid of articles like those proposed to bo shown, it was held improper to admit burglarious tools found in defendant's pos- session forty-one days after the offence,^ But in a case in Mis- souri, where a burglary had been committed without the aid of burglarious instruments, and immediately thereafter a person was arrested going from the scene of the crime under circum- stances tending to connect him with the commission of the act, and he had in his possession burglarious implements, it was held, that such possession might be shown as a circumstance tending to prove, when taken in connection with the other suspicious circumstances, that he committed the offence,* Where the defendant was indicted jointly with another for burglary, evidence that burglarious tools were made for the latter was admitted to connect the prisoner with the crime.^ But the mere fact that burglar's tools were found in the pos- session of the accused when he was arrested, though taken in connection with the fact that at the time of the offence he occupied a room in the same hotel with the one which was entered, and not fifteen feet away from it, was held insufficient to connect accused with the particular offence charged. And the suspicion of guilt Avas Aveakened by the fact that an imme- diate search Avas made in the prisoner's room, and none of the » Howard v. State, 8 Tex, App, 53, • People V, Sansome, 84 Cal. 449, « State V. Davis, 80 Mo. 53, 6 People V. Clark, 2 Hun, 520. 2 People V. Winters, 29 Cal. 658. IMAGE EVALUATION TEST TARGET (MT-3) // .> o ■c^: % ^^^ % c»m ^^ Photographic Sciences Corporation s. 4< qs 23 WEST MAIN STREET WEBSTER, NY. 14560 (716) 872-4503 "% "^ M fv *» >> ^ rv« ■.^•rf.. .v#^ ^. &< fA 1^ :\^ ^ >> II ^i 76 PREPARATION AND OPPORTUNITY money stolen vras found, though part of it, a twenty^ollarnote, could have been easily identified.* Unless the party possesses the opportunity of committing the imputed a<;t, neither the existence of motives nor the mani- festation of criminal intention by threats or otherwise, fol- lowed even by preparations lor its commission, can be of anv weight. ^ On a trial for the murder of one of two men towards whom the defendant had expressed strong iU-feeling, the prosecution was permitted to show that the two were separated, and one of them lodged m jaU on a trumped-up accusation made by the defendant and a few hours before the other was murdered, while on his retm-n home from accompanying the former to jail, to show motive, preparation, and opportunity.a Where a girl haxi been outraged and murdered on her way home from school and the defendant was indicted for the crime, evidence was admitted to show that he was, on the day of the murder at a plax5e where he could know when the chUd left the school' and that his being in that place was an unusual occurrence with him.8 Where three were indicted for murder, the prosecution was permitted to show the existence of a secret organization whose object was crime and the conceahnent of the criminal, etc., and that the defendants were members of such organization, to explam the relations existing between the conspirators, the reason motive, and opportunity for their combined action, and the nature of the tie that bound them together * But the personal character for probity, and the civil station of the party, ai^ highly material in connection with facts such as we have been considering. A medical man, for instance, in the ordinary course of his profession, has legitimate occasion tor the possession of poisons, a locksmith for the use of pick- locks. In many cases the possession of such materials or in- struments, and other acts indicative of purpose to commit crime, are made by statute prima facie presumptions of guilt and m some even substantive olfences.s ' Facts of the kind referred to become more powerful indica- tions of guUty purpose if false reasons are assigned to account 1 Johason v. Com., 29 Grat. 796. • Campbell v. State, 23 Ala. 44. ' See irtfra. ' Hubby V. State, 8 Tex. App. 597. * Hester v. Com., 85 Pa. 139. I FOB THE COMMISSION OF CRIME. ^7 for them ; as in the case of possessing poison, that it wp^, nro- cured to destroy vermin, which is the excuse commonly re- sorted to m such cases. ^ The bare possession of the means of crime, or other mere acts of preparation, without more conclusive evidence, are not m general of great weight,^ because the intended guilt may not have been consummated; and until that takes place there is the lomsp Rex V Burdett, 4 B. & Aid. 149 ; Burnett on the C. L. of Scotland 555 • 2 Mascardus De Prob nt^jrra, Concl. ncccxxxxv ; 1 H^e's^ol '„' L h °^^^°"*"f • ^" • B^t on Pres. 44 ; Tucker v. State, 57 Ga. 503 « Faulkner v. State, 15 Tex. Grim. App. 115. « Carey v. State, 7 Humph. 499. * Hunt V. Com., 13 arat. 757 ; State v. Furlong, 19 Me 225 RECENT POSSESSION OF THE FRUITS OF CRIME. 79 Who ^y^ alleged to be its owner could not identify it so as to distinguish It from the same kind of property sold to his cus- tomer residing in the same vicinity as the prisoner. The force of this presumption has been recognized from the ^mr liest times ; and it is founded on the obvious consideration, that If such possession have been lawfully acquired, the party would be able, at least shortly after its acquisition, to give an account of the manner in which it was obtained ; and his unwillmgness or inability to afford such explanation evidence ""^^ ^ amounting to strong self-condemnatory It w not so much the mere possession of the stolen goods as It is the nature of the possession ; whether it is an open and un- concealed one, or whether the goods are such as the person found m possession thereof would probably be possessed of in a lawful way. If property of great value shoidd be found in the possession of one known to be poor, so as to render it highly improbable that he had purchased it, an inference of guilt would arise much stronger than if such property were found in the possession of a man of wealth, who would probably pur- chase goods of such value.i ^ ^ There is some conflict in the authorities as to the effect to be given to the proof of possession of stolen property The presumption arising from possession has been said to be one of law.2 This proposition, though laid down by a court of recognized ability is at variance with the great weight of on!oTf?V r!^' P^?rP*i<^^ '' Senera^'y declared^ be one of fact, and it is said that under no cu-cumstances does it become a conclusive presumption of law.3 Jt is not a presump- lon or conclusion of law, but a deduction of fact to ^ drawn and ascertained by the jury alone from the circumstances of 1 Ingalls V. State, 48 Wis. 647. And see Perry v. State 41 Tex 4a<» ^Statet, Kelly 73 Mo. 603. The attention of the rltr^direld to State t,. Kelly. 9 Mo. App. 512. where Lewis, P. J., said : <« iheirart tu^ IrfxptrZ'^""* thepresun,ption arising fr^n, po^eJIon wh "h do rrnI7S f possession; .. g., alihi, pure character. Therefore it cannot be under any circumstances whatever a conclusive prrmpLn cl!^^T;^T '? ^""f- ?''' ««^« disapproved the decision in Belote's S an S;., ;• • **'°"^'* *"" presumption was siK.ken of as one o? fact, an mstruction was approved which said to the jury that "if von beheve the possession unexplained you will find the a^SguiUv " IZ see Snowden v. State. 63 Miss. 100 ; Smith v. State, 58 Ind. m ' 80 RECENT POSSESSION OF THE FRUITS OF CRIME. the case.i " It is a presumption," said Bailey, J., " established by no legal rule, ascertained by no legal test, defined by no legal terms, measured by no Lgal standard, bounded by no legal limits. It has none of the characteristics of law. Whtther it be found by the judge or the jury, the judge and the jury must be equally unconscious of finding in it any semblance of a legal principle, however much good sense may appear in the result arrived at." 2 And it is not a presumption of law and fact combined,^ Some authorities hold that possession alone is not sufficient in any case to warrant a conviction. The rule in California is stated as being that possession, together with proof of other circumstances indicative of guilt, would make a prima facie case against defendant.* And the circumstances indicative of guilt which must be shown in order to render the naked possession of the thing available toward a conviction, must be such as are naturally calculated to awaken suspicion against the party charged and to corroborate the influence of guilty possession.* In Texas the iX)ssession of the stolen property recently after the theft, united with the failure of the one in whose possession it is found to satisfactorily account for the possession, when called upon to explain, will, though unaccompanied by any other evidence, warrant a conviction.^ Recent possession alone » Lockhart v. State, 29 Tex. Grim. App. 35 ; Ayres v. State, 31 Tex. Crim. App. 399 ; Dillon v. People, 1 Hun, 670. * State V. Hodge, 50 N. H. 510. The learned judge in this case said fur- ther : "The law is burdened and obscured by a great mass of common opinion, general understanding, practice, precedent, and authority (includ- ing the presumption from the possession of stolen property) that has passed for law, but is in truth not law, but fact, coming down to us largely by descent from the ancient custom of the judge giving the jury his opinion of the evidence." See also State v. Hale, 18 Ore. 352. 8 Graves v. State, 12 Wis. 591. Practically, said the court, in State v. Rich- art, 57 la. 243, it is immaterial what the presumption is called, unless, by reason thereof, the jury are directed to convict. Until this is done it remains a presumption of fact. See also State v. Kelly, 57 la. 644. « People V. Antonio, 27 Cal. 404. See also People v. Ah Ki, 20 Cal. 177 ; People V. Gassaway, 23 Cal. 51 ; Durant v. People, 13 Mich. 851. 6 People V. Chambers, 18 Cal. 382. • Lehman v. State, 18 Tex. Crim. App. 174 ; McNaii- v. State, 14 Id. 83 ; Roberts v. State, 17 Id. 82, overruling on this point Hannah v. State, 1 Tex. Crim, App. 582. And see State v. Kelly, 57 la. 644 ; State v. Creson, 38 Mo. 372 ; State v. Ingram, 16 Kan. 14 ; Knickerbocker v. People, 43 N. Y. 177 ; RECENT POSSESSIOxV OF THE FRUIIB OF CRIME. gl is a circumstance to be considered by the iurv i but withn„. op^rtumty to explam, it does not warr Jr/con^t"!','"' "" Where one accused of the thflft nf /.«**! ""*'^''*on- evidence that the hide o TL^Tjtomlj^ T"™*^ '"' time of hi» <™»t, and he ^Jloil^ZtiZtJ"^ ", *^ arrest, nor hia attention caJled to th ™aS tL!? t^Tn '^ found in the honse, and that he waa susB^tJ^f a .^ ,! T conviction was reversed.' Aeain Z^^f^ I *''° """' ""« for theft, the Judge charged tC tZ ";,^st'"„rf *"":'" recenUy stolen is evidence s«ainst the ^^3™ hfehTk": aU other endence ,s to be taken and considered by the ta^ i^ connection with other testimony in the case " ThllL'^- hy the Court of AppeaH was held to be e^n Js aid thTZ rule was said to be that "the possession 0?^^;"/^^™! Men IS merely a fact or circumstance • to beLSSnhe them, m determimng the guilt of the possessor." It is not always that the possession of recently stolen property is eri dence against the possessor. It is always admLiwTL'den^ ma tnal for theft, but it is for the ju.yf and H^t'h X t^ determme whether it is against the def endant ; » or wh"Xr rt And m West /u^ginia possession of stolen mods is not l>n,m facte evidence that the possessor is the thiefeven wh^ unaccompanied by a reasonable explanation of ho^ the pZT s.on was «,„i^ ^ ( still evidence of such possession ^ ZTr In Illinois it is settled that recent possession is prim^/acie Crl "Tr^^' -■ «'"'• " ■'•'■ ^-»- APP. «.. . W «. S...,, „ Tex. C^r^, ^?srr,---- "■■ -^ - P»P.e.. EU.„ , « Moreno r. State, mpra. App. 683. '^'^' ' ^"Ihvan u State, 18 Tei. Ctim, T^^S,'. App'r?' '' '""■ '^"- *•"■■ •«■ ««' ■"«• Cooper "■ State, » 6 88 BECENT POSSESSION OF THE FRUITS OF CRIME. evidence of guilt, and is sufficient to warrant a conviction unleis the attending circumstances or other evidence so far overcome the presumption as to create a reasonable doubt of guilt.* In Missouri recent possession is jrrima facie evidence of guilt," and in the absence of rebutting evidence is conclusive." But it is worthy of note that Judge Henry has, in several cases, delivered earnest opinions in which he has refused to give his adhesion to the rule declared by the majority of the court, and in which he has insisted that the weight of authority sup- ports the proposition, that the recent possession is nothing but circumstantial evidence of guilt,* and affords no presumption which authorizes the court to declare to the jury that the de- fendant stole the property,^ The better rule probably is that if the possfcc^ion be recent after the theft, such evidence is sufficient to make out a. prima facie case proper to be left to the jury.^ Where the defendant was accused of the larceny of certain sheep, the court said it was too strong to instruct the jury that they must convict the accused, unless he had proved, to their reasonable satisfaction, that he came by the sheep otherwise than by stealing. It is always a question for the jury, applying to the solution of the problem the common experiences and observations of life, whether they are satisfied, from all attending ciicum- stances and other facts in evidence, that the possession was honest or felonious.^ Possession of property recently stolen without reasonable explanation of that possession is evidence of guilt to go to » Smith V. People, 108 111. 83 ; SahUnger v. People, 102 111. 241 ; Comfort V. People, 54 111. 404. Cronkwright v. People, 85 111. 204, seems to hold that possession of itself is not prima /ocfe evidence, but in Comfort v. People, supra, that ruling is disavowed. « State V. Beatty, 90 Mo. 142 ; Slate v. Bulterfield, 75 Mo. 297 ; State v. Bulla, 89 Mo. 595 ; State v. Brown, 75 Mo. 817. » State V. Jennings, 81 Mo. 185. In State v. Kennedy, 88 Mo. 841, an in- struction that one found in the possession of stolen goods was presumed to be the thief, and if he failed to account for his possession in a manner con- sistent with his innocence the presumption became conclusive, was held to bo proper in the absence of evidence of good character. And see State v. Gray, 37 Mo. 463. See also Hughes v. State, 8 Humph. 75 ; State r. Brown, supra ; State v. Daly, 37 La. Ann. 576. * People V. Abbott (Cal.), 86 Pac. 129. * State V. Jennings, and State i\ Kennedy, supra. 8 State V. MeiTick, 19 Me. 398. And see Porterfield v. Com. (Va.), 22 S. B- 852. 7 Foster v. State, 52 Miss. 695. J i! RECENT POSSESSION OF THE FRUITO OF CRIME. 83 the jury for consideration. In this sense it is prima f.ccU ovu^ence but not in the sense that it is such evidefco Z ^ compel the jury to a conviction unless it be rebutted » And the defendant cannot be required to overcome the presumption by a preponderance if evidence. AU that he can be required to do is to introduce evidence which creates a reasonable doubt whether he came honestly into the Z^ sTeahnVn'^'P'f^' Therefore, where ama^:. wa. indicSTr steahnga piece of wood, which Avas found in his shop five davs afterthetheft, and he stated that he had bought it from a IS whom he named, who lived about two miles off, it waslTZ the prosecutor wa« bound to show that the ae^ount wTfa^se And where the defendant was found in possession oiZ s^Ln Austm, and on his trial proved the truth of his statement by a witness who detailed the circumstances of the purchase it was held that the State must show the explanation fa^? or the prisoner must be acquitted.* ' men"! tW^^'^.T *^t ^'"''^' ^^ ««»fi"^ation of his state- ment that he had purchased the property from another partv showed a bill of sale from such party.^ ^It must beshown thtt the defendant purchased the identical articles.* Whether the purchase was in good or bad faith is immaterial, he bein^^ charged with the theft only.r » Jt is a common mode of defence," says a learned writer, "to state a deliveTby a person unknown, and of whom no evidence is given. Little or no reliance can consequently be had upon it Yet cC of that sort have been known to happen where pers„nv nnocent have suffered under such a presumption ;Tnd tW fore where this excuse is urged, it is a matter ofno littlt 77^ *^,««"«ider how far the conduct of the pr^^ner h^ tallied ^vith his defence from the time when the IZ^lZZ be presumed to have first come into his possession^' ^ ^ In such cases it is a question for the jury, whether there is a sufficiently reasonable account given by the prisoner to en! * Hyatt V. State (Tex. Crim. App.), 25 S W 291 ' ^^' ^^^' 6 Roberts v. State, 17 Tex. Crim. App. 83. * Way V. State, 85 Ind. 409. ' Faulkner v. State, 15 Tex. Crim. App. 115 » 3 East P. C, 665. And see State v. Jenkins, 3 Tyl 879 84 RECENT POSSESSION OF THE FRUITS OF CRIME. :l(i I'u able the prosecutor to find the party named.* But these relinemonts are not strictly followed in practice, and are indeed not always easily capable of application. Thus, where a prisoner was convicted of stealing some articles of dress, and the evidence was that he was in possession of the stolen property recently after it hatl been stolen, that he sold it openly in a public-house, and on his arrest stated to the con- stable that C. and D. brought the things to his house, and that W., who was at his house, would say that it was true ; and C, D., and W. were known to the constable, and might have been produced as witnesses, but were not called, and inquiries were made of W., but the result ol the inquiry was not given in evidence ; it was held that the conviction was good, and that it was not incumbent on the prosecutor to call the persons to whom the prisoner had referred to disprove his statement.2 Any explanation given by the accused of his possession, at the time he is found with the stolen property, is admissible, when his possession is relied upon as a criminative fact.^ The explanation should be given such weight as its inherent probability, coupled with the failure of the State to disprove it, where the means of doing so lie peculiarly within its power, may, in the judgment of the jury, entitle it to.* In Texas it is declared that the possession of an animal without a bill of sale shall be illegal.^ But it cannot be inferred that the party in possession of an animal without a bill of sale is a thief. Failure to receive a bill of sale of property is not as strong evidence of guilt as failure to explain, when called upon, a possession of stolen property. Where the defendant offers as explanatory of his possession of property recently stolen, a bill of sale, the rule is stated to be, that " if the evidence tends to show an acting together, conspiracy, or complicity in the taking, between the vendor in the bill of sale and the defend- ant, the court may submit the lonafidea of the bill of sale that the jury may ascertain and find whether or not it was a sham or device conceived to cover up and avoid the crime of theft." « > Reg. V. Hughes, Cox C. C. 176. « Reg. V. Wilson, 26 L. J. M. C. 7 ; Cox C. C. 310. » Goeus V. State (Tex. Crim. App.), 31 S. W. 656. ♦ Payne v. State, 57 Miss. 348. » Tex. Rev. St. Art. 4563. « Clark's Crim. Law of Texas, 262 and note ; Prator v. State, 15 Tex. Crim. App. 363 ; Roberts v. State, 17 Id. 88. RECENT POSSESSION OF THE FRUITS OF CRIME. ^5 sequent to the offence does not raise the presumption. In one rase the gomls had been transporteH by common carrier from the tovyn where the burglary wa* committed to another town where they were called for and taken away by the defendant! who gave a false name. The court said this explained his pos! session so fai- as to prevent the application in its full force of the rule relatmg to the recent unexplained possession of stolen property, though it might be a very suspicious circumstance 1 A person charged with larceny may explain his possession !'Jd T"?;.''^''*,T '^^^ ^'^ ^^ ^^ *^« ^'""^ he acquired pos- session.!» The defendant and another were raught riding stolen horses. The defendant made no effort to escape, but hi com panion got away. The defendant then said that the horse belonged to his companion, who overtook him on the road and offered him the horse to ride to the town to which thev were both going.3 In another case a conviction was reversed where the accused had been arrested, while driving a drove of cattle, for the chef t of a steer which was in the drove. He had at once explained his possession by giving the names of the parties claiming to own the cattle and by whom he had been hired, and there was no evidence to overcome his explanation * If the State relies upon the fact that the defendant was in possession of the stolen property at different times, defendant has the right to introduce his explanations made at each time 1 here is no rule of law which confines a party to one explana-" The explanation itself may raise a suspicion of guilt And If the a<;count given be unreasonable or improbable on the face of It, or If the party have given different accounts of the same transaction, then he will not be relieved from the pressure of the general rule of presumption.« In one case the prisoner waa corroborated as to his statement that he had purchased the vi^iu ""' ®*^''' ^ ^^- ^^- ^^ «^« ^^^ «• Huma8on (Wash.), 33 »k ■' J o =» state V. Jordan, 69 la. 506. » G^ajardo v. State, 24 Tex. Crim. App. 603. * Perry v. State, supra. th'e te^t "''" "■ ^***'' ^^ '^^''' ^^^' ^^^' ^^ ^^'' '^''°^ ^*^*« illustrating •State «. En, 10 Nev. 277; Reg. v. Crowhurst. 1 C. & K. 370; Reg. v f SZ'V M ' ^««,''- ^'' '' ^^- "• ^^''^^' ^ ^- * ^- «^« : People «• Ekter.' 5 Lnm. L. Mag. 687 ; Roscoe, Cr. Ev. 21. i- «:*, 86 RECENT POSSESSION OF THE FRUITS OF CRIME. property ; but the detaUed circumstances of the alleged pur- chuflo strengthened the suspicion of guilt.» Where property stolen was in the possession of the accused the next day after the theft, and was offereti for sale by him, ho stating that he had bought it at a public auction, and persons living in the vicinity where he said the auction had been hold testiHed that there had been no auction there, a vertlict of guilty is warranted.' On the officers going to the house of a prisoner to search for the stolen goods, she denied having them ; but when they were found hidden, she said she had brought them with her from England. The goofls having been satisftictorily identified by the owner, the prisoner said that she was so infirm iia not to be able to leave her house, but this contention was not sustained, and she, having offered no evidence of good character, was found guilty of larceny .» In a recent case the prisoner was accused of tlie larceny of a gold watch. It Avas shown that he htul sold the watch, which was a valuable one, for a mere trifle ; that he had falsely stated he had bought it as a wedding pres- ent for his wife ; and that he had denied being at the place from which the watch had been taken, though it was satisfac- torily shoAvn that he had been there on the very morning. An instruction as to the presumption arising from recent possession was held proper, and judgment of conviction was affirmed.* And where the accused had disposed of the property at a price beloAv its value, and had made inconsistent statements at differ- ent times in relation to the possession, the jury was charged that the circumstance Avas strong and conclusive against the prisoner." But it is quite conceivable that a man found in the possession of stolen property might give false anil contradictory accounts of the possession, and yet be innocent of the thefl. And so, where this was the only incriminating evidence, it was held insufftr.ent to support a conviction.^ ' state V. Schaflfer, 70 la. 871. » Towle v. State, 47 Wis. 545. » People V. Mary Smith, 1 Wheel. Cr. C. 181. ♦ State V. Donovan (Mo.), 26 S. W. 340. » Armsteads' Case, 1 City Hall Rec. 174. And see Eubanks v. State, 83 Ga. 62 ; State v. Rodman, 62 la. 466 ; Conner v. State, 8 Tex. Crim. App. 455. « Norwood V. State, 20 Tex. Crim. App. 806. The defendant in this case was charged with the theft of a horse belonging to one Little. The de- fendant had undoubtedly had recent possession of the horse ; and when called upon to explain he had given several contradictory accounts, and RECENT POSSESSION OF THE FHUITS OF CRIME. g^ And tho fju;t that a party may not \w able to show how and when he acquired possession of the projierty is by no means conclusive of guilt. He is not to bo deprived of any other element cf defence.^ The presumption, though the possession be unexplamed, is fully rebutted by satisfactory proof of an alibi And where vitnesseb testified that the defendant was seventy! five mdes distant from tho place of a burglary at the time of Its commission, tho instruction concerning the presumption arismg from the possession of the goods should have included a statement of the effect of such proof." Uut tho defendant cannot rebut the presumption by introducing witnesses to testify that they heard some one else say that he committed the offence To allow such hearsay to rebut and overcome so strong a pre- sumption would be equivalent to holding that the jury ought to acquit in any case where the prisoner could engage some one else to say that he committed tho crime for which the prisoner was indicted, and then offer witnesses to prove that they had heard it said.* Good character has a very important bearing in rebutting the presumption of guilt consequent on possession.* And, in some cases, may be sufficient to entirely overcome the presump- tion.* If a purse of money be stolen in a crowd, and soon after the theft the same be found in the pocket of a man of known reputable character, the pocket being such that the puise could have been put there without his knowledge, the circumstance would hardly raise a suspicion sufficient to lean a charge of theft upon.« ^ Thus, in a case where the defendant was accused of larceny and the goods were found upon her, and her explanation was' had denied all knowledge of the person to whom he had sold the horse It was also shown that he went under an assumed name. A witness was mtroduced by the State who testified that he had witnessed a horae-trade made by the defendant with a Mexican, and that the horse in controverBv was the Identical horse which the defendant had got in the trade. > State V. Bonin, 84 Mo. 537 ; State v. Jordan, 60 la. 506. V ^u^J-J^"^^""^ ^^°-^' *® ^- ^- »^- To the same eflfect. see State v. iNorth, »5 Mo. 616 ; State v. Bonin, supra ; State v. Snell, 46 Wis. 524. • Daniel v. State, 65 Ga. 199. iK^^A^ ^^^'' ®^ ^''- ^^ ' ^*»*« ''• K«"y' "^3 Mo. 608 ; State v. Crank, 75 Mo. 406; State v. Gray, 37 Mo. 463; Hughes v. State, 8 Humph. 75: People V. Preston, 1 Wheel. Cr. Cas. 41. » State V. Kelly, 57 la. 644 ; People v. Hurley, 60 Cal. 78. • Ingalls V. State, 48 Wis. 647. I If: I r. 88 RECENT POSSEfeSION OF THE FRUITS OF CRIME. not Wholly satisfactory, there was evidence of prevous -oot; dS^^^i* '^^^ circumstances being doubtful, aii acquittal was Section II. The Element of Tltne. It is manifest that the force of this rule of presumption de- pends upon the recency of the possession as related to the cnme.^ The possession of stolen property does not raise a presumption against the defendant unless so recent as to ex- clude the opportunity of others to steal the property a The lapse of eighteen months after the larceny ha^ been held sufficient to rebut the presumption arising from possession of goods.* What IS recent possession depends upon the nature value and portability of the property. » If the time be long and the property of such a character as to be easily handled, and readily transmissible, the presumption is very slight « The possession of a metallic or paper piece of money, five days after It was stolen, might have less weight a-, evidence than the possession of Powers' Greek Slave five years after the lar- ceny of such property.? The term "recent" is a relative term, and a time which might be considered recent under one state of facts would not be so under another and difforeut state of facts. Thus m one case the money was not found untU more than three months after it had been stolen, but the con- ditions existing when it Avas found tended to show that it had been m the possession of the accused a considerable length ot time. Moreover, the presumption of guUty connection with the larceny was strengthened by tue facts that from a time soon after the money was taken ^he accused had in his pos- session and expended unusually large sums of money, and » People V. TurreC, 1 Wheel. Cr. Rep. 34. •"Shepherd r. State, 44 Ark. 39 ; White v. State, 72 Ala. 195 • State v iS sv^'p''; ':r '■ ^'°^"- ^' '''■ '^»' «^*« - Wolff' 5 l: Jf^^Z--^^'^' ®® ^'- ^- ^"^' ^'•^eory r;. mcbards, 8 Jones' L. 410- Stete « WiUiams, 9 N. C. 140. « Warren v. Stale. 1 la. 106. ' oAtiiCi, ;/>, m (jtatc V, liodj^e, oO r«\ u, 510. RECENT POSSESSION OF THE FRUITS OF CRIME. gO there was no explanation of tho sources from which he received tneni.* The question as to when a possession is recent is usually one of fact for tho jury.2 The possession of a horse, for example two months after theft, is a circumstance to be considered by the jury; but does not, even unexplained, raise a conclusive presumption.3 Where three sheets were found upon the pris- oner 8 bed, in his house, throe months after they had been stolen, Mr. Justice Wightman held that the case must c.o to the jury, on the ground that it was impossible to lay down any rule as to tho precise time, which was too great to call upon the prisoner to account for the possession;* and where seventy sheep vrere put upon a common on the 18th of June, but not missed until November, and the prisoner was proved to have had possession of four of them in October, and of nineteen njore on the 23d of November, the judge aUowed evidence of the possession of both to be given.^ And possession in one State of a slave stolen in another State five months before, was Hold, with the other circumstances, sufficient to justify con- viction.« In other cases convictions were had where twenty Rex V. Cruttenden, Best on Pres. 306 ; 6 Jurist, 267. » Rex V. Adams, 3 C. & P, 600. » P^g. v. Cooper, 2 C. & K. 318. * Reg. V. Hall, 1 Cox C. C. 231. » Beck v. State, 44 Tex. 430. • Yates V. State, 37 Tex. 202 ; Bragg v. State, 17 Tex. Crim. App. 219. 1 State V. Walker, 41 la. 217. « State v. Warford, 15 S. W. 886. » Moreno r. State, 24 Tex. Crim. App. 401 ; Lehman v. State, 18 Tex. Crim. App. 174 ; State v. Rights, 83 N. C. 675 ; State v. Williams, 9 Ired. ^^- '" Lindsey v. People, 63 N. Y. 248. " State V. Taylor, 20 S. W. 239 ; State v. CaBtor, 93 Mo. 243. RECENT POSSESSION OF THE IKUITS OF CRIME. gj a distinct and conscious assertion of possession by the defend- ant.i The presumption may scarcely arise at all if others be- sides the accused have had equal access vrith himself to the place where the property is discovered-^ Where it is found in the apartments of a lodger, for instance, the presumption may be stronger or weaker, according as the evidence does or does not show an exclusive possession. Where a conviction was had prmcipally on evidence of possession, but the articles were not shown to have been in the possession of the defendant, but only m a house of which he was an inmate, his own domicil bemg a room diiferent from that in which the articles were found, a new trial was granted.^ That the stolen property is found m possession of one for whom the defendant has been woxkmg will not raise the presumption against the defendant ♦ The rule is strikingly illustrated in a case where there was nothing to connect the prisoner with the goods except the fact that they were found in his trunk. The trunk was in the mid- ship of a canal boat in which other persons resided, and to which any one might have access, and was brought to the boat by the prisoner about nine in the morning, at which time it was locked. It was not shown that the prisoner opened the trunk or that he thereafter went to it for any purpose. He left the boat about noon. The officer who discovered the goods first saw the trunk in the afternoon, the day after the prisoner left the boat. At that time it bore unmistakable evi- dence of having been broken open by violence. Only a small portion of the goods stolen were in the trunk. It was held that the law would not presume that the prisoner broke his own trunk open until it was shown that he had no key to it- and that the fact that a portion of the goods was found in the prisoner's trunk under such circumstances was little, if any stronger than it would have been had they been found in some other part of the boat.^ As a general rule, where stolen goods are found in the house of a married man, they must be considered in his possession and not in the possession of his wife, unless there be evidence » Pollard t,. State (Tex. Crim. App.), 26 S. W. 70 ; People v. Hurley, 60 ? l.^^ Pr'** ''• ^*'**^' "^ ^''^- ^ ' Robinson v. State, 22 Tex. Crim. App. 690 (see facts); Moreno v. State, 24 Tex. Crim. App. 401 ; Field v. State, Id. 422 ; Williamson v. State, li S. W. 722. ! ?;*"'''''''' ^',r ^!^'^'"^' '^^ ^'^'- ~^"- ^ ^^"'"^e"" ^- State, 46 Ga. 637. State V. Wolflf, 15 Mo. 168. « Davis v. People, 1 Park. Cr. R, 447. 92 RECRN i POSHKaSION OF TTIE FRUITS OF CRIME. of Homothlng Hpeoiaily to implimto her, such m RtatomonU miKlt^ or arts done by hrr, in which case it must l)o left to tho jury to «l«cido in whoso iMwscHsion thoy woro.» Therefore where a wife was in.lii^iMl with her hu8banly to conceal his ^uilt, or screen him from the consel qnences." And where a constable went with a warrant to 80Hr(:h the prisoner's premises for stolen iron, anit>|H>r(y IS to be considered in the possession of the defendant or not, IS a cpiestion for the jury.« In tho case last cite found at his father's. There was testimony tending to > R«'K. f>. Banks. 1 Cox C. C. m ; State v. Johnson, t Win«t. 388 ^ «..«. ... MotMaiTtw. 8 a>x C. C. 435. An.l «h, IU^r. t-. Bnv,k. 6 Cox C. 'V! , . , • R«'R- «'• Mansfield. 1 C. & M. 34a. « rv^rkins e. Stato. !W Tex. 109. » State .-. Philps. 91 Mo. 478 • St;Uo V. nn>W8U«r. 7 Vt. 118 : St«t.> v, V.»n \Vi.>ii.. mw„ ,► RECENT POSSESSION OF THE FRUITO OP CRIME. 93 show that tho dofondunt made his home at his father's He mis a sin^^lo man, and, so far jis appeared, had no other homo 11.3 always came there to stay when not at work elsewhere' an( when there worketl on the farm. In his testimony he spoke of the phice as " our house." From this the jury iht md possession in the defendant. And where the evidence tended to prove that the husband of the defendant aided in the (iommission of the theft, it was permitted the State to show that iKirt ot the stolen property was found in his possession » On tho trial of two men at Aberdeen, autumn circuit 1824 It ai)pearod that a carpenter's workshop at Aberdeen was broken open on a particular night, and some tools carried off and that on the same night the counting-houses of Messrs' JJavidson, and of Messrs. Catto and Co., in different parts of that cnty, were broken into, and goods and money to a consid- erable extent stolen. The prisoners were met at seven on the folio wmg morning in one of the streets of Aberdeen, at a dis- tance from either of the places of depredation, by two of the police. Upon seeing the officers they began to run ; and being pursued and taken, there was found in the possession of each a considerable quantity of the articles taken from Catto and Co., but none of the things taken from the carpenter's shop or Davidson's. But in Catto and Co.'s warehouse were found a brown coat and other articles got from Davidson's which had not been there the preceding evening when the shop was locked up ; and m Davidson's were found the tools which had been abstracted from the carpenter's. Thus, the recent possession of the articles stolen from Catto and Co.'s proved that the prisoners wore tho depredators in that warehouse ; while the fact of the articles taken from Davidson's having been left there, connected them with that prior housebreaking ; while again, the chisels belonging to the carpenter's shop, found in Davidscm's, identified the persons who broke into that last house with those who committed the original theft at the car- IKMitor's. The prisoners were convicted of all the thefts.^ A still stronger case of the same kind occurred at Aberdeen m April, 1820, on the trial of a man who was accused of no fewer than nine different acts o. , left by housebreaking, com- > State 1'. Wohlman, 34 Mo. 482. "Roxi-. Downieand Milne, Alison's Pilnc. 813; 2 Mascardm,. .,t suora 94 BECENT POSSESSION OF THE FRUITS OP CRIME. ihii initted in and around that place at various times during the summer of 1825 and the following winter. No suspicion had been awakened against the prisoner, who was a carter, living an industrious and apparently regular life, until one occasion, when some of the stolen articles having been detected in a broker's shop, and traced to his custody, a search was made, and some articles from all the houses broken open found amongst an immense mass of other goods, evidently stolen, in a large chest, and about various parts of the prisoner's house. Their number and variety, and the place where they were found, were quite sufficient to convict him of receiving the stolen property ; but as they were discovered at the distance of many months from the times when the various thefts had been committed, the difficulty was how to connect him with the actual theft. The charges selected for trial were five in number, and as nearly connected with each other in point' of time as possible. In none of them was the prisoner identified as the person who had broken into the houses, although the thief had been seen, and more than once fired at ; but in all the first four houses which had been broken into were discov- ered some of the articles taken from the others, and in the prisoner's custody were found some articles taken from them all, which suificiently proved that all the depredations had been committed by one person ; and the mark of an iron in- strument was found on three of the windows broken open, which coincided exactly with a chisel left in the last house. Two days after the housebreaking of that house, an old watch, part of the stolen property, was shown by the prisoner to a shopkeeper, to whom he soon afterwards sold it, and by him delivered up to the officers. Upon this evidence the prisoner was convicted of all the charges of housebreaking.^ Section IV. The Nature of the Crime to he Inferred. The recent possession of stolen property may sometimes be referable, not to the crime of theft, but to that of having received it with a guilty knowledge of its having been stolen. There is * Rex V. Bnw!n!in, Alison's Princ, 314. RECENT POSSESSION OF THE FRUITS OF CRIME. 95 no presumption that recent possession points more to stealing than receiving. In no case can recent possession be said to be exclusively ^tma facie evidence of stealing rather than of re- ceiving, unless the party is found so recently in possession of the property, and under such circumstances, as to exclude the possibility of receiving.i In the case just cited, nothing appear- mg except that the prisoner was found in possession of the sheep stolen, several Aveeks after the theft, he was held to have been properly convicted of receiving. Four persons were found guilty of housebreaking on proof of the recent possession of the goods, and narrowly escaped execution, the offence at that time being capital ; but it was afterwards ascertained that one of them, who had long been known as a receiver of stolen goods, knew nothing of the robbery until after it had been committed, and had purchased the goods from the real thieves the day after the robbery .2 The difficulty of referrmg the any and driving two oxen, who, finding that he was going to London, offeroti him five shillings to drive them for him to London, which ho agreed to do, the man engaging ta meet him at Westminster Bridge. At Wandsworth he wag apprehendeil by the prosecutor's son, and charged with steal- ing the oxen. On his apprehension he assumed a false name, under which he was trieil, to conceal his situation from his friends, and convicted, but on a representation of the circum- stances he receive«« poverty of the defendLt, was admitted as tendmg to prove a single act of larceny i It 18 not necessary that the possession of all the goods stolen should be traced to the defendant. The possession^of a part of the stolen goods, of the smallest value, in connection with olher circumstances may clearly fix vhe guilt of stealing all uln the m^T "^'T ^ defendant gave away atfhe saltime different recently stolen articles, this fact is sufficient to warrant the conclusion that he took the articles at one time.' 1 Com. V. Montgomery, 11 Met. 534. CHAPTER V. UNEXPLAINED APPEARANCES OF SUSPICION, AND ATTEMPTS TO ACCOUNT FOR THEM BY FALSE REPRESENTATIONS. As a general rule, to which the exceptions can be but rare, it is a reasonable conclusion, that an innocent party can explain suspicious or unusual appearances, connected with his person, dress, or conduct ; and that the desire of self-preservation, if not a regard for truth, will prompt him to do so. The ingen- uous and satisfactory explanation of circumstances of apparent suspicion alvrays operates powerfully in favor of the accused, and obtains for him more ready credence when the explanation may not be easily verified. On the other hand, the force of suspicious circumstances is augmented whenever the party attempts no explanation of facts which he may reasonably be presumed to be able and interested to explain.^ The mere pre- sumption of innocence does not overthrow the presumptions from the unexplained facts.^ A woman was indicted for the murder of her infant child. The dead body of a newly-born and well-developed child had been found in a dry well within a few yards of the defendant's house. Its skull was fractured, and a cord was tightly fastened around its neck. The woman denied having given birth to a child. But it was shown that she had been, a few days before the discovery of the body, in an advanced stage of pregnancy, and that later all signs of pregnancy had disappeared. Her bed-clothing and mattress were saturated with blood ; and she was seen washing clothes which were bloody, and refused to say whose clothes they were. The defendant, having refused to offer any explanation as to any of the suspicious circumstances, was convicted.^ A peculiar case was a proceeding for partition by one claim- ing under a deed which purported to have been made by three ' State V. Ingram, 16 Kan. 14. * Echols V. State, supra. " Echols V. State, 81 Ga. 696. 104 rare. UNEXPLAINED APPEARANCES OF SUSPICION. 105 out of seven heirs. The instrument was executed by the marks of the makers, when it was known that they could write their names, and it was not brought to light for about fourteen years subsequent to its date, and after those whose deed it purported to be were dead. No explanation having been attempted for such unusual circumstances, the petition was denied » Where two were indicted for passing a counterfeit bill, it was considered a strong indication of their guilt that on their ex- aminations eax3h charged the other with passing the bUl, and neither of them gave any satisfactory explanation of the pos- session of it.3 '^ As has been heretofore remarked, in cases of circumstantial evidence the jury should have before them every fact, how- ever slight, which would aid them in rea<)hing a satisfactory conclusion.3 Very slight circumstances, when taken with others may assume importance ; such as, that a light was seen in the house of the prisoner at an unusual hour of the night, about the time when he was supposed to have murdered the deceased there.* Evidence was admitted, in one :ase, that the defendant was seen, shortly after the commission of the theft of which he was accused, on an untravelled, out-of-the-way road, instead of going along the public highway .i^ A woman was indicted for the murder of her son-in-law by poison, and the prosecution, to support the contention that the deceased's wife was accessory to the crime, were aUowed to show that the two women slept together on the night after the murder, and that they were heard whispering together for some time after retiring Though this, standing alone, might not be a very suspicious cir- cumstance. It was rightly submitted to the jury in connection with other facts.^ Though it cannot be necessary in every case before a con- viction for burglary can be had, to show that the defendant Avas stcjn near the place where the burglary was committed, and about the time of its commission, yet the fact that he was so seen may be a circumstance tending to show guilt.' ^ Watson V. Robertson's Heirs, 15 Tex. 333. " Reynolds' Case, 2 City Hall Rec. 47. » Pogin V. State. 12 Tex. Crim. App. 283, and supra. People V. Johnson, 2 Wheel. Cr. Cas. 361. » Green v. State, 12 Tex. Crim. App. 51. ^ People V. Flynn, 73 Cal. 511. 1 iV -1 166 UNEXPLAINED APPEARANCES OfF SUSPICION, It is a circumstance of suspicion against the accused that he was in the company of one known to have been implicated in the crime charged shortly before, or soon after, the commission of such crime, especially when he oifers no explanation of his business with such person.^ It was shown in one case that, on the day after the theft, the accused was seen talking to the per- sons in whose possession the stolen goods were found." The defendant wm charged with having committed a burglary on November 2, and it was shown that on October 25, he was seen in company with one Avho was convicted of the burglary charged, that they occupied a room together before and after the burglary, and that they Avere seen together on the evening of November 2.* The accused was seen in the company of two men who were identified as having committed a robbery, im- mediately before the offence, riding toward the place of the commission of the offence, and again, soon after the offence, riding away from the place, and the tracks of whose horses were found near the place of the robbery. Defendant was convicted.* On a trial for larceny from a building, the government set up the theory that the arrangement was that one defendant should distract the attention of an employer in the building, while the other should steal the money, and a third person keep watch outside, and evidence was admitted that the three were seen together shortly before the larceny walking toward the place of the larceny, and were seen together in the same street the morning after .^ On a trial for robbery, testimony that the accused was seen at various places in the neighborhood on the day preceding the night of the robbery ; that he made inquiries and statements about purchasing tobacco, which in- dicated that they were pretexts ; that he had apparently some connection with two other strangers whom he met at the hotel, was competent as circumstantial evidence in connection with the narmtive of the prosecuting witness.^ The defendant, accused of homicide, was the last person seen with the deceased on the night of the killing, going toward the spot where the » Langford v. State, 17 Tex. Crim. App. 446. ' Langford v. State, supra, » People V. Burns, 67 Mich. 537. « Odle V. State, 13 Tex. Crim. App. 612. » Com. V. Griffin et ah, 4 Allen, 810. - voni. t'. Williaais, 105 Muss. 63. IB:; "1 AND ATTEMPTS TO ACCOUNT FOR THEM. jq^ body was found.i After bis return to his boarding-place h^ asked for water, and wiis heard to make a noise, m though washing himself. The next morning he traxied clothing with a third party, and blacked his boots, a :hing he had not been known to do before during the six weeks that he had boarded m that place. He told a woman whom he owed that he had no money to pay her, but afterwards, on the same morning made another woman a present of money which he took from a pocket-book identified as belonging to, or exactly like, one owned by the deceased. He was heard to threaten to kill wit- nesses If ihcy swore against him. These circumstances were held sufficient, m the absence of any explanation, to justify a verdict ^of guilty.2 Under a charge of larceny, the evidence showed that the stolen cotton was traced to the vicinity of the defendant's residence, and was hidden in apine thicket near by • that the wagon and human tracks, which led to the point where the cotton was deposited, led also from that place to the de- fendant s house; that one of the footprints corresponded with his tracks, which ha^ some marked peculiarities, and the im- pression made by the wheels of the wagon strongly resembled those made by the wheels of one of the wagons found where the defendant lived; and that no other person dAvelling there had so large and peculiar a foot as he. These facts not beinff explained by the prisoner, a conviction was held to have been Avarranted.3 An old man on his way home from market, where he had stayed late, was attacked, thrown down, and robbed by three men one of whom he wounded in the struggle withaclasp- knite. Upon the apprehension of one of the robbers at the house of his mother, he was dressed in a new pair of trousers and the constable found in a room upstairs, between the becl ami the mattress, a pair of trousers with two long cuts in one thigh, ^one of which had penetrated through the lining, and was stained with blood at that spot ; and the holes had btn sewel with thread which was not discolored, showing that the blood must have been applied to the cloth previous to the repair ; and a corresponding cut bound over with plasters was found on the prisoner's thigh. He refused to give any explanation of the 1 See also McGill v. State, 25 Tex. App. 556. * Jackson v. Statf>, 9 Tex. Grim. Anp. 114 » Bryan v. State, 74 Ga. 393. "* in5i 'I 1 108 UNEXPLAINED APPEARANCES OF SUSPICION, wound or of the cuts in the garments, and was convicted and transported. 1 It was considered a strong circurastanco, justifying sua picion, of one accused of homicide, that, while the whole com- munity was in great excitement over tlie murder, though ho lived within a convenient distance, ho neither visited the scene of the murder, nor the home of the deceased, nor did ho offer his services or condolences, in any manner, to the bereaved family.^ But circumstances of suspicion merely, without more conclu- sive evidence, are not sufficient to justify conviction, even though the party offer no explanation of them.^ It is not, for instance, a sufficient circumstance to authorize a conviction for larceny that the accused had been keeping bad company.* Where it is in the power of one accused of crime to show, if he is not the guilty party, Avhere he was at the time when the crime was committed, and he makes no effort to bring forward such evidence, this circumstance is sufficient to create a strong presumption against him, but is not conclusive.'^ Two women were indicted for coloring a counterfeit shilling and sixpence, and a man as counselling them ; and the evidence against him was that he visited the women once or twice a week, and that the rattling of copper money was heard Avhile he was Avith them ; that once he Avas counting something just after he came out ; that on going to the room just after their apprehension, he resisted being stopped, and jumped over a wall to escape, and that there were found upon him a bad three-shilling-piece and five bad sixpences : upon a case reserved, the judges thought the evidence too slight to convict him^ So natural and forcible is this rule of presumption, that the guilty are instinctively compelled to endeavor to evade its ap- plication, by giving some explanation or interpretation of adverse facts, consistent, if true, with innocence ; but its force is commonly aggravated by the improbability, or absurdity even, of such explanations, or the inconsistency of them witli admitted or incontrovertible facts. All such false, incredible, or contradictory statements, if dispro\ od or disbelieved, are not 1 Rex V. Dawtrey, York Spr. Ass. 1841. " Dean v. Com., 83 Grat. 913. a Newman v. State, 26 Ga. 637. * drr V. State, 84 Ga. 342. 8 Gordon v. People, 33 N. Y. 501. « Rex V. Isaacs, 3 Russell (9th Amer. Ed.), 316. AND ATTEMPTS TO ACCOUNT FOR THEM. 109 simply neutralized, but become of a substantive inculpatory effect. Mendacity is a circumstance against the person who resorts to it.i The fabrication of false and contradictory ac- counts by an accused criminal for the sake of diverting inquiry or casting oflF suspicion, is a circumstance always indicatory of guilt.2 \n explanation for the execution of a conveyance which is raise, may itself authorize the conclusion that the con- veyance is fraudulent.8 And where the prisoner, accused of theft, hatl, on a day subsequent to the stealmg, an unusual quantity of money which he accounted for in a false way a verdict of guilty was held to be justified.* On a trial for mur- der by drowning, the prisoner had five marks on his hand which were supposed to have been made by the finger-nails of the deceased in the death-struggle, and the prisoner's contradic- tory statements as to the cause of these scratches were ad- mitted as a circumstance against him.* On the trial of a husband for the murder of his wife by poison, it was shown that false and contradictory accounts had been given by the prisoner both as to the purchase of the poison, and his whereabouts imme- diately thereafter.^ And on the trial of another cause of the same nature it appeared the accused had made contradictory statements as to the use for which the poison was intended And It was shown that the defendant had told the servant whom he had sent after the strychnine, to say, if any one asked what Jiad become of the powder, that it had been stolen out of his coat-pocket while his coat was hanging in a restaurant ? On the trial of an mdictment for murder, the State introduced as a witness one Dodge, who testified that he went to the iail where the defendant was confined, with a certain gun and pawn- ticket, and asked the defendant in the presence of one Shuman If he knew the gun, and if he had signed the ticket, and that the defendant denied all knowledge of the gun and also denied signing the ticket. The witness testified that he then asked bhuman in the defendant's presence if the defendant signed 1 Lovett V. State, 60 Ga. 257. S^^M^Z' M^""^' ^^ ^^- ®*- ^^^- ^"'^ «^ State V. Holden. 42 Minn. 850 ; McDonald v. State, 82 S. W. 403. * Little V. Ragan, 83 Ky. 321. ♦ Thomas v. State, 13 Tex. Crim. App. 493. 6 Cheverina v. Com., 8 dim. L. Mag. 760. « McMeen v. Com., 114 Pa. St. 300. ^ Roe V. State, 25 Tex. App. 33. I 110 UNEXPLAINED APPEABANCfiS jF SUaPICION, the ticket, and Shuman replied that he did, and that the de- fendant then said that he did not sign it, and also said again that he had never seen the gun or the ticket. The gun waa iden- tified by three witnesses as having been the property of the deceased at the time of the homicide. Shuman testified that he was a pawnbroker, and that on a date Ave days after the homicide, but before the discovery of the crime, the defendant brought the gun to the plmje of business of the witness and pawned it to him, signing two pawn-tickets ; one of which was retained by the witness, the other being given to the defendant. Other evidence showed that the pawn-ticket which Shuman identified as the one he gave the defendant was found con- cealed at a place where the defendant had been seen to go. The Supreme Court held that the defendant's denial of ever having seen the gun or signed the ticket was a circumstance proper for the jury to consider with other circumstances in de- termining his guilt.1 In a trial for malicious shooting, it appeared that the prose- cuting witness had returned the fire with a shot-gun. It was clearly proper to admit evidence in rebuttal that the accused had attempted to account for gunshot wounds upon his person in a manner contradictory to his testimony on the trial.a But even in such cu-cumstances, however, guilt cannot be safely inferred, unless there has been laid such a substratum of evidence, direct or circumstantial, as creates a strong inde- pendent ^/^'ma/am case against the prisoner.s On a trial for the murder of a female by poison, whom the prisoner alleged to have died from the effects of a draught taken by her in anger during an altercation between them, Mr. Baron Parke told the jury that it was for them to say whether the falsehoods the prisoner had told did not show that he was conscious that he had been guilty of some act that required concealment; that it was very true he might not wish it to be known he had been visiting a woman who, there was good reason to believe, had formerly been his mistress ; but that, if he was an innocent man, and had been present at the death, one would have sup- posed he would have disclosed it immediately and called in » McDonel v. State, 18 Cent. L. J. 374. « Logan V. Com., 16 Ky. L. Rep. 508 ; 29 S. W. 632. • Per Mr. Justice Ltttledale, in Rex v. Clark, Warwick Summer Ass.. 11 I i ^ AND ATTEMPTS TO ACCOUNT FOR THEM. m some assistance. They had here two untruths : that he meant fttr f fu '"''^ '"'^ °^ ^^' ^«^^" ^«^ d^^ «ot, and his denial that he had been out of London that evening; these, he S were very material matters for their inquiry: bearing in S that upon the evidence there was a very' ample caae iJ ^ve that deaf ITTT;'"' 5?''"' ^" '^' ^«"«« ^' '^' ™«°^ent o that death. His lordship added, that if the prisoner's representa- ^on had been true, that the deceased had'poisoned heSone would have supposed that he would have tin the flrst o^por tun ty, havmg been present at the time this occurred, of exon- erating himself from it, by making this declaration to the first pe^on he met ; one would expect if he had been a man of the least cordial feelmg, he would have waited to see whether it waa true or not that she had taken this poison, and caUed for ajsistence, mstead of which, he is proved to have gone in a short time to London, and when he got to London he is proved to have denied altogether that he had been there. You must judge, said the learned Baron, of the truth of the case against a person by all his conduct taken together.^ Allowance must nevertheless be made for the weakness of human nature and for the difficulties which may attend the proof of circumstances of exculpation ;= and care must be taken that circumstances are not erroneously assumed to be suspicious without sufficient rec.son.8 ^ ^ Reg. V. LaweU, Aylesbury Spr. Ass. 1845. a Rex V. Gill, ut aupra, 83, and 3 Hale's P. C. ch. 39. Rex V. Looker, and Rex v. Thornton, irtfra. fi;l' ! ii CHAPTER VI. CONFESSIONAL EVIDENCE. Section I. General Consideration of the Bules Belating to Confessions. A CONFESSION of guilt partalces rather of the nature of posi- tive than of circumstantial evidence.^ But though the subject of direct confession does not fall within the province of this volume, it is necessary to advert to some of the principal rules which relate to that important head of moral evidence, because they are of great moment in their application to such particu- lars of circumstantial evidence as are only indirectly in the nature of confessional evidence. Confessions aie judicial or extrajudicial. Judicial confes- sions, says Prof. Greenleaf, are those which are made before the magistrate, or in court in the due course of legal proceedings. Extrajudicial confessions are those which are made by the party elsewhere than before a magistrate, or in court ; this term era- bracing not only explicit and express confessions of crime, but all those admissions of the accused from which guilt can be implied.2 1 Langdon v. People, 133 111. 882 ; Eckert v. State, 9 Tex. Crim. App. 105 ; White v. State, 82 Tex. Crim. App. 625. But confessional evidence may be circumstantial, as, for instance, if it be of a fact which is itself but a circumstance. Eberhardt v. State, 47 Ga. 598. » 1 Greenl. on Ev. § 216. And see U. S. v. Williams, 1 Cliflf. 5. Statements of the defendant which do not amount to an actual confession of guilt, but are admissions of isolated facts from which guilt can be in- ferred, are relevant and admissible. Ettinger v. Com., 98 Pa. St. 338 ; Luby V. Com., 12 Bush (Ky.), 1. Where testimony was to the effect that on the day the assaulted party, while riding a horse, was injured, the defendant had declared that he bad 11^ CONFESSIONAL EVIDENCE. lis Many of tire earlier caaes in England went to an extreme r-.-r- unae, wi,ie,. Z7z,.Tz:7::^T: lulmif f«.i L • 1 ■[ ®' *"*^ confessions may be vUm tted m evidence, it must appear that they were volunterv * Confessions or disclosures extracted by any threat or oS«!^!:i by the mauence of any promise or enc';,ur4m"nLf anrh'S or favor, are madmissible In criminal prosJutions« S co^ fession, which is inadmissible on the ei^und of nTho . voluntanl,^ must have beentClylt ^Tff t? onai injury, or hope of personal benefit of l tompor7nat^e ^Zul Tottetrrmt htT ^^^T ^ ^^^ s^.ent as a conZi^ Kvt^%^l[^:;r^.r ^^^^ in^^ZlTTl ^ ^"^P^^f ' ^^« -n^essifn th'us obtlli'^i^ maamissib e.7 if, however, the confession is not so connected wita any threat or promise as to be a consequence of T^T-f be regarded as voluntary, and, of course, SisX« ' ' '" which he waa on trial and that .t Tl . k ^^^ *^«"^""tted the deed for the jury could so crndudl^keZ Zil T 'T" '' '"'"^"•^^ **»«* ; Baron Pxhkk. in Reg. . bX 12 1^ L. * ^E,"^;^" ^^^^ ^«''- h:drL^ar4?aa'^S-^n'^^ (Net^) C^N. W. 811 ; Eher- cated. "thark wasezcL .nH .?"' *''•** ^'^^ defendant was intoxi- noonewhohe:rZ™ tfa^perluZtl^ declarations or coxxfes^innlJ I • ^ • ® ^*"*' ^"^ "^^ ""ender hia 609. ^ '*' '^ ^°- ^^ ' Ballard v. State, 19 Neb, state u, PhelDfl 11 V* ii« nl' !i o ' ' ^*°P'® ^' ^^^e, 49 Cal. 342 ; 3 Harr. 567 ; ?;id rsut'e' 6ti?a' 35^;^"™?.'- 'I = '*^*« ^^ «— "Com. r. Mitchell 117 M^i?; «' ^^"^ ^^°P*^' ''^^ ^ich. 706. Alphonse, 34. U Ani 9 ^Uett ' Pi "' ?*"*'' '' ^'^^ '"^ ' «***« ^• Gloin, 91 N. Y84i People fLvTw.^^ *^""' '^^^ ' P««P»« «• Mc- Grout. 83 Me. 171 ' ^ ^''"'' ^ ^*^""^- <^'-- <^««- 4«7 ; State v. Cr;.Statr.^o%^^??AL^*« - ^f^^. is con. I66. And see ^ ^. J o , ,T oiu f. acate, oO Ala. 180. ', i i I i 4 lU CONFESSIONAL EVIDENCE. The fact that a confession was made by one who was shackled and in custody and when he had no counsel, is not suiHcient to make it inadmissible.^ A confession is competent evidence, although threats and promises have been made, where it satisfa<;torily appears that it was not induced thereby.' And if a jury is instructed that confessions or admissions must be made voluntarily, and that if the jury find they were made by the accused under undue influence, they cannot be considered, this is all the accused can ask.^ It is no reason for the exclusion of a confession of one chargetl with arson that it was obtained by the artifice and deception of the person to whom it was made in pretending that he was in sympathy with barn-burning and wanted to have some burning done on his own account. In this case the confession admitted in evidence was made in the hearing of officers who were concealed near by but without the knowl- edge of the accused, and before his arrest.* Confessions made on the next day after defendant's arrest are not rendered in- competent by the mere fact that they were made to the same officer who made the arrest, and that such officer at the time of the arrest had held out certain inducements to the defendant, where it seems clear that such confessions were voluntary and not made in reliance upon such inducements.'* And the fact that one, on being arrested, was told by the oflRcer at the time of the arrest that giving himself up was the best course that he could pursue, does not render inadmissible confessions then made to the officer, it not appearing that anything further was said or done by the officer prior to the confessions.^ It appearing that a confession was freely and voluntarily made, it was held immaterial that firearms were at the time deposited in the room, where they were not exhibited to defendant, and were not procured for the purpose of intimidating him.' The burden of proving that a confession was voluntary lies 1 Sparf V. U. S„ 156 U. S. 51 ; State v. Gorham (Vt.), 81 Atl. 846 ; Com. V. Sheehan, 163 Mass. 170. a Hartley v. People, 156 111. 234. » People V. Warner (Mich.), 62 N. W. 405. « Stone V. State (Ala.), 17 So. 114. ^ Com. v. Myers, 160 Mass. 680. • Willis V. State, 93 Ga. 208. 7 State V. Watt, 47 La. Ann. — . CX)NFESSIONAL EVIDENCE. 115 Its admission i\s ovidence." * ocuwion Any sufficient testimony to robut the presumption that a onfessu,n w,ts prompted by any degree of influence wiS ust fy the court m adnutting the testimony. In one cle t !v^ said to be a significant fact tending to show th!t H.n :i^:ina^^:r::;-3= to talk with witnesses about the iXof thf mon "^^^^r""''^ This evidence ought to be recpivpW wif k +i ana afte. tue ,„3i.mty of ^rM^^ttrrr ^^ * Reg. V, Wamneliam 2 Dpn r n aa^ o ^ Ed.), 481. ^ ' ^ ^^"- ^- ^' ^^' »• ; 8 Ru8«. on Crimea (9th Am « Bartley v. People, 156 111. 234 • state V. Matthews, 66 N. C 106 "™^"' '«* ^a- 382. 1 MLrarrrars, ta7^ ^^« = ^-. . Mccim, of inducement, it nmst be " own that tliet? '°"''^"" °" "'« ^^^^^^ tl.e punishment of tl,e crime cLVed *' 1 "^""T^"* ^"^ '•«^«'«««« *» u confession is obtained by a pronSe to u^f J!; "h"' '' ''*• ^^- ^hen ^e.d that such confessionals InSnLfble'^ry;';'* ^tate TT '^"; '' '^ A confession obtained by a promise "nnf ^ ' ^ ^umph. 39. missible. Rector v. Conu, 80 Ky Z "f„ *^ P^««^«"te heavy" is ,„ad. years old that she shall not be hurt is such .n^T"'^ ^ * ^^^ f*^"'-*^^" confession insufficient for convSL and -m" '"^"^"»«"t «« renders the so to charge when requested Si; ^f V"r?" ^""^ *^" ^•°"^* *«> '«f"«e tion to the defendant nn. ;'-)' o^ M - f. ' " ^^' '^"^ ^"* ^'t^-- « ^au- .« - ''O^^i'^'ielf, a confession is voluntary. State 'I ' m Wf 'P ; t h-i iiii lib CONFESSIONAL EVIDENCE. But a voluntary and unsuspected confession is clearly sufficient; to warrant conviction, wherever there is independent proof of the corpus delicti.^ It has been sometimes asserted that a confession alone, un- coiTot orated in any way whatever, is a sufficient ground for conviction." But in all of the cases adduced in support of this V. Rigsby, 6 Lea (Tenn.), 554 ; Matthews v. State, 9 Lea (Tenn.), 138 ; Com. V. Sego, 125 Mass. 210. And urging the prisoner to confess if guilty, but not to confess if innocent, will not render the disclosure inadmiasible. Meniaka v. State, 55 Ala. 47. Where the constable had said to the prisoner, after telling him the charge, " that he must not say anything to criminate himself, that what he did say would be taken down, and used as evidence against him," Lord Campbell, C. J., at the trial, received the evidence, but reserved the point for the consideration of the Court of Criminal Appeal. All the judges were of the opinion that the statement was admissible. Pollock, C. B., said : " A simple caution to the accused to tell the truth, if he says anything, has been decided not to be sufficient to prevent tlie statement being given in evidence ; yet even in that case the person charged miglit liave luiderstood the caution as meaning that he could not tell the truth without confessing liis guilt. It has been decided that that would not prevent the statement being given in evidence, by Littledale, J. , in R. V. Court, 7 C. & P. (32 E. C. L.) 480 ; and by ROLFE, B., in a case at Gloucester, R. v. Holmes, 1 Car. & K. (47 E. C. L.) 248 ; but where the ad- monition to speak the truth has been coupled with any expression import- ing that it would be better for him to do so, it has been held that the con- fession is not receivable ; the obirctionable words being, ' that it would.be better to speak the truth,' because they import that it would be better for him to say something. This was t'ecided in R. v. Garner, 1 Den. C. C. 329 ; 2 C. & K. 930 (61 E. C. L.). The true distinction between the present case and a case of that kind is, that ht re it is left to the prisoner as a perfect matter of indiflference whether he should open his mouth or not." R. v, Baldry, 2 Den. C. C. 4C0 ; 21 L. J. i . C. 130. With regard to the nature of inducements and confessions made in consideration thereof, see further, R. V. Jarvis, L. R. 1 C. C. R. 96 ; 37 L. J. M. C. 3 ; R. v. Sleeman, 1 Dear. C. C. 249 ; R, v. Upchurch, 1 Moo. C. C. 465 ; R. v. Hearn, 1 Car. r«,f that the crim'e has be:^^^ ^^'^n::if'^:ilrr^,Z\^^'f "'•"':■ «■ * «• «'^ «- «• leaf, L. of Ev 8 m ' ' ^ "' "'''*''■ "■ ™> i ' 0«f • ' In . note to 8 Em,, on Crime, (Dth Am., from 4lh Lo„d Ed 1 W7 wTXrS;lS'„"^'<^7iV;„?-'. 2- -; sL „. Mo. 592 ; People v. Hennesey 15 Wend U7 p f. ' il'"""'' "■ ^^^' ^^ fellow t,. State. 26 M^ls? ' ^'' ""■ ^*"'' '^^ ^•«»'- «^ ' St^ng- ^Ky Cr. Code, § 240. See Green wade r. Com 12S W iai r. . ■ pl?52T.^.S'?'7.'f'"^^^'*^^= lGreenleafsEv.§217 Alison's i-nnc. 325 , Code Penal d'Autriche, partie 1 , § 2, ch x >, li i . 118 CONFESSIONAL EVIDENCE. by some one is necessarily corroborative of a confession by the defendant that he committed the crime.* A great variety of facts usually attends, or is incidentally connected with, the commission of every crime. Proof of any number of these facts and circumstances, consistent with the truth of the con- fessions or which the confession has led to the discovery of, and which would not probably have existed had the crime not been committed, necessarily corroborate it, and increase the prob- ability of its truth.2 The corroboration is sufficient even if the corroborating circumstances are capable of innocent construc- tion, and the confession alone furnishes the key.' An inde- pendent fact having evidentiary significance of its own, though discovered in consequence of a constrained confession of the prisoner, is admissible in evidence unless the confession was obtained by the use of criminal violence. And in such a case the acts and declarations of the accused, so far as they explain, and are necessaxy to account for the discovery of such fact, are admissible also, but as being part of the res gestw, and not as a confession.* A prisoner having confessed to shooting the de- ceased with buckshot of a certain kind, it may be proved, as corroborating his confession that buckshot of that kind were found in a tree at the scene of the murder.^ And a conviction was held proper, where the confession of the prisoner, accused of burglary, was corroborated by evidence of his attempt to escape when found in possession of the stolen goods.^ It is said by Mr. Justice Foster^ that hasty confessions made to persons having no authority to examine are the Aveakest and most suspicious of all evidence. Proof may be too easily pro- cured, words are often misreported,^ through ignorance, inat- 1 MuUins V. Com. (Ky.), 20 S. W, 1035. 2 Bergen v. People, 17 111. 426. « People V. Jachne, 4 N. Y, Crim. Rep. 478. « Rusher v. State, 94 Ga. 363. 6 jioge «. state, 36 Ala. 211. « State V. Moore, 22 S. W. 1086. » Discourses, 243. ' The language of the witness may be substituted for that of the accused. Law V. Merrill, 8 Wend. 268 ; State v. Gardiner, Wr. Rep. 293. •' It very frequently happens, not only that the witness has misunderstood what the party has said, but that, by unintentionally altering a few of the expres- sions really used, he gives an effect totlie statement completely at variance with what the party really did say." Mr. Baron Parke, in Earle v. Picken, 5 C. & P. 542, n. So where one of two witnesses, called to prove the same statement of the prisoner to his wife, said that the words were, " Keep your- self to yourself and don't many again," and the other, " Keep yourself to yourself and keep your own counsel." Rex v. Simons, 6 C. & P. 640. CONFESSIONAL EVIDENCE. 119 inat- tention, or maUce, and they are extremely liable to miscon- struction.* Confessions, then, as has been said, ought always to be received with great caution. Judicial history presents innumerable warnings of the danger of placing implicit depend- ence upon this kind of self-condemnatory evidence, even where it is exempt from all suspicion of coercion, physical or moral or other sinister influence.^ How greatly, then, must such dan- ger be aggravated, where confession constitutes the only evi- dence of the fact of a corpus delicti; and how incalculably greater in such cases is the necessity for the most rigorous scrutiny of all collateral circumstances which may actuate the party to make a false confession ! The agonies of torture the dread of their infliction, the hope of escaping the rigors of slavery or the hardships of mUitary service, a weariness of existence, self-delusion, the desire to shield a guilty relative or friend from the penalties of justice," the impulses of despair from the pressure of strong and apparently incontrovertible presumptions of guilt, the dread of unmerited punishment and disgrace, the hope of pardon,*— these and numerous other induce- ments have not unfrequently operated to produce unfounded confessions of guilt. Innumerable are the instances on record of confession, ex- tracted "by the deceitful and dangerous experiment of' the crimmal question," ^ of offences which were never committed, or not committed by the persons making confession.^ ^ox have such instances been wanting in other parts of Europe even in the present century. When Felton, upon hia examination at the Council Board declared, as he had always done, that no man living had insti- gated him to the murder of the Duke of Buckingham, the Bishop of London said to him, « If you will not confess, you must go to the raok." The man replied, "If it must be so, I know not whom I may accuse in the extremity of the 1 Roecoe, Crim. Ev. (8th Am. Ed.) 67. Where a witness has testified to a confession the defendant may show that it was uttered in jest. Rav v State, 80 Ala. 104. ■" ^ » U. S. V. Nott, 1 McL. 499. . i chitty's Crim L. 85. ♦Bnsterr. State, 26 Ala. 107; and remarks of Chief Justice Eyre in Wamckshall's Case, supra. » 3 Gibbon's Decline and Fall, ch. xvii. ^ « Jardiiio on the Use of Torture in the C. L. of England, 8, 6. "^And see Jfortescue, De I-audibus Legum Anglise, ch. 33. '" m ill 130 CONFESSIONAL EVIDENCE. torture; Bishop Laud, perhaps, or any lord at this Board." ^ " Sound sense," observed the excellent Sir Micbael Foster, « in the mouth of an enthusiast and a ruffian."' Not less repugnant to policy, justice, and humanity, is the moral torture to which in some (perhaps in most) of the nations of Europe, persons suspected of crime are subjected, by means of searching, rigorous, and insidious examinations, conducted by skilful adepts in judicial tactics, and accompanied some- times even by dramatic circumstances of terror and intimida- tion.' Lord Clarendon gives a circumstantial account of the con- fession of a Frenchman named Hubert, after the fire of Lon- don, that he had set the first house on fire, and had been hired in Paris a year before to do it. « Though," says he, " the Lord Chief Justice told the King that 'all his discourse was so dis- jointed he did not believe him guilty,' yet upon his own con- fession the jury found him guilty, and he was executed accordingly:" the historian adds, "though no man could imagine any reason why a man should so desperately throw away his life, which he might have saved though he had been guilty, since he was accused only upon his own confession, yet neither the judges nor any present at the trial did believe him guilty, but that he was a poor distracted wretch, weary of life, and chose to part with it this way." * Three men were tried and convicted of the murder of a Mr. Harrison. One of them confessed himself guilty of the fact under a promise of pardon. The confession, therefore, was not given in evidence against him, and a few years afterwards it appeared that Mr. Harrison was alive.* A very remarkable case of this nature was that of the two Booms, convicted in the Supreme Court of Vermont in Sep- tember term, 1819, of the murder of Russell Colvin, May 10, 1812. It appeared that Colvin, who was the brother-inJaw of the prisoner's, was a person of a weak and not perfectly sound mind ; that he was considered burdensome to the family of the » 1 Rushworth's Collections, 688. 2 Foster's C. L. 244 (3d Ed.). » See the oaBe of Riembaur, a Bavarian priest, charged with murder, in Narratives of Remarkable Criminal Trials, by Feuerbach, ut supra. * Life and Continuation, etc., 94 [Clarendon Ed. 1824] ; and see 2 Mem. of RomUly, 182, where it is stated that an innocent man was executed erroneously by the sentence Of a court-martial, on a charge of mutiny. 6 5rs. c^7f5c, cit^d 1 I^ach, 2«4, n. ; Eqscoo'b Crim. Ev. (8th Am, Ed.) 07, > 1 li ! : m CONFESSIONAL EVIDENCE. jgj pmoners, who were obliged to support him ; that on the day of his disappearance, being in a distant field, where the prison- ers were at work a violent quarrel broke out between them, and that one of them struck him a violent blow on the back o the head with a club, which felled him to the ground Some suspicions arose, at that time, that he was murdered; which were increased by the finding of his hat in the same field, a r ?T^: f fterwards. These suspicions in process of i^e dr^m^' 'f^,"^^^!^'-- of the neighbors having repeatedTy dreamed of the murder, with great minuteness of circum rlZ' .t '""- '"^^'^ '" ^'' ^'^'^ ^^^^ *^« concealment of his remains, the prisoners were vehemently accused, and generallv knife of Co vin and a button of his clothes, were found in an old open ceUar m the same field; and in a hollow stump^ot many r^s from it, were discovered two nails and a number o bones beheved to be those of a man. Upon this evidence tiTz n^ '^"'r^ r^^^^^^ ^^ -rdertndrnrj: sentenced to die. On the same day they applied to the legis- ~T " ^"'"^^^^tion of the sentence of death, to thafof granted. The confession now being withdrawn and contra dieted and a reward offered for the discovery of the ZsZ man, he wa« found in New Jersey, and returned home 7Zl to prevent the execution. He had fled for fear that thpv would kill him The bones were those of J"/ The prisoners had been advised by some misjudging friends that IvJtlet' T7'' 'r""''''''^ "Ponl^ircumln^^^^^^ provea, their only chance for life was by a commutation of -punishment and that this depended on their makinga pent .: metr """' and thereupon obtaining a recoida'ti;; The State Trials contain numerous confessions of witchcraft and abouj^d with absurd and incredible details of commu^c^ t ons with evil spirits, which only show that the parties Tert either impostor^, or the involuntary victims of in^ncible LTf delusion. One kind of false confession, that nameW beint a deserter, wa. so common in England 'as to have been mTdf » 1 Greenl. Ev. g 14, n. And rp« tho .o^ of f h^ V^v. ■ - In Wiarton's Crim. L. 315. ' " ^"^■^' ^">^''«' ^^'^ » case m 122 CONFESSIONAL EVIDENCE. i' ? I * l^i III the subject of penal ropmssion by rendering the offender liable to be treated as a rogue and vagalK)nd, and to bo imprisoned for any period not exceeding throe months.^ It has been well said that '« whilst sach anomalous cjises ought to render courts and juries at all times extremely watch- ful of every fact attendant on confessions of guilt, the cases should never be invoked or so urged by the nccused's counsel as to invalidate indiscriminately all conl . ,ut to the jury thus repudiating those salutary distinctic ..ich the Court' in the judicious exercise of its duty, shall bo enabled to make! Such a use of these anomalies, which should bo regarded as mere exceptions, and which should speak only in the voice of warning, is no less unprofessional than impolitic, and should be regarded as offensive to the intelligence both of the Court and jury." ' It is essential to justice, that a confessional statement, if it be consistent, probable, and uncontradicted, should be taken together, and not distorted, or but partially adopted.s It is error to refuse to admit all that was said by a prisoner when a part of the conversation has been introduced as a confession ♦ And counsel who has consented to allow part of a conversation to be proved cannot object to the residue on grounds which apply to the whole." The rule, however, does not exclude a confession where only part of what the defendant said was overheard.8 Nor is a confession, if full and unqualified, inad- missible because an interruption has prevented the defendant from adding something favorable to himself .7 But it is inad- missible if, by the interruption, the defendant has been pre- vented from saying all he wished to say.s And no part of a confession should be received where the witness did not under- stand all that the prisoner said to him.» Nor is a confession » Stat. 20 Vict. 13, c. 49. s 1 Hoffman's Course of Legal Study 867 » Abbott, C. J., in the Queen's Case, 2 Brod. & Bing. 297. And see Kelsey V. Bush, 2 HiU, 440; People v. Penhallon, 42 Hun, 103; State v Miller (Del.), 82 Atl. 137; 9 Houst. 664. « Long V. State, 22 Ga. 40 ; People v. Davis, 3 Cal 106. And see Eiland V. State, 52 Ala. 322. « State V McDonald, 73 N. C. 346. • State V. Covington, 2 Bail. 569 ; State v. Pratt, 88 N. C. 639 • Com « Pitfiinger, 110 Mass. 101. ' ^ Levison v. State, 54 Ala. 520. 8 Crawford v. State, 4 Cold. 190 ; MiUer v. State, 40 Ala. 50, » People V. GUabert, 39 Cal. 653. i^ CONFESSIONAL EVIDENCE. 128 admissible if the witness does not remember the substance of all that was saul at the time.^ But it is not to be rented vP-?r« w*"!""^*™^" ^^' ^ »n«rder committed twenty-four years before the prmcipal inculpatory evidence consisted oh" confession, which stated in substance that he wa« present a the murder, but went to the spot without any previous know, edge that a murder was intended, and took no^rtT it It vas urged that the prisoner's concurrence must be pre umed qu lifted, It did not m fairness amount to an admission of the ginlt of murder; 3 and where the prisoner's declaraSon in whjch she asserted her innocence, wa« given in evidence and there was evidence of other statements confessing S the judge left the whole of the conflicting stateme^i^h^jury for their consideration. But where there is, in the whole cZ no evidence but what is compatible with th^ assertion of inno' cence adduced m evidence for the prosecution, the Tudge wm direct an a^^quittal.* In the case of Strahan and P^ul it w^ unsuccessfully contended, that the admission made brthe pT^ oner Strahan must be taken to the whole extent to which t w^ made, and that it would then fairly and reasonably le^ to the conclusion that he had known nothing of the fraudSen? m March, 1854 ; but Mr. ^aron Alderson told the jury that hey were no bound to believe either the whole or any p'lrt o musttlrt ^^1' '^''^ P"^°"^^ Strahan, and that th^y must take it with this consideration as one of the circumstanci of the case and no more.^ ^u^^w* The credibility of a confession, or the effect or weight to which It IS entitled, it is the province of the jury to detefmine i SnJ n ^""S:* !^ ^""'^ ^^-^^ ^^ ' «*^*« «• Hughes, 29 La. Ann. 514 Stif 55 A,a%S ff'?.^'"'''' '*^*^ " Pratt 88' N.C. 639 ; Pond v. who iifd te«tifipH ■ *':\P'-'«°"«'-' >» speaking of the testimony of one Te we^ but he dir? " n' ""'' "^"* " "'^"* ""' '""^ ^^« '^^ ^ ^ar aa fpsTn ;« / ^* ""^ ^" °'' ^"""^'^ ' " *his is not admissible as a con- r Finr; cr ! rZd" ?or *" ''- ^^-^ ^^ -'■'' ^'^ -"-- ^^^ -- » Rex V. Clewes, 4 C. & P. 221. and Short-h.and P^p Kex V. Jones. 2 C. & P. 629. . c. C. C. Oct. 1855. 124 CONFESSIONAL EVIDENCE. i|5 m m lilt! ill In the conBulemt.on and dotermination of those inquiries they must look to all the fuots and ciroum8t.ince8 under which the confession wa« ma4le,» the motives which induce,! it. and its consistency with the other evidence, and may holieve such facts a^ thoy have re««on for believinff, and reject such facts as thev think unworthy of credence." If the confessional statement is ZZI> H ; ""r'"'^'"' "' •""'•«''i''Jo» ««• is contrmlicted or discrec, tod by other evidence, or is the emanation of a weak or Z^T ^^"'"1' n" J'"^ ""^ «^«^^'- *h««r ti Fl en T'"r' the prisoner.a » It is a rule of law," said T^r^lhn 7"* ' "that when evidence is given of ;hat a party has said or sworn, all of it is evidence (subject to the consideration of the jury, however, a. to its tnltloM ng, L It does in one entire form before them; but you may still .iudg« to what parts of the whole you can give ere H and chZd '' ^^r^-'"^*^ VPeaVs to co Jirm and fU Ih charge does not outweigh that which contains the exculpation." * must be distinct and relate to different matters of fact.« And lvnnft°''T'^"''' «nder which a confession was made ZlZl ^i7 ^ ^ """^"^ '^ incompetent testimony, they weLtTt ":: be considered by the jury a. affecting the we ght to be attax3hed to the confession.^ Where a wiiness testifies to a confession m,«le to a third person in he dl k by the prisoner, whom he identifies only by his voice, this testf f^r j,^,T^"^' '"^^^^ ^"«^--^«^ '^^ idenkfittilnis ' state f.. Miller (Del.). 32 Atl. 187 ; 9 Houst. 664. § J""""^ *'• ^**''' "^ '''"• ''' •' ^^'«h V. State. 1 1 So. 450 ; 8 Brick. Dig. • Rex I'. Higgins. 8 C. & P. 603 ; Rox v StontoP 4 (- * P no-* t> u . V. Gee. 16 Barb. 449 ; 1 Gret-nl. Ev. {^ 2^8. ' ^^'^ * Rex V. Lord Cochran and otlieis. Onrnev's Ron 47ft a.,^ . n W^», « c. ,0 ; see „. H„l,.n.ch,i,, „ „„. „ ., Mct^^^'^^Z:;, ^7zz':r^^.\ "C,."t £\7 ™^'''- «-■ ■ «^ «•» «- •St.t,».G<,rh«„(V,.,,81Atl.8«. • iwu ». Stot,, 08 Ga. 450. CONFESSIONAL EVIDENCE. jg.. On the trial of a man for setting lire to a stack of hav it ai>- pearod that bet™ two and threo o'ckx^k in the moml^ lK.hco constab e, attracteo£^ asked huu to give infonnation of the lire to any ^ther EeiZ he might meet, and request him to come and aas.st. Sh^X afterwards, on his way towards London, the prisoner ml a Borgeant of police, whom he informed of theiire.~tb: 1^ was the man who set the stack on fire, upon which he was tlken mocustody Thesergeantof police, okcl^^^^^ prisoner, stated that the magistrates entertained an opinion that h. was insane, and directed inquiries to be made, from which i appeared tiiat he had before been charged with somelfflnce juid acquitted on the ground of insanity^ When apprehended he prisoner appeared under great excitement; and^pon hi' ^na he alleged that he had been confined two y;ars in aTnat c ^sylum, and had been liberated only about a year ago tt t his mind had been wandering for some time ; and that r, ts n^ by he place at the time of the fire, he was induced, n a li "nf TbtS'th: "^'r/'" r"""^^^ ^^^^^^ ^^^-' ^i™-" that Sd f n l'"" f'^P'^^" '^ ^^'' ^""'y *^« ^iff^rent result that would follow from his being acquitted on the ground of Zuf: f "" -conditional acquittal ; and said thTt rler than the former verdict should be returned, which would prob ably have the effect of immuring him in a lunatic asXn for the rest of his life, he would retnu^t his plea of not guUty and plead guilty to the charge. Mr. Justice Williams, ifsummtn up, remarked that there did not appear to be the least ev dTc? a^unstthe prisoner except his own statement ; andthat it wL lo the juiy to say under all the circumstances whether tZ believed that statement was founded in fact, or whether 1 wZ a the prisoner alleged, merely the effect of an excited imal^! ation and weak mind. The prisoner was acquitted » ^ There is no rule of law which compels jurors to believe con- fessions made by a defendant when he is sober, in pXe^e o those of a contradictory character made whek drjrk T^e relative credibility of the statements is a question for the jury.' ^ Reg. v, Wilson, Maidstone Wint A«a laAA wu lield hv T n T \\r\ 1 .""'"*' *" ""• Abs. 1844. The same doctrine was ^ Fiuch V. State, 1 So. 565. ' ^ ^'^ """'®- :;i, 126 CONFESSIONAL EVIDENCE. In an English caae tho constable bad given licjuor to the prisoner to cause him to malce confessional statements. The judge said that it was a matter of observation to tho jury as to the degree of credit to which such statements were entitled.^ In a New York cuae of similar facts the judge said that the argument which had been made to convince the court that the evidence should have been stricken out, might, with more propriety, have been addressed to the jury to satisly them that the confessions of the prisoner while in that condition were not reliable and ouight not to have been used for his conviction.* n \ M Section II. Indirect Confessional Evidence. It is obvious that every caution observed in the reception of evidence of a direct confession ought to be more especially ap- plied in the admission and estimation of the analogous evidence of statements which are only indirectly in the nature of con- fessional evidence ; since such statementj, from the nature of the case, must be ambiguous, or relate but obscurely to the corpiis delicti. " How easy is it," it has been admirably said, « for the hearer to take a word m a sense not intended by the speaker, and for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible it is to make third persons understand the exact state of his mind and meaning ! For these reasons such evidence is received with great distrust and under apprehension for the wrong it may do." ^ And this evidence, as was said by Sir Michael Foster in a passage heretofore cited, " is not in the ordinary course of things to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is confronted." * Upon the trial of a man for the murder of a woman, who 1 Rex V. Spillbury, 7 C. & P. 187. « Jefferds v. People, 5 Park. Cr. Rep. 522. See also People v. McMahon 15 N. Y. 384. ♦ In Reap. v. Fields, Peck's Rep. 140, quoted in 1 Taylor's L. of Ev. 689, '•^^ Ed. * Foster's C. L. 243. And see 1 Greenl. Ev. g 214. CONFESSIONAL EVIDENCE. 127 l.u(l i)een brutally ussiiul toil by tlireo men and dim! from the in- Junes she recoivod, it appealed that one .,f the ofFendei-s at the time of the coirnuis.sion of the outrage, calletl another of them by the i)ri8oner'8 name, from which circumstances sus- l)icion attached to him. A person deposed that he met the prisoner at a pul,lic-house, and asked him if he knew the woman who had been so cruelly treated, and that he answered, » Yes what of that ?» The witness said that he then asked him if 110 was not one of the parties concerned in that affair- to which he answered, according to one account, " Yes I was- and what then?" or, as another account states, "If I was' what then ? " It appeared that the prisoner was intoxicated! and that the questions were put with a view of ensnaring hini ' but mfluenced by this hnprudent language, the jury convicted him, and he was execr ted. The real offenders were discovered about two years afterwards, and two of them were executed or this very offence, and fully admitted their guilt ; the third Having been admitted to give evidence for the Crown ' Nevertheless the conduct, demeanor, or expressions of a prisoner on being charged with a crime, or upon allusions be- ing made to it, are evidence against him.a In almost everv criminal case a portion of the evidence laid before the iurv o ten consists of the conduct of the party either before or after bemg charged with the offence, presented not as a part ot the r^^ gentm, but as indicative ol a guilty mind.s In the most debased persons there is an involuntary tendency to truth and consistency, except when the mind is on its guard, and studiously bent upon concealment; and this law of our nature sometimes gives rise to minute and unpremeditated acts of great weight. Acts speak as well as words, and they are to be interpreted by the common experience of mankind.* A con- fession may be inferred from the corn! act of a prisoner when a statement affecting him is made in his presence.* The circum stance of observations being made to the accused by his wife who could not be called as a witness to contradict the state- 160 ^m !'-^*'^'™^"' Kingston Spring Ass. 1748-9, and 1 Remarkable Trials, 16v. 172 ; Rex v. Jones and Welch, 4 Celebrated Trials 344 « Mason v. State, 42 Ala. 532. ! K««c^,Cr- Ev. (8th Am. Ed.) 30 ; Jamison v. People, 84 N. E 486 Murrell v. State, 46 Ala. 89 ; Greenfield v. People, 85 N Y 75 " ^Donnelly v. State. 3 Dutch. 463, 601 ; People v. Green. I'park. Crim. 128 CONFESSIONAL EVIDENCE. I' }( i-.i I menta, wm hehl not to vary the general rule that whatever was said to a prisoner on the subject-matter of tlio charge, to Avhich ho made no direct answer, might be received m an im- plied admission on his part.» So where the wife of the pris- oner who was indicted for the murder of his wife's mother came into the room, where he was in custody, and said to him • " Oh, Bartlett ! how could you do it ? " He looked steadfastly at her, and said, " Oh, what ! you accuse me of the murder too? " She said, « I do, Bartlett ; you are the man that shot my mother." The prisoner did not make any reply. She then turned to the witness and said, " This waa done for money." The evidence was held clearly admissible, though the wife could not be examined on oath." The silence of a prisoner when accused by a companion of committing the crime for which he is indicted is a circumstance though very slight, for the consideration of the jury.a But no admission can be inferred from silence when the silence can be explained.* In California it is declared that an inference of gmlt cannot be drawn from silence where a person is not bound to speak, nor from a refusal to answer unauthorized questions touchmg the charge against him, which under the circum- stances called for no reply.^ Where the truth or falsehood of a material iiwt is not known to a party to whom the fact is as- serted to exist, his silence furnishes no evidence against him« While a confession is incompetent against a co-defendant ^vho was not present when it was made, it is competent when made in the presence of the latter, and under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth.^ And the deportment of the a , ^- ^»7son, 9 Mont. 32. 182 CONFESSIONAL EVIDENCE. Ill II ill set up an alihi, evidence was held admissible to show by a police officor that on the night in question, and shortly after the time of the offence, the officer met the defendant as tlio latter was going on to a bridge leading into another State, and that on being halted by the officer he fired his revolver at the latter.^ Absence from a town where a crime has been committed, when not explained, is indicative of flight, and may be con- strued as a circumstance pointing to the guilt of the accused." On a trial for murder, when the evidence was circumstantial, it having been shown that a few days after the homicide the accused left the neighborhood and did not return for some mouths, evidence was admitted to show his intent prior to the crime to remain in the place, of the fact that before the homi- cide he contracted with one in the neighborhood to work for him, and to commence work two days after the date when the murder occurred, and that he never came to comply with the contract.' It has been held that the rule extends only to the person fleeing, and that the flight of one of two conspirators cannot be put in evidence against the other on a separate trial.* But where the defendant was accused of burglary, he and another had slept in a barn, and near them were found the stolen articles. The other resisted arrest and escaped, and this fact was i)ermittetl to be commented on by prosecution.^ It may be proven, as tending to show a consciousness of guilt and fear of conviction, that the prisoner fled after his release on bail.^ The fact that bail given by an accused was " straw bail," that the prisoner forfeited his recognizance by voluntarily absenting himself, taken in connection with the fact that the prisoner passed under various aliases, were proper for the con- sideration of the jury .7 But evidence that a defendant charged with rape, who had been arrested on a charge of assault and released on bail, did not run away, is irrelevant, and all the more so that the charge of rape had not been preferred against him at that time.^ * Com. r. Annis, 15 Gray, 197. * People V. Stanley, 47 Cal. 113. » State V. Taylor, 117 Mo. 181. « Welsli V. State, 96 Ala. 93. * Cummins v. People, 43 Mich. 142. « Hart V. State, 33 Tex. Crim. App. 563 ; State v. Williams, 43 Tex. 183. ' Barron v. People, 73 111. a66. * «tate v. Wilkins (Vt.), 28 Atl. 888. CONFESSIONAL EVIDENCE. 133 An escape from jaU may be shown ;i and an escape from custody during the progress of a trial may bo shown ori a second trial of the same indictment." And an attempt to escape, as well as an actual escape, may be proved." In a late case evidence was a^lmitted of the facts that the wire netting on the outside window of the prisoner's cell was cut, and that a razor and gun-wrench were subsequently found in his posses- sion, as tending to show that he was planning an escape.* Tes- timony is admissible to show that the defendant requested witness to assist him in breaking jail.^ These several acts in all their modifications are indications of fear ; 8 but it would be harsh and unreasonable invariably to in- terpret them as indications of guilty consciousness, and greater weight has sometimes been attached to them than they have fairly Avarranted. Doubtless the manly carriage of integrity always commands the respect of mankind, and all tribunals do homage to the great principles from which consistency springs • but It does not follow, because the moral courage and consist-' ency which generally accompany the consciousness of upright- ness raise a presumption of innocence, that the converse is always true. Men are differently constituted as respects both animal and moral courage,^ and fear may spring from causes very different from that of conscious guilt; and every man is therefore entitled to a candid construction of his words and editions, particularly if placed in circumstances of great and unexpected difficulty.s In a case where it was claimed to be a circumstance evincive of the guilt of one accused of murder- ing his Avife, that he showed no symptoms of grief on the morning after the murder, the learned judge remarked that innocent persons, appalled by the enormity of a charge of crime, will sometimes exhibit great weakness and terror, and those who have been crushed with the weight of a great sor- row will manifest the greatest composure and serenity in then- grief, and meet it without the shedding of a tear.''^ An in- ! P«0Pl« t'. Myere, 3 Hun, 6. 2 Murrell v. State, 46 Ala. Brl^?1« w Iwf' f .'^- ^^^' Ky^" «• State. 88 Wis. 486; Palmer «. M L ' ^ ■' ^"'^«'^«" "• State, 2 West. 341 ; Fanning t,. State, 14 6a7?* T ^ * State «. Palmer, 65 N. H. 216. » State V. Jackson, 95 Mo. 633. 6 state v. Moody, 50 la. 443 ' Elmore v. State, 98 Ala. 13. — — s. ..!.„i,Ei, 111 xvfg. V. unianey, infra, » Greenfield v. People, 86 N. Y. 75. 134 CONFESSIONAL EVIDENCE. struction upon the going away from the place of the homicide of one charged with murder, as raising a presumption of guilt, should be so framed as to include all the circumstences. If the accused leaves the place of the crime, but without effort at concealment, this will not raise the presumption of guilt.* Mr. Justice Abbott, on a trial for murder where evidence was given of flight, observed in his charge to the jury that " a per- son, however conscious of innocence, might not have courage to stand a trial; but might, although innocent, think it neces- sary to consult his safety by flight." « It may be," added the learned judge, "a conscious anticipation of punishment for guilt, as the guilty will always anticipate the consequences ; but at the same time it may possibly be, according to the frame of mind, merely an inclination to consult his safety by flight rather than stand his trial on a charge so heinous and scandalous as this is."" The learned judge in Professor Web- ster's case, said, " Such are the various temperaments of men, and so rare the occurrence of the sudden arrest of a person upon the charge of a crime so heinous, that who of us can say how^an innocent or a guilty man ought or would be likely to act in such a case? or that he was too much or too little moved for an innocent man? Have you any experience that an innocent man, stunned under the mere imputation of such a charge, will always appear calm and collected? or that a guilty man, who by knowledge of his danger might be some- what braced up for the consequences, would always appear agitated or the reverse ? " ^ The fact that one accused of larceny was excited and nervous while his boots were being measured to ascertain if they corresponded with tracks found leading from the place where the crime had been committed, was said not to be a fact from which an inference of guilt could bo drawn. An innocent party might be excited under such a charge, and this would depend on mental and physical peculiarities. The evidence of excitement is peculiarly objectionable, because it is likely to be given by parties prepossessed with a belief of the guilt of the accused, and very certain from that fact to draw unfavorable inferences and to have what they see magnilied in their imag- ination.^ 1 state V, Fairlamb, 13 Mc- ^87. « Rex v. Donnell, infra. - 5 Cush. 39o, 336. « People v. Wolcott, 5 Orim. L. Mag. 84 OONraaWONAL EVroENOE. 185 We been peHodTHid oS^ot^^'^Cbrr^rr ordeal of »ta^ ^ " voluntary submission to tlio the %i.estT^Ti?.rTt™ et.r:nr orsr -' cumstanoes is strikinelv exemnlifi^ »^'usiveness of these cir- preceding page, whZTZ^tXVr Mlv """'• "'"J of the pri^^ner-s innocence tSoXZ Wm 1 lo^r,"'^ on bail to appear at the assizes ThT; ' • *" 8° "» '"ge brought in TWuot oi Ciftv " ^H r"''^ '^"»« to escape fmn, the daLrft a trialT^! I "i* »'«'^™"<" lie feelimr by flight ^f™. Z. * *'"'"^ «*»*« »* ?"•>■ victed, an'd exj^t^'on iTar^'^rSr'r!;".:'^ ' ^■ unquestionably euiltless' r^k ^^^ ' °' '^''"''' '" ™s the\onUcide;C^;„e.S^:trt'Srttt"'*''" before thlCr^d™^ "PP^**". ">"« the defendant fled well-g„„„ded app„,hen tatf vtTent "Ihrtr '^'' excludetl.. And it has recently beiriTd thi^^ ,h'^ "™,T circumstance of the prisoner's flWifli, '""^ °' ""« homicide was not to to ZkenedTLr"^'''*^'y ""*' «•■« general Ulk in the cTmZu^jl^fir^L^r ^JJ' " ™'"'' he would be kiUed without^! ald'tt h"^ "^^ '°"'"' to be allowed to go to tlrC;« Bu, f"™""®'"""' af^r arrest may Jshow^t S„ce"^'i,^~r. ^''''"■■« » Rex V. Coleman, ante 78 • ..nH ^ ^u '® ^' ^***«' ^ Ala. 6. Tr. 1869, where <^ererT^Zi:lrotlloTy.^'''r ^'^ ^*'^«-' ^* «^- were convicted in Scotirnd and execuSS ^:^^"°^*'^ '""«°^«''«'' against Englishmen, upon agrou^Ji^ etlri T'^ °' «''*' excitement * State 1.. Phillips. 24>Io. i^"^^^ '^'^f «« f P"-acy a^H murdnr, • State V. Phillips, mpra *^^'*'' ^'^ ^'°" »<> Va. 109. 186 CONPESSIONAL EVIDRNOE. ji till thwio vnHoug indloations mny bo infallibly roforrod to any more spociHo origin than tho o|)oration of foar. Whothor that foar proowHis fn>m tho oonsciouHnosg of guilt, or from tho Rpprchonsion of undiworvod diRgraoo and puniHhmont, and from dofloienoy of moral oourngt^ k a quoHtion whidh can be jtulgwl of only by rofortmoo to ooncon\itant oiroumstancoH. On tho trial of a prisoner for having in his posHOHRion with intontion to nttor, and for pasHing, a coimtorf«Mt not«s it whs shown that on passing tho bill ho took «[) hin change in a con- {\\m\ manner, evincing fojir, and that, at tho time of hia arrost, ho offoroii tho olllcer ono hundround on him. lie hjul boon in prison before, and was shown, since his dischargt^, to have borne a good ohar- Roter. Having l)oon in prison before, ho might have boon prompted to offer tho money to soouro his osoaiw, by tho knowlwigo of tho impression that would exist against hira.» That ono jwjotisod of murtler showwi agitation and embar- rassment on visiting the scene of the crime the morning after its commission and before he wna suspected, is a fact of little im- portance when considerwi alone, but may bo of much signifi- cance when considered in connection witk tho other evidence in tlio 0080.* The fact that onenccuswl of so grave a crimoas murder turns v»alo at the time of being arrested, is slight, if any, evidence of guilt,, but is, nevertheless, competent whether "it indicatAs guilt or is merely tho disturbance of tho physical sys- tem, as likely to apjHmr in an innocent as a guilty man, is for the jury in the light of other circumstances and tho acts and declarations of the accused.^ Whether or not tho motive for an escaiw has its origin in the consciousness of guilt juid the dread of Iwing brought to justice, or whether it can bo explained and attributed to some other » People V. Qiiftckeiiboss, 1 Wheel. Cr. Gna. 01. * t^reston «. State, 8 Tex. App. 80. • LiniWy \\ Peonle. 68 N. Y. !48, CONFESSIONAL EVIDENCE. jg^ innocent motive, are quoHtionH for the determination of the jury under all the evidence m the cause.* And where the testimony discloses circumstances explaining dnflT'r^ ?^^'^ "^^"'^ '""'''''^ ^'^^ ^h« innocence\,f the consider the same in connection with the presumption arisintr iZm'pt'n." ''"'"""' '""'^^ ^'^^'""^^ ^'-^"^ -"^ nrrnMH^'"'r"*''' ^^. '""^""^ ^ ^*^ ^'^^^ ''^^^ considering are of themselves entitled to little weight and are not sufficient to warran conviction.- I„ the endeavor to EImor« V. State, 98 Ala. 13 ; State v. Moody, 50 la. 448 Cr. Ev 8 m""""' ''" **°- ^ '' ^'*'"''- ^*"«' ^^ Mo. 555. And boo Whart. « Greenfield v. People, 85 N, Y. 7" ; People v. Myers 2 Hun fl • q»„f^ « r-er ohaw, o. J., In Webster's Case, supra. m i iir ii ' CHAPTER VII. THE SUPPRESSION, DESTRUCTION, FABRICATION, AND SIMULA- TION OF EVIDENCE. It is a maxim of law, that omnia prceaumuntur contra tmU- atorem,md the suppression or destruction of pertinent evidence 18 always therefore deemed a prejudicial circumstance of great weight ; 1 for as no action of a rational being is performed with- out a motive, it naturally leads to the inference that such evi- dence, if It were produced, would operate unfavorably to the party m whose power it is to produce it, and who withholds it or xias wilfully deprived himself of the power of producing it' The presumption that a man wUl do that which tends to his obvious advantage, if he possesses the means, supplies a most important test for judging of the comparative weight of evi- «.ence.2 AU evidence is to be weighed according to the proof which it was in the power of one party to have produced, and m the power of the other to have contradicted.a A party may not always be compellable to produce evidence against himself, but if it he proved that he is in possession of a deed or other evidence, which, if produced, would decide a disputed point, his omission to produce it would warrant a strong presumption to his disadvantage.* In an action against a railway company for damages for killmg stock, the facts in the matter in dispute being peculiarly withm the knowledge of the defendant, and it having it in its power to show by its engineer what they were, its failure to produce him as a witness might reasonably raise an inference that his testimony would operate against the defendant.* Where a woman who had sued a railway company for damages for personal injuries was absent on the trial, the jury were in- 1 MiUer u People, 39 111. 457. a starkie (10th Am. Ed.) 846. s See observations of Lord Mansfield, in Blatch v. Archer, Cowp 65 Per Lord Mansfield, in Roe dem. Haldane v. Harvey, Burr 2484 * Gulf, C. & S. F. Ry. Co. v. Ellis, 54 Fed. 481. loo Vi 1 THE FABRICATION AND SIMULATION OF EVIDENCE. 139 structed that her absence was a circumstance to be considered and If not explained, must be taken aa a circumstance against her and as mdicati-; that her evidence would have tended to weaken her case ; that it was her duty to be present, and frive testimony m her own behalf, if physically and mentally able to do so, and that if she were absent when able to be present the jury might consider that as evidence tending to impeach the good faith of her claim. This charge was affirmed and pronounced clear and explicit by the Supreme Court on review 1 m the great case of Armoriy v. Delamirie, a chimnev- swoeper havmg found a jewel, took it to a jeweller to ascer Jn Its value who, having removed it from the socket, gave him three-halfpence, and refused to return it. The friends of the finder encouraged him to bring an action against the jeweller ; and the W Chief Justice Pratt directed the jury, that unless thedefendant produced the jewel, and showed it not to be of the finest water they should presume the strongest against him, and make the value of the best jewels the measure of thei^ damages." In an a<5tion of trover for a diamond necklace which had been unlawfully taken out of the owner's possession, and some of the diamonds were seen shortly aiterwards in the defendant s possession, and he could give no satisfactory account how he came by them, the jury were directed to presume that 1a 7,^^^^, ««V«f,dia"ionds had come to the defendant's hands, and that the full value of the whole was the proper measure of damages.3 in an early English case which has been often cited * It was found by a special verdict that the testator made his wiU and gave the premises in question to the plaintiff in error, but afterwards made another will different from the former but in what particular did not appear. The court decided that the devisee under the first will was entitled against the heir-at- law. But Lord Mansfield said that in case the defendant had been proved to have destroyed the last will it would have been good ground for the jury to find a revocation. On an eiect- ment mvolvmg the title to large estates in Ireland, the question being whether the plaintiff was the legitimate son of Lord AlU > Cole V. Lake Shore & M, S. Ry. Co., 95 Mich. 77. I L^"l: ^' ^' ^^' "^"** ^® ^^ ^- ^^^ Melville, 39 St. Tr. 1457 « Mortimer v. Craddock, 12 L. J. N. 8. 166 aifi^S"^^ "• ^'!^^^' C°^P- 87. See 3 Russ. on Crimes (9th Am Ed ) 218 ; Starkie on Ed. (10th Am. Ed.) 347. '' n I i I f ! ; i 1.1 140 THE SUPPRESSION, DESTRUlTnON, FAnRICATION, ham, and therefore prior in ri^rht to the defendant, who was his brother, it wm proved tliat the defendant had procured the plaintiff, when a boy, to be kidnapped and sent to America, and on his return, fifteen years afterwards, on r)cca8ion of an accidental homicide, hiul jiasisted in an unjust prosecution against him for murder : it was hold that these circumstances raised a violent presumption of the defendant's knowledge of title in the plaintiff ; and the jury were directed that the sup- pressor and the destroyer wore to bo considered in the same light m the law considers a spoliator, as having destroyed the proper evidence ; that against him defective proof, so far as ho had occmjioncd such defect, must bo received, and everything presumed to make it effectual ; and that if they thought tho plaintiff had given probable evidence of his being the legitimate son of Loni Altham, tho proof might be turned on the (h'fond- ant, and that they might expect satisfaction from him that his brother died without issuo.i On a bill filed against a defendant who had destroyed a deed by which the plaintiff claimed under certain limitations a real estate, secontlary evidence was given of tho limitations of the deed ; but tho evidence, as tho witnesses gave it, was of limitations, which could not legally take effect, being of a term of years after an indefinite failure of issue : Sir Joseph Jekyll, the Master of tho Rolls, said that aa against the man who hiul destroyed the instrument Avhich would have shown what tho rights of tho plaintiff were, ho would presume oven what tho plaintiff had not proved, that tho limitation Avas to take place after tho failure of issue in the life- time of a person then in being." The foregoing illustrations of tho rule of evidence under con- sideration are not the loss pertinent, because they arose in civil cases, since tho rules of evidence are tho same in all cases, whether civil or criminal ; and no inconsiderable proportion of the criminal trials which occur present examples of its practical bearing and offect.^ If evidence within tho power of the defendant and inacces- » Craig on dem. of Annesley v. Earl of Anglesea, 17 St. Tr. 1416. And see tlie Tracy Peerage, 11 C. & F. 154 ; Clunnes v. Pezzey, 1 Campb. Rep. 8; Lawton v. Sweeny, 8 Jurist, 964 ; 1 Greenleafs L. of Ev. § 37 ; and see the observations of Campbell, L. C. J., in Reg. v. The Midland Railwav Com- pany, 20 L. Mag. M. C. 145. » Dalston v. Cotsworth, 1 P. Wnis. 731. « Rex t>. De la Motte, 21 St Tr. 810 ; Rex v. Burdett, ut aupra. la- ■ AND SIMULATION OF EVIDENCE ... 141 siblo to the State be withheld bv the deffln«»t it that wm h^p larceny ,t was shown that the defendant ivent to the prosecui^ ing witness and attempted to bribe him to swear thafcr^n tracks had no connection with the larceny.^ In a civil cZ proof of the fabrication of evidence of the payment o mon^ was considered damaging to the plaintiff's case> ^ But legal experience has shown that false evidence is some- subject - ""^ "'" '""""""« °l'««'v«'tioa8 of Mr. Stewart on the tl-.e 0.-.C ..Mo there wa« foraZT.Jj , ' '^''^" '' "^P^*'"'''^ "''^t »» evidence. anU eB^^iXCZXloS::;^!^' ^eTS^^ ^^ °' "'« and discovered to be the contrivan^P nf f^ ^ **" '*^'""''''«' innocence wa« the obiec t oMnm Ir^ *^.^ "^""^ P^° ^''"^^ «""* or stood it to be a^ 'l^Z^ ruTe t'it thTwho'leT I '^^'-f "^^^ ""'^^^■ suspicious of all the evidence ten,Hn<;f.T T''^ "'^'" extremely evidence. Parol testiXirBuXt of irwTb:?;?,^ forgery of the written evidence contenlatesth« r *'' '^^^'-ded : the of the other party If tli.V .J^H.„ T ^'' '«'""■"»>■ to the evidence articles of written andTnlpTte^ IvT^^' '>°'' "T"^ "' ™""" ^hriii"hrohiire^~~?-*^^^ stark. onEv. (lOth ArE^)S.T°""' *" "" '"*"' ''"""-•• *» " Winchell v. Edwards, 57 m. 41. hi I'! if. r Ifll lU THE SUPPRESSION, DESTRUCTION, FABRICATION, times resorted to for the puriwse of proving facts that are true.i Perhaps the most notable case of this kind is that cited by Sir Edward Coke of an uncle who was hanged for the murder of his niece, who produced on the trial a child much like the niece in person and years, but who turned out not to be the true chikl. It afterwards appeared that the niece was alive and in hiding.^ And so it has been held error to charge the jury that where a party in a cause attempts to manufacture testimony, the jury are justified and warranted in presuming that his case is not well founded, while the testimony, offered on behalf of a party whom the jury find to have tampered with witnesses should be carefully and even suspiciously scrutinized, yet that testi- mony is not to be wholly disregarded and set aside, and the verdict be left to rest on a presumption arising from the party's misconduct, however flagrant, and however clearly proved." And, as has been well said, the denial of a known fact, and the attempt to conceal, destroy, or prevent evidence of the minor's title to property, or which is calculated to prove guilt, may, and does, often occur from fear of a groundless charge, bused upon suspicious circumstances, or a covetous desire to retain property for which one has paid, under the supposition that he was acquiring a honafide title, but which he afterwards finds belongs to another.* If the evidence in regard to the alleged falsehood or falsification be doubtful, it is entitled to no weight. To be entitled to any force, its truth should be estab- lished beyond all question or cavil." Perhaps in no case have circumstances of this kind held with such fatal effect as in that of Donellan, who was convicted of the murder of Sir Theodosius Boughton by poison. The prisoner, after having administered the fatal draught in the form of medicine, rinsed out the phial which had contained it, and when that fact was stated before the coroner, he was observed to check the witness by pulling her sleeve. In his charge to the jury, Mr. Justice BuUer laid great stress upon that circum- stance. "AVas there anything so likely," said the learned judge, " to lead to a discovery as the remains, however small 1 1 Phil. Ev. 448. ■' 'A Inst. 233. See 3 Russ. on Crimes (9th Am. Ed.), 218. See also tlie Donghvs Peerage Case, 2 Potliier, by Evans, 337, and the remarks of Mr. Evans thereon. 8 Heslop r. Heslop, S:? Pa. St. 537. * See opinion of the court in Be a Qreenl. on Ev. g 34. & state v. WiUiams, 87 Vt. 734. AND SIMULATION OF EVIDENCE. 145 they might liave been, of medicine in the bottle ? But that is cleatroyed by the prisoner. In the moment he is doing it, he 18 found tault with. What does he do next ? He takes the second bottle, puts water into that, and rinses it also. He is checked by Lady Boughton, and asked what he meant by it- why he meddled with the bottles. His answer is, he did it to taste It; but did he taste the first bottle? Lady Boughton swears he did not. The next thing he does, is to get ^ the hmgssent out of the room ; for when the servant comes up he orders her to take away the bottles, the basin, and the dirty thmgs. He puts the bottles into her hand, and she was ^oins to carry them away, but Lady Boughton stopped her. Why were all these things to be removed ? Why was it necessary for the prisoner, who was fully advertised of the consequence by Lady Boughton, to insist upon having everything removed ? Why should he be so solicitous to remove everything that might lead to a discovery ? 1 As to the conduct of the prisoner before the coroner, Lady Boughton had mentioned the circum- stance of the prisoner's rmsing out the bottle, one of the cor- W^ //{ TT *^^* ^" '^'^ ^^ P»" ^^^ V the sleeve. Why did he do that ? If he was innocent, would it not be Z wish and anxious desire, as he expresses in his letter, that all possible inquiry should be made? What passes afterwards? When they get home, the prisoner tells his wife that Lady Boughton had given this evidence unnecessarily ; that she was not obliged to say anything but in answer to questions that were put to her, and that the question about rUg out t^' bottles was not asked her. Did the prisoner mean that she should suppress the truth ? that she should endeavor to avoid a discovery as much as she could by barely saying Yes or No vholtV^TfT. i.^"* '"''' ^^^^^ ^''^ '-^"^ not disclose the hira? but at that time the circumstance of rinsing out the bottles appeared even to him to be so decisive that he stopped her on the instant, and blamed her afterwards for havL mentioned it. All these," said the learned judge, "are very srong facts to show what was passing in the priUer's own mnd. A boatman was convicted of stealing rum which had been dehvered to his master, a carrier by canal, for conveyance Irom Liverpool to BirminghaiiL The carrier's agent at Liver. IQ * Gumey's Rep. , ut supra. 140 TIIK aUPPRKHHION. DKSTRUCmON, FABRICATION, If^'' i ]M)ol had tak(Mi a HaiiipU^ of thu Hpirit and toHtud its strength ; an]»huM>d with wator. 'riu^ (iarrior's chirk, on tho (M)mphiint of tho oonsignoo, wont to tho boat whoro tho prisontir was, to re- ((uiro exphination ; but as soon as ho hiul stoppeil into it, tho prtHonor })UBhod him biu^k u}M>n tho wharf and forced tho l)oat into tho niithUo of tho canal, whoro ho broko throo jars, and om])titHl thoir oonttmts, wliich by tho snioU wore proved to be rum, into tho canal.* Other facts of tho same kind are tho common cases of tho obliteration, effacing, or otherwise removing marks of ownor- Bhi[) or identity fi'om })late, linen, or other articles of property, or of stains of blood or other nuitter from the person or dress of the accused, or tho suggt«tion or insinuation of false, ground- less, or decoi)tive hypotlieses or explanations, in order to neu- tralize or account for ax r. Thoiniui, Warwick Spr. Asa., 1846, coram Mr. Justice Bosanqukt. « St. 8 & 9 Vict. c. 7. gg 5, 0, 29. « Per PoLUK-K. L. C. B.. in CowjK>r v. Frencli, Exch. N. P.. July 10, 1850. * Rpx t% DouoUun, R»'x v. Douiiall Rox v. Paiuier, in^ra. AND SIMULATION OP EVIDENCE. ''^ body committed tJjo crim(» » In this nnnn^^f tionod tl«3 concoalmont of Itriwtt .T'^^^ atto.npt«d destruction of hun J'lnJ" ''"'''"^*'^" ^^ tho !.t"nf "" '"""/'"" '"•^'«"'"P^'«^^ «f criminality results from tno -'t of concealment rather tlmn fV/^m ♦! '™"'^» irom ...™n» „n„„„y„,, „„„„„, ,^::„ - ^- tur z - h'i only M incklontaJ to tl.o f,u,t of ^Z!™ p ! ''e™«<"^«e.» ^^ '''''""^■ ()thor such facts are the officious affectation nf ^- * , concern as an artiilce to prevent or averHl^l^^ resentations as to the state of the party's heZh ' /.? ' '"^ ■Staler Dlck«.n,?8 Mo. 438. AndMoBnrrlll CIk. Ev «« Hex t- Blandy, «< supra ; Rex t,. Patch, infra. m 15 5 . i i48 THE SUPPRESSION, DESTRUCTION, FABRICATION, own husband and child, that she had hatl her fortune told, and that within six weeks three funerals would go ^rora her door, those of her husband and son and the child of the person she was addressing.^ The fabrication of simulated facts and appearances calcu- lated to create alarm, or otherwise to give a delusive tendency and interpretation to inculpatory facts, is an artifice fre- quently resorted to for the avoidance, neutralization, or ex- planation of circumstances naturally presumptive of giilt; the resort to which is of the most prejudicial criminative ten- dency, inasmuch as it necessarily implies an admission of their truth, and a consciousness of the inculpatory effect, if uncon- tradicted or unexplained, of the facts which it thus seeks to divest of their natural significancy. As instances of such sim- ulated facts may be mentioned the pr-^tence of having par- taken of a poisonous draught which has caused death •,^ the self- infliction of slight wounds to raise the inference that the offender had himself been tlie object of deadly attack ; ^ the attempt to fix guilt or suspicion upon others by the groundless suggestion of malicious feelings ; * the placing of a razor, pis- tol, or other weapon in the hand of or near to a dead body to lead to the notion of suicide, and many other such acts. But cunning is " a sinister or crooked wisdom," and not unfrequently the very means employed to prevent suspicion lead to the dis- covery of the real truth. A murderer, to simulate the appear- ance of suicide, placed a razor in the left hand of a right- handed woman.^ A man Avas found shot, and his own pistol lying near him ; but, although no person had been seen to leave the liouse, the suspicion of suicide was negatived by the fact that the ball was too large to have entered the pistol.** A recent case affords an appropriate illustration in this con- nection. Tlie defendant, indicted for murder, told the per- sons who gatliered at the scene on the night of the homicide, that the k ;eased came to her death by hex' clothes accident- ally catciiing fire while she (deceased) was asleep, and that 1 Rex V. Hohoyd, 4 Gel. Tr. 167. And see Rex v. Donellan and Rex v. Donnall, infra. " Rex V. Nairn and Ogilby, 19 St. Tr. 1284 ; Rex v. Wescombe, Exeter Suinm. Ass., 1839. Reg. v. Bolani, Durliam Summer Asa., 18.S9. * Rex V, Patch, ut stqxra. ' Rex V. Fitter, Warwick Summer Asa., 1834, coram Mr. Justice Taunton. « 3 P. & F. Med. J. 84. AND SIMULATION OF EVIDENCE. j^g the defeiidant, while attempting to put out the flames, " burnt peUecl to unwrap the hand which she represented as injured indic!tion f V ' f^"""^ PreBent,and "there was no maication of any burn whatever upon it " ^ A very remarkable case of this kind is recorded in the State Triak, which was tried at Hertford Assizes, 4 Car. I., before Mr Justice Harvey. A woman was found dead in her be,l with her throat cut, and a knife sticking in the floor. Several persons of the fajnily who slept in the adjoining room deposed that he deceased went to bed with her cliild, her husband be- ng absent, that the prisoners slept in tiio adjoining room, and that no person afterwards came into the house. The coroner's jury were molined to return a verdict of /do de se, but suspicion being excited against these individuals, the jury, Avhose verdict was not yet dra^vn up in form, desired that the remains of the deceased might be taken up, and accordingly, thirty days after her death, they were taken up, and the jury charged the prisoners with the murder. Upon their trial they were ac- quitted, but so much against the evidence, that the judge let faU his opmion that it were better an appe:;l were brought than eo foul a murder should escape unpunisLed. Accordingly an appeal was brought by the child against his father, grand- mother and aunt and her husband. On the trial of the appeal before Chief Justice Hyde, the evidence adduced was, that the deceased lay in a composed manner in her bed, with the bed- clothes undisturbed, that her child lay by her side, that her neck wjis broken, and that her throat was cut from ear to ear There was no blood in the bed, except a tinctm.e on the bolster where her head lay. From the bed's head there was a stream of b ood on the floor, which ran along till it pounded in the bemangs of the floor, and there was also another stream of blood on the floor at the bed's foot, which pounded also on the floor to a very great quantity; but there was no communica. tion of blood between these two places, nor upon the bed A bloody knife was found in the morning sticking in the floor at some distance from the bed ; but the point of the knife as It stuck, was towards the bed, and the handle from the bed • and there was the print of the thumb and fingers of a left Hand. It was beyond all question, from the circumstances, > State V. Garrett, 71 N. C. 85. 160 TEE SUPPRESSION, DESTRUCTION, FABRICATION, that the deceased had been murdered, for if she had committed suicide by cutting her own throat, she could not by any pos- sibility have broken her own neck in bed. The father, grand- father, and aunt were convicted and executed." Two persons were convicted of murder; and it appeared that the deceased was murdered in the night, and that the prisoners, one of whom was his niece, and the other his servant man, had given an alarm from within the house ; whereas the undisturbed state of the dew on the grass on the outside rendered it certain that the parties implicated were domestics." The fact that the defendant tells a false story as to his where- abouts at the time, of the commission of the crime with which he is charged, i? a strong circumstance against him.3 The defend- ant's case is often much weakened by an unsuccessful attempt to prove an alihi. This result happens, not because of any im- plied or technical I'lsnission involved in undertaking the defence, but because of fraud and subornation of perjury manifested in the attempt.* An alihi, it has been said, is not, in the strict and accurate sense, a special defence, but a traverse of the material averment in the indictment, that the defendant did, or participated in, the particular act charged, and is compre- hended in the general plea, " not guiltv." * This defence is frequently fabricated, and is liable to many sources of f allaxjy, which will be more appropriately considered in a subsequent part of this volume ; and a learned judge has said, that if the defence turns out to be untrue, it amounts to a conviotion.8 But it must be borne in mind that the unfavor- ableness to the accused resulting from the attempt to prove the alibi by means of fabricated testimony consists in the fact that the accused is attempting to shield himself by corrupting the administration of law, and by relying upon what he knows to be without foundation.^ It must not be overlooked, however, that, such is the weak- ness of human nature, that there have been cases where » Rex V. Okeman et al. Comp. 10 Harg. St. Tr. App. 2, 29, and 14 St. Tr. ^^2^- ' Rex V. Jeffreys «fe Swan, 18 St. Tr. 1194. « People V. Riley, 8 N. Y. Cr. R. 374. • Toler V. State, 16 Ohio St. 583. • AUbritton v. State, 94 Ma. 76; Turner v. Com., 86 Pa. Et 54; Brice- land V. Com., 74 Pa. St. 463. • Per Mr. Justice Daly, in Rex v. Killan, 20 St. Tr. 1085. ^ Adams v. State, 28 Fla. 511, J t - AND SIMULATION OF EVIDENCE. 151 innocence, under the alarm of menacing appearances, has fatally committed itself, by the simulation of facts for the purpose of evading the force of circumstances of apparent suspicion, and in many caaes of this nature a false defence is innocently inter- posed under a mistake as to dates, or the order of events. In other cases the defence is true and the evidence fails to establish it.» So that the fact that the evidence fails to establish the de- fence ought not to have any weight against the prisoner unless it 18 established beyond all question that his story is a fabrica- tion." When the defence of an aliU fails, it is generally on the ground that the witnesses are iisbelieved, and the story con- sidered to be a fabrication ; ti us, in one case, two witnesses testified that the prisoner was at his house during the whole of the night of the murder : the jury nevertheless, in view of all the circumstances, returned a verdict of guilty.' And from the facility with which the defence is labrioated. it is com- monly entertained with suspicion, and sometimes, perhaps, unjustly so.* 1 See the opinioD ^ the case of Toler v. State, 16 Ohio St 583 ' State r. Ward, 61 Vt. 153, a phippe ^, g^te, 8 Cold. 344. • Bex V. Kobmson, infra. See further, infra. Bl '■ I' I •i I CHAPTER VIII. EXPERT TESTIMONY. Section I. Comideration of the links Governing the Admission of this Kind of Testimony. The testimony of skilled or scientific witnesses constitutes a very important source of circumstantial evidence, especially in regard to the proof of the corpm delicti in cases of suspected homicide, and m questions concerning the doli capax. Such evidence m its details belongs to other departments of science • but M the principles which govern its reception and applica- tion fall exclusively within the province of jurisprudence, some general observations upon it are therefore necessary. If it be true that truth is nothing more than a presumption of the highest order, a fortiori is such the case with respect to the testimony of skilled or scientific witnesses, which rot unfrequently presents a sequence of presumptions grounded upon conflicting opinions, even with regard to the actual state of science. Such testimony is therefore of a nature sui generis, and, accordmg to the attainments and means of knowledge of the witness, may be of little moment or deserving of entire and undoubting confidence. Science, moreover, is never final ; and new facts are every day found to disturb or modify long-established convictions. Thus Reinsch's test, which had long been confidently employed for the separation of arsenic, was discovered to be fallacious when applied to chlorate of potass, and the ai^enic which was found in the particular mixture had been set free from the coppar employed in the exi>eriment.i j^^' ^S- t'. Smethur?t, C. C. C, Aug. 1859, Sess. Paper. . Its EXPERT TESTIMONY. * -^_ 158 Although, in general, a witness cannot be aakerl what his opinion upon a particular question is, since he is called for the skill and judgment are involved, a person competent to give an opinion may be asked what that opinion is » ^ "Many nice questions," remarked Lord Mansfield "mnv anse a. U> forgery, and a« to the impression of seals, wheS the impression was made from the seal itself, or from an im pression in wax. In such caaes I cannot say 'that the opfnbn of seal-makers is not to be taken." And so an engineer"^" allowed to es ify what was, in his opinion, the cans! ofa har bor being blocked up.» Judge Earl of the New York Court of Appeals has thus declared the principles upon which this char aoter of evidence is admitted : " Witnesses who are skilled in f2.TT' ^'*' *'^.'^'' ^' «^«"P^ti«n' n^ay not only testify to e^neJts Th'""'''™'' ^^^""^ *" ^^^« ^^-^ opinions ^ experts This is permitted because such witnesses are sup- " ^f.r^', r"" T" «?«rience and study, to have peculiar kno.W- edge upon the subject of inquiry which jurors generallv have not, and are thus supposed to be more capable ofTaTvTng conclusions from facts, and to base opinions upon them thaf jurors generally are presumed to 'be. OpiLns are ato allowed m some cases where, from the nature of the maUer under investigation, the facts cannot be adequately placTd be- fore the jury so as to impress their minds as theyLpress the minds of a competent, skilled observer, and whL Le facts cannot be stated or described in such language as w 11 enable persons not eye-witnesses to form an accurfte julgment in olSa^-r ^^' ^° ^^^^- -^^-- than such^ op^iniTn: " In an action for damages for an alleged rape, the nlaintiff havmgpve,, birth to a child, the defendant dnied ?tot h e was the father of the plaintiff's child, and the plaintiff tit fl^ that prevous to the assault made upon her by^he defeTda„t wh,ch resulted in her pregnancy, she had never bT^^uli logg V. Krauser, 14 S. & R. 137 ; Morse v Rt^t^ Tn n i' ' ^^'' Graflf 1 Whflftl r r oni o i ^""^^ "• ^^^^ « Conn. 9 ; People v. De vriuu, 1 wneei. o. c. 305 People v, Rolfe 61 Ca) mn a^a ^ t, Crim. Ev. (8th Am. Ed.) 222. • "O"^- «l t.al. 540. And see 1 Roscoe » Folkes V. Chad, 3 Dougl. 157 ; 4 T. R. 498. * Ferguson «, Hubbell 97 N. Y. 50~ H^ (1 '> IM EXPERT TESTIMONY. intercourse with any man. The (iot'emlant called a physician and asked him the hypothetical question whether, in his opin- ion, pregnancy would probably /-osult from lirst intercourse in a case where the ft uuuc !k«-; 'xion ravished and the act accom- plished against her will. The plantiff's counsel oJ iected to this question on the ground, among others, Muit the subject of inquiry was not such as to adrait the opinions of expert wit- nesses ; that it involved no question of science or skill, and the answer must necessarily be specuhitiv^ u itu uharaoter. The court having overruled the objection, the plaintiff except- ing, the witness gave his opinion that it would not. The Court of Appeals sustained the ruling, O'Brien, J., who deliv- ered the opinion, saying : " The inquiry as to the conditions under wliich pregnancy may occur is one peculiarly within the range of medical science and skill. The common knowledge and judgment of mankind may be greatly aided in an inquiry of this character by the opinions of learned and scientific men who have made the laws governing the complex physical organism of the human race the subject of profound research and study." ^ But while "scientific persons may give their opinion on matters of science, witnesses are not receivable to state their views on matters of legal or moral obligations, nor on the manner in which others would probably be influenced, if the parties acted in one way rather than another." And there- fore it has been held, that the materiality of a fact concealed at the time of insuring was a question for the jury alone.' And on a criminal trial, in the question of sanity, the witness should give his opinion as to the state of mind, and not as to the responsibility of the prisoner.^ The exceptions to the rule are confined to questions of science, trade, and a few others of the same nature.* A party has no right to ask the opinion of a professional witness upon any question except one of skill or science.^ The testi- mony of experts, as experts, cannot be received on subjects of 1 Young V. Johnson, 128 N. Y. 226. " Campbell t-. Rickards, 5 B. & Ad. 840. » Reg. V. Richards, 1 F. & F. 87. * Morehouse v. Matthews, 2 Comst. 514 ; State v. Stickley, 41 la. 332 ; Lambkin v. State, 12 Tex. Crim. App. 341 ; Debbs v. State, 43 Tex. 650. » Paige V. Hagard, 5 Hill, 603 ; Woodon v. People, 1 Park. Crim. R. 464 ; People V. Bodine, 1 Denlo, 482 ; People v. Thurston, 1 Park. Crim. R. 49, i EXPERT TESTIMONY. 166 |?eneral knowlodgo, familiar to mon in general, and with which jurors are supposed to be acquainted.^ The rule was illu*. trated in a caae in the Supreme Court of the United States where Mr. Justice Strong said that while it was proper to ex- plam obscure words or phrases of art by reference to the art or science to which the words were appropriate, it was not so when the words or phrases were familiar to all classes, gnules and occupations.' In a later case the effort wm to put the opmion of commercial experts in the place of that of the jury, upon a question which was as well understood by the commnnity at large us by merchants and importers, and the testimony was rejected.' A physician cannot be asked his opinion as an expert, as to whether rape could have been committed in a certain way, if the question can be decided without special profes- sional knowledge.* Nor can .'. physician testify as an expert on the damages resulting from a failure to keep a contract not to practise within a specified time.* Nor can he testify as to whether or not certain domestic troubles are sufficient to cause insanity .^ The value of an article in common use, such as a shot- gun, unlike that of precious stones, paintings, etc., may bo esti- mated by almost every man in the community.^ The danger and liability to accident existing when several persons go out hunting in company is within the ordinary observation of men acquainted with the use of flre-arms, and the common principles of human corduct.s The question whether one shot through a window .ould have seen and recognized the one outside who shot, was not one of skill or science, but one which it was the province of the jury to determine from the evidence as to the circumstances and con- dition o things at the time of the shooting, and therefore not 1 Mayhew v. Sullivan Mining Co., 76 Me. 100 ; Harvey v. U. S., 18 Ct. CI. 470 ; Conner «. Stanley, 67 Cal. 815 ; McKay t-. Overton, 65 Tex 82 ; Con cord-d. t'. Greeley, 23 N. H. 237; Com. v. Collier, 134 Mass 203 MH waukee & St. P. R. Co. .. Kellogg, 94 U. S. 472 ; Co^necticTMutli Lit ns^Co. . Lathrop 111 U. S. 618 ; New Jen,ey Traction Co. .. Sbat «t u .: Greenleaf v. Goodrich, 101 U. S. 278 ; 25 L. Ed 845 » Schneider v. Barney, 113 U. S. 645 ; Cook V. State 4 Zab. 843. 6 Linn v. Sigsbee, 67 111. 75. Carter t;. State, 56 Ga. 463. 7 Cooper v. State. 53 Urn. 398. * State V. Anderson, 10 Ore. 448. 166 EXPERT TESTIMONY. r * j\ a subject for the testimony of an expert.* Where a witness wjis «8ke(l, " Now, in your opinion as an expert, would that plastering bo in the condition that you found it, hatl the building since the plastering was phiced there settled six or seven inches i " An objection was properly sustained, for it is apparent to any one that the plaster of a building which has settled six or seven inches cannot be in the condition that it was before it settled," It is not necessary to resort to expert testimony to prove that a railroad embankment was improperly or negligently constructed so as to obstruct water.^ And a non-expert wit- ness may testify that certain stains are blootl,* or that certain hairs are from the head of a human being ; * and such a wit- ness may make an estimate as to the speed of a railroad train* But where a question arose as to the safety of a circular saw of large dimensions Avhich hatl been repaired, it was held that the testimony of an expert might be received^ Experts are not allowed to give their opinion on a case when its facts are controverted," but counsel may put to them a state of facts and ask their opinion thereon." A professional witness, present during the trial, cannot base his testimony upon a recollection and construction of the evi- dence given in the case. He must base his opinion upon his own testimony or upon a statement of the facts assumed to have been proven.^^ On a trial for murder, before Lord Chief Justice Tindal, several medical witnesses, who had been present during the 1 Jones V. State, 71 Ind. 66. " Richardson v. City of Eureka, 96 Cal. 443. 3 Lincoln & B. H. R. Co. v. Sutherland (Neb.), 62 N. W. 859. * State V. Robinson, 117 Mo. 649. » People V. Thiede (Utah), 89 Pac. 837. • Ala. G. S. R. Co. v. Hall (Ala.), 17 So. 176. ' Lan V. Fletcher (Mich.), 63 N. W. 357. « U. S. V. McGhee, 1 Cush. C. C. 1 ; Daniels v. Musher, 3 Mich, 183 ; Brown v. Com., 14 Bush (Ky.), 398 ; State v. Cole, 94 N. C. 958. » Dejarnette r. Com., 75 Va. 867 ; Luning v. State, 1 Chand. 178 ; Lake V. People, 1 Park. Crim. R. 495 ; State v. Bowman, 98 N, C, 509 ; Noonan V. State, 55 Wis. 258 ; Reed v. People, 1 Park, Crim. Rep. 481, 10 Moore v. State, 17 Ohio St. 531 ; State v. Felter, 25 la. 67 ; Burns v. Barenfield, 84 Ind. 43; Craig v. Noblesville & Stony Creek G. R. Co., 98 Ind. 109 ; Reynolds v. Robinson, 64 N. Y. 395 ; Gills v. Brown, 9 C. & P, 601 ; Guitterman v. Liverpool, etc.. Steamship Co., 88 N. Y. 858; Link v. Sheldon, 136 N. Y. 1 ; McCarty v. Com. (Ky,), 30 S, W. 229. EXPERT TESTIMONY, m trial and heard the whole of the evidence, but had no other means of forming an opinion on the (juestion, were admitted to testify that in their judgment tlio prisoner was insane. But the propriety of admitting such evidence having lieen made the subject of discussion in the House of Lords, the question was submitttMl to the judges, who were of opinion that a medical witness could not in strictness be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or whetlier he was con- scious at the time of doing the act that he was arting f;on- trary to law, or whether he was laboring under any and what delusions, because each of those questions involves the deter- mination of the truth of the facts deposed to, whicli it is for the jury to decide, and the questions are not mere questions upon a matter of science ; in which case such evidence is admissible ; but that where the facts are admitted, or not dis- puted, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as matter of right. ^ On a subsequent occasion, Mr. Baron Alderson, with the con- currence of Mr. Justice Cresswell, refused to allow a Avitness to be asked whether, from all the evidence he had heard, both for the prosecution and defence, he was of opinion that the prisoner at the time he committed the act was of unsound mind, and said that the proper mode is to ask what are the symptoms of insanity, or to take particular facts, and, assuming them to be true, to ask whether they indicate insanity on the part of the prisoner ; but to take the course suggested, he said, Avas really to substitute the Avitness for the jury, and to alloAV him to decide upon the whole case ; that the jury must haA-e the facts before them, and that they alone must interpret them by the general opinions of scientific men.!* Upon a trial for mur- der, Avhere the death was alleged to have been caused by suffo- cation, a physician Avho had attended in court and heard the evidence Avas asked his opinion as to the cause of death ; but Mr. Justice Patteson expressed himself very strongly upon the unsatisfactory nature of such evidence, the Avitness not having seen the body, and his opinion being founded on the 1 Reg. V. M'Naghten, 10 CI. & F. 200 ; 1 C. & K. 138 ; 8 Scott N. R. 595. " Reg. V. Frances, 4 Cox C. C. 57. 158 EXPERT TESTIMONY. ii facts stated by other witnesses.^ These cases have been fol- lowed in England by a series of determinations in which such evidence has been held to be inadmissible.^ The interrogatories to be put to an expert are not as to what his opinion is of the testimony, but what is his opinion of the facts as stated to him by the questioner.^ The assumed facts should be stated as facts.* To predicate a hypothetical ques- tion upon "all the testimony" in the case, is error.^ The questions must be so shaped as to give the witness no occasion to mentally draw his own conclusions from the whole evidence or a part thereof, and from the conclusions so drawn express his opinion, or to decide as to the weight of evidence or the credibility of the witnesses ; and his answer must be such as not to involve any such conclusions so drawn, or any opinion of the expert, as to the weight of the evidence or credibility of the witnesscK.^ The jury are the judges of the facts. The witness can state what is insanity or what causes insanity, but he must assume hypothetical facts when he tells the jury his conclusions.^ Where there were conflicting symptoms and indications and a direct conflict of testimony, a \/itness was improperly asked to give his opinion based on the testimony, as to the soundness or unsoundness of mind of the defendant." Where a witness, after giving his opinion as to the insanity of the deceased, based on his personal knowledge and obser- vation, stated that he had heard all the testimony in the case, he was asked, " In view of the testimony as you have heard it, and in connection with your own knowledge of the state of Mr. D. at the time he was in the asylum, in your opinion was he, or was he not, at that time, insane ? " To this he answered, "That opinion I have already expressed— that he was not insane— based upon my own personal knowledge." The court 1 Reg. V. Newton, Shrewsbury Spring Ass., 1850. " Reg. V. Pate, C. C. C. 12th July, 1850 ; Doe d. Bainbridge v. Bainbridge, coram Campbell, L. C. J., Stafford Summer Ass., 1850 ; Cox's C. C. 454; Reg. V. Leyton, Id. 149, coram Rolfe, B. 8 Butler V. St. Louis Life Ins. Co., 45 la. 93. And see Perkins v. Concord Ry. Co., 44 N. H. 323 ; Fairchild v. Bascomb, 35 Vt. 398. ♦ Russ V. Wabash West. Ry. Co., 118 Mo. 45. 6 People V. McElvaine, 121 N. Y. 250. t AIcMechem v. McMecliem, 17 W. Va. 684. " State^v. Coleman, 20 S. C. 441 ; Price v. Richmond & W. R. Co., 38 ^- ^- ^^^- * Smith V. Kickenbotham, 57 la. 733. ; EXPERT TESTIMONY. 159 told the witness ihat a hypothetical case was put to him • and the question was again asked in this form: "I want the opinion now with your oxvn individual observation, from what has reached you in the testimony;" to which the witness replied : " The testimony has not served to induce me to change my opinion already expressed." The court allowed these questions against objection, and this was held erro- neous.i In an action brought to recover damages for the breach of a contract of charter-party, where the defence was predicated upon the evidence given by the master of the vessel, and the plamtiflf endeavored to avoid the effect of it hy showing that the vessel, by proper management, might have entered one of the ports of the Gulf of Mexico, where her injuries could have been repaired, and she enabled to return for her carc^o a witness was asked: "Under the state of facts mentioned' in that deposition, what ports could the captain have made in the Gulf of Mexico?" The question was improperly allowed a In an action to recover damages for the death of the plaintiff's intestate, caused by the alleged wrongful acts of the defendant's servants, the court, speaking by Mitchell, J., said: «It was entirely proper to inquire of these experts as to the probable effect of excitement or physical exertion upon one in deceased's ^ seased condition, but we never knew of a case, and have not been referred to my, where it was ever permitted to repeat to a witness all the evidence in the case, and then ask him what verdict, m his opinion, ought to be rendered in the case, which was m effect what was sought to ba done in this instance. Courts have gone far enough in subjecting life, liberty, and property to the mere speculative opinions of men claiming to be experts and we are not disposed to extend the rule into tiie held of mere hypotlietical conjecture." a But Avhere the Avitnesses are men of unquestionable character and ability, it can hardly be material whether the question is asked in a more or less direct form ; especially as there can bo no difficulty in so shaping the question as to mask Avhile it substantially involves the precise objection ; and in several cases in England medical witnesses have been permitted with- 1 Butler V. St. Louis Life Ins. Co., 45 la. 93. " Dolly V. Monis, 10 Hun, 201. * Briggs V. Minneapolis St. Ry, Co., 53 Minn. 38. 160 EXPERT TESTIMONY. out objoction to r or im])roper^ And in your o|)inion was or was not the death of the patient tiie result of any neglect or want of skill in the surgeon 'i " These questions were held purely hypothetical and correct.** It is said in support of this position that, " where the facts are not complicated, and the evidence is not contradictory, and the li rujs of the question re(|uire the w" r- is to assume the facts stated as true, he is not retiuired to draw a conclusion of fact." ♦ Hypothetical questions must be based on facts proved or which the evidence tends to establish.** Though a witness has no knowledge of the nature and amount of services rendered, still his opinion on the question of value may be given in reply to ft question stating the nature and amount of such services hypothetically. But to render such evidence competent there uuist be testimony in the case tending to show that the services thus stated were in fact rendered. If the hypothetical case is imaginary the evidence ought not to go to the jury, for it will » Res. V. R(u-iin"lli. C. C. C, Ap. 1855 ; Reg. v. Weatron, C. C. C. Feb. 185C : SUiikio's L. of Ev. (4th Ed.) 175. ^ NegrtH's Jony et al. i\ Townshoiid, 9 Md. 145. « Wri^lit V. Uar.ly. 2'2 Wis. ;U8. * Hunt 1'. LowfU C}.i8 Lijj;lit Co.. 8 Allen (Mass.), 169. <* Stiite V. Anderson, 10 Ore. 418 ; Uop;ei-s, Elxpert Testimony (2d Ed.),^ 27. Andsee riiiinip »'. Com., 2 Meto. (Ky.) 17; Newton i». Ctat". 21 Flu. 53 ; Halluiil r. .State. 19 Neb. (iO!) ; Ray v. Ray, 98 N. C. 566; State u. Ginger, 80 la. 577 : Russ v. Wtibash West. Ry. Co., 113 Mo. 46. \' ! KXPERT TESTIMONY. 161 have a tendency to mislead them.» But a party seeking ar (>i)inion Irotn an expert witness may assume in his hypothetical question such facts as he deems i)roved by the evidence » The proper purpose of a hypothetical question is to obtain the opimon of one entitled by experience to speak and express an opmion upon a state of facts, which for the purixjse of his con- sideration are to be received by him as true.8 And it is not essential that the evidence as to the facts assumed to be proven should be uncontradicted.* The counsel may assume any state of facts which the evidence tends to establish, and may vary the questions so as to cover and present tiie different theories But there must be evidence in the case tending to establish all the facts stated in the question.^ Concerning this the Supreme Court of Wisconsin has said : " The rule in that respect must be that m propounding a hypothetical question to the expert the party may assume as proved all facts which the evidence 111 the case tends to prove, and the court ought not to reject the question on the ground that in his opinion such facts are not established by the preponderance of evidence. What facts are proved in the case, when there is evidence to prove them IS a question for the jury and not for the court. The party has the right to the opinion of the expert witness on the facts which he claims to be the facts of the case, if there be evidence m the case tending to establish such claimed facts, and the trial judge ought not to reject the question because he may think such facts are not sufficiently established." « If the facts assumed arc not found established by the jury, then the opinion will be deprived of all weight in the case ; 7 but if they are found then appropriate effect will necessarily be awarded to it and the opinion given will aid the jury in solving the controversy .» In the charge to the jury in a recent case the court said : « If 'Williams V. Brown, 38 Ohio St. 547. See also opinion of Staples, J., m Dejarnette v. Com., 75 Va. 867, 875. ^°,o., •■' Rogers, Exp. Testimony (Ist Ed.), 39 ; Tiler v. N. Y. C. E. R Co 49 N ^■/.1^^"'^'''"f' '^^'c®^' ^°- "• ^^^^y' ^^'"'*- -we ; Goodwin v/statei 96 Ind. 550 ; Guetig v. State, 66 Ind. 94 ; Nave v. Tucker, 70 Ind 15 ' Girard Coal Co. v. Wiggins, 52 111. App. 69. * Jackson v. Bumham (Colo.), 89 Pac. 577. <> Ru88 V. Wabash West. R. Co., 113 Mo. 45 ; 18 L. R A 833 «Quinn V. Higgina, 63 Wis. 664. And see People v. Harris, 136 N. Y. ' ^i_re Will of Norman, 72 Id. 89 ; Russ v. Wabash West. Ry. Co., 112 " 11 ' Doiz V. Mortis, 10 Hun, 201. 162 EXPERT TESTIMONY. It.'. tlie facts stated as a basis for the hypothetical question pro- pounded to the medical experts in this case were not substan- tially correct, as shown by the evidence introduced on the trial of the case, then the opinion given by the experts based upon such assumed state of facts is entitled to but little or no weight as may be determined from the evidence." This was held erroneous and the case was reversed, because the jury might have understood that they were justified in giving some weight and force to the evidence of experts, even though they should find that such evidence was bottomed upon facts not proven.* "Whei J a hypothetical question is put to a witness for his opinion, the question must be full enough to form a basis for an opinion. Where the question relates to the value of an animal, it must omit no important qualities of the animal affecting its value, about which there is no dispute, and which would necessarily influence an opinion.* Where the opinion of an expert is ofifered, the court may hear evidence to ascertain first whether he is an expert.^ A witness cannot be permitted to give his opinion as an expert until it appears, by a preliminary examination, that he is a person of skill in the particular department or subject-matter in which his opinion is desire«- -• S- Mutual Bonus t. Rd..'...V:,^.1^r ' Bird t,. State. 21 Grai. 800; ♦ Haas r. Greet. (C. P.), 57 N. Y. S. R. 545 Ardesco Oil Co. v. Gilson 63 Pa Sf mr . tth » p, 'erkins v. Stickney, 132 Mass. 2i7. T Long V. First German Congregation, 63 Pa, St. 156. lU EXPERT TESTIMONY. V :i ,f? i 1 F^ 'I; ifP peculiar interest, and lead him to give a special study to that subject of inquiry." ^ A physician testifying as to the condition of a patient, may base hie opinion partly on declarations made to hira by the patient, vhich he may relate to the jury.^ The opinion of an expert as to the sanity of a party, founded upon a personal examination of, and acquaintance with, the party is admissible." And while neither books of established reputation, nor statistics — for example, of the increase of insanity — can be read to the jury,* yet medical witnesses may give opinions upon information derived from books, not being confined to the results of their observation and exiJeriencc.'' On this subject, Mr. J itstice Cami)beli, of the Supreme Court of Michigu-n, made the following clear, explanatory observa- tions : " No one has any title to i aspect as an expert, or has any right to gi-.'? an opinion on the stand, unless as his own opinion; and if iiu has no>. gliven the subject involved such careful and discriminating atudy as has resulted in the forma- tion of a definite opinion, he has no business to give it. Such an opinion can only be safeiy formetl or expressed by persons -.■ lio have 'i>-lo ihe scientific questions involved matters of defiiiit' irti intelligent study, and who have by such applica- tion msae up their own minds. In doing so it is their business to resor! to such aids of reading and study as they have reason to believe contain the information they need. This will naturally include the literature of the subject. But if they have not taken trouble enough to find, or suppose they find, that certain authors say certain things without further satisfy- ing themselves how reliable such statements are, their own opinion must be of very moderate value, and whether correct or incorrect, cannot be fortified before a jury by statement of what thoae authors hold on the subject. The jury are only concerned to know what the witness thinks, and what capacity and judgment he shows, to make his opinions worthy of respect. If the opinion ^^^ an author could be received at all, 1 Chicago, etc., R. Co. v. Lambert, 119 111. 256. 2 State V. Gedicke, 43 N. J. L. 86. 8 Boardman v. Woodman, 47 N. H. 120 ; People v. Lake, 12 N. Y. 358. * Melvin v. Easby, 1 Jones' L. 886 ; Com. v. Wilson, 1 Gray, 337. See 1 Greenl. Ev. 6 State V. Terrell, 12 Rich. L. 321 ; State v. Wood, 53 N. H. 484 ; Link v. Sheldon, 136 N. Y. 1. EXPERT TESTIMONY. 165 It should be from his own words, not in single passages, but in combination ; and this, as has been heretofore held, cannot be done. It IS excluded chiefly as both unknown as to value and m hearsay, and an attempt to swear to his doctrines orally would be hearsay still further removed, besides involving the other difficulty of needing interpretation and responsibility " i Rut It must be shown upon what the expert founds his opinion." Even in cases where experts are called upon to give an opinion based upon their personal observation, the facts upon which the opinion is founded must be stated. Otherwise the witness might be giving an opinion which would have great weight with the jury upon a state of facts very different from those found by them in the case on trial.3 And so in an action for the value of services, where the witness knows nothing of the character of the case, nor of the amount or character of the services rendered, he may not be asked " From what you know of the case what do you think would be a fair amount for " the services ? * Section II. The Value of Expert Testiniony. In many countries this kind of testimony, technically termed expertise, is invested with a sort of semi-official author- ity, and special rules are laid ciown for the estimation of its proving force.6 N^either in England, however, nor in this country is any peculiar authority given to the testimony of witnesses of this description ; its value is estimated by the same general principles as are applied in estimating the capacity, credit, and weight of all other witnesses,^ and the courts have wisely repelled all attempts to depart from the estaW , shed and ordinary rules of evidence and judgment. The opinions of exjierts are advisory only and are not conclusive upon the 1 People V. Millard, 53 Mich. 63. 2 Polk V. State, 36 Ark. 117 ; Price v. Richmond & D. R. Co., 88 S. C. ^^•„ ,.„. * Hitchcock V. Burgett, 83 Mich. 601, « Williams V. Brown, 38 Ohio St. 547. * Mittermaier, ut supra, c. 126 et seq. • Best's Prin. of Ev. 385 et seq.; State v. Miller, 9 Houst. 564. li ^ll ! II 166 EXPERT TESTIMONY. jury.' They are to be considered by the jury in connection with all the other evidence in the case ; and the jury are not bound to act upon them to the exclusion of other testimony.^ It is scarcely necessary to add that scientific evidence being generally matter of opinion, can seldom be implicitly adopted. Lord Cottenham said he had seen enough of professional opin- ions to be aware that in matters of doubt, upon which the best constructed and best informed minds may differ, there is no difficulty in procuring opinions on either side.^ A learned writer on the Law of Scotland observes, that " there is perhaps no kind of testimony more subject to bias in f av or of the adducer than that of skilled witnesses ; for many :nen, who would not willingly misstate a simple fact, can ac- commodate their opinions to the wishes of their employers, aiiu the connection between them tends to warp the judgment of the witnesses without their being conscious of it ; and hence skilled witnesses, in questions of handwriting, can usually be got in equal numbers on either side ; and engineers are more frequently like counsel for their employers than like witnesses giving their real opinions on oath." * And a learned judge of the New York Court of Appeals, after quoting the language of Lord Campbell referred to in the note to the preceding paragraph, made the following remarks : " Without indorsing this strong language, which is, however, countenanced by the utterances of other judges and of some text- writers, and believing that opinion evidence is, in many cases, essential to the administration of justice, yet we think it should not be much encouraged, and should be received only in cases of necessity. Better results will generally be reached by taking the impartial, unbiased judgments of twelve jurors of common sense and common experience than can be obtained by taking the opinions of experts, if not generally hired, at least friendly, whose opinions cannot fail generally to be warped by a desire to promote the cause in which they are enlisted." *• Undoubt- edly many discreditable exhibitions have taken place in our > Moore v. Ellis, 89 Wis. 108. " Guetiz v. State, 66 Ind. 94. » Dyce Sombre's Case, 1 M'N. & Gord. 128. * a Dickson on the L. of Ev. ut supra, 996 ; and see the language of Lord Campbell in the Tracey Peerage, 10 C. & F. 191. See also the remarks of Judge Taylok, Taylor's Ev. ^ 58. 6 Ferguson t'. Hubbell, 97 N. Y. 507. U mi \ EXPERT TESTIMONY. w courts of justice ; nor is it possible to restrict the forecoing ■ Xn *ri^^^"^««« ^^'^^^ f'««^ the particular professions which have been enumerated. Happily, however, such cases are but exceptional; and true scientific knowledge, under the s diary to the ends of justice.^ And it has been held an inva- rin T Pr'"'^''^ *^' J"'^ *^ ^^^^g« that common ex- of iZnl K r ^^^^ ''^^ ^P^''^^"^ «^ experts upon questions of insanity have become of little practical value » «nv H?r'^?''''l ""^ "^^"^^^^^ P"^^^^' «^ ^ ^^Pital trial, as to any distinction brought out by scientific investigation, between the appearance of stams of human blood and those of the blood of animals, IS admissible.' The subject is one which ha^ re- ceived much attention at the hands of men qualified to discuss t and It is important because of the number of cases in which the strength of the prosecution lies mainly in testimony as to the character of blood-stains.* '^ Some valuable remarks upon this kind of evidence were T^lul I C^^«f/"«tice Cockburn, upon atrial for murder, cutHni T fr°f ^f T' ^^'^' '^^^ "^"^^'^r '^^ effected b; cutting the throat. A knife was found on the person of the that the murder ha4 been effected with this weapon, while it was alleged on the part of the prisoner that it had been used for cutting raw beef. A professional analyst called on the part of the prosecution stated that the blood had not coagulated till bl(^?u'nM :.^'r; ''"^ ''.^ '"^'^ '^^ ^^^'^ immersS^in livin, blood up to the hilt, and that it Avas not the blood of an ox a stieep, or a pig. His opinion was grounded upon the relative sizes of the globules of blood in man and other^nimaMiat o man being stated to be l-3400th of an inch, of the ox l-5300th b in';atr3'ti1f w'h'"' '' ^'^ P^^ '■'''''''' ^^^ relative Is being as 53 to 34 m the ox, 52 to 34 in the sheep, and 45 to 34 m the pig The learned judge said, " The ^vitness had said the blood on the kmfe could not be the blood of an animal as stated by the prisoner, and took upon himself to say that it was not « State .. knighte. 43 Me. 11. ^""'^ "^ ^^"•^^' ^^ ^'«- '"'• cale?o7fhiT A "^^^ °'' «°°^ authority, that in a recent year fifteen cases of this kind arose in and about the city of New York alone i] k . I; ■ ^ 1 i'l 'I r 168 EXPERT TESTIMONY. tho blood of a dead animal ; that it was living blood, ;ind that it was human blood, and he had shown them the marvellous powers of the modern microscope. At the same time, admit- tirg the great advantages of science, they were coming to great niceties indeed when they speculated upon things almost beyon. ^y IMAGE EVALUATION TEST TARGET (MT-3) 1.0 UifflS ||25 |jo '""^ m^m ^ li^ 112.2 ^ 1111^= MUl- lllll 1 ft 1=^ I.I 1.25 '•ii 1.6 Sciences Corporation ■23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716) 872-4503 ?>^* '^J^/% x^/^ ■ i t Hi 170 EXPERT TESTIMONY. expert, however, found the blood to bo that of a mammal. Thoro wore also found in the blood-spots piocos of corn-husksj and minute particles of earth which w»w idontiflod iw the same as that of the corn-Hold in which the murder was committed.^ The views of Mr. Justice Stephen are always entitled to the greatest oonsiiloration, and some remarks of his bearing on the general subject under discussion are most appropriate here. SjHMiking of the law with reference to the defence of insanityj he says: "The imi)ortance of the whole discussion as to the precise terms in which the legal doctrine on this subject are to be stated may easily be exnggtn-ated as long as the' law is ad- ministered by juries. I do not believe it possible for a person who haa not given long-sustained attention to the subject to enter into the various controversies which relate to it, and the result is that juries do not understand the summings up which aim at anything elaborate or novel. The impression made on my mind by hearing many— some most distinguished— judges sum up to juries in cases of insanity, and by watching the juries to whom I have myself summed up on such occasions, is that they care very little for generalities. In my experience they are usually reluctant to convict if they look iipon the act itself ttvs, uiH)n the whole, a mad one, and to acipiit if they think it W1U5 an ordinary crime, liut their decision bvitween ma«lnes8 and crime turns much more U})on the particular circumstances of the case, and the common meaning of words, than upon the tluM)ries, legal or medical, which are put before them. It is questionable to me whether a more elaborate inquiry would pnxluce more substantial justice.' The following cases are remarkable as exemplifying the inconolusivcness of scientific evidence, when uncorroborated by conclusive facts, physical or moral : A young man was trietl for the murder of his brother, who reside*! with their father and ovcrkwked his farm. The prisoner, who lived about twenty miles from his father's house, went on a visit to him, and on the day after his arrival his brother was found dead in the stable, not far from a vicious mnn\ with her trsvcos u])on his arm and shoulders ; two other horses were in the stable, but they had their traces on. Sus- picion fell u|wn the prisoner, who was on ill terms with his • Seo articlp by Dr. Pijx>r in 19 Am. L. Reg. (U. S.) at p. 605. " 3 Steph. Dig. Crim. Law, p. 185, quoted in State v. Maier, 36 W, Va. 757. EXPERT TESTIMONY, ^^^ brother, and the question was whether the deceaaeo had been kill,H with a spade, or by kicks from the mare. The spade was |)loo( y, but It had been inadvertently used by a boy in clean nu? the st«,ble ; and the cause of death could only be determined hytho charajtor of^ the wounds. There were two straight ncsod wounds on the left side of the hea.1, one about five and U.0 other about two inches long, which had apparently been inflicted by an obtuse instrument. On the right side of the hoful there wore three irregular wounds, two of them aFx^ut four inches m len^h, partaking of the appearance both of lacerated and mcised wounds. There was also a wound on the bjujk part of the head, about two inches and i half lonir There was no tumefax^tion around any of the wounds, the ntegumontsmlhering firmly to the bones; and, except where the wounds were inflicted, the fracture of the skuU w^ general throughout the right side, and extended along the ba<>k of the homl toward the left side, and a small part of the temporal bone came away. The deceased was found with his hat on which was bruised, but not cut, and there were no wounds on Zinn' M Tl "^ *^' Y^- ^"^^ ^"rgeonsexpressed apositive opinion that the wounds could not have been inflicted by kicks from a harm, grounding that opinion principally on the distinct- ness ot the wounds, the absence of contusion, the firm adher- ence of tlie mtegumente, and the straight lateral direction and Sim. arity of the wounds ; whereas, as they stated, the deceased ANould have fallen from the first blow if he had been standing an( ,f lying down, the wounds would have been perpendicular • and, moreover, they were of opinion that the wounds could not have been inflicted if the hat had been on the deceased's head without cutting the hat, and that he could not have put on his liat after receiving any of the wounds. The learned iudee however, stated that ho remembered a trial at the Old Bailev where it hiul been proved that a cut and a fracture had been received without having cut the hat ; and evidence was adduced of the infliction of a similar wound by a kick without cutting tne liat. The prisoner was acquitted.* A murder was alleged to have been committed with a shovel and disco ored spots were found on the shovel, and also on the clothes of the deceased. These were subjected to chemical analysis and microscopic examination by different experts. » Rex V. Booth, Warwick Spring ABsizes, 1808. coram Mr. Baron Wood. ira ex; ERT TESTIMONY. I' ii r v:i f 1 1 <■ I It t ' I* t I I' i ,. f tii Si Some of those succeeded in finding well-defined blood corpuscles indicating human blood, others failed to find them. It was instructed on the part of the accused that human blood could not be distinguished from that of many animals by any chemical test or scientific appliance. In answer to this the court said substantially that if scientific research gave no such aid in the discovery of a heinous crime, it was deplorable. Nevertheless, he charged that if the jury was satisfied of its truth, they might lawfully convict, upon proof of the existenco of human blood, by the testimony of unlearned observers. And this was approved by the Supreme Court.^ A woman who was tried for the murder of her mother had lived for nine or ten years as housekeeper to an elderly gen- tleman, who was paralyzed and helpless ; the only other in- mate being another female servaat, who slept on a sofa in his bedroom to attend upon him. The deceased occasionally visited her daughter at her master's house, and sometimes stopped all night, sleeping on a sofa in the kitchen. She came to see her daughter about eight o'clock one night, in December, 1848 ; the other servant retired to bed alwut half -past nine^ leaving the prisoner and her mother in the kitchen, and she afterwards heard the prisoner close the door at the foot of the stairs, which was usually left open that they might hear their master if he wanted assistance. About two o'clock in the morning she was aroused by the smell of fire and a sense of suifocation, and found the bedroom full of smoke ; upon which she ran downstairs, the door at the bottom of which was still closed. As she went downstairs she v a light in the yard, a,nd she found the kitchen full of smoke, and very wet, par- ticularly near the fireplace, as also was the sofa, but there was very little fire in the grate. She then unfastened the front door, and ran out to fetch her master's nephew, who lived near, and who, after ascertaining that his uncle was safe, went into the kitchen, and threw some water on the sofa, which was on fire. The prisoner then drank to in"'>xication from a bottle of rum, and laid herself down on the sofa. The pillows and entire baek part of the sofa-cover were burnt to the breadth of the shoulders. The remains of the deceased were found lying across the steps of the brew-house, and on the back of the head lay a piece of the sofa-cover, and near the body was » MlAin V. Com., 99 Pa. St. 86. EXPERT TESTIMONY. O a cotton bag besmeared with oil, which had been used indis- cnmmat^ly a« a bag or pillow. Near the feet of t^ ^ there were four pairs of sheets, which had been in the kitS the night before, wet and almost entirely consumed The prisoner's clothes were on a chair in the kitchen a^'it a^ fnTd "^rw: T ^' ^'^ '^'■^^°*^- '^^' sth;^ not been in bed A butter-boat, which had been full of dripping and Lrth^te"'"' "t""^ "^^'^'^*"" ^^^lamp^STa'di; neai- the hre over night, were both empty, and there were spots of grease and oil on the pillowcase, sheets, and sofa A s oekmg had been hung up to cover a c^vice ii the w^do,^ abutter, ^rough which any person outside might have seTn mto the kitchen. The door-post of the kitohen leadmg into X yard was much burnt about three feet high from the^^und and there wa« a mark of burning on the door-post of tlXew: house. The surface of the body was oompllly charred, Te tongue was hvid and swollen, and on. of L toes was much bruised, as if it had been trodden on. There was a Tmall blister on the inside of the right leg, far below wheTethe ^a burning commenced which contained strawK^olored sLm, but there was no otl 3r bhster on any part of the body no; any marks of redness around the blisteVor at the parts where the injured and uninjured tissues joined. The nose, which had been a very prominent organ during life, was flattened theTvPlTVt T' ™T *^*" ^^' ''^^^^ «f ^^ *««^ ^bove the level of the face, and as it never recovered its orimnal apijearance, it was stated that it must have been so flattened or some time before death. The lungs and brain were mLh congested, and a quantity of black blood was found in the right auricle of the heart. From these facts the medicaf w't nesses examined in support of the prosecution concluded that the deceased had been first suffocated by pressing something over her mouth and nostrils so forcibly as to break and flattef the nose m the way described ; but they had made no examin- ation of the larynx and trachea, and other parts of the bodv A physician, who had heard the evidence but not seen the deceased, gave his opinion that the appearances described by the other witnesses were signs of death by suffocation ; that the absence of vesication and of the line of redness were certain signs that the body had been burnt after death ; but he added that, as there were no marks of external injury, an examina- ' m 174 EXPERT TESTIMONY. tion should have been raaxle of the parts of the body above mentioned, m order to arrive at a satisfactory conclusion Another medical witness thought it possible that suffocation might have been produced by the flames preventing the access of air to the lungs, while others again thought it impossible tnat such could have been the case, as no screams had been heard in the night, and they were also of opinion that if ahve the deceased must have been in such intense agony that sLa could not. If she had been strong enough to walk from the kitchen to the brew-house, have refrained from screaming One of these witnesses stated that he did not think it possible that the deceased, if alive, could have fallen in the position in which she was found, as her first impulse would have been to stretch out her arms to prevent a faU ; but, on the other hand It was urged that it was not possible to judge of the acts of a person in the last agonies of death by the conduct of one in full life. Under the will of her grandfather the prisoner was entitled, in expectancy on the demise of her mother, to the sum of £200, and to the interest of the sum of £300, for her Me. She had frequently cruelly beaten the old woman, threatened to shorten her days, bitterly renroached her for keeping her out of her property byUving so long, and declared that she should never be happy so long as she was above ground, and she had once attempted to choke her by forcing a handkerchief down her throat, but was prevented from doing so by the other servant. The magistrates had been fre- quently appealed to, but they could only remonstrate, as the old woman would not appear against her unnatural daughter The case set up on behalf of the prisoner was, that she was in bed, and perceiving a smell of fire, came downstairs, and find- ing the sofa on fire, fetched water and extinguished it, and that she knew nothing of her mother's death untU she heard of it from others. It appeared that the old woman was gen- erally very chilly, and m the habit of getting near the fire; that on two former occasions she had burned portions of her dress ; that on anotJier she had burned the corner of the sofa- cushion; that she used to smoke in bed, and light her pipe with lucifer matches, which she carried in a basket ; and that on the night in question she had brought her pipe, which was found on the following morning in her basket. It was urged as the probable explanation of the position in which the bSly I EXPERT TESTIMONY. 175 was found that, finding herself on fire, she irust have uro- ceeded to the brew-house, where she knew therTwt waC and leaned m her way there against the door pos^and tha ' £f Ltd" Wh"^'';.^'^ had wrapped the'she'ets tou^J her and did not throw them oif until she reached the yard JabitTT ''''"^^ ^«"«tomed to sleep upstairs, w^in the reason whvt:T I' ''t 'If ^"' "'^^^ ™ ^*^^ *« ^e the reason why the stocking had been so placed as to prevent anv person from seeing into the kitchen Mr. Justice TtlnY mhis charge to the jury, characterized the ev rnc/l^^^^^^^^^ medicd practitioners who had examined the bo^™^^^^^ unsatisfactory in consequence of the incompletelfof S examination; the opinion of the physician who haT not stn the body ™ also, he said, very unsatisfactory, as substlt^" him or the jury ; that he had only expressed Tis option a! founded upon the facts stated by the other witnesses^ that ^? he ha^ seen the body himself, his views migl Tave be^ma erially different ; that the other witnesses migtt have omitTed o mention particulars which he might deem^f the greatest mportance but on which they looked as of no significance that therefore, opinions expressed on such partial ftatements' cion; that he had always had a strong opinion against such evidence, as tending to encroach upon the propfrduty of juries; and he recommended them to exercise therownud^ ment upon the other evidence in the case, withou SiSt implicitly to the authority of this witness. The jury^a^^^^^^^^^^^ the prisoner; and indeed it would have been con rary^toaU principle to do otherwise, in the midst of so mucruncertdnt as to the corpus delicto uncertainty f io!r ^ ^^^^^^"^ '^'' commented on in a recent legal publica- t on, one, Mrs. R, was charged with having given her husbpTd srychmne, from the effects of which he difd in conv^ s'o„s several hours later. The evidence introduced in threrv guilty. But subsequently many days were spent in the exam mation and cross-examination of expert witnesses. " The„ct ef m:^ 176 EXPERT TESTIMONY. forward the case became a sort of tournament between experts, protracted to an enormous length and unrivalled in personal bitterness. When they had finished, the most oarofttl reader was at sea. They differed about everything ; they flatly con- tradicted each other about every sjnnptom of strychnine- poisoning ; they even created a reasonable doubt m to whether it was ever possible in any case to say that a person had been killed with strychnine. As a result the prisoner was ac- quitted, and has ever since been regarded as a much persecuted woman." * » The West Va. Bar (1896), 207. DIVISION IT. EXTRINSIC AND MECHANICAL INCULPATORY INDICATIONS. INTRODUCTORY REMARKS. Wlpatory circumstances of an extrinsic and mechaniP«l nature are such as are derived from the physL^S ties and characteristics of persons and thin^; f rom E and objects which bear a relation to our cortrrealTat,^« Ta are apparently independent of moral inS^ns Suehfects are mtimately related to, and. as it were, dovetail wTh The corj>usdehcH ; and they are the links Aich estaS' the ~on between the guilty act and its invSe moltl It rarely happens in praxjtice that circumstantial proofs con sist purely in mere natural and mechanica coEenees' trdTc^^uf lt ^^ ^. -r "^^-^ -rc^-s TZ Z dtfctr ^^ '^ '''''^^' ^^'^y ^^^-^^ There are no existing relations, natural or artificial, no occur society, which may not constitute the materials of proof and become important links in the chain of evidence ^ ' attemotTl?^'' ^^r^'^^i "^'" *^ '^"^^y^ ^^^ ''^ !««« to QueS "T"'^^'"'' *'^' evidentiary facts of the kind in question, except m a very general way ; but it may be inter esting a^d instructive, by way of illustration, to advert to some of the prmcipal heads of such evidence, and to some reCk ^2 1 Staikie on Evidence (10th Am. Ed.). 844. 177 17S INTRODUCTORY REMARK8. able cases which have occurred in the records of our criminal jurisprudence. One imiwrtant and admonitory result of such an enumeration will be to show that all such facts are unavoid- ably associated with attendant sources of error and fallacy. The principal facts of circumstantial evidence, of an external character, relate to questions of identity, of person ; of things ; of handwriting ; and of. time ; but there must necessarily be a number of isolated facts which ddrait of no specific classifi- cation. 1 ■ I I CHAPTER I. IDENTIPICATION OP PERSOW. In the investigation of &^ty alleffation of kuml «»,-.«- u • fondamantall^^uiaiteto establish^ty'Jt^'^^,^^^'' tial evidence, the identity of the indir^ luZTT^ party who comniitted the imputed oflence. ***'' Identity may be, and mde^d very often most be t,ror^ W oircam«tantia»evidence.i AnycirciLtancewtkhlLStS Litt^ 1: • ''" '"*"^*^^"' ^"^-^^^^ tendstomlketetl^ osition at igsne raor* or less probable, may be fnrm in TtT men^nfT TT"'*'^^^ ^^^' '^ ^« ftdmissiWe as a fraj^^ tW light upon the";;an:aot^nV'"V ' obje^S 'T,t ^ound of remotene^ ^e,^^j the7;jonL ViL^^^^^ On an mdiotment for murder, where the ^isoner wasTw^t man, and several witnessed Ha,* «.^,« ^>l KIT^ ^*^ done the shootitu. wl ™ ^***^® pewon who had thlTr^V h r 7^^ ^^^^ ^^^ "*^^«^ ™ «Ji«^d to testify that he at that time noticed, around the defendant's neTl iuiLjf!* ^^•'''""l"^^' V P^'-^on^ not cohvemnt with erlo^f d^l^f^* identification is seldom attended wrth serious difficulty, but such is not the case. Illustrations are Booker v. Hooker, 12 W. R. 807. MVhwt. Ci% Ev. §§ 8J, 84 ; McCann v. State, 18 Sm A M, 4ni . , k «. Com. ,115 Pa. 809 ; 7 Cent. fl08 la am. & M.. 471 ; , Jofenson « SiraiTM V. State, 10 Tex. Crlm. App. 181. State V. Chambers, 45 La. Ann. 11 So. 944 Walker v. State, 6 Tex. Crim. App. 676. 179 180 IDENTIFICATION OF PERSON. I I numerous to show that what are supposed to bo the clearest intimations of the senses are sometimes fallacious and de- ceptive, and some extraordinary cases have occurred of mis- taken personal identity.* Hence the particularity, and, as unreflecting persons too hastily conclude, the frivolous minuteness of inquiry, by professional advocates, as to the causa sciential, in cases of controverted identity, whether of persons or of things. On a trial for the theft of certain municipal bonds of the city of Cincinnati a witness for the State testified that he had purchased the bonds from a i>er3on answering in general the personal appearance of the defendant. The defendant then introduced one V., who testified that at the time when the former witness said that he had 'purchased the bonds, V. was in the same city, and met on the street a person who was a stranger to him, but who so strongly resembled the defendant that he twice approached tlie person with the intention of addressing him, and did not discover the mistake till he had approached near enough to extend his hand foi* the purpose of shaking hands.'' Where one was indicted for adultery with S., a government witness, whose house was within 90 feet of the house of S., testified that frequently in the summer and fall of 1878, between eight and nine in the evening, she saw the defendant go to the house of S. and call her out and stand at the gate talking with her, and that once they walked towards the ship- yard together. The defendant denied the truth of this, and to corroborate his statement and discredit the statement uf the government witness, called another witness wLio lived nearer the house of the alleged paramour than the former witness, who was willing to testify that during the same sum- mer anu fall, in the evening, she had several times seen a man, who was not the defendant, call S. out and stand with her at the gate, and afterwards walk to the shipyard with her. This was excluded, but should have been admitted.^ Two men were convicted before Mr. Justice Grose of a » Rex V. Wood and Brown, ut supra, 33 ; Rex v. Coleman, ut supra, 68, 83 ; Reg. V. Markham, sentenced to four years' penal servitude for uttering a forged check, O. B. 1856, but subsequently pardoned on the conviction of the real offender. « White V. Com. , 80 Ky. 480. « State V. Witham, 72 Me. 531. IBENTIPICATION OP PERSON. jgj mtipder, and executed; and the identity of the prisoners wtw positively sworn to by a lady who wiw in companv with the decGMod at the time of the robbery and murder; but several years afterwards two men, who suffered for other crimes, con. fossed af the scaflfold the commission of the murder for which these persons v»^ere executed." A young man was tried at the Old Bailey, July, 1824 on Ave indictments for different acts of theft. It appeared that a person resembling the prisoner in size and general appearance had called at various shops in the metropolis for the purpose of looking at books, jewelry, and other aiticles, with the protended intention of making purchases, but made off with the property placed before him while the shopkeepers wore engaged in look mg out other articles. In each of these cases the prisoner was positively identified by several persons, while in the majority of them an alibi was as clearly and positively established, and the young man was proved to be of orderly habits and irre- proachable character, and under no tempUtion from want of money to resort to ax^ts of dishonesty. Similar depredations on other tradesmen had been committed by a person resembling the prisoner and those persons deposed that, though there was a considerable resemblance to the prisoner, he was not the person who had robbed them. He was convicted upon one indictment, but acquitted on all the others; and the judge and jurors who tried the last three cases expressed their conviction that the witnesses had been mistaken, and that the prosecutor had been robbed by aiiother jjerson resembling the prisoner. A pardon was immediately procured in respect of that charge on which the conviction had taken place » A few months before the last-mentioned case, a respectable young man was tried for a highway robbery committed at Bethnal Green, in which neighborhood both he and the pros- ecutor resided The prosecutor swore positively that the prisoner was the man who robbed him of his watch. A youne woman, to whom the prisoner paid his addresses, gave evidence which proved a complete Mi. The prosecutor was then or- dered out of court, and in the interval another young man, who awaited his trial on a capital charge, was introduced and placed by the side of the prisoner. The prosecutor was again put I ?«^ «• Clinch and Mackley, 3 P. & F. 144, and Sess. Pap., 1797. « Rex v.Robmson, Old Bailey, Sessiona Papers, 1824, 182 IDBNTlFICATrON OF PERSON. ffi'l : I ! li "I Si l«jl *l into the witness-box, and addressed by the prisoner's -counsel thus: "Remember, the life of this young man depends upon yonr rr»rfy to the question I am about to put t Will you swear ag»' . *hRt the young man at the bar is the person who assaulted and robbed you ?» The witness turned his head toward the dock, when beholding two men so ne^^rly alike, he dmpped his hat, became speechless with astonishment for a time, and at length Weelined swearing to either. Th*> prisoner \ms of course acquitted. The other young man was tried for another offence anxl executed, and before his death acknowledged that he had committed the robbery in question.i Upon a trial for burglary, where tliere was conflicting evidence as to the iden- ti^y of f,he prisoner. Mr. Baron Bolland, after remarking uixm the risk incurred in pronouncing on evidence of identity exiiosed to sufch doubt, said that when at the bar he had prosecu!^ a woman for child-stealing, tracing her by eleven witnesses hav- ing ribbons and oth«r articles at various places in Loudon and a* last into a coach at Bishopsgato, whose endence was con- trjj?:3ted by a host cf other witnesses, and she was acquitted ; and that he had afterward:^ prosecuted the. very woman who r^ly dtole the child, and traoed her by thirteen witnesses. These contradictions," said the learned judge, "make one tflemblQ at the consequences of relying on evidence of this nature Wiwipporliou by other proof." * ' As ineidentkl to the establishment of identity, the quantity of light necessary to enable a witness to form a satisfactory opmion has occasionally become the subject of discussion A man was tried in January, 1799, for shooting at three Bow Street cflioers, who, in consequence of several robberies having been committed near Hounslow, were employ^ to scour that aeighboi-hood. They were attacked in a iwsiK^haise by two persons on horseback, one of whom stationed himself at the head of the horses, pnd the other went to the side of the chaise Oiie of the officers stated that the night was dark, but that from the flash of th« pistols he could distinctly see that one ol th« roobers icde a lark brown horsa, between thirteen and fourteen hands high, of a very remarkable shape, having a square head and thick shoulders ; that he could select him out of fifty horses, and had seen him him since at a stable in Long ^ 8 P, «sk F. IrtE ; Amos' Great Over of Poisoning S65 * Rex V. Sftwjer, Reading Ass. IDBNTIFIOATION OP PERSON. jgg ^i!"* I ''^'t ^^^ ^* **^ perceived that the person »fc the side glass bBdbn a rottgh shag greaUoat.* Similar evidettee was gi ven on. a trua for high treeaon;* and in a ca^e of bwglary before the Special Commission at York, JanHary, 1813 V witness stated that a ma« came into his room in the nieht and caujed a light by striking on the stone floor with Jml thing !,k6 a sword, which produced a flash near his fa^e, and enabled h,m .to observe thitt his forehead and cheeks were bl^jked oyer in streaks, that he had on a dark^olored ton coat an^ a h of defendant taken shortly after his arrest was not long since permitted to be introduced for the purpose of identification, though he had in the meantime groAvn a bear(l.« Witnesses » Collectanea Juridica, 402 ; Beck's Medical Jurisprudence, 371. And see Import of the case of Doe dem. of Day v. Day, Huntington Assizes, July, *"®^- ' Rutledge r. Carruthers, Tait's L. of Ev. 143, • Dickson's L. of Ev. vt supra, 14. * Keniston v. Rowe, 16 Me. 38. » Rex V. Arden, 8 London Med. Oaz-. 86, « State V, EUwQpd, 17 R. I. 763. . . IDENTIFICATION OF PERSON, jgg Who had been present at the first marriage were shown the photograph of the bridegroom to enable them to identify the defendant on trial for bigamy.^ It is well known that shepherds readily identify their sheep however mtermingled with others ;» and offenders are not unfrequently recognized by the voiee.a The degree of cer tamty of identification by this method does not dbpond upon the ability of the witness to describe its peculiarities. It is for the jury only to determine how much reliance should be placed upon such testimony.* To illustrate the value of such evidence some remarks made by Mr. Justice Sherwood on a trial for murder are subjoined. To support the defence, which was that of an althi,&. witness was examined who testified that about the time when the prisoner was said to have been having the altercation with the deceased, she heard him pas.s- mg her house, some miles distant from the i)lace of the crime The court ruled out the testimony given by the witness a^ to the reason why she know the person whoso voice she heard to be the prisoner. And it was held that this was error. The learned judge, delivering the opinion of the court, said : Ifiere is no reason why rules governing and relied upon bv prudent and intelligent men in the transaction of the most im- portant business of life should not be applied and made to gov- ern m courts of justice in the trial of causes where life has been taken and is to be answered for." * And it has been held proper on a trial for homicide to admit the evidence of a wit- ness who testified that a few minutes after the commission of the crime he heard some one whose voice sounded like the defendant's say that he had killed a man.« Circumstances frequently contribute to identification bv conhnmg suspicion and limiting the range of inquiry to a class of persons; as where crimes have l)ecn committed by left-handed persons; 7 or where, notwithstanding simulated appearances of , \?^K;. J- ^°^«°"' 4 F. & F. 103. As to the use of photography to assist in.dent.fica ion. see 1 Am. L. Reg. & Rev. (N. S.)813; 31 Cent.l J. 4,4 a Rex V, Ohver, 1 Syme's Justiciary Rep. 224 •Rex t. Brook, 31 St. Tr. 1135; Com. t;. McMahon, 145 Pa. St 413- Cicero V. State, 54 Ga. 156 ; Johnson v. Com., 115 Pa 369 \ ?"!' " Ji^'r.'' ^^^ ^^''- ^^- ' P««P'« ^- Hare, 57 Mich. 505. • Deal V. State (Ind.), 39 N. E. 930. inffr ''■ ^^""*" '' "'■• "^ '"^'■"' ^^ ' ^'* ^' K'«»»a^d8on. Rex v. Patch, 186 IDENTIFICATION OF PERSON. (1 I? ii il K !l external violence and infraction, the oflfenders must have been domoBtios; as in the case mentioned on a former page, of two persons convicted of murder, who created an alarm from within the house ; but upon whom, nevertheless, suspicion fell, from the circumstance that the dew on the grass surrounding the house had not been disturbed on the morning of the murder, which must have been the case had it been committed by any other than inmates.^ On the trial of a gentleman's valet for the murder of his master, it appeared that there were marks on the back door of the house, as if it had been brok«n into, btit the force had been applied from witliin, and the only way by which this door could bo approached from the back was over a wall covered with dust, which lay undisturbed, and over some tiling, so old and perished that it would not have borne the weight of a man ; so that the appeamnce of bur- glarious entry must have been contrived by a domestic, and other facts conclusively fixed the prisoner as the murderer.' Where the evidence is purely circumstantial the jury may con- sidw the fact that there 's nothing tending to show that any other person conamitted or has been charged with the crime.* Though it is not necessary to a conviction in any case to show that it was not in the poAver of any other person than the accused to commit the crime, it being sufficient to prove beyond a reasonable doubt that the accused was guilty.* Identification is often satisfactorily inferred from the cor- respondence of fragments of garments, or of written or printed papers, or of other articles belonging to, or found in the pos- session of parties charged with crime, with other portions or fragments discovered at or near the scene of crime, or other- wise related to the corpus delwtl^ The admissibility of such evidence is too well settled to admit of controversy.* On a trial for burglary a piece of wrapping paper was found where the culprits had stopped in the road near the house entered. This paper corresponded in quality with the paper in which a deck of cards, found in the prisoner's pocket when he was arrested, » Rex V. Jefferys and Swan, ut mpra ; Rex v. Schofleld, 81 8t. Tr. lOfll. And see Mascardus, ut mpra, Concl. CCLXXii, * Reg. v. Courvoisier, infra. * Shepherd v. State, 10 So. 668. * Com. V. Leach, 34 Cent. L. J. 429 ; 156 Mass. 99. » Mascardus, ut mpra, Cond. dcccxxxi. * Meyers v. State, 14 Tex. Crim. App. IDENTiFICATION Of PERSON. ,-« ^8 wra|,ped. It appeared that there had been a piece torn off of the paper which wa« around the cards, but t was not aho^ that the borders of the two pieces corresponded There wa«, however, other evl Gregory v. State, 80 Ga. 603. gI^oV" ^'^^' "^'"'^'^ ^'""^ '^'^' *«*«' ^'^ Mr. Baron * Rex V. Heath, Alison's Prin., ut nipra, 818. I 1 1 188 IDENTIFICATION OF PERSON. ii ing to him.i In a case of burglary the thief had gained admit- tance to the house by opening a window by means of a pen- knife, which was broken in the attempt, and part was left in the wooden frame ; the broken knife was found in the pocket of the prisoner and per f ectly corresponded with the fragment lef t.^ An attenipt to murder, by sending to the prosecutor a parcel, consisting of a tin case containing several pounds of gunpowder, so packed as to explode by the ignition of deton- ating powder, enclosed between two pieces of paper, connected with a match fastened to the lid and bo'ttom of the box, was brought home to the prisoner by the circumstance that under- neath the outer covering of brown paper was found a portion of the "Leeds Intelligencer" of the 5th of July, 1832, the remaining portion of which identical paper was found in his houpe.8 In other cases identification has been established by the correspondence of the wadding of a pistol, which stuck in a wound, and was part of a ballad, which corresponded with another part found in the prisoner's possession,* and by the like correspondence of the wadding of firearms with part of a newspaper of which the remainder was found in the possession of the prisoner.6 A murder had been committed by shooting deceased with a pistol, and the prisoner was connected with the transaction by proof that the wadding of the pistol was part of a letter belonging to the prisoner, the remainder of which was found upon his person.« Where the defendant was charged with the murder of the deceased by shooting, one barrel of a gun found in his possession at the time of his arrest was loaded, and the other barrel empty, and paper and rags used as wadding in the loaded barrel corresponded with paper and rags blackened with powder found near the scene of the crime.7 One accused of a murder had, a few days before the commission of the crime, purchased shot at a store in the neighborhood corresponding in size to those found in the body of the deceased, and the shot was wrapped in brown paper of the same sort as the wadding found near the dead body.s » Reg. V. Crump, Stp.flford Summ. Ass., 1851, coram Mr. Justice EnLE. " Stark, on Ev. (10th Am. Ed.) 844. « Rex V. Mountford, StaflFord Sum. Ass., 1835, 1 Moody's C. C. 441. * Ex relatione Lord Eldon, in 8 Hans. Pari. Deb. 1740, 8d ser. * Reg V. Courtnage, and others, infra. * See Stark, on Ev. (iOth Am. Ed.) 844. ' Hodge v. State, 98 Ala. 10 « Howard v. Btate, 8 Tes. Crim. App. 53. IDENTIFICATION OF PERSON. jgg On the evening of a homicide signs were discovered on the hearth in the prisoner's house of buUets having been recently moulded ; his gun had the appearance of having been recenl- I J. I "f "^^ ^^""^ ^" <^^« t^«« near where the deceased fell, and another was found in his body It was permitted to show that these bullets fitted a mould found on the person of the prisoner at the time of his arrest.i In an- other case the ball which had inflicted the fatal wound Avas of unusual size and corresponded in weight with balls made for a gun traced to the defendant's possession." A defendant, on trial for murder, waa knoNvn to have been in the vicinity about the tme of the commission of the crime, and a merchant was allowed to testify that cartridge shells found near the scene of the crime bore his private mark, and that cartridges of the same calibre tad been pm-chased by the defendant a few days before. W here the defendant was shot from ambush, and cartridge hulls were picked up from the scene of the crime, and it was shoTvn that they were of the same calibre as those shot by the defendant's gun, the defendant introduced his gun in evidence, and car- tridge hulls fired from it during the time of the trial, to show that the hulls were struck by the plunger in his gun diflferently from the hulls which the prosecutor haxi put in evidence On examination of the gun, however, it was found that the gun and the plunger had been recently tampered with, and fixed so as to strike the cartridges differently from those which had been used by the murderers. The discovery of this fact neces- sarily prejudiced the case of the defendant in the minds of the jury, and a conviction followed.^ A Spaniard was convicted of having occasioned a grievous injury to an officer of the post-office, by means of several packets containing fulminating powder, put by him into the post-office one of which exploded in the act of stamping. The letters which were in Spanish, and one of them subscribed with the prisoner's name, were addressed to persons at Havana and Matanzas, who appeared to be the objects of the writer's malignant intentions. There was no proof that the letters were m the prisoner's handwriting, but he was proved to have landed at Liverpool on the 20th of September, and to have put several letters into the post-office on the evening of the 22d, I ^^^ "■ 0"terbridge. 82 N. C. 617. a Dean v. Co«,.. 82 Qrat 91o ' » Taylor v. Com., 90 Va. 109. ' l&o IDENTIFICATION OP PERSON. the explosion having oocurrod on the 24th; and there was Jountl uiK)n his person a seal which corresponded with the impression ^mx the letters, which circumstance (thouffh there were odier strong facts) wa« considered as conclusive of his guilt and he wjis accordingly convicted and sentenced to two years imimsonment.i On a trifel for the forgery of a doonment the impression of a seal attached to it corresponded with another impression upon a packet of papers produced in evidence by the prisoner, and both impressions were taken from a seal m the possession of a member of his family » On a trial for burning the prosecutor's house, it was shown that on the morning after the fire a place was found in the woods ,n front of the house where a horse ha Rex V. Palayo, Liverpool Mids. Quarter Sesa., 1886. « Kejt t». Humphreys, i«/hi. »Kin^ t. qfaf« ik t ki « People t,. Kennedy. 82 N. Y. 141. ^ ^' *^ ^*' ^^• * See Stark on Ev. (lOth Am. Ed.) 844. II if I IDENTIFICATION OF PER80N. jgj testified were thoro.> In an early case in this couirtry it was he Id tba the ,,nsoner could not bo compolled to exhibi hTx^ Tl J::r' ^^ ^""'^^ f-- ^^ ^»«^™-e ^^^ status z free negro a One ground of the decision was that a witness tance to follow the reasoning of the court in that case, and have carefully distmguished the facts in the reepective c^ The c^sion was no doubt correct under the p^uliar facts of that t^ wol .^ Tf *^^* *^ "'"^^^ "^«»"^»g '« attached to the words compelled to make evidence against himself " In in 1''""''^ *'^ '^'^"'^^"* "-'^^ ev^lence^at t hii self by bemg compelled to surrender the weapon with whi^h the offence was committed. A burglar is forLd to giZ^t keTalirr rf "'^" '^ '^ compeUea to sumnder false keys and other burglarious instruments found in his possession A counerfeiter is compelled to give evidence against hiZu when the dies ho has manufactured and u«ed are discovered and brought mto court for inspection » All instrunients by which an offence is alleged to have been committed, all clothing of the parties concerned, and lumT termls connected with the crime, from which an inference o^ guilt or innocence may be drawn, may be produced at the trial and inspected by the jury.* Gn a trial for murder where Le SenUfi^bv r ''7" '" '^"^ '^^^^ inflicted with a hatchet! ^v of tht^d. ^"/^"^^!^ ^-^d in the cabin where the body of the deceased was discovered, the hatchet was held to them-r PT'^Y'^'^'^'"* *° *^^ J""^ *« ^ examined by them_ A medical witness having testified that a wound which caused the death of the murdered man might ha^ whT^h f ^ ""f ' '^"'^^ instrument, a picket was produced which had been found upon the premises of the defendant and which had on It blood and hair. It was shown that the ha"r was of the same color as the hair of the deceased." Where the evidence established that after a homicide the person of the SeeStatet,.CF8Bmer(Wa8h.),40Pac.944;State^.Tippett(Ia) 63N W 445; State v. Ferris, 128 Mo. 447. ff^^oK^^O, »» r*. W. « McDonel v. State, 18 Cent. L. J 374 192 IDENTIFICATION OF PERSON. i If Ml li D' V J ,?5 deceased was stripped of its clothing, a rope or similar appU- ance was fixed about the neck, and the body dragged for several miles to a thicket where it was concealed, it was per- mitted to be shown that a rope was found in the house of the defendant which, from the marks and indications ujwn It, had evidently been used for some such purjwse ; and that a bundle of clothing Avas found concealetl some distance from the body, though there was no positive testimony that the clothing had belonged to the deceased.* In one case, a trial for murder, an empty Winchester rifle- shell was found near the scene of the crime, stamped " W. R. A. Co.— W. C. R— 40-65." It appeared that the defendant owned a rifle carrying shells of this description ; and this, in connec- tion with threats and other circumstances, was held sufficient to justify conviction.2 And in a trial for the murder of one who had evidently died from wounds in the head inflicted by a blunt instrument, a broken gun found lying near the body of the deceased Avas admitted in evidence." On a trial for robbery, it having been shown that one of the robbers had struck the president of the bank, which had been robbed, a severe blow with a pistol, it was allowed to be proved as tending to establish the identity of the defendant, that when the defendant was arrested he Avas armed with a pistol, the ramrod of which was bent so that it touched the barrel.* And where one was charged with assault with intent to murder, by shooting, a witness was allowed to testify tliat he had inserted his finger into the muzzle of the defendant's gun, and that when he withdrew his finger it was wet and black, from which, in his opinion, the gun must have been recently discharged,^ In a case where the accused was convicted of the murder of his wife, it was shown that the throat of the deceased had been cut from ear to ear, and that a knife belonging to the prisoner, stained with blood not yet dry, was found on a shelf in the pantry .8 Immediately after a homicide the accused was found with his hands covered with blood, and a knife in his pocket was smeared Avith it.^ » Hubby V. State, 8 Tex. Crim. A pp. 597. •^ People V. Gibson 106 Cal. 458. a Ezell v. State (Ala.), 15 So 818 ♦ Reardon v. State, 4 Tex. Crim. App. 602. » Meyers v. State, 14 Tex. Crim. App. 35. « Greenfield r. People, 85 N. Y. 75. ' Barbour v. Com., 9 Va. L. J. 309 ; 6 Crim. L. Mag. 624. IDENTIFICATION OF PERSON. IM That articles of apparel covered with blood were found a short distance from the scene of the murder and a considerable time after the murder, may not be shown when there is nothing to connect the defendant with them.» In this connection it may be mentioned that the existence ot blood-stains on the person or clothes of one accused of a crime involving the shedding of blood, may always be shown » " Stains of blood found upon the person or clothing of the party accused have always been recognized among the ordi- nary indicia of homicide. The practice of identif ving them by circumstantial evidence and by the inspection of Witnesses and jurors has the sanction of immemorial usage in all criminal tribunals. Proof of the character and appearance of the stains by those who saw them has always been regarded by the court as primary and legitimate evidence. * * * The degree of force to which it is entitled may depend upon a variety of circum- stances to be considered and weighed by the jury in each particular case; but its competency is too well settled to be questioned in a court of justice." » Witnesses not medical men may give their opinion as to whether certain spots were blood-spots.* The testimony of the chemist who has analyzed blood, and that of the observer who has merely recognized it, belong to the same legal grade of evidence; and though the one may be entitled to much greater weight than the other, with the jury, the exclusion of either would be illegal.'^ It may be shown that immediately alter a homicide the hands of the defendant are covered with blood, without an analysis to establish the fact that the sub- stance was blood.« A charge was affirmed to be correct in which the trial court had said to the jury: "We cannot instruct you that because no analysis had been made of the substance which the wit- nesses supposed to be blood, no chemical test, no microscopic examination, that you are therefore to reject the evidence as in- sufficient to show that it was blood. We feel it to be our duty to refer the question to you, and leave it for you to say whether > State V. Thomas, 12 S. W. 668. « Beavers v. State, 58 Ind. 630. FORTBiR, J., in People v. Gonzalez, 35 N. Y. 49 ♦ Greenfield v. People, 85 N. Y. 75 ; Thomasv. State, 67 Ga. 460 ^ Remarks of Portek, J., in People v. Gonzalez, 85 N. Y. 49. 6 Rirlxnir V. Com., 9 Crim. L. Mag, 6S4 ; 9 Va. L. J. 309. Is 194 IDENTIFICATION OF PERSON. the common woiiltli has satwHed you beyom I a reasonable doubt that tlio Hpots si'cn by tho vvitnesHOs wero blood." * A man was nrcntly lonvu^UMl of murder untiruly on the evi- dence of circuinstanwH, one of thu most prominent of which was the existence of spots on the accused's trousers, which were chiime 'im Preuve, par Mitterinaier, ut supra, c. 57. And see Young V. WUie, m Ala. 569 ; Hodge v. State, 13 So. 164 ; 98 Ala. 10. * Whart. Cr. Ev. § 795. "4 IDENTIFICATION Of f'BKSON. j*. vict, notwitliHtttmlin«: the fiicts testilietl to bv the def«n.I„«.' witnesses t«n S'-*" '<- convict lue accusal was tbo conesiKindence of trades discovered at or Ton wZd ;;""' ""I f"?™ '™ ""^^ toZfetZ coiuimneu, and those nuido bv him tlm fi...r.b- ;„ Peculiar in tbi, tbat in ^rj^.^ If at t' erS'Zr tbe ground. Tbe opinion shows that there was confli-t in *i ev,de„c« for the Sute in «,fe,™c„ to the" 1^"^ ^ Utto lil r "I''":" '" '"""""' """ "«' '^'^"^ made th" tTJn™^^ triT • " 'r ""' '"'""'™' to '"'tain a convic t on On tr al ol an indictment for arson, the witnesses tes sT^ H ^^"1 '"* y""'' '""" ""> l"«^ whert^ouTe stood, they hail discovered along a turn row in .!,« „u v , ground, tbe tn^-k of a man wearing a L7sh« tbat*^^ ?„H a":u ™r-'^-" tt,rLro,'".ere: house, and loading up to where the corner oflheMdIngS » Williams V. State (Tex. Crim. App.), 25 S. W 629 « Reg. V. Britton. 1 P. & F. 854 . 5„f V* . • Green v. State. 17 Pla ««a ^^^ ^- •'^^nson. 19 la. 230. ,( !! « :i! It rl!. -e Is '■ 196 IDENTIFICATION OF PERSON. ' the 'ace been. They followed these tracks away from th house over cultivated land for about 300 yart. where an old fence had been on fire that morniu^,, „; "a lost them. ITure many people had been fighting fir* t morning, and ttiere were many sho i- a 'ii CHAPTER II. IDENTIFICATION OP ARTICLES OF PROPERTY. « The identification of articles of property, like that of the human person, is capable of being established, not only by direct evidence, but by means of numberless circumstances which it is not possible to enumerate. Most of the cases of iden- tification which have been enumerated in the preceding chapter are in fact cases of identification of articles of property, ap- ]>lied inferentially to the establishment of personal identity, and sufficiently illustrate the difficulties which attend investigations of this kind. The following cases, as well as others which have been already mentioned, show how liable even well-intentioned wit- nesses, who speak to facts of this particular kind, are to error and misconception. At the Spring Assizes, at Bury St, Edmunds, 1830, a respect- able farmer, occupying twelve hundred acres of land, was tried for burglary and stealing a variety of articles. Amongst the articles alleged to have been stolen were a pair of sheets and a cask, which were found in the possession of the prisoner, and were positively sworn to by the witnesses for the prosecution to be those which had been stolen. The sheets were identified by a particular stain, and the cask by the mark " P. C. 84," enclosed in a circle at one end of it. On the other hand, a number of witnesses swore to the sheets being the prisoner's, by the same mark by which they had been identified by the Avitnesses on the other side as being the prosecutor's. With re&pect to the cask, it was proved by numerous witnesses, whose respectability left no doubt of the truth of their testi- mony, that the prisoner was in the habit of using cranberries in his establishment, and that they came in casks, of which the cask in question was one. In addition to this, it was proved that the prisoner purchased his cranberries from a tradesman 206 206 IDENTIFICATION OP ARTICLES OF PROPERTY. I in Norwich, whoso casks were all marked "P. C. 84.," enclosed in a circle, precisely as the prisoner's were, the letters P. C. being the initials of his name, and that the cask in question was one of them. In summing up, the learned judge remarked that this was one of the most extraordinary cases ever tried, antl that it certainly appeared that the witnesses for the prosecu- tion were mistaken. The ])risoner was acquitted.* A man was tried in Scotland for housebreaking and theft. The girl whose chest had been broken open, and whose clothes had been carried oflF, swore to the only article found in the prisoner's possession, and produced, namely, a white gown, as being her property. She had previously described the color, quality, and fashion of the gown, and they all seemed to cor- respond with the article produced. The housebreaking being clearly proved, and the goods, as it was thought, clearly traced, the case was about to be closed by the prosecutor, when it occurred to one of the jury to cause the gii'l to put on the gown. To the surprise of every one present, it turned out that the gown which the girl had sworn to as belonging to her, which correspondeil with her description, and which she said she had worn only a short time before, would not fit her per- son. She then examined it more minutely, and at length said it was not her gown, though almost in every respect resembling it. The prisoner was, of course, acquitted ; and it turned out that the gown produced belonged to another woman, whose house had been broken into about the same period, by the fiame person, but of which no evidence had at that time been produced.2 A woman was convicted of larceny on proof that a number of small articles of commerce, alleged to have been stolen, Avere found in her possession. The complaining witness swore positively to the identity of the articles, but the defendant produced witnesses who testified that the articles had been purchased by the defendant a short time before. The convic- tion was reversed. On the trial of a young woman for child-murder, it appeared that the body of a newly-»>orn female child was found in a pond about a hundred yards from her master's house, dressed in a shirt and cap, and a female witness deposed that the stay » A. R., 1820, 50. " Rex V. Webster, Burnett's C. L. of Scotland, 19 St. Tr. 494. IDENTIFICATION OF ARTICLES OF PROPERTY. 207 or tie which was pinned to the cap, and matle of spotted linen waa made of the sanio stuff as a cap found in the prisoner's box ; but a mercer deciuretl that the two pieces were not only unlike in pattern, but different in quality.^ A youth was convicted of stealing a pocket-book containing five one-pound notes, under very extraordinary circumstances. The prosecutrix left homo to go to market in a neighboring town, and having stooped down to look at some vegetables exposed to sale, she felt a hand resting upon her shoulder, which on rising up she found to be the prisoner's. Having afterwards purchased some articles at a grocer's shop, on searching for her pocket-book in order to pay for them,' she found it gone. Her suspicion fell upon the prisoner, who was apprehended, and upon his person was found a black pocket- book, which she identiiied by a particular miu-k, as that which she had lost, but it containetl no money. Several witnesses deposed that the prisoner had long possessed the identical pocket-book, speaking also to particular marks by which they were enabled to identify it; but some discrepancies in thei; evidence having led to the suspicion that the defence was a fabricated one, the jury returned a verdict of guilty, and the prisoner was sentenced to be transported. During the con- tinuance of the assizes, two men who were mowing a field of oats through which the path lay by which the prosecutrix had gone to market, found in the oats, close to the path, a black pocket-book containing five one-pound notes. The men took the notes and pocket-book to the prosecutrix, who imme- diately recognized them ; and the committing magistrate dis- patched a messenger with the articles found, and her affidavit of identity, to the judge at the assize town, who directed the prisoner to be placed at the bar, publicly stated the circum- stances so singularly brought to light, and directed his imme- diate discharge. The prosecutrix must have dropped her pocket^ book, or drawn it from her pocket with her handkerchief, and had clearly been mistaken as to the identity of the pocket-book produced upon the trial.^ It is not, however, necessary that the identity of stolen prop- erty should be invariably established by positive evidence. In a prosecution against a vessel for a violation of law it is not » Rex V. Bate, Warwick Autumn Ass., 1809, before Mr. Justice Lk Blanc. 9 Rex t'. Gould, coram Hr. Banoa Garrow, Stafford Summ. Ass., 1«20. 908 IDENTIFICATION OF ARTIOLEfl OF F^ROPERTY. nocegwiry to adduce positive teBtimony of the identity of the vessel : coincidence of circumstances may be proof sufticient to impress the mind with a conviction ahnost irresistible.! In many such cases idontilicaticm is impracticable ; and yet the cii-cumstances may render it impossible to doubt the identity of the property, or to account for the i)08se88i()n of it by the party accused upon any reasonable hypothesis consistent with his innocence; as in the case of laborers envploytnl in docks, warehouses, or other such establishments, found in possession of tea, sugar, tobacco, pepper, or other like articles, concealed about the i)erson, in which cases the similarity or general resemblance of the article stolen is sufticient." Identity of stolen goods is sufficiently proven by testimony that they are goods of the same description as those stolen, and by the positive identification of other stolen goods found with them, and the fact that the defendant in whose possession they were found was employed in the place from which the goods were stolen, at the time they were taken.^ Two men were convicted of stealing a quantity of soap from a soap manufactory near Glasgow, which was broken into on a Saturday night by boring a hole in the wall, and 120 lbs. of yellow soap abstracted. On the same night, at eleven o'clock, the prisoners were met by a watchman near the centre of the city, one of them having 40 lbs. of yellow soap on his back, and the other with his clothes greased all over with the same substance. The prisoners, on seeing the watchman, attempted to escape, but were seized. The owner declared that the soap was exactly of the same kind, size, and shape with that abstracted from his manufactory; but, as it had no private mark, he could not identify it more distinctly. One of the prisoners had formerly been a servant about the premises, and both of them alleged that they got the soap in a public-house, from a man whom they did not know.* A servant man was seen to come from a part of his master's premises where he had no right to go, and Avhere a large quan- tity of pepper was stored in bulk, and on being stopped, a quantity of pepper of the same kind was found on his person. 1 The Jane v. U. S., 7 Crancli, 363. « 2 East P. C. 637 ; 2 Russell on Crimes (9th Am. Ed.), 343 ; Rex v. White R. & R. 508. ' » People 1'. Ferguson, 1 City Hall Rec. 65. * Rex V. McKechnie & Tolmie, Glasgow Spring Circ., 1828. In IDENTIFICATION OF ARTICLFii OF PROPERTY. 209 It was held by tlio Criminal Court of Appeal that though the popper coukl not be positively identiiied, ho hiwl been properly convicted of larceny. > Whore the prosecutor kept a largo toy-shop and the prisoner, a httlo boy, came into the shop dressed in a smock frock, and after remaining there some time, from suspicion excited, he was searched, and under his frock were found concealed a doll, BIX toy houses and other such things, and the prosecutor swore that ho believed the toy houses to be his property because they exactly resembled other toy houses of the same sort whicli he had in the shop ; and he gave the same evidence with regard to all the other articles except the doll, and he swore that the doll had been his because he found upon it his private mark ; but he could not say that he had not s(,hl it, and he had not missed and could not miss, from the nature of his stock which the prisoner was charged with stealing. The prisoner was acquitted, Erie, J., holding that the corpus delicti was not established, and that, for all that appeared, the prisoner might have come by the property in an honest manner.^ The distinc- tion between this case and the preceding one is this, that in this case the boy assertetl that the doll was his own and con- ducted himself like an honest person, while in the preceding case the man, on being accosted, threw down some of the pepper, and said, " I hope you will not be hard with me." Where the defendant was charged with the theft of 28 bars of pig-iron, the evidence of the agent having it in charge showed that a larceny of the iron had probably been com- mitted; that the quantity taken was similar to that found in the prisoner's possession ; that it had the marks and appearance of the iron in the agent's custody ; and that, probably, no other iron of that description was, at the time, on deposit, or for sale in the vicinity. And a conviction followed.^ A man was convicted of the theft of bacon. The prosecuting witness swore that the bacon which had been stolen from her was unsmoked and had yellow mould on it, and this corresponded to the description of the bacon found in the defendant's pos- session.* 1 Rex V. Burton, 23 L. J. M. C. 53 ; 6 Cox C. C. 293. ' Reg. V. Dredge, 1 Cox C. C. 235. « Dillon V. People, 1 Hun, 670. See also State v. Furlong, 19 Me 225 * State v. Kent, 65 N. C. 31 1 . e . iue. *^o. 14 i *\ CHAPTER III. PROOF OF HANDWRITING. Section I. Proof hy Direct Evidence. The usual mode of proving handwriting is by the direct testimony of some witness who has either seen the party write, or acquired a knowledge of his handwriting, from Laving corresponded with him, and had transactions in business with him, on the faith that letters purporting to have been written or signed by him were genuine. In either case the witness is supposed to have received into his mind an exemplar of the general character of the handwriting of the party, impressed on it as the involuntary and unconscious result of constitution, habit, or other permanent cause, and which is therefore itself permanent ; and he is called on to speak to the writing in question by reference to the standard so formed in his mind.^ A witness cannot testify as to handwriting unless his knowledge is first shown.^ Not every person who has seen a party write is competent to testify or give an opinion upon the genuineness of a signature. In the course of a busy life we may see many persons write, in many instances merely casu- ally, the recollection of which is entirely effaced from the memory, as much so as if he had never seen the writing. In order to make a witness competent he must be able to say that he has some knowledge or acquaintance with the hand- writing of the person, or believes he has such knowledge or 1 Per Coleridge, J., in Doe d. Mudd v. Suckeiiuore, 6 A. & E. 705, and « N. »», P. 18. And Sec Fee v. Taylor, 83 ivy. S53. a Arthur v. Arthur, 38 Kan. 691. 210 PROOF OF HANDWRITING. 211 acquaintanceship, acquired by seeing him write many times, or once, or in some other legal way. The extent of his knowledge or familiarity with the handwriting in question enters into the weight of his testimony, but does not affect its competency.^ Any person who has seen the party write and has acquired a standard in his mind of the general character of the party's writing is competent tc testify.^ A witness who has seen a painty write but once may be competent to testify to his hand- writing ; 8 and the court may, in its discretion, allow a witness to testify who has seen the party Avrite only twice in 32 years* rbe prosecutor in a criminal case, while it was pending procured the defendant to write in his presence that he might become familiar with his handwritmg, and his testimony waa admitted as to the handwriting.^ The signature of a person may be proved by a witness who has seen him write his surname only." Though the witness has never seen the party write, if he has carried on a written correspondence with him, that will be sufficient to enable him to speak to the handwriting.^ For 1 See opinion of the court in Nelina v. State (Ala.), 9 So 198 ^ Succession of Morvunt. 45 La. Ann. 207 ; Berg v. Pete^n, 49 Minn. 420 « lawman t,. Sanborn, 5 Foster, 87 ; Garrels v. Alexander, 4 Esp 37 « Wilson V. Van Leer, 187 Pa. St. 371 ' J Reid V. State, 20 Ga. 081. Held otherwise in Springer v. HaU, 83 Ma 693 See also Stranger v. Serle, 1 Esp. 14, where Lord Kenyon rejected the evidence on the ground that tlie defendant might have written differenUy hnThi" "^"^Z T'f"^' *^'°"^'' *^''*^"- '^''^ ^here, after a suspicion had been raised that tlie prisoner had .sent a threatening letter, a policeman Sr*f^ifYi?''^ ??''""' "''"'^ ™*'"«y' *"^ ^ procure a receipt from him for It, that he might see him write and be able to speak to h£ hand- writing and ho obtained a receipt accordingly, but had no previous knowl- edge of the prisoner's handwriting, Maule, J., held that knowledge so ch- ained for the specific purpose, and under such a bias, waa not such as to make the evidence admissible. Reg. v. Crouch, 4 Cox C. C. 168 And where the prisoner was tried for uttering a forged check on which lie was alleged to have written a certain indorsement at the time he uttered the check and he afterwards wrote his name and the same words as were in held that lus papei wa.s not admissible for the purpose of oomj^rison. Ford,'2 Starkrri' ; Ie" C. L R. ' "^^ '''"°"' ""' '^^ '^^'^'"^ ^^^"^ ^' '' Campbell v. Woodstock Iron Co., 83 Ala. 851. lii ii ii % Ii! 212 PROOF OF HANDWRITING. I 'I when letters are sent directed to a particular person and on particular business and an answer is received in due course, a fair inference arises that the answer was sent by the person whose handwriting it purports to be.^ And so, in general, if a witness has received letters from the party in question and has acted upon them, it is a sufficient ground for stating his belief as to the handwriting.^ And while the receipt of letters, though the witness has never done any act upon them, has been held sufficient,^ it is the law of the present day that a witness is incompetent who has merely seen the writings and has not communicated with the alleged writer with regard to them, nor acted upon them. The mere receipt of friendly letteii is said not to be enough: there mi'st have been some admission or acquiescence equivalent to an acknowledgement that the person claimed was the writer, independent of the receipt of the letters and the contents thereof;* there must be something which assures the re- cipient of the letters, in a responsible way, of their genuine- ness.^ Where a witness who had never seen the defendant, but had corresponded with a person of the defendant's name, living at the place where the defendant resided, and where, ac- cording to other evidence, there was no other person of the same name, stated that the handwriting in question was that of the person with whom he had corresponded, the evide.nce was held sufficient.^ On an information for libel, in order to show that certain letters were in the handwriting of the defendant, a witness proved that though he had never seen the defendant write, he had seen a number of letters which purported to have come from him in the subject of a cause in which he was engaged on one side, and the witness on the other side ; and Lord Tenterden, C. J., held that the witness Avas » Gary v. Pitt, per Lord Kenyon, Peake Ev. 85. And see Page v. Hemans, 14 Me. 478 ; State v. Gay, 94 N. C. 814 ; McKonkey v. Gaylord, 1 Jones' L. 94 ; Chaffee v. Taylor, 3 Allen, 598 ; Thomas v. State, 103 Ind. 417 ; Robin- son Consolidated Min. Co. v. Craig, 4 N. Y. St. R. 478. « Thorpe v. Gibsburne, 2 C. & P, 21 ; 12 E. C. L. R. » Doe V. Wallinger, Mann. Index, 131. * Flowers v. Fletcher (W. Va.), 20 S. E. 870. And see Gibson v. Furniture Co., 96 Ala. 357 ; Freeman v. Brewster, 93 Ga, 648. * Pinkham v. Cockell, 87 Mich. 265. « Harrington v. Fry, 1 Ry. & Moo. 90. Jl^ PROOF OF HANDWRITING. 218 competent to prove the defendant's handwriting.^ And where a witness for the defendant stated that he had never seen the party in question write, but that his name was subscribed to an affidavit which had been used by the plaintiff, and that he had examined that signature so as to form an opinion which enabled him to say that he believed the handwriting in question was genuine, this was held by Park, J., to be sufflcient,^ and so when the witness had received promissory notes which the party had paid.3 And the testimony of an officer of a bank who was in the habit of paying the party's checks has been admitted.* And, to prove a forgery, the testimony Avas received of one who had once carried to a bank a large number of bank notes which had been all paid, though he had never seen either the president or cashier write.^ And a successor in office who has given frequent examination to his predecessor's handwriting is a competent witness.^ But Avhere an attorney for three defendants stated that he did not know the hand- writing of one of the defendants, but before undertaking to defend the action he had required a retainer signed by all those defendants, and had received a retainer proporting to be signed by them all, upon which he had acted, it was held that the attorney was not competent to prove the handwriting of the one defendant, for the other two defendants might have signed the retainer for him with his assent.^ It is necessary to recall these leading principles of proof of handwriting by direct, as introductory to the consideration of the various methods of proof by indirect, evidence. Avas Section II. Proof by Lvdirect Evidence. Evidence of similitude of handwriting by the comparison » Rex V. Slaney, 5 C. & P. 213 ; 24 E. C. L. R. 2 Smith V. Sainsbury, 5 C. & P. 196 ; 24 E. C. L. R. » JohnBon v. Deverne, 19 Johns. 134. * Coffin's Case, 4 City Hall Rec. 53. And see Murieta v. Wolfhagen, 2 C. & K. 744 ; Snell v. Bray, 56 Wis. 156 ; Saiazar v. Taylor, 33 Pac. 869. But such testimony could not be received if some of the checks paid were forged. Biigham t'. Peters, 1 Gray, 139. » Com. V. Carey, 2 Pick. 47. « Burdell v. Taylor, 89 Cal. 6ia f Drew V. Prior, 5 M. & Gr. 264 ; 44 E. C. L. R. 214 PROOF OF HANDWRITING. hi' of controverted writing with the admitted or proved writing of the party, made by a witness who has never seen the party write, nor has any knowledge of his handwriting, and who arrives at the inference that it is his handwriting because it is hke some other which is so,i is a mode of proof which hm been much lauded by writers on the civU law, and is commonly admitted m those countries whose jurisprudence is founded on that system. All evidence of handwriting except where the witness saw the disputed document written is, in a sense, in its nature com- parison. It is the belief which a witness entertains ui^on comparing the writing in question with an exemplar in his mmd derived from some previous knowledge.^ But that is not what is meant in law by proof of handwriting by comparison Formerly a document could not be proved by comparing the handwriting with other handwriting of the same party ad- mitted to be genuine.8 A witness having no previous knowl- edge of the handwriting of a party could not be permitted to testify as to its authenticity from a mere comparison of hands in court.* He might refresh his memory by inspecting genuine writing; but he was incompetent if such inspection enabled him to speak only from comparing the two signatures.^ He must swear to the correspondence of the signatures with an example existing in his own mind.e Such evidence, however was admissible in corroboration of other evidence;? tliough It has been held, it would not invalidate the positive testimony of an impeached witness.^ This rule as to comparison did not apply to the court or jury ' Benth. Jud. Ev. b. iii. c. 7 ; Rex v. De la Motte, 21 St. Tr. 810. « Doe V. Suckermore, 5 Ad. & E. ; Berg v. Peterson, 49 Minn 420 a Burr r. Harper Holt N. P. 421 ; U. S. v. Craig. 4 Waah. C. C. 729 • Hutchm'8 Case, 4 City Hall Rec. 119 ; Com. v. Smith, 6 S. & R. 571 • Pav McKee Addison 33 ; Jackson v. Phillips, 9 Cow. 94 ; Roofs Adm. v. Rite's 6 Tt"*"^ "■ ^"^^^""^^ 5 Hill, 182. See Guflfrey v. Deeds, 5 Cas. 378. * McNair v. Com., 2 Cas. 388. « Kinney v. Flynn, 2 R. I. 819 ; Hopkins v. Maguire, 35 Me. 78. iin « L /« ^*"""' "^ ^'""' ^^ ' ^^^^'-'^ Bk. V. WhitehiU, 10 S. & R. 1 P* w 01 V- '^^''''^y ^^'"■' 1 P- & W. 161 ; Boyd's Adm. v. Wilson. IP. & W. 211 ; Myers v. Foscan, 8 N. H. 47 ; Com. v. Smith, 8 S. & R. 571 • Moody t,. Rowell. 17 Pick, 490 ; Richardson v. Newcomb. 31 Pick. 315. ' » Bell V. Norwood, 7 La. 95. PROOF OF HANDWRITING. 216 Who might compare the two documents, already properly in evidence in the cause, and from such comparison form a judg- ment upon the genuineness of the handwriting.^ In such a case the comparison may be made with or Avithout the aid of experts." Other instruments or signatures Avere inadmissible for comparison only.^ And the rule which excludes extrinsic papers and signatures is substantially the same in the direct and cross-examination. Touching the admissibility of the writings, it would make no difference whether they were used to test the witness as an expert, or to test his knowledge of the handwriting of the plaintiff.* Nor did the rule apply in the case of ancient documents. Authentic ancient writings might be put into the hands of a witness, and he might be asked whether upon a comparison of those with the document in question he believed the latter to be genuine.^ Here the course is to produce other documents either admitted to be genuine or proved to have been respected and acted upon as such by all parties, and to call experts to compare them, and to testify their opinion concerning the genuineness of the instruments in question.' In these excepted cases,' the evidence is admitted, it is said, of necessity, in the former case because it is not possible to prevent the jury from making such comparison, and therefore it is best, as was remarked by Lord Denman,^ for the court 1 Griffiths V. Williams, 1 Cr. & J. 47 ; SolitatJ. Yarrow, 1 Moo. & R. 133 ; Strother v. Lucas, 6 Pet. 763 ; Thomas v. Herlacker, 1 Dall. 14 ; Woodward et al. i). Spiller, 1 Dana, 180 ; Adams v. Field, 21 Verm. 356 ; Henderson v. Hackney, 16 Ga. 521. « 1 Greenl. on Ev. § 578 ; State v. Scott, 45 Mo. 802 ; HuflE v. Nims, U Neb. 3d8 ; Grand Id. Bk. Co. t>. Shoemaker, 31 Neb. 124. » Van Wydk «. Mcintosh, 4 Kern. 489 ; Bishop v. State, 80 Ala. 34 ; Miles V. Loomis, 75 N. Y. 288. • Rose V. First Natl. Bank, 91 Mo. 899. • Do* w. Tarver, Ry. & Moo. N. P. C. 141 ; 7 East, 283 ; West v. State, 3 Zab. 212. • 1 Greenl. on Ev. (14th Ed.) 674. See State v. Clinton, 67 Mo. 380 ; Springer v. Hall, 88 Mo. 693 ; State v. Scott, supra. » AUpbtt ». Meek, 4 C. * P. 367 ; Bronlage v. Rice, 7 Id. 548 ; Wadding- toh i}. Oousitts, Id. 695 ) Griffith v. Williams, 1 C. & J. 47 ; Doe d. Perry v. Newton, 1 N. & P. 1 ; and 5 A. & E. 514 ; Solita v. Yarrow, 1 M. & R. 138 ; Grifflts D, Ivery, 11 A. A E. 222. « In Doe d. Perry v. Newton, ut supra. Fitzwalter Peerage, 10 C, & F, 193 ; Doe d. Jenkins v. Daries, 10 Q. B. 314 ; 18 L. J. Q. B. 228. And see Eeg. t>. 1a,flot, 6 Cot's C. G. 68 ; State v. Scott, 45 Mo. 802. I It ■"• 11 ! 216 PROOF OF HANDWRITING. ill *|lil to enter With the jury into that inquiry, and do the best it can under circumstances which cannot be helped ; in the latter because from the lapse of time no living person can have any knowledge of the handwriting from his own observation,^ and because in ancient documents it often becomes a pure question of skill, the character of the handwriting varying with the age, and the discrimination of it being m&U- -v - .^^sisted by anti- quarian researches.^ The objections which have been urged i receiving other in- struments, for the purpose of comparison, have been the mul- tiplying of collateral issues ; the danger of fraud or unfairness m selectmg instruments for that purpose, from the fact that handwriting is not always the same, and is affected by age and by the various circumstances which may attend the writing ; and the surprise to which a party against whom such evidence IS produced may be subjected.^ The common-law rule, witli its exceptions, is followed generally, in the Federal courts,* and also in the courts of some of the States. In Missouri writings admitted to be genuine which are already in the case, can be used for comparison only when no collateral issue can be raised concerning them.^ In Alabama a comparison may be instituted between writings admitted to be genuine; 6 but extraneous papers are inadmis- sible for comparison.? The rule forbidding proof by compar- ison has been recently affirmed in Maryland ;8 and in Lousiana the courts have refused to admit this kind of proof .» In Illinois » Per Patterson, J., in Doe d. Mudd v. Suckermore, ut supra. And see Clark V. Wyatt, 15 Ind. 271. ' Per Coleridge, J., Id. » See opinion of Wagner, J., in State v. Scott, 45 Mo. 303, and of Dickin- SUtah'lT *^'''"'"^" ^- ^"■^•■> 35 Minn. 425. See also Tucker v. Kellogg, *^^.n ""• Y; ®-' ®^ ^- ®' ^^^ ' ^1^^^** "• U- S., 10 Ct. of CI. 235 ; U. S. V McMillan 29 Fed. Rep. 247 ; U. S. v. Pendergaat, 32 Fed. Rep. 198 ; Stokes V. XJ t o«y ltJ7 U. o. lo7. « Rose V. First Nat'l Bank, 91 Mo. 399. » Nelins v. State (Ala.), 9 So. 198. « 'S^°U' f^t' '-^ ^^^- ^^ '' ^"^^^y *'• ^"^^y' 41 Ala. 626 ; Bestor v, Roberts 58 A.a s>l . Moon's Adm. v. Crowder, 72 Ala. 79 ; Gibson v. Trow- bndge Furniture Co., 96 Ala. 357, ^B Tome V. Parkersburg R. R. Co., 39 Md. 92 ; Herrick v. Swomley, 56 Md. lettfi^wpr/"*'" f K^"- "^"^ "'• -"* °" ^ ^"•■^' for bigamjthe defendant'^ letters were proved by comparison. State v, Barrow, 31 U. Ann. 691. '. PROOF OF HANDWRITING. 217 disputed handwriting " cannot be proved by a witness exam- ining and comparing the signature in controversy with the recognized signature of the person whose signature is in issue "1 In North Carolina an expert may compare the disputed signatures with papers admitted to be genuine, which are already in evidence ; but the jury may not make the compari- son.2 In Kentucky a comparison can be made neither by the jury nor by experts.^ In New York the statute permits a comparison of a disputed handwriting with a genuine paper to be made by witnesses. But, it is held, this does not authorize an expert to testify positively as to the writing. lie should be confined to an expression of his opinion growing out of the comparison.* But by the Texas Code of Criminal Procedure^ it is provided that comparison of handwriting may be made by experts or the jury. And other States have similar provisions.^ A witness not an expert may not testify as to his opinion from comparison, as to the genuineness of a signature. This rule is not changed by the fact that he saw the genuine one exe- cuted, unless he testifies that by that means he could recognize the handwriting.^ In many of the States of this Union experts may testify as to the genuineness of a signature by comparison with other » Riggs V. Powell 142 111. 453. See also Kerwin v. Hill, 37 111. 209 ; Massey v. Bank, 104 111. 330 Bevan v. Atlanta Natl. Bank, 142 lU. 302.' But here, as was said in a late case, and as has been heretofore laid down, •' wherever that rule prevails, there is also the exception that if the instru- ment to be used aa a standard is properly in evidence in the case for other purposes, then the signature or paper in question may be compared with it by the jury." Rogers v. Tyley, 144 111. 652 ; Himrod v. Oilman, 147 111. 293. Anr see Stokes v. U. S., supra. » Yates V. Yates, 76 N. C. 142 ; Pope v. Askew, 1 Ired. 16 ; Outlaw v. Hurdle, 1 Jones, 150. And see Jarvis v. Vanderford (N. C), 21 S. E. 302- ' Fee V. Taylor, 83 Ky. 259 ; Hawkins v. Grimes, 13 B. Mon. 257. * People V. Severance, 67 Hun, 182. » Art. 754. And see Heacock v. State, 13 Tex. Crim. App. 97. But the jury may not take into their room for comparison papers and letters sub- mitted to experts. Cheater v. State, 23 Tex. Crim. App. 577. « Nebraska Code, § 344 ; and Oregon Code of Civil Procedure, § 755 ; Richardson v. Green (C. C. App. 9th Ct.), 61 Fed. Rep. 423. ' Wimbish V. State, 89 Ga. 291. And sec Mixer v. Bennett, 70 la. 329 • Baker v. Mygatt, 14 la. 131 ; McKay v. Laslicr, 43 Him. 270. 218 PROOF OF HANDWRITING. |ii» t 4 f 'l i writings whether relevant to the issue or not. Such is the rule in Maine, New Hampshire, Massachusetts, Mississippi, Ver- mont, Virginia, Ohio, California, and Connecticut.^ In Utah irrelevant papers may be introduced for purposes of comparison when admitted by the parties to be genuine." In Kansas writings admitted to be genuine may be compared by the jury with the disputed document."* In Indiana the cases are in great conflict. In a recent case a witness was admitted to testify as an expert upon a compari- son of the handwriting of the signature to the note in suit with specimens of the party's handwriting admitted to be genuine, as to the genuineness of the signature to the note.* The signa- tures sought to be used in comparison, if not to papers in the cause, nor in evidence, must he admitted to he genuine hy the partij against whom the paper is sought to he used.^ In binding all, papers not r^therwise in the case cannot be received for purposes of comparison.« But Avhere the party him- self being on the stand in his own behalf denied his own sig- nature when it was shown to him, and in cross-examination admitted signatures claimed to be identical in character ; these last were allowed to go to the jury for comparison.^ 1 People V. Mitchell, 93 Cal. 590 ; Calkins v. State, 14 Ohio St. 222 ; State r. Ward, 39 Vt. 225 ; State v. Hopkins, 50 Vt. 316 ; Harriot r. Sherwood, 83 Va..l ; Wilson v. Beauchamp, 50 Miss. 24 ; State v. Hastings, 58 N. H. 453 ; State 1). Clark, 54 N. H. 468 ; State v. Thompson, 80 Me. 194 ; Wood- man V. Dana, 53 Me. 13 ; Richardson v. Newcomb, 21 Pick. 315 ; Demerritt V. Randall, 116 Mass. 331 ; Lyon v. Lyman, 9 Conn. 55. « Tucker v. Kellogg, 8 Utah, 11. Prof. Greenleaf wrote : " If it -vere possible to extract from the conflicting judgments a rule which would find support from the majority of them, perhaps it would be found not to extend beyond this : that such papers can be offered in evidence to the jury, only when no collateral issue can be raised concerning them ; whicli is only where the papers are either conceded to be genuine or are such as the party is estopped to deny ; or are papers belonging to the witn^s8 who was him- self previously acquainted with the party's handwriting, and who exhibits them in confirmation and explanation of his own testimony." 1 Greenl Ev. § 581. « State V. Zimmerman, 47 Kan. 342 ; Macomber v. Scott, 10 Kan. 335. * Forgey v. First Natl. Bank, 66 Ind. 133. And see Hazard v. Vickery, 78 Ind. 84, See also Morrison i\ Porter, 35 Minn. 525. « Shorb V. Kinzie, 80 Ind. 580. And see Brodick v. Hunt, 48 Ind. 881 ; Huston V. Schindler, 46 Ind. 38 ; Thomas v. State, 103 Ind. 419 : Merritt v Shaw, 33 N. E. 657. * Vinton v. Peck, 14 Mich. 287 ; Re Foster's Will, 84 Mich. 31 ; North v. McConnell, 43 Mich. 473. f Dcitz v. Fourth Natl. Bank, 69 Mich. 28?! PROOF CP MANDWhlllNO. 219 But when handwriting is to be proved by comparison, the standard used for the purpose r.iust be genuine and original writing, and must be an admitted manuscript, or be established by clear and undoubted proof.» Impressions of writings taken by means of a press, and duplicates made by a copying machine, are not original, and cannot be used as standards of comparison.' The question of the admissibility of the document to be used as a standard is a preliminary question for the determination of the couri.8 So far as the judge's decision is a question of fact merely, it is final, if there is any proper evidence to support it. Excep- tions to its admission as a standard will not be sustained unless it clearly appears that there was some erroneous application of the principles of law to the facts of the case, or that the evi- dence was admitted without proper proof of the qualifications requisite for its competency.* The rule is otherwise, however, in New Hampshire. In a case already cited,^ Sargent, C. J., speaking of the introduction of evidence to prove the genuine- ness of the handwriting offered as a standard, said : " It is to be received and then the jury are to be instructed that they are first to find, upon all the evidence bearing upon that point, the fact whether the writing introduced for the purpose of com- parison or sought to be used for that purpose is genuine. If they find it is not so, then they are to lay this writing, and all the evidence baaed upon it, entirely out of the case, but if they, find it genuine they are to receive the writing and all the evi- dence founded upon it." The rule that no document could be used for comparison unless it was already in evidence in the cause" was changed in 1 State V. Owen, 73 Mo. 440 ; State v. Thompson, 80 Me. 194 ; Hatch v. State, 6 Tex. Crim. App. 384 ; Heacock v. State, 13 Tex. Crim. App. 97 ; Coatello V. Crowell, 133 Mass. 352 ; Baker v. Haines, 6 Whart. 284 ; Cohen V. Teller, 93 Pa. St. 123. » Com. V. Eastman, 1 Cush. 189. And see Van Sickle v. People, 9 Mich. 61 ; Spottiswood v. Weis, 66 Cal. 525 ; Cohen v. Teller, 93 Pa. St. 123. * Egan r. Cowan, 2 Irish Jurist, N. S. 394 ; Hall v. Van Vrankin, 64 How. Pr. 407 ; Peck v. Callaghan, 95 N. Y. 73 ; Costello v. Crowell, 133 Mass. 852 ; Rowell v. Fuller, 59 Vt. 688. * Rowell V. Fuller, and Costello v. Crowell, supra. « State V. Hastings, 53 N. H. 461. « Rex V. Morgan, 1 Moo. & Robb. 134 n.; Hughes v. Rodgers, 8 M. «& W. 13.S ; Younge v. Horner, 1 C. ifc K 751 ; Doe v. Newton, Broajage v. Rice, supra. 220 PROOF OF HANDWRITINO. r , I 0^ li I England by the Common Law Procedure Act,i which provided that comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall in civil cases be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting the same, may be sub- mitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. And this provision was extended to criminal cases by a later statute.^ And some of the states of this country have enacted laws modelled after the English statute. This is the case in New York,^ "Wisconsin,* Khode Island,6 Georgia,« and New Jersey .7 In the last named State it is " provided nevertheless that where the handwriting of any person is sought to be disproved by comparison with other writings, not admissible in evidence in the cause for any other purpose, such writings, before they can be compared with the signature or writing in dispute, must, if sought to be used before the court or jury by the party in whose handwriting they are, be proved to have been written before any dispute arose as to the genuineness of the signature or writing in con- troversy." 8 And in New York it has been held that the act authorizes only the admission of such writings as purport to be in the handwriting of the person the genuineness or whose signature is disputed. Therefore specimens of the handwriting of the person .who is alleged to have forged the signature in question are not admissible.8 In South Carolina on an indictment for forgery the rule in that State was stated to be that while comparison of handwrit- ing is inadmissible as an original means of ascertaining the genuineness of a signature, it may be admitted in aid of doubts ful proof. The trial judge must decide, in the first instance, » 17 and 18 Vict. c. 125, § 27. See Birch v. Ridgway, 1 F. & F. 270 • Creswell v. Jackson, 3 F. & F. 24. ' 28 Vict. 0. 18, § 8. 8 Laws of 1880, c. 36. ♦ I^ws of 1871, c. 226. » Pub. St. of R. I. (1882), c. 214, ^ 42. « Georgia Code, § 3840. Other new papers ^vhich it is proposed to intro- duce in evidence must be submitted to the opposite party before he an- nounces himself ready for trial. A failure to comply with this provision will not cause a reversal where the party having the right did not object at the proper time. Thomas v. State, 59 Ga. 784. ' Rev. St. of New Jersey, p. 381, § 19. ' Yeomans v. Petty. 40 N. J. Eo. 495 : Jnre Gordon's Wi!!, 26 Atl 268 » Peck V. Callaghan, 95 N. Y. 73. PROOF OF HANDWRITTNG. 221 whether sufficient doubt has been raised to autliorize the com- parison. And the witnesses speaking to the comparison need not bo experts.* But those unfamiliar with handwriting, not being competent to coitjpare, may not bo introduced for this purpose.^ Papers by which the comparison is to be made must be either admitted, acknowledged, or otherwise proved to be in the handwriting of the accusetl.^ In Pennsylvania " evidence by comparison of handwriting is not allowed as independent proof ; " but extraneous papers may be admitted and submitted to the jury for comparison in con- firmation of prior evidence. The ct^mparison may not be made by experts.* In Ohio, however, not only persons who have knowledge of the handwriting of the person whose writing is in question may testify, but e> perts.^ Evidence to handwriting is subject to many sources of fallacy and error, among which may be enumerated tuition by the same preceptor, employment with other persons in the sf'-me place of business, aa well as designed imitation or disguise, all of which are frequently causes of great similarity in writing. Men in certain businesses or professions sometimes adopt peculiarities of character, though less frequently than formerly ; and there are characteristic peculiarities indicative of age, infirmity, and sex.^ Handwriting is sometimes most successfully imitated. On a trial for forgery of bank-noteSj a banker's clerk whose name was on one of the notes swore distinctly that it was his hand- writing, while he spoke hesitatin-^ly 'with respect to his genuine subscription.^ Lord Eidon mentioned a very remarkable in- stance of the uncertainty of this kind of evidence. A deed was produced at a trial on which mtch doubt was thrown as a dis- creditable transaction. The sol 'ci tor was a very respectable man, and was confident in the character of his attesting wit- nesses. One of them purported to be Lord Eldon himself, and the solicitor, who had referred to his signature to pl-Badings, » State V. Ezekiel, 33 S. C. 115. And see Benedict v. Flanigan, 18 S. C. 508 ; Graham v. Nesmith, 34 S. C. 296. ^ Weaver v. Whilden, 33 S. C. 190. « State v. Ezekiel, supra. * Amriok V. Mitchell, 1 Norris, 211 ; Ballentine v. White, 27 P. F. Smith, 20 ; Berryhill v. Kirchner, 96 Pa. St. 489 ; Travis v. Brown, 43 Pa. St. 17 ; In re Rockey's Estate, 155 Pa. St. 455. ** Bell t'. Brewster, 44 Ohio St. 696. • Rei v. Johnson, ut supra. 7 Rex V. Caraewell, Burnett's C. L. of Scot. 503. If tl' ii' 1 10 222 PROOr OF HANDWRITING. hjul no doubt of its authenticity, yet Lord Eldon declared that ho htul never attested a deed in liis life.' In a case in Doctors' Conunons the learned judge repudiatetl the common objection of {)ainting or touching, as a reason for mferring fraud, saying tliat there could scarcely be a less oer- tarn criterion, and i^eremptorily declined the use of a glass of high powers, said to have been used by the professional wit- nesses, observing, in substance, that glasses of high i)owers, however fitly applied to the inspection of tiatwal subjects,' rather tend to distort and misrepresent than to place mch objects in their true light ; especially when used (their ordinary application in the hands of prejudiced persons) to confirm some theory or preconceived opinion.^ But it is the daily practice of courts of common law to admit the artificial aid of glasses and lamps ; and on an indictment for forgery, the question being whether a paper had originally contained certain pencil-marks which wore alleged to have been rubbed out, and ink-writing Avritten in their stead, the opinion of an engraver, who was in the habit of looking at minute lines on paper, and had ex- amined the document with a mirror, was held to be receivable, although of no weight unless confirmetl.' On suit on a promis- sory note where the signature was denied, one skilled in the use of a comiwund microscope was allowed to testify that upon examination of the paper upon which the note was written, under the microscope he disooveretl traces of pencil-marks and that the fibre of the paper had tho appearance of having been broken before the ink was laid on.* Enlarged copies of a disputed signature or writing and of those used as comparisons may be of great aid to a jury in com- parisons and examining different specimens of one's handwrit- ing. And for this reason, and also for greater convenience, it is the common practice to admit photographs of the different signatures,^ 1 Eagleton v. Kingston, 8 Vea. 473. 2 Robson V. Rocke, 2 Addams, 79. « Reg. V. Williams, 8 C. & P. 434. ♦ Bridgmau v. Corey, 62 Vt. 1. 6 Marcy v. Gray, 16 Gray (Mass.), 161 ; Rowell v. Fuller, 59 Vt. 588 • In re Gordon's WiU, 268, and the famous Tichborne Case. PROOF OF IIANDV, IJITINC. 998 Section III. The Reliahility of Evidence an this Subject The following extract from a loarnetl judgment of Sir John NichoU embodies many instructive observations ui)on this kind of evidence : " This court has often had occasion to observe, that evidence to handwriting is at best, in its own nature, very inconclusive ; affirmative, from the exactness with Avhich hand- writiMi,^ may beimitateil; and negative, from the dissimilarity which is often discoverable in the handwriting of the same person under different circumstances. Without knowing very precisely the state and condition of the writer at the time, and exercising a very discriminating judgment upon these, persons deposing, especially, to a mere xiynatin-e not being that of such or such a person, from its dissimilarity, however ascertained or supposed to be, to his usual handwriting, are so likely to err, that negative evidence to a mere subscription, or signature, can seldom, if ever, under ordinary circumstances, avail in proof, against the final authenticity of the instrument to which that subscription, or signature, is attached. But such evidence is peculiarly fallacious where the dissimilarity relied upon is not that of general charact- r, but merely particular letters ; for the slightest peculiarities of circumstance or position, as, for instance, the writer sitting up or reclining, or the paper being placed upon a harder or softer substance, or on a plane more or less inclined, nay, the materials, as pen, ink, etc., being different at different times, are amply sufficient to account for the same letters being made variously at the different times by the same individual. Independent, however, of anything of this sort, few individuals, it is apprehended, write so uniformly that dis- similar formations of particular letters are grounds for con- cluding them not to have been made by the same person." ^ Very similar were the remarks recently made concerning this subject in the course of a learned judgment of the Prerogative Court of New Jersey. And the Ordinary proceeded further to say : " It follows that unreliability is greater when the disputed writing is short, or the standards for comparison are meagre, or are all written at one time, and also that uncertainty lessens 1 Rnhnnn »v Rrvlro 9 AHrlama '7Q 224 PROOF OF HANDWRITING. III fill when the disputed writing is long, and the standards are numerous and the products of different dates." » The difficulty of proving handwriting is greatly increased where it is studiously disguised. In Webster's case anony- mous letters written in a disguised hand and calculated to divert suspicion from the defendant had been sent to a newspaper for publication.2 But such is the power of habit, that though persons may succeed to a certain extent in disguising their writing, they comuionly fall into their natural manner and characteristic peculiarities of writing ; 8 such pecu- liarities being most commonly manifested in the formation of particular letters, or in the mode of spelling particular words.* Judge Taylor instances a case where the defendant produced a receipt worded as follows : " Eeceived the Hole of the above." Upon being required to write a sentence containing the word whole, the party spelled it as Avritten above, even retaining the capital H.^ A tailor, of the name of Alexander, having learned that a person of the same name had died, leaving considerable property without any apparent heirs existing, obtained access to a garret in the family mansion, and, it was said, found there a collection of old letters about the family. These he carrieu off, and with their aid fabricated a mass of similar productions, which, it was said, clearly proved his connection with the family of the de- ceased, and the Lord Ordinary decided the cause in his favor ; the case, however, was carried to the Inner House. When it came into court, certain circumstances led Lord Meadowbank, then a young man at the bar, to doubt the authenticity of the documents. One circumstance was, that there were a number of words in the letters, purporting to be from different indi- viduals, spelt, or rather misspelt, in the same way, and some of them so peculiar, that on examining them minutely, there Avas no doubt that they were all written by the same hand. The case attracted the attention of the Inner House. The party was brought to the clerk's table, and was examined in the presence of the court. He was desired to write to dictation of 1 McGill, Ordinary, in Re Gordon's Will, 26 Atl. 268. 2 Com. V. Webster, 5 Gush. 295. « Per Macdonald, C. J., in Rex v. Bingham, Horsham Spr. Ass., 1811. * Rex 1'. Johnson, supra. 6 Taylor on Ev. § 1669 n., p. 1586, Text-Book Series. PROOF OF HANDWRITING. 225 the Lord Justice Clerk, and he misspelt all the words that were misspelt in the letters in precisely the same way ; and this and other circumstances proved that he had fabricated all of them himself. He then confessed the truth of his having writ- ten the letters on old paper, which he had found in the garret ; and thiij result was arrived at in the teeth of the testimony of half a dozen engravers, all saying that they thought the letters were written by different hands.^ It is even more difficult to depose with confidence to the identity of a disguised writing, if the disguise is applied to printed characters, and Mr. Baron Rolfe spoke of such evidence as of no value.2 Regarding the weight to be attached to the evidence of skilled witnesses as to the identity of disputed writings, an opinion to which reference has already been made contains the following observations : " Handwriting is an art concern- ing which correctness of opinion is susceptible of demonstra- tion, and I am fully convinced that the value of the opinion of every handwriting expert as evidence must depend upon the clearness with which the expert demonstrates its correctness. That demonstration will naturally consist in the indication of similar characteristics, or lack of similar characteristics, between the disputed writing and the standards, and the value of the expert's conclusion, will largely depend upon the number of those characteristics which appear or are wanting. The appearance or lack of one characteristic may be accounted to coil jidence or accident, but, as the number increases, the probability of coincidence or accident Avill disappear, until con- viction will become irresistible. Without such demonstration the opinion of an expert in handwriting is a low order of testi- mony, for, as the correctness of his opinion is susceptible of ocular demonstration, and it is a matter of common observation that an expert's conclusion is apt to be influenced by his em- ployer's interest, the absence of demonstration must be attrib- uted either to deficiency in the expert or lack of merit in his conclusion. It follows that the expert who can most clearly point out will be most highly regarded and most successful.^ ' Related by Lord Meadowbank in Reg. v. Humphreys, infra. And see the case of Smith v. Earl Ferrers, Shorthand Rep. 1846. 9 Webster's Case, 5 Cush. 395; Reg. v. R-asb, Nonrieh Spr. Ass., 1849. • Inre Gordon's WiU, 26 Atl. 268. i 226 PROOF OF HANDWRITING. Every reasonable opportunity should be afforded to test the val lie of the opinion of the witness. For this purpose experts may be asked on cross-examination to maice comparisons between two signatures of a witness in the case — one admitted by him to be genuine, and the other claimed by him to have been written by some one else, but by his authority and direction.* And they may be asked concerning their opinion as to the genuineness of signatures in the handwriting of any one, pre- pared for the purpose." 1 Johnston Harvester Co. v. Milburn, 73 Mich. 265. s Browning v. Goenell (Iowa), 69 N. W. 340. V CHAPTER IV. VERIFICATION OF DATES AND TIME. Amongst the numerous physical and mechanical circum- stances which have occasionally led to the detection of forgery and fraud, a discrepancy between the date of Avriting and the Anno Domini Avater-mark in the fabric of the paper is one of the most striking ;i but inasmuch as prospective issues of paper, bearing the water-mark of a succeeding year, are occa- sionally made, this circumstance is not always a safe ground of presumption ; 2 and it is not uncommon among manufacturers both to post-date and to ante-date their paper-moulds. A wit- ness examined in 1834 stated that he Avas then making moulds with the date of 1828, under a special order.3 In an old case a criminal design Avas detected by the circumstance that a letter, purporting to come from Venice, Avas AA-ritten upon paper made in England.* The critical examination of the internal contents of Avritten instruments, perhaps of ail others, affords the most satisfactory means of disproving their genuineness and authenticity, espe- cially if they profess to be the productions of an anterior age. It is scarcely possible that a forger, lioAvever artful in the exe- cution of his design, should be able to frame a spurious composition Avithout betraying its fraudulent origin by pecu- liarities of Avriting or orthography characteristics of a different age or period, or by the employment of Avords of later intro- duction, or by the use of them in a sense or meaning Avhich they did not then bear, or by some statement or allusion not » Crisp V. Walpole, 2 Hagg. 521. « A Commissioner of the Insolvent Debtors' Court, sitting at Wakefield in 1836, discovered that the paper he was then using, which had been issued by the government stationer, bore the water-mark of 1837. » Rodger v. Kay, 12 Cases in Court of Session, 317 ; Miller v. Eraser, 4 Id. ' ; 4 Murray's Cases in Jury Court, 118. Best on Presumptions, 56 ; referring to Moore, 817. 227 uo :3 228 VERIFICATION OF DATES AND TIME. in harmony with the known character, opinions, and feelings of the pretended writer, or with events or circumstances which must have been known to him, or by a reference to facts or modes of thought characteristic of a hiter or a different age from that to which the Avriting relates. A writer, eminent alike for his critical sagacity and for his imaginative genius, declared th;!t he had met in his researches with only one poem which, if it had been produced as nncient, could not have been detected on internal evidence.^ J uilicial history presents in- numerable examples in illustration of the soundness of these jirinciples of judgment, of which the following are not the least interesting. A deed was offered in evidence, bearing date the 13th of November in the second and third years of the reign of Philip and Mary, in which they were called " Mng and queen of Spain and both Sicilies, and dulces of Burgundy, Milan, and Brabant," whereas at that time they were formally stjded " princes of Spain and Sicily," and Burgundy was never put before Milan, and they did not assume the title of king and queen of Spain and the two Sicilies until Trinity Term fol- lowing.'^ A most curious and instructive case of this kind was that of Alexander Humphreys, before the High Court of Justiciary at Edinburgh, April, 1839, for forging and uttering several documents in support of a claim advanced by him to the earldom of Stirling and extensive estates. One of those docu- ments purported to be an excerpt from a charter of Novodamus of King Charles I., bearing date the 7th of December, 1639, in favor of William the first Earl of Stirling, and making the honors and estates of that nobleman, which under previous grants were inheritable only by heirs male, descendable in default of heirs male to his eldest heirs female, without division, of the last of such heirs male, and to the heirs male of the body of such heirs female respectively. This excerpt purported in the testatum clause to be witnessed by Archbishop Spottiswood " our chancellor," Avheroas he died on the 26th of November, 1639, and it was proved by the register of the Privy Council that he resigned the office of chancellor, and that the Great Seal was delivered to the custody of James, Marquess oi ^ 2 Lockhart's Life of Scott, c. ix. » Moasom v. Ivy, 10 St. Tr. 616 ; and vide Coke's First Inat. 7 b. VERIFICATION OF DATES AND TIME. 229 Hamilton, on the 13th of November, 1638, more than a year before the date of the pretended charter, and that there was an interregnum in the office of chancellor until the appoint- ment of Lord Loudon on the 30th of September, 1641. A genuine charter, dated four days after the pretended charter, was Avitnessed by James, Marquess of Hamilton. The circum- stance was significant, that in the catalogue of the Scottish chancellors, appended to Spottiswood's History and other works, no mention is made of the interval between the resigna- tion of the Archbishop of St. Andrews and the appointment of the Earl of Loudon. In the margin of the excerpt was a reference to the Register of the Great Seal, book 57, in the following form : « Reg. Mag. Sig. lib. 57 ; " but it was proved that this mode of marking and reference did not commence until 1806, when the registers were rebound, in order that they should have one title ; and that previously to that time the title of those documents was, " Charters, book i., book ii.," and so on. In the supposed excerpt the son of the first earl Avas styled " nostra consanguineo,^' a mode of address never adopted in old charters in regard to a coran)' .^r ; and there were other internal incongruities. This document consisted of several leaves stitched together, of a broAvn color, as well under the stitching as where open ; whereas if the stitching had been old, the part of the paper not exposed to the atmosphere would have been whiter than the rest. Around the margin of this excerpt were drawn red lines ; but it was proved by official persons familiar with the extracts of the period, that such lines were not introduced into the Chancery Office till about 1780. A series of anachronisms conclusively disproved the authenticity of several other documents adduced by the prisoner in support of his claim. One of those documents was a copper-plate map of Canada by Guillaume de I'lsle, " Premier Geographe du Roi, avec privilege pour vingt ans," bearing the date of 1703, on the back of which, amongst other supposed attestations, were a note purporting to be in the handwriting of Flechier, Bishop of Nismes, dated the 3d of June, 1707, and another note purporting to be in the handAvriting of Fenelon, Arch, bishop of Cambray, of the date of the IGth of October, 1707. It was proved that Flechier died in 1711, and the letters-patent for the installation of his successor in the bishopric of Nismes were produced, bearing date the 2'Jth of February in that Ill I 1 1 If 230 VERIFICATION OF DATES AND TIME. year ; that F6nelon died on the 7th of January, 1715 ; and that De I'Isle was not appointed geographer to the king until the 24th of August, 1718. In all of De I'lsle's editions of his map the original date of 1703 was preserved as the commence- ment of his copyright, but on any change of residence or of designation, he made a corresponding change in the original copper-plate from which all successive issues of the map were engraved, and it was proved by a scientific witness that the title of De I'Isle had been actually altered on the copper-plate of the map since 1718. Of course a map issued prior to 1718 could not refer to his appointment of geographer to the king, and any attestation of the date of 1707 to a map containing a recognition of that appointment must of necessity be spurious. The forger of the map must have been misled by the date of 1703 upon it, and ignorant of the fact that De I'Isle was not appointed geographer to the king until 1718; so difficult is it to preserve consistency in an attempt to impose by means of forgery. The very ink with which some of the pretended attestations were made was not the usual ink of the period, but a modern composition made to imitate ink turned old. There were other strong grounds for impugning the genuineness of these various documents, which the jury unanimously found to be forged.i It was observed by Lord C. B. Macdonald, that there is nothing we are so little in the habit of, as measuring with any degree of correctness small portions of time ; and that if any one were to examine, with a watch which marks the seconds, how much longer a space of time a few seconds or a feAV minutes really are than people in general conceive them to be, they would be surprised ; but that in general, when we speak of a minute, or an instant, we can hardly be understood to mear more than that it was a very short space of time.'* Nevertheless it is sometimes of the highest importance ac- curately to fix the exact time of the occurrence of an event, and a difference of a few minutes even may be of vital moment. This frequently happens where the defence is that of an alibi. On a charge of murder, Avhere the defence wjis of that nature, 1 See the Reports of the Trial by Archibald Swinton, Esq., and William Tumbull, Esq. ; Remarks on the Trial, by an English Lawyer ; 1 Towns- end's St. Tr. 403 ; and Dickson's L. of Ev., lit supra, 173. * Rex V. Patch, Ourney's Report, 171. VERIFICATION OF DATES AND TIME. 231 and it waa essential to fix the precise times at which the prisoner had been seen by the several witnesses soon after the fatal event which was the subject of investigation, the object was satisfactorily effected by a comparison made by an intelligent witness on the same day, of the various time-pieces referred to by the several witnesses, with a public clock ; thus affording the means of reducing the times as spoken to by them to a common standard.^ In an indictment for rape witness testified that she met the defendant at a certain point on a certain road between the hours or eight and ten in the morning as she supposed. An- other witness testified that he was at work near the place mentioned from seven in the morning till noon, and that he saw neither of the parties. Either the latter witness was mis- taken as to his being so near the road that he must necessarily have observed any one passing, or the former was mistaken in her conjecture as to the time, which was quite possible, since she had no watch." Post-office marks are often of great importance in fixing disputed dates ; but it is remarkable that in two cases in England involving charges of murder, the defective manner in which they were impressed rendered them useless, and became the subject of judicial animadversion,^ which led to improve- ments calculated to render the recurrence of any such matter of complaint most unlikely. Scientific testimony grounded on the state of wounds and injuries to the human body, or on its condition of decay, is frequently employed indirectly in the solution of questions of time ; but cases of this nature belong to the department of medical jurisprudence. » Rex V. Thornton, infra. « Johnson v. State, 14 Oa. 55. » By L. C. J. Caupbell in Reg. v. Palmer, infra ; and by the L. Jiutice Clerk in Reg. v. Madeleine Smith, infra. PART III. EXCULPATORY PRESUMPTIONS AND CIRCUM- STANTIAL EVIDENCE. The common law recognizes several presumptions, /w/'is et ds jure, which create entire or partial exemption from criminal responsibiiity ; as, that infants under the age of seven years cannot be guilty of crime, that infants above that age and under fourteen years shall be prima facie adjudged doll inijopaa;, and that, as to certain offences connected with phys- ical development, minors under the age of fourteen years shall be conclusively presumed to be incapable of committing them, and that no evidence shall be admitted to the contrary. Such also is the presumption that offences committed by the wife in the presence of her husband shall, with certain excep- tions, be considered to have been committed by his coercion. But the presumptions which concern the subject of this work are of a different kind, consisting mainly of maxims drawn from well-digested experience, and grounded upon considera- tions of natural equity, for the candid construction of the actions and motives of our fellow-men, and which are in truth but particular forms of strict justice.^ An enumeration of some of the principal of these presumptions will form the subject of this chapter. ^ "Presumptions," says an eminent author, "accept the ordinary and probable as true until it is shown not to be true. Thus, we presume a man innocent of a crime, and that a man and woman living together as husband and wife, and recognizing each other and being recognized by the com- munity 83 such, are lawftilly married, and these presumptions are made because in the great majority of cases the fact accords with the presump- tion." Cooley's Elements of Torts, 280. 232 CHAPTER I. THE PRESUMPTION OF INNOCENCE. M- is et linal ears and doli hys- ears ting ary. the cep- sion. rork awn iera- the [•uth I of the and man band 3om- nade imp- In the investigation and estimate of criminatory evidence there is an antecedent prima fade presumption in favor of the innocence of the party accused, grounded in reason and justice, and recognized in the judicial practice of all civilized nations ; which presumption must prevail until it be destroyed by such an overpowering amount of legal evidence of guilt as is calculated to produce the opposite belief.^ Any evidence, however little, if it be such that a reasonable man might fain be convinced by it, is sufficient for the purpose.^ But the establishment of a, prima fade case only does not take away the presumption of the defendant's innocence, nor shift the burden of proof.^ On the trial of an indictment the jury were instructed that when the government have made out a prima fa^ie case, it is incumbent on the defendant to restore himself to that presumption of innocence in which he was at the commencement of the trial. It was held that this was erroneous, and that the jury should have been instructed that the burden of proof was upon the Commonwealth to prove the guilt of the defendant ; and that he was to be presumed in- nocent unless the whole evidence in the case satisfied them that he was guilty.* Some remarks of Chief Justice Eice of Alabama are very appropriate here. " In a civil case," said that learned Judge, " the plaintiff is not required to prove, beyond all reasonable doubt, the fact on which he relies for recovery ; and therefore when he establishes a prima fade case, the burden of proof is thereby shifted, and ih.e prima fade case so established entitles him to recover unless it is destroyed by 1 See the language of Lord Gilues in Rex v. M'Kinley, 33 St. Tr. 506. " 1 Roscoe Cr. Ev. (8th Am. Ed.) 28. » People V. Milgate, 5 Cal. 127 ; Ogletree v. State, 28 Ala. 693 ; State v. Banks, 43 la. 695. * Com. V. KimbaU, 24 Pick. 366. 233 } 1^ \Q 234 THE PRESUMPTION OF INNOlENCE. proof from the other party. But in a criminal case the State is required to prove beyond all reasonable doubt the facts which constitute the offence. The establishment therefore of a prima facie case merely does not take away the presumption of innocence from the defendant, but leaves that presumption to operate, in connection with, or in aid of, any proof offered by him to rebut or impau- ihQ prima facie case thus nuide out by the State. ^ It must be admitted that in the ao^gregate, the number of convictions vastly exceeds that of acquittals, and that the proba- bility is that, in a given number of cases, far the greater number of the parties accused are guilty ; but according to all judicial statistics, and under every system, a considerable proportion of tho persons put upon trial are legally innocent. In any particular case, therefore, the party may not bo guilty, and it is impossible, without a violation of every principle of justice, to act upon the contrary presumption of a superior probability of guilt. It is, therefore, a settled and inviolable principle, that anterior to contrary proof, the accused shall be considered as legally innocent, and that his case shall receive the same dispassionate und impartial consideration as if he were really so. The presumption of innocence, though not strictly evidence in tavor of the accused, yet has, to the extent it goes, the effect of evidence — sufficiently so in a doubtful case to turn the scale in his favor, and produce his acquittal." If a house is consumed by fire, the presumption is, not that it was intentionally set on fire, but that the fire was the result of accident or of some providential cause.^ Thee is a general presumption against immoral conduct of every description. Thus, legitimacy is always presumed ;< and cohabitation is generally presumptive proof of marriage.^ There is always a presumption in favor of the truth of testi- mony ; 8 and it will not be presumed that a trespass or other wrong has been committed.^ Where a woman married again within the space of twelve 1 Ogletree v. State, 28 Ala. 693. « Hampton v. State, 1 Tex. Grim. App, 652. « Phillips V. State, 29 Ga- 105. « Banbury Peerage Case, t Sim. «fc S. 153. 6 Doe d. Fleming v. Fleming, 4 Bing. 266, 13 E. C. L. The rule is other- wise, however , in cases of bigamy. 1 Rnsooe Or. F.'.', 'fith Asn, YA ^- "9 • Best, Ev. 419. t Best, Ev. ^16 ; 1 Roscoe Cr. Ev. (8th Am. Ed.) 29. :..Hi THE PRESUMPTION OF INNOCENCE. 235 months after her husband had left the country, the presump- tion of innocence was held to preponderate over the usual presumption of the continuance of life.* But this case was much commented on in a later case,' where it was held that a man having some years before married one woman, who was shown to have been alive on the 17th March, 1831, and another woman on the 11th April of that year, the sessions were justified in presuming the first wife to have been alive and the second marriage void. Lord Denman, C. J., said that there was no rigid presumption of law without reference to the accompanying circumstances, and the presumption of innocence could not prevail against proof that the first wife was alive shortly before. It is to be observed that the two cases differed so much as fully to justify the court of sessions in coming to opposite conclusions upon them. Upon the trial of an action for money had and received,^ in order to try the plaintiff's right to a donative, it was held unnecessary for him to prove at the trial, although called U[H)n to do so, that he had subscribed the articles of tho church, in the presence of tho ordinary, or publicly read tho same, or that he had subscribed the declaration of uniformity contained in the statute.* And where the plaintiff sued for titles, the de- fendant pleaded that the plaintiff had not read the arti(;les according to the statute, and the court constrained the defend- ant to prove the negative; and Coke said that if such a matter should come before him in evidence, he would presume, until the contrary should be proved, that the plaintiff had read tho articles.* Upon an information for refusing to deliver up the roUa of tht Auditor of the Exchequer, the Court of Exchequer put plaintiff upon j>roof of tho negative.* In an action for put- tiiJg combustible matter on board the plaintiff's ship without giving notice of its contents, when the ship was destroyed, it was held that the plaintiff was bound to prove the want of notice. ^ 1 Rex V. Twyning, 2 B. & Aid. 886. » Rex V. Harbome, 2 Ad. & E. (29 E. C. L.) 641. • Powell V. Milburn, 3 Wils. 855. * 13 and 14 Chas. II. c. 4. » Monke v. Butler, 1 Roll. R. 88. See Stark Ev. (10th Am. Ed.) 755, n. " This presumption of innocence is so strong that even where the guilt can be established only by proving a negative, that negative must in most cases be proved by the party alleging the guilt." 1 Greenl. Ev. § 35. n M p "> Williams v. East India Co., 3 East, 192. rii ] _ 986 THE PRESUMPTION OF INNOCENCE. Upon an information in the nature of quo warranto^ when the objection wjis that the defendant had not taken the sacra- ment within a year, the court held that the presumption was that he had conformed to the law.i When a marriage de facto is proved, the presumption is that the marriage \\.\» conducted according to law, and the burden of proof is on the party denying it." When the plaintiff in ejectment chiims the riglit to enter upon lands for the breach of a condition subsequent, the burden is upon him to prove the breach.^ The averment of neglect of official duty must be supjiorted by some proof by the party making it.* » Raynham v. Canton, 3 Pick. 393. * Rex V. Hawkins, 10 East, 211. « O'Brien v. Doc, 6 Ala. 787. * Dobbs V. Justices, 17 Oa. 634. But in such a caae very little evidence will suffice to shift the burden of proof. \m I CHAPTER II. THE CUEDIBILITY OP TESTIMONY. Artificial rules for determining the credibility of testimony should generally be avoided. Jurors who observe the witness while he is testifying, his manner, his intelligence, his appear- ance, his bias or the absence of it, and many other nameless indicia, are as a rule the best determiners of the truth or falsity of parol testimony.' And it would be foreign to the subject of this work to discuss the considerations which affect the credibility of evidence in general, such as the integrity, disin- terestedness, and ability of the witnesses," the consistency of their testimony, its conformity with experience, and its agreement with collateral circumstances, since these considerations apply to circumstantial only in common with all other testimonial evidence. It has been profoundly observed, that of all the various sources of error, one of the most copious and fatal is an unreflecting faith in human testimony ; ^ and it is obvious that all reasoning upon the relevancy and effect of circum- stantial evidence presupposes its absolute verity, and that such evidence necessarily partakes of the infirmities incidental to all human testimony ; and facts apparently indicative of the most forcible presumption have been fabricated and supported by false testimony. Every consideration, therefore, which detracts from the credibility of evidence in the abstracts, applies a for- tiori to evidence which is essentially indirect and inferential. In such cases, falsehood in the minutest particular throws discredit upon every part of a complainant's statement, accord- ing to the well-known maxin, qui mendax in uno mendax in omnibus. 1 Stone, C. J., in Dick v. State, 87 Ala. 61. * See, on these points, State v. Wisdom (Mo.), 24 S. W. 1047 ; State v. Miller, 9 Houst. 564 ; Housh v. State (Neb.), 61 N. W. 571 ; Reagan v. U. S., 157 U. S. 301 ; Johnson v. U. S., 157 U. S. 320. » 1 Stewart's Collected Works, 247. SOT 0( 238 THE CREDIBILITY OF TESTIMONY. It M The presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury. But this applies only where it appears that the witness has wilfully and intentionally testified falsely. Instructions which omit this element are incorrect.* Hence, since facts can never be mutually inconsistent,'' circumstantial evidence frequently affords the means of evincing the falsehood of direct and posi- tive affirmative testimony, and even of disproving the existence of the corpus delicti itself, by manifesting the incompatibility of that testimony with surrounding and concomitant circum- stances, of the reality of which there is no doubt.^ The testi- mony of a false witness must either be sparing in circumstances, and therefore of a nature obviously suspicious, or be liable to de- tection from comparing the invented circumstances with each other and with those which are known to be true. The jury are not bound to accept as true the testimony of a. witness which there is no direci testimony to contradict when it contains inherent imperfections.* Circumstantiality of detail is usually a test of sincerity, provided the circumstances be of such a nature as to be capable of contradiction if they be false. And if a witness be copious in his detail of circumstances which are incapable of contradic- tion, but sparing of those which are of an opposite kind, his testimony must necessarily be regarded with a degree of sus- picion. Nor, on the other hand, must it be forgotten, as has been well remarked, that " the usual character of human testimony is substantial truth under circumstantial variety." " It so rarely happens," says Starkie, " that witnesses of the same transaction perfectly and entirely agree in all points connected with it, that an entire and complete coincidence in every par- ticular, so far from strengthening their credit, not unfrequently engenders a suspicion of practice and concert." ^ 1 Stoppert V. Nierle (Neb.), 63 N. W. 382. See further on this matter, Paul V. State (Ala.), 14 So. 634 ; Alton Lime & C. Co. v. Calvey, 47 111. App. 343. * Locke on Human Understanding, b. iv. c. 20, § 8. « Best on Presumptions, 54. « Lang v. Ferrant, 55 Minn. 415, 6 See Starkie on Ev. (10th Am. Ed.) 831. " I know not," sa>o Dr. Paley, " a more rash or unphiiosophioal conduct of the underslandlug than to re- ject the substance of a story by reason of some diversity in the circum- h .! THE CREDIBIUTY OF TESTIMONY. 239 Sir Matthew Hale mentions a very remarkable case, where an elderly man was charged with violating a young girl of fourteen years of age, but it was proved beyond all doubt that a physical infirmity rendered the perpetration of such a crime utterly impossible.* The prosecutrix of an indictment against a man for administering arsenic to her, to procure abortion, deposed that he had sent her a present of tarts, of which she partook, and that shortly afterwards she was seized with symptoms of poisoning. Amongst other inconsistencies, she stated that she had felt a coppery taste in the act of eating, which it was proved that arsenic does not possess ; and from the quantity of arsenic in the tarts which remained untouched, she could not have taken above two grains, while after repeated vomitings, the alleged matter subsquently preserved contained stances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experience of courts of justice teaches. When accounts of a transaction come from the mouths of different witnesses, it is seldom that it is not pos- sible to pick out apparent or real inconsistencies between them. These in- consistencies are studiously displayed by an adverae pleader, but often- times with little impression upon the minds of the judges. On the con- trary, a close and minute agreement induces the suspicion of confeder- acy and fraud. When written histories touch upon the same scenes of action, the comparison almost always affords ground for a like reflection. Numerous and sometimes important variations present themselves : not seldom, also, absolute and final contradictions ; yet neither the one nor the other are deemed suflScient to shake the credibility of the main fact. The embassy of the Jews to deprecate the execution of Claudius' order to place his statue in their temple, Philo places in harvest, Josephus in seed- time ; both contemporary wi iters. No reader is led by their inconsistency to doubt whether such an embassy was sent or whether such an order was given. Our own history supplies examples of the same kind ; in the account of the Marquis of Argyle's death in the reign of Charles the Second, we have a very remarkable contradiction. Lord Clarendon relttes that he was condemned to be hanged, which was performed on the same day ; on the contrary, Burnet, Woodrow, Heath, and Eckard concur in stating that he was beheaded, and that he was condemned upon the Saturday, and executed upon tlie Monday. Was any reader of English history ever sceptic enough to raise a doubt whether he was executed or not ? " To take an illustration from our own times, in the Gettysburg address of President Lincoln. That there was such an address, and the circumstances of its delivery, are matters of common knowledge. Yet those who were near the person of Mr. Lincoln differ in their accounts of the time and manner of preparation of the address. No one has yet been found so foolhardy as to declare the battle of Waterloo a myth of the historians. Yet the narra- tives differ in many of the details ol that tremendous struggle. 1 1 P. C. c. 58. 240 THE CREDIBILITY OF TESTIMONY. nearly fifteen grains, though the matter first vomited contained only one grain. The prisoner was acquitted, and the prosecu- trix afterwards confessed that she had preferred the charge from motives of jealousy.^ "Where the chief witness on a trial for murder was an accom- plice, it was held proper to show that the witness had made threats against the deceased for talking about his sister, as this would tend to prove that his conduct in killing deceased was dictated by his own personal malice, independently of the in- stigation of the defendant, and to this extent would suggest a possible hypothesis inconsistent with his own statement.^ In an old case it was shown that the witness had threatened to be revenged on his master, the defendant, by sending him to jail.^ This has been followed in a very recent case where the defend- ant was on trial for forging entries in a weigh-sheet at a colliery with intent to defraud. The prosecution depended for con- \action on the testimony of a witness who stated that while concealed in the roof of the office, he saw the defendant make the false entries. It was allowed to be shown that the witness had two years previously threatened to be revenged on the prisoner, saying: " It is in my power to do him a good one, and when I do him it will be a good one." * » Reg. V. Whalley, York Spring Assizes, 1829 ; Christison on Poisons, 95. a Mailer v. State, 67 Ala. 55 ; 42 Ana. Rep. 95. » Rex V. Yewin, 2 Camp. 638, n. ♦ Reg. v. Shaw, 16 Cox C. C. 583. CHAPTER III. CONDUCT OP THE COMPLAINING PARTY AS GIVING RISE TO THE PRESUMPTION OF INNOCENCE. Ibrespeotively of and distinct from any positive discrepancy in the account given by a complainant party, there is a con- sistency of deportment and conduct grounded upon the inva- riable laws of our moral nature, Avhich is essentially charac- teristic of truth and honesty, and the absence of which neces- sarily detracts f-om the credit of such evidence, and therefore tends to create a counter-presumption. We reasonably expect to discover in the demeanor of a party who has just reason to complain of personal injury or violated honor or right, prompt and unequivocal indications of that sense of wrong and inse- curity, which, as the invariable consequence, is naturally and involuntarily generated in every human mind. In trial for rape the conduct of the prosecutrix immediately after the transaction is properly the subject of scrutiny.^ That she made complaint immediately after the alleged assault is a circumstance corroborative ol her statement at the trial that such an assault was made.^ In determining the credit to be given to her testimony various circumstances must be con- sidered : e.g.^ her character, whether she immediately told of the offence if she had opportunity to do so, whether she might have been heard at the time of the outrage, and yet made no outcry, whether she be supported by other evidence, whether the accused fled.^ An outcry and resistance are important elements of evi- dence and a want of these circumstances where they may reason- ably be expected go far to disprove the charge of rape.* A con- cealment of the injury where there is an opportunity for early disclosure, may lead to a like inference.^ » People V. Flynn, 95 Mich. 276. « Bean v. People, 124 lU. 576. » Lynn v. Com., 13 S. W. 74. * State V. Cunningham, 100 Mo. 525. « State r. Witten, 13 S. W. 871. 241 n I'l ill I ■lb ii It ' 242 CONDUCT OF THE COMPLAINING PARTY Sir Matthew Hale, in reference to this crime, tays: " If the party concealed the injury for any considerable time after she had opportunity to complain ; if the place where the fact was supposed to be committed were near to inhabitants, or common recourse or passage of passengers, and she made no outcry when the fact was supposed to be done, when and where it is probable that she might be heard by others ; these and thehke circumstances carry a strong presumption that her testimony is false or feigned." ^ These cautionary considerations are applicable with more or less of force to accusations of every description ; but they are more especially weighty and pertinent in reference to the par- ticular crime referred to, of which the learned author from whom we have just quoted has said, that " it i?, an accusation easily to be made, and hardly to be proved, and harder to be defended by the party accused, though never so innocent.' Such cases, he furth'ir observes, are not uncommon, and he has related the particulars of two cases, where, though the charges were groundless, the parties with difficulty escaped. " I only mentioned these instances," said that upright judge, "that we may be the more cautious upon trials of offences of this nature, wherem the court and jury may with so muoh ease be imposed upon »vithout great care and vigilance, the heinousncss of the offence many times transporting the judge and the jury with so much indignation, that they are over-hastily carried to the conviction of the persons accused thereof by the confident testimony sometimes of malicious and false witnesses." ^ On a prosecution for carnally knowing a child, the defend- ant was permitted to show that at the time the offence was alleged to have been committed the physical system ot the axjcused was greatly weakened and debilitated by dnnk as tending to show that he was not capable of committing it. False "f.arges of this kind have unhappily been too common and too successful in all ages. The social consequences of female dishonor are so deadly, and the inducements to false- hood and revenge so peculiar and so powerful, that there is no class of cases in which it is more important to obtain an exact knowledge of the motives and character of the complainant. For these reasons great latitude of cross-examination is per- 1 1 Hale'a P. C. c. 58. « Ibid. 2 1 Hale'a P. C. c. 58. * Nugent V. State, 18 Ala. 521. AS GIVING RISE TO THE PRESUMPTION OF INNOCENCE. 243 mittecl in cases of this kind. The prosecutrix may be cross- examined to prove her unchaste.^ She may be asked whether she did not have sexual intercourse with a designated person at a specified time and place.^ In New York she will be com- pelled to answer, and if she answers in the negative she may be contradicted. 8 Evidence that the woman charged to have been injured is in fact a common prostitute, or evidence of reputation that she is a woman of ill-fame, may be submitted to the jury to impeach her credibility and to disprove her statement that the attempt was forcible and agamst her con- sent.* It is material to show that the prosecutrix has previously sustained criminal relations with the prisoner ; ^ otherwise, par- ticular instances of her unchaste conduct may not be shown.* Nor is the danger of false accusation confined to the partic- ular class of offences which has been specially adverted to. Inducements to prefer false charges may operate with greater or lesser force with regard to accusations of every kind. Two women were capitally convicted of robbing a young girl named Canning, and afterwards confining her under cucumstances of great cruelty for twenty-nine days without sustenance, except a quartern loaf and a pitcher of water. Public odium was intensely excited against the prisoners, and they very narrowly escaped execution, and yet it was clearly ascertained that the charge was a fabrication in order to conceal the prosecutrix's misconduct during the period of her absence from her master's house.^ Canning was afterwards convicted of perjury, and sentenced to be transported ; and upon her trial thirty-eight witnesses, most of them unconnected with each other, spoke to the identity of one of her unfortunate victims, and proved 1 State V. Murray, 63 N, C. 31. a State v. Reed, 39 Vt. 417. » Brennan v. People, 7 Hun, 171 ; otherwise in England, Rex v. Holmes, L. R. 1 C. C. R. 334. * Camp V. State, 3 Ga. 419 ; State v. Forshner, 43 N. H. 89 ; State v. White, 35 Mo. 500 ; Pratt v. State, 19 Oliio St. 217 ; Reg. v. Clay, 5 Cox C. C. 146 ; Reg. v. Sissingfcon, 1 Cox C. C. 48 ; Reg. v. Dean, 6 Id. 23 ; Reg. v. Rooke, 6 Id. 196. * Reg. V. Riley, 16 Cox C. C. 191. See also People v. Benson, 6 Cal. 221 ; People V, Jackson, 3 Park. C. R. 391. 6 State V. Forshner, 43 N. H. 89 ; State v. Knapp, 45 N. H. 148 ; Dorsey V. State, 1 Tox. Crim. App. 33 ; Woods v. People, 55 N. Y. 515 : Com. v. Regan, 105 Mass. 198. 7 Rex V. Squires & Wells, 19 St. Tr. 275. 244 CONDUCT OF THE COMPLAINING PARTY. '1; a circumstantial alihi} Nine persons were convicted on a charge of conspiracy to carry off from the house of her guard- ian a young lady of seventeen years of age, in order to pro- cure her clandestine marriage with a young man of low condi- tion for whom she had formed an attachment, and with whom she had indulged in vulgar familiarities. She gave her testi- mony in a manner apparently so artless and ingenuous that she greatly prepossessed the judge, and so favorably impressed the jury that they stopped the prosecutor's counsel when about to reply, and returned a verdict of guilty .2 Her story Avas nevertheless discovered to be a fabrication, for the purpose of extricating iiorself from the shame of her levity and miscon- duct, and she, as well a& a witness who had corroborated her story, were afterwards convicted of perjury .» Miscreants, and among them ever. 1 le inferior ministers of the law, have con- cocted and procured the commission of robbery and other crimes for the purpose of obtaining the pecuniary rewards formerly given by act of Parliament for the apprehension and conviction of offenders.* It ih frequantly, therefore, of the highest importance to in- vestigate the motives of the complainant party, and to ascer- tain whether they are such as may have led to the institution of a false charge. The just course of inquiry in such circum- stances was thus laid down by Mr. Justice Coltman. " The jury," he said, "had nothing to do with the prosecutor's motives, exce])t so far as, if it should appear chat there was any motive for tbe prosecution, of an unworthy character, made out, it would then be their duty to watch such a case much more narrowly than one in which no such motive appeared. Even in that case, however, if the evidence satisfied them of the truth of the charge, they had no right to look at the motives that had induced the prosecutor to prefer it, but Avere bound to say that the accused person was guilty.^ 1 Rex V. Canning, 19 St. Tr. 667. 2 Rex V. Bowditch and others, Dorchester Summer Ass., 1818, coram Mr. Justice Park, Short-hand Rep. 8 Rex V. Whitby, anJ ttex v. Glenn, K. B. Guildhall, Oct. ia20. * Rex V. M'Daniel and others, Foster's Rep. 121 ; Re? v. Vaughan and others. Sessions Papers, 1816 ; Reg. v. Delahunt, Du'.iin, 1842 ; cited in Best's Princ. , ut supra, 533. * Reg. V. Coyle, C. C. C, Oct. Sess.. 1851. 9 CHAPTER IV. THE CONDUCT OF THE ACCUSED AS RAISING A PRESUMPTION OF INNOCENCE. A. PRESUMPTION of innocencG may be created by the language, conduct, and demeanor of the pari y^ charged with crime ; and it is upon this principle that the in ^enuous and satisfactory ex- planation of circumstances of suspicion always operates in favor of the accused. Mr. Justice Earlo said he thought it was extremely important, as much for the protection of innocence as for the discovery of guilt, that the accused should have an opportunity of making a statement;^ and the Lord Justice Clerk, in a Scotch case, said that the declaration of a prisoner, if fairly given, aiivi founded in truth, often had a very favor- able affect.'' It is evident, however, that this kind of presumption must be attended with much uncertainty, and in its application re- quire the exercise of great circumspection. A prisoner was not allowed to prove that when he heard of the murder of Avhich he was accused he appeared surprised, the court saying that he could no more make his appearance or conduct evidence than he could his declarations or admissions.'"* The deportment of innocence may be simulated, and from the anomalies of human nature, it may be difficult if not impracticable in some cases to determine what is the natural and suitable conduct to be ex- pected from a party influenced by the pressure of an accumu- lation of circumstances at once threatening and fallacious. It is certain that innocent persons have drawn upon themselves the punishment of crime by conduct apparently consistent only with guilt, but which has erroneously been resorted to as likely to divert or repel unjust suspicion ; of which an instructive case 1 Reg. V. Baldwin, 21 L. J. M C. 130. "^ Rex V. Wishart, 1 Syme's Jud. Rep. App. 33. « Campbell v. State, 33 Ala. 44. 245 H S'li Ji III 246 THE CONDUCT OF THE ACCUSED is mentioned by Sir Edward Coke.» " In the county of War- wick," says he, "there were two brethren; the one having issue a daughter, and being seized of lands in fee, devised the government of his daughter and his lands until she came to her age of sixteen years, to his brother, and died. The uncle brought up his niece very well, both at her book and needle, etc., and she was about eight or nine years of age ; her uncle for some offence correcting her, she was heard to say, ' Oh 1 good Uncle, kill me not ! ' After which time the child, after much inquiry, could not be heard of, whereupon the uncle, being suspected of the murder of her, the rather that he was her next heir, was upon examination, anno 8 Jac. Regis, com- mitted to the jail for suspicion of murder ; and was admonished by the justices of assize to find out the child, and thereupon bailed until the next assizes. Against which time, for that he could not find her, and fearing what would fall out against him, he took another child, as like unto her, both in i^erson and years, as he could find, and apparelled her like unto the true child, and brought her to the next assizes ; but upon view and examination she was found not to be the true child ; and upon these presumptions he was indicted, found guilty, had judgment, and was hanged. But the truth of the case was, that the child, being beaten over-night, the next morning, when she should go to school, ran away into the next county ; and being well edu- cated she was reared and entertained of a stranger ; and when she Avas sixteen years old, at which time she should coir a to her land, she came to demand it, and was directly proved to be the trtie child." The learned author adds, " "We have reported this case for a double caveat ; first, to judges, that they in cases of life judge not too hastily upon bare presumption, and secondly, to the innocent and true h m, that he never seek to excuse himself by false or undue means, lest thereby he, oflFend- ing God (the author of truth), overthrow himself as the uncle did." From the foregoing considerations it follows that our judg- ments in regard to the conduct of parties under accusation for crime must occasionally be modified by allowances for human weakness and inconsistency, which can in no degree be ad- mitted as qualifying the obligation of entire truthfulness and 1 Third Inst. c. 104, 232. AS RAISING A PRESUMPTION OF INNOCENCE. 247 consistency justly exacted from those who voluntarily become the accusers of others. Since falsehood, concealment, flight, and other like acts are generally regarded as indications ot conscious guilt, it naturally follows, that the absence of these marks of mental emotion, and still more a voluntary surrender to justice, when the party had the opportunity of concealment or flight,* must be con- sidered as leading to the opposite presumption ; and these con- siderations are frequently urged with just effect, as indicative of innocence ; but the force of the latter circumstance may be weakened by the consideration that the party has been the ob- ject of diligent pursuit,' or, as said by Lord Campbell, though the party may have abstained from flight from a sense of in- nocence, he may have done so from thinking that, from the course he had taken, nothing would be discovered against him.' One indicted for murder set up that ho had done the shooting in self-defence, and relied on the fact that he had surrendered himself as indicating the truth of his defence, but the court said that the prisoner, knowing the shooting had been wit- nessed, chose rather to surrender himself than to flee the coun- try, thinking that, perhaps, by the oaths of himself and his companions, true or untrue, he could establish his contention.* It must be also remembered that flight and other similar in- dications of fear may be referable, not to the precise offence charged, but to other circumstances, as to disordered affairs,^ or to guilt of another and less penal character than that in- volved in the particular charge.^ 1 Menoohius, ut supra, lib. v. pr. 50. » Rex V. Buish, 1 Syrae's Justiciary Rep. 277. « Reg. V. Palmer, Short-hand Report, ut supra, 310. * Barnards v. State, 88 Tenn. 181. « Rex v. Crossfleld, 26 St. Tr. 217. • Rex V. Sc6fteld, 31 St. Tr. 1061. And see the language of Tindal, C. J., in Rex v. Frost, Gurney's Rep. 766, 749 ; and of the Lord Justice Clerk Boyle, in Rex v. Hunter, and others, Court of Justiciary, 1838, Short-hand Report, 868. CKAPTSR V. I THE EFFECT OF THE ABSENCE OF APPARENT MOTIVE TO COMMIT THE CRIMF LilAUGhiJ. Since an action without a motive would be an effect without a cause, a presumption is consequently created in favor of innocence from the absence of all apparent inducement to the commission of the imputed offence.» In a case depending mamly on circumstantial evidence it was said that the want of motive was an important consideration bearing upon the prob- ability in regard to guilt .2 But a request to charge that the absence of motive on the part of the defendant for the commis- sion of the crime charged might be considered by the jury as favorable to the defendant was held by the Supreme Court of Georgia to have been properly refused .3 The investigation of human motives is often a matter of great difficulty, from their latency or remoteness ; and experience shows that aggravated crimes are sometimes committed from very slight causes, and occasionally even without any apparent or discoverable motive. It is impossible to see the operations of the human mind. The character, instincts, and intents of persons differ so that what might be an adequate motive for one for a certain act will not be for another.* This particular presumption would, therefore, seem to be applicable only to cases where the guilt of the in- dividual is involved in doubt ; and the consideration for the jury in general is rather whether upon the other parts of the evi- dence the party accused has committed the crime, than whether he had any adequate motive.^ And while absence of motive for the crime may be considered 1 This was a point strenuously insisted on by tlie defence in the late famous Durant case. See article on the Durant case by Prof. Jno. i. Wig- more, Am. L. Rev. vol. xxx. No. 1, p. 29. a People V. Paolick, 7 N. Y. Cr. R. 30. « Moore v. State, 64 Ga. 449. See remarks of Platt, J., in People v. Rubensteine, N. V. Oyer and Term. See Rice Cr. Ev. § 344. ' ' ^^^ ^Ig*^"' •^'^^ Abbqtt's charge in Re?? v, DgnnaU, Rep., rt mpra, 130, EI'TECT OF THE ABSENCE OF APPARENT MOTIVE. 249 where guilt is doubtful, it is immaterial where the proof of guilt is satisfactory to the jury.^ In a recent case' a de- fendant party's motives, even where they are unquestion- ably of a criminal character, may nevertheless be susceptible of different interpretations, and indicative of very different degrees of moral and legal turpitude. Concealment of the death of an illegitimate child and the clandestine disposal of its body, for instance, may be accounted for, either by a purpose to sup- press evidence of a murder, or merely by the desire of preserv- ing the reputation of female chastity. The fact that one accused of homicide knows where the body of the murdered person is concealed, while it may demonstrate the fact that he was cognizant of the murder, does not prove that he committed the deed, or even that he was an accomplice, but is only circumstantial evidence from which guilt may be inferred, and does ny the Criminal Court of Appeal that the conviction against t ,o wife could not be supported.^ In all such cases, every sound principle of interpretation and judgment requires, that in the absence of contrary proof the act shall be referred to the operation of the least guilty motive ; conformably to the 1 State V. MiUer, 9 Houst. 564. » Stone r. State (Ala.), 17 So. 114 8 Elizabeth v. State, 27 Tex. Crim. App. 329. * Reg. V. M'Clarens, 3 Cox's C. C. 425 ; S. P. Reg. v. Brookes, 6 Id. 147. « Reg. t'. Boober, 5 Cox's C. C. 272. « Reg. V. Smith and wife, 37 L. J. M, C. 304, 260 EFFECT OF THE ABSENCE OF APPARENT MOTIVE maxim, prmHumptiojudicntur potentior qiim eat henignior} Of this evidont principle of justice the old English statute 21 Jac. I., 0. 27 (now no longer in force), which made the concealment of the death of an illegitimate child by its mother a conclusive presumption of murder, unless she (jouhl make proof by one witness, at least, that the child was born de.id, was a flagrant violation. It is on this principle that, when a special intent is made by statute an essential ingredient of any offence, as in the cases of assault with intent to murder, or to rob, or to commit a felony, or to prevent lawful apprehension or detainer, such special intent must bo proved by dinnt evidence or by cir- cumstances which necessarily or reasonably lead to the infer- ence of such intention. Thus a charge of the statutable offence of throwing upon or otherwise applying to any person any cor- rosive fluid or other destructive matter, with intent to burn, maim, or do some bodily harm, is not sustained by proof of throwing a corrosive fluid for the purpose of burning the clothes." And on the trial of a man for throwing a stone at a railway carriage with intent to endanger the safety of the pas- sengers, where it appeared that the prisoner threw a stone just as the train was setting off, at a passenger against whom he had been much excited, Mr. Justice Erie told the jury that they must be sa f isfied that the intent to endanger the safety of any person travelling by the railway must have been an intent to inflict some grievous bodily harm, and such as would sustain an indictment for assaulting or wounding a person with intent to do some bodily harm ; but that as that is a question of degree, which it is impossible to define further than in those terms, it must be a question for the jury upon the facts whether there had been such an intent.^ The prima facie presumption in favor of innocence, from the absence of all apparent motive, is greatly strengthened where all inducement to the commission of the imputed crime is opposed by strong counteracting motives ; as where a party indicted for arson with intent to defraud an insurance office had furniture on the premises worth more than the amount of his insurance,* or where a party accused of murder had a direct > Menoch. ut supra, lib. v. pr. 29. ' Reg.u. Coppard, Kingst. Wint. Asa., 1855, coram Mr. Justice Crompton ; and see Rex v. Ooke and Woodburne, ut supra. « Reg. V. Rooke, 1 F. & F. 107. * Rex V. Bingham, Horsham Spr. Ass., 18U- TO COMMIT THE CRIME CHARGED. 951 interest in the continuance of the life of the party supposod to have been munlerod.' A fortiori would this prt^sumption seem to apply where the life of the suspectecl party haa been endan- gered, as the consequence of the supposed criminal act; as where a party charged with murtler by poisoning had herself partaken of the poisoned ffXKl:* but this circumstance, of apparently favorable presumption, may have been resorted to as an artifice to avert suspicion, especially if the quantity taken has not been sufficient seriously to endanger life.^ ' Rex V. Downing, infra. " Reg. ». Hawkins, Stafford Summpr Asa.. 1889. • Rox V, WesconilH), luui Rexw. Nairn, ut supra, 90. And s*«o Rex v. Fen- ning, coram the Recorder of Loadon, Seas. Papers, 1815, it\fra. CHAPTER VI. DECLARATIONS AND THREATS OP THE DECEASED. The importance of declarations of the defendant as indi- cating a disposition to commit the act charged has been dwelt upon in an earlier chapter. But in murder trials it frequently happens that the defendant claims that he committed the act in self-defence. In such cases evidence that the deceased had made threats indicating an angry and revengeful spirit towards the prisoner, and a determination to, attack him, is admissible. Such evidence is introduced for the purpose of throwing light upon the attitude of the parties towards each other,! the reasonableness of the defendant's fears,^ and as tend- ing to show that the deceased was the aggressor.^ But evidence of antecedent threats is inadmissible in behalf of the defendant to support a plea of self-defence where there has been no evidence of any overt act by the deceased.* And such overt act must consist of a hostile demonstration of such a character as to impress on the defendant the imminence of the danger of loss of life or great bodily harm.^ But it is sufficient if there is the slightest evidence tending to show a hostile demonstration which may reasonably be regarded by the accused as placing him in imminent danger of life or of great bodily harm.^ As to the admissibility of evidence of threats by the deceased not communicated to the defendant previous to the fatal affray, the decisions have not been uniform ; but by the 1 Dupree v. State, 33 Ala. 380 ; 73 Am. Dec. 422 ; State v. Evans, 33 W. Va. 417 ; Wood v. State, 92 Ind. 269. a Karr v. State (Ala.), ; 14 So. 851 ; Pitman v. State, 22 Ark. 354. 8 Basje V. State (Neb.), 63 N. W. 811 ; Cannon v. State, 60 Ark. 564. * Hill V. State (Miss.), 16 So. 901 ; State v. King, 47 La. Ann. 28 ; State v. Vallery, 47 La. Ann. 182 ; Green v. State, 69 Ala. 6 ; Sen- v. Campbell. 9 Mont. 16. 6 State V. Stewart, 47 La. Ann. • Garner v. State, 28 Fla. 118. f DECLARATIONS AND THREATS OF THE DECEASED. 253 weight of modern authority, it seems that evidenco of com- municated threats is admissible for several purposes. The remarks of Mr. Justice Grover, in Stokes v. People, are suffi- ciently valuable to merit an extended quotation. The learned Judge said : — " Evidence of threats made by the deceased, which had been communicated to the accused, was received by the court. Proof of the latter facts was competent, as tending to create a belief in the mind of the accused that his life was in danger, or that he had reason to apprehend some great bodily harm from the acts and motions of the deceased, Avhen, in the absence of such threats, such acts and motions would cause no such belief. But why admissible upon this ground 1 For the reason that threats made would show an attempt to execute them probable when an opportunity occurred, and the more ready belief of the accused would be Justified to the precise extent of this probability. But an attempt to execute threats is equally probable, when not communicated, to the party threatened as when t'ley are so; and when, as in this case, the question is Avhether the attempt was in fact made, Ave can see no reason for excluding them in the former that would not be equally cogent for the exclusion of the latter, the latter being admissible only for the reason that the person threatened would the more readily believe himself endangered L.-' the probability of an attempt to execute such threats. Threats to comiiut the crime for which a person is upon trial a^-e constantly received as evidence against him, as circum- stances proper to be considered in determining the question whether he has, in fact, committed the crime, for the reason that the threats indicate an intention to ('.o it, and the existence of this intention creates a probability that he has in fact com- mitted it. Had the deceased, just previous to this going into the hotel where the transaction occurred, declared that he was going there to kill the accused, and that he was prepared to execute this purpose, we think the evidence would have been competent upon the question whether he had in fact made the attempc when that question was litigated. And yet there is in principle no difference between this and the testimony offered and rejected. The difference is only in degree." ^ And an examination of the authorities discloses that threats 1 53 N. Y. 174. «' »r f. js54: DECLARATIONS AND THREATS OF THE DECEASED. of the deceased not communicated to the defendant are re- ceived in evidence for the following purposes : 1. As corroborative and explanatory of communicated threats ; ^ 2. To prove the state of feeling entertained by the deceased towards the accused ; ^ 3. To throw light upon the inquiry as to who began the aflFray.3 1 Holler V. State, 37 Ind. 57 ; 10 Am. Rep. 74 ; State v. Williams, 40 La. Ann. 168. » Keener v. State, 18 Ga. 194 ; 63 Am. Dec. 269. » State V. Bailey, 94 Mo. 311 ; Sparks v. Com., 89 Ky. 644 ; Potter v. State, 85 Tenn. 88. See Wilson v. State (Fla.), and note thereto, 17 L. R. A. 654. 11'! ^' a re- lied ised the ) La. >r V. \. R. CHAPTER VII. THE EXPLANATION OP UNFAVORABLE CIRCUMSTANCES. As is the case Avith other presumptions, so the inference of guilt from the recent possession of stolen property may be rebutted by circumstances which create a counter-presump- tion : as where the property is found in the prisoner's posses- sion under circumstances Avhich render it more probable that some other person Avas the thief. Therefore, where, on the trial of a mother and her two sons for sheep-stealing, it was proved that the carcass of a sheep was found in the house of the mother, it Avas considered that the presumption arising from the possession of the stolen property immediately after the theft Avas rebutted so far as respected her, by the circum- stance that male footsteps only Avere found near the spot from Avhich the sheep had been stolen.^ A Avoman was tried for the larceny of five saAvs Avhich had been stolen from the Avorkshop of a hat-block turner during the night. There was a hole in the building large enough for a person to have crept through it. On the foUoAving day he pledged tAvo of the saAVs with a paAAmbroker in the neighborhood. On the foUoAV- ing night the house of the prosecutor Avas broken open and a number of articles stolen, and no communication existed betAveen the house and the AVorkshop. Tavo days afterAvards the prisoner Avas taken into custody for this theft, in the house of a man who Avas himself charged AAuth having com- mitted the burglary. Mr. Baron Gurney said it was im- probable that the female should have taken these saAvs, but that it Avas extremely probable that she should have been employed by another person to paAvn them ; that it Avas hardly a case in Avhich the general rule could appl/. and that it woukl be safer to acquit the prisoner.'* Circumstances of conduct also may repel this prima facie presumption ; as Avhere the 1 Rex V, Arundel and others, 1 Lewin's C. C. 115. « Rex V. Collier, 4 Jurist, 703. 255 256 EXPLANATION OF UNFAVORABLE CIRCUMSTANCES. prisoner, a few days after the robbery of a large quantity of plate in London, sold to a dealer in gold and silver some silver articles marked with the prosecutor's crest partially obliterated, which had formed part of the stolen property. Mr. Baron Bramwell said it was a circumstance in the prisoner's favor that he had disposed of the silver at a place where he had been known for several years, and had been in the habit of bringing gold and silver for sale, and did not appear to have made any attempt at secrecy. The prisoner was acquitted. i Circumstances of apparently the most unfavorable presump- tion may be susceptible of an explanation consistent with the prison r's innocence, and really be irrelevant to the particular inference sought to be derived from them ; 2 or they may be opposed by circumstances which weaken or neutralize, or even repel the imputed presumption, and induce a stronger counter- presumption,3 to every allegation of the existence of which justice demands that dispassionate and candid consideration be given. On the trial of a shoemaker for the murder of an aged female, it appeared that his leathern apron had several circular marks made by paring away superficial pieces, which it was supposed had been removed as containing spots of blo(>d, but it was satisfactorily proved that the prisoner had cut them off for plasters for a neighbor.* A policeman on his examination before the coroner, where the question was, whether a young woman had been murdered or had committed suicide, swore that a piece of rope found in the prisoner's box appearetl to Lave been cut from the same piece that was round the neck of deceased ; but on the trial he acknowledged that lie had been mistaken ; the two pieces of rope had in the interim been ex- amined by a rope-maker, and were found not to corresjjond, one piece being twisted to the right, and the other to the lef t.^ The prisoner was convicted upon the general evidence, and exe- cuted. Two men were tried for killing a sheep with intent to steal the carcass. The prosecutor had three sheep on a com- mon, on the 14th of December, on which evening the prisoners, one of Avhom had a gun, were seen near the common driving seveial sheep before them. One of the wituesses, when near 1 Reg. V. Benjamin, C. C. C, June, 1858. « Rex V. Thornton, Rex v. Looker, infra. s Ibid. * Rex V. Fitter, before Mr. Justice Taunton, Warwick Summer Ass., 1834. ' Reg. V. Drory, coram Campfell, L. C. J., Clielmsford Spr. Ass., 1851. _-«5a!a!»8f^iiaii EXPLANATION OF UNFAVORABLE CIRCUMSTANCES. 257 the prosecutor's house, heard the report of a gun in the direc- ti m of the common, and, having a suspicion of the object of the prisoners, went to the prosecutor's iiouse ant- comraunicate<;'. his suspicion, in consequence of which the prosecutor ap.d the witness went to the common on which the sheep had been, left feeding, and discovered that one of them Avas not there. T^e prisoners were appreheniled the same night at their respective homes. In the lodgings of one of the prisoners a gun was found which had been recently fired, and some shot and powder wrapped m a piece of newspaper, from which two smaU pieces had been torn ; and upon the person of the other prisoner a knife was found discolored witli blood. No traces were found of the lost sheep at that time, but the next day the carcass was found, concealed by fern, on the common; the sheep had been shot and also stuck in the neck. Two days afterwards, on searching near the spot where the carcass was found, two small pie s of nev/spaper were discovered, singed and bearing marks of having been fired from a gun, which on comparison were found to be the identical pieces so torn from the paper in question. Notwithstanding these apparently con- clusive cu'cumstances, the jury acquitted the prisoners, as it appeared from the cross-examination of one of the witnesses that he had seen them shooting on the common on the previous Sunday.^ A man was tried for murder on Harwich Moor, imder circumstances which were extremely suspicious ; but the presumption against him was greatly weakened, if not entirely destroyed, by the circumstance that six shots extracted from the deceased's brain all corresponded in weight with the shot known as No. 3, while the shot in the prisoner's bag contained a mixture of Nos. 2 and 3, and the charge in his gun Avas foun^ to contain the same mixture.^ A druggist's apprentice was tried for the murder, by prussic acid, of a female servant who Avas pregnant by him, and the case Avas one of much suspicion ; but there Avas a strong counter-presumption, from the fact that the dece. -''cl '.ji^ made preparations for a miscarriage on the very nighu m ^jaestion.^ In a prosecution for murder where it 1 Rfcg V. Oo.iituage and Mossingham, coram Mr. Serjeant Atcherlky, Winchester Spring Ass., 184'?. * Reg. V. Whittle, Liverpool Spring Assizes, 1839, coram Mr. Baron Al- DERSON. « Reg. I'. Freeman, Leicester Spring Assizes, 1839, coram Best, L. C. J. And see Rex v. Barnard, 19 St. Tr. 815. 17 Ill ii ' r 258 EXPLANATION OF UNFAVORABLE CIRCUMSTANCES. appeared that the mortal wound had been inflicted by an axe which was found in the snow with no tracks leading to it, and that it could have been thrown from a path near the house where the murder was done, and there was evidence that respondent could not have thrown it so far, it was held error to refuse an instruction that if the axe was thrown such a dis- tance as to satisfy the jury that the defendant could not have thrown it, then the jury should be satisfied that she was not guilty. In the language of the court, " every circumstance developetl on the trial showed that the person who committed the crime actually did throw the axe. It was shown no other could have thrown it away ; and if the jury were satisfied that the respondent could not liave thrown it where it was found, they wero l*ound to acquit. It was something more than a strong circumstance. It was conclusive proof by the facts developed upo.' the trial, that the respondent could not have been guilty of the oiT'-nce if sl.r could not have thrown the axe where it v.^as found." ^ Nor must it be overlooked, as one of the sources of error and fallacy in these cases, that circumstances of adverse presump- tion, apparently the most conclusive, have been fabricated by the real ol?e: \i^i, in order to preclude suspicion from attaching to himse''' and to cause it to rest upon another ; as where a party wus convicted upon an indictment for privily convey- ing three ciucats into the prosecutor's pockets, with intent to charge him Avith having robbed him of the same ;2 or where an offender su^-reptitiously put on the shoes of another person w^hile engaged in the commission of crime, in order that the impressions might lead to the inference that the crime was committed by him ;3 or where the guilty person not only wore the shoes but also used, in committing the crime, the gun of one who was known to be at enmity with the deceased. 1 People V. Peterson, 93 Mich. 27. « Rex V. Simon, 19 St. Tr. 680 ; but upon a new trial the defendant was acquitted. * See the cnse of Mayenc, Gabriel, ut supra, 403. And see other such cases in Wharton'b Crim. Law, and in the Theory of Presumptive Proof, App.; but Mr. Justice Park, in Rex v. Thurtell, Hertford Winter Assizes, 1824, said that the latter were of no authority, and possibly mere romance. CHAPTER Mil. EVIDENCE OF CHARACTER. In forming a judgment of criminal intention, evidence that the party had previously borne a good character is often highly important.^ In doubtful cases, especially, good charac- ter is generally entitled to great consideration.^ Where the evidence is wholly circumstantial,^ and the testimony for and against the accused is nearly balanced, the weight of a good character ought to exert a potent influence in Kis favor.* But on a trial for murder an instruction that proof of the defend- ant's good character for peace " may be sufficient to generate a reasonable doubt of his guilt, although no such doubt would 1 Coffee V. state, 1 Tex. App. 548. a Riley's Case, 1 City Hall Rec. 23 ; People v. Paolick, 7 N. Y. Cr. R. 30 ; People V. Kirby, 1 Wheel. Cr. Cas. 64. s But an instruction that only in cases of circumstantial evidence, or where the witnesses for the prosecution are of doubtful credit, is proof of the good character of the defendant proper to rebut any presumption of guilt, is defective and improper. Stat^ v. Kinley, 43 Iowa, 294 ; State v. Rodman, 63 Iowa, 456 ; State v. Beebe, 17 Minn. 241. * Kistler v. State, 54 Ind. 400 ; McQufVii v. State, 82 Ind. 72 ; Green v. Cornewell, 1 City Hall Rec. 11. If the case hangs in even balance, evidence of previous good character should make it preponderate in defendant's favor. Per Lord Ellenborough in Rex v. Davison, 31 St. Tr. 217 ; State V. Manluflf, 1 Houst. Crim. R. 209. And see tlie language of L. C. J. TlN- DALL, in Reg. v. Frost, Gurney's Rep. 749, But an instruction is too broad in which the jury are told that evidence of good character is proper in all criminal cases, and in doubtful cases frequently becomes material and is suflacient to turn the scale in favor of the accused ; and should tV iy be in doubt as to the facts or guilt of the defendant as charged, they may give evidence of previous good character such weight as will turn the scale in his favor and find him not guilty. State v. McGinnis, 6 Nev. 109. An instruction declaring that in all doubtful cases of guilt general good character is to be regarded as a strong circumstance in favor of the accused is technically wrong. The word " strong " should be omitted. Schaller v. State, 14 Mo. 502. 250 i! IM. 'MM I. 260 EVIDENCE OF CHARACTER. have existed but for such good character," gives undue prom- inence to proof of character.^ But the benefit of a good character is not restricted to minor offences, nor to cases where a doubt of the defendant's guilt may exist.^ If there is a reasonable doubt of guilt, the defendant is entitled to an acquittal whether his character is good or bad.'' This evidence is entitled to be considered in all criminal cases, where the crime chai'ged is atrocious and where the evidence tends strongly to establish the guilt of the ac- cused.* If, however, the evidence of guilt be complete and 1 Scott V, State (Ala.), 10 So. 935. See also Paul v. State (Ala.), 14 So. 634 ; Goldsmith v. State (Ala.), 16 So, OliU. Ami the jury ought not to be tolJ liiat if they find that the accused'H former life was such tliat the crime charged would not reasonably and naturally Ihid place in it, they may per- mit such conclusion to raise a reasonable doubt of his guilt, although the e 'idprice satisfies them tiiat he committed the crime charged. Langford V. State, 83 Fla. 233. 2 People V. Lee, 72 Cal. 623 ; State v, Barth, 25 S. C. 175 ; 60 Am. Rep. 496 ; United States v. Roudenbush, 1 Baldvv. 514 ; United States r. Gunnell, T) Mackey, 196; State v. Edwards, 13 S. C. 30 ; Stewart v. State, 22 Ohio St. 477 ; State v. Henry, CO N. O. 65 ; State v. O'Connor, 81 Mo. 389 ; Baker v. State, 53 N. J. L. 45 ; People v. Hancock, 7 Utah, 170 ; Long r. State, 23 Neb. 33 ; Felix v. State, 18 Ala. 720 ; Hall v. State, 40 Ala. 698; People r. Ashe, 44 C.-vl. 288. » Holland v. State, 131 Ind. 568. ♦ Parrisl' v. Com., 82 Va. 1 ; Jupitty \\ People, 34 111. 516; Remsen v. People. 43 N. ^. 9 ; People v. Stott, 4 N. Y. Cr. R. 300 ; State v. Horning, 49 Iowa, 158 ; State v. Northrup, 48 Iowa, 583 ; 30 Am. Rep. 408 ; State v. Gustafson, 50 Iowa, 194 ; State v. LindU-y, 51 Iowa, 313 ; 33 Am. Rep. 139. Evidence of good character of tlie accused may be shown in misdemean- ors. Rex V. Harris, 32 Car. II., cited in McNally. Ev. *320 ; Rex v. Reogh (1798), cited in McNally, Ev. *320 ; Rex v. Brown (1798), cited in McNally, Ev. *320. Shaw, C. J., said in Webster's Case, that "Where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things, and beyond common experience ; it is so manifest that the offence, if perpetrated, must have been influenced by motives not frequently operating oji the human mind ; that evidence of character, and of a man's habitual conduct under common circumstances, must be considered far inferior to what it is in the accusations of a lower grade." These remarks were referred to and disapproved in a New York case, where it was said that Webster's Case was a peculiar one. (/ancemi V. People, 16 N. Y. They were quoted again by the court in the trial of McLain v. Com. , 99 Pa. St. 86, with the following additional remarks: "Evidence of good character, when proven to exist, is not a mere make-weight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence. A case n ay be so made out that no previous char- acter, however good, can make it doubtful ; but there may be cases in EVIDENCE OF CHARACTER. 261 convincing, testimony of previous good character cannot and ought not to avail.^ The reasonable operation of such evidence is to create a presumption that the party was not likely to have committed the act imputed to him;'-* which presumption, how- ever weighty in a doubtful case, cannot but be irrelevant and unavailing against evidence which irrefragably establishes the fact. But it has been held that instructions regarding evidence as to character, to the effect that it was not to be allowed to weigh against evidence in itself satisfactory, are calculated to mislead. " Good character," said Chief Justice Cooley, " is an important fact with every man ; and never more so than when he is put on trial charged with an offence which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases when it be- comes a man's sole defence, and yet nuiy prove sufficient to out- weigh evidence of the most positive character. The most clear and convincing cases are sometimes rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skilful web of suspicion and falsehood which conspirators have been able to weave. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evi- dence ; and being in, the jury have a right to give it such a Aveight as they think it entitled to." ^ which evidence given against a person withoiit character would amount to certainty, in which a high character would produce a reasonable doubt, or, indeed, actually outweigh evidence which might otherwise appear conclusive." 1 Rex V. Haigh, 31 St. Tr. 1123 ; Riley's Case, 1 City Hall Rec. 23 ; People V. Haggerty, 1 City Hall Rec. 65 ; Freeland's Case, 1 City Hall Rec. 83 ; Hogan V. State, 36 Wis. 336 ; U. S. v. Means, 43 Fed. Rep. 599 ; U. S. v. Freeman, 4 Mason, 505 ; U. S. v. Newton, 53 Fed. Rep. 275 ; People v. Kirby, 1 Wlieel. Crim. Cas. 64 ; United States v. Johnson, 26 B'ed. Rep. 683 ; Cox well v. State, 66 Ga. 309 ; United Slates v. Smith, 2 Bond, 323 ; Bernhardt v. State, 83 Wis. 23 ; State i'. AVoUs, 1 N. J. L. 434 ; 1 Am. Dec. 211 ; Com. v. Robinson, Tliacher Crim. Cas, 230 ; Com. v. Hardy, 2 Mass. 317. Where the defendant admits the elements that constitute the crime, evidence of good character is of no avail. U. S. v. Brontin, 10 Fed. Rep. 730 ; U. S. V. Allen, 10 Bisa. 90. And t'ae fact that in such a case the State gave in proof the bad character of the accused before the accused had initiated the inquiry by evidence of good character, is an unimportant error. Hartless v. State, 32 Tex. 88. « State V. Ormiston, 66 la. 143. * People v. Garbutt, 17 Mich. 9. Ill ;i n hi 262 EVIDENCE OF CHARACTER. In no case should the court instruct that evidence of good character is of no avail. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe in view of the improbabilities that a person of such character could be guilty of the offence charged, that the other evidence in the case is false or the witnesses mistaken.' Where the jury have been charged that in a doubtful case where the evidence hangs even, proof of gootl character would turn the scale, a further charge that if the crime had been con- clusively proven to the satisfaction of the jury beyond a reason- able doubt, in that case any good chanicter of the defendant does not avail him, does not remove from the consideration of the jury the evidence of good character upon the question of the guilt of the defendant.^ When the law says that good character alone may be able to g-inerate a doubt, it does not mean that it may be considered independently of the other evidence in the case, but in connec- tion with it.^ Upon the question of guilt or innocence, the jury should consider all the evidence, including that in relation to character,* and if therefrom they believe the accused guilty 1 Kistler v. State, 54 Ind. 400 ; State v. Sauer, 38 Minn. 438 ; Remsen v. People, 43 N. Y. 6 ; Maclin v. State, 44 Ark. 115. Mass. Gen. Stat., chap. 115, § 5, provides that the courts shall not charge juries with respect to matters of fact. Com. v. Leonard, 140 Mass. 473 ; 54 Am. Rep. 485. a People v. Sweeney, 133 N. Y. 609, afif'g 36 N. Y. S. R. 75. 8 Pate V. State, 94 Ala. 14 ; People v. Laird (Mich.), 60 N. W. 457. It is erroneous to instruct that the defendant may put his good reputa- tion before the jury as a " kind of make-weight in his favor, if there is a pin ,h in the case." State v. Daley, 53 Vt. 442 ; 38 Am. Rep. 694. " * Pharr v. State, 9 Tex. App. 129 ; Holland v. State, 31 N. E. 359 ; John- son r. State (Ala.), 16 So. 29 ; McQueen v. State, 83 Ind. 72 ; State v. Mc- Nally, 87 Mo. 644 ; Lee v. State, 2 Tex. App. 339 ; State v. Alexander, 66 Mo. 148; Territory v. Kleen 1 Wash. Terr. 183; Reg. v. Whiting, 7 Car. & P. 771; Rex v. Stannard, 7 Car. &. P. 673 ; Williams v. State, 53 Ala. 411 ; Felix v. State, 18 Ala. 720; Hall v. State, 40 Ala. 698; People V. Bowman, 81 Cal. 566 ; People v. Doggett, 62 Cal. 27 ; People v. Bell, 49 Cal. 486; Carson v. State, 50 Ala. 134; Fields v. State, 47 A!a. 603 ; 11 Am. Rep. 771 ; State v. Howell. 100 Mo. 628 ; Shropshire v. State, 81 Ga. 589; Com. v. Carey, 2 Brewst. 404; People v. Wileman, 44 Hun, 187; Stephens v. People, 4 Park. Crim. Rep. 396 ; People v. Spriggs, 33 N. Y. S- R. 989 ; Stover v. People, 56 N. Y. 315 ; Remsen v. People, 43 N. Y. 6, reversing 57 Barb. 324 ; People v. Clements, 42 Hun, 353 ; People v. Moett, 23 Hun, 60 ; People v. Lamb, 2 Keyes, 360 ; United States v, Jones, 31 Fed. Rep. 718 ; Heine v. Com., 91 Pa. 145 ; Hanney v. Com., 116 Pa. 323 ; Com. V. Cleary, 135 Pa. 64 ; 8 L. R. A. 301 ; Johnson v. State, 94 Ala. 35. iii EVroENCE OF CHARACTER. 368 beyond a reasonable doubt, previous good character should not authorize an acquittal,* The value of proof of good character must always depend upon the circumstances of each particular case." The evidence must be applicable to the nature of the charge preferred against the accused.' The inquiry is generally limited to that trait of character which has some relevancy to the question in issue, and which may be supposed to render, to some extent, the commis i of the crime charged improbable.* '• What you want to get at," said Cockburn, C. J., in a lead- ing English case, " is the tendency and disposition of the man's mind toward committing or abstaining from committing the class of crime with which ho stands charged."* To prov J, for instance, that a party has borne a good char- acter for humanity and kindness, can have no bearing in refer- ence to a charge of dishonesty.^ And in a late case it has hem held that an accused charged 1 state V. Slingerland, 19 Nev. 135, disapproving People v. Gleason, 1 Nev, 176, and Levigne's Case, 17 Nev. 445, where the jury was charged, in effect, that good character could not be considered unless, from the other evi- dence, tho jury had a reasonable doubt of the defendant's guilt. See also, as sustaining the proposition of the text, People v. Brooks, 131 N. Y. 321 ; People V. Kerr, 6 N. Y. Supp. 674 ; People v. Smith, 59 Cal. 601 ; Hirsch- man v. People, 101 III. 568 ; State v. Kilgore, 70 Mo. 546 ; State v. McMur- phy, 52 Mo. 251 ; Freeland's Case, 1 City Hall Rec. 82 ; Hathcock v. State, 88 Ga. 91 ; Armor v. State, 63 Ala. 173 ; Becker v. Com. (Pa.), May 9, 1887; Lowenberg v. People, 5 Park. Crim. Rep. 414 ; State v. Leppere, 66 Wis. 855 ; U. S. V. Jackson, 29 Fed. Rep. 503 ; Coleman v. State, 59 Miss. 484 ; State V. Douglass, 44 Kan. 618 ; Slate v. Sortor, 52 Kan. 531. The evidence of good character is to be considered in connection with the rest of the evidence as a part of the whole, and it is for the jury alone to determine whether it creates a reasonable doubt as to the defendant's guilt. Bacon v. State, 22 Fla. 51 ; State v. Donovan, 61 la. 278, An instruction that, where the defendant had established a good char- acter in a doubtful case, the law presumed he would not commit the cnme, was properly refused, where the jury were told that they might consider good character with all the other facts. State v. Underwood, 76 Mo. 630. It is error to instruct that "good character is a circumstance of great weight in doubtful cases, and of less weight in less doubtful cases." John- son V. State, 84 Neb. 257. « Wagner v. State, 107 Ind. 71. » State v. Emery, 59 Vt. 84. « Fletcher v. State, 49 Ind. 124 ; State v. Bloom, 68 Ind. 54 ; Kee v. State, 28 Ark. 155 ; State v. Dalton, 27 Mo. 12 ; People v. Josephs, 7 Cal, 129, « R. V. Rowton, L. & C. 520. « Morgan v. State, 88 Ala. 228 ; People v. Cowgill, 93 Cal. 596 ; State V. Bloom, 68 Ind. 54 ; Walker v. State, 102 Ind. 502. IMAGE EVALUATION TEST TARGET {MT-3) // .^' *\«

^^ ^a / <^p oi»* ■:> •^S^ "^ ^> J^ v'^"' ^.*;^ ^ ^ '>■ 1.0 I.I ■-IM 1^ i£ ^ III— 11^ 2.0 1= 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 . • V***^^ 2^ EVIDENCE OF CHARACTER, With murder could not show that he was of a cowardly nature.^ "^ A defendant charged with the breach of a city by-law in driving faster than a walk cannot prove that he "is a careful driver* And it is not competent to show, on a trial for adultery, that the defendant is « foolishly fond of women." a And on a trial for niurder it is not relevant that the defendant has been guilty of burglary at another time* But when the charge is that of pilfering and stealing, evi- dence of a high character for honesty ought to satisfy a jury that the accused is not likely to yield to so slight a temptation, unless the evidence of guilt is so clear and overwhelming as to leave no doubt." And it has been held that on a prosecution for carrying a pistol, where the intent is a necessary element of the offence under the statute, the defendant may* show his general character for peace and quiet.* Or on a charge of assault with intent to kill; 7 or on an indictment for rape.s And very recently it was held that evidence of the general reputation of the accused for peace and quietude is permissible m a prosecution for murder, though the murder may have been by poison.8 Negative testimony may be introduced in support of the defendant's good character.^ That the witness has never heard anything against the defendant's character is often more satis- factory than evidence of a positive character. A witness may not testify as to the character of the defendant from what he knows by personal acquaintance merely, and where he knows nothing of the reputation borne by the defendant in the neighborhood in which he lives, and where he is not in such a position with " Com. V. Worcester, 3 Pick. 463. » Walker v. State, 28 Tex. App. 503. ' Cauley v. State, 93 Ala. 71. * People V. Greenwall, 108 N. Y. 296. » Covender v. State. 126 Ind. 47 ; State v. Bloom, 68 Ind. 54 • People v Velarde. 59 Cal 457. . Lann v. State, 25 Tex.' App 495." T State V. Schleagel, 50 Kan. 325. « Hardtke v. State, 67 Wis. 552 ; Lincecum v. State, 29 Tex App 323 » Hall V. State, 132 Ind. 817. See Whart. Cr. Ev. (9th Ed.) § eoi ' Carroll V. State, 8 Humph. 315, was an indictment for murder, and the State was permitted to prove that the deceased was of a mild and pacific temper to aid the jury v.\ ascertaining the probable grade of the offence '0 Hussey v. State, 87 Ala. 121 ; Gandolfo v. State, 11 Ohio St 114 • Sfito V. Lee, 22 Minn. 407 ; 21 Am. Rep. 769. EVIDENCE OF CHARACTER. 266 Reference to the defendant's residence or circle of acquaintances as that the fact of his not hearing anything against him would have any tendency to show that nothing had been said, and that therefore his character was good.* Character can be proved only by general reputation." One's reputation consists in the general estimation in which he is held by his neighbors. This is to be ascertained by what they generally say of him. When the witness is allowed to state his personal opinion of the defendant it is as a matter of favor .^ Character may not be established by introducing evidence of particulaj acts.* The correct mode of inquiry is, as to the general character of the accused, and whether the witness tlinks him likely to be guilty of the oifence which is charged against him.» It is not permitted to adduce evidence that the prisoner has not borne a good character, an inquiry which is really irrelevant, and cal- culated to divert attention from a true point to a collateral one, since even if his general character were clearly shown to be bad, he may not have committed the act in question.* For example, general evidence that a defendant is a bad man is not admissible on a trial for forgery .7 And on a trial for the murder of a slave the State was not allowed to prove the general habit of the accused in his capacity as overseer in punishing slaves.^ 1 Polmes V. State, 88 Ala. 26. Contra, State v. Sterrett, 68 la. 76. « Thompson v. State (Ala.), 14 So. 878 ; Berneker v. State, 40 Neb. &10. •State V. Emery, 50 Vt. 84; Com. v. Mullen, 150 Mass. 394; Jones v. State, 76 Ala. 8 ; Com. v. TwitcheU, 1 Brewst. 563 ; State v. Pearce, 15 Nev, 188 ; State v. Nelson, 118 Mo. 124 ; Rex v. Jones, 31 St. Tr. 310. * Jones V. State, 76 Ala. 8. 6 Per Lord Ellenborough, in Rex v. Davisoa, 31 St. Tr. 187 ; Jones v State, 10 Tex. App. 552 ; State v. Dalton, 27 Mo. 12 ; State v. King, 78 Mo! « state V. Creson, 38 Mo. 372 ; Carter v. State, 36 Neb. ; Petty v. Com., 12 Ky. L. Rep. 919 ; Harrison v. State, 37 Ala. 154 ; State v. MerriU, 13 N,' C. 269 ; State v. Raiiisbarger, 71 Iowa, 746 ; Young v. Com., 6 Bush, 312 • State V. Donohoo, 22 W. Va. 761 ; Redman v. State, 1 Blackf. 967 ; Linton r. State, 88 Ala. 216 ; Letty v. State (Tex. Crim. App.), Feb. 25, 1893 ' Pauli V. Com., 89 ta. 432. 8 Dowling V. State, 5 Sra. & M. 664. But in State v. Summers, 98 N. C. 703, a conviction for adultery, the Supreme Court says ; " Before judgment a number of witnesses of high character testified that the defendant waa a man of bad character ; his moral character being especially bad. It was 266 EVIDENCE OF CHARACTER. i III If! II <|: I ill iiii This principle has been carried so far that, on an indictment for a paxticular offence, evidence of an admission by the accused that he was addicted to the commission of that offence was rejected as irrevelant.* And where the defendant is indicted for rioting, his connection with former riots may not be sho^vn." But in Maryland it is provided by statute that, where the defendant is charged with being a common thief, evidence of facts or reputation showing that he is habitually and by practice a thief, shall be sufficient for conviction.' In the text-books of the Civil Law, much stress is laid upon the mala fama, and in Scotland habit and repute is an admitted aggravation in charges of theft,* but there are not wanting exemplifications of the danger of permitting the influence of such evidence. If, however, the presumption arising from the evidence of previous good character be set up by the prisoner, it is then competent to neutralize its effect by the cross-examination of his witnesses. When a witness testifies that the defendant's reputation is good with respect to some quality or disposition, it is competent to show by his cross-examination that he has heard reports at variance with the reputation he has given the party. And if his admissions of hearing such adverse rumors go to the extent of showing that they were general in the neigh- borhood where the party resided, the effect of the witness's testi- mony in chief would be destroyed.* The Avitness having testified to a knowledge of the character of the accused, and that it is good, it is proper by cross-ex- amination to develop the extent of his knowledge of his char- acter and the facts upon whit, his opinion is based. That the jury may properly weigh his estimate of character, it is right that they be fully informed of the facts within the knowledge of the witness which led him to the formation of that estimate.* The extent to which the cross-examination may be carried rests largely in the discretion of the trial court. A witness was asked if he had not heard that the accused had been previously competent for his honor to have such evidence as he might deem necessary and proper to aid his judgment and discretion in determining the punish- ment to be imposed." i Rex v. Cole, Best on Pres. p. 212. a State v. Renton, 15 N, H. 169. « Md. Acts, 1864, c. 38. • 1 Dickson's L. of Ev. ut supra, 22. • McDonel v. State, 18 Cent. L. J. 374. • Reg. V. HodgkiBS, 7 C. & P. 298. EVIDENCE OF CHARACTER. 267 arrested on a charge of malicious trespass, and on another occa- sion for shooting a turnkey.* In a case in Alabama the Avitness testified that he had never heard anything against the defendant. He was asked on cross- examination if he had not heard that the defendant " wore stripes" whUe working on the streets." In a defence to rape, where testimony of the general good character of the accused was introduced, the State was allowed to ask, upon cross-ex- amination, whether a certain lewd woman had not lived for some time in his family." And on a trial for murder, the pros- ecution was allowed to ask, in cross-examining a witness who testified to the good character of the accused, if the witness had heard that the accused had shot some one else.* In a recent case in Alabama this question was thoroughly discussed ; and we cannot do better than quote the summary of the law given by McClellan, J., in his exhaustive opinion. " Opinions, rumors, and reports," said the learned judge, "con- cerning the conduct or parti ; ^.ar acts of the party under in- quiry, are the source from which in most instances the witness derives whatever knowledge he may have on the subject of general reputation ; and as a test of his information, accuracy, and credibiliiy, but not for the purpose of proving particular acts or facts, he may always be asked on cross-examination, as to the opinions he has heard expressed by members of the com- munity, and even by himself as one of them, touching the character of the defendant or deceased, as the case may be, and whether he has not heard one or more persons of the neighbor- hood impute particular acts or the conunission of particular crimes to the party under investigation, or reports and rumors to that effect. But it is not proper even on cross-examination to elicit the witness's knowledge of the conduct or of particular acts of a defendant or other person, whose character is involved in the issue." ^ But facts must be asked about and not mere accusations, » Randall v. State, 132 Ind. 539. a Holmes v. State, 88 Ala. 26. See also D Arwan v. State, 71 Ala. 352 ; State V. Merriman, 34 S. C. 576. « State V. Jerome, 33 Conn. 265. * Ogbum v. State, 87 Ga. 173. 6 Moulton V. State, 88 Ala. 116 ; 6 L. R. A. 801. See also State v. Dul- lard, 100 N. C. 486 ; State v. Austin, 108 N. C. 780 ; Engleman v. State, 3 Ind. 91 ; Gordon v. State, 3 la. 410 ; Garrett v. State, 97Ala. 18 ; Patterson V. State, 41 Neb. 538. m EVIDENCE OF CHARACTER. III 1 , whose truth is not presumed, and which therefore do not tend to impair the moral character.* An indictment is a severe ac- cusation.' Where the defendant offers hhnself as a witness he is sub- ject to cross-examination ; 3 and no modification of the rules of cross-examination will be made as to him.* ^^vitness was asked whether he had not been guilty some time before of an assault on a; person named.*^ In another case th. defendant was asked whether he had not been suspended from practising as an attorney.* On an indictment for selling lottery tickets the defendant was asked on cross-examination whether he had been convicted of sending lottery papers through the mail.^ For the purpose of discrediting witnesses testifying to the good character of the accused, they may be cross-examined as to the grounds of their belief.8 But it is not competent to repel such evidence by calling witnesses to give evidence of the prisoner's general bad character.^ Thus where a prisoher was indicted for a highway robbery, and called a witness who deposed to having known him for years, during which time he had borne a good character, it was permitted to ask the witness on cross-examination whether he had not heard that the prisoner was suspected of having committed a robbery Avhich had taken place in the neighborhood some years before ; Mr. Baron Parke said, that " the question is not whether the pris- oner was guilti/ of that robbery, but whether he was suspected of having been implicatt-d in it. A man's character," added the learned judge, "is made up of a number of small circum- 1 People V. Crapo, 76 N. Y. 288. » Ryan v. People, 79 N. Y. 594. 8 And in Massachusetts this is not confined to the matters inquired of in chief. Com. v. Morgan, lai Mass. 199. * Spies V. People, 123 111. 1 ; People v. McGungill, 41 Cal. 423 ; State v. Reegan, 5 ;Mo. App. 592 ; People v. Fong Ching, 78 Cal. 169 ; Connors v. People, 50 N. Y. 240 ; Norfolk v. Gaylord, 28 Conn. 309. On trial for an illegal sale of liquors, the defendant offered himself as a witness ia his own behalf, and then, on cross-examination, refused to answer a question relating to the sale. It was held that it was proper for the State's counsel to comment of this. State v. Ober, 52 N. H. 459. « Peopfe V. IfVhig, 2 N. Y. Cr. R. 171. 9 People V. Reaney, 4 N. Y. Cr. R. 1. ' People V. Noelke, 1 N. Y. Cr. R. 495. « Taylor's L. of Ev. 310. ^ » Reg. V. Burt and 6thers, 5 Cox's C. C. 284. And rebuttal evidence show- ing the local reputation of the defendant in the neighborhood remote from the party's residence, as to particular facts, is not admissible. Griffin v State, 14 Ohio St. 55. B;J I Pi, EVIDENCE OF CHARACTER. 269 stances, of which his being suspected of misconduct is one ; " ^ but Mr. Justice Erie refused to permit the cross-examination of a witness to character as to circumstances of suspicion against the prisoner which occurred upon the same day as the alleged offence was committed.'' And it is generally held that xihfiracter may not be rebutted by evidence of conduct or particular acts." The prisoner was trie4 upon an indictment for having counterfeit money in his possession, and a new trial was granted because the prosecutor had been allowed to prove that the prisoner had been in prison in another State.* And where the defendant is charged with murder, the State may not introduce evidence tending to prove that he had l)reviously been involved in personal difficulties, and that he had on one occasion threatened to shpot a person.^ And an act of violence by the prisoner against another than the deceased at a time before the difficulty and at a different place may not be shown .^ An exception to the rule has been created in England by statute 6 and 7 William IV. c. Ill, which enacts that, if upon the trial of any person for any si^bsequent felony, such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction of such prisoner for the previous felony, and that the jury shall inquire of the previous conviction and subse- quent offence at the same time. This provision was extended by St. 14 & 15 Vict. c. 19, s. 9, to many misdemeanors. In a case tried while both these statutes were still in force, it was held that the statutes equally applied Avhere the evidence of good character was obtained by the prisoner's counsel on the cross-examination of the witnesses for the prosecution.^ But this latter statute was repealed by St. 24 & 25 Vict. c. 95. The defendant may not give evidence relating to his char- 1 Rex V. Wood, 5 Jurist, 325 ; Best on Pres. 215. a Reg. V. Rogan & Elliott, 1 Cox's C. C. 291. « McCarty v. People, 51 lU. 231 ; Reddick v. State, 25 Fla. 112 ; Dupree V. State, 33 Ala. 380 ; 73 >m. Dec. 422 ; Rex v. Rowton, 34 L. J. M. C. 57 ; 1 Leigli & C. 520 ; State v. Laxton, 76 N. C. 216 ; Simpson v. State, 1 Ala. L. J. 239, cited in 3 Grim. L. Mag. 880 ; Com v. O'Brien, 119 Mass. 342 ; 20 Am. Rep. 325 ; Morgan v. State, 88 Ala. 223. ♦ People V. White, 14 Wend. HI. ^ State v. Sterrett, 71 la. 386. « Browuell v. People, 38 Mich. 732. ' Reg. v. Shrimpton, 3 C. & K. 373. 2Y0 EVIDENCE OF CHARACTER. 'ik ' j i I 1 I i *• ? I i 1^1 Ml acter at a time later than the offence with which he is charged.^ And one who has learned since the offence what the defend- ant's character was prior thereto may not testify.' Anil the Sta+d in its rebuttal evidence should be restricted to the time of the alleged offence, and not be allowed to show the character of the accused at the time of the trial.s There have been cases Avhich have held that, where the evi- dence is circumstantial, and no evidence of character is pro- duced, the probability of guilt is stronger thv n if a good char- acter had been shown.* But a different ruling has been made in late cases in the highest courts of the same States, and it may be said to be the law that the failure of the defendant to call witnesses to prove his gener:. good character raises no presumption against it.* And it is an error of the gravest character to allow the counsel for the prosecution to refer to such omission ,« But an instruction saying that " the character of every defendant in a criminal case is conclusively presumed to be good " is too strong.7 In the absence of proof on the subject, it has been recently said, the jury are not authorized to assume that character is either good or bad and allow the assumption to affect their judgment.^ 1 State V. Johnson, 1 Winst. 151 ; Graham v. State, 29 Tex. App. 31 ; White V. Com., 80 Ky. 480. An objection to the form of the question,' •' Are you acquainted with defendant's reputation as a peaceable, law-abid- ing citizen?" was properly sustained, as the question was not explicit enough as to time and place. State v. Ward, 73 Iowa, 533. 2 Griffith V. State, 90 Ala. 583. 8 State V. Johnson, 60 N. C. 152 ; Wool v. Stete, 20 Ohio St. 460 ; Brown V. State, 46 Ala. 175. The contrary was held in a Massachusetts case, but it was there said that sue h evidence ought to be received with caution. Com. V. Sackett, 22 Pick. 394. The character of the del ndant subsequent to the charge may becom« important on the question of his credibility as a witness. Lea v. State (Tenn.), 29 S. W. 900. ♦ People V. Vane, 12 Wend. 78; People v. Gardner, 1 Wheel. 23. And see People v. White, 24 V^end. 520 ; State v. McAllister, 24 Me. 139 • State V. Tozier, 49 Me. 404. 6 Ormsby v. People, 53 IN. Y. 472 ; Donoghoe v. People, 6 Park. Cr. R. 120 ; People v. Bodine, 1 Denio, 281 ; Ackley v. People, 9 Barb. 609 ; State V. Kabrich, 39 la. 277 ; State v. Dockstader, 42 la. 436 ; State v. Upham 88 Me. 261 ; State v. Toziev, 49 Me. 404. 6 People V. Evans, Ti Mich. 367 ; Chick v. State, 40 Ind. 263 ; State v. O'Neal, 29 N. C. 251 ; Bennett v. State, 86 Ga. 401. T State V. Smith, 50 Kan. 69. « Dryman v. State 102 Ala. 130. CHAPTER IX. THE DEFENCE QF ALIBI. Evidence of the absence of defendant from the place of the crime at the time thereof is admitted to establish a defense.* And of all kinds of exculpatory evidence, that of an alibi, if clearly established by unsuspected testimony, is the most satis- factory and conclusive.2 It is not accurate to say that the defence of alibi tends merely to cast a reasonable doubt upon the case made by the people.^ While the foregoing considera- tions are more or less of an argumentative and inconclusive character, this defence, if the element of time be definitely and conclusively fixed, and the accused be shown to have been at some other place at the time, is absolutely incompatible with, and exclusive of, the possibility of the truth of the charge. The jury should scan with care the testimony given in support of the defence of an alibi, but ihe defence is not to be regarded as a suspicious one. It is, on the contrary, as honorable, and, Avhen clearly proved, as satisfactory, as any which the law permits.* Evidence tending to prove any fact may sometimes be open to suspicion. But law is fixed and uniform. It cannot be one thing in one case and another thino- in another case, as evidence may be. And there is no rule of law which attaches a suspicion to, or fixes a blemish upon, evidence tending to prove an alibi, any more than upon evi- dence tending to prove any other fact.^ It is, however, a defence so liable to abuse where a design exists to practise a fraud upon the State, and even when that design does not exist, by ignorant mistakes as to the particular hour and lapse of time, that it requires great strictness and caution on the part » People V. Wilson, 85 Cal. 44. *» Rea V. State, 8 Lea, 356 ; People v. Lee Gam, 69 Cal. 553. • Ackerson v. People, 124 111. 563 ; Sheehan v. People, 131 111. 22. * People V. Kplly, 35 Hun, 2C5. « Albin v. State, 63 Ind. 598. 271 272 THE DEFENCE OF ALIBI. •1 i If < >T Jii Is Mk *,?; ti's ii of the jury to avoid being misled by it.^ " It must be admitted," says Sir Michael Foster, " that mere alibi evidence lieth under a great and general prejudice, and ought to be heard Avith uncommon caution ; but if it appeareth to be founded in truth it is the best negative evidence that can be offered : it is really positive evidence, which in the nature of things necessarily implieth a negative; and in many cases it is the only evidence which an innocent man can offer."* A charge of assault with intent to commit rape is one easily maile, hard to be proved, but still harder to be defended even by the inno- cent. But even in a case of this character the court did not err in instructing the jury that the defence of an alibi was one easily manufactured, and that the proof should be scanned with care.3 For when wholly false its detection may be a mat- ter of very great difficulty. It is the exclusive province of the jury to judge of the weight of the testimony introduced to establish thit: defence.* And in some jurisdictions it is held that the defence of an alibi, like any other defence, should be left to the jury, uninfluenced by charges from the court calculated to disparage or excite prejudice against it.^ One case condemned an instruction which contained the comment that the defence is " often presented by guilty persons as well as by innocent ones, and one in which perjury, mistake, and deception are often committed." ^ And in another case the judgment of the trial court was reversed because the judge had said in his charge that " testimony offered to establish an alibi should be weighed with great caution in connection with all the evidence in the case, because it was a defence easily fabricated, and often attempted by contrivance or perjury," and this though, it was added, that when fully and satisfactorily estabhshed by the evidence to the satisfaction of the jury, it was a good and complete legal defence. For, it was said, the defendant is not required, in any phase of any criminal case, to prove his defence to the satisfaction of the jury, but only to raise a reasonable doubt.''^ And where there was credible evi- » Rea V. State, 8 Lea, 356 ; People v. Lee Gam, 69 Cal. 552. * Foster's C. L. , ut supra, 368. And see the observations of Mr. Baron George, in Rex v. Brennan, 80 St. Tr. 79. 8 State V. Blunt, 59 la. 648. < State v. Chee Gong, 16 Ore. 584. * Simmons v. State, 61 Miss. 243. « State v. Chee Gong, supra. ' Dawson v. State, 63 Miss. 241. THE DEFENCE OF ALIBI. vrt (lence in support of the defence of an aliln a charge susceptible of the construction that it was a circumstance to the defend- ant's prejudice if h'« witnesses perjured themselves toestabUsh the alibi, was held erroneous.* It is obviously essential to the proof of an alibi that it should cover and account for the whole of the time of the transaction in question,^ or, at least, for so much of it as to render it impossible that the prisoner could have committed the imputed act. The proof must preclude the possibility of the prisoner's presence at the time and place of the commission of the crime.8 It is not enough that it renders his guilt improbable merely, and if the time is not exactly fixed, and the place at which the accusetl is alleged by the defence to have been is not far off, the question then becomes one of probabilities. The court, therefore, in one case refused to direct an acquittal on the ground that the defendant was seen, about two hours before the commission of the crime, at some distance from the place thereof, when the distance did not appear.* And in another case a defence of an alibi was disregarded, because all that the prisoners offered to prove was that they were in bed on the night in question at twelve o'clock, and were iound in bed next morning, after the arson with which they were charged had taken place, the distance being two miles, so that they might have risen, committed the deed, and returned to bed.^ In a recent case it was atte.npted to prove an alibi, but it was only sho^vn that several days before the murder the defendant was seen at a point 70 miles distant from the scene of the crime. This was clearly insufficient, especially in view of the fact that there was railway com- munication between the two points.^ On the trial of a man for the murder of a young woman under circumstances of the strongest adverse presumption, the proof was that the deceased had been muriered at her father's cottage in the forenoon of the day m question, and the prisoner alleged that he w as at work the whole of that day with his fellow-laborers at a 1 Prince v. State, 100 Ala. 144. « Miller v. People, 39 lU. 457 ; Aneals v. People, 134 lU. 401 ; Wisdom v. People, 11 Ck)lo. 170 ; Murphy v. State, 31 Fla. 166. « Briceland v. Com., 74 Pa. St. 463 ; Miller v. People, mpra. * Burger v. State, 83 Ala. 86. « Rex v. Eraser, Alison's Princ. 626. « McGill V. State, 25 Tex. App. 499. 18 tT4 THE DEFENCE OF ALIBI. ill distance from the cottage ; but it turned out that he had been absent from his work al)out half an hour, an interval sufti- oiently long to have enabled him to reach the cottage, commit the murder, and rejoin his fellow-workmen. He was convicted, and before his execution confessed his guilt.^ The credibility of an alibi is greatly strengthened if it be set up at the moment when the accusation is first made, and be consistently maintained throughout the subsequent pro- ceedings* These conditions were remarkably fulfilled in the memorable case of Abraham Thornton, of which a full account will be given hereafter. To all appearance the guilt of the prisoner was the necessary conclusion from the supposed inculpatory facts, and yet he had been seen by a number of independent and unimpeachable witnesses at such a distance from the scene of the alleged murder, at the very time when it must have been committed, if at all, as to render it phys- ically impossible that the deceased could have been murdered by him; and all the facts supposed to have been the con- clusive indications of guilt were satisfactorily explained by collateral circumstances, and by a different hypothesis." On the other hand, the failure, unexplained, to assert this defence when it could first be made, and, if true, would be conclusive, is always a most suspicious circumstance ; * or if nothing happened immediately after the transaction to lead the witnesses to watch so as to be accurate in the hour or time to which they speak, even supposing them to depose under no improper bias or influence ; ' or if having been once resorted to, a different and inconsistent defence is afterwards set up. There are many other sources of fallacy connected with this particular defence ; such as the possible difference of clocks ; ^ or the fraudulent alteration of them to tally with other facts ; as where one of the perpetrators of a murder hastened home, put back the clock two hours, and went to bed, and shortly 1 Rex V. Richardson, infra. * Dean v. Com., 32 Grat. 912. • Rex V. Thornton, infra. And see Rex v. Canning, 19 St. Tr. 283, where the prosecutrix of a capital charge was convicted of perjury on the evidence of thirty-eight witnesses wlio proved an alibi. * Dean v. Com., 32 Orat. 912. ' Per Mr. Justice Le Blanc, in Rex v. Mellor and others, 31 St. Tr. 1032. Andsee Rex v. Haigh, Id. 1118; and the observations of Shaw, C. J., in Webster's Case, 5 Cush. 295. « Rex V. Schofield, 31 St. Tr. 1063 ; Rex v. Mellor, Id. 1027. Hi THE DEFENCE OF ALIBI. 276 aftcrwartls awoko his servant, ami told her to go dovvnatairB and see what was the time, which she did, not knowing that the clock hiul been tanipored Avith ; so that her testimony led to his acquittal.^ Very often, too, without doubt, a mistake is made as to the person from want of an opportunity of accurate observation, or other causes of misconception. In a recent case, a trial for uttering and publishing a forged note, the defence was an alibi. The person on whom the note was passed, one D., identified the tlefen,ttempt to prove an alibi is not a circumstance of great weight against the prisoner.** Failure in this proof should have no greater weight to convince a jury of the guilt of a prisoner at- tempting it than the failure to pro^^e any other important item of defence. A prisoner is entitled to rely on the facts in his favor, that he may suppose he is able to prove, and if he is so unfortunate as to fail in his proof, it should not, generally speakinpf, operate to Lis prejudice.' And an instruction in a criminal case that the prisoner has "at- tempted " to set up an alibi is erroneous, as tending to intimate to the jury that the effort to prove an alibi amounted to nothing] lore than ar attempt.^ " Because susceptible of easy 1 Ctose of Bauer fit al, 2 Chanc'I. Am. Cr. Ti-. 356. « People r, Wong Ah Foo, 09 Cal. 130. » Reg. V. Cane and others, C. C. C, 20th of Tune, 1851. * Reg. V. Rush, Norfolk f?i r. Aas., 1849, * Rex V. Haigh and others, nt suprn : Rex v. Hunter and others, Rep., ut nipra, jP5. 8 Poople v. Malaspina, 57 Cal. 628. ' Miller w. People, 39 III. 457. « Miles v. State, 93 Ga. 117. THE DEFENCE OF ALIBI. 277 fabrication and often attempted to be sustained by perjury, whereby the accuser endeavors to break the net-work of facts and circumstances surely bringing him to conviction and punish- ment, the proof of an alibi is, and should be, subjected to a careful scrutiny; but it is an error to assume that the law looks upon such attei.ipt Avith suspicion, A general prejudice against such attempt has resulted from the unquestioned fact that an alibi is often forged, constituting an artifice or con- trivance to shield the guilty. But being a defence which may be lawfully made, and Avhich in legal contemplation is of the same form as other lawful defences, there can be no rule of law founded on logic or principle, common sense or justice, which recognizes a distinction between the consequent weight of an unsuccessful attempt to establish an alihi, and that of an unsuc- cessful attempt to prove any other material fact in defence." ^ "Where the attempt to prove the alibi fails, the evidence offered in support of it may nevertheless be considered by the jury as otherwise affecting the case.^ But if the defence is resorted to fraudulently ,3 or is detected to be the result of after-thought or contrivance, the attempt to set it up usually recoils with fatal effect upon the party who asserts it ; and, in the language of Mr. Baron Daly, " amounts to a conviction."* Where the defendant attempted to prove an aZibi, but the circumstances pointed conclusively to the fact that he was at the scene of the crime when it was committed, the court said that the prisoner's denial was against him.^ An indictment for murder was tried five times. On each of the first four trials a witness, the brother-in-law of the defendant, gave testimony which established nn alibi, but on the fifth trial this witness recanted his former statements and testified that on the evening of the homicide the defendant came to the house of the witness and confessed the murder. This evidence, together Avith the circumstances in the case, was held sufficient for conviction.* " The t"uth of this sort of defence," said Mr. Baron George,^ 1 See Oi'inion of the court in Allbritton v. State, 94 Ala. 76. See further on this point, supra. a Toler v. State, 16 Ohio St. 583. « State V. Collins, 20 la. 85. * In Rex v. Killan, 20 St. Tr. 1085. ' Cole.nan v. State, 2G F!a. 6t. And sec Com. v. McMahon, 145 Pa. 413 ; State V. Dimmitt, 88 la. 551 ; People w. Johnson, 140 N. Y. 350. • Moody V. State, 87 Tex. App. 287. ' In Rex v. Brennan, 30 St, Tr. 79. Ml I ^il 1 ' I 1 '^ ta-H ^^^^K HI H^^^H ■ l^ll n^Hfl 1 278 THE DEFENCE OF ALIBI. " is not always to be ascertained by the direct testimony of the witnesses called to prove it. Several witnesses are seldom pro- duced in such cases without its being known that they agree with each other in the substantial and principal facts they are to relate ; and as in general it is not to be expectetl that a pros- ecutor should come with evidence prepared to meec this sort of defence, the usual test of its truth or of its falsehood, where they are unknown to the jury, is a cross-examination of the witnesses, kept asunder, and fairly conducted under the eye and observation of the jury ; and here differences or contradic- tions, otherwise trivial, become important in showing the truth or falsehood of such narrative." In such circumstances, if the story be a fabrication, it is obviously far more easy for the wit- nesses to agree on the more general fact of the prisoner's pres- ence at the time and place referred to, than on the minute surrounding particulai's.* The foregoing examples suffice to illustrate the subject of exculpatory presumptions ; but it is obvious that as inculpa- tory facts are infinitely diversified, exculpatory facts must admit of the same extent of variety, and that they may be of every degree of force. In all such cases of conflicting presumptions it is the duty of the jury, with the assistance of the court, to weigh and estimate the force of each several circumstance of presumption, and to act upon what appear to be the superior probabilities of the case ; and if there be not a decided preponderance of evidence to establish the guilt of the party, to take the safe and just course, by abstaining from pronouncing a verdict of guilty, where the necessary light and knowledge to justify them in so doing with the full assurance of moral certainty is unattainable." 1 Reg. V. Hunter, Rep., ut supra, 365. a Mittermaier, ut supra, ch. 56. PART IV. RULES OF INDUCTION SPECIALLY TO BE OB- SERVED IN CASES OP CIRCUMSTANTIAL EVIDENCE. INTRODUCTORY REMARKS. All reasoning concerning human conduct is essentially a process of induction, of wliich it is the object, by means of generalizations founded upon a knowledge of the faculties, emo- tions, and laws of the mind, to discover the moral qualities and causal origin of the voluntary actions of our fellow-men ; whence it follows that the rules fcr the conduct of inductive inquiry belong formally to the province of Logic, or the science of the laws of thought. The rules of evidence are, therefore, a selection of maxims tacitly assumed and acted upon by all men in the ordinary affairs of life, and recognized by philosoph- ical wisdom and judicial experience as the best means of dis- covering truth. The purpose of this essay requires the enumer- ation only of such few leading rules of evidence as are of special, though not of exclusive application, to the particular subject- matter of this treatise.^ 1 Mittermaier, ut supra, c. 57. 'M m { : MS J* i frti in 5 CHAPTER I. PROOF OF THE FACTS ALLEGED IS REQUISITE. The facts aUeged as the basis of any legal inference must he clearly pravedy and indubitably connected with the factum pro- bandum. No conclusion is reliable which is drawn from premises that are uncertain. Whenever circumstantial evidence is rehed upon to prove a fact, the circumstances must be proved and not themselves presumed.i A presumption which the jury is to draw is not a circumstance in proof, and is therefore not itself a legitimate foundation for a presumption. Let the prin- cipal fact be what it may, the facts relied upon must be proved in the strictest sense of the word." No safe conclusion can be deduced from circumstantial evidence if it be left reasonable to suppose that the circumstances themselves are not proved. It may be a very significant circumstance that a footprint is found; but if the facts are such as to render it reasonable that there was no footprint, the circumstance that some crazy man had said so would be of no importances The jury should not indulge in the supposition of facts not proven.* This rule is an indispensable condition of all sound induction • and Its object is, by proper rejections and exclusions, and after as many negations as are necessary,^ to verify facts and clear them from all ambiguity, so that they may become the premises of logical argument and reasoning. In moral investigations the facts are generally more obscurely developed than when physical phenomena form the subjects of inquiry ; and they are T ' ^"8'«« "• MitcheU, 35 Pa. St. 440 ; Manning v. John Hancock Mut. L. Ins. Co., 100 U. S. 693. ,xr''^!™i!° **• ^^^' ^^ '^^^' '^"'"- ^PP- ^^« : Taylor v. State, 9 Id. 100 ; Ward V. State, 10 Id. 293. « Worth v. Norton, 33 Tex 192 *Ray v. State, 50 Ala. 104; People v. Brannon, 47 Cal. 96 ; White v State, 36 Tex. 347 ; Earle v. People, 73 111. 329 ; Walbridge v. State. 13 Nob" 236* * * ^°\^^^' ^^^- '■' ' ^P^"'"- ^^'- ~ !. ^i"'s Los- b, V. c> 3 ^ 0. PROOF OF THE FACTS ALLEGED IS REQUISITE. 281 frequently blended with foreign and irrelevant circumstances, so that the establishment of their connection with the/actum, probcmdum becomes matter of considerable difficulty. No weight, therefore, must be attached to circumstances which, however they may excite conjecture, do not warrant belief.^ In a case resting on circumstantial evidence, the party upon whom the burden of proof rests is bound to prove every fact essential to the conclusion of guilt in the same manner and to the same extent as if the whole issue rested on each individual and essential circumstance.* Each fact necessary to the conclusion sought to be established must be proved beyond reasonable doubt.^ If the jury in making up their minds from circumstantial evidence have a rational doubt as to the existence of any one of the material circumstances attempted to be proved, that circumstance ought not to have any influence with them in forming their opinion respecting the guilt or innocence of the accused. In other words they ought " to discard such circum- stance in making up their verdict." * > See on this point Burr. Circ. Ev. pp. 136-138. « Scott V. State, 19 Tex. Crim. App. 325 ; Harrison v. State, 6 Id. 43 ; State V. Glass, 5 Ore. 73. « Com. V. Webster, supra ; State v. Glass, 5 Ore. 73 ; People v. Phipps, 39 Cal. 326 ; Black v. State, 1 Tex. Crim. App. 368 ; Gallagher v. State, 28 Tex. Crim. App. 247 ; Hawkins v. State (Tex.), 12 S. W. 490 ; Cranch v. State (Tex.), 12 S. W, 491 ; Shipp. v. Com. (Va.), 14 Va. L. J. 176 ; 10 S. E. 1065 ; Riley v. State, 88 Ala. 193 ; Dick v. State, 87 Ala. 61 ; Perry v. State, 87 Ala. 30 ; State v. Bush, 122 Ind. 42 : {Jtate v. Donahoe, 78 Iowa, 486 ; People V. Hare, 57 Mich. 505 ; Johnson v. State, 27 Neb. 687. The following observations are extracted from the opinion of the court in People V. Aiken, 66 Mich. 460 : " The verdict of guilty in a criminal case resting upon circumstantial evidence is built upon a series of facts connected logically together, and one fact succeeding another in a certain order ; one fact resting or depend- ing upon another as a result of the preceding. These material and essential facts necessary to convict, following one another and each adding strength and conviction to the other and the \/hole, and which as a whole complete a perfect and irresistible chain, must each and every one be established and proved. Who can say that this chain so formed is a perfect and com- plete chain to a moral certainty, or beyond a reasonable doubt, if there be a want of such mor«l certainty or a reasonable doubt as to the exist- ence of one of these '!■. « without which the chain is broken and incom- plete? Each necessary link, each and every material and necessary fact upon which a conviction depends, must be proved beyond a reasonable doubt." * See opinion of Blackford, J., in Sumner v. State, 5 Blackf. 579. 282 PROOF 01- THE FACTS ALLEGED IS REQUISITE. r\ «(«' It is not, however, necessary that an immaterial fact should be so established. ^ There is no objection to an instruction which holds that the rule requiring proof beyond a reasonable doubt applies only to the material allegations of the indictment, but has no application to those mere evidentiary facts which the testimony of the witnesses may tend to establish.^ It is sometimes said that each fact relied upon to prove the defendant's guilt ought to be established beyond a reasonable doubt. But this form, of instruction ought to be avoided. An alleged circumstance may be relied upon in the chain of circumstances by which the guilt of the accused is sought to be established or the conclusion reached, and yet not be essential to that conclusion. A circumstance may be relied upon by the prosecution as tending to prove facts from which the inference of guilt is to be drawn, and yet it may not be one of the circumstances from which the conclusion is drawn. The ultimate conclusion of guilt is drawn from certain essential facts, from the existence of which the mind is logically and irresistibly forced to infer the main fact to be proved. If one of these essential facts is wanting, the mind fails to reach the conclusion. A man is accused of the murder of his wife by the administration of a deadly poison. All the circumstances of the case point with almost absolute certainty to his guilt. The jury are satisfied of it beyond a reasonable doubt. He is proven to be devoid of affection for her. He has been seen to cruelly maltreat her. His conduct toAvards another woman establishes the fact that she has supplanted his wife in his affections. The poison has been found in the body of the deceased in a sufficient quantity to produce death. He is shown to have recently purchased the same kind of poison for the alleged purpose of killing a family dog. Ic is shown he had no dog. He has but recently caused the life of his wife to be insured. He has been heard to make threats and insinua- tions which, in the light of subsequent events, show that he expected her death at an early day. A witness is called for the prosecution who testifies that at a particular time he saw the accused in the company of the other woman under circum- stances of very questionable propriety, and which, if believed, » Early v. State, 9 Tex. Crim. App. 476. « Jamison v. People, 145 lU. 357. PROOF OF THE FACTS ALLEGED IS REQUISITE. 283 would establish illicit intercourse between them. This last fact is relied upon as a link in the chain of circumstances to establish the fact of his guilt of the crime charged. The jury are fully satisfied of his guilt, but from the conduct or de- meanor of the witness, or for some other cause, do not believe the story of the illicit intercourse. Must they therefore find the accused not guilty? Clearly not. That circumstance, though relied on, should be disregarded .^ Occurrences may be mysterious and justify even vehement suspicion, and yet the supposed connection between them may be but imaginary, and their co- existence indicative of accidental concurronce merely, and not of mutual correlation. Where the only evidence tending to connect the defendant with the theft of the alleged stolen animal was the fact that a brand on the animal had been altered — by whom did not appear — to make it resemble a brand claimed by defendant : this was held insufficient for conviction.* " "Where there is nothing but the evidence of circumstances to guide you," said Mr. Justice Bailey, " those circumstances ought to be closely and necessarily connected, and to be made as clear as if there were absolute and positive proof." ^ Every circumstance, therefore, which is not clearly shown to be really connected as its correlative with the hypothesis it is supposed to support, must be rejected from the judicial balance ; in other words, it must be distinctly established that there exists between the factum probamdum and the facts which are adduced in proof of it, a real connection, either evident and necessary, or so highly probable as to admit of no other reasonable explanation.* The following cases will serve to manifest the dangerous consequences which may ensue from the disregard of this most salutary cautionary rule : Two brothers-in-law, Joseph Downing and Samuel White- house, met by appointment to shoot, and afterwards to look at an estate, which on the death of Whitehouse's wife without issue would devolve on Downing. They arrived at the place of meeting on horseback, Downing carrying a gun-barrel and * See opinion of the court in Bradshaw v. State, 17 Neb. 147. » Schaubert v. State, 28 Tex. Crim. App. 222 * Rex V. Downing, Salop Summer Ass., 1822, infra. * Mittermaicr. ut supra, ch. 55, 57. I IP .1 Ml* 384 PROOF OF THE FACTS ALLEGED IS REQUISITE. leading a colt. After the business of the day, and drinking together some hours, they set out to return home. Downing leading his colt as in the morning. Their way led through a gate opening from the turnpike-road, and thence by a narrow track through a wood. On arriving at the gate, Downing discovered that he had forgotten his gun-barrel ; and a man who accompanied them to open the gate went back for it returning in about three minutes. In the meantime White- house had gone on in advance ; and the prisoner having received his gun-barrel, followed in the same direction. Shortly after wards Whitehouse was found lying on the ground in the wood, at a part where the track widened, about 600 yards from the gate, Avith his hat off, and insensible from several wounds in the head, one of which had fractured his skull. While the person by whom he was discovered went for assistance, the deceased had been turned over and robbed of his watch and money. About the same time Downing was seen in advance of the spot where the deceased lay, proceeding homeward and leading his colt ; and a few minutes afterwards two men were seen following in the same direction. Suspicion attached to Downing, partly from his interest in the estate enjoyed by the deceased, and he was put upon his trial for this supposed murder ; but it was clear that he had no motive on that account to kill the deceased, as the estate was not to come to him until after failure of issue of the deceased's wife, to whom he had been married several years without having had children ; so that it was his interest that the way should not be open to a second marriage. That the deceased had been murdered at all was a highly improbable conjecture, and it was far more probable that he had fallen from his horse and received a kick, especially as his hat bore no marks of injury, so that it had probably fallen off before the iniliction of the wounds. That the deceased, if murdered at all, had been murdered by the prisoner was in the highest degree improbable, considering how both his hands must have been employed, nor was there any evidence that the deceased had been robbed by the prisoner. It thus appeared that these accumulated circumstances, of supposed inculpatory presumptions, were really irrelevant and unconnected with any corpus delicti.^ The prisoner was acquitted; and it is - Rex V. Downing, Salop Sura. Ass., 1822, coram Mr Justice Bayley. PROOF OF THE FACTS ALLEGED IS REQUISITE. 286 instructive that about twelve months afterwards the mystery of the robbery, the only real circumstance of suspicion, was cleared up. A man was apprehended u]K)n offering the deceased's watch for sale, and brought to trial for the thaft of it, and acquitted, the judge thinking that he ought not to be called upon, at so distant a period, to account for the posses- sion of the deceased's property, which he might have purchased, or otherwise fairly acquired, without being able to prove it by evidence. The accused, when no longer in danger, acknowl edged that he had robbed the deceased, whom he found lying drunk on the roail, as he believed ; but that he had concealed the watch, on learning that it was supposed that he had been murdered, in order to prevent suspicion from attaching to himself. A farmer was tried under the special commission for Wilt- shire, in January, 1831, upon an indictment which charged him with having feloniously sent a threatening letter, which was alleged to have been written by him. That the letter was in the prisoner's handwriting was positively deposed by witnesses who had had ample means of becoming acquainted with it, while the contrary was as positively deposed on the part of the prisoner by numerous witnesses equally competent to speak to the fact. But the scale appears to have been turned by the circumstance that the letter in question, and two others of the same kind to other persons, together with a scrap of paper found in the prisoner's bureau, had formed one sheet of paper ; the ragged edges of the different portions exactly fitting each other, and the water-mark name of the maker, which was divided into three parts, being perfect when the portions of paper were united. The jury found the prisoner guilty, and he was sentenced to be transported for fourteen years. The judge and jury having retired for a feAV minutes, during their absence the prisoner's son, a youth about eighteen years of age, was brought to the table by the prisoner's attorney, and confessed that he had been the writer of the letter in question, and not his father. He then wrote on a piece of paper from memory a copy of the contents of the anonymous letter, which on com- parison left no doubt of the truth of his statement. The writ- ing was not a verbatim copy, although it differed but little ; and the bad spelling of the original was repeated in the copy. The original was then handed to him, and on being desii'ed to do so, liUli 286 PROOF OF THE FACTS ALLEGED IS REQUISITE. he copidl it, and the writing was exactly alike. Upon the return of the learned judge the circumstances were mentione com- mitting magistrates, and also upon the trial, i)n«i t.o mwdd was made on the credibility of the testimony by which it was sup- ported. The various timepieces to which the witnesses referred, and which differed much from each other, were carefully com- pared on the day after the occurrence, and reduced to a com- r^oi. fc< inda'^d, so that there could be no doubt of the real times Ab kjj. ;krn to by them. Thus, it was not within the bounds of possioility that the prisoner could have committed the crime »i- PROOF OF THE FACTS ALLEGED IS REQUISITE. 28« imputed to him ; neverthek>t!s, public inthep,lK>Ution, by St.. 59 G. III. c. 46, of tlist barbarous relic of feudal i ._ See Aehford V. Tbcmton, iB. 6c Aid. 405 ; Short-hand Rep. and Oboetvavions apou the case of Abrahaiit Thornton, b^' iidwari Holroyd, Esq.. wl.ere the judge's Dotes of the evidence are giva. iPf ^!'! i'-^ \ ].!"•■ ( if I CHAPTER II. I THE BURDEN OF PROOF. The burden of proof is always on the party ivho asserts the existence of any fact which infers legal accountability. ^ This is a universal rule of jurisprudence, founded upon evi- dent principles of justice ;= and it is a necessary consequence, that the affirmant party is not absolved from its obligation because of the difficulty Avhich may attend its application. To prove a negative is in most cases difficult, in many impos- sible. And this rule has been adopted because the affirmative is capable of simple and direct proof of which the negative does not admit.^ No man can be justly deprived of his social rights but upon proof, that he has committed some act which legally involves the forfeiture of them. The law respects the status in quo, and regards every man as legally innocent until the contrary be proved. Bigelow, J., after stating the general rule as to the burden of proof, remarked: "This results not only from the well- established princij)le that the presumption of innocence is to stand until it is overcome by proof, but also from the form of the issue in all criminal cases tried on the merits, which beinsr ahvays a general denial of the crime charged, necessarily im- poses on the government the burden of showing affirmatively the exisL^nce of every material fact or ingredient, which the law requires in order to constitute an offence. If the act charged is justifiable or excusable, no criminal act has been » 1 Gieenl. Ev. § 74 ; Stevenson v. Marony, 29 111. 532 ; McClure v. Pur- eell, 6 Ind. 330 ; Hampton v. State, 1 Tex. Ciim. Ap ■ 652 ; Kelley v. People, 17 Colo. 130. * Such was the rule of the Roman law : Ei incumlnt probatio qui dicit, non qui negat. Dig. lib. 22, tit. 3, b. f . 8 1 Greenl. on Ev. (14th Ed.) ^x05. See Com. v. Trecy, 8Cush. 1 ; Crownin- Bbield V. Ciowuinshield, 3 Gray, 524. 291 ( i ■ i ,Un>'l ^1 292 THE BURDEN OF PROOF. committed, and the allegations in the indictment are not proved. And this makes a broad distinction in the application of the rule of the burden of proof to civil and criminal cases. In the former, matters of justification or excuse must be specially pleaded in order to be shown in evidence, and the defendant is therefore, by the form of his plea, obliged to aver an affirm- ative, and thereby to assume the burden of establishing it by proof ; while in the latter all such matters are open under the general issue, and the affirmative, namely, proof of the crime charged, remains in all stages of the case upon the govern- ment." ^ Criminality, therefore, is never to be presumed. But, nevertheless, the operation of this rule may, to a certain extent, be modified by circumstances which create a counter-obligation, and shift the onus prohandi. Lord Brougham said that the burden of proof often shifts about from one party to the other in the progress of a cause, according as the evidence raises a presumption one way or the other.2 It follows, from the very nature of circumstantial evidence, that, in drawing an inference or conclusion as to the existence of a particular fact from other facts that are proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction.^ Lord Ellen borough said that no person accused of crime is bound to offer any explanation of his conduct, or of circum- stances of suspicion which attach to him ; but, nevertheless, if he refuse to do so, where a strong prima facie case has been made out, and when it is in his own power to offer evidence, if such exist, in explanation of such suspicious appearances, which would show them to be fallacious and explicable in con- sistency with his innocence, it is a reasonable and justifiable conclusion that he refrains from doing so only from the con- viction that the evidence so suppressed or not adduced would operate adversely to his interest.* 1 Com, V. McKie, 1 Gray, 61, a Wareing v, Wareing, 6 Moore's P. C, Rep. 355, 8 Per lAird Chief Justine Abbott, in Rex v. Burdett, 4 B. & Aid. 161. * Rex V. Cochrane, Gurney's Rep, THE BURDEN OF PROOF. 293 Therefore, while the burden of establishing the guilt of the accused is never shifted from the State,^ it is a qualification of the rule in question, that in every case the onus probwndi lies on the person who is interested to support his case by a particular fact, which lies more particularly within his own knowledge, or of which he is supposed to be cognizant. In a subsequent part of the opinion from which we quoted on a preceding page the learned judge said further : " There may be cases where a defendant relies on some distinct, substantive ground of defence to a criminal charge, not necessarily con- nected with the transaction on which the indictment is founded (such as insanity, for instance), in which the burden of proof is shifted upon the defendant." ^ This is not allowed to supply the want of necessary proof, whether direct or presumptive, a,gainst a defendant, of the crime with which he is charged ; but when such proof has been given, it is a rule to be applied in considering the weight of the evidence against him, Avhether direct or presumptive, when it is unopposed, unrebutted, or not weakened by contrary evidence, which it would be in the defendant's power to produce, if the fact directly or presump- tively proved were not true.* It has been well observed, that in such cases we have something like an admission that the presumption is just.* It would naturally happen that in most cases du prima facie case would satisfy the jury.^ But "in drawing an inference or conclusion, regard must always be had," as was said by the Lord Chief Justice Abbott ; ^ " to » People V. Marks, 4 Park. Cr. R. 153 ; State v. Wingo, 66 Mo. 181 ; Jones V. State, 13 Tex. Grim. App. 1 ; Turner v. Com., 86 Pa, St. 54. " In every criminal case," said Judge Campbell, in People v. Millard, 53 Mich. 63, " the burden is throughout upon the prosecution. Whatever course the defence deem it prudent to take in order to explain suspicious facts or remove doubts, yet it is incumbent on the prosecution to show under all circumstances, as a part of their own case, unless admitted or shown by the defence that there is no innocent theory possible which will, without violation of reason, accord with the facts. And in a case of alleged poison- ing where the symptoms and appearances during the last illness become controlling facts in determining whether the death was from poison or from disease, the charge is not made out unless the prosecution negative every- thing but poison aa the cause of death." * Opinion of Mr. Justice Biqelow, in Com. v. McKie, 1 Gray, 61. » Per Mr, Justice Holroyd, in Rex v. Burdett, 4 B. & Aid, 140. * Per Mr. Justice Best, Id. 122. ^ State v. Wingo, 66 Mo. 181. * Rex V. Burdett, 4 B. & Aid. 161. 294 THE BURDEN OF PROOF. i >|s I ' HI* J If ' !!| [. i the nature of the particular case, and the facility that appears to be afforded either of explanation or of contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction ; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the con- clusion to Avhich the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends ? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily ; but in matters that concern the conduct of men, the certainty of mathematical evidence cannot be required or expected ; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men conversant with the affairs and business of life, and who know that when reasonable doubt is entertained, it is their duty to acquit ; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtlety and refinement." To the same effect Lord Chief Justice Tindal, on a trial for high treason, said, that " the offence charged against the prisoner must be proved by those who make the charge. The proof of the case against the prisoner must depend for its support not upon the absence or want of any explanation on the part of thvj prisoner himself, but upon the positive affirmative evidence of the guilt that is given by the crown. It is not, however, an unreasonable thing," said the learned judge, " and it daily occurs in investigations, both civil and criminal, that if there is a certain appearance made out against a party, if he is involved by the evidence in a state of considerable suspicion, he is called upon, for his own sake and his own safety, to state and bring forward the circumstances, whatever they may be, which might reconcile such suspicious appearances with perfect innocence.! But this doctrine, it has been well observed, is to be cautiously applied, and only in cases where it is manifest » Reg. V. Frost, Monmouth Sp. Comm., Jan. 1840, Gurney's Report, 689. And see the language of Lord Ellenborough, in Rex v. Despard, 28 St. Tr. 521; and in Rex v. Watson, 33 Id. 583 ; and that of Le Blanc, J., in Rex V. Mellor and others, 31 St. Tr. 1032. THE BURDEN OF PROOF. 295 that proofs are in the power of the accused, not accessible by the prosecution." * Where a defence is set up, the burden of proof is on the defendant.* The State having made &pri7na facie case, the accused may overthrow it, and this is done when he raises a reasonable doubt as to the facts made by the State, or by proving an alibi, insanity, or any other defence inconsistent with guilt.^ Therefore, it is incontestably the rule that when a defendant sets up aZti»^ or insanity* he has the burden of establishing his defence. And it is sufficient to establish such facts and circumstances as will, in connection with the other evi- dence, engender in the minds of the jury a reasonable doubt of the truth of the charge,' The defence need not be established by a preponderance of the evidence.^ An instruction imposes too great a burden of proof upon the defendant which declares that he must satisfy the jury beyond a reasonable doubt that the alibi is true ; ^ or that he must establish it to the jury's satisfaction.^ And where an alibi is setup, an instruction that it will be the duty of the jury to acquit all or such of the defendants as they believe not to have been present at the commission of the crime, is erroneous. They should be directed to acquit all as to whose presence they have a reasonable doubt.'''' On the other hand, an instruction that defendant relies upon an alibi, and that if it is established it is a complete defence, is not misleading as placing the burden of establish- ing the alibi on defendant, where the jury are elsewhere in- formed that the People must establish every requisite to a conviction by evidence which removes every reasonable doubt from the minds of the jury." And the statement by the » Per Shaw, C. J., in Webster's Case, ut supra, 467. » State V. Grear, 29 Minn. 24 ; People v. Bell, 49 Cal. 486. • State V. Paulk, 18 S. C. 514. « Garetz v. People, 107 111. 162 ; State v. Waterman, 1 Nev. 543 ; Rudy v. CJom., 128 Pa. St. 500; Carlton v. People 150 111. 181. See, however, State V. Chee Oong, 19 Pac. 807. » Lake v. People, 1 Park. Cr. R. 495 ; Laros v. Com., 84 Pa. St. 200 ; State V. Henrick, 62 la. 414 ; Newcomb v. State, 87 Miss. 383 ; Loeflfner v. State, 10 Ohio St. 598 ; Graham v. Com., 16 B. Mon. 587 ; State v. DeRance, 84 La. Ann. 186 ; People v. Messersmith, 61 Cal. 246. • Carlton v. People 150 lU. 181. T State V. Taylor, 118 Mo. 153. •Milesr. State, 93 Ga. 117. • Prince r. State, 100 Ala. 144. » Garcia v. State (Fla.), 16 So. 223. " People V. Fuhrman (Mich.), 61 N. W. 865. 296 THE BURDEN OF PROOF. I» »! court, that an alibi is a good defence if proved, is not erroneous or misleading, where the jury are directed in the same connec- tiwi that if they have a reasonable doubt of the presence of the accused at the place of the commission of the crime, at the time thereof, they must acquit.' Every person accused of crime is presumed to be sane, and that legal presumption is all the proof required of the prosecu- tion. If the defence insists upon insanity as an excuse for the defendant's action, the burden is upon him to establish it.* The rule is stated in language to the effect that the sanity of one accused of crime will be presumed until rebutted by satis- factory proof.8 In a recent case in Massachusetts the court said that the burden resting upon the government, " so far as the matter of insanity is concerned, is ordinarily satisfactorily sustained by the presumption that every person of sufficient age is of sound mind and understands the nature of his acts.* But when the circumstances are all in, on the one side going to show a want of adequate capacity, on the other side going to show usual intelligence, the burden rests where it was in the beginning — upon the government.^ In Louisiana the accused has the burden of establishing the plea of insanity relied upon by him to the satisfaction of the jury beyond a reasonable doubt.« The rule generally adopted is that when the defence of insanity is relied upon, if the evi- dence introduced tends to rebut the presumption of sanity on the part of the accused, and the jury entertain a reasonable doubt, after due consideration of all the evidence, as to his sanity, it is their duty to acquit.^ It is a necessary consequence of this rule, rather than a sub- stantive rule, that the corpus delicti must be clearly proved before any effect is attached to circumstances supposed to be inculpatory of a particular individual ; but this is a branch of the subject of so much importance and of such comprehensive extent, as to require consideration in a more extended manner. 1 State V. Price (Kan.), 41 Pac. 1001, » Faulker v. Terr. (N. M.), 80 Pao. 905 ; Guetig u. State, 66 Ind. 94, See O'ConneU v. People, 87 N. Y. 377 ; Cogle v. Com., 100 Pa. St. 573. • State V. Harrigan, 9 Honst. 369. And see State v. Hartley (Nev.), 40 Pao. 872. 4 State v. Hansen (Ore.), 36 Pac. 296. • Pomeroy'8 CaBe,117 Mass. 143. See further Ballard v. State, 19 Neb. 609. « State V. Clements, 47 La, Ann. 1088. ^Armstrong v. State, 30 Florida, 170 ; 17 L. R. A. 484. CHAPTER III. THE BEST EVIDENCE MUST BE ADDUCED. In all cases, whether of direct or circumsta/ntial evidence, the best evidence must he adduced which the nature of the case admits. The rule which requires the production of the best evidence is applied to reject secondary evidence which leaves that of a higher nature behind in the power of the party .^ The suppression or non-production of pertinent and cogent evi- dence necessarily raises a strcmg presumption against the party who withholds such evidence when he has it in his power to produce it. Some interesting exemplifications of this are to be found in another part of this volume.^ This rule applies d fortiori to circumstantial evidence, a kind of proof which, for reasons which have been already urged, is inherently inferior to direct and positive testimony ; and, there- fore, whenever such evidence is capable of being adduced, the very attempt to substitute a description of evidence not of the same degree of force, necessarily creates a suspicion that it is withheld from corrupt and sinister motives.^ When it is dis- closed that direct evidence is probably in existence, circumstan- tial evidence cannot be resorted to without accounting for the absence of the direct evidence.* Circumstantial evidence is not admissible to prove the corpus delicti when better evidence is attainable. Where the defend- ant was charged with an assault, it was held that circumstan- tial evidence was not legitimate to prove the assault and to connect the defendant with it when the victim, for all that appeared, might have been called as a witness.^ 1 U. S. V. Gilbert, 2 Sumn. 19. » See ante, 138 e.t seq. ^ See ante, 142; Jervis, C. J., in Twyman v. Knowles, 13 C. B. 224; 76 E. C. L. ; Cutbush v. Gilbert, 4 S. & R. 551 ; Taylor v. Riggs, 1 Pet. S. C. Rep. 596. * Qabrielsky v. State. 13 Tex. Crirn. App. 428= » Porter v. State, 1 Tex. Crini. App. 394. 297 908 THE BEST EViraNCE MUST BE ADDUCED. fi I »' ' M ': Where non-consent if. a principal ingredient in the oflfence, direct proof alone from the person whose non-consent is neces- sary can satisfy the rule. Other and inferior proof cannot be resorted to till it be impossible to procure this best evidence.' In such cases, mere presumptive^ prima facie, or circumstan- tial evidence is secondary in degree, and cannot be used till all the sources of direct evidence are exhausted .2 Circumstantial evidence is admissible to prove the want of the owner's consent to the taking of property only when the owner is inaccessible by the use of ordinary diligence or beyond the reach of legal process.^ When it is shown that direct tes- timony cannot be produced, and that the failure to produce it is not attributable to any want of diligence, or to any fault on the part of the prosecution, then it is perfectly proper to resort to circumstantial evidence.* On an indictment under an old statute, now repealed, in England, for lopping a timber tree without the consent of the owner, the land-steward was called to prove that ho himself never gave any consent, and from all he had heard his master say (the master having died before the trial) he believed he never did. It was left to the jury to say whether they thought there was reasonable evidence to show that in fact no consent had been given. Bayley, J., adverted to the time of night when the offence was committed, and to the circumstance of the prisoner moving away when detected, as evidence to show that the consent required had not, in fact, been given. And themaste-, previous to his death, had ordered that the prisoner should be apprehended on suspicion.^ A jury ought not to be told that a conviction ought not to be had on circumstantial evidence when positive evidence is attainable, when, in fact, no positive evidence is attainable in the case.' Nor is the application of the rule confined to the proof of the principal fact ; it is " the master rule which governs all the » Chisholm v. State, 45 Ala. 68 ; Dixon v. State, 15 Tex. Crim. App. 480. ' Williams v. East India Co., 8 East, 192. Love V. State, 15 Tex. Crim. App. 563. * Clayton v. State, 15 Tex. Crim. App. 348. See also Schultz v. State, 20 Tex. Crim. App. 308 ; Williams v. SUte, 19 Id. 276 ; Trafton v. State, 5 Id 480 ; Foster v. State, 4 Id. 246. « Rex V. Hagy, 3 C. & P. (13 E. C. L.) 458. Sco also Rex v. Allen, 1 Moo. ^' ^- ^^- * Coleman v. State, 87 Ala. 14. -T!«W_a«,:«;ftn«™t TO THE BEST EVIDENCE MUST BE ADDUCED. 299 subordinate rules ; " ^ and applies alike to the proof of every individual constituent fact, whether principal or subordinate. Thus, in a trial for murder, Mr. Baron Maule refused to receive evidence of the contents of a coffin-plate in order to establish, the identity of the deceased, on the ground that, being remov- able, it might have been produced, and there being no other case of identity, stopped the case." The rule is, however, neces- sarily relaxed, where its application becomes impracticable by the Avrongf ul act of the party who would other;vise be entitled to claim its protection ; as where a witness is kept out of the way by or on his behalf,^ or a deed or other instrument in his possession, which he refuses, after notice, to produce.* Considering, moreover, the inherent infirmity of human memory, in the fair construction and application of this rule, evidence ought, in all criminal cases, and d fortiori in cases of circumstantial evidence, to be received with distrust, wherever any considerable time has elapsed since the commission of the alleged offence. The justice and efficacy of punishment, and more especially of capital punishment, inflicted after the lapse of any considerable interval, at least where the offender has not withdrawn himself from the reach of justice, are more than questionable.^ An unavoidable consequence of great delay is, that the party is deprived of the means of vindicating his in- nocence, or of proving the attendant circumstances of extenu- ation ; the crime itself becomes forgotten, or is remembered but as a matter of tradition, and the offender may have become a different moral being : in such circumstances punishment can seldom, perhaps never, be efficacious for the purpose of example. On these accounts judges and juries are now always reluctant to convict parties charged with offences committed long pre- viously. 1 2 Burke's Works, ut supra, 618 ; Mittermaier, ut supra, ch. 57. « Reg. V. Edge, Chester Spr. Ass., 1842. 8 Hawk, P. C. Bk. 2, c. 46, § 15 ; R. v. Guttridge, 9 C. & P. 471 ; Reg. v. Scaife, 20 L. J. M. C. 229. * Rex V. Hunter, 3 C. & P. 491 ; 4 Id. 128 ; Rex v. Haworth, 4 C. & P. 254 ; and see ante, Ch. III. § 7. * Rex V. Home, executed at Nottingham in 1759, for the murder of his natural child forty years before, 4 Cel. Trials, 396 ; and Rex v. Wall, 28 St. Tr. 51, whose execution took place after the lapse of twenty years from the commission of the offence ; and see the strictures of Lord Campbell on the case, 3 Lives of the C. Justices, 147 ; and Rex v. Roper, Leicester Sum. Ass., 1836, for a murder committed thirty-four years before, A. R. 1836. I! 1 1 j ', n j Jfi'^'! I "i 1 I ' '1| !,l H . r IM CHAPTER IV. THE QUANTITY OP EVIDENCE NECESSARY TO CONVICT. Section I. 77is Fficts must be Incompatible roith Innocence. In order to justify the inference of guilt, the inculpatory facts mAist be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypoth- esis than that of his guilt} This is the fundamental rule, the experimentum crttcis by which the relevancy and effect of circumstantial evidence must be estimated. The circumstances which will amount to proof sufficient to justify a conviction can never be matter of general definition.^ Mere suspicion, or grave suspicion, is not enough to convict.^ And an instruc- tion is erroneous from which the jury may gather that they may convict on a preponderance of evidence.* Circumstances are sufficient to convict when they are irreconcilable with any reasonable hypothesis of the prisoner's innocence.^ It is not necessary to prove such coincidence of circumstances as excludes every hypothesis but the guilt of the prisoner.^ The existence of the inculpatory facts need not be absolutely incompatible with the innocence of the accused, since that is to ask for proof of guilt beyond the possibility of a doubt,'' while neither the criminal act nor the wicked intent need bo proved beyond the possibility of a doubt.^ The truth of any 234 State V. Miller, 9 Houst. 564. « State V. Clouser, 69 la. 313. 1 Hunt V. State, 1 Grim. L. Mag. " Powers V. State, 16 Tex. 546. ♦ Gill V. State, 59 Ark. 422. » Kehoe v. Com., 85 Pa. St. 127 ; State v. Johnson, 19 la. 230 ; Beavers v. State, 58 Ind. 530. « Garrett v. State, 97 Ala. 18 ; State v. Matthews, 66 N. C. 106 ; State V. Schoenwuld, 31 Mo. 147 ; Horn v. State (Ala.), 15 So. 278. ' Carlton v. People, 130 111. 181 ; People v. Murray, 41 Cal. 00 ; U. S. v. CasBiily. f.7 Fed. Rep. 698. « State v. Daley, 41 Vt. 564. 300 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 301 fact which is to be proven by evidence cannot be established beyond the possibility of a doubt, and yet the jury may be entirely satisfied of its truth } An " undoubting " c a viction of guilt need not be produced." It is not, therefore, necessary that the circumstances should include all possibility that another than the accused committed the crime.* And an instruction ought not to be given from which the jury can take the moaning, that if they believe from the evidence that it isj}OH- slble some other person than the defendant committed the crime they ought to acquit, n^ matter how strong, consistent with such possibility, the evidence might be for the State.* But moral certainty must be produced. Where the counsel for defendant argued that the guilt of the accused must be so clearly demonstrated as to answer or rebut every suggestion or doubt that the ingenuity of counsel can devise, the court said that while everything renting to human affairs depending on moral evidence is open to some possible or imaginary doubt, stiU circumstantial evidence can be relied on as sufficient when it excludes, to a moral certainty, every other reasonable hypothesis except that of guilt.'^ And it haa been held that in this connection the word concludon is properly used instead of hypothesis.^ The hypothesis of guilt must flow naturally from the facts proved and be consistent with them all.7 It is not sufficient that the circumstances proved comcide with, account for, and therefore render probable, the hypothesis sought to be established, but they must exclude to moral certainty every hypothesis but the single one of guilt.^ The evidence is always insufficient, where, assuming all to be proved which the e\ndence tends to prove, some other hypothesis may still be true ; for it is the actual exclusion of every hypothesis which invests mere circumstances with the 1 People V. PadUlia, 43 Cal. 535. » State v. Paxton, 126 Mo. 500. 8 People V. Foley, 59 Mich. 553 ; Houser v. State, 58 Ga. 78. * Sumner v. State, 5 Blackf. 579 ; Findley v. State, 5 Blackf . 570, 6 Lopez V. State, 20 S. W. 395. And see Jeflferda v. People, 5 Park. Cr. R, 523 ; Turner v. State, 4 Lea, 206 ; Yarbrough v. State (Ala.), 16 So. 758 ; People V. Armstrong, 56 Cal. 397 ; People v. Nelson, 85 Cal. 421. « State V. Willingham, 33 La. Ann. 537. 7 People V. Bennett, 49 N. Y. 137 ; Ward v. State, 10 Tex. Crim. App. 293. 8 Burr. Circ. Ev. p. 181 ; State v. Moxley, 102 Mo. 374 ; State v. Taylor, 111 Mo. 588 ; People v. Dick, 32 Cal. 213. 'A! f l: i iU' ill. I li.iieii' i 302 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. force of proof. Whenever therefore the evidence leaves it in- (htferent vvhic^h of several hyi^thoses is true, or merely estab. lishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.* The true test by which to determine the value of circum- stantial evidence, in respect to its sufficiency to warrant a conviction in a criminal case, is, not whether the proof establishes circumstances which are consistent, or which coin- cide with the hypothesis of the guilt of the accused, but Avhether the circumstances satisfactorily established are of so conclusive a character, and point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypoth- esis of his innocence. The force of circumstantial evidence bemg exclusive in its character, the mere coincidence of a given number of circumstances with the h^'pothesis of guilt, or that they would account for, or concur with, or render probable the guilt of the accused, is not a reliable or admissible test, unless the circumstances rise to such a degree of cogency and force, as, in the order of natural causes and effect, to ex- clude, to a moral certainty, every other reasonable hypothesis except the single one of guilt." This rule was thus commented on by that admirable lawyer, Rufus Choate, in his address to the jury in the famous Dalton divorce case : a " It is a rule that may be called a golden rule m the examination and application of this kind of evidence which we caU circumstantial, that should it so turn out that every fact and circumstance alleged and proved to exist is consistent on the one hand with the hypothesis of guilt, and on the other hand consistent reasonably and fairly with the hypothesis of innocence, then those circumstances prove noth- » Stark on Ev. (10th Am. Ed.) 859 ; Wharton v. State, 13 So. 6C1 ; Algheri V. State. 25 Miss. 584. It is not therefore sufficient that the circumstances pointing to guilt create a probability-even a strong probability-of the guilt of the accused. Dreesaen v. State, 38 Neb. 375. » Binns V. State, 66 Md. 428 ; Riley r. State, 88 Ala. 193; Stout v. State 90Ind. 1 ; People v. Strong, 30 Cal. 157 ; People v. Shuler, 28 Cal 490- Cavender v. State, 126 Ind. 47 ; Sumner v. State, 5 Blackf. 579 ; The Jane V. U. S., 7 Cranch, 363 ; Caaey v. State, 20 Neb. 138 ; State v. Maxwell, 43 la. 208 ; Com. v. Cobb. 14 Gray, 57 ; State v. Ah Kung, 17 Nev. 361 : State V. Hunter, 33 Pac. 37 ; State v. Davenport (Ga.), 7 S. E. 37. » Before the Supreme Judicial Court of Ma.-.-^husetts, May, 1858 I: THE QUANTITY OF EVIDENCE NECESSAHY TO CONVICT. 303 ing at all.* Unless they go so far as to establish a necessary conclusion of this guilt which they offered with a view to establisli, they are utterly worthless and ineffectual for the investigation of tlio truth. It is not enough that the circum- stances relied on are plainly and certainly proved. It is not enough to show that they are consistent with the hypothesis of guilt. They must also render the hypothesis of innocence inadmissible, and impossible, unreasonable, and absurd, or they have proved nothing at all." Evidence which satisfies the minds of the jury to a moral certainty constitutes full proof.'' The law does not require that guilt shall be established by evidence which amounts to mathematical certainty. Moral certainty is all that can be required .8 It is perhaps well to set out here some of the most com- mendable judicial definitions of this phrase, "moral cer- tainty." When the jury are convinced to a moral certainty they may be said to be entirely satisfied.* There is a degree of doubt which belongs to all human affairs. One may sometimes doubt what is seen, very often what is heard ; our senses often deceive us. On the other hand there is a degree of certainty with which we are com- pelled to be satisfied in the most serious transactions of life ; and as no higher degree of certainty is ordinarily attainable in human affairs, it is that degree of certainty with which we must be satisfied in criminal trials.^ The jury ought to have the highest degree of certainty which the practical business of life admits of." Moral certainty is a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.'' It is that 1 3 Greenl. on Ev. § 29, n. 2 ; State v. Flanagan, 26 W. Va. 116. « James v. State, 45 Miss. 572 ; State v. Brown (Ka"n.), 40 Pac. 1001. « Giles V. State, 6 Ga. 276. In People v. Beck, 58 Cal. 212, a charge that •' tlie persuasion of guilt produced by the evidence ought to amount to almost a certainty, or such a certainty as convinces the minds of the jury as reasonable men," was held not to be erroneous, though unsatisfactory. ♦ State V. Milling, 36 S. C. 16 ; People v. PadUlia, 42 Cal. 535. 6 Pollock, C. B., in Reg. v. Exall, supra. « Reg. V. Kohl, C. C. C, Jan. 1865, coram Pollock, C. B. 1 Com. V. Webster, supra ; James v. State, 45 Miss. 572 ; State v. Orr, 64 Mo. 839. I , ,' ' '* ■< 304 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. degree of certainty which is supported by reason or probor bility, founded on the experience of the ordinary course of things, and must be reasonable in itself.^ And it has been well defined as that state of the judgment, grounded upon an adequate amount of appropriate evidence, which induces a man of sound mind to act without hesitation in the most important concerns of human life. In cases of direct credible evidence, that degree of assurance immediately and necessarily ensues ; but in estimating the effect of circumstantial evidence, there is of necessity an ulter- ior intellectual process of inference which constitutes an essen- tial element of moral certainty. The most important part of the inductive process, especially in moral inquiries, is the cor- rect exercise of the judgment in drawing the proper inference from the known to the unknown, from the facts proved to the factum, prohandum. A number of secondary facts of an incul- patory moral aspect being given, the problem is to discover their casual moral source, not by arbitrary assumption, but by the application of the principles of experience in relation to the immutable laws of human nature and conduct. It is not enough, however, that a particular hypothesis will explain all the phenomena ; nothing must be inferred, because, if true, it would account for the facts; and if the circumstances are equally capable of solution upon any other reasonable hjqiothesis, it is manifest that their true moral cause is not exclusively ascertained, but remains in uncertainty ; ^ and they must therefore be discarded as conclusive presumptions of guilt. If the inculpatory facts and circumstances, in any given case, are capable of two or more expla^nations, one of which is consistent with the innocence of the accused, and the other consistent only with his guilt, then the evidence does not fill the test of moral certainty, and is insufficient to support conviction.3 Every other reasonable supposition by which the facts may be explained consistently with the hypothesis of innocence must therefore be rigorously examined and success- ively eliminated ; and only when no other supposition will reasonably account for all the conditions of the case, can the conclusion of guilt be legitimately adopted.* » Pharr v. State, 10 Tex. Crini. App. 485. a Casey v. State, 20 Neb. 138. » Pogue v. State, 12 Tex. Crim. App. 283. * Mlttennaier, ut supra, cli. 59. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 305 Although the mystery of the crime cannot be solved from the evidence except upon the supposition of the defendant's guilt, a conviction cannot follow. The life or liberty of a per- son cannot be legally sacrificed on the ground that it is only by regarding him as guilty, that an explanation is afforded of the perpetration of a proved offence.^ In a case before the Court of Justiciary at Edinburgh, the Lord Justice Clerk Cockburn said that the matter might remain most mysterious, wholly unexplained ; they might not be able to account for it on any other supposition than that of the prisoner's guilt ; but that still that supposition or inference might not be a ground on which they could safely and satis- factorily rest their verdict against her.' But nevertheless it seems hardly possible to conceive of such a state of facts. If, however, the hypothesis fulfils the required conditions, the conclusion is no longer a gratuitous assumption, but becomes, as it were, part of the induction ; and an additional test is obtained, by which, as by the applica- tion of a theorem of verification, the conclusion may be tested, and, if true, corroborated and confirmed ; since, if it be true, it must harmonize with, and satisfactorily account for, all the facts, to the exclusion of every other reasonable hypothesis.^ In accordance with these sound principles of reasoning and inference. Lord Chief Baron Macdonald said that he had ever understood the rule as to circumstantial eviderce to be that Avhere the circumstances are true, where they are well con- nected, where they support each other in a clear and lucid manner, and where they cannot reasonably be accounted for unless the charge be true that is imputed to the prisoner, then the jury were justified in convicting upon that evidence.* On another occasion the same learned judge said that the nature of circumstantial evidence was this, that the jury must be satisfied that there is no rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty.^ Mr. Baron Alderson, with more complete exactness, said that to enable the jury to bring in a verdict of guilty, it 288. 1 Schulsler v. State, 29 Ind. 394. " Reg. V. Madeleine Smith, Rep. ut supra, 803. * Mittermaier, ut supra, ch. 59. * Rex V. Smit*-. for arson, ut supra, p. 80. » Rex V. Patcii, Surrey Spr. Ass., 1805. 11 iii vf 306 THE QUANTITY 01' EVIDENCE NECESSARY TO CONVICT. was necessary, not only that it should be a rational conviction, but that it should be the only rational conviction which the circumstances would enable them to draw.* In Humphreys' case, Lord Meadowbank said to the jury : " Your duty is to consider what is the reasonable inference to be drawn from the whole circumstances ; in short, whether it is possible to explain the circumstances upon grounds consistent with the innocence to the panel, or whether, on the contrary, they do not necessarily lead to a result directly the reverse." ' In a court whose judgments have always been entitled to respect, an instruction that " in order to convict circumstantial evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence," was some years since held free from error.^ But later decisions have ques- tioned this ruling and declared the instruction to be of ex- tremely doubtful propriety.* And in a very recent case, where the question came directly before the court, a similar instruc- tion was declared erroneous, as in such case the jury must be satisfied beyond a reasonable doubt.^ And there is no such rule for estimating the weight of cir- cumstantial evidence as that the circumstances necessary to convict must be as strong as the testimony of one credible eye- witness who swears positively that the prisoner did commit the offence." On the contrary, it is proper to instruct that where the evidence is not only consistent with the guilt of the defendant, but inconsistent Avith any other rational conclusion, the jury should convict, notwithstanding such evidence may not be as satisfactory as the direct testimony of credible eye- witnesses.7 The phrase ^^ absolute moral certainty'^'' is disapproved. It excludes not only reasonable doubt, but all doubt.* It suggests ,'i 1 Rex V. Hodges, 2 Lewin's C. C. 227. <> Swinton's Rep. ut supra, 368. » People V. Craine, 34 Cal. 191. And see People v. Padillia, 42 Cal. 585. « People V. Eckman, 72 Cal. 582,; People v. Sansome, 84 Cal. 449. 6 State V. Ryan, 12 Mont. 297. • State V. Coleman, 22 La. Ann. 455 ; State v. Alien, 103 N. C. 433 ; State V. Norwood, 74 N. C. 247 ; State v. Gee, 92 N. C. 75« ; Banks v. State, 72 Ala. 522 ; Mickle v. State, 27 Ala. 20 ; Faulk v. State, 62 Ala. 415 ; State v. Carson (N. C), 20 S. E. 324. ' State V. Slingerland, 19 Nev. 186. < State V. Glass, 5 Ore. 78 ; State v. Hogard, IS Minn. 998. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 307 a degree of certainty greater than moral certainty, and a court is justified in refusing to give an instruction containing such phrase.* Evidence may not be sufficient to produce in the minds of a jury an absolute certainty of the defendant's guilt, nor to prove that he had any motive to commit the crime charged, and yet be strong enough to satisfy the jury leyond a reasonable dmibt that he was guilty.'^ A presumption may be applied when the circumstances are such as to render the opposite hypothesis improbable. If the latter be rendered exceedingly remote and improbable, and morally, though not absolutely, impossible, the former is estab- lished as morally true.' It is common to charge that the State must inake out a case against the prisoner beyond a reasonable doubt,* or that the circumstances must be such as to satisfy the jury beyond a reasonable doubt of the defendant's guilt,^ or that if the jury are satisfied beyond a rational doubt of guilt they must con- vict.8 And the defendant had no ground of complaint in an instruction which charged in effect that the evidence must be sufficient in laAV to remove all reasonable doubt ; that if there Avas any other reasonable hypothesis upon Avhich it could be placed, then there would be room for reasonable doubt, and if they had a reasonable doubt, it was their duty to give the de- fendant the benefit of it and to acquit him ; but whether the testimony be positive or circumstantial, if it removed from their minds all such reasonable doubt, then it would be suffi- cient to authorize them to convict.'^ But to convince beyond a reasonable doubt, the circumstances must exclude to a moral certainty every other hypothesis but the single one of guilt.* A charge that the defendant should be found not guilty unless the evidence against him was such as to exclude to a » People V. Davis, 64 Cal. 440. « Sumner v. State, 5 Blackf. 579. » Cliisholm V. State, 45 Ala. 66. But where it had been charged that "the circumstances relied upon, taken together, must be of a conclusive nature, leading on the whole to an absolute certainty in the minds of the jury that the defendant is guilty beyond a reasonable doubt," this was ap- proved. Taylor v. State, 3 Tex. Crim. App. 169. * Houser v. State, 58 Ga. 78. « Phipps V. Stite, .9 Cnkl, 344 ; Sfhnolo.raft v. People, 117 HI. S71. * State V. Frank, 5 Jones' L. 384. ' Bryan v. State, 74 Oa. 398. * Black V. State, 1 Tex. Crim. App. 368. II r ' t.A I ! 308 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. moral certainty every supposition but that of guilt, is properly explained by the further statement that the jury must bi satisfied beyond a reasonable doubt of the defendant's guilt.^ The phrases, " proof to a moral certainty," and " proof beyond a reasonable doubt," are synonymous ; each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men, and applying their reason to the evi- dence before them that the crime charged has been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible.^ If the jury are not morally certain of every fact necessary to guilt, they cannot be said to be without reasonable doubt.^ But it is erroneous to instruct that persons sometimes say they are morally certain of the existence of a fact or facts, but have not the evidence to prove it, and that this is the condition of mind one is in when convinced beyond a reasonable doubt.* Reasonable certainty implies the absence of reasonable doubt ; and telling the jury that they must be convinced of a fact with reasonable certainty is almost, if not quite, the same as telling them that they must be convinced of it beyond a reasonable doubt.** Where the jury were told that the evidence must show the guilt of the defendant to their reasonable satisfaction, that their best judgments must be that the defendants were guilty, so that the mind might rest easy in the conclusion of guilt, it was unnecessary to charge that guilt must be shown beyond reasonable doubt.^ And the court, having charged that guilt must be proved to the exclusion of all reasonable doubt, and that if the testimony could be reconciled with any other rational theory than guilt they should acquit, may decline to charge that guilt must be proved to a moral certainty.^ It is always safer to lay down familiar rules of this character in language universally approved, than to undertake to give a new version in more doubtful language.^ 1 Tuibeville v. State, 40 Ala. 715. •-iCom. V. Costley, 118 Mass. 1 ; Ryan r. State, 83 Wis. 486. And see Carlton v. People (111.), 37 N. E. 244. » "Williams v. State, 52 Ala. 411. ♦ Heldt V. State, 20 Neb. 493. And see Young v. State, 95 Ala. 4. 6 McBee v. Bawman, 89 Tenn. 132. * Purkey v. State, 3 Heisk. 26 ; Lawless v. State, 4 Lea, 173. 7 Hall V. People, 39 Mich. 717. « Turner v. State, 4 Lea, 206. #H^ ft '• i: lA* THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 309 In trying a case depending upon circumstantial evidence very few abstract principles should be given to the jury. Left to exercise their common sense in their own way, the jury will generally determine correctly what is well proved, and what lacks further support. Furnished with a superfluity of rules, their attention is distracted, and the proffered help only obstructs. The better practice is to decline charging refined speculations, and give only sharp-cut law. What shall come to the jury as evidence is for the court ; what it is worth is for the jury. They can discern its true value with spare as- sistance from the bench.* It is a settled rule of practice in Texas that where the evi- dence is wholly circumstantial, tlie court must, whether asked to or not, instruct the jury as to the nature and conclusiveness of that character of evidence.'' And a judgment of conviction will be reversed because of failure to comply with this rule, though there is no probability that, had the charge been given, the result would have been different.^ This rule holds good though the corpus delicti is proved by positive testimony, if the evidence tending to fix the guilt upon the prisoner is wholly circumstantial.* But where a case is not dependent alone, or in a controlling degree, upon circumstantial evidence, a special charge is not required.^ Where there is direct evi- dence of the main fact and the circumstantial evidence ad- duced is merely in corroboration, the court is not required to U 1 Bleckley, J., in Monghan v. State, 57 Ga. 102. 2 Allen V. State, 16 Tex. Crim. App. 2:57 ; Thomas v. State, 13 Id. 493 ; Faulkner V. State, 15 Id. 115; Kenneda v. State, 16 Id. 258; Ramirely r. State, 20 Id. 133 ; Lee v. State, 14 Id. 2Gfi ; Harrison v. State, 6 Id. 42 ; Jackson v. State, 20 Id. 190 ; Ray v. State, 13 Tex. Crim. App. 51 ; Barr v. State, 10 Id. 507 ; Black v. State, 18 Id. 134 ; Murphy v. State, 17 Id. 640 ; Crowley v. State, 26 Id. 578. 8 Counts V. State, 19 Tex. Crim. App. 430 ; Cooper v. State, 16 Id. 341 ; Daniels v. State, 14 S. W. 395. * Eckert v. State, 9 Tex. Crim. App. 105. Where the pressure of the case is not upon the corpus delicti which has been clearly proven, but upon the question who is guilty party, and all the evidence inculpating accused is circumstantial, it is error for the court to instruct that the case is not founded altogether in circumstantial evidence. Simmons v. State, 95 Ga. 224. 6 Tooney v. Stat^, 8 Tox, Crim. App. 452 ; Bnntain v. State, 15 Id. 515 ; Mackey v. State, 20 Id. 603 ; House v. State, 19 Id. 237 ; Sharp v. State, 17 Id. 486 ; Clare v. State, 26 Id. 624 ; Leeper v. State, 29 Id. 154. in k 2 P. C. 39. S^ also Rex v. Thorntoa, «wpra ; Prather v. Com., 10 Crim. Li. Mag. 890. ■ See infra, 401 et aeq. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 333 Kentucky, where the court is confined to instructing the jury on the " law applicable to the case," it is held that circumstan tial evidence should be left like direct evidence to be considered by the jury, and to have such weight as they deem it entitled to without caution or suggestion on the part of the court to scrutinize it closely.' It is safer, therefore, as was wisely said by Sir Matthew Hale, to err in acquitting than in convicting, and better that many guilty persons should escape, than that one innocent man should suffer.2 Paley controverts the maxim, and urges that ♦'he who falls by a mistaken sentence may be considered as falling for his country, while he suffers under the operation of those rules by the general effect and tendency of which the welfare of the community is maintained and upheld." ^ There is no judicial enormity which may not be palliated or justified under color of this execrable doctrine, which is calculated to confound all moral and legal distinctions; its sophistry, ab- surdity, and injustice have been unanswerably exposed by one of the ablest of lawyers and most upright of men.* Justice never requires the sacrifice of a victim ; an erroneous sentence is calculated to produce in ' ;lable and irreparable mischief to individuals, to destroy all confidence in the justice and integrity of the tribunals, and to introduce an alarming train of social evils as the inevitable result. In Belaneifs case Mr. Baron Gurney^ one of the ablest and most experienced judges of the English criminal courts, in his summing up used this language: "If you think the case is conclusive, it is your duty to pronounce the prisoner guilty. But if you think it has left you in doubt so that you cannot safely convict, you will remember that it is better that many guilty men should escape than that one innocent man should perish." And again : " If you convict while there is any rational doubt, you act in defiance of a well-known rule of law, and may commit that foulest of all enormities, a murder under color of law ; whereas, if you err in an acquittal, the worst that can be said is, that human justice has miscarried — at least it has not committed a crime. In the une case a » Brady v. Com., 11 Bush, 283. * 2 R C= c. 39. » Mor. and Pol. Phil. b. vi. ch. 9. * Romily's Obs. on the C. L. of England, 73 ; Best on Pres. 393. ,r ' !' ([ ■ i*i ;! I i': it ' h§ * \v,. 1 lo.i-'" i ,>il. 324 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. murder merely passes for the present unpunished : in the other the most horrible of murders is committed." Every consideration of truth, justice, and prudence requires, therefore, that where the guilt of the accused is not incontro- vertibly established, however suspicious his conduct may have been, he shall be acquitted of legal accountability. The ac- cused is entitled to an acquittal unless the fact of guilt is proven to the exclusion of every reasonable hypothesis of innocence.^ No rule of procedure is more firmly established, as one of the great safeguards of truth and innocence, than the rule in question ; and it is the invariable practice of judges to advise juries to acquit whenever they entertain any fair and reason- able doubt.2 But a charge that, no matter how strong the circumstances might be, the jury should acquit if, under all the evidence, tbey believe that the accused might not have com- mitted the crime, imposes too strong a measure of proof on the prosecution.3 And to instruct that there must be an acquittal if "any uncertainty whatever exists," calls for too high a measure of proof.* A probability of a defendant's innocence is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal.^ And after having thus charged the jury it is proper for the court to add that " probability is the state of being probable ; and 'probable' has been defined to be 'more evidence for than against ; supported by evidence which inclines the mind to belief, but leaves some room for doubt.' " ^ Where the defendant requested the following instruction: " It is as much their duty as jurors to acquit the defendant, if from the evidence they have a reasonable doubt of his guilt, as it would be to convict him if they believe to a moral certainty 1 Prather y. Com., 10 Crim. L. Mag. 890. •^ State v.Bush, 132 Ind. 43 ; People v. O'Bryan, 1 Wheel. Cr. Cas. 21 ; People V. Blake, Id. 272 ; Joe v. State, 38 Ala. 422 ; Shultz v. State, 13 Tex. 401 ; Bradley v. State, 31 Ind. 493 ; Connor v. State, 34 Tex. 659 ; James V. State, 45 Miss. 572 ; Lowder v. Com., 8 Bush, 432 ; McGregor v. State, 16 Ind. 9 ; Reins v. People, 30 111. 256 ; State r. Crawford, 34 Mo. 200 ; McGuire v. State, 37 Miss. 269 ; Crilly v. State, 20 Wis. 231 ; Com. v. Cun- ningham, 104 Mass. 545. « Pate V. State, 94 Ala. 14. * Yarbrough v. State (Ala.), 16 So. 758. ' Dain v. State, 74 Ala. 38. « Williams v. State, 98 Ala. 22. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT, 325 that he is guilty ; and if from the evidence they are not satis- fied beyond a reasonable doubt that he is guilty, they Avould be false to their obligations as jurors if they were to convict him, as they would be should they acquit him if the evidence con- vinces them of his guilt to a moral certainty" — this was prop- erly refused as being argumentative, and having a tendency rather to confuse than to enlighten." ' The inherent imperfection of language renders it impossible to define in exact, express terms the nature of a reasonable doubt. It arises from a mental operation, and exists in the mind when the judgment is not fully satisfied as to the truth of a criminal charge, or the occurrence of a particular event, or the existence of a thing. It is a matter that must be deter- mined by a jury, acting under the obligations of their oaths and their sense of right and duty.^ And some courts hold it to be the better practice not to attempt to define a reasonable doubt,^ declaring that it is not susceptible of a clearer definition than is expressed in the phrase itself,* and that attempts to define it are unsafe and indiscreet, and, more often than otherwise, con- fusing to the jury. And certainly where the term is defined by statute, it would be well for a judge at the trial to follow the exact language of the statute without attempting further ex- planation. It is not error to omit to define the phrase when no instruc- tion containing the definition is asked ;^ and an instruction to the jury that they should be satisfied of the defendant's guilt beyond a reasonable doubt is often sufficient without further explanation. But in many instances, and especially where the case is at all complicated, some explanation or illustration of the rule may aid in its full and just comprehension.^ The law does not require that the testimony should be such as to exclude every possible doubt or every imaginary theory except that of the defendant's guilt.^ A probability of ini^o- 1 Cooper V. State, 88 Ala. 107. " Dick, J., in U. S. v. Hopkins, 26 Fed. Rep. 443. « Terr. v. Chavely, 30 Pac. 903 ; Mickey v. Com., 9 Bush, 593 ; Williams V. Com., 80 Ky. 313. ♦ Siberry v. State, 133 Ind. 677 ; Wall v. State, 51 Ind. 453. ' People V. Christensen, 85 Cal. 568 ; State v. Robinson, 117 Mo. 649. • Mr. Justice Field, in Hopt v. Utah, 120 U. S. 430. ' State V. Ford, 21 Wis. 610. li i\ 1.1' iS,' 326 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. cence is not a reasonable doubt.^ The ambiguous sentence, " mere probabilities of innocence or doubts, however reasonable, which beset some minds on all occasions, should not prevent a verdict of guilty," should not be employed in charging the jury upon this subject. But though disapproved, it will not, when used, cause a reversal if the charge is, in other respects, strong and clear.* A reasonable doubt is not a doubt created by the ingenuity of counsel,^ or of the jury.* And it is not a whimsical,* arbi- trary,^ or speculative^ doubt ; neither is it a trivial supposition.' It is not a conjecture or a guess,"* Nor is it such a doubt as is born of a merciful inclination to permit the defendant to escape the penalty of the law, nor one prompted by sympathy lOi' him or those dependent upon him.^<> The jury must not raise a fanciful or ingenious doubt to escape the consequences of an unpleasant verdict.** In a Missouri case** it was held that a charge directing the jniy that they might " act upon that degree of assurance such t'S prudent men properly act upon in the more important con- cerns of life," was correct when considered with other portions of the instruction. Whether a doubt is reasonable or not is never an absolute but always a relative question." And it has been said that an illustration by reference to the conviction upon which the jurors would act in the weighty and important concerns of life would be likely to aid them to a right conclu- sion." Si 1 1 » Reeves v. State, 29 Fla. 527. » People v. Lee Save Bo., 78 Cal 623. » U. S. V. King, 2 Wash. L. Rep. 501. * U. 8. V. Harper, 33 Fed. Rep. 471. * McGuire v. State, 43 Tex. 210 ; Welsh v. State, 96 Ala. 92. * McGuire v. People, 44 Mich. 286. ' Brown v. State, 1 Tex. App. 154 ; Boulden v. State, 102 Ala. 78. « Giles V. State, 6 Ga. 276. And see the language of Mr. Baron Parke, in Reg. V. TaweU, ut supm. » People V. Davis, 19 N. Y. S. 781 ; Welsh v. State, 11 So. 450. w Watt. V. People, 1 L. R. A. 403 ; 136 111. 9 ; United States v. Means, 43 Fed. Rep. 599 ; Perry v. State, 87 Ala. 30 ; Dick v. State, Id. 61 ; Vann v. State, 88 Qa,. 44 ; State v, Clayton, 100 Mo. 516 ; U. S. v. Harper, ut supra. " Com. V. Drum, 58 Pa. St. 9. " State v. Crawford, 34 Mo. 201. " Leonard v. Terr., 2 Wash. L. 381. " Mr. Justice Field, in Hopt v. Utah, 120 U. S. 480. And see State v. Nash, 7 Iowa, 347 ; State v. Ostrander, 18 Iowa. 458 : Arnold w. St.ate, 23 Ind. 170 ; United States v. Heath, 19 Wash. L. Rep. 818 ; State v. Kearley, 26 Kan. 77. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 327 ■ If," said Lord Chief Baron Pollock to a jury, " the conclu- sion to which you are conducted be that there is that degree of certainty in the case that you would act upon it in your own grave ' u important concerns, that is the degree of cer- tainty which the law requires, and which will justify you in returning a verdict of guilty." ^ " To require more," said the same high authority on another occasion, " would be really to prevent the repression of crime which it is the object of crim- inal courts to effect." ' For a trial juror, said the court in a recent case, it is such a doubt as a man of ordinary prudence, sensibility, and decision, in determining an issue of like concern to himself as that be- fore the jury to the defendant, would allow to have any in- fluence whatever upon him or make him pause or hesitate in arriving at his determination.' The Court of Appeals of New York lately approved an in- struction which substantially charged that a reasonable doubt could not be said to exist where the jury were so firmly con- vinced of the facts necessary to establish the prisoner's guilt, that, if it were a grave and serious matter, affecting their own affairs, they would not hesitate to act upon such conviction.* A doubt that would cause one to pause and hesitate, if fairly derived from the evidence, is a reasonable doubt within the mean- ing of the criminal law. " A doubt that would control our ac- tions in the important transactions of life would be one that was so strong as not to be overcome by the balancing process. Such doubt would be practically an unconquerable one. It would lead us not simply to refrain from acting, but to act." ^ But it is maintained by other courts that the degree of cer- tainty upon which men act in " their own grave and important concerns," will not justify a verdict of guilty in a criminal case. The jury, it is said, should be fully convinced of the correct- ness of theu' conclusion that the prisoner is guilty .^ 1 Reg. V. Manniag and Wife, C. C. C, Oct. 1849. And see the language of Mr. Justice Parke, in Doe d. Pattershall v. Ttu^ord, 8 B. & Ad. 897 ; and of Lord Mbaoowbank, in Reg. v. Humphrejrs, Swinton's Rep. 858. And see McGregor v. State, 16 Ind. 9. 2 Muller's Case, C. C. C, Jan. 1865. » Leonard v. Terr., 2 Wash. T. 381. * People V. Wayman, 128 N. Y. 585 ; People v. Hughes, 82 N. E. 1105. And see also State v. Elsham, 70 la. 581 ; Butter v. State (Oa.), 19 S. £. 51. » Com. V. Miller, 189 Pa. 77. •Jane v. Com., 2 Met. (Ky.) 80, 85; Palroerston r. Terr. 8 Wyo. 88; i I ,'■1 I .^;ii:ij t» i •i |tn»4 I I II 'i 828 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. The Supreme Court of Minnesota reversed a judgment be- cause of error in an instrm tion which charged " that in order to convict, the jury must be satisfied beyond a reasonable doubt that this does not require unreasonable or impractical >le things at the hands of the prosecution, nor absolute certainty ; but the jury should be satisfied as reasonable men, so that they would be willing to act upon it as in matters of great impor- tance to themselves." In the course of the argument on this ]mnt the court said : " The limitations of the charge are sub- stantially that unreasonable and impracticable things are not required of the prosecution, nor need the proof amount to ab- solute certainty ; on the other hand, it must not be a mere pre- ponderance of evidence. But within these limits any degree of proof upon which, as reasonable men, they would act in matters of great importance to themselves would be sufficient. Men may and do act in mattei*s of great importance to them- selves upon strong probabilities and without that degree of proof which convinces the mind ami conscience. But it would be unreasonable of men, in matters of the highest concern and importance to them, to act without a conviction of the truth of the evidence and correctness of the result upon which they base their action. Under this charge the preponderance of proof might be so great as to produce a strong probability of the defendant's guilt, such a probability as men would act upon in matters of great importance, and yet not convince the minds and consciences of the jury beyond a reasonable doubt of the guilt of the defendant." * People V. Maible, 30 Mich. 309; People v. Bemmerly, 87 Cal. 117; State V. Oocar, 52 N, C. 305 ; People v. Wohlfrom (Cal.), Feb. 17, 1891 ; Cohen v. State, 50 Ala. 108 ; Terr. v. Bannigan, 1 Dak. 451 ; State v. Rover, 11 Nev, 348 ; overruling State v. Millain, 3 Nev. 481. Where the court instructed that " if the same quantity and quality of f vidence offered here was offered to a reasonably careful business man as to his important busi- ness transactions, and it would induce him to act on his important business matters, there cannot be said to be a reasonable doubt," the judgment was reversed. State v. Shettleworth, 18 Minn. 308. See also People v. Ashe, 44 Cal. 288 ; Bray v. State, 41 Tex. 560. In a Wisconsin ca«e the jury were iPAtructed that they should require equally as strong and conclusive evi- dence of guilt as the jury would require to induce them to enter upon the ijreatest and most important acts of their lives, always remembering that their verdict must be the truth. And though the judgment was not re- versed the charge was declared not wholly satisfactory. Ryan v. State. 10 !■« . Vt . 000 ; OG VV lo. *30. 1 State V. Dineen, 10 Minn. 416. Similar to this was the language of the THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 329 In an early case in Pennsylvania Chief Justice Gibson said that a juror was " not at liberty to disbelieve as a juror while he believed as a man." * And recently Mr. Justice Paxson said that this language was entirely proper when considered in con- nection with the facts of the particular caso.^ In a subsequent case it was held that similar language, though liable to be misunderstood by the jury, was not erro- neous as a matter of law.^ But Mr. Justice Parson thought that even this required some qualiflcaiion. " If it does mis- lead t he jury , or is so used that it is likely to mislead the jury," it would, said that learned judge, be regarded as error. "There are many cases in which jurors, as mcii, may believe a person on trial for a crime to be guilty, where the evidence in the case would not warrant a conviction." But the following language in the charge, used in connection with the evidence of the particular case, was held proper : " This reasonable doubt is not one the jury will reach out for to relieve them from finding a verdict of guilty, but such a doubt as is left from the failure of tlie evidence to convince your minds of the guilt of the defendant. You should be con- vinced as jurors where you would be convinced as citizens, and you should doubt as jurors only where you would doubt as men V4 In Illinois it has been ruled that a juror may be instructed that his oath imposes no obligation to doubt where no doubt would exist if no oath had been administered.^ But in Indiana court in Bradley v. State, 31 Ind. 491. "A prudent man compelled to do one of two things affecting matters of the utmost moment to himself might, and doubtless would, do that thing which a mere preponderance of evi- dence satisfied him was for the best, and yet such a condition would fa 11 far short of that required to satisfy the mind of a juror in a criminal case. It must induce such faith in the truth of the facts which the evidence tends to establish that a prudent man might without distrust voluntarily act upon their assumed existence in matters of the highest import to him- self." And the conclusion of the court in this case was that there should be added to Mr. Starkie's definition the qualification that there should be such a conviction of the truth of the proposition that a prudent man would be safe to act upon the conviction under circumstances where there was no compulsion resting upon him to act at all. See also Jarrell v. State, 58 Ind. 293 ; State v. Potts, 20 Nev. 398. 1 Com. V. Harman, 4 Pa. 273. n In McMeen v. Com., 5 Cent. Rep. 887 ; 114 Pa. St. 300. * Fife V. Com., 39 Pa. St. 429. * McMeen v. Com., supra. 6 Watt V. People, 126 111. 9 ; 1 L. R. A. 403. ■■'4' w\ \m liiii i !*■ 830 THE QUANTITY DP EVIDENCE NECE8HARY TO CONVICT. such an instruction has boon declared improper, since it, in effect, relieves the jury from the obligation of thoir oaths.^ By belief beyond a reasonable doubt is not meant absolute certainty beyond all doubt, nor a more possibility of innocence.' The Missouri Court of Appeals has held it improper to use the phrase " real, substantial doubt." ^ But it may be said, on the sanction of authority, that the doubt that will justify acquittal, is not a probable doubt of defendant's guilt,* not an artificial and forced one,' not a "reasonable pos8il)ility " of innocence,' not mere possibility or speculation ; ^ but a real, substantial, well-founded doubt,* and such a one as would be entertained by a reasonable and conscientious man.* The Supreme Court of Louisiana gave its un<|ualifiod approval to a charge which declared that this doubt was " not a mere possi- ble doubt ; it should be an actual or substantial doubt, and such a doubt as a reasonable man would seriously entertain." ^^ The term refers to the strength of the belief, and a charge that the jury must convict if they "conscientiously believe the defendant guilty on the evidence," is erroneous, since this touches the smcerity of the belief." And so it has been said 1 Siberry v. State, 138 Ind. 637. To the same effect, see People v. John- eon, 140 N. Y. 850. » State V. Turner, 110 Mo. 196 ; Langford v. State, 32 Neb. 783 ; State v. Jefferson, 43 La. Ann. 995 ; State v. Talmage, 107 Mo. 648 ; U. S. v. Hughes, 34 Fed. Rep. 733 ; People v. Cox, 70 Mich. 247. » State V. Fitzgerald, 20 Mo. App. 408. A charge that reasonable doubt means a reasonable, substantial, real doubt, touching the defendant's guilt, and not a mere guess, conjecture, or mere possibility that defendant m\y be innocent, is incorrect. State v. Smith, 4 West. Rep. 788 ; 21 Mo. App. 595. « Prince v. State (Ala.), 14 So. 409. » State V. Bodekee, 34 la. 530. • Sims v. State (Ala.), 14 So. 560. ' Whart. Crim. Law, § 707 ; State v. Evans, 55 Mo. 460 ; Boulden v State 102 Ala. 78; Winter v. State, 20 Ala. 39; United States v. Foulke, 6 McLean, 349; Billard v. State, 30 Tex. 367; Langford v. State, 32 Neb. 783 ; Owens v. State, 53 Ala. 400 ; Clark v. Com., 123 Pa. 555 ; Com. V. Harman, 4 Pa. 269, 274. « State V. Nueslein, 25 Mo. Ill ; State v, Shaeffer, 5 West. Rep. 465; 89 Mo. 271 ; State v. Heed, 57 Mo. 252 ; State v. Leeper, 78 Mo. 470 ; State v. Blunt, 10 West. Rep. 49 ; 91 Mo. 503 ; State v. Payton, 7 West. Rep. 129 ; 90 Mo. 220. , Rounds, 76 Me. 133. And see Willis v. State (Neb.), 61 •State V, N. W. 254. w State V, Jefferson, 43 La. Ann. 995. And see Boulden v. State (Ala.), 15 So. 841. " Burt V. State (Miss.), 16 So. 342 ; Brown v. State (Miss.), 16 So. 203. THE QUANTITY OF EVIDENCE NECEHSARY TO CONVinT. 33I that it is a doubt based on reason and which is reasonable in view of ail the evidence' An indotinable doubt which cannot be stated with the rea- son upon which it rests so that it may be examined and dis- cussed can hardly bo considered a reasonable doul)t ; as such a one would render the administration of justice iinpracticable." This definition — a doubt " for which you can give a reason " — has, however, been criticised in one State,^ and held erroneous in tAvo or three others.* In Indiana an instruction of this kind has been declared misleading and improper, as placing upon the defendant the burden of furnishing to every juror a reason why he is not satisfied of the defendant's guilt with that cer- tainty which the law requires before there can be a convic- tion.* But in an earlier case in Indiana it wa« said to be a doubt which is cognizable by the reason and dwells in the understanding, as distinguished from a doubt which is raised by fear, hope, love, hatred, fancy, feeling, prejudice, interest, or some of the motives which sway our natures and which flit through the emotions instead of resting in the minfl." A charge on circumstantial evidence should bo so guarded as to confine the action of the jury to facts, rather than mere surmises.^ The jury must not go outside of the evidence to » United States v. Meagher, 37 Fed. Rep. 875 ; United States i>. MoKenzie, 35 Fed. Rep. 836 ; United States v. Zes Cloya, 35 Fed. Rep. 493 ; Kidd v. State, 83 Ala. 58 ; State v. Cliing Ling, 16 Ore. 419 ; State v. Schaffer, 74 Iowa, 704 ; Carr v. State, 23 Neb. 749 ; State v. Potts, 20 Nev. 389 ; State v. Streeter, 20 Nev. 403; United States v. King and Hopt v. Utah, sitpra; People V. Finley, 38 Mich. 482 ; People v. Cox, 14 West. Rep. 482 ; 70 Mich. 247, And a doubt will be justified by such facts only as subatantially impair the incriminating proof. State v. Dill (Del.), Nov. 6, 1889, 18 Atl. 763. a People v. Ouidici, 1 Cent. Rep. 731 ; 100 N. Y. 503 ; U. S. v. Johnson, 26 Fed Rep. 683 ; 3 Greenl. on Ev. (14th ed.) § 39 n. » State V. Sauer, 38 Minn. 438. ♦ Morgan v. State, 48 Ohio St. 371. In Ray v. State, 50 Ala. 104, the following charge was declared confusing and misleading : " A reasonable doubt has been defined to be a doubt for which a reason could be given ; a probability of the defendant's innocence is a just foundation for a reason- able doubt of his guilt." But Cohen v. State, 50 Ala. 108, approved a charge couched in these very words, and this was followed in Hodge v. State, 97 Ala. 37. » Siberry v. State, 1 33 Ind. 677. But such a definition was held not ground for reversal when given in instructions where the court was seeking to distinguish a reasonable doubt from a vague and imaginary one. State v. Morey (Ore.), 36 Pac. 373. « Wall v. State, 37 Ind. 453. ' Myers v. State, 6 Tex. Crim. App. 1. .. f > ['PI '■iJ 332 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. hunt up doubts.^ To justify acquittal the doubt must grow- out of the evidence alone.^ It must rest upon the fact that the evidence is insufficient in the judgment of the jury, to justify a verdict of guilty against the accused.^ It must be honestly entertained,* and must be generated by an insufficiency of proof which fails to convince the judgment and conscience, and satisfy the reason of the jury as to the guilt of the accused.^ The prisoner should be acquitted, if, upon a careful review of the evidence, the jury are not convinced of his guilt.® It makes no difference whether the doubt arises from a defect of evidence on the part of the prosecution oi from the impression made by evidence for the defendants It may arise from the want of evidence,^ or the jury may not believe sonic of the Avitnesses and may entertain a doubt in spite of the evi- dence.^ And where the court charged that a reasonable doubt usually arose from a want of evidence or a conflict of evidence, this Avas held reversible error in a case Avhere Avhatever doubt there Avas turned solely upon the credibility of a part of the 3videnc3.^*' An instruction is clearly erroneous Avhich announces that a preponderance of evidence in favor of the defendant is necessary in order to raise a reasonable doubt of his guilt.^* And there may be a preponderance of evidence or a weight of preponderant evidence against the accused and yet a reason- able doubt of his guilt.^^ There must be more than a prepon- 1 Welsh I'. State, 11 So. 450 ; Miller v. People, 39 1)1. 457 ; May v. People, 60 111. 119 ; Connaghan v. People, 88 111. 460 ; Dunn v. People, 109 111. 635 ; Gannon v. People, 137 III. 507 ; Wacaser v. People, 134 111. 438 ; Minich v. People, 8 Colo. 440 ; State v. Pierce, 31 Md. 448 ; Kelly v. People (Colo.) ; U. S. V. Cassidy, 67 Fed. Rep. 698. a State V. Dill (Del.), Nov. 6, 1889, 18 Atl. 763 ; Cicely v. State, 18 Sraedes «& M. 311 : Browning r. State, 33 Miss. 47 ; Bowler v. State, 41 Miss. 570. - State V. Coleman, 30 S. C. 445 ; State v. Senn, 33 S. C. 392 ; United States V. Carpenter, 41 Fed. Rep. 330 ; United States v. Keller, 19 Fed. Rep. 633. * People V. StiebenvoU, 63 Mich. 329. 6 U. S. V. Harper, 33 Fed. Rep. 471 ; Purkey v. State, 3 Heisk. 36. « McGuire v. People, 44 Mich. 386 ; Donnelly v. State, 36 N. J. L. 601. "> People V. Fairchild, 48 Mich. 31. 9 Hodgkins v. State, 89 Ga. 761 ; Long v. State, 38 Ga. 491 ; Brown v. State, 105 Ind. 383 ; Haie v. State (Miss.), 16 So. 387. » Mickey v. Com., 9 Bush, 593 ; Williams v. Com., 80 Ky. 313 ; People v. Kerr, 6 N. Y. Cr. R. 406. »" McElven v. State, 30 Ga. 809. " State v. Porter, 64 la. 237. « Walbridge v. State, 13 Neb. 336. And see State v. Red, 53 la. 69. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 333 derance of evidence to sustain conviction ; there must be an abiding conviction to a moral certainty of the truth of the charo-e, derived from a comparison and consideration of all the evidence.^ If the rule as to reasonable doubt be applied to the whole facts of the case, this will satisfy the demands of the law. It is not necessary that the court should charge the reasonable doubt as to every particular matter constituting the principal issue in the case.^ And the cases sustain the proposition that the reasonable doubt the jury is permitted to entertain must be on the whole evidence and not as to any particular fact in the case.3 Any single material fact may not be singled out : it is not any fact proved by the defence which will justify a doubt of guilt, but such facts only as substantially impair the crimin- ating proof.* And since the e\ ie must be tried on all the evidence, an instruction is properly refused which asks the jury to acquit if a single fact proved to their satisfaction is incon- sistent with the defendant's guilt.^ After refusing to charge that " each link in the chain of circumstantial evidence must be established to the same degree of certainty as the main fact itself," Judge Daniels, in a recent case in New York,^ charged the jury that " what the law designs is that these circumstances should be laid before the jury and massed together by them, not separately or dis- tinctly, but together for the purpose of determining in their minds what the circumstances, when they are so massed and considered, sustained by the way of conclusion. These matters of circumstantial evidence have been described, not inaptly, as twigs, one of which Avould resist the application of no force whatever, but when you bind them together, one twig after another, until you make a cable or mass of them, they 1 People V. Braniion, 47 Cal. 96 ; People v. Ah Sing, 51 Cal. 37^, citing Jane V. Com., 3 Met. (Ky.) 30 ; State v. Oscar, 52 N. C. 305. 2 McCuUough V. State, 23 Tex. Crim. App. 620 ; King v. State, 19 Id. 058 ; Willis V. State (Neb.), 61 N. W. 254. 8 Webb V. State, 9 Tex. Crim. App. 490 ; Barrr. State, 10 Id. 507 ; Dressier V. People, 117 III. 42i ; MuUins v. People, 110 111. 42 ; Leigh v. People, 113 III. 372 ; Davis v. People, 114 III. 98 ; People v. Wolff, 95 Mich. 625 ; Jame- son t'. State, 25 Neb. 185 ; Siebert v. People, 143 III. 571 ; Weaver v. People, 132 111. 536. * State V. Dill, 18 Atl. 763 ; State v. Schoenwald, 31 Mo. 147. 6 State t'. Johnson, 37 Minn. 493. « People V. Kerr, 6 N. Y. Cr. R. 406. 334 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. present then a body of strength that can overcome nearly all forms of physical resistance. Circumstances are brought into the case, not to be considered separately and thrown away, be- cause each, in and of itself, does not establish the theory on the part of the prosecution, and they are to be considered at large, one with the other, so far as they are supported and maintained by the evidence." ^ And in another case, where a similar instruction to that refused in the preceding case was requested, the court charged as follows : " The defendant is presumed to be innocent of the crime charged until proved guilty beyond a reasonable doubt, and as the evidence in this case is circumstantial, it is your duty to give all the circumstances a careful and conscientious consideration, and if, upon such consideration, the minds of the jury are not iirmly and abidingly satisfied of the defend- ant's guilt ; if the conscientious judgment of the jurors wavers and oscillates, then the doubt of the defendant's guilt is reason- able, and you should acquit." ^ The doubt need not be a " clear and strong " one. The proper word is " reasonable," that is, just, rational, conform- able, or agreeable to that faculty of the mind by which it dis- tinguishes truth from falsehood, and good from evil. It im- plies a want of that fulness and completeness of proof which would enable the mind satisfactorily to draw the conclusion of guilt from the facts in evidence.^ The Supreme Court of Oregon has recently, in a well-con- sidered case, decided that a correct definition of the phrase is contained in an instruction which declares that a reasonable doubt " is not every doubt and is not a captious doubt, that it is such a condition of mind resulting from the consideration of the evidence before the jury as makes it impossible for them as reasonable men to arrive at a satisfactory conclusion ; that it is not a consciousness that the conclusion arrived at may possibly be erroneous, but such a state of mind as deprives one of the ability to reach a conclusion that is satisfactory." * In Texas the folloAving has been approved : A reasonable > See also Taylor v. State, 9 Tex. Crim. App. 100 ; Timmerman v. Terr., 8 Waah. 445. ••' State V. Hay den, 45 la. 11. » Bowler v. State, 41 Miss. 570. * State V. Roberta, 15 Ore. 187. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 335 doubt is such a doubt as fairly and naturally presents itself from the facts which the jury believe to be true. All the material facts which the jury believe to be true should lead in such a manner to the conclusion, to a moral certainty, that the defendant is guilty as that they cannot reasonably believe jtherwise.i And the Supreme Court of the United States has held that the jury may be instructed thus : " If after an impartial com- parison and consideration of all the evidence you can candidly say that you are not satisfied of the defendant's guilt, you have a reasonable doubt ; but if, after such impartial comparison and consideration of all the evidence, you can truthfully say that you have an abiding conviction of the defendant's guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt." 2 While the Supreme Court of Maine has sanctioned this : A doubt which a reasonable man of sound judgment without bias, prejudice, or interest, after calmly, conscientiously, and deliberately weighing all the testimony, would entertain as to the guilt of the accused.^ In Georgia it has been said that there is no error in defining reasonable doubt as such a doubt as the term itself implies, as a doubt that has something to rest upon, some reason that it is based on ; such a doubt as would control the jury, and that they would be governed by in their important business affairs ; such a doubt as a sensible, honest-minded man would reason- ably entertain in an honest investigation after truth ; a doubt that would arise from the evidence or want of evidence in the case, not a mere vague conjecture or a bare possibility of the innocence of the accused.* A definition which is frequently quoted and which is estab- lished as a safe definition is that of Judge Birchard in an early case in Ohio. According to that learned judge there is a rea- sonable doubt if the material facts without which guilt cannot be established may be fairly reconciled with innocence. When 1 Monroe v. State, 23 Tex. 210 ; 76 Am. Dec. 58 ; Brown v. State, 1 Tex. App. 154. a Hopt V. Utah, 120 U. S. 430 ; 30 L. Ed. 708. See also State v. Gibbs, 10 L. R. A. 749 ; 10 Mont. 213 ; United States v. King, 34 Fed. Rep. 302 ; Owens V. State, 53 Ala. 400 ; Mose v. State, 36 Ala. 211. » State V. Keid, 62 Me. 129. See also People v. Stott, 4 N. Y. Cr. H. 306. * Fletcher v. State, 90 Ga. 468. 1.,^^" t "\' '5 ■■» W > i 33G THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. a full and candid consideration of the evidence produces a con- viction of guilt, and satisfies the mind to a reasonable certainty, a mere captious or ingenious artificial doubt is of no avail.^ And in that justly celebrated opinion,'' so many times quoted in this volume, Chief Justice Shaw said : " It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt ; because everj'^thing relating to human afl'airs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral cer- tainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence ; and every person is pre- sumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is en- titled to the benefit of it by an acquittal. For it is not suf- ficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary ; but the evidence must establish the truth of the fact to a reasonable and moral cer- tainty ; a certainty that convince? and directs the understand- ing, and satisfies the reason and judgment, of those who are 1 Clark V, State, 12 Ohio, 483. And see Morgan v. State, 48 Oliio St. 371. ^ That delivered in the case of Com. v, Webster, 5 Cush. 295 ; 53 Am. Dec. 711, quoted and followed as to this point in the following cases among othera : People v. Strong, 30 Cal. 151 ; State v. Nelson, 11 Nev. 334 ; State V. Jones, 19 Nev. 365 ; Donelly v. State, 26 N. J. L. 601 ; People v. Schryver, 43 N. Y. 1 ; People v. Beck, 58 Cal. 43 ; Lovett v. State, 17 L. R. A. 705 ; Hampton v. State, 1 Tex. Crira. App. 653 ; Pogue v. State, 12 Id. 283. For a full discussion of "what constitutes a reasonable doubt in criminal cases," see an annotation by the author, appended to the case of Lovett v. State, 17 L. R. A. 705. In addition, see tlie following recent cases which have considered the subject : People v. Smith (Cal.), 39 Pac. 40 ; Gregg v. Soate (Ala.), 17 So. 331 ; Chitister v. State (Tex. Crim. App.), 28 S. W. 683 ; ijoggins V. State, 32 Tex. Crim. App. 364 ; Cai-son v. State (Tex. Crim. App.), 30 S. W. 799 ; Hester v. Com. (Ky.), 29 S. W. 875 ; Franklin V. State (Tex. Crim. App.), 31 S. W. 643 ; De Los Santos v. State (Tex. Crim. App.), 26 S. W. 831. And in the following cases, instructions in- volving this question have been held erroneous : Jackson v. State (Ala.), 17 SO.-333 ; Rhea v. State (Ala.), 14 So. 853 ; State v. Smith (Conn.), 31 Atl. 200 ; Le Comle V. U. 3., 23 Wash. L. Rep. 482 ; U. S. v. Romero (Ariz.), 35 Pac. 1059 ; Cochran v. U. S., 157 U. S. 286. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 337 bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt ; because if the law, which mostly de- pends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude cir- cumstantial evidence altogether." The rules of evidence, as founded on reason and consecrated in the judgments of the courts, constitute the best means for discovering truth, and are an integral part of our legal system, essential alike for private and social security.* Nevertheless, language of most dangerous tendency in regard to them has occasionally fallen from learned judges, which implies that they may be modified, according to the enormity of the crime, or the weightinessof the consequences which ?,ttach to conviction. Lord Finch, afterwards Lord Chancellor Nottingham, on the trial of Lord Cornwallis, said, " The fouler the crime is, the clearer and the plainer ought the proof to be." ^ *' The more flagrant the crime is," said Mr. Baron Legge, " the more clearly and satisfactorily you will expect that it shall be made out to you." 2 Mr. Justice Holroyd is represented to have said thet " the greater the crime, the stronger is the proof required for conviction." * And similar language is to be found in some of the text-books.^ Upon a trial fov high treason, Lord Chief Justice Dallas, after adverting to the extreme guilt of the crime, as seeking the subversion of the established government, and aiming at the property, the liberty, and the lives of all, said : " Still, how- ever, nothing will depend upon the comparative magnitude of the offence ; for be it great or small, every man standing in the situation in which the prisoner is placed is entitled to have the charge against him clearly and satisfactorily proved ; with only this difference (and I make the observation at the outset, as being in favor of the prisoner), that in proportion to the magni- tude of the offence, and the consequences which result from his conviction, ought the proof to be clear and satisfactory." * In the case of the Glasgow cotton-spinners for conspiracy and murder, the learned Lord Justice Clerk Boyle said that the 1 GUes V. State, 6 Ga. 376. a 7 St. Tr. 149. And see Rex v. Crosaley, 36 St. Tr. 218. » Rex V. Blandy, 18 St. Tr. llWG. * Rex v. Hobson, 1 Lewin's C. C 261. ' See the work of Judge Swift on Evidence, p. 151. a Rex V. Ings, 33 St. Tr. 1135. 22 338 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. \i< »'M 11 n i ¥* 'II I it magnitude of the charge ought to have no other effect than rendering it more necessary that the jury should be fully satis- fied that the evidence is clear upon the subject.^ The distinc- tion was more broaxily laid down by the late Lord Justice Clerk Cockburn, in Madeleine Smith's case. " In drawing an inference," said the learned judge, " you must ahvays look to the import and character of the inference which you are asked to draw ; " and the same distinction pervades the whole of the charge in that celebrated case. These dicta are opposed to the principles of reason, and in- consistent with all established rules of law. No legal doctrine is more firmly settled than that there is no difference between the rules of evidence in civil and criminal cases. The rules wiiich govern the admission of evidence apply with equal authority and force in criminal and civil proceedings. These rules must be received in all cases as the surest guide which the lavv ^-ffords for ascertaining the truth of any alleged mat- ter of fact, and must be the same both on the criminal and civil side of the court, whatever the nature of the fact to be in- vestigated. There can be no safe departure from them under the influence of a feeling of tenderness or humanity for persons charged with crime.^ If under any circumstances they may be relaxed according to notions of supposed expediency, they cease to be, in any correct and intelligible sense, rules for the discovery of truth, and the most valued rights of civilized men become the sport of chance. The logical consequences of any such power of relaxation would be, that the rules of evidence are radically different in civil and criminal cases, and different even in criminal cases, as they are applied to particular classes of crime, according to some arbitrary and imaginary measure for estimating their relative enormity and penalty. Is the dic- tum, it may be asked, to be restricted to cases where the con- sequence of conviction may be loss of life ? Is it to be repudi- ated when it may be followed by the inferior penalties of fine * Reg. V. Hanson and others, Court of Justiciary, 1838 ; Short-hand Rep. 366. * See remarks of Abbott, J., in Rex v. Watson, ? Stark. (3 C. C. L.) 155, and of Walworth, J., in People v. Thayers, 1 Fa,rk. Cr. R. 595; Rex v. Murphy, 8 C. & P. (34 E. C. L.) 306 ; Lord Melville's Case, 29 How. St. Tr. 763 ; O.ni. v. Abbott, 130 Mass. 472 ; U. S, v. Britton, 2 Mason, 464 ; Roscoe Cr. ii>'. (8th Am Ed.)l ; 3 Russ. on Crii^ies (9th Am. Ed.), 212 ; Brown V. Schock, 77 Pa. St. 471. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. o39 or imprisonment ? Is it to be applied or rejected in application to the numerous cases, civil as well as criminal, where physical and social consequences may follow, which, though of a dif- ferent kind, may be scarcely less fatal to the individual than loss of liberty, or even of life itself? And if the maxims of evidence may be made more stringent in one direction, there is no reason why they may not be relaxed in another, according to the greater difficulties incidental to the proof of the more atrocious and dangerous forms of crime, as some writers on the civil law have actually maintained. A distinguished historical writer, whose opinions on every question of legal science or of constitutional principle are eminently entitled to respect, with the strictest philosoph* ^al truth, and with great felicity of illus- tration, has thus denounced the doctrine under review: "The rules of evidence no more depend on the magnitude of the in- terests at stake than the rules of arithmetic. Wo might as well say that we have a greater chance of throwing a size when we are playing for a penny, than when we are playing for a thou- sand pounds, as that a form of trial Avhich is sufficient for the purposes of justice, in a matter of liberty and property, is insuf- ficient lii a matter affecting life. Nay, if a mode of proceeding be too lax for capital cases, it is, d priori, too lax for all others ; for in capital cases the principles of human nature will always afford considerable security. No judge is so cruel as he who Indemnifies himself for scrupulosity in cases of blood, by license in affairs of smaller importance. The difference in tale on the one side far more than makes up for the difference in weight on the other." ^ While t'le rules of evidence are the same in civil and crim- inal cases, there is a difference in the nature of the issue, and consequently, as has been pointed out, in the quantum of proof ,2 For while, in civil cases, a preponderance of evidence is sufficient to justify a verdict, in criminal cases, a conviction cannot be had upon any preponderance of evidence unless it generates full belief to the exclusion of all reasonable doubt.^ This difference be- tween the rules as to presumptions in civil and criminal cases has been said to arise from this : that in civil cases it is always necessary for a jury to decide the question at issue between the parties. However much therefore they may be perplexed, they 1 1 Macaulay's Essays (1st Ed.). 143. 2 2 Bish. Crim. Proc. (2d Ed.) § 1064. » 3 Greenl. on Ev. § 29 340 THE QUANTIIT OF EVIDENCE NECESSARY TO CONVICT. ; I w i i' > *■ U' i fi; ill I' r ! m' A h ' cannot escape from giving a verdict founded upon one view or the other of the conllicting facits hoforo them. Presumptions therefore are necessarily made ui)on comparatively \vea\i grounds. But in criminal cases there is always a result open to the jury which is practically looketl upon as merely negative, namely, that which declares the accused to be not yiuilty of the crime with which he is charged.* It is contended that there is an exception to this general rule where the issue in a civil case is one in which crime is imputed and the guilt or innocence of a party is directly or incidentally involved. This exception is most frequently invoked in actions of libel and slander, where a justification imputing crime is pleaded, and actions on fire policies where the defence is that the property was wilfully burned by the insured, The doc- trine that, in an action on a policy, the defence that the plaint- iff had wilfully sot tire to the premises must be as fully and satisfactorily proved as if the plaintiff were on trial on indict- ment, originated in the case of Thurtell v. BecmvumtJ^ In an early case in Ohio the defendant was charged Avith having burnt his own boat with the intent of defrauding the company of the insurance money. It was held that the evi- dence must be so strong as to satisfy the jury beyond a reason- able doubt that the boat was so burnt.^ And in a later case it was said to be established law that, in civil as well as in criminal cases, a party cannot be found guilty of a crime unless upon proof which excludes all reasonable doubt.* A case in Iowa which has been often cited was an action for burning the plaintiff's wheat. The defendant insisted that, to 1 McNally Ev. p. 578 ; 1 Phil. Ev. (10th Ed.) 456 ; 1 Roscoe's Cr. Ev. (8th Am. Ed.) 23. * 1 Bing. (8 E. C. C.) 309. And thia is said to be the rule in England. See 1 Taylor's Ev. (5th Ed.) U7a. In England there was a reason for carrying the distinction thus made between civil and criminal cases into suits of thia description. There, aa Lord Kenvon remarked in Cork v. Field, 8 Esp. 133, "where a defendant justifies words ■which amount to a charge of felony, and proves his justification, the plaintitF may be put upon his trial by that verdict without the intervention of a grand jury." See note (a) to Willmettt'. Banner, 8 C. & P. 695. And see Stephen's Dig. Ev. Art. 94 . 1 Greenl. Ev. (14th Ed.) § 13a, note. 8 Lexingtoj Ins. Co. v. Pauer, 16 Ohio, 824 And see 2 Greenl. on Ev. §408. * Strader t. MuUane, 17 Ohio St. 624. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 34I recover for an act which is a crime, the cause of action must be made out with the same degree of proof as would be neces- siiry to convict the defendant upon an indictment. And this position was sustained.* But this case has been since overruled." And the generally received doctrine now is that there is no rule Oi evidence which requires a greater degree of proof to authorize a verdict in one civil action than in another by reason of the peculiar questions involved," and that in an action upon a policy of insurance whore the defence is that the plaintiff wilfully set fire to the building insured, the rule of evidence is the same as in other civil cases, and the jury must determine the issue upon the weight or preponderance of evidence.* Judge Depew, delivering the judgment of the court, in a case cited in the last note*^ to the former paragraph, said that, " actions of libel and slander, on an issue upon a justification, might be regarded us exceptional in character. A defendant in such an action, if he was warranted in giving publicity to the defamatory words by the occasion of publishing or uttering them, may discharge himself if ho shows by a preponderance of evidence that the occasion was such as to make the com- munication a privileged communication. But if he published or uttered the defamatory words under other circumstances, in doing so he was a mere volunteer without any personal or private interest in the subject-matter. In putting his justifica- tion on the ground of the plaintiff's guilt of the accusation, he undertakes to prove the plaintiff's guilt, which comprises not only the doing of the act, but also the intent which the law denounces as criminal. As a matter of pleading, he is bound to plead with precision, a justification as broad as the accusation attempted to be justified and containing all the ingredients nec- essary to the commission of the crime ; and as a question of * Barton v. Thompson, 46 la. 30. See further to the same effect, McCon- nell V. Delaware Mut. Safety Ins. Co., 18 111. 228; Butneau v. Hobbs, 35 Me. 227. * Welch V. Jugenheimer, 56 la. 11 ; Kendig v. Overhulser, 58 la. 195. « Robinson v. Randall, 82 111. 521 ; Hall v. Barnes, Id. 228 ; Watkins V. Wallace, 19 Mich. 57 ; Elliott v. Van Buren, 33 Mich. 49. * See Kane v. Hibernia Ins. Co., 39 N. J. L. 697 ; Washington Union Ins. Co. t>. Wilson, 7 Wis, 169 ; Wright v. Haedy, 22 Wis. 348 ; Blaeser v. Mil- waukee Mech. Mut. Ins. Co., 37 Wis. 31 ; Rothschild v. Am. Ins. Co., 62 Mo. 356 ; Bradish v. Bliss, 85 Vt. 826 ; Scott v. Home Ins. Co., 1 Dill. 105 ; Hoffman v. W. M. & F. Ins. C- ., 1 La. Ann. 3!6. 6 Kane V. Hibernia Ins. Co., supra. 'r Ml > [ t 1 r !• Is ( I { II" 1; •"■ ' 342 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. evidence he is bound to make his proof co-extensive with the averments in his plea. Under such circumstances it is neither impohtic nor unrp;,,-<)?!ablo to require the truth of the accusa- tion to be eptabiibf tv^ by the same degree of proof as is re- quired on the trial oi an indictment." Cut several of the judges declined to bo committed to these p; positions. And it is perhaps the better rviie that there is no difference between a justification in slander and any other case where the plaint- iff's cause of action, or the defor^'.-'nt's ground of defence, is to be supported by proving that the other party has committed a crime.^ In an action for slander in charging tno plaintiff with having committed adultery, the court thought it best to draw the line between the Ctases where full proof beyond a reason- able doubt shall be re(iuired, and those where a less degree of assurance may serve as the basis of a verdict, " where the juror instinctively places it, making it to depend rather upon the results which are to follow the decision, than upon a philo- sophical analysis of the character of the issue." ^ A learned judge has said that " it is as unreasonable to re- quire a civil suit to be determined by the rules of evidence applicable to a criminal prosecution, as it would be to require a tailor to measure A. when he is going to make a suit of clothes for B. The measure of proof must be determined by the char- acter of the issue being tried." ^ And where the defendant was charged with being the father of a bastard child, and the object of the suit was to compel him to contribute towards the child's support, it was held not necessary that the jury should be satisfied beyond a reasoni^ble doubt of his guilt.* In trover, where the evidence was such as to involve a charge of larceny, a direction to the jury that the evidence, to justify a verdict against the defendant, must satisfy them of the truth of the charge beyond a reasonable doubt, was held to be erroneous.^ 1 Briggs V. Cooper, cited in Bradish v. Bliss, 35 Vt. 33" And see Folsora V. Brown, 25 N. H. 114. » Ellis V. Buzzell. 60 Me. 209. * Judge Walton, in Knowles v. Scribner, 57 Me. 495. * Knowles v. Scribner, supra. And see People v. Phalen, 49 Mich. 492. * Bissell V. West, 35 Ind. 04. THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. 343 In an action to recover for cattle which had bflen stolen, it was held not essential to recovery that the felonious taking must be made out in the same manner as if it was a public prosecution.* And where the plaintiff sued for the wrongful and malicious killing of her husband, it was laid down that it was not neces- sary to a recovery of damages that the defendant's guilt should be established beyond a reasonable doubt, but that it was suffi- cient for the plaintiff to make out her case in accordance with the rule prevalent in other civil cases.'* In a case in Minnesota the question arose whether a charge of fraud in a civil action, like the charge of crime in an indict- ment, must be proved by satisfactory evidence excluding all reasonable doubts. The cause of action, if sustained, implied an offence against the statute ; and it was claimed the court must first determine whether the facts stated in the pleadings, or adduced by the evidence, were sufficient upon which to predicate a criminal charge, and, if so, then to apply the criminal rule to Die trial of the case, even though the issue actually raised by the pleadings in no way involved the determination of the fact of a criminal offence having been committed. The court said this was unsound in principle and unsupported by authority.' And an instruction that " in order to set aside a will, on the ground of undue influence, it must be shown that the circumstances of its execution are inconsistent with any other hypothesis than such undue influence," Avas declared manifest- ly erroneous.* In an action on a promissory note, the defence that the note was obtained by false and fraudulent representations, might, it was held, be sustained by a preponderance of evi- dence, as in other civil cases.^ "With regard, however, to the quantity of evidence required to prove the fact of adultery, there seems to be no approach to uniformity in the authorities. 1 Munson v. Atwood, 30 Conn. 102. To the same efifect see Hitchcock V. Hunger, 15 N. Y. 102. 2 Nichols t'. Winfrey, 79 Mo. 544. » Burr V. Wilson, 22 Minn. 206. See also Stranathan v. Greaves, 26 Ohio St. 2. * Gay v. Gillelan, 92 Mo. 250. ' Gordon v, Parmlee, 15 Gray, 413. I. '' I r, ». M' ip T i; ii! I* 1( i r OJ nUi k hM 344 THE QUANTITY OF EVIDENCE NECESSARY TO CONVICT. Lord Stowell statetl tho rulo to be that " there must l)e such proximate circumstances prtjved as, by former decisions, or on their own nature and tendency, satisfy the legal conviction of the court that the criminal act has been committed." * Elsewhere it is said that the court is not warranted in a conclusion when all that is proved is susceptible of a construc- tion of innocence.' An action for divorce on the ground of adultery is not infrequently attended with the most serious consequences, destroying the family, leaving a stain upon the name of in- nocent offspring, and affecting the property rights and civil status of the parties, and therefore it would seem eminently proper that the court should proceed with great caution, and require the party making the charge to establish the truth of the fact to a reasonable and moral certainty.' » Williams v. Williams, 3 Hagg. Con. 290. It may be remarked here that by the common law the act of adultery was not punishable by indict- ment, but was left to the cognizance of the spiritual courts alone. See 3 Greenl. on Ev. § 48. * Uamerton v. Hamerton, 2 Hagg. Con. 13 ; Conger v. Conger, 82 N. Y. 803; Mayer v. Mayer, 21 N.J. Eq. 246; Dailey v. Dailey, Wright, 514. • Freeman v. Freeman, 31 Wis. 235. And see Berckmans v. Berckmaoii, 17 N. J. Eq. 468 ; Warner u. Com., 2 Va. Cas. 105. PART V. PROOF OF THE CORPUS DELICTI. DIVISION I. GENERAL PRINCIPLES. CHAPTER I. GENERAL DOCTRINE AS TO THE PROOF OF THE CORPUS DELICTI. By the corpus delicti is meant the existence of a criminal fact.^ On a trial for arson the corpus delicti consists not only of the fact that a building has been burned, but also that it was wilfully fired by some responsible person : ^ on a trial for larceny, that the property was so taken and curried away from the possession of the owner as to constitute such taking and carrying away a felony.^ Proof of the charge in criminal cases involves the establish- ment of two distinct propositions : namely, that an act has been committed from which legal responsibility arises, and that the guilt of such act attaches to a particular individual.* The evidence, however, is not always separable into distinct parts, or applicable to each of those propositions. Where the defendants were accused of the theft of a horse, the corpus delicti was shown by the same facts as were admitted to con- nect the defendants with the crime. The horse had been 1 See People v. Palmer, 109 N. Y. 110. * Phillips V. State, 29 Ga. 105 ; Winslow v. State, 76 Ala. 42 ; Carlton v. People, 150111. 181, » Tyner v. State, 5 Humph. 383. * Smith V. Com., 21 Grat. 809 ; Johnson v. Com., 29 Grat. 796 ; Willard V. State. 27 Tex. Crim. Add. 386. 345 846 DOCTRINE AS TO PROOF OF CORPUS DELICTI. I ffi I'tfilij) placed by the owner in a stable belonging to a neighbor with whom he was staying that night, and the saddle and bridle were deposited near the door. In the morning horse, saddle, and bridle wore gone, and the owner never thereafter saw them. It was shown that on the day and night after the disappearance of the horse, the defendants had gone north- ward with the team and wagon of F., one of them. But F. drove only two horses, while there were seen the tracks of three horses. It was also shown that a couple of men with a span of horses and a wagon, and a led horse, were seen stop- ping a short distance from the road travelled by the defend- ants. The description of the horses and wagon corresponded with those of the accused, as did that of the led horse with the animal alleged to ha/e been stolen. These with other minute facts were held sufficient to establish the fact of the stealing, and to convict the defendants. ^ On trial of an indictment for bribery, proof of the corpus delicti was said to be the same thing as proof of the defend- ant's connection with the crime.^ But in another case where the trial court had instructed the jury that the circumstances were so inseparalile that they raust determine from the same evidence the existence of the corpus delicti and the connection of the defendant with the crime, the conviction was reversed.' An illustration of the proposition just laid down is to be found in the case of adultery. It is evident that direct proof ought not to be required to sustain a charge of this character, and that circumstantial evidence must generally be relied on. And generally those circumstances Avhich show the commission of the offence will establish also the guilt of the parties charged. Concerning this. Lord Stowell said, in a passage often quoted :* " It is a fundamental rule that it is not necessary to prove the direct fact of adultery, because, if it were otherwise, there is not one case in a hundred in which that proof would be attainable — it is very rarely indeed that parties are sur- prised in the direct fact of adultery. In every case, almost, 1 State V. Folwell et al., U Kan. 105. * People V. O'Neil, 109 N. Y. 231. See opinion of Andrews, J. » State 1'. Davidson, 30 Vt. 377. * Lovedon v. Loveden, 4 Eng, Ecc. R. 461. DOCTRINE AS TO PROOF OF CORPUS DELICTI. 347 the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion ; and unless this were the case, and unless this were so held, no protection Avhatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down univer- sally, though many of them, of a more obvious nature and of more frequent occurrence, are to be found in the ancient books— at the same time it is impossible to indicate them universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, ap- parently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is that the circumstances must be such as Avould lead the guarded discretion of a reasonable and just man to the conclusion ; for it is not to lead a harsh and intemperate judg- ment moving upon appearances that are equally capable of two interpretations ; neither is it to be a matter of artificial reasoning judging upon such things differently from what would strike the careful and cautious consideration of a dis- creet man." One making an accusation of this kind should be able to allege times and places and to make proof of circum- stances with some degree of particularity. When facts and circumstances introduced in evidence fairly and reasonably lead to the conclusion that the act has been committed, the court or jury may find the charge sustained.^ Where from the evidence in an action for divorce the probabilities are equal as to guilt or innocence, the interpretation of innocence will be adopted.2 The most usual circumstances relied on to sustain this charge are thus noticed by Chief Justice Shaw: "Suppose, for in- stance, a married woman had been shown by undoubted proof to have been in an equivocal situation with a man not her hus- band, loading to a suspicion of the fact. If it were proved that she had previously shown an unwarrantable predilection for that man ; if they haa been detected in clandestine cor- respondence, had sought stolen interviews, made passionate declarations ; if her aff'ection for her husband had been alien- 848 DOCTRINE AS TO PROOF OF CORPUS DELICTI. 'i m jl: if ll' i ! ated ; if it wero shown that the mind and heart were already depraved, and nothing remained wanting but an opportunity to consummate the guilty purpose, then proof that such oppor- tunity had occurred would lead to the satisfactory conclusion that the act had been committed. But when these circum- stances are wanting ; when there has been no previous un- warrantable or indecent intimacy between the parties, no clandestine correspondence, or stolen and secret interviews, the fact of opportunity and equivocal appearances would hard- ly raise a passing cloud of suspicion over the fair fame of such a woman." ' While it is clearly not possible to lay down beforehand in a formal rule what circumstances shall and what shall not con- stitute satisfactory proof of the fact of adultery, yet the courts will not infer the guilt of the parties from the opportunity alone.2 proof that the parties were together in a place and at a time when and where it was possible for them to have been guilty is not sufficient, and this defect of proof is not supplied by proof that many years before the defendant had lived in concubinage with another man.^ There must be evidence not only of tiie opportunity to commit the act, but also of the will to improve the opportunity.* W^'ore both the opportunity for the act and the will to commit i .e established the court will infer guilt.^ In an action for divorce on the ground of adultery it ap- peared that the rooms in which the parties were shown to have been together were the place of business of the plaintiflF, and people went in and out there frequently ; but there was no proof of a kiss, or an embrace, or a contact, a nearness of per- son, or an endearment of any kind, or of a surprise in an equiv- ocal situation, or of confusion of face on a sudden entrance, or anything clandestine in conduct, or which showed a desire foj secrecy or concealment. Having reviewed the evidence and pointed out the absence of proof of the existence of these indi- cations of guilt, the court said : " It is contrary to the usual experience of mankind, not only as gathered in one's own ob- > Dunham v. Dunham, 6 L. R. 141. And see Blake v. Blake, 70 111. 618. * Freeman v. Freeman, 31 Wis. 235. 8 Larison v. Larison, 20 N. J. Eq. 100. * Pollock V. Pollock, 71 N. Y. 137. See Bishop on Marriage, Divorce and Separation, g 1370. 6 Berckuians v. Berckmans, 26 N. J. Eq. 122. DOCmiNE AS TO PROOF OF CORPUS DELICTI. 349 servation, but as disclosed by the re]K>rts of such cases, that if the relations existed between the parties as cluirged they should not, at some time during the period, have incautiously or reckJ ssly betrayed the fact by some of the means above specified." * Where intimacy between the parties was shown, but of such a nature as, in their relative situations, might have been without criminality, the bill was dismissed.* General cohabitation — that is, in the sense of being together all or most of the time in the same household, not the living together ostensibly as husband and wifii — apart from suspicious circumstances char- acterizing it, is not enough to warrant an inference of the fact of adultery .3 In connection with the fact of general cohabita- tion must be considered the condition and rank in life of the parties, the habits and conduct of themselves and their equals in society, the domestic relations which each of them maintain with their own kin, the secluded, or open and avowed, place of cohabitation, tlie avocation of the parties and what demand it makes for constant or frequent intercourse, and all other things which go to show that the living or being together is or is not necessary, reasonable, and compatible with innocence.* When the relations of a man and woman are illicit in their origin, cohabitation will not be regarded as evidence of mar- riage.^ Adultery will be presumed from the fact that the man and woman occui)y one bed ; ^ and w here the parties occupy the same room, in which is only one bed, for several months.'^ In one case the following circumstances, taken together, Avere considered as pointing to the conclusion of guilt: that the party with Avhom it was charged that the wife had committed the act, paid her frequent visits at a time when her husband was absent ; that the parties were frequently seen together in secret and notorious localities and at unusual hours, without its being shown that they had occasion to meet for any honest or innocent purpose ; ^ that she allowed him to take familiar- ities with her person ; and that the respondent furnished ihe wife 1 Pollock V. Pollock, supra. ^ Mayer v. Mayer, 21 N. J. Eq. 840. 8 Hart V. Hart, 2 Edw. Gh. 207. » I'oUock v. Pollock, mpra. ^ Crymble v. Crymble, 60 111. App. 544. • Clapp V. Clapp, 97 Mass. 531. ' Scroggins v, Scroggins, Wright (Ohio), 212. 8 State V. Marion, 35 N. H. 22. 350 DOCTRINE AS TO PROOF OF CORPUS DELICTI. If I K 'if' ' flBpif 1 ;n r ■H ^ i(j' with money to defend the siiit.i On the other hand, the court thought, that the fact that the persons were together in lonely places, or that they were frequently together at night at the house of tlie defendant when her husband was absent, would not of itself furnish evidence sufficient to justify the court in declaring that they had committed adultery .» The visit of a married man to a brothel is a strong circumstance of suspi- cion ; 3 and his remaining alone in a room, at such a place, for some time, with a common prostitute, has been held sufficient proof of guilt.* But a visit of this sort, as has been pointed out by Mr. Bishop, might be one of philanthropy or of lawful business, and is therefore open to explanation.^ A defendant was seen to enter about midnight a house of assignation, and to hold in his embrace one of the inmates. Shortly after all the lights of the house were extinguished, and the defendant did not leave the house till nine next morning. This was held aniple.^ The mere fact that a married woman visited a man other than her husband at his lodgings, without other incriminating circumstances, has been held insufficient to convict her of adultery. In Williams v. Williams,^ the husband had for- bidden the alleged paramour, Thomas, to come any more to his house. Thomas thereupon took lodgings, where the wife visited him, staying a considerable time, and they passed Vs^ve for husband and wife. Lord Stowell, distinguishing the uitse from another, said : " It is not proved nor assumed ttiat r*i« took the name of Mrs. Thomas. He called her so and Sc.id that shv. ivas his wife, but it is not proved that she called him her hus- band, or that she knew that he called her his wife ; he might speak of her in that name, but that will not show her knowl- edge of the fact. The only circumstance of clandestinitv which is proved is that Thomas attended her almost to her own house, and then left her ; but that the court should infer that this happened from a clandestine intention, or that it 1 Patterson v. Patterson (N. J., July, 1890), 20 Atl. Rep. 347. " Whitenack v. Wliitenack, 46 N. J. Eq. 474. 8 Astley V. Astley, 1 Hagg. Ecc. R. 720 ; Kenriok v. Kenrick, 4 Id. 114. ♦ Astley V. Astley, supra ; Dailey v. Dailey, 64 111. 829. 6 2 Bish. Mar. & Div. § 026 ; 2 Oreenl. on Ev. (14th Ed.) § 44, and note a, p. 38 ; Latham v. Latham, 30 Grat. (Va.) 307. 8 Cooke V. Cooke, 152 111. 286. ' 1 Hagg. Con. 299 ; 4 Eng, Ecc. R. 415. DOCTRINE AS TO PROOF OF CORPUS DELICTI. 351 might not be by accident, is, I think, not warranted l)y any rules of evidence on which this -ourt can safely proceed. The question then comes to this : Does the visit of a married woman to a single man's lodging or house, in itself, prove the act of adultery ? There is no authority mentioned for such an infer- ence but the case of Eliot v. Eliot, which is open to the dis- tinction, arising from the character of the house in that case, which 's too obvious to be overlooked. It would be almost impossible that a woman could go to such a place but for a criminal puipose ; but in the case of a private house, I am yet to learn that the law has affixed the same imputation on such a fact. In the late case of Richctts v. Taxjlor in the King's Bench, the visit of the wife to a single man's house, combined with other circumstances, was held sufficient. In that case the windows were shut, and there were letters which could not be otherwise explained. That case, therefore, is no authority in this inquiry, and, though the court might be induced to think that such \ ' ^its were highly improper, it must recollect that more is necessary, and that the court must be convinced in its legal judgment that the v.'oman has transgressed not only the bounds of delicacy but also of duty." But in a late case the proof of the wife's visits was accom- panied by proof of other circumstances strong enough in their incriminating tendency to sustain the charge. Her visits to her alleged paramour were clandestine, so far as her husband and family Avere concerned ; she visited him when her absence from home was ostensibly for other purposes ; and although he had been an acquaintance at her own house, she never mentioned the fact of their renewed meetings to her hus- band. She passed at Jiis boarding place as his wife. She visited him when he was presumably in bed ; and she dressed and un- dressed in the room. " These facts," said the learned judge, " taken in connection with what has been pointed out as to her conduct with others, leave no room for doubt that desire and opportunity met on the occasion of these visits with the pre- r^nu !)le results." ^ rhc existence of the criminal fact must be established by cieR! and decisive evidence. ' Graham v. Graham, 50 N. J. 701. See an article by the author on evi- dence required to establish adultery in 39 Cent L.J. 381. Much of that article is reproduced here by Ihe kind permission of the Central Law J. Co. 852 DOCTRINE AS TO PROOF OF CORPUS DELICTI. i*' I'll u; Iji p;' ;t ■ Such a complication of difficulties occasionally attends the proof of crime, and so many cases have occurred of convictions for alleged offences which have never existed, that it is a fundamental and inflexible rule of legal procedure, of universal obligation, that no person shall be required to answer, or be involved in the consequences of guilt, without satisfactory proof of the corpus delicti, either by direct evidence, or by cogent and irresistible grounds of presumption.^ " The rule should be udhered to with the utmost and strictest tenacity, that the fact forming the basis of the offence or corpus delicti must be proved either by direct testimony or by presumptive evidence of the most cogent or irresistible kind. In one of these methods the essential fact or facts must he established beyond a reasonable doubr," ^ Tl.8 corpus delicti of the making, procuring, etc., of dyna- mite with intent to use the same for the unlawful destruction of the lives of certain persons, is sufficiently proved by evidence of (no fact tLi?t defendant had such explosives in his possession and kept them concealed, and on different occasions threatened to take the lives of such persons, and said he would throw bombs at them wherever he might meet them.^ On a trial for murder, evidence was held to have been im- vr\.. iV admitted, as to its order, which tended to show im- \ri jper relations of the defendant with other women, and uncon- nected with the illness and death of ths deceased. The evidence went to show the motive of the accuiied, and should not have been submitted to the jury until the criminal death was established.* If it be objected that rigorous proof of the corpus delicti is sometimes unattainable, and that the effect of exacting it must be that crimes will occasionally pass unpunished, it must be admitted that such may possibly be the result ; but it is answered that, where there is no proof, or, which is the same thing, no sufficient legal proof of crime, there can be no legal criminality. In penal jurisdiction there can be no middle term ; the party must be absolutely and unconditionally guilty 1 Rex V. Burdett, 4 B. & Aid. 123. * See opinion of the court in State v. Keeler, 28 la. 551. See also Rex v. Yend, 6 C. & P. 173 ; Pitts v. State, 43 Miss. 472. « Homek v. People, 134 111. 139 ; 8 L. R. A. 837. « People V. Hall, 42 MicL. 485 ; People v. Millard, 53 Mich. 67. DOCTRINE AS TO PROOF OF CORPUS DELICTI. 353 or not guilty. Kor under any circumstances can considera- tions of supposed expediency ever supersef'e the immutable obligations of justice ; and ocoapional impunity of crime is an evil of far less magnitude than che punishment of the innocent. Such onsiderations of mistaken policy led some of the writers on the civil and canon laws to modify their rules of evidence, according to the difficulties' of proof incidental to particular crimes, and to adopt the execrable maxim, that the more atro- cious was the offence, the slighter was the proof necessary ; in atrocissimis leviores conjectures sufficiunt, et licet judici jura transgredi. Such indeed is the logical and inevitable conse- quence, when, from whatever motive, the plea of expediency is permitted to influence judicial integrity. The clearest prin- ciples of justice require that whatever the nature of the crime, the amount and intensity of the proof shall in all cases be such as to produce the full assurance of moral certainty. 23 Ill ^ If « CHAPTER II. PROOF OF THE CORPUS DELICTI BY CIRCUMSTANTIAL EVIDENCE. Both the corjnis delicti or criminal act, and the agency of the accused therein, must be proved beyond a reasonable doubt, to sustain a conviction.^ But no one kind of evidence can always be demanded in proof of the corpus delicti any more than of any other fact.^ It is clearly established that it is not necessary that the corpus delicti sliould be proved by direct and positive evidence, and it would be most unreasonable to require such evidence. For example, on a prosocution for arson, the evidence tend- ing to show the corpus delicti, so as to lay a foundation for any legal evidence that the act was committed by the accused and with a criminal intent, need not be direct and positive, but may be circumstantial.'^ It the jury are satisfied of the essential facts beyond a reasonable doubt, it matters not whether they are conducted to this result by direct or presumptive evidence.* The rule that the coipiis delicti must be proved beyond a reasonable doubt was intended as a shield for prisoners, said Chief Justice Earl, and must never be used as a sword .'^ It is therefore settled that circumstantial evidence will suffice to establish the corpus delicti of even the greatest offences.^ "Were this not so, 1 State V. Parsons, 39 W. Va. 464. a Willard v. Statp, 27 Tex. Crim. App. 386. And see 1 Bfch. Grim. Proc. § 1071. » Carlton v. People, 150. 111. 181. ♦ State V. Keeler, 28 la. 551. And see Brown v. State, 1 Tex. Crim. App. 154 ; State v. Winner, 17 Kan. 298 ; Anderson v. State, 24 Fla. 139 ; Johnson r. Com. (Ky.), 17 Cent. L. J. 428 ; 4Cr. L. Mag. 903; State v. Dickson, 78 Mo. 438 ; Timmerman v. Terr., 17 Pac. 624. « People V. Schryver, 42 N. Y. 1. 8 State V. Hunter. 50 Kan. 30 ' ; State v. Winner, supra ; State v. Ah Chuey 14 Nev. 79 ; State v. Cordelli, 19 Nev. 319. 354 PROOF BY CIRCUMSTANTIAL EVIDENCE. 856 Proc. the murderer might secure himself by casting the botlj- into the sea, or by consuming it with fire, or by disposing of it in such a way that it could not be identified.^ Crimes, and esi^ecially those of the worst kinds, are natu- rally committed at chosen times, and in darkness and secrecy ; and human tribunals must act upon such indications as the cir- cumstances of the case present or admit, or society must be broken up. Nor is it very often that adequate evidence is not afforded by the attendant and surrounding facts, to remove all mystery, and to afford such a reasonable degree of certainty as men are daily accustomed to regard as sufficient in the most imix)rtant concerns of life : to expect more would be equally needless and absurd. In BurdeWs case^* this subject under- went much discussion, and was elaborately treated by the bench. Mr. Justice Best said : " When one or more things are proved from which experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases. Nor is it necessary that the faet not proved should be established by irrefragable inference. It is enough if its existence is highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and j'et offers none ; for then we have something like an admission that the presumption is just, j t has been solemnly decided, that there is no difference between the rules of evidence in civil and criminal cases. If the rules of evidence prescribe the best course to get at the truth, they must be and are the same in all cases and in all civilized coun- tries. There is scarcely a criminal case, from the highest down to the lowest, in which courts of justice do not act upon this principle." His lordship added : " It therefore appears to me quite absurd to state that we are not to act upon presumption. Until it pleases Providence to give us means beyond those our present faculties afford of knowing things done in secret, we must act on presumptive truth, or leave the worst crimes unpunished. I admit, where presumption is intended to be raised as to the corpus delicti, that it ought to be strong and cogent." Mr. Justice Holroyd said : " No man is to be con- victed of any crime upon mere naked presumption. A light or rash presumption, not arising either necessarily, probably, » Smith V. Com., 21 Grat. (Va.) 809. >4B. &Ald.95. m liJ ■ 350 PROOF OF THE COUPUB DELICTI !»> If'- ^' '[ ''i' I ! or reasonably, from tho facts proved, cannot avail in law. But crimes of the highest nature, more especially cases of murder, are established, and convictions and executions thereupon frequently take place for guilt most convincingly and con- clusively proved, upon presumptive evidence only of the guilt of tho party accused ; and the well-being and security of society much depend upon the receiving and giving due effect to such proof. The presumptions arising from those proofs should, no doubt, and most especially in cases of great magni- tude, be duly and correctly weighed. They stand only as proofs of the facts presumed till the contrary be proved, and those presumptions are either weaker or stronger, according as the party has, or is reasonably to be supposed to have, it in his power to produce other evidence to rebut or to weaken them, in case the fact so presumed be not true, and according as he does or does not produce such contrary evidence." Mr. Justice Bayley said : " No one can doubt that presumptions may be made in criminal as well as in civil cases. It is con- stantly the practice to act upon them, antl I apprehend that more than one-half of the persons convicted of crimes are con- victed on presumptive evidence. If a theft has been com- mitted, and shortly afterwards the property is found in the possession of a person who can give no account of it, it is pre- sumed that he is the thief, and so in other criminal cases ; but the question always is, whether there are sufficient premises to warrant the conclusion." Lord Chief Justice Abbott said : " A fact must not be inferred without premises which will war- rant the inference ; but if no fact could be thus ascertained by inference in a court of law, very few offences v^ould be brought to punishment. In a great proportion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given ; the man who is charged with theft is rarely seen to break the house or take the goods ; and in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredient poured into the cup." The law oti this point Avas also very emphatically declared by Mr. Baron Parke in TaweWs case. His lordship said : " The jury had been prop- erly told by the counsel for the prosecution that circumstantial evidence is the only evidence which can in cases of this kind lead to discovery. There is no way of investigating them ex- BY CIRCUMSTANTIAL EVIDENCE. 357 cept by the use of circumstantial evidence ; but Providence has BO ordered the affairs of men that it most frequently happens that grreat crimes committed in secret leave behind them some traces, or are accompanied by some circumstances which lead to the discovery and punishment of the offender ;* therefore, the law has wisely provided that you need not have, in cases of this kind, direct proof, that is, the proof of eye-witnesses, who see the fact and can depose to it upon their oaths.' It is (possible, however, not to say that is the best proof, if that proof is offered to you ui)on the testimony of men whoso veracity you have no reason to doubt ; but on the other hand it is equally true with regard to circumstantial evidence, that the circumstances may often be so clearly proved, so closely connected with it, or leading to one result in conclusion, that the mind may be as Avell convinced as if it were proved l)y eye- witnesses. This being a case of circumstantial evidence; I ad- vise you," said the learned judge, " as I invariably advise juries, to act upon a rule that you are first to consider what facts are clearly, distinctly, indisputably proved to your satisfaction; and you are to consider whether those facts arc consistent with any other rational supposition than that the prisoner is guilty of that offence. If you think that the facts in this case are all consistent with the supposition that the prisoner is guilty, and can offer no resistance to that, exce|)t the character the pris- oner has borne, and except the supposition that no man would be guilty of so atrocious a crime as that laid to the charge of the prisoner, that cannot much influence your minds ; for we all know that crimes arc committed, and, therefore, the exist- ence of the crime is no inconsistency with the other circum- stances, if those circumstances lead to that result. The point for you to consider is, whether, attending to the evidence, you can reconcile the circumstances adduced in evidence with any other supposition than that he has been guilty of the offence. If you cannot, it is your bounden duty to find him guilty ; if you can, then you Avill give him the benefit of such supposition. 1 " Ces circonstances sont autant de tenioins muets, que la Providence semble avoir places autour du crime, pour faire jaillirla lumierede rombre dans laquelle I'agent s'est efforce d'ensevelir le fait principal ; elles sont corame un fanal qui eclaire I'esprit du juge, et le dirige vers des traces certaines qu'il suffit de suivre pour atteindre a la verite."— Mittermaier, ut supra, ch. 53. a 3 Greenl. on Ev. § 30. r t J' t IMAGE EVALUATION TEST TARGET (MT-S) /. #/ .^ (A 1.0 I.I 142 1^ BAO 2.0 1.8 L25 IIIIU ill 1.6 V] <^ /^ 7 ^^ Photographic Sciences Corporation ^^^ .<> ^i> 73 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 672-4503 358 PROOF OF THE CORPUS DELICTI All that can be required is, not absolute, positive proof, but Buch proof as convinces you that the crime has been made out." * The same general principle prevails with regard to the proof of crimes of every description, and of every element of the ooTpue delicti. Thus, on the trial of a man for stealing pepper, it appeared that on the first floor of a warehouse a large quantity of pepper was kept in bulk, and that the prisoner was met coming out of the lower room of the warehouse where he had no business to be, having on him a quantity of pepper of the same description with that in the room above. On being stopped he threw down the pepper, and said, " I hope you will not be hard with me." From the large quantity in the ware- house it could not be proved that any pepper had been taken from the bulk. It was urged on behalf of the prisoner that there must be direct and positive evidence of a corpus ddicU^ and that presumptive evidence was insufficient for that pur- pose ; but the Court of Criminal Appeal held that the prisoner had been rightly convicted.' Mr. Justice Maule said that the offence Hvith which the prisoner is charged must be proved, and that involves the necessity of proving that the prosecutor's goods have been taken. But why, continued the learned judge, is that to be differently proved from the rest of the case ? If the circumstances satisfy the jury, what rule is there which renders some more positive and direct proof necessary ? And he mentioned the case of a father and two sons, Avho were con- victed of stealing from their employers a quantity of shoes and materials for making shoes, though the prosecutors said their stock was so large that they could not say they had missed any one of the articles alleged to have been stolen. In Reg v. Mockford^ Cockburn, C. J., said : " Suppose a man is seen going away with a sack of corn from a barn where a quantity of corn is stored, and that he can give no account of it, and that the prosecutor cannot swear that he has lost a sack of com, but only that he had a large quantity in the barn like that in the sack, can it be said there is no evidence of the gack of corn having been taken from the barn ? " In this case the prisons was tried for the theft of some fowls for his pos- » Reg. V. Tawell, Aylesbiiry Spr. Ass., 1845. « Rej?. V. Burton, 28 L. J. N. S. M. C. 52. And see Reg. v. Dredge, 1 Cox, 235 ; and ante, 108. » 11 Cox C. C. 16. BY CIBCUMSTANTIAL EVIDENCB. 859 session of which he g&ve no explanation. The prosecutor could not swear that he had lost any f^wls. The prisdher was stopped by a constable about one o'clock in the morning, and threw down the fowls which he was carrying, bleeding and still warm, and ran towards his own house. He was tracked through freshly fallen snow to the prosecutor's fowl- house, where, on the floor, were found feathers corresponding to the feathers of one of the fowls which the prisoner had thrown away, from the neck of which feathers had been re- moved. The accused wore cord trousers on the knees of which was the wet dung of fowls. In the fowl-house were found, on the floor under the roosts, marks as if one wearing cord trousers had knelt there. The ju-y returned a verdict . Perrys, 14 St. Tr. 1313 ; and see 11 St. Tr. 463 ; see ,lso the Scotch case of Green and others, 14 St. Tr. 1197, where, in 1705, ♦iie captain of a 362 THE DISCOVERY OF THE BODY. M8 years afterguards he reappeared. It appeared that he had been out to ooUect bis mistress's rents, and had been robbed by highwaymen, who put him on board a ship which was captured by Turkish pirates, by whom he was sold into slavery. Sir Matthew Hale mentioned a case where A. wa« long miss- ing, and upon strong presumptions B. was supposed to have murdered him, and to have consumed the body to ashes in an oven, whereupon B. was indicted for murder, and convicted, and executed, and within one year afterwards A. returned,' having been sent beyond sea by B. against his will ; " and so," that learned writer adds, " though B. justly deserved death, yet he was really not guilty of that offence for which he suffered." » Sir Edward Coke also gives the case of a man who was executed for the murder of his niece, who was after- wards found to be living, of which the particulars have been given in a former part of this Essay." Sir Matthew Hale, on account of theae cases, says, " I will never convict any person of murder or manslaughter, unless the facts were proved to bo done, or at least the body found." » The judicial history of all nations, in all times, abotmds with similar warnings and exemplifications of the danger of neglecting these salutary cautions.* In Texas, by a provision of the Penal Code,* no person can be convicted of homicide unless the body of the deceased or portions of it are found and sufficiently identified to establish the fact of the death of the person charged to have been killed. And in justification of this it is said that the occasional escape from punishment of a guilty party is preferable to the osecution, in answw to a vessel and several of his crew were executed on a charge of piracy and murder ; but the party supposed to have been murdered reappeared many years afterwards, having been taken at sea and carried into captivity. 1 2 Hale's P. V. c. 39. 3 See ante ; and for ot^er cases of the same kind, see Green's Case, 14 St. Tr. 1311. « 2 P. C. c. 39. * See the case of the two Booms, 1 Greenleafs L. of Ev, § 314, and ante. » Art. 549. • Puryea v. State, 38 Tex. Cr. App. 73 T Ruloflf V. People, 18 N. Y. 179. THE DISCOVERY OF THE BODY. question by the prisoner's counsel, said that he did not pro- pose to prove by any direct evidence that the child was dead, or had been murdered, or that her dead body ha^l ever been found, but that he should ask the jury to infer from the lapse of time since the child and mother were last seen, and from other facts and circumstances, that the child was dead, and that she had been murdered by the prisoner. The prisoner's counsel thereupon moved that the trial be stopped for want of proof of the corpus delicti, insisting on the rule laid down by Lord Halo. The judge reserved the question till the evidence should be closed. The proof offered by the prosecution tended to show that the prisoner did not live h«^ pily with his wife, and that on the evening of June 24, 1845, the wife and child were seen alive. But it was not shown that either were ever seen there- after. The next day the accused borrowed a wagon, took into it a box from his own house, and drove off with it. On the following day he returned with the wagon and box. It was shown that he had in his possession a ring which his wife had worn on the day when she was last seen, and a shawl and other articles of her apparei ; that he told stories as to her being at sundry places where she was proved not to have been, and generally conducted himself in such a way as to lead strongly to the inference that he was the author of whatever had happened to his wife and child, if anything had, in fact, happened to them. In the house clothes were found lying about in disorder ; and dishes were unwashed. A cast-iron mortar and flat-irons which were known to have been in the prisoner's possession were not to be found. About a month after the disappearance of his wife and child, the prisoner went to a distant city, where he lived under a false name, and where he said that his wife and child had died six weeks before in Illinois. He left there a box of books, papers, and articles of woman's apparel which had belonged to his wife, and a scrap of paper on which were the words, " Oh, that dreadful hour ! " At the close of the evidence counsel for the prisoner re- newed his motion and asked that the jury be instructed that no conviction could be had. The judge refused so to instruct, and the case was taken up on a writ of error. It was held that an acquittal should have been directed, Chief Justice THE DISCOVERY OF THE DODY. «65 Johnston, who delivered the opinion of the court, saying : " I have not found any case in which a judge, speaking directly to the point here involved, lias said that without direct evidence in either branch of the corpus delicti a conviction for murder could be allowed." It Avas said in a later case ^ that all that was decided in this case was that one or the otlier of the comj)onent parts of the corpus delicti must be proved by direct evidence. And this is the law of New York ; * for by the Code of Criminal Procedure^ of that State " no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed, and the fact of killing by the defendant, as alleged, are each established as independent facts, the former by direct proof, and the latter beyond a reasonable doubt." But with regard to the statement of Sir Matthew Hale quoted on a previous page, Fitzgerald, J., said that the " rule, which is one rather of judicial practice than part of the law of evidence, seems to have had its origin in cases where the chai'go of murder depended on the fact of the disappearance of the party alleged to have been murdered.* And it is evi- dent that to require the discovery of the body in all cases would be unreasonable and lead to absurdity and injustice, and it is indeed frequently rendered im|X)ssible by the act of the offender himself. It is said that on the trial for murder of the mother and reputed father of a bastard child, whom they had stripped and thrown into the dock of a seaport town, after which it was never seen again, Mr. Justice Gould advised an acquittal on the ground that as the tide of the sea flowed and reflowed into and out of the dock it might possibly have car- ried out the living infant.^ Mr. Justice Story said of the propo- sition in question that " it certainly cannot be admitted as cor- rect in point of common reason or of law, unless courts of jus- tice are to establish a positive rule to screen persons from punish- ment who may be guilty of the most flagitious offences. In the cases of murder committed on the high seas the body is rarely if ever found, and a more complete encouragement and protec- tion to the worst offences of this sort could not be invented * People V. Bennett, supra. ^ People v. Palmer, 109 N. Y. « § 181. Ami see People v. Beckwith, 108 N. Y. 67. ♦ Reg. V. Unkles, 8 Ir. L. T. R. St.. ' Per Garrow arguendo in Hindmarsb's Case, 2 Leach's C. C. 371. 110. 866 THE DISCOVERY OF THE BODY. than a rule of this strictness. It would amount to a universiil condonation of all murders committed on the high seas." » In the case of United Siaten v. WUliams? ih» defendants were indicted for murder on the high seas. The prisoners and the men supposed to have been murdered made up the crew of a vessel which sailed from Portland about the middle of the year 1857. Neither the vessel nor the murdered men were ever afterward heard from, except through the confessions of the prisoners and L., who died before the trial. About the time when the vessel should have reached its destination the prisoners were picked up in a boat in the open sea, which boat was subsequently brought h<>me and identified as the only boat of the vessel in which they sailed. It was tarred inside in a manner to indicate that they had not left the vessel without preparation, and that fact was still more strongly indicated by the circumstance that they had in the boat the ship's compass and a supply of water and pror^sions. They had also in their possession the watch of the captain and the clothing of the murdered men, and the ship's register, and all these articles were fully identified at the trial. After they were picked up they gave contradictory and false accounts of what had occurred before they left the vessel, and persisted in falsehood until L. disclosed the truth ; and then they freely confessed their crimes. It may be said to be now clearly established that the fact of death may be legally inferred from such strong and unequivo- cal circumstances of presumption as render it morally certain, and leave no ground for reasonable doubt ; as where, on the trial of a mariner for the murder of his captain at sea, a wit- ness stated that the prisoner had proposed to kill him, and that, being alarmed in the night by a violent noise, he went upon deck and saw the prisoner throw the captain overboard, and that he was not seen or heard of afterwards, and that near the place on the deck where the captain was, a billet of wood was found, and that the deck and part of the prisoner's dress were stained with blood. It was urged that, as there were many vessels near the place where the transaction was alleged to have occurred, the probability was that the party had been taken up by some of them and was then alive ; but the court, 1 United States v. Gilbert, 2 Sumner, 19. a i Cliff. 5. THE DISCOVESY OF THE BODY. 367 though it admitted the general rule of law, left it to tbe jury to siiy upon the evidence, whether the deceased wm not killed before the bcv'' vas cast into the sea, iiud the jary being of that opinion, the prisoner waa ctMivicted and executed ; ^ but it is not easy to perceive why the natural presumption from these facts should have been thus restricted to a presumption that the party had been killed before he was thrown over- board. And in a oaae much like the above a witness was allowed to testify, as telling against the theory tiiit the per- son thrown overboard h>ul been picked up by a passing vessel, that for several days before and after the alleged crime no vessels were seen in the neighborhood." The proposition is sustained by a case Wivere a body was seen in the flames of a burning house. The fact that the accused was seen to watch it intently was regarded as of peculiar significance. It ap- peared on the trial that the accused had for some time tried to form a conspiracy to rob the deceased.^ The rule and its qualifications are well exemplified by the case of Elizabeth lioss, who was tried for the murder of Caro- line Walsh. The deceased had been repeatedly solicited by the prisoner to live mth her and her husband, but had refused. However, she at last consented, and went for that purpose to the prisoner's lodgings, in Goodman's Fields, in the evening of the 19th of August, 1831, taking with her her bed and an old basket, in which she Avas accustomed to carry tape and other articles for sale. Nothwithstanding all inquiry, from that evening all traces of the deceased were lost, and when the prisoner was required by her relatives to account for her dis- appearance she prevaricated, but finally asserted that she had gone out early in the morning of the next day, and had not re- turned. Many circumstances confirmed their suspicions that she had been murdered, and in the month of October the prisoner was apprehended, and charged with the murder of the old wo- man. From the testimony of the prisoner's son, a boy of twelve years of age, it appeared that she had suffocated the deceased 1 Rex V. Hindmarsh, S Leach C. C. 648. "St. Clair v. United States, 154 U. S. 184. » Stocking V. State, 7 Ind. 336. See also Gray v. Com., 101 Pa. St. 380 ; 40 Leg. Int. 90 ; 27 Albany Law Journal, 188, where it was said by the couit, "All the law requires is that the eorpua delicti shall be proved as any other fact that is beyond a reasonable doubt, and that doubt is for the jury." 308 THE DISCOVERY OF THE BODY. !l • !i! ^' '*(>!»•, I on the evening of her arrival, by placing hor hands over her mouth, ami pressing on her chest ; and he de()08ed that the following morning he saw the dead body in the cellar of the house, and that in the evening ho saw his mother leave the house with something large and heavy in a sack. A metllcal man deposed that the means described would be sufficient to cause death. It happened most singularly that on the evening of the day following that of the alleged murder, an old woman was found lying in the street in the immediate neighborhood, in a completely exhJiusted condition, and in a most filthy and squalid state. On being questioned she stated that her name was Caroline Welsh, and that she was a native of Ireland. Her hip was found to be fractured, in consequence of which she was conveyed to the London Hospital, where she subse quently died. The prisoner when apprehended insisted that this was the female whom she was accused of having mur- dered. The resemblance of names and the coincidence of time were very remarkable, but by the examination of numerous witnesses the following points of difference were established : They were both Irish women ; but Caroline Walsh came from Kilkenny; Caroline Welsh from Waterford. Walsh was eighty-four years of age, tall, of a sallow complexion, gray hair, and had very perfect incisor teeth in both jaws, having lost only a side-tooth in the upper and lower jaws from the effect of continual smoking with a tobacco-pipe. Welsh (the woman who died in the hospital) was about sixty years of age, tall, dark, like a mulatto, but had no front teeth, and the alveolar cavities corresponding to them had been obliterated for a considerable time. Walsh was healthy, cleanly, and neat in her person, and her feet were perfectly sound ; Welsh was considerably emaciated ; in a dirty and filthy condition ; her hip broken, her feet covered with bunions and excres- cences, and the toes overlapped one another. The two women were differently dressed : Walsh was dressed in a black stuff gown, a broken old willow bonnet, and a faded blue shawl with a broad border ; Welsh wore a striped blue cotton gown, a dark or black silk bonnet, and a snuff-colored shawl with lit- tle or no border. Walsh's clothing was proved to have been sold by the prisoner to different persons, and almost every article was produced in court and identified. The clothes of Welsh, on account of their disgusting condition, had been THE DIHCOVEKY OF THE BODY. M9 burnt by order of tlio parifih authorities. Both of these women hiwl Hitnilar hiwkets ; that of Walsh Imd no lid or cover, while that found on Welsh had. f^tly, the Ixxly of the latter was taken up from the burial-ground of the London Hospital for the purpose of identification, and it was sworn by two of the granddaughter! of Walsh not to be the body of their grandmother. The prisoner was convicted and exe- cuted,' The corps* of the murdered woman was most probably sold by the prisoner for the purpose of dissection ; and other murders were committed about the same time, bota in England and Scotland, from the same motive." Touching the matter under discussion a learned judge has lately said : " It seems to me that there is no definite universal rule of law on the subject, that there are no established definitions of direct evidence and presumptive evidence according to which the former kind is to be deemed indispensable, the 1 ' ter kind insufficient, to establish a corjpua delioti, and that the so-called rule on the subject is no more than a prudential motive fit to be enounced by a judge for the purpose of assisting a jury in the discharge of their duties, and warning them that the fact of the crime itself, the unlawful act, ought to be established by sufficient evidence — that is, evidence not inadmissible by some rule of law which leaves no reasonable doubt in their mjnds that the crime was committed by sojnebody." ' In this case the accused was charged with the murder of hi. illegitimate child. The defendant had, during the pregnancy of the mother, concealed her from her relatives while the latter were visiting the house, and he had, before the birth of the child, threatened to smother it. He was present at the birth of the child, and directly after delivery took the child from the house, and it was never more seen. It was also shown that he threatened to shoot the mother if she made any mention of the child.* ) R. V. Ross. O. B. Seas. Pap., 1881. "Rex V. Burke, Alison, ut supra, Syme's Jud. Rep. 345 ; Re^ v. Bishop and others, O. B. Sess. Pap., 1832. « Johnson, J., in Reg. v. Woodgate, 3 New Zea. Jur. N. 8. B. See also 10 Cent. L. J. 165. ♦ See summary of this case in an article on corpiw delicti, 10 Cent. L. J. 164. 24 CHAPTER 11. THE IDENTIFICATION OP THE BODY. It is another necessary step in the establishment of the corpus delicti in cases of homicide, that the body, when discov- ered, be satisfactorily identified as that of the person whose death is the subject of inquiry.^ Mr. Justice Park stopped the trial of a woman, charged witL the murder of her illegitimato child, because the supposed body >vas nothing but a mass of corruption, so that there were no lineaments of the human face, and it waa impowsible even to distinguish its sex.^ On the trial of a Avoman for murder of her brother, a cliild eight years of age, by poison, the sexton proved the interment, or the 29th of June^ and the exhumation on the 12th of August following, of a body which he believed to be that of the deceased, from tho coffln-piate, and the place from which he had exhumed it, but he had not seen the body in the coffin at the time of interment, and could not recognize it independently of those circumstances, on account of its state of decay. Mr. Baron Maule refused to receive evidence of the contents of the ccflSn-plate, on the ground that, being removable, it ought to have been produced j and there bemg no other evidence of identity, stopped the case.' On the trial of a girl for the murder of her illegitimate child, it appeared that she was proceeding from Bristol to Llandago, and was seen near Tintern at si c o'clock in the even- ing, with the child in her arms, and that she arrived at Llandago between eight, and nine without it, and that the body of a child was piterwards found in the river Wye near Tintern, but which appeared from circumstances not to be the prisoner's cbild ; Lord Abinger held that the prisoner could not be called upo* to account for her child, or to say where it was, unless there 1 Thomas v. State, 67 Ga. 460 ; Reg. v. Cheverton, 2 F. & F. 833. «Mr. Justice Pahi.:'s charge to the grand jury in Rex v. Thurtell, Hei-tford Winter Assizes, 1824 ; Reg. ». Edge, avM. f" 9iz. V. Edge, ante ; and soe Keg. v. Henley, 1 Cox 0. C. 113. 370 THE IDENTIFICATION OF THE BODY. 371 was e\idence to show that her child was actually dead ; the jury were nc: sitting, he said, to inquire what the prisoner had done with her child, which might be then alive and well.i In a similiar case Mr. Baron Brarawell observed that the evidence of identity was not complete ; that still, if the jury thought there was rearonable evidence upon the point, they might think that if the child Avas still alive the prisoner would probably produce it in a case where her life was at stake, but that she was at liberty to act upon the defect of proof, and to say that the prosecutor had failed to prove the identity.'* In Smith's case the prisoner was indicted for the murder of the infant child of one Harriet Ferguson. Harriet Ferguson, a white woman, was a chambermaid in a hotel in Alexandria, and the prisoner was a servant in the same hotel. The woman on the 4th of December gave birth to a female mulatto child. The prisoner was a mulatto and acknoAvledged that he was the father of the child. On the 7th of December the child was de- livered to the prisoner by the mother of Harriet Ferguson, she saying that the child's mother was not al)le to provide for it, and that her other daughters were unwilling that it should re- main in the house. The prisoner stated that he would have it raised by his mother, who lived six or eight miles in the country. The child, when delivered to the prisoner, was alive and healthy, and had on at the time a flannel petticoat, a slip, a shirt, and was Avrapped in a shawl. About the 16th of December the body of a female mulatto child was found in a pond of water in the southeastern portion of the city, in the neighborhood of a shipyard, and near the bank of the Potomac River. The child had nothing on it but a shirt and a band arouiid its body. The physician Avho made the 2)ost mortem examination expressed the opinion that the child found was born alive and came to its death by drowning, and also ex- pressed the opinion that the child found was between one and six days old at the time of its death. But there Avas no evi- dence in the case as to how long the child so found had been dead. The child found in the pond was described as a mulatto^ while the child of Harriet Ferguson Avas a hnyht mulatto. The child delivered to the prisoner Avas dressed differently from the child found in the pond. No proof was offered to show how 1 Reg. V. Hopkins, 8 C. & P. 591. « Reg. V, Rudge Hereford Summer Ass., 1857. 372 THE IDENTIFICATION OF THE BODY. lift' :iils fe long the body of a child would be kept in a good state of pres- ervation in December weather, and under the circumstances in which the body was found. So for anything that appeared the child found might have been dead before the other was born. About the 21st of December, the physician 'vho attended Harriet Ferguson at the delivery of her child, called on a mag- istrate and gave him the name of the prisoner, who had ad- mitted to being the father of the child. The magistrate having caused the prisoner to be brought to his office, told him he knew all about the child having been delivered to him, and asked him what had become of it. The prisoner answered that he had taken the child to his mother's and that a woman who lived near his mother was nursing it. The magistrate then told the prisoner to produce his mother, or the child, or the nurse, at his office the next morning and dismissed him. The next evening the prisoner returned, saying that he could not bring the child, that he had not been to his mother's. The magistrate then told him that he was afraid that the child found near the ship yard was the one in question, and asked him what had made him do such a thing. The prisoner re- plied that lie did not knoAV why he eort. The prisoner, who in the interval had removed ')). '. neighbor hood, upon his apprehension denied ah Liuv^rieuge of the deceased ; but in his defence he admitted the identity of the remains, and alleged that an altercation took place between them at the barn, in consequence of which, and of the violence of temper exhibited by the deceased, he expressed his deter- iukitior not to marry her, and left the barn ; but that im- » Melcik V. State (Tex. Grim. App.), 24 S. W. 417. » People V. Aikin, 66 Mich, 460. THE CAUSE OF DEATH. 883 modiatcly aftorwarUs he hoard the rei)ort of a pistol, and going back found the deceasfnl on the ground apparently dead ; and that, alai-mod by the situation in which he found himself, he formed the determination of burying the corpse, and account- ing for her absence as well as ho could. But the variety of the means and instruments employed to produce death, some of them unusual with females, in connection with the contra- dictory statements made by the prisoner to account for the absence of the deceased, entirely discreditetl the account set up by him. He afterwards made a full confession, and wtw executed pursuant to his sentence.' But these heads of evidence belong rather to the department of medical jurisprudence. Such auxiliary evidence is frequently of the highest value in demonstrating the falsehood and im possibility of the alleged defence ; but when uncorroborated by conclusive moral circumstances, it must be received with a certain amount of circumspection and reserve, of the necessity of which some striking illustrations have occurred in other parts of this volume. These preliminary considerations naturally lead to the application of them to the proof of the corpus delicti in some special cases of great importance and interest. ' Rex V, Corder, Bury St. Edmunds Summ. Ass. DIVISION III. APPLICATION OF THE GENERAL PRINCIPLES TO PROOF OF THE CORPUS DELICTI IN CASES OF POISONING. 1 1 it fi'H ,v(. \r\pi }s 1 If '«it CHAPTER I. THE CAUSE OF DEATH. Among the most important grounds upon which the proof of criminal poisoning commonly rests are, the symptoms during life, md post-mortem appearances; but these subjects belong to another department of science/and have only an incidental connection with the subject of this treatise. As is the case with regard to all other questions of science, courts of justice must derive their knowledge from the testimony of persons who have made them the objects of their special study, apply- ing to the data thus obtained those principles of interpretation and judgment which constitute the tests of truth in all other cases.^ An expert chemist has been held to be a proper witness to testify as to the eifect of various poisons in the system, and the fatal dose.2 But where an undertaker was allowed to testify as an expert, as to the improbability o* an injection of arsenic after death being retained, the learned judge in review- ing the case said that the undertaker " presented no claims entitling him to give an opinion as a scientific expert, and his testimony was improper so far as it related to anything but specific facts. "3 1 For a valuable Essay on Circumstancia! Evidence in Poisonin, Cases by Prof. John H. Wigniore, see Medico-Legal Journal, Dec. 1888 p 292 * ^^^%'^-^^''-^^' ^^ ^a^- 392. » People v. Millard, 53 Mich. 63. hm THE CAUSE OF DEATH. 385 The first thing necessary is to determine the cause of death.^ It is obviously essential in order to secure a conviction on a trial for criminal poisoning, that the particular symptoms and fost-mortem appearances should be shown to be not incom- patible with the hypothesis of death from poison." In general such appearances are inconclusive, since though they are com- monly characteristic of death from poison, they not unfre- quently resemble the appearance of disease, and may have been produced by some natural cause. In Smeihursfa case,^ which involved much conflicting evi- dence as to morbid appearances supposed to have been indicative of death by slow poisoning, a pardon was granted after convic- tion, on the ground of the imperfection of medical science, and of the fallibility of judgment, with respect to an obscure malady, even of skilful and experienced medical practitioners. The symptoms, for example, of cholera morbus, peritonitis, ulceration of the stomach, and hernia, resemble in a greater or less degree the symptoms of irritant poisons ; while the symp- toms following the administration of narcotic poisons much resemble those of such diseases as apoplexy, epilepsy, inflamma- tion of the brain, tetanus, and heart disease. It is therefore generally regarded as unsafe to convict on symptoms alone.* Nevertheless, as to some particular poisons, the symptoms may be so characteristic as to affoi'd unmistakable evidence of poisoning, and precludf all possibility of referring the event of death to any other cause. Thus in Palmer's case, it was con- clusively shown by numerous witnesses of the greatest profes- sional experience, that the symptoms in the course of their progress were clearly distinguishable from those of tetanus or any other known form of disease, and were not only consistent wl^h, but specially characteristic of, poisoning by strychnine. And there are certain poisons which manifest themselves by their odor, which is easily detected on opening the body ; such are alcohol, chloroform, nicotine, opium, and prussic acid. And external stains, such as areproi .ced by mineral acids, are among the strongest mdications furnished by a postmortem examination. Where narcotic poisons have been used, the 1 Polk V. state, 36 Aik. 117. « Hatchett v. Cora.. 76 Va. 1026. See Reg. v. Lawson, infra. • Reg. V. Smethurst, C. C. C. Sess. Pap., Aug. 1859. * People V. Millard, 53 Mich. 63 ; Joe v. State, 6 Fla. 691; 65 Am. Dec. 679. THE CAUSE OF DEATFI. examination will commonly reveal an inliamed and congested state of the brain and spinal coni, for these are the parts affected by this class of poisons. From the use of irritant ))oi8(Mis ulceration, and even jwrforation of the stomach, very often results. Antl where none of these traces or appearances present themselves on the ponUnortem examination it is a rea8„ i 4. ■ i ! - ', i iif'iil tke body to snch an extent that it would be found in ttie liver and kidneys ? " * Dr. Vaughan, an expert witness for the defence, testified that " if within twenty-four hours after the death of Mrs. Millard, arsenic to the amount of one half a teaspoonf ul had been injected into the stonoach and rectum, and the body buried, and examined 106 days afterwards, he would expect, from rewdiiig and experiments, to find arsenic in the liver from that injected." Subseqnent experiments have proved '* beyond a doubt, that arsenic may diffuse through a dead body," * and even that the filling of arsenic in the brain is no proof that ti was administered during life.* " It must be admitted," says Dr. Miller, m the article to whicfa reference has just been made, that " tHere are only very rare opportunities for the toxicologist to detect a discrimi- native method between ante and posi^nortem poisonmg. But the microscopist, with his knowledge of the histological and pathological appearance of organs, may perhaps be able to dis- cover, by rigid searching with his microscope, some permanent appreciable difference ; for it is not improbable that there may take place certain specific changes in the histological constit- uents of an organ, due to the deposition of a substance like arsenic, through the medium of the blood circulation during life, which changes would not manifest themselves as the result of an after-death deposition " * Dr. Reese, dealing with 1 People V. Millard, 53 Mich. 63. See also People v. Hall, 48 Mich. For a valuable statement of the medico-legal pomts m the Millard case, see a paper read before the First American International Medico Legal Congresa, Jane, 188», by Dr. Victor C. Vaughan. * See the paper above referred to, and see a record of experiments in vol. 1 of the Journal of the American Medical Asso , p 1 15. »See an article by Dr. Geo. B. Miller m the Medico-Legal Journal for March, 1888. A recent case is reported in vol 13 of the Journal of tlie American Chemical Soc., p. 283. A man had died from a disease diagno.scd as remittent fever. Two hours after death the body was embalmed by thrusting an embalming needle into the abdomen and injecting an embalm- ing fluid which contained 100 grains of arsenic tri-oxide and 10 grains of zine sulphate in each fluid ounce Suspicion of poisonmg having arisen, the coroner took charge of the case and held an autopsy twenty-four 'lOurs after death. The diagnosis wa« confirmed ; but tlie brain was vemoved and analyzed. A portion of it weighing 1 10 grammes contained one and six- tenths milligrams of arsemc tri-oxide, and a small quantity of zinc. It was thus clear that the arsenic found m the brain had been deposited there by the diflfusion of the embalmnig fluid. * See Medico-Legal Journal, March, t«88, p 506. TSE CAUBB OF DEMB. 881 the same question,* declaxed that "there was no known method by which such discrimination could be made, if reliance was to be ha4 exclusively on the chemical analysis of the body, since this simply established the f act oi the presence or absence of the poison, but did not necessarily disclose its 7mde of intro- duction.''^ At any rate, any evidence on this point must be, in almost every case, largely speculative, and ought not to receive, and in most cases Avouid not receive, much consider- ation at the hands of a jury debatmg the existence or non- existence of a heinous crime. The result of the whole matter is, as has been wisely pointed out,^ " that the chemical evi- dence should not bo held in the highest esteem, and be given the place of first importance in all cases." By no case is the unreliability of chemical evidence better illustrated than by the Buchancm case.' Br. Buchanan was charged with the murder of his wife by the administration of morphine. Prof. Withaus claimed to have discovered mor- phine in the body of the dead woman, which had been buried forty four days. He testified that by the use of certain chemi- cal re-agents he obtained results indicating the presence of morphine. Dr. Vaughan, a witness for the defence, testified that he had obtained similar results with an extract of pan- creas. And here may be mentioned another discovery of modern science which is of the greatest importance in this connection. During a trial for criminal poisoning in Prussia, in 1874, the analyst discovered a substance which he claimed to be oonine. This Avas submitted to a distinguished toxicologist. Otto, who pronounced it to be neither conine, nicotine, nor any vegetable alkaloid with which he was acquainted. In another case, from a body slightly decomposed, an alkaloid was obtained which in some respects resembled strychnine. And in the Longogua trial at Cremona, Italy, a substance resembling mor- phine was found. It is an important fact, which the activity of modern scientific research has revealed, that animal bodies during putrefaction produce alkaloidal substances, some of which resemble, some by their chemical reaction, and others by the symptoms they produce, vegetable alkaloids; while » Medico-Legal Journal, Sept. 1887, p. 184. » Medico-Legal Journal. March, 1888, 506. " Tried in New York City, April, 1893. 89S '."HE CAUSE OF DEATH. I i If »>;;■ 1 ^« H 51 1 i ' 1 1 ! ^1. !<■ f I others again when present in the same solution mark the char^ acteristic reax;tions of vegetable alkaloids.* In the case of People v. Stephens,^ no attempt had been made to embalm the body, and an attempt was made to account for the arsenic found in the body of the deceased, which had been buried for a considerable length of time, by the theory that arsenic in the soil had reached the body by the action of rain water percolating through the soil. But on examination of the coffin, and the nails therein, and of the soil surrounding the grave, no trace of arsenic was found. It has been since demonstrated that, even when arsenic is present in the soil, a body cannot absorb the poisonous substance, for the arsenic becomes fixed in the soil and is insoluble.' In the Millard case an attempt was made by the prosecution to detect arsenic in the soil on to which the matter vomited by the deceased had been thrown. Finding no arsenic, the prose- cution claimed that it had been washed deeper into the earth, and distributed in every direction. The defence contended for the fixation of arsenic in the soil, which has since been experi- mentally demonstrated.* It would be most unreasonable, therefore, and lead to the grossest injustice, and in some circumstances to immunity of thf, worst of crimes, to require, as an imperative rule of law, that the fact of poisoning shall be proved by any special and exclusive medium of proof, when that kind of proof is unattain- able, and especially if it has been rendered so by the act of the offender himself. No universal and invariable rule, there- fore, can Ije laid down ; and every case must depend upon its o^vn particular circumstances ; and, as in all other cases, the corpus delicti must be proved by the best evidence which is capable of being adduced, and such an amount and combina- tion of relevant facts, whether direct or circumstantial, as establish the imputed guilt to a moral certainty, and to the ex- clusion of every other reasonable hypothesis. It was held in a recent case that neither chemical analysis nor an autopsy was absolutely necessary.* And where the accused was charged » See on this subject, Vaughan & Novy on Ptomaines and Leucomames, especially at p. 174 et seq., a work which I have freely consulted. « 4 Park. C. C. 396. And see 1 Crim. L. Mag. 295. * Comptes Rendus, 100, 1889. * Seo Paper read before First Am. International Medico-Legal Congress, by Dr. Vaughan. 6 Poik v. State, 36 Ark. 117. THE CAUSE OF DEATH. 393 with having caused the death of the deceased by inducing him to drink from a bottle represented as containing whisky, but which was supposed to contain a poisonous mixture, a convic- tion was had though there was no poHt-mortem, examination of the body of the deceased, nor any analysis of the contents of the bottle.* In TaweWa case it was strenuously urged by the counsel for the prisoner that it was a rule of law that there ought to be positive proof of the mode of death, and that such a quantity of poison was found in the body of the deceased as would necessarily occasion death. But this doctrine was peremptorily repudiated by Mr. Baron Parke, who told the jury, that " if the evidence satisfied them that the death was occasioned by poison, and that that poison was administered by the prisoner, if that," said his lordship, •' is proved by circumstantial evi- dence, it is not necessary to give direct and positive proof what is the quantity which would destroy life, nor is it necessary to prove that such a quantity was found in the body of the de- ceased, if the other facts lead you to the conclusion that the death was occasioned by poison, and that it was knowingly administered by the prisoner. You must take this fact, just the same as all the other parts of the case, and see if you are satisfied, as reasonable men, whether the prisoner is guilty or not. The only fact which the law requires to be proved by direct and positive evidence is the death of the party, by find- ing the body ; or when such proof is absolutely impossible, by circumstantial evidence leading closely to that result, as where a body was thrown overboard far from land, when it is quite enough to prove that fact without producing the body." His lordship, in a subsequent part of his charge, said, " There is very reasonable evidence, supposing that to be re- quired which I tell you is not, that the quantity of prussic acid in the stomach amounted to one grain ; and although that is not necessary to be proved, the scientific evidence shows that one grain may be enough to destroy life." In reference to the argument urged by the prisoner's counsel, that the deceased might have died from some sudden emotion, the learned judge said that it was within the range of possibility that a per- son might so die without leaving any trace on the brain ; they 1 Hatchett v. Com., 76 Va. 1026. 394 THE CAUSE OF DEATH. were to judge wliether they could attribute death to that cause, If they found strong evidence of the presence of poison- be- cause they were not to have recourse to mere conjecture ; that where the result of the evidence gave them the existence of a cause to which it might be rationally attributed, they were not to suppose It was to be attributed to any other cause. In a recent case, where the defendant was convicted of the murder of his wife by placmg an arsenical poison—" Rough on Rats "—in the flour which was used by her in the preparation of a naeal for herself and family, there was evidence of an analysis of bread and flour found by a witness in the house of the de- ceased the day after her death, and of the finding of arsenic in such bread, and also in the stomach of the deceased. But the jury were instructed that, before they could consider the testi- mony of the experts as to the analysis of the bread and flour they must be satisfied beyond a reasonal doubt that the bread and flour analyzed were parts of the same of which the de- ceased ate.* Lord Campbell, in Palmer' sc^e, said that it was not to be expected that witnesses should be called to state that they saw the deaxily poison administered by the prisoner, or mixed up by the prisoner openly before them. Circumstantial evidence as to that, continued the learned judge, is all that can bo reasonably expected ; and if there were a scries of circum stances leaxling to the conclusion of guilt, a verdict of guilty might satisfactorily be pronounced. With respect to the con sideration that no strychnia was found in the body, it was for them to consider, but there was no rule of law according to which the poison must be found in the body of the deceased and all that they knew respecting the poison not being in the' body was, that in that part of the body that was analyzed by the witnesses no strychnia had been found. And in a late case m Vwginia it was held not to be absolutely necessary that poison be found in the body of the deceased, for the reason that some poisons may be given in a quantity sufficient to pro- duce death without leaving a trace to be discovered in the body." » State V. Best (N. C), 15 8. E. 930. »Hatchett v. Com., 76 Va. 1026. CHAPTER II. THE ADMINlS'x \T10N OP THE POISON. Skotion I. Poasesaion of Poison hy the Accused. It is in the next place necessary to establish that the poison was administered by the prisoner.* The probability of any other means must be excluded. It is common for the defence, in cases of tliis kind, to set up the theory of suicide. An illustration of tins course is to be found in the case of Madeleine Smith? And whereve* the facts give a color of probability to the claim, it may be said on behalf of the defence that the deceased, having been in the habit of taking the particular poison specified as the cause of death, had perished as a result of inadvertence in taking a larger dose than usual. In a late case the defence having offered to prove that at a former time, ten years before her death, the deceased was accustomed to take arsenic, and that she had told a witness that she was obliged to take it for her health, the court would not admit this, unless it were to be followed by other evidence bringing the habit down to a reasonable time time before death.^ The possession of poisonous matter by the party charged with the administration of it, is always an important fact. When death has been caused by poison of the same kind, and no satisfactory explanation of that fact is given by the accused or suggested by the surrounding circumstances, a strong infer- 1 Hatehett v. Com., 76 Va. 1026. » Goersen v. Com.. 106 Pa. St. 477. ' See infra, 401 et seq. 395 ill M 896 THE ADMINIRTRATION OF THE POIfiON f { « I ence of piilt may be created a^rainst the accused ; especially if he has attempted to account lor such possession by false state- ments. On the trial of Mart/ Ilartung for the murder of her husband, it appeared that al)out two days before the death of the People V. Hartung, 4 Park. Cr. R. 256. » See Report of this case at p. 313. « People v. Stephens, infra. ♦ Brown v. State, 88 Ga. 257. ^ Tried in Boston, Dec. 1887 and Feb. 1888. THE ADMINISTRATION OF THE POISON. 897 arsenic — the drug wliieli producic*! death — in her life, and that Hhe was, indeed, unable to say whetlier it was a powder or a Hquld.» Section II. li Opportu7iUy Must he Shoion. Not only must it appear that the accused possessed the deadly agent, but it is indispensable to show that he had tlie opportunity of administering it.''' Stej)hens was on nearly all occasions in the room with his wife alone, during the latter's last illness, and administered to her food and drinks.* Where several members of a family were taken sick after eating of food supposed to have been tampered with by the prisoner, a dis- charged servant, it was shown that the flour for the morning meal had been got out, as was the custom, the night before and placed on a table in the kitchen. The prisoner was known to have passed through the kitchen after this had been done, and when no one else was there, carrying a cup and towel, which she said she was returning to one of the members of the family to whom the articles belonged.'^^ No difficulty will be experienced in proving the opportunity where the accused was the medical adviser or attendant phy- sician of the deceased. This was Dr. Lamaon^a case. In this case the prisoner had, on various occasions, sent medicine to the deceased, and, on the night, of the deceased's death, had visited hira and given him some powders which the deceased actually took.^ James Hall was convicted of an attempt to murler his wife 1 It is Interesting to note here that, a short time after tliia trial, it was published as a fact that on cleaning out and remodelling the house formerly occupied by Mrs. Robinson, a package of " Rough on Rata "-an arsenical poison— was found behind the bricks of the furnace. This, if true, would supply the missing evidence, and clear away all doubt as to the propriety of the verdict. See Medico-Legal Journal, Dec. 1888. p. 803. See further, in illustration of this point. Com. v. Hobbs, 140 Mass. 443. ' An interesting case is that of Madame Joniaux commented on, with a summary of the facts, in 51 Alb. L. J. 114. 8 People V. Stephens, infra. « Brown v. State, 88 Ga. 257. ° See The Lancet, London, Eng., March I8, 1882, p. 455. •f«,' i(* *')! ; W ' 1' fi 398 THE ADMINISTRATION OF THE POISON. ^'^.T?; '^^ ^''''^^^ '^°^^d ^i^«t tl^e prisoner and his wite had been married nineteen years and had four children J^or several years all marital relations had ceased between them. They had been at enmity for a considerable time, and the prisoner had once abandoned his family and remained away from them for about a year. At the end of that time the family came to hnn, and thereafter they lived under one roof But during this time the wife occasionally spoke of leaving her husband altogether, and he, on his part, charged her with unchastity. At this time, too, the prisoner had conceived a violent passion for a young woman in the neighborhood, and had openly declared his attachment for her. On the day when the attempt on the life of his wife was alleged to have been made the following event occurred. The wife, being ab sent from home, dinner was prepared by one of the daughters who, at the usual hour, called in the prisoner and the othe^ three children. While dinner was in progress the wife, who had gone to the house of a neighbor to borrow a pattern to make some garment, returned, and went into an adjoimnff their dinner, all came into the room where the mSher was leaving the prisoner sitting at the table. The wife coming presen ly into the room to eat her dinner, the prisoner aros! from the table and went to the stove, and brought some bread there rom and handed it to his wife, and then seated himself be- side the stove and put his feet into the oven. The wife, having- taken gravy from a bowl on the table and mixed it with bread beg^m to eat, but at the first mouthful cried out " This is aw^^i ^ ^Ttl-n ''\'°^-' ^^' ^^^^ ^^' what'shelTir hel mouth. The children having come out into the room, the son took some white particles on the surface of the giavy and tasted them and said they were bitter. The gravy walthen given to a dog who ate it and presently maniflted ^2Z of great suffering. A doctor was sent for, an.1 when heZ med, findmgthe wife showing symptoms of strychnine poison- ng, gave her sweet milk as an antidote. The prisoner had u^. to this taken no part in what was going on, but now said • it sweet mUk is good for her, give me some for the do- " !„ about twenty minutes the dog died. The prisoner on 'bein.. questioned about the poison said that he could no^. ha- g^t^en It Irom a store mthout giving his name, and having ihat^and THE ADMINISTRATION OF THE POISON. MMk JtWB the quantity and the date recorded, and gave no other explana- tion.^ It will be seen that while the accused was sitting al,«?of^' ^fouB lieads of evidence in charges of poisoning, of nhlr? '? "? '' ^^ "'^'^ ^^'^^'•'^^ '"^^'•^'«t- The data of physiological and pathological and chemical science must tZr T ^' ""^ ''P^"^"" ^««tified to by skilled witnesses ; whereas in the forensic discussion of moral facts, appeal i necessarily ma.le to those psychological principi;s of our nature which give them pertinence and significance, and upon which every mteligent person is capable%f forming a tru" r ir ^T'-. ^' ^'""^^ ^' "•^^"'•^^ '^ «"PP««« that such iTrl r ^ ^^'^^ c^'nnected by adequate independent evi- enal If h^ '"^r* ^^*f' ' ^'^ '^^^^ ^^''^^^t^^^ ^"^ phenom- In/f. ? . "'"'l T^' ^^'^ ''^'^ ^'^^ "^^^"^^1 ^«d unmistakable manifestations of the secret workings of the mind, not only ttiS hTr r' 't^'"^ ^"^° ^^1^^^' ^^« character o^ lt!lt^ «lf ' u "^'''? "^''^ '^ discriminate the individual guilty actor. H,s necessities, his antipathies, or other motives his reluctance to permit examination of th; body, orTs cot' tents, or excreta or of other suspected matter, his contrivances to prevent It, his attempts to tamper with the witnesses or the officers of justice, or with such suspected matter, or with any other article of real evidence, his falsehoods, subterfuges, and evasions, these and many other circumstanced constitute most ^ refirbly^^^^^^^ ^^^'^^^^' ^^^"^ ^'^^^^ ^^« ^^^^ -y In the ffarrie case i a witness wa^ permitted to testify to a conversation with the defendant in which, after boasting o? his previous extensive intercourse with women and of hk successful methods for violating their persorie adm Led having previously contracted two secret marria-es r^«rt necessary to overcome the scruples of the woTen This T clearly admissible on the question of motive, for with h s me Z'l:nr"''1r^ ^^^ P^^^^^^^^ ^^ ^^« J-^- man?ag ^h submitted him to a criminal prosecution as a bigamist An other witness was allowed to testify that a short^ime before the fatal Illness of the deceased, the defendant had iUicTt re > People V. Harris, infray and THE ADMINISTRATION OF TTTE POIfiON. 409 lations with a young woman in anothor part of tho Statr, and that the witness had overhearrl a conversation botwccn them in which the defendant suggested that the woman marry some old man with plenty of money, and that they could then 'give him a pill," and get him out of the way. This bore upon tho question of motive, and tended to rebut tho strong presumption in favor of a husband on trial for tho murder of his wife. " The evidence of an illicit intercourse went to exhibit what were the defendant's feelings towards his wife, and bore upon his desire to get rid of tho marriage relation. The further evidence in what ho proposed to his mistress, that she could or should do, went to exhibit how strongly he desired tho per- manence of their relations, ami to point out a way by which in the future, they could secure thai permanence with such ad- vantages in their surroundings aa the possession of wealth world procuie." ' In another case the wife of the prisoner whom ho was charged with poisoning was much older than he, and had lost some of her personal attractions. And she Imd living with her a niece who was young and attractive, and for whom the accused had conceived a strong passion. It appeared that he had, on at least one occasion, made an attempt to have crim- inal intercourse with the niece. And it was supposed that an anonymous letter written to one of the niece's suitors, making an attack on the girl's character and attempting to dissuade the suitor from paying further attention to her, had been written by the accused.' In a case of attempted poisoning of a woman by her husband, it wtw shown that the two had lived at enmity for a considerable time before the attempt, and that the accused had cpenly declared an all-devouring passion for a young woman of .he neigh borhood.8 ^ In the Graves case the motive suggested was that the dc- lendant might get possession of a large sum of money which the defendant supposed thaf the deceased would bequeath to him at her death.* On the trial of a negress for attempted poisoning, it appeared that the accused had been discharged from the service of the 1 See opinion of Gray, J. " People V. Stepliens, infra. •Bellr. Com., 88 Va. 365. « Graves v. People, 18 Col. 170. See also SUte t,, Baldwin, 36 Kan. 1. 410 THE ADMINISTRATION OF THE POISON. i ir-it' U I It family on the day before tho attempt was made, and had been threatened with a beating.* In moat criminal charges, the evidence of the corpufi delicU is separable from that which applies to tho indication of tiie offender; but in cases of poisoning, it is scarcely ever possible to obtain conclusive evidence of the corpun ddicti, irrosjiectivcl v of the explanatory evidence of moral conduct; and Mr. Jus- tice BuUer, in Donellan's case, told the jury that "if there was a doubt upon the evidence of tho physical witnesses, they must take into their consideration all the other circumstances, either to show that there wtis poison administcrod, or that there Avas not, and that every part of the prisoner's conduct was material to be considered." » So in i>f>n«a«'« case, Mr. Justice Abbott, in summing up, said to the jury that there were two important questions : first, did the deceased die of poison ? and if they should bo of opinion that she did, then, whether they were satisfied from tho evidence tiiat the poison was administered by the prisoner or by his moans ? There were some parts of the evidence which ajipeared to him equally applicable to both questions, and those parts were what related to the conduct of the prisoner during the time of the opening and inspection of the body ; his recommendation of a shell and the eariy burial ; to which might be added the circumstances, not much to be relied upon, relative to his endeavors to evade his apprehension. His lordship also said, as to the question whether the deceased died by poison, " in consid- ering what the medical men said upon the one side and the other, you must take into account tho conduct of the prisoner in urging a hasty funeral, and his conduct in throwing away the contents of the jug into the chamber utensil." ^ Lord Chief Justice Campbell, in his charge to tho jury in Palmers case, said that " in cases of this sort the evidence had often been divided into medical and moral evidence; the medical being that of the scientific men, and the moral the circum- stantial facts which are calculated to prove the truth of tho charge against the party accused. They cannot," he con- tinued, " be finally separated in the minds of the jury, because it is by the combination of the two species of evidence that • Brown v. State, 88 Ga. 257. a Gumey's Short-hand Report, ut stipra, p. 53. » Frazer's Short-hand Rep., wf mipra, pp. 127. 177. lit; " THE ADMINISTRATION OF THE POISON. 411 their verdict ou^t to bo found. In this case you will look at the medical evidence to see whether the deceased, in your opinion, did die by strychnia or by natural disofwe ; and you will look at what is called the moral evidence, and consider whether that shows that the prisoner not only had the oppor- tunity, but that ho actually availed himself of that opportun- ity, to administer to the deceased the deadly poison of which he died." His lordship also said that " it was impossible they should not pay attention to the conduct of the prisoner, and that there were some instances of his conduct as to which they would say whether they belonged to what might bo expected from an innocent or a guilty man. He was eager to have the body fastened down in the coffin. Then with regard to the betting-book, there is certainly evidence from which you may infer that he did get possession of the deceased's betting-book, and that he abstracted it and concealen, you have tampering with the coroner, and trying to induce him to procure a verdict from the coroner's jury which would amount to an acquittal. These are serious mat- ters for your consideration, but you, and you alone, will say what inference is to be drawn from them. If not answered, they certainly present a serious case for your consideration." > One accused of an attempt to poison the members of a fam- ily, hy plaxJing the poison in the flour which was to be used for the morning meal, had hung around the house for several hours after the meal, and asked if a certain person was sick, though nothing of the sickness had been told her.* When the pris- oner on a trial for poisoning his wife had sent her the poison from a distance and told a witness that his wife was dead, when he had not, and could not have received any communica- » See Report of Reg. v. Palmer at pp. 308 and 320. Further on this sab- ject see State v. Baldwin, 36 Kan. 1, where the conduct of the prisoner subsequent to the death of his victim told strongly against him. 2 Brown v. State, 88 Ga. 357. 412 is, I ' 1 ^i THE ADMINISTRATION OF THE POISON. If! It) tion to that effect, this was a circumstance which must have had, and justly, great weight vnth the jury, in determininc^ the question of guUt.i And in the celebrated Mayhrick case It was shown on the trial that the defendant had told her para- mour that her husband was " sick unto death," when as yet it had not appeared that his illness was incurable. In Stephens' case it was a circumstance much commented on that the defendant left his wife's room Avhile she was in her dying agony and remained away several hours." On the trial of Adelaide Bartlett for the murder of her husl)and by poison an impression was created favorable to the accused by the fact that she had assiduously cared for the deceased during the long course of his illness, and had constantly manifested a strong and tender affection for him.^ Among the most important circumstances of moral conduct, and in analogy with the rules which prevail in the proof of the corpus delicti in other cases, may be mentioned former acts of poisoning, or attempts to poison, whether the same individual, or other members of the same family, where such successive administrations throw light upon the particular act which forms the subject of inquiry. On a trial for murder by the administration of prussic acid in porter, evidence was admitted that the deceased had been taicen ill several months before, after partaking of porter with the prisoner.* And upon the trial of a woman for the murder of her husband hy arsenic, in September, evidence was admitted of arsenic having been taken by two of her sons, one of whom died in December, and the other in March following, and also by a third son, who took arsenic in April foUowing, but did not die. Evidence was also admitted of a similarity of symptoms in the four cases, that the prisoner lived in the same house with her hus- band and sons, and prepared their tea, cooked their victuals, and distributed them to the four parties. Lord Chief Baron Pollock said his opinion was that evidence was receivable that the deaths of two sons, and the illness of the third, pro- ceeded from the same cause, namely, arsenic. The tendency of 1 McMeen v. Com., 114 Pa. St. 800. " People V. Stephens, 4 Park. Cr. R. 396. » Reg. V. Bartlett, Cent. Crim. Ct. Sees. Pap. vol. ciii. pt. 618 pp 72.'>-811, See also London I^anwt, May 22, 1886. ' * Reg. V. Tawell, ut supra. Hi' THE ADMINISTRATION OF THE POISON. 418 such evidence, he said, was to prove, and to confirm the proof already given, that the death of the husband, whether felon- ious or not, was occasioned by arsenic. In that case he thought it wholly immaterial whether the deaths of the sons took place before or after the death of the husband. The domestic history of the family during the period that tlie four deaths occurred was also receivable in evidence, to show that during that time arsenic had been taken by four members of it, with a view to enable the jury to determine whether such taking was accidental or not. The evidence, he said, was not inadmissible, by reason of its tendency to prove, or to create a suspicion of a subsequent felony. His lordship, after taking time to consider, refused to reserve the point for the opinion of the judges, under the 11 & 12 Vict. c. 78, and stated that Mr. Baron Alderson and Mr. Justice Talfourd concurred in opinion with him,* In a case where a man and his wife were indicted for the murder of the male prisoner's mother, by poisoning, evidence was admitted for the purpose of rebutting the inference that the arsenic was taken accidentally, to show that some months previously the first wife of the male prisoner had died by poison ; and that the woman who waited on the mother and tasted her food was several times taken sick ; that the food was always prepared by the female prisoner; and that on no occasion were the prisoners affected, nor did they show symptoms of poison,' Mrs. Jiohinson was convicted of the murder of her brother- in-law, and it was supposed that the motive was that she might get possession of the insurance money. The beneficiary of the policy was, in the hrst instance, the wife of the deceased, who had died a short time before under suspicious circumstances. On the death of the deceased's wife, the accused became en titled to the proceeds of the policy. It was held that if it were shown that the accused knew this fact, and that she had, before the death of the deceased's wife, formed the intention of get- ting possession of the insurance money, then the circumstances tending to prove that the deceased's wife came to her death » Reg. V. Geering, 27 L. J. M. C, 215. And see Reg. v. May, 1 Cox's C. C. 236 ; Reg. v. Calder, Id. 348, and the language of Mr. Baron Maule, in Reg. V. Dossett, 2 C. & K. 306. a Reg. V. Garner et wa;., 4 F. & F. 846. See also Reg. v. Cotton, mpra. 414 THE ADMINISTRATION OF THE POISON. > I* J( by poison administeretl by the accused might be shown.* On the trial of Dr. Goersen for the murder of his wife by admin- istering arsenic, the theory of the Commonwealth was, that the defendant wished to get possession of some property, belong- ing to his wife, and in which her mother had an interest. To do this he had to get rid of both his wife and her mother. It was then admissible to show that the mother had died a few days before the wife, that the defendant had attended her in her last illness, and that the body was exhumed and examined, and found to contain arsenic, and to show such other circumstances as tended to rebut the theory of accident or suicide.' But, nevertheless, moral facts apparently calculated to create the greatest suspicion may not be of a suspicious nature, or may be too fallacious and uncertain to justify conviction, especially where the corjma delicti is matter of inference only] and not established on a basis of independent evidence. Justice requires that such facts should be interpreted in a spirit of candor, and with proper allowance for the weaknesses of men who may be suddenly placed in circumstances of suspicion and difficulty. It is well known, for example, that many persons, more especially in the humbler classes, feel great repugnance to permit the bodies of their friends to besubjectal to anatom- ical examination. The manifestation of such repugnance is a fact to be taken into account, like all other facts. But although in the case of violent or sudden death, and partic- ularly when caused by poison, it must be known that Wx^ post- mortem, examination is of the highest importance, it by no means follows that objection to permit such examination pro- ceeds from the consciousness of guilt. In a case of this kind, Mr. Baron Rolfe said that the question was, from what motive the reluctance arose. On the one hand, it was suggested that it was because the prisoner did not wish the cause of his wife's death to be investigated, being afraid it would be discovered that she had died from arsenic; on the other, that his reluctance arose from his horror of the notion of his wife's dead body being taken up and exposed to the investigation of the surgeons, at which the feelings were apt to revolt. Many per- sons, no doubt, feel very great horror at the notion of such things being done to themselves, or those connected with them, 1 Com. V. Kobinson, 146 Mass. 571. 2 Goersen v. Com., 106 Pa. St. 477. THE ADMINISTRATION OF THE POISON. 415 whilst Others, again, were indifferent on the subject, leaving their own bodies to be dissected. But few jiorsons liked to have their wives or their daughters so exposed; the prisoner said the learned judge, might not be one of them, and his feel- ings on that subject might have promoted the remark alleged against him ; and surely he must have known tliat any reluct- ance expressed by him to an inquiry, or wish to stop it, would only tend to make those who were about to make it persevere 1 An observation of Mr. Justice Stephen will be appropriate here. Speaking on the subject of prisoners as witnesses, that eminent criminal lawyer remarked that though «it might seem paradoxical to say so, it was nevertheless true, that the class of accused persons who will get least advantage from having their mouths opened are those who are entirely innocent of, and unconnected with, the crime, of which they are charged —persons who have nothing to conceal and nothing to explain." In connection with this it may be noticed as a remarkable cir- cumstance that Avlien Mrs. Maybrickmade her statement it was not established beyond a doubt that the deceased died of arsen- ical poisoning. Even if he died from arsenic, it was not shown that Mrs. Maybrick administered it ; there was no proof that she had arsenic in her possession, except in the form of fly-papers, and it was clearly shown that the deceased was in the habit of taking arsenic. Thus there was a strong proba- bility that the prisoner would be acquitted. But when in the course of her statement she admitted that she had put a white powder in the meat, it seemed that all hope was shut out.a ^ Reg. V. Graham, ut supra. 2 Extract from Solicitors' Journal, in 11 Crim. L. Mag. 834. 1 , 15 • (i' rf |i' •)t ' *i :t , i 1 It CHAPTER III. OASES IN ILLUSTRATION OF THE POREGOINQ RULES. An analysis of some of the most remarkable recorded cases of criminal poisoning Avhich have occurred in our judicial annals, will form an interesting commentary upon the general rules of evidence, and more especially in their application to the interpretation of moral inculpatory facts. John Donellan, Esq., was tried at "Warwick Spring Assizes, 1781, before Mr. Justice Buller, for the murder of Sir Theodosius Boughton, his brother-in-law, a young man of fortune, twenty years of age, Avho up to the moment of his death had been in good health and spirits, with the exception of a trifling venereal ailment, for which he occasionally took a laxative draught. Mrs. Donellan was the sister of the deceased, and together with Lady Boughton, his mother, lived with him at Lawford Hall, the family mansion. On attaining twenty-one. Sir Theodosius would have been entitled absolutely to an estate of £2,000 per annum, the greater part of which, in the event of his dying under that age, would have descended to the prisoner's wife. For some time before the death of Sir Theodosius, the prisoner had on several occasions falsely represented his health to be very bad, and his life to be precarious, and not Avorth a year's purchase, though to all appearances he was Avell and in good health. On the 29th of August the apothecary in attendance sent him a mild and li armless draught, to be taken the next morning. In the evening the deceased was out fishing, and the prisoner told his mother that he had been out with him, and that he had imprudently got his feet wet, both of which representations were false. AVhen he was called on the following morning, he was in good health ; and about seven o'clock his mother went to his chamber for the purpose of giving him his draught of the sm^ll and nauseousness of which he immediate! v com- 410 •' CASES IN ILLUSTRATION OF THE FOREGOING RULES. 417 plained^ and she remarked that it smelt like bitter almonds. In about two minutes he struggled very much, as if to keep the medicine down, and Lady Boughton observed a gurgling in his stomach ; in ten minutes he seemed inclined to doze, but in five minutes afterwards she found him with his eyes fixed, his teeth clenched, and froth running out of his mouth, and within half an hour after taking the draught he died. Lady Boughton ran doAvnstairs to give orders to a servant to go for the apothecary, who lived about three miles distant ; and in less than five Tainutes the prisoner came into the bedroom, and after she had given him an account of the manner in which Sir Theodosius. had been taken, he asked where the physic-bottle was, and she showed him the two bottles. The prisoner then took up one of them and said, " Is this it ? ■ ' and being answered " Yes," he poured some water out of the Avater-bottle, which was near, into the phial, shook it, and then emptied it into some dirty water, which was in a wash-hand basin. Lady Boughton said, "You should not meddle with the bottle ; " upon Avhich the prisoner snatched up the other bottle and poured Avater into that also, and shook it, and then put his fi' . to it and tasted it. Lady Boughton again asked what he was about, and said he ought not to med- dle with the bottles : on which he replied he did it to taste it, though he had not tasted the first bottle. The prisoner ordered a servant to take away the basin, the dirty things, and the bottles, and put the bottles into her hands for that purpose ; she put them down again on being directed by Lady Boughton to do so, but subsequently, while Lady Boughton's back was turned, removed them on the peremptory order of the prisoner. On the arrival of the apothecary, the prisoner said the deceased had been out the preceding evening, fishing, and had taken cold, but he said nothing of the draught which he had taken. The prisoner had a still in his own room, which he had used for distilling roses ; and a few days after the death of Sir Theodosius he brought it, full of wet lime, to one of the servants, to be cleaned. The prisoner made several false and inconsistent statements to the servants r nd others as to the cause of the young man's death, attribut^'^ /;; it at one time to his having been out late, fishirg, and getting his feet wet, and at another to the bursting of a blood-vessel, and again to the malady for which he was under treatment, and 27 I^ljf #A .^M llljl' Iw Jl'l 'i I 'Pi 'I 418 CASES IN ILLUSTRATION OF THE FOREOOINO RULES. tho medicine given to him. On the day of bis death he wrote to Sir William Wheeler, his guardian, to inform him of the event, but made no reference to its suddenness. The coffin was soldered up on the fourth day after the death. Two days afterwards. Sir William, in consequence of the rumors which had reached him of the manner of his friend's death, and that suspicions were entertained that he had died from the effects of poison, wrote a letter to the prisoner, requesting that an ex- amination might take place, and mentioning the gentlemen by whom he wished it to be conducted. He accordingly sent for them, but did not exhibit Sir William Wheeler's letter, alluding to the suspicion that the deceased had been poisoned, nor did he mention to them that they were sent for at his request. Havmg been induced by the prisoner to suppose the case to be one of ordinary sudden death, and finding the body in an advanced state of putrefaction, the medical gentlemen declmed to make the examination, on the ground that it might be attended with personal danger. On the following day a medical man, who had heard of their refusal to examine the body, offered to do so ; but the prisoner declined his offer, on the ground that he had not been directed to send for him. On the same day the prisoner wrote to Sir William a letter, m which he stated that the medical men had fully satisfied the family, and endeavored to account for the event by the ailment under which the deceased hatl been suffering ; but he did not state that they had not made the examination. Three or four days afterwards, Sir William, having been informed that the body had not been examined, wrote to the prisoner insisting that it should be done, which, however, he prevented, by various disingenuous contrivances, and the bodv was interred without examination. In the meantime, the" circumstances having become known to the coroner, he caused the body to be disinterred and examined on the eleventh day after death. Putrefaction was found to be far advanced ; and the head was not opened, nor the bowels examined, and in other respects the examination was incomplete. When Lady Boughton, in giving evidence before the coroner's inquest, related the cir- cumstances of the prisoner having rinsed the bottles, he was observed to take hold of her sleeve, and endeavor to check her ; and he afterwards told her that she had no occasion to have mentioned that circumstance, but only to answer such CASES IN ILLUSTRATION OF THE FOREGOING RULES. 419 questions as were put to her; and in a letter to the coroner aiid jury, he endeavored to impress them with the belief that the deceased had inadvertently iDoisoned himself with arsenic which he had purchased to kill fish. Experiments made by the admmistrations of laurel-water on various animals produced convulsions and sudden death, and on opening one of them a strong smell of laurel-water was perceived. Upon the trial four medical men, three physicians and an apothecary, were examined on the part of the prosecution, and expressed a very decided opinion, mainly grounded upon the symptoms of the suddenness of the death, the postmortem appearances the smell of the draught as observed by Lady Boughton, and the similar effects produced by experiments upon animals, that the deceased hail been poisoned with laurel-water ; and one of them stated that, on opening the body, he had been affected with a peculiar biting, acrimonious taste in the hands and mouth, like that which affected him in all the subsequent ex- periments with laurel-water. An eminent surgeon and anatomist, examined on the part of the prisoner, stated a positive opinion that the symptoms did not necessarily lead to the conclusion that the deceased had been poisoned, and that the appearances presented upon dissection explained nothing but putrefaction. ° Mr. Justice Buller, in his charge to the jury, called their attention to the suddenness of the death immediately after the administration of a draught by the prisoner, to the opinions of the medical witnesses that there was nothing to lead them to attribute death to any other cause than that draught, to the prisoner's misrepresentations as to the deceased's state of health at a time when he appeared to others to be in good health and spirits, to his contrivances to prevent the examination of the body, and emphatically to the fact of his having rinsed out the bottle from which the draught had been taken, "which " said the learned judge, « does carry with it strong marks of knowledge by him that there was something in that bottle which he wished should never be discovered ; " and finally, to his attempts to check the witness who spoke to that circum- stance while giving her evidence before the coroner. The prisoner was convicted and executed. This trial baa given rise to much difference of opinion, and assuredly the scientific evidence was very imperfect anc' un- 420 CASE8 IN ILLUSTRATION OF THE FOREGOING RULES. \m r '• 5 tin ii'i if,'1 1 ( si 1 f, u'i I '\ 1 W satisfactory. But the manner in which death occurred, at tl e very instant of taking the draught from the hand of t!ie prisoner, was all but conclusive that it contained some poison- ous ingredient which was the cause of death ; and though the mere coincidence of the two events would not alone have been exclusive of the hypotheais of a sudden death from accident or natural cause, the conjunction of those events with so many circumstances of moral conduct of deep inculpatory import, could admit of explanation only on the hypothesis of the prisoner's guilt. It is impossible to regard those circumstances in any other light than as the necessary indications, on the ordinary principles nf human nature, of the moral causal origin of the fatal catastrophe. Robert Sawle Donnall, a surgeon and apothecary, was tried at Launceston Spring Assizes, 1817, before Mr. Justice Abbott, for the murder of Mrs. Elizabeth Downing, his mother-in-law. The prisoner and the deceased were next-door neighbors, and lived upon friendly terms ; and there was no suggestion of malice, nor could any motive be assigned which could have in- duced the prisoner to commit such an act, except that he was in somewhat straitened circumstances, and in the event of his mother-in-law's death would have become entitled to a share of her property. On the 19th of October the deceased drank tea at the prisoner's house, which was handed to her by him, and returned home much indisposed, retching and vomiting, with a violent cramp in her legs, from which she did not re- cover for several days. About a fortnight afterwards, after returning from church, and dining at home on boiled rabbits smothered with onions, upon the invitation of her daughter she drank tea in the evening at the prisoner's house, with a family party. The prisoner on this occasion also handed to the de- ceased cocoa and bread and butter, proceeding toAvards her chair by a circuitous route ; but it was stated to have been his habit to serve his visitors himself, and not to allow them to rise from their chairs. When Mrs. Downing had drunk about half of her second cup, she complained of sickness and went home, where she was seized with retching and vomiting, at- tended with frequent cramps ; and then a violent purging took place, and at eight o'clock the next morning she died. None of the other persons who had been present on either of these occasions were taken ill. To a physician called in by the CASES IN ILLUSTRATION OF THE FOREGOING RULES. 421 prisoner two or three hours before her death, he stated that she had had aa attack of cholera morhua. The nervous coat of the stomach was found to be partially inflamed or stellated in sev- eral y.ttces, and the villous coat was softened by the action of some corrosive substance; the blood-vessels of the stomach were turgid, and tlio intestines, particularly near the stomach, inflamed. The contents of the stomach were placed in a jug, in a room to which the prisoner (to whom at that time no sus- picion attached) had access, for examination, but he clandes- tinely threw them into another vessel containing a quantity of water. The prisoner proposed that the body should be in- terred on the following Wednesday, assigning as a reason for so early an interment that from the state of the corpse there would be danger from keeping it longer. This representation was entirely untrue. He also evinced much eagerness to ac- celerate the funeral, urging the person who had the charge of it and the men who were emi)loyed in making the vault to un- usual exertions. The physician called in to the deceased con- cluded, from the symptoms, the shortness of the illness, and the morbid appearances, that she had died from the effect of some active poison; and in order to discover the particular poison supposed to have been used, he applied to the contents of the stomach the tests of the ammoniacal sulphate of copper, or common blue vitriol, and the ammoniacal nitrate of silver, or lunar caustic, in solution, which severally yielded the charac- teristic appearances of arsenic, the sulphate of copper produc- ing a green precipitate, whereas a blue precipitate is formed if no arsenic is present, and the nitrate of silver producing a yellow precipitate, instead of a white precipitate, resulting if no arsenic is present. He stated that he considered these tests conclusive and infallible, and that he had used them because they would detect a minuter portion of arsenic ; on which ac- count he considered them to be more proper for the occasion, as, from the smallness of the quantity, from the frequent vom- itings and purgings, and the appearances of the tests, he found there could not be much. Concluding that bile had been taken into the stomaxih, he mixed some bile with water, and applied to the mixture the same tests, but found no indication of the presence of arsenic ; from which he inferred that the presence of bile Avould not alter the conclu.sion which he had previously drawn. Having been informed that the deceased had eaten 422 CASES IN ILLUSTRATION OF THE l'OIJE(i01NG RULES. onions, he boiled some in water ; and after pourin^j oflf the water in which they were boiled, ho poured boiling water over them and left them standing for some time, after which he aj)- plied the same tests to the solution thus procured, and ascer- tained that it did not produce the characteristic appearances of arsenic. The witness, upon his cross-examination, admitted that the symptoms and appearances wore such as might have been occasioned by some other cause than poisoning ; that the reduction test would have been infallible ; and that it might have been adopted in the first instance, and might also have been tried upon the matter which had been used for the other experiments. Upon his re-examination he accounted for his omission of the reduction tost by stating that the quantity of matter left after the frequent vomitings and the other experi- ments would have been too small, and that it would not have been so correct to use the matter which had been subjected to the preceding experiments. Several medical witnesses called on the part of the prisoner stated that the symptoms and morbid appearances, though they were such as might and did commonly denote poisoning, did not exclude the possibility that death might have been oc- casioned by cholera morbus or some other disease; that the tests which had been resorted to were fallacious, since they had produced the same characteristic appearances upon their appli- cation to innocent matter, namely, the sulphate of copper a green, and the nitrate of silver a yellow precipitate, on being applied to an infusion of onions ; and that the experiment with the bile was also fallacious, since from the presence of phos- phv^ric acid, which is contained in all the fluids of the human body, the same colored precipitate would be thrown down by putting lunar caustic into a solution of phosphate of soda. The learned judge, in his charge to the jury, said that none of the evidence of the witnesses for the prisoner went to show that the tests employed by the medical witnesses on the other side would not prove that arsenic was there if it were really there; that the experiments made by the witnesses for the prisoner were made with onions in a different state from what onions boiled with rabbits are, as by that mode could be got a great portion of the juice or strength of the onions, in water, whereas in regard to onions prepared for the table >r boiled with a considerable quantity of water, a good portion oi" their f . Il c:AHES in illustration of the FOREOOINO RUI.E.S. 428 juico is witlulrawn from thorn ; that as to tho experiment with the bilo, if there were no phosphoric acid in tho stomach of the decoHHcd, or no quantity of it sufficient to produce that appear- ance, whatever might have been tho appearance if sufficient were put m, then the experiment was tried on soraetliing that did not contain a sufficient quantity of that matter; that al- though the same result might bo produced by that matter if there, yet if there is no reason to suppose chat that m^ittor waa there, or there m sufficient quantity, then he thought the sus- picion that arsenic was there was very strong. His lordship also said, "If tho evidence as to tho oi'nions of the learned persons who have been examined on both sides should load you to doubt whether you should attribute tho death of the do- ceased to arsenic having boon administered to her, or to the disease called cholera morbus, then as to this question as well as to the other question tho conduct of tho prisoner is most material to be tak^n into consideration ; for he, being a medi- cal man, could not bo ignorant of many things as to which Ignorance might bo shown in other persons : ho could hardly be Ignorant of the proper mode of treating cholera vwrhiia ; he could not be ignorant that an early burial was not necessary ; and when an operation was to bo performed in order to dis^ cover the cause of tho death, he should not have shown a backwardness to acquiesce in it; and when it was performing, and ho attending, ho could not surely be ignorant that it was material for the purposes of tho investigation that the contents of the stomach should be preserved for minute examination " » Ills lordship also said, « The conduct of the prisoner, his eager- ness m causing the body to be put into a shell, and afte- wards to be speedily interred, was a circumstance most material for their consideration, with reference to both the questions he had stated ; for although the examination of the body in the Avay set forth, and the experiments that were mafle, might not lead to a certain conclusion as to the charge stated, that the deceased got her death by poison administered to her by tho prisoner, yet if the prisoner as a medical man had been so wicked as to administer that poison, he must have known that the examination of the body would divulge it." 2 Notwith- standing this adverse charge of the learned judge, the prisoner was acquitted. » Frazer's Short-hand Rep. 161. a jj, 170^ f I' 424 CASES IN ILLUSTRATION OF THE FOREOOINCJ RULES. A motlical man yri\s tried for the murder of his wifo, by the administration of prussio acid. They left thoir place of resi- dence at Sunderland, on a journey of pleasure to Ix)ndon, where they arrived on the 4th of June, and went into lodpngB. On the morning of the 8th, being the Satur- day aiter their arrivjil in town, the ])ri8oner rang the bell for some hot water, a tumbler, and a spoon, and ho and his wife were heard' con verning in their chamber. About a quarter before eight he called the landlady upstairp, saying that his wife wa« very ill, and she found her lying motionless on the bed, with her ey<'s shut and her teeth closed, and foam- ing aA the mouth. The priwmer said she had had fits before, bat none like this, and that she would not come out of it ; and on being urged to send for a doctor, he said he was a doctor himself, and should have let blood before, but that there was no pulse, and that this was an affection of the heart, and that her mother died in the same way nine months before, and he put her feet and hands in warm water, and applied a mustard plaster to her chest. In tlio meantime a medical man was sent for, but she died before his arrival. There waa a tumbler close to the head of the bed, about one-third full of a clear white fluid, and an empty tumbler on the other side of the table, and a paper of Epsom salts. In reply to a question from the medical man, the prisoner stated that the deceased had talten nothmg but a little salts. On the same morning he ordered a grave for interment on the Tuesday following. The contents of the stomafih were found to contain prussic acid and Epsom salts ; and it was deposed that the symptoms were similar to those of death by prussic acid, but they might be the effect of any powerful sedative poison, and that the means resorted to by the prisoner were not likely to promote recovery, but that aj-tiflcial respiration and stimulants were the appropriate reine- dies, and might probably have been effectual. The prisoner had purchased prussic acid and acetate of morphine on the previous day, frOTi a vender of medicines with whom he was intimate, and he had been in the habit of using these poisons, under ad- vice, for a complaint in the stomach. Two days after the fatal event, he stated to the medical man who had been called in that on the morning in question he was about to take some prussic acid ; that on endeavoring to remove the stopper he and used some force with the handle of a Vin/4 r.^1..^ AiXU li... OASES IN ILLUSTRATION OF THE *X>RE001NO RULES. 425 tooth brush ; that the nock of the bottle was broken by the forco, and some of the acid spilt; that ho placed the remainder in the tumbler, and went into a front room to fetch a bottle in which to place the acid, but instead of doing so, began to write to his friends in the country, when in a few mir utes ho heard a scream from his wife's bedroom ; that he immediately went to her ; that she exclaimed that she had taken some hot drink, and called for cold water, and that the |)ru88ic acid was undoubtedly the cause of her death. Upon being asked what he had done with the bottle, he saitl ho had destroyed it, and assigned as the reason why he had not mentioned tho circum- stances before, that he was distressed and ashamed at tho con- sequences of his negligence. According to tho opinions of the medical witnesses, after tho scream or shriek, volition and sen- sibility must have ceased, and speech would have been im- possible. To various persons in the north of England the prisoner wrote false accounts of bis wife's state of health. In one of them, dated from the Euston Hotel, the 6th of June, he stated that she was unwell, and had two medical gentlemen attending her, and that he was apprehensive of a miscarriage. In another, dated tho 8th, ho stated that he had had her removed to private lodgings, where she was under the care of two medical men, dangerously ill ; that symptoms of premature labor had come on, and that one of the medical men pronounced her heart to be diseased. At the date of this letter his wife was cheerful and well, and all these statements respecting her health were false ; and in fact they had gone into lodgings on their arrival in London on the 4th. In a letter, dated the 9th, he stated the fact of her death, but with- out any allusion to the cause of it ; which suppression, in a sub- sequent letter, he stated to have been caused by the desire of concealing the sham© and reproach of his negligence. His statement to his landlady that his mother-in-law had died from disease of the heart was a falsehood, he himself having certi* fied to the registrar of burials that bilious fever was the cause of her death. The deceased was entitled to some leasehold property, to which the prisoner would become entitled abso- lutely if he survived her, and to a copyhold estate which was limited to the joint use of herself and her husband, so that the survivor would take the absolute interest. The motive sug- gested for the commission of the alleged murder was, that the Illtlpll fi r 426 CASES IN ILLUSTRATION OF THE FOREGOING RULES. prisoner might become at once the absolute owner of his wife's property. Mr. Baron Gurney said that this case differed from almost every other case he had ever known, in this circumstance, that generally there was a difficulty in ascertain insr whether the death had been caused by poison, and whctlicr the poison came from the hands of the person charged with the crime; but that m this case there could be no doubt that the deceased had come to her death by a poison, most certain, fatal, and si^eedy in Its effects, and that it was equally certain that it came from the hands of the prisoner. It had been proved beyond all doubt that the prisoner had bought the poison, and had ])laced or left It unprotected in the chamber of bis wife, and the question was, whether, she having died from poison, it hud been admmistered to her by his hand, or whether ho had purposely placed it in her way in order that she migl.t herself take it. The secrets of all hearts were known to God alone, and human tribunals could only judge of those secrets from the conduct of the individual at the time. In this case, the jury had the con- duct of the prisoner, his words, his writing, Lis demeanor, proved before them, and it would be for them to decide upon the whole case, whether they believed he had administered the poison, or placed it within the reach of the deceased in order that she might take it. If he had done either of those things he would be guilty of murder ; if they thought he had acted incautiously and negligently by leaving the poison in the way he had done, he had not been guilty of murder. He dwelt upon the cu-cumstances that the parties had lived for a year and a half together upon terms of mutual affection, that the marriage took place with the consent of the lady's mother with whom they had lived till her death, that the visit to London was well known to their friends, and that the place to which she was taken was where he had lodged before, and near the residence of the only two persons with whom he was acquainted in London. When any person committed a heinous crime it was usual and natural, said the learned judge, to look whether there existed any axiequate motive to the commission of it. The prisoner being about thirty, and his wife about twentj'-two years of age it would be a good deal to say that the desire to possess her property should be brought forward a,s a great motive of interest to excite to the commission of such a crime. Nevertheless, it rLES. his wife's tn almost mce, that sther the son camo ; but that sased had d speedy irne from yond all ul ])laced and the liad been urposely take it, d human nduct of the con- imeanor, lo, upon ercd the n order things, d acted the way e dwelt a year hat the er, Avith Ion Avas she was lence of -london. ual and existed •risoner of age, 3SS her ntorest sless, it CASES IN ILLUSTRATION OF THE FOREGOING RULES. 427 was sometimes found, as they could not dive into the heart and ascertain motives, that a grave crime might be committed, al- though no motive for it could be found. Inasmuch as the great question the jury had to decide was the intention of the prisoner, it should be remembered that a man was entitled to a candid construction of his Avords and actions, particularly if placed in circumstances of great and unexpected difficulty, and they would take care to give Avhat fair alloAvance they could in putting a construction upon the prisoner's words and actions. He also laid stress upon the conduct of the prisoner to his wife, and his general good character for kindness. He could not conceive the motive Avhich should have in(hiced the prisoner, in the letter posted on the 6th, Avlien his Avife was Avell and cheer- ful, to Avrite so complete a fabrication, from beginning to end, of her being uuAvell and attended by two medical men, and the jury Avould observe that it Avas Avritten on the very day on Avhich the prisoner had made arrangements for her residence Avith a friend, during his absence abroad. When the letter of the 8th Avas Avritten did not appear, but it Avas proved to have been poste(l on the evening of that day. If it Avas Avritten before the death, it told against the prisoner. It concurred Avith the letter written on the 6th, and practised the same deception, as to the tAvo medical men, upon those to whom it Avas ad- dressed. The defence Avas, that the prisoner had been guilty of a lamentable indiscretion ; that a sudden event, fatal to his wife, had happened ; that he Avas ovcrpoAvered and overAvhelmed by the result of his own carelessness, and that he did not like to divulge the truth. The awkward fact, hoAvever, Avas, that in his last letter he had pursued exactly the same system as that adopted in the letter written two days before. They Avould recollect, with reference to the letter of the 8th, that on that day he had more than once exclaimed, " This is all my fault." These outbreaks Avcre of some importance for the consideration of the jury in giving, as compared Avith the letters, all indulgent consideration to any language used by the prisoner, after an event had occurred Avhich placed him in a situation of difficulty and embarrassment. In comparing the statement set up for the defence with the evidence of the medical Avitnesses, two things were of a good deal of importance. The prisoner's statement was, that when he entered the bed-chamber, his Avife told him Avhat had occurred, and that he took the tumbler out 428 CASES IN ILLUSTRATION OF THE FOREGOING RULES. 4!.yi of her hand. The medical men had told the jury that with the scream that had been spoken of, all volition and power of speech would cease ; but here it must not be forgotten that the judgment of these gentlemen must be received v/ith this caution, that none of them had ever witnessed the effect of prussicacid on the human frame. It was for the jury to decide Avhether they were convinced, beyond any reasonable doubt, that the prisoner either administered, or in elfect caused to be adminis- tered, poison to the deceased ; if on the other hand they should be of opinion that he had been merely guilty of indiscretion, and that, in consequence of the sudden and awful event which had occurred, he had been driven to conceal it by falsehood, they would acquit him. l^o doubt, falsehood often placed persons having recourse to it under awkward and menacing circum- stances. In this case, falsehood had been much resorted to. It was shown before the death, in the statement about the two medical men ; that falsehood was followed up and repeated in the second letter ; another falsehood appeared in the represen- tation that his mother-in-law, who had died of bilious fever, as appear«;d by an entry in the register under his own hand, had died of disease of the heart. If they thought the case conclusive, however painful it might be, it would be their duty to pro- nounce the prisoner guilty ; but if they thought it left in doubt and mystery, so that they could not safely proceed, they would remember that it was better that many guilty men should escape than that one innocent man should perish. The prisoner was acquitted.^ Palmer's case is one of the most remarkable ones of this nature on record. The prisoner had been a medical practi- tioner, but had given up his profession for the pui-suits of tlie turf, in the course of which he became intimate with a young man named Cook, who was addicted to the same pursuits. By his extensive gambling transactions he became involved in great pecuniary difficulties, and was ultimately driven to the desper- ate expedient of borrowing money at exorbitant rates of in- terest, and to the commission of forgeries on a large scale. In 1855 he was indebted in about £20,000, borroAved at sixty per cent, interest upon bills, all of Avhich bore the forged acceptances of his mother, and secured in part by the assignment of a policy of assurance for £13,000 on the life of his brother, who died in 1 Reg. V. Belaney, C. C. C, Aug. 1844. CASES IN ILLUSTRATION OF THE FOREGOING RULES. 429 August of that year. To this source the prisoner had looked for relief from his embarrassments, but the office having become acquainted Avith circumstances which induced them to dispute the validity of the policy on the ground of fraud, declined to pay the sum assured ; and in consequence the holder of some of these bills issued writs against the prisoner and his mother, which was sent into the country, to be served unless he should effect some satisfactory arrangement. Exposure, ruin, and pun- ishment thus became imminent, unless some means could be devised of averting the impending disclosures. On the 13th of November Cook won, by one of his horses and by bets at Shrewsbury races, between £2,000 and £3,000, of which he re- ceived £700 or £800 on the course ; the remainder was payable in London, on Monday, the 18tli. He was greatly excited by his success, and the prisoner and several other jiersons spent the following evening with him, after the conclusion of the ra,ces, at his inn in Shrewsbury. In the course of the evening the prisoner was seen in the passage outside of his own room, holding up a tumbler to a gaslight ; after which he went, with the tumbler in his hand, into the room where Cook and his other friends were sitting. Soon afterwards, on drinking some brandy and water, Cook became suddenly ill, with violent vomiting, and it was necessary to call in medical assistance. He said he had been dosed by the prisoner, and handed the money he had about him, between £700 and £800, to a friend to take care of, Avho returned it to him the next morning, after his recovery. Notwithstanding these suspicious circumstances, such was the prisoner's influence over his infatuated victim, that Cook returned from Shrewsbury to Eugeley in company with him on the evening of Thursday, the lith, when, on their arrival, the former went to his lodgings at the Talbdt Arms, and the prisoner to his own house opposite. On the Saturday and Sunday the prisoner called many times to see Cook, who was repeatedly taken sick and ill after taking coffee and broth from the hands of the prisoner. On Monday (the 18th) he got up much better ; and the prisoner called upon him early in the morning, but did not see him again until eight and nine in the evening, having in the interim, as it turned out, been to Lon- don. In the course of that evening Cook's medical attendant, who had previously seen him, left at the Talbot Arms a bos of morphine pills, which was taken into his bedroom and admin- i-ur i \i WIT. 430 CASES IN ILLUSTltATION OF THE FOREGOING RULES. istcrod by tho i>risonor, soon after wind, tl.o lu.usohcld was ilisturbod by somuns i.rocoodin^r f,,„u tl,„ patient's room, who was found sitting up in bod, in great agony, beating tl.e be Kugeley on Friday, the 22d, to make arrangements for his funeral, and to inquire into the state of his affairs, as well as into the circumstances of his illness. On stating to the prisoner that he understood he knew something of his affairs, he told him that there were £4,UU0 worth of bills of the deceased's out to which his name was attached, and that he had got a paper drawn up by a lawyer, signed by the deceased, to show that he had never received any benefit from them. The stepfather thc-n liuiuired it there were no sporting debts owing to him to fci ,}. CAHES IN ILLUSTRATION 01" THK FOREGOING RULES, 431 whicli tlio priHoru!!' said tlioro was nothin^r „f tin, sort ; and on asking about tlio l)(!ttinfr-l)ook, wl.ich could not Lo found, the ])risonor said it would l)o of no uho if found, as wlu^n a man dies, liis bots aro dono witli. Othor facts now began to trans- pire tiirowing a sinister light u\Hm the mysterious events of the last few days. It was discovered that the prisoner had pro(!ured three grains of strychnia on the ev(!ning of Monday, and a second (|uantity of six grains on the followitigday ; that he had i)een seen to w-arch the pockets, and uiuUir the pillow and bolster of the uti fortunate man before his body was cold; that although his betting-book was kept on the dressing-table of tliut had subseciuently paid considerable sums to various oLiier crudiors ; that two or three days after Cook's death h<; hjul (sndcjavored to obtain the attestation by an attorney to a forged acknowledgment in the name of the deceased that £4,mH) of bills had been negotiated by the pris- oner for his benefit, and finally had prevailed upon the medical man who had attendcnl the deceased, who was of a very advanced age, to certify that he had died of apoplexy. A j}UHt-mortem examination was made, at whicli the prisoner was present, and the st(jmach and int(\stines w(;re placed in a jar to be taken to London for examination. While the operation was going on, the prisoner pushed against the m(;dical men engaged in it, so as to shake a portion of the contents of the stomach into the body. The jar was then cov(;red with jiarchment, tied down, and sealed and j)laced aside ; and while the attention of the medical men was still engaged in examining the body, the prisoner removed the jar to a distance near a door not the usual w^ay out of the room, and it was found that two slits haxi been cut with a knife through the double skin which formed the covering-:. The prisoner having learned that the jar was to Sg; sir khhu 432 CASES IN ILLUSTRATION OF THE FOREGOING RULES. be sent to London the same evening, offered tlie driver who was to carry the persons in charge of it to the raihvay station £10 to upset the carriage and break the jar. The analytical chemists to whom the stomach and intestines, and subsequently other parts of the body were sent, found traces of antimony but none of strychnia, or any other poison; and sent their report by post, directed to the attorney at Rugeley employed in the mvestigation. The prisoner incited the postmaster to betray to him the contents of this report ; and ^v^.ote a confi- dential letter to the coroner, to whom during the course of the mquiry he sent presents of fish and game, stating that ho had seen it m black and white that no strychnia, prussic acid, or opium had been found, and expressing his hope that on the next day, to which the inquest stood adjourned, the verdict would be 6hat of death from natural causes. The coroner's jury found a verdict of wilful murder against the prisoner l\Km the trial the chemical witnesses examined on the part of the prosecution stated that the stomach and intestines were received m an unfavorable state for finding strychnia had it been there, the stomach having been cut from end to end, and the contents gone, and the mucous surface, in which any poison If present, would be found, lying in contact with the intestines and their succulent contents, and shaken together; that the non-discovery of strychnia was not conclusive that death had not been caused by that poison, inasmuch as they had failed to discover it in animals killed for the purpose of experiment; that If a mmimum dose is administered, it disappears bv absorp- tion into the blood, but that it is discoverable, and had been discovered, when administered to animals in excess of the quantity required to destroy hfe, and that there is no known process by which it can be discovered in the tissues, if present there on y in a small quantity. On the other hand, witnesses were called on behalf of the prisoner, who disputed the theory of absorption, and stated that strychnia, if present, is always discoverable, not only in the blood and in the stomach and in- testines and their contents, but also in the tissues ; that there was nothing in the condition of the parr, of the body submitted to exammation to preclude the detection of strychnia; and that If present it might have been foaad, even if it had been ^ministered in a minimum dose fhovgh on this latter point there v, a. some difference of opinuui among them. Numerous '# - JLES. river who ay station analytical •sequently mtimony, sent their employed master to ;e a confi- rse of the at ho had 3 acid, or it on the e verdict coroner's prisoner, e part of nes were ia had it end, and y^ poison, titestines that the eath had failed to eriment ; J absorp- ad been 3 of the • known present '■itnesses 3 theory always and in- at there bmitted ia; and ad been >r point imerous CASES IN ILLUSTRATION OF THE FOREGOING RULES. 433 medical witnesses of the highest professional experience and character, called on the part of the Crown, deposed that many ot the symptoms, especially in the progress and termination of the attack, were not those of any of the ordinary forms of tetanus, idiopathic or traumatic, or of any known disease of the human frame, but were the peculiar characteristics of poison ing by strychnia. Nor were there in these respects any such differences between their opinions and those of many respect- able professional witnesses called on the part of the prisoner as might not be accounted for by the imperfect state of knowledge of all the forms of tetanic affection, or by the obscurities of physiological and pathological science. Of the numerous pro- fessional witnesse. examined on behalf of the prisoner, some ascribed the sympioms to tetanic affection ; others of them to various forms of aisease from which they were shown to be clearly distinguishable ; while others again ascribed them to physical causes absolutely absurd and incredible. The contra- dictions and inconsistencies in the testimony of some of the prisoner's witnesses, and their obtrusive zeal and manifest pur- pose of obtaining an acquittal, deprived it of all moral effect an., arew down upon several of them the severe reprehension of the court. After a protracted trial of twelve days, the pris- oner was found guilty, and was executed pursuant to his sen- tence ; 1 and there is no doubt that this was only one of several murders perpetrated by this great criminal, by the same nefar- ious means, for the purpose of obtaining money secured by fraudulent life assurances." In March, 1882, George Henry Lawson, a surgeon, was in. dieted for the wilful murder of his brother-in-law, Percy MaL colm John. Percy John was a. cripple with curvature of the spine and paraplegia. He had property to the extent of £3,000 half of which at his death would revert to the prisoner's wife' For three years prior to his death John had been attending a school kept by a Mr. W. H. Bedbrook. On December 3d, 1881 John was, with the exception of his paralysis, in good general health, and had taken his meals with Mr. Bedbrook and others. 1 Short-hand Report, ut supra, and Sess. Pap. "See An. Reg., 1855, p. 190. The technical "nature of the evidence in Sraethurst's case, ut supra, would render it inapplicable in illustration of tegal prraeiples, even if doufat had not been thrown upon the verdict br the grant of a pardon. ^ 28 ill: v'l 'i; 434 CASRS IN ILLUSTRATION OF THE FOREGOING RULES. On that (lay Lawson called on John al)out 7 p. m., and their interview toolc place in tlio presence of Mr, Bedbrook. The last named gentleman offered Lawson some wine, which ho ac- cepted, and Lawson then asked for some sugar to destroy the alcoholic effects of the wine, which he said was rather strong. On a basin of white sugar being brought, liawson put some of it into his sherry. Lawson then j)roduced a Dundee cake and some sweets, of which all three partook. In a few minutes Lawson produced a box of gelatine capsules from his pocket, and said : " Oh, by the way, Mr. Bedbrook, wlion I was in America I thought of you and your boys. I thought Avhat excellent things these cap.sules would be for your boys to take nauseous medicines in." lie then gave a capsule to Mr. Bed- brook, and tilling another with sugar handed it to John, say- ing, " Here, Percy, you are a swell pill-taker ; take this and show Mr. Bedbrook how easily it may be swallowed." John swallowed the capsule. The prisoner in three or four minutes said : " I must be going," and immediately left the house. In less than an hour John complained of heartburn, and soon after said, " I feel as I felt after ray brother-in-law had given me a quinine pill at Shanklin." He was carried u\) to his bedroom, and about 9 p. m. was found vomiting and in great pain. He complained that his " throat appeared to be closing, and the skin of his face felt drawn up." At 11 : 30 the same evening be died. The symptoms indicated the presence of aconite. And this is a substance exceedingly difficult of detection. But the analyses of the viscera and vomit were conducted by two experienced chemists, and they obtained an extract which, when placed upon the tongue, produced a numb, tingling sen- sation, and a small quantity of which, injected under the skin of a mouse, killed it in a few minutes, the symptoms being exactly similar to tho><' produced by injecting a minute quantity of a solution of aconitine. These are considered absolutely certain tests. It appeared that in the beginning of 1881 Mr. Bedbrook had received from Lawson, who was then in Ainerica, a box contain- ing a dozen pills, and a letter, in which Bedbrook was requested to give the pills to John, as Lawson had heard of cases in America similar to that of John being benefited by the pills in question. The deceased took one of the pills, and the next morning complained of feeling very unwell, and said he should CASES IN ILLUSTRATION OF THE FOREQOINO RULES. 435 take no more of the pills. On Au^nist 28tli Lawson Imught three grains of sulphate of atropine and one grain of aconitine from a (Iruggiat of Ventnor, and on the next day, Percy John, who was staying at that time in Ventnor, was taken ill with diar- rhea and prostration, and a feeling « as if he were paralyzed all over." Lawson was, at this time, living with his father in Ventnor, and was in the habit of going to the house where John was living, and, as was shown, had actually seen him on the date last mentioned. On October 13th the prisoner bought of another dniggist in Ventnor twelve quinine powders. John at the time of his death was taking quinine powders supplied to him by Lawson. On November 11th, Lawson had purchased from still another druggist in Ventnor half an ounce of a mixed solution of morphia and atropia, and on the 16th of No- vember he bought a similar quantity of the same solution. On this last mentioned date he asked also for five grainc of digitaline, which was not given to him because the sample in stock was not thought to be good. On the 20th of November he asked for one grain of aconitine, which was refused him. From another druggist he purchased two grains of aconitine on November 24th. Among the effects of the deceased were found quinine powders numbered from 1 to 20. Three of these powders differed from the rest, having an admixture of a pale fawn-colored substance, and all contained aconitine. One of those powders contained 83-100 of a grain of aconitine and 96-100 of a grain of quinine. One-fiftieth of a grain of the aconitine killed a mouse in six minutes and a half. One of the pills sent by lawson from America was found to contain nearli half a grain of aconitine. Some of it injected into the back of a mouse killed the animal in less than five minutes, and the aconitism produced by a small quantity on the tongues of the experimenters lastetl seven hours. The defence introduced no witnesses, and the counsel for the prisoner was unable to do anything to lessen the weight of the evidence, and the accused was convicted.* One of the earliest cases in this country to attract wide-spread attention to this subject was the case of People v. Stephens, al- ready referred to.2 James Stephens Avas tried in March, 1859, » These facts are gleaned from a report of the case in The Lancet. 1882 vol. 1, 455, a 4 Park. Cr. R. 396. 48fl CASES IN ILLUSTRATION OF THE FOREGOINO RULES. mm i' Nil!* for tlio murder of his wife. Tiio accused and tlio decoasetl were married in rrohmd about 1849. Previous to tlienuirriage thede 'o.iHod had lived with her brother, wlio liud living with him at the saiTU time liis two (Uiughters, the one about sixtc^en and the other about eleven years of age. At the time of the mar- ri.ige the deceased ',\as thirty -six yeai of age, and the accused twenty-tbi'ee. Tlie newly married couple soon emigrated to New York, and shortly after becoming settled in that city invited the (>ldest of the wife's mocc., ju ;t mentioned, to pay them a visit. The young tvoinan reached New York the day after the birth of a daughter to her aunt, anil immediately entered the house- hold, where she remained for a considerable time while learn- ing the trade of a dressmaker. She at length ])rocured a situa- tion in a private family, with whom she remained three years. During a period when the family were out of town Stephens paid her a visit at the house, bringing with him a bottle of wine. She testified that on this occasion the prisoner attempted to violate her person and desisted from his purpose only on account of her threatened screams. This happened about September, 1 856. A bout April, 1857, the younger niece, having been advised to take a sea-voyage for her health, and having received an invitation from Ste])hens and his wife to visit them for a year, arrived in New York and went to her aunt's house, where she was joined by her elder sister. From that time on the two sisters slept together in the house of the pnsoner. In the following August, according to the testimony of the two sisters, Stephens having dressed himself to attend a funeral, refuselHm«M(>s8 life many iwrnons were inclined to believe tho verdict unjiist, and tho Governor was |)etitioned for a pardon. Hut iill clForts to invoke tho executive clemenoy ceased on tho discovery of a plan by the prisoner to kill his keeper and clToct his escape; and tho sontonco of tho hiw was full! lied. A very important case on account of its consideration of some of tho points which have been discussed was tho case of Peflj)le V. iMi/lard} Matlunv Millard was iin enterprising man, engaged (juito extensively in several linos of business, in asmall town in Michigan. Among other things ho carried on an un- dertaking establishment, which, howovtT, ho sokl a short time before tho fatal illness of his wife. On the 23(1 of April, 1882, Mrs. Millard was so seriously ill as to consult a physician. Tho symptoms manifested were similar to those of arsenical poisoning. On May 9th, Mrs. Millard died; and on the 22ote, suggesting that there should be no further question of m riage for two years longer, and that her daughter should take a collegiate course. About * January the 18th or 19th Mrs. Potts wrote to defendant, ex- pressing herself strongly upon the hardshi]) of her daughter's position, with a delay of three years as an unacknowledged wife, and for no apparent reason ; that ho,- daughter's illness at Scranton had been commented upon ; that if he should die, it would be humiliating to publish a marriage under the cir- cumstances of its contracting ; that her husband might meet Dr. Treverton, and be told of the illness at Scranton, and of the doctor's doubts about a marriage. She concluded by ask- ing him to keep his word, and to do as he had promised her, and demanded of him to go, upon the anniversary of the first marriage, February 8th, and be married before a minister of the gospel, and give her the certificate to hold, which she would make public at such time as she chose. To this he re- plied that he would do all she asked of hiin, if no other means of satisfying her scruples could be found. On Tuesday, January 2(Jth,— a day after he received Mrs. Potts' letter,— CASES IN ILLUSTRATION OF THE FOREGOING RULES. 443 the defendant Avent to the shop of Mclntyre & Sons, druggists, in New York City, and at first ordered some capsMlf, of sandal- wood to be put up. Upon the clerk's mentioning that it would take some time, he said he could not wait. lie then handed the clerk a prescription, asking if it would take long to prepare, and, upon learning that it would take a few minutes, waited for it. It called for twenty-five grains of sulphate of qui- nine and one grain of sulphate of morphine, mixed in six capsules, with a direction to take one before retiring. The prescription was put up by the clerk with minute care, being aided by another clerk, who checked the amount and weight of the morphine, according to a custom adopted where poisons are put up. The box, properly labelled, containing six capsules, each capsule containing one-sixth of a grain of morphine and four grains and a fraction of quinine, was taken by him. He never called for the sandal-wood capsules. The following day --being Wednesday, January 21st-he was at the school recep- tion, and saw the deceased. The testimony in the case shows that tlie defendant stated to both coroner and deputy coroner when shown and asked about the piU-box taken from the room' of the deceased, that it was the one that he had given to her on Wednesday, January 2ist, and he described the prescrip- tion as above, stating that he had given it to her for headaches, and that he had given her only four of the capsules. It was also shown by the testimony of several witnesses from the medical college that in the latter part of December and the first part of January lectures were given upon opium aud its effects when used feloniously. The sulphate of morphine, con- tained in wide-mouthed bottles, had been passed around among the students, of whom the defendant was one, and they were allowed to take it out, and to handle it when they chose. After meeting the deceased at the reception on Wednesday, January 21st, the defendant left for Old Point Comfort, Va.| and did not return until a week later. While there, it appears that she wrote to him that the medicine had not relieved her headache, and rather made her worse : to which he replied advising her to continue taking it. On Saturday, January 31st, deceased, her mother, and the defendant met at the school, and walked together. The deceased seemed perfectly well, and very bright and happy. Mother and (laughter returned to the SChool, and, when in the bed- 'I 1.1' I I* ! f 444 CASES IN ILLUSTRATION OF THE FOREGOING RULES. room of the deceased, she showed her mother tlie pill-box with one capsule left in it, and remarked she had been taking 'some plamed of their makmg her feel ill, and of her dislike to take them She said she was tempted to toss it out of the window and then to tell Miss Day, the principal, she had taken it. Ile^ mother advised her to take it, remarking that quinine was apt to make one fee wretched, and that she might have been mala- and d. T- T. f 'f ' ^"^ '^'" °^^"^^^d t^« '^^^'^'^ of illness and death m that night which I have before described. The tf!ZlT rr Tr' ^'^ '"'""'^' ^'"^^'S^'' ^y ^'- Fowler, who, stating that he believed it to be a most profound case of opium poisonmg, wished to learn what had been contained in the piU- anything like medicine about the room, but which, according to her room-mates^ was the only medicine in the room that day The defendant told him what had been its contents, and of his having prescribed the capsules for headache, insomnia, and the Ike. Dr lowler said one-sixth of a grain could not produce the condition, ami advised him to go at once to the druggist and to ascertain i the proportions of the drugs had been re^ versed. lie pretended to go immediately, and, when he shortly after returned stated to Dr. Fowler that the medicine had been prepared exactly according to his prescription. The evidence shows that he did not go to the druggist's that mo^iinr. as supj3osed by Dr. Fowler, nor until 11 o'clock, and ^^A^e death, .•l.cnDr Kerr told him to go and try to get the ongina prescnp ion if he could. During the time he was in the foom where the deceased lay he surprised the physician by his com- posure and general lack of interest or of aifection except when, upon her death, he exclaimed, "My God what will ho come of me ! "He spoke to the physidans^of beh;g^tle bat in crested m the girl " and mentioned a possible fLre engat' men to her He asked them repeatedly if they thought he could be held responsible for the death.' To them andTo the coroner he said he was merely a friend of the deceased .n 1 pretended hesitation as to her correct given namrlrth evening of the Sunday he met Mrs. Potts at the fe y-^oit and stated to her that her daughter had died of morphine "oi- ^ning,and represented it " as the druggist's awful mistake" Mrs. rotts says, when she told him, as the deceased was the CASES IN ILLUSTRATION OF THE FOREGOING RULES. 445 ana mother of his child, she must be buried under his name, that his terror was frightful, aiul that he said that it could not be ; that he would do anything, but that the knowledge of the mar- riage coming at this time would destroy him ; that he would " ans vver just the same if it was Queen Victoria's da. ghter, ' She cannot be buried under my name ; ' " and he urged as a pretext consideration for the reputation of the school. The coroner met them at the school in the evening. The defendant said he had one of the capsules prescribed for the deceased, and gave it to the coroner, telling him to analyze it, and it would be found all right. Subsequent chemical analysis of it proved the correctness in preparing the prescription. The mother, in order, as she says, to get a permit to take the body, as soon as possible, out of the house, and to New Jersey, represented falsely, as she also admitted, that her daughter had heart trouble. She left the next day with the body. Some days later the defendant stated to Dr. Ilayden, in conversation about the occurrci.je, and when lebuked for writing prescriptions, that " these capsules would not hurt any one, and no jury would convict me, because I have two capsules Avhich can be analyzed, and be found to contain the correct dose." Of the druggist's clerk, witness Powers, at an interview at the store on February 7th, when obtaining some medicine, he asked if he had seen the account in the papers, and whether he believed it, and upon the witness expressing his belief that the girl died of heart disease, he said, " So do I." They talked about the putting up of ihe pre- scription, and the defendant said there was no doubt it was all right. To Dr. Peabody, whom he went to see with an intro- ductory letter from his medical preceptor, a day or two after the death, and to whom he stated the circumstances attending it, he described the prescription and for what given, and alleged as an excuse for keeping out two of the capsules, that it was injudicious to put as much as a grain of morphine in a girls' school. Later in February, in a conversation with Dr. White, '^e said he did not know whether the druggist had made a mis- w jc;;, or whether there was a brain tumor, which would account for the fact that the morphine in the capsule had been the cause of death. A few days before the coroner's inquest, which was held on February 27th, the defendant met Mrs. Potts, and said that the coroner's inquest would exonerate him, and that he was innocent ; and upon her remarking, *' If innocent, how did 446 CASES IN ILLUSTRATION OF THE FOREGOING RULES. She die ? » he repield that " it was the druggist's mistake » She asked how that could be, when ho said that the capsules, upon being analyzed, Avould prove it to be all right, and said the state- ments conflicted. He merely replied that he would have the capsules analyzed himself. He ascertained from her that neither Mr. Potts nor Dr. Treverton knew of her fears. He then en- deavored to obtain from her the affidavit of the marriage say- ing that he must have it, that it was more valuable thin he dare tell her. She said he could not get it, "it is not here." The jury returned a verdict of " guilty," and, as was said by the learned judge, " a careful reading of the evidence, and a con- scientious consideration of the facts disclosed, must inevitably lead to >hc formation of an opinion that the verdict of the jury was not unly justified, but that no other conclusion could have been reached by the fairest mind." if' i i' III 2'". JLES. ke.» She ules, upon the state- have the at neither I then en- iage, say- e than he lot here." lid by the nd a con- nevitably I the jury uld have DIVISION IV. APPLICATION OF THE GENERAL PRINCIPLE TO PROOF OF THE CORPUS DELICTI IN CASES OF INFANTICIDE. CHAPTER I. PREGNANCY MUST BE ESTABUSHED. Of the various forms of criminal homicide, that of infanti- cide, by which is popularly understood the murder of a recently born infant for the purpose of concealing its birth, perhaps presents the greatest difficulties in the establishment of the corpus delicti. In addition to the sources of difficulty and fallacy which are incidental to charges of homicide in general, tb^^-e are many circumstances of embarrassment peculiar to cases of this nature, amongst which may be mentioned the occasional uncertainty and inconclusiveness of the symptoms of preg- nanc3% the fundamental fact to be proved,^ which may resemble and be mistaken for appearances caused by obstruc- tions or spurious gravidity .2 In a remarkable case of imputed murder of an adult female, the suspicion of pregnancy arose principally from the bulk of the deceased while living, coupled with circumstances of conduct which denoted the existence of an improper familiarity between the parties, and from the dis- covery upon post-moi'tem examination of >vhat was believed by the witnesses for the prosecution to be the placental marks. Four medical witnesses expressed the strongest belief that the 1 Hume's Comm. ut sujrra, 464. ^ Rex V. Bate, Warwick Summer Assizes, 1809 ; Rex v. Ferguson, Bur- nett's C. L. ut supra, 574. Famous hJstorical instances of this are the cases of Mary I. and Mary II. of England. 447 448 PREGNANCY MUST DE ESTABLISHED. deceased had been recently delivered of a child nearly come to maturity ; while on the other hand it was proved that she had been subject to obstructions; and it was deposed that the appearances of the uterus might be accounted for by hydatids a species of dropsy in that part of the body, and that what was thought to be the placental mark might be the pediouli by which they were attached to the internal surface of the womb » The learned judge said to the jury, that it was a very unfor- tunate thing, that upon every particular point they had to rest upon conjecture; that it was a conjecture to a certain extent that the deceased Wi^s with child, that it was conjecture to a certain degree that any means were used to procure abortion • and, if they were used, that it was conjecture that the prisoner was privy to the administration of them. cl^Ll' Harris v. State, 28 Tex. Crim. App. 308 ; 19 Am. St, R. 837. « Rex V. Poolton, 6 C. & P. 898 ; Rex v. Enoch, Id. 539 ; Rex v. Crutchky, 7 Id. 814 ; Rex v. Sellis, Id. 856. » Reg. V. Reeves, 9 Id. 25 ; Reg. v. Wright, Id. 754 ; Reg. v. Trilloe, 1 C. & M. 650. * Rex V. Brain, 6 C. Sc P. 350. * Reg. V. Handle}', 13 Cqx C. C. 79. See also Jo'aoson v. State (Tex. Crlm. App.), 24S. W. 285. « Winthrop v. State, 43 la. 519. 29 449 450 THE BIRTII OF A LIVING CFIILI) MUHT I3E SHOWN. yet respired, its condition is precisely lilce tliat of the/cetuft in vtero. It lives merely Ijecause the fvetal circulation is still going on. In this case none of the organs undergo any change." * Whether a child has been born alive or not is a question for the jury to consider, and is frequently a question of consid- erable difficulty. The act of breathiijg is held to constitute incontrovertible evidence of the individual existence of the in- fant, and therefore the accomplishment of its independent cir- culation.' Now, though in(le))endent circulation in its proper sense follows breathing, yet the condition of the lungs can never determine whether the child breathed before or after full and complete birth. By the hydrostatic test it may be determined only whether the child has breathed. This test, from the inilications of which, in former times, so many women sulTered the extreme penalty of the law, though the best test known to medical science, is not infallible. The manner has been pointed out in which it can be determined whether the child breathed before or after emerging from the mother. Should an effort to respire take place while the head is still within the pelvis, mucus and not air would be drawn into the air-cells ; and upon a post-mortem examination the lungs would disclose the exact nature of such a case. If, how- ever, a skilled accoucheur, in a case of difficult and continued labor, were to insert his hand for the purpose of rendering assistance to the child thus endangered by protracted labor, and the child were to respire by means of the aid thus ren- dered, the post-mortem examination would not yield any evi- dence as to wliether the respiration took place before or after birth. But as the mother can never perform this operation upon herself, this obstacle in the way of the test above stated will not present itself in a case of infanticide. So that in a case of this kind, if the lungs show atmospheric air and not mucus, it is to be concluded that the breathing occurred either after complete birth or after the head was expelled. The res- piration test can never determine wheiler the child breathed after the expulsion of the head or after full and complete » Beak, Med. Jur. vol. 1, p. 498. a See Marshall's Outlines of Physiology (Ed. 1868), 980 ; Flint's Physiology of Man (1874), vol. 5, 442 ; Gray's Anatomy (5th Ed.), 768 ; Playfair's bystem of Midwifery (2d Ed.), by Harris, 120. til THE BIRTH OF A LIVING CHILD MUHT BE SHOWN. 45, birth. Noth withstanding all this, it is necessary that the chUd should have been completely expelled from the body of the mother and alive ; and the proof must show this fact > On the trial of a woman at Winchester Spring Assizes 1835 It was proved that the lungs were inflated, which the m'edical wi ness said would not have been the case if the child had been stdlborn; hut he stated, in answer to a <,uestion from Mr Baron Gurney, that if the child had died in the birth, the Jungs might have been inflated, upon which he stopped the case." A single sob, it appears, is sufficient to inflate the lungs, though the child died in the act of birth.^ A younir woman was tried before Mr. Haron Parke for the murder of her female child ; the thront was cut, and the wound had divided the right jugular vein; the lungs floated in water and were found on cutting them to be inflated ; but it was deposed that this test only showed that the child must have breathed and not tluit it had been born alive, and that taere are in- stances of children being lacerated in the throat in the act of delivery. On the close of tl,e case for the ,)rosecution, the earned judge asked the jury whether they were satisfied that the child was born alive, and that the wound was inflicted bv the prisoner with the intention of destroying life • as if they entertained any doubt on these points, it would be unnecessary to go into the evidence on behalf of the prisoner. The jury returned a verdict of acquittal.* A negress was recently tried in lexas for the murder of her illegitimate child by strangula- tion. The body of a healthy, full-termed child, with a gooc' growth of hair and well- formed nails, was found, with a string wound twice around the neck and tied in a knot on the back of the neck. A medical witness for the prosecution was certain that the child was born alive, because its eyes were partly open whereas still-born children have the eyes closed. Pieces of the lungs floated in water ; and those organs were red, whereas they would have been of a dark color it the child had never respired. For the defence a physician testified that one child out of about every fifteen illegitimate births dies, though in other cases the fatality is not so great. It was also shown 1 See the opinion of Hurt. J., in Wallace v. State, 10 Tex. Crim. App. 255. Kex V. Simpson, Cummin on tlie Proof of Infanticide, 40 « Rex V. Davidson, 1 Hume's Comm. ut mipra, 486. ♦ Rex V. Grounall, Worcester Spring Assizes, 1837. .n^ •fc* ^ >, ^0-^ 1 ":^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 ■ 50 ™'^" >^ Bits ■ 40 Ui UUu 1.4 12.5 11.6 V] <^ ,.^. /a o ^. 7: c^% '^i ^^ ;^ % ^/m f HiotDgraphic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) a72-4503 .. .V^»^ 453 THE BIRTH OF A UVINQ CHILD MUST BE SHOWN. that, ordinarily, during delivery, the face of the child is usually towards its mother's back. This might account for the string being ti«d on the back of the child's neck. And negresses having less pain in delivery than white women, it might have been possible for the mother of this child to have tied the string around its neck before it was completdy born.* The defendant was convicted, but on appeal the judgment was re- versed. It seems that an evacuation of the bowels after the birth of the child cannot be depended on as an indication of life, for the evacuation might be caused by moving the dead body.2 Where the prisoner was charged with the murder of her own infant child, committed soon after birth, evidence was in- troduced for the State tending to show that the prisons gave birth to the child in a barn, and buried it head downward in a small hole in the ground, covering the body with hay and straw. There were no marks of violence upon its person. The State was allowed to show by the testimony of an expert that to produce death it did not require the employment of force sufllcient to leave marks on the body, but that there were various ways by which the mother could have killed it, as by suflfocation, burying it in the manner in which it was found, and other ways.^ 1 Wallace v. State, supra. « Sheppard v. State, 17 Tex. Grim. App. 74i State V. Morgan, 95 N. C. 641. I i CHAPTER III. THE NATURE OF THE MOTIVE. It is a further source of uncertainty, in cases of this nature, that circumstances of presumption, frequently adduced as in- dicative of the crime of murder, may commonly be accounted for by the agency of less malignant inotives. Concealment of pregnancy and delivery may proceed even from meritorious motives ; as where a married woman resorted to such conceal- naent m order to screen her husband, who was a deserter, from discovery.' Severe must be the struggle between the opposing motives of shame and affection, before a mother can contem- plate, and still more so before she can form and execute, the dreadful and unnatural resolution of taking away the life of her own offspring. The unhappy object of these conflicting motives is commonly the victim of brutality and treachery. Deserted by a heartless seducer, and scorned by a merciless world, scarcely any condition of human weakness can be imagined more calculated to excite the compassion of the con- siderate and humane.a In England the wisdom and humanity of the legislature, ia accordance with the spirit of the times, led, though tardily, to the repeal » of the cruel rule of presump- tion created by Statute 31 Jac. I. c. 27, and suggested by a corresponding edict of Henry II., of France, which made the concealment of the birth of an illegitimate child by its mother conclusive evidence of murder, unless she made proof by one witness at least that the child was born dead ; a rule which had too long survived the barbarous age in which it originated, and under which it is but too probable that many women un- justly suffered;* and the endeavor to conceal the birth of a child by secret burying, or otherwise disposing of the body, ^ Rex V. Stewart, Burnett's C. L. ut supra, 573. ' 1 Hume's Coram. 462. » 1 Harness Comm. 486. * St. 48 Geo. III. c. 58, § 8. 453 454 THE NATURE OF THE MOTIVE. instead Of being treated as a conclusive presumption of murder was made a substantive misdemeanor.^ ' And the difficulty in determining "the question .vhether or not the child was bom alive led to the passage, by some of the States of this Union, of statutes inflicting punishment on tne mother who endeavors to conceal the birth of her infant » The casualties which, even in favorable circumstances, are inseparable from parturition, must be incalculably aggravated by the per^exities incidental to illegitimate, clandestine, and unassisted birth, from the impulses of shame and alarm, the desire of concealment, the want of assistance and sympathy and occasionally from the mother's inability to render the at! tentions reqmsite to preserve infant life ; and there have been cases m which even the very means resorted to, under the ter- ror of the moment, to facilitate birth, have been the uninten- tional cause of death. For these reasons, wounds and other marks of violence are not necessarily considered as indicative of wilful mjury, and are not, therefore, sufficient to warrant a conviction of murder, unless the concomitant circumstances clearly manifest that they were knowingly inflicted upon a body born alive. Nor are these principles of construction pecuhar to our own law ; it is believed that they prevail gen- erally, if not universally, in ihe application of the criminal law to cases of this nature.^ <" i*w It follows from these considerations, that though the facts may justify extreme suspicion that death has been the result of intentional violence, yet if they do not entirely exclude every other possible hypothesis by which it may be reasonably axjcounted for the sounc principles of justice, and a prorer regard to the faUibility of human judgment in cases so mysteri- ous as these generally are, combine to forbid the adoption of a conclusion so abhorrent to nature and humanity, and the mfliction of a punishment which admits of no recall It has been thought that in these cases the feelings of humanity have been permitted to bias the strict course of judicial truth, and that countenance has been given to subtle and strained hypotheses for the explanation of circumstances of conclusive presumption.* It is to be feared that to some » St. 9 Geo. rv. c. 81, § 14. " Frey v. Com. (Ky.), 7 Crim. L. Mag. 72. • Alison's Princ. 159. * What.ly on Secondary Punishment.. 108. THE NATURE OF THE MOTIVE. 455 IhTlh^', opinion is correct, and if so, it is a conclusive proof that the law IS not in harmony with public feeUnir- h»t if may be doubted whether in this reproJ sufflcientwd^^^^^ always been given to the difficulties inseparably incidentel to the proof of this crime, and whether, in fact, LuittXtoke place so fi^quently as has been supposed, whereThas been ^ clearly and satisfa<)torily proved as entirely to dispel aJldoSbT and to produce complete and undoubting a^urSce It « however, well deserving of consideration, whether the eni of W.H r'r ^';.^'^'^^ P''^'^*^^^ ^^^ht not be better pr^ moted by the abolition of capital punishment in a class^ ca^es in which society will not concur in its infliction, and by the substitution of a minor punishment, not only in he cai of concealment of birth, but generally in all cases where dea^h has been caused by the wilful omission of the mother to take the necessary means for the preservation of iufant life 1 so as to avoid on the one hand the scandal and ill-example of ac- quittals in the fa<5e of co, , mcing evidence of guilt, and on the other, of domg violence to pubUcieeling by the denunciation ot capital punishment against a crime which, atrocious as it is is nevertheless wanting, as an eminent prelate has remarked* m all tL3 attributes which distinguish the murder of adults! viz the wickedness of the motive, the danger of the communit? and the feeling of alarm and insecurity which it occasions." » » Code Penal d' Autriche, prem. partie, c. xvi. art. 122. " Whatelyon Secondary Punishments, p. 108, App. No. 2. AndseeSAl-A. tions from the Charges, etc., of Mr. Baron Alderson, 78. ^'*««' »««0', PART VL THE FORCE AND EFFECT OF CIRCUMSTANTIAL EVIDENCE. CHAPTER I. GENERAL GROUNDS OF THE FORCE OF CIRCUMSTANTIAL EVIDENCE. Ik considering the force and effect of circumstantial evidence the credibiUty of the testimony, as distinguished from the crejbihty of the fact, is assumed, since it is a quality essential to the value of circumstantid, in common with all moral evi dence. , ' Our faith in moral evidence is grounded, as we have seen upon our confidence in the permanence of the order of nature' and m the reaUty and fldeUty of the impressions received by meajis of the sensej, \fhich place us in connection with the external world and with other other men ; and upon the laws of our moral and intellectual being, the immutability of moral distmctions, and the authority of conscience; so that if we could correctly estimate, and were able to eliminate, the various disturbing influences which tend to divert men from the path of truth and rectitude, our reasonings and conclusions woidd possess all the force of demonstration. Tho silent workings, and still more the fearful explosions of human passion, which bring to light the darker elements of man s nature, must ever present to the philosophical observer considerations of deep intrinsic interest ; while to the jurist, the moral and mechanical coincidences which connect different facts with each other are relevant and all-important, as thev are the mtermediate connecting Unks between criminal actions GROUNDS OP FORCE OF CIRCUMSTANTIAL EVIDENCE. 457 and the malignant feelings and dispositions in which they originate. The distinct and sped&c proving power of circomstantial evidence, as incidentally stated in a former part of this volume, depends upon its incompatibility with, and incapability of explanation upon, any reasonable hypothesis, consistent with the ordinary course of nature, other than that of the truth of the principal fact in proof of which it is adduced : so that, after the exhaustion of every other possible and admissible mode of solution, we must either conclude that the accused has been guilty of the fact imputed, or renounce as illusory and deceptive all the results of consciousness and experience, and all the operations of the human mind.' Conclusions thus formed are simple inferences of the under- standing, aided and corrected by the application of those rules of evidence and those processes of reason which sound and well-ripened experience has consecrated as the best methods of arriving at truth ; and they constitute that moral ceetaintt upon which men securely act in all other great and important concerns, and upon which they may, therefore, safely rely for the truth and correctness of their conclusions in regard to those events which fall \vithin the province of criminal jurisprudence. Many Continental codes, following the principles of the civil law, prescribes imperative formulcB descriptive of the kind and amount of evidence requisite to constitute legal proof. Those principles have prevailed also to a certain extent in the reception of evidence in the ecclesiastical and some other courts of special jurisdiction in England, so far as to require the testimony of a plurality of witnesses. But the diversities of individual men render it impracticable thus definitely to estimate the fleeting shades and infinite combinations of human motives and actions ; or thus to fix, Avith arithmetical exact- ness, a common standard of proof, which shall influence with unvarying intensity and eff"ect the minds of all men alike. Such restrictive rules are not merely harmless, nor simply superfluous ; they are in some cases positively pernicious and dangerous to the cause of truth; and while they operate as snares for the conscience of the judge, obliging him occasion ally to determine contrary to his own convictions of truth, they are unnecessary for the protection of the innocent, and effective * Mittermaier, ut supra, c. 69. 458 GROUNDS OF FORCE OF CIRCUMSTANTIAL EVIDENCE. of[hfFn*'',-7""'f^^^*^" ^'^^y' A learned judge of one nlnf fu^ ^^lesia^tical courts, after commeiting on the l"h the f^t o7^' r '"^ "^^"^«« '' °«^ Buific:ent r^at InSfa ril^^^iS'^do "^r/"^^-ty I readily that JAr^i, ^^ ^°5 but I must honestly sav motfvr„T!:?'"""H""="="'P™"P'-' « 'te forme" „^': motives o pohcy and justice, tor the protection of ,LSZ joprove that the pe.on accused has br^^U^r ^C/X' By the Texas Code of Criminal Procedure • a conviction for Shirtlt^alitl T T^'^ <=--»tantire:™ent Under this rale if it is proved that the witness who swore to toe commission of a certain a/-t anj n,„. k " """ swore ro thereof, was in a dista;?;^^,^ toltvTtre ST «>mmission of the act, this, though tecrnSuy d^ mst^nt Ll' B smd to be virtually positive evidence estebUshinTtrfTlsS of the statement, and authorizes conviction • ■^ It may be permitted in this place to advert brieflv tn th. l.w concerning the corroboration of the testin^on^of In tl^ » Mittermaier, ut supra, c. 8 accom- fliinatory evidence in orders of ^liation: * § ^' «« *° ««"" • ^inlt State. 26 Tex. CriL^lprir*"' '' '''" '^"™- ^^P" ^'^^ GROUNDS OF FORCE OF CIRCUMSTANTIAL EVIDENCE. 459 plice. In England, it haa repeatedly been laid down that the jury may a Rex V Hastings, 7 C. & P. 152 ; Rex v. Attwood, 1 Leach, 464 ; Rex «. Durham. Id. 478. And see remarks of Lord Ellenbobough, in Rex v. Jones 3 Campbell, 132; of Aldfjison, B., in Rex v. Wilks, 7 C. & P. 273- of Coxa C '^48''' ^" ''' "^*'^^' ^ ^'^' * ^" ^^' ^ ^''^ ^^- "• ^^^^' ^ " Lord Abinger, C. B., in Reg. v. Farler, 8 C. & P. 106. » RoBcoe's Cr. Ev. (8th Am. Ed.) 202. «Com. V Scott, 123 Mass. 222; Earll v. People, 73 III. 828; Wisdom ?n T^^ S?'^L^ ^^- ^^® '' '"«*"« ^' ^^''^' ^ Wis. 647 ; Dick t,. State, 30 MiM. 593; State v. Stebbins, 29 Conn. 463 ; State v. BeteaU, 11 W. « People V. Hare, 67 Mich. 505. 460 GROUNDS OP FORCE OF CIRCUMSTANTIAL EVIDENCE. aooomplioe, arrcorroborated in material matters, will not satisfy the honest judgment beyond a reasonable doubt, and then it is clearly msufflcient to authorize a verdict of guilty. But there may frequently occur otlier oases where, from all the circum- stances, the honest judgment mU be as thoroughly satisfied from the evidence of the accomplice, of the guilt of the defendant as It IS possible it could be satisfied from human testimony and in such a case it would be an outrage upon the administra- tion of justice to acquit." » In several States, however, under the statute, a conviction cannot be had upon the teytimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." This is the law in Arizona," Iowa,* New York,' Oregon,^ and Texas.^ And under the statute this rule is positive and peremptory.* The dangers of accomplice testimony, which led to the passage of these statutes, have been thus enlarged upon by a learned judge of that celebrated criminal court, the Texas Court of Api^eals; "The statements of the witness aro usually plausible, connected, and apparently sincere. Usually his own life or liberty is at stake, and depending on the conviction of his alleged confederate, and his confessed infamy is not likely to deter him from making any statement he may deem essential to his own preservation. He fixes guilt with almost absdute preci- sion ; and the circumstantial details he gives in evidence, added to his apparent or real desire to reveal all the facts attendant upon and constituting the crime, are calculated to easily impose upon a jury and to cause them to place entire confidence in the truth of his evidence. They are likely to forget his infamy, and m an honest and laudable desire to punish the outrage upon law, they adopt his evidence as a proper basis for theh" verdict without much regard as to whether it is corroborated or not » » Nevertheless, it is certainly true that, where this rule is in force It may often happen, as has been said, that a jury is required^ » Remarks of Mr. Justice Schofield, in Collins v. People, 98 lU 584 ! S™; ^'■•^^' ^ *^^- ' '^^- «• Neligh. 10 Pac. 867.' " « State V, Tliornton, 28 la. 80. 6 N. Y. Code of Crim. Proc. S 890 • Note 2, supra. i Tex. Code of Crim. Proo. art. 741 Coleman v. State, 44 Tex. 109. But the corroboration may be by cir- 481^21' ®''''*^"^- ^^'-'^^ ''• **'"«' (^»->' 65 la. 60; State v. Stonley. » Remarks of Judge Clark in Robertson v. State, 9 Tex. Crim. App. 209. 209. GROUNDS OF FORCE OF CIHCTUMSTANTIAL EVIDENCE. 461 under the law and the evidence, to return a verdict of acquittal when each member of the jury may reasonably believe that the defendant ia not innocent.' If it be proved that a party charged with crime has been plaoeil in circumstances which commonly operate as induce- ments to commit the act in question, that he has so far yielded to the operation of those inducements as to have manifested the disposition to commit the particular crime, that he has pos- sessed the requisite means and opportunities of eifectuig the object of his wishes, that recently after the commission of the act he has become iHMsessed of the fruits or other consequential advantages of the c:\me, if he be identified ^vith the carpun delicti by any conclusive mechanical circumstances, as by the impressions of his footsteps, or the discovery of any article of his apparel or property at or near the scene of the crime, if there be relevant appearances of suspicion connected with his conduct, }ieraon, or dress, and such as he might reasonably be presumed to be able, if innocent, to account for, but which nevertheless he cannot or will not explain, if, being put upon his defence recently after the crime, under strong circumstances of adverse presumption, he cannot show where he was at the time of its commission, if he attempt to evade the force of those circumstances of pi*esumption by false or incredible pretences, or by endeavors to evade or pervert the course of justice, the concurrence of all or of many of these cogent circumstances, in- consistent with the supposition of his innocence and unopposed by facts leading to a counter-presumption, naturally, reasonably, and satisfactorily establishes the moral certainty of his guilt, if not with the same kind of assurance as if he had been seen to com- mit the deed, at least with all the assurance which the nature of the case and the vast majority of human actions admit. To sum up, where all the circumstances of time, place, motive, means, opportunity, and conduct concur in pointing out the accused as the perpetrator of the crime, there must be a moral, if not ab- solute, certainty of his guilt. And where these circumstances concur the evidence is powerfully strengthened by the total absence of any trace or vestige of any other agent.^ In such 1 See the language of the court in McMillan v. State, 7 Tex. Crim. App. 142. « Stark. Ev. (10th Am. Ed.) 851 ; Dean v. Com., 32 Grat. 912 ; Cheverins V. Com., 8 Crim. L. Mag. 760. Ill 462 GROUNDS OF FORCE OF CIRCUMSTANTIAL EVIDENCE. Circumstances we are justly warrante^erdict of guilty was returned. Jt is manifest that any one of these circumstances, standing alone, was of very inc i^niiicant importance ; but the r .suit of the trial made very clear the mag- nitude of their combined force.> It is forcibly remarked by a learned writer, that "the more numerous are the particular an- alogies, the greater is the force of the general analogy resulting from the fuller induction of facts, not only from the mere ac- cession of particulars, but from the additional strength which each particuhir derives by being surveyed jointly with other particulars, as one among the correlative parts of a sysitem." 2 Although neither the combined effect of the evidence nor any of its constituent elements, admits of numerical com- putation. It is indubitable that the proving power increases with the number of the independent circumstances and witnesses according to a geometrical progression. The effect of a body of circumstantial evidence is sometimies compared to that of a chain, but the metaphor is obviously inaccurate Circumstan- twA eyidenca is not to be considered as a chain and each piece J MerAumv. Com 6 Rand. 704. See report of this case and comments thereon in Cowen & Kill's note, to Phillips on Evidence (3d Ed.), vol. T - H o pden's Essay, ut supra, 63. ! IN PARTICULAR CASES. ^gg Of eviaence as a link in the chain, for then if any one link broke the Cham ^ .uld fall.^ A chain cannot be stronger thanits weakes link, and hence, ^vhere the fact of guilt demrui,! proof of a series of links constituting a chain, the Tsel ^J^^ TlLks ;' H " '^f *? ' ^^^^^*^^" - '^^ absenTof all the links But the simile of a chain and links can only be an- phcable where there is a series of fax^ts, one succeeding the other and each connected with and dependent upon the other a Ther^ ^ no rule of law which prescribes any definite number of d^ cumstances as necessary to the sufficiency of circumstantial proof There may be and there are cases where a single cir- LZ17? 71 ^If' *^^ ^^^y '- «-'-g tl^e existencfofTn inferential fact. Unexplained possession of an article recently s o^n is o this class, and from this single circumstance the L ference IS frequently drawn that the party thus found in pos- session IS the thief. Circumstances, however, may be admit^e^ "Ordlrr ^?^tr^T' ^^^^ determinate'and'^atrfLtryl Ordmanly," said Chief Justice Greene,* " in- a case resting on circumstances, a linked arrangement of fact to fact is observable in a part or parts of the evidence. But a guilty personTmore cToTTbl'^T"^ " '^^ ^'^°"^ of cirfumL^ces than en closed by facts arrangea chain-wise. Release from a chain comes when the weakest link gives away ; but esca^ from a crowd does not necessarily depend on the presence o^ abZce of one or another, or even perhaps the greatest number, of X indi\iduals composing it." Commenting on an instruction to the effect that it was not necessary that the jury should be satisfied beyond a veZZZe doubt o each Unk in the chain of circumstanL rlZont estabisb the defendant's guilt. Helm, J., of the Supreme Court ot Colorado, said : " The metaphor used is inaccuraL Z lable to misconstruction. . .. This figure of speech may perhaps be correctly applied to the ultimate\nd esLntial fSntcTs sary to conviction m criminal cases, since if one be omitted or be not proven beyond a reasonable doubt, an acquittal must follow. It IS not true, however, that each and every of the minor circumstances introduced to sustain these ultimate facts must be proven with the same degree of certainty. Some of » Pollock, C. B., in Reg. v. ExaU, 4 F. & F. 932 I fnf^" ""/'"f ^' '^' "'• *^^- • 'rompkins' V. State, 83 Al« 669 ♦ In Leonard v, Terr., 3 Waah. Terr. 381; 7 Pac. 873 ,; "llPJ'-i! 466 THE FORCE OF CIRCUMSTANTIAL EVIDENCE these circumstances may fail of proof altogether, and be dis- carded from consideration by the jury, yet the ultimate fact to establish which they were presented may be shown beyond a reasonable doubt. Evidence in similar cases has been most aptly likened to a cable. One, two, or half a dozen strands may part, yet the cable still remain so strong that there is scarcely a possibility of its breaking." * Again, an attempt has been made to convey an idea of the force of this kind of evidence by instituting a comparison be- tween it and a bundle of rods, from which, one by one, each stick may be taken away and easily broken, though the united fagot will resist the strength that would destroy it.^ These remarks are applicable with especial force to the written enumeration of a number of minute facts " multiplying beyond calculation the means of detecting imposture, serving the pur- pose of an accuser by limits and allusions only, such as Avould be found in genuine correspondence, not by those clear and positive manifestations of guilt by which an eager partisan betrays his forgeries." ^ " In estimating the force of a number of circumstances tenu- ing to the proof of the disputed fact," says Starkie, " it is of essential importance to consider whether they be dependent or independent. If the facts A, B, C, D, be so essential to the particular inferences to be derived from them, when established, that the failure in the proof of any one would destroy the inference altogether, they are dependent facts. If, on the other hand, notwithstanding the failure in proof of one or more of those facts, the rest would still afford the same inference or probability as to the contested fact which they did before, they would be properly termed independent facts. The force of a particular inference drawn from a number of dependent facts is not augmented, neither is it diminished, in respect of the rumber of such independent facts provided they be established. But the probability that the inference itstlf rests upon sure grounds is, in general, weakened by the multiplication of the number of circumstances essential to the proof ; for the greater 1 Clare v. People, 9 Col. 132. See also remarks of Pollock, C. B., in Reg. V. Exall, 4 F. & F. 922 ; Marion v. State, 16 Neb. 349 ; Graves v. People, 18 Colo. 170 ; Wharton v. State, 73 Ala. 366 ; Grant v. State, 11 So. 915 ; People v. Kerr, 6 N. Y. Cr. R. 406. a Carroll v. Com., 84 Pa. St. 107. See also Dean v. Com., 32 Grat. 912. *i Mack. Hist, ut supra. IN PARTICULAR CASES ^g^ the number of circumstances essential to the proof is the greater latitude is there lormistake or deception ; on the other hand where each of a number of independent circumstances, or combmations of cn-cumstances, tends to the same conclusion, the probability of the truth of the fact is necessarily greatl^ increased in proportion to the number of these indet^ndent circumstances." ^ f«"«oih, The increase of force produced by the concurrence of in- dependent «m««*to«c.* is analogous to that which is the result of the concurrence of several independent witr^sses in relating the same fact ; and if these elements admitted of numerical evaluation, their combined effect would be capable of being represented by a fraction, having for its numerator the product of the chances favorable to the testimony of each witness and for its denominator, the sum of all the chances, favorable and unfavorable, the unfavorable chances being the product of the several deficiencies of the witnesses. But if in such case the witnesses be dependent on ea<3h other, so that the testimony of the second depends for its truth upon the first, that of the third upon the second, and so on, then the effect of the evidence diminishes with every increase in the number of the witnesses or the facts, just as an increase m the denominator of a fraction reduces it to one of inferior value.2 The learned writer from whom we have already quoted in this connection has illustrated the subject by a case which at first sight seems an extreme one, and it has occasionally been pressed m argument with much force.3 " Let it be supposed » says he, " that A. is robbed, and that the contents of his pur^e were one penny, two sixpences, three shillings, four half- crowns, five crowns, six hal f sovereigns, and seven sovereigns and that a person apprehended in the same fair or market where the robbery takes place is found in possession of the same remarkable combination of coin, and of no other, but 1 stark. Ev. (10th Am. Ed.) 851. a 2 Kirwan'a Logic, c. vii ; Hartley's Obs. c. iii. § 2. prop. Ixxx. According to the prinniples of pure abstract mathematical reasonine " r Ti^rl ^? '"'''■*^'*' °^ probability in favor of the fact. Stark, on J-v. (10th Am. Ed.) * p. 853. «Tiiall of the Rev. Ephraim Every, charged with the murder of Sarah |!|| 468 THE FORCE OF CIRCUMSTANTIAL EVIDENCE that no part of the coin can be identified; and that no circumstances operate against the prisoner except his possession of the same combination of coin ; here, notwith- standing the very extraordinary coincidence as to the number of each individual kind of coin, although the circumstances raise a high probability of identity, yet it still is one of a definite and inconclusive nature." * The probability that the coins lost and those discovered are the same is so great, that perhaps the first impulse of every person unaccustomed to this kind of reasoning is unhesitatingly to conclude that they cer- tainly are so ; yet, nevertheless, the case is one of probability only, the degree of which is capable of exact calculation ; but if that degree of probability, high as it is, were sufficient to warrant conviction in the particular case, it would be im- possible to draw the distinction between the degree of prob- ability which would and that which would not justify the infliction of penal retribution in other cases of inferior prob- ability. In the case of a small number of coins, two or three, for instance, the probability of their identity would be very weak ; and yet the two cases, though different in degree, are in principle the same ; and the chance of identity is in both cases equally capable of precise determination. The learned writer adds, that " although the fact taken nakedly and alone, without any collateral evidence, would in principle be incon- clusive, yet, if coupled with circumstances of a conclusive tendency, such as flight, concealment of the money, false and fabricated statements as to the possession, it might afford strong and pregnant evidence of guilt for the consideration of the jury." In like manner it would be difficult to resist the inference of the identity of the coins, if in the case supposed they were scarce or foreign ones. From the number of qualifying considerations connected with facts which are the subjects of testimonial evidence, and the impracticability of forming a numerical estimate of such facts, or of the veracity of witnesses, the cases to which this kind of reasoning is applicable, if there be any such, must be very rare. Every combination of moral incidents and contin- gent probabilities must give a product of the same nature, and affected by the same sources of error and uncertainty, as affect » Stark. Ev. (10th Am. Ed.) 854, n. IN PARTICULAR CASES. ^gg its separate elements ; and in all judgments grounded upon circumstantial evidence, this fundamental difference between moral and mathematical certainty must be borne in mind It were absurd," declares an eminent philosopher, " to sav that the sentiment of belief produced by any probability is proportioned to the fraction which expresses that probability • but It IS so related to it, or ought to be so, as to increase when It increases, and to diminish when it diminishes." i It is mani fest, however, that the consequence of the concurrence of a plurality of witnesses, and the conjunction of separate circum- stances, IS to add immensely to the force of each ; and if the credit of the witnesses be unimpeachable, and the hypotheses of confederacy and error be excluded, then no other conclusion can be rationally adopted, than that the facts to which they depose are true. The ca^e suggested is that of circumstantial evidence m its most cogent form ; and in such case, the con- clusion to which its various elements converge must be regarded as morally irresistible. Independently of the direct effect of that probability which results from a concurrence of independent witnesses or circum- stances, the security of our judgments is further increased from the considerations, that in proportion to the number of such witnesses or circumstances, confederacy is rendered more diffi- cult, and that increased opportunities and facilities are afforded of contradicting some or all of the alleged facts if they be not true. To preserve consistency in a work even professedly of fiction, where all the writer's art and attention are perpetually exerted to avoid the smallest appearance of discrepancy, is an undertaking of no common difficulty ; and it is obvious that the difficulty must be incomparably greater of preserving co- herency and order in a fabricated case which must be sup- ported by the confederacy of several persons, where, since by the hypothesis the congruity results from artifice, the slightest variation in any of the minute circumstances of the transaction or of Its concomitants may lead to detection and exposure On the other hand, though if the main features of the case do not satisfactcrly establish guilt, it is not safe to rely upon very minute circuits, .nces,^ yet, if the statements of the witnesses are based upon realities, the mere rigorously they are sifted ^ 4 Playfair's Works, 437. « Per Mr. Baron Rolfe, in Reg. v. Rush, Norfolk Sp. Ass., 1849. 470 THE FOUCE OF CIRCUMSTANTIAL EVIDENCE the more satisfactory will be the general result, from the de- velopment of minute, indirect, and unexpected coincidences in the attendant minor particulars of the main event. It was happily remarked by Dr. Paley, that " the xmdedgmdnesa of the agreements (which undesignedness is gathered from their latency, their minuteness, their obliquity, the suitableness of the circumstances in which they consist to the places in which those circumstances occur, and the circuitous references by which they are traced out) demonstrates that they have not been produced by meditation cr by any fraudulent contrivance. But coincidences from which these causes are excluded, and which are too numerous and close to be accounted for by ac- cidental concurrences of fiction, must necessarily have truth for their foundation." ^ The same learned writer also justly remarks, that " no advertency is sufficient to guard against slips and contradictions when circumstances are multiplied." * Hence it is observed in courts of justice, that witnesses who come to tell a concerted story are always reluctant to enter into particulars, and perpetually resort to shifts and evasions to gain time for deliberation and arrangement, before they reply directly to a course of examination likely to bring dis- credit upon their testimony. It must, nevertheless, be admitted that history and experience supply abundant evidence that it would be most erroneous in the abstract to decide a matter of fact by numbers, and that there have been extraordinary cases of false charges, most art- fully and plausibly supported by connected trains of feigned circumstances. But considei'ing the circumstances of the class of persons most frequently subjected to accusation for alleged crime, de- prived of personal freedom, often friendless, and still more frequently destitute of pecuniary resource"? and professional aid, their imperfect means of knowing all the facts proposed to be proved, or the manner in which they are attempted to be connected, the alleged facility of disproof is often more imaginary than real. Lord Eldon thus forcibly expressed him- seir on this question : " I have frequently thought that more effect has been given, than ought to have been given, in Avhat 1 Paley's Evid. p. ii. c. vii. ; Whately's Rhet. p. i. c. ii. s. 4 ; Greenleaf's Ex. lit supra, 39. ^ Horse I'aulintc, c. i. IN PARTICULAR CASES. 471 is called the summing-up of a judge on a trial, to the fact, that there has not been the contradiction on the part of the defence which it is supposed the witnesses for the accusation might have received. ... It may often happen that, in the course of a trial, circumstances are proved which have no bearing on the real question at issue ; and it may also happen that facts are alleged and sworn to by witnesses, which it is impossible for the accused party to contradict ; circumstances may be stated by witnesses which are untrue ; yet they may not be contradicted, because the party injured by them, not expecting that that which never had any existence would be attempted to 1)0 proved, cannot be prepared with opposing witnesses. So also, in cases in which an individual witness speaks to occur- rences at which no other person was present but himself, there it may be absolutely impossible to contradict him." * Many of the disadvantages under which prisoners on trial are necessarily placed have been removed or diminished in England by the provisions of various statutes" which give to persons held to bail or committed to prison a right to require copies of the examination of the witnesses upon whose evi- dence they have been held to bail or committed, on payment of a moderate charge, and at the time of trial to inspect the depositions returned into court.^ The argument founded on the means afforded of disproof may consequently now be urged with more justice and effect than formerly, though still a party charged with crime has not of right any means of knowing any facts which may have been discovered in the interval be- fore trial,* or where an indictment is found without previous » 8 H( Qsard's Pari. Deb., 2d ser., 1445. « See 6 oc 7 Will. IV. c. 114, §§ 3 & 4 ; 11 & 12 Vict. c. 42, § 27 ; 22 & 23 Vict. c. 83, § 8 ; 30 & 31 Vict. c. 35, §§ 3 & 4. » None of these enactments appear to apply to the case of commitment by the coroner upon a verdict of murder. Of course, when the depositions are returned into the court before which tlie trial is to be had, the court has power by Its general jurisdiction to order copies to be given. Nor does the statute apply to the case of prisoners committed for re-examination, but only to those who have been fully committed for trial. Reg. v. Lord Mayor of London, 5 Q. B. 555 ; 13 L. J. M. C. 67. So when a prisoner had been committed to jail till he should give sufficient sureties for keeping the peace and for appearing at the Sessions to do as the court should order, it was held on a rule for mandamus to justices to furnish copies of ihe depositions taken against him that he was not entitled to them. Ex parte Humphreys, 19 L. J. M. C. 189. ♦ Rex V. Greenacre, 8 G. & P. 32 ; Reg. v. Walford, Id. 767 ; Reg. v. Con- nor, 1 Cox C. C. 233. IM 472 THE FORCE OF CIRCUMSTANTIAL EVIDENCE commitment. But although it is a matter of comment to the jury, yet it is held in England to be no objection in point of law that the prisoner has had no intimation of the evidence to be given against him.^ There are, moreover, many cases which do not aflford the aJleged facility of disproof in any degree ; where, even admit- ting the truth of the testimony, the supposed presumption of guilt is nothing more than a mistaken conclusion from facts which aflford no warrant for the inference of guilt; in such circumstances, to attempt disproof is to attempt to grapple with a shadow ; to require it, to exact an impossibility." The preceding considerations imply the necessity of con- sistency and general harmony in the testimony of the diflferent witnesses. All human events must necessarily form a coherent whole ; and actual occurrences can never be mutually incon- sistent. If, therefore, the independency of the witnesses be proved, or rendered highly probable, to the same extent will the truth of their testimony be established.* It was objected in an English case that two reporters, whose accounts were relied on, > Reg. V. Greenslade, 11 Cox C. C. 412. " Rex V. Looker, Rex v. Downuig, and Rex v. Thornton, mipra. • Stark, on Ev. (10th Am. Ed.)829. " So fardoes this principle extend," continues the learned author, " that in many cases, except for the purpose of repelling the suspicion of fraud and concert, the credit of the witnesses themselves for honesty and veracity may become wholly immaterial. Where it is once established that the witnesses to a transaction are not acting m concert, then, although individually they should be unworthy of credit, yet if the coincidences in their testimony be too numerous to be attributed to mere accident, they cannot possibly be explained on any other supposition than that of the truth of their statement. ... The nature of such coincidences is most important : are they natural ones which bear not the marks of artifice and premeditation? Do they occur in points obviously material or in minute and remote points which are not hiely to be material, or in matters the importance of which could not have been foreseen? The number of such coincidences is also worthy of the most attentive -consideration ; human cunning, to a certain extent, can fabncate comcidences, even with regard to minute points, the more effect ually to deceive ; but the coincidences of art and invention are necessarily Cttcumscribed and limited, whilst those of truth are indefinite and un- limited ; the witnesses of art vrill be copious in their detail of circum. stances, as far as their provision extends ; beyond this they wiU be sparing and reserved, for fear of detection, and thus their testimony will not be even and consistent throughout : but the witnesses of trath will hs equalJv ready and equally qojpiqus upon all points*'* IN PARTICULAR CASES. 473 were Of no authority; "but," said Lord Mansfield, "if both the reporters were the worst that ever reported, if substantially they report a case in the same way, it is demonstrative of the truth of what they report or they could not agree " » T ^^/°® ''^*'^*' witnesses depose that he saw an individual at London, and the other that he saw him at York, at or near the same precise moment, the accounts are absolutely irreconcilable and one or other of them must by design or by inadvertence be untrue. A diversity ought always to excite caution and a scrupulous regard to the capacity, situation, and disposition of the witnesses, and especially to the possibility of confusion from TZri^^'li ^"^""tZ r^^ ^''" frequently mistaken," said Lord Chief Baron Pollock, " even as to what we mav suppose we see ; and still oftener are we mistaken a. to that "which we suppose we hear." » Lord Clarendon relates, that in the alarm created by the Fire of London, so terrified were men with their own apprehensions, that the inhabitants of a whole street ran in a great tumult one way, upon the rumor that the J^rench were marching at the other end of it.a The same noble historian has also given another anecdote relating to that great calamity, too instructive as applicabl > to this sub- ject to be omitted. A servant of the Portuguese ambassador was seized by the populace and pulled about, and very ill-used upon the accusation of a substantial citizen, who was ready to take his oath that he saw him put his hand in his pocket, and throw a fire-ball mto a house, which immediately burst into flames. The foreigner, who could not speak English, heard these charges interpreted to him with amazement Being a^ked what it was that he pulled out of his pocket, and what It was he threw into the house, he answered, Jhat he did not thmk he had put his hand into his pocket, but that he remembered very well that as he walked in the street he saw a piece of bread upon the ground, which he took up and laid upon a shelf m the next house, according to the custom of his country; which observes a learned writer,* is so strong, that the King of Portugal himself would have acted with the same scrupulous regard to general economy. Upon searching the house, which was m view, the bread was found just within the 3 ?rT ''• ^f "f ' Comp. 16. 2 Reg. „. Manning and wife sunra t S^'^T^^" « L'f^ ^"-^ Continuation, 91 (Oxford Ed. iSsf) ^ (J Woodeson a Lect. on the Laws of England, Lect. 53. 474 THE FORCE OF CIRCUMSTANTIAL EVIDENCE irii ', f 1, 'II door, upon a board as described ; and the house on fire was two doors beyond it, the citizen having erroneously concluded it to be the same ; " which," says Lord Chirendon, *' was very natural in the fright that all men were in." * But variations in the relations by different persons of the same transaction or event, in respect of unimportant circum- stances, are not necessarily to be regarded as indicative of fraud or falsehood, provided there be substantial agreement in other respects. True strength of mind consists in not allowing the judgment, when founded upon convincing evidence, to be dis- turbed because there are immaterial discrepancies which can- not be reconciled. When the vast inherent differences in indi- viduals with respect to natural faculties and acquired habits of accurate observation, faithful recollection, and precise narra- tion, and the important influence of intellectual and moral culture, are duly considered, it will not be thought surprising that entire agreement is seldom found amongst a number of witnesses as to all the collateral incidents of the same principal event. Lord EUenborough said that the general accordance of all material circumstances rather confirmed by minute diversity than weakened the general credit of the whole, and gave it the advantage which belongs to an artless and unartifi- cial tale ; and that minute variances exclude the idea of any uniform contrivance and design in the variation, for where it is an artful and prepared story, the parties agree in the min- utest facts as well as in the most important.^ " I know not," says Paley, " a more rash or unphilosophical conduct of the understanding than to reject the substance of a story l)y reason of some diversity in the circumstances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. That is what the daily expe- rience of courts of justice teaches. When accounts of a transac- tion come from the mouths of different witnesses, it is seldom that it is not possible to pick out apparent or real inconsisten- cies between thera. These circumstances are studiously dis- played by an adverse pleader, but oftentimes with little im- pression upon the minds of the judges. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud." * 1 3 Clarendon's Life and Continuation, tit supra, 86. a Rex V. Lord Cochrane and others, Gurney's Rep. 456. ' Paley's Evidences, p. iii. c. 1. IN PARTICULAR CASES. 475 Instances of discrepancy M to the minor attendant circum- stances of historical events are numberless. Lord Clarendon relates that the Marquis of Argyle was condemned to bo Imnged, and that the sentence was performed the smie day. Uurnet, Woodrow, and Echard, writers of good authority, who lived near the time, state that ho was beheaded, though con- demned to bo hanged, and that the sentence was pronounced on Saturday and carried into effect on the Monday following » Charles II after his flight from Worcester, has been variously stated to have embarked at Briththelmstone and at New Shore- ham." Clarendon states that the royal standard was erected about SIX o'clock of the evening of the 25th of August « a very stormy and tempestuous day;" whereas other contemporary historians variously state that it was erected on the 22d and the 24th of that month.a By some historians the death of the lariiamentary 'eader Pym is stated to have taken place in the month of May, 1643;* while by others it is said to have occurred in the following year. To come nearer to our own times, the author of a celebrated biographical memoir relates, that after the Rebellion of 1746 three lords were executed at Tower-hiU ; whereas it is well known that two only underwent that doom, the third, Lord Nithsdale, having, by the heroic self-devotion of his wife, effected his escape the night before his intended execution.* It is remarkable that contemporary and early writers have stated the lady in question to have been his mother. Such discrepancies never excite a serious doubt as to the truth of the principal facte with which they are con- nected; unless they can be traced to the operation of prejudice or some other sinister motive.* 1 Comp. 2 Life and Continuation, 386, and Paley's Ev. p. iii c 1 2 6 Hist, of Reb. 541 ; 11 Lingard's Hist, of Eng. c. 1. • 3 Hist, of Reb. 100; 1 Rushworth's Coll. i. p. iii. 783; Mem. of Lud- low, 15. * Whitelock's Memorials, 66 ; Baker's Chron. 570b ; 4 Hist, of Reb. 436 • 7 Hume s Hist. 540, ed. 1818 ; 1 Godwin's Hist, of the Comm. 17 * Coxe's Mem. of Walpole, 73. • See in 4 Clarendon's Hist. 436, a remarkable instance of historical dis- honesty. He states that Pym died of a loathsome disease, myrbua pedic- ulosus, evidently with the design of propagating the notion that it was a mark of divine vengeance "(7 Hume's Hist. 540); whereas he must nave known that his corpse was exposed to public view for several days before it was interred, in onnfnfoMnn «* ♦Uia <-=' .-• t ■ i Ludlow's Mem. 81. 476 THE FORCE OF CIRCUMSTANTIAL EVIDENCE. ■ it li' i' ; f * i still less are mere amissions to be considered as necessarily casting discredit upon testimony which stands in other respects unimpeached and unsuspectetl. " The real question," says Mr. Starkie, " must always be whether the points of variance and of discrepancy be of so strong and decisive a nature as to ren- der it impssiblo, or at least difficult, to attribute them to the ordinary sources of such varieties, inattention or want of memory." » Omissions are generally capable of explanation by the consideration that the mind may be so deeply impressed with, and the attention so riveted to, a particular fact, as to withdraw attention from concomitant circumstances, or prevent it from taking note of what is passing. It has been justly rr;- marked, that " upon general principles, affirmative is better than negative evidence. A person deposing to a fact, which he states he saw, must either speak truly, or must have invented his story, or it must have been sheer delusion. Not so with negative evidence; a fact may have taken place in the very sight of a person who may not have observed it ; and if he did observe it, may have forgotten it." " The meteor called the Northern Lights is not recorded to have been seen in the British Islands before the commencement pf the last century.' Negative evidence is therefore regarded as of little or no weight when opposed to the positive affirmative evidence of persons of unimpeachable credit. Sometimes, however, the non-rela- tion of particular facts amounts to the sttppreasio veri, which in point of moral guilt may be equal to positive mendacity, and destructive of all claim to testimonial credit.* ' Stark. Ev. (8th Am. Ed.) 832. * Sir Herbert Jenner, in Chambers v. the Queen's Proctor, 2 Curt. 415. ■ Whately's Introd. Less, on Christ. Ev. 45. * Grafton, who was printer to Queen Ehzabeth, in his Chronicles, pub- lished in 1562, in writing the history of King Jo' ips made no mention of Magna Charta. Perhap«i he considered that his su ■ , ?ht be deemed complimentary to that arbitrary princess. CHAPTER in. THE VALUE OF CIRCUMSTANTIAL EVIDENCE. In this work we have endeavored to investigate tlio founda- tions of our faith in circumstantial evidence, to ascertain its limits and its just moral effect, and to illustrate and confirm the reasonableness of the practical rules which have been established in order to prevent the unauthorized assumption of facts, and to secure to the relevant facts their proper weight. It has been maintained that circumstantial evidence is in herently of a different and inferior nature from direct and positive testimony; but that nevertheless such evidence, although not invariably so, is most frequently superior in proving power to the average strength of direct evidence ; and that, under the safeguards and qualifications which have been stated, it affords a secure ground for the most important judgments in cases where direct evidence is not to be obtained. And we are able to refer, in support of this jjosition, to the recorded views of our most distinguished jurists. The language of Mr. Justice Park is valuable here both on account of the eminence of that learned judge, and the eloquence with which his views are expressed : "The eye of Omniscience can alone see the truth in all cases : circumstantial evidence is there out of the question ; but clothed as we are with the infirmities of human nature, how are we to get at the truth without a concatenation of circum- stances ? Though in human judicature, imperfect as it must necessarily be, it sometimes happens, perhaps in the course of one hundred years, that in a few solitary instances, owing to the minute and curious circumstances which sometimes en- velop human transactions, error has been committed from a reliance on circumstantial evidence; yet this species of evi- dence in the eyes of all those who are most conversant with the administration of justice, and most skilled in judicial pro- 477 ^M U 'ii r^ i HIK r' • 1 1' H } J * s 1^ ^^hI 1 ' n,. 478 THE VALUE OF CIRCUMSTANTIAL EVIDENCE. ceedings, is much more satisfy cl "y t>ian the testimony of a single individual who swears he J a fact crmmitted." » It must, indeed, bo conceded — • *h t'ae wsest laws, and with tlio most ])erfe.''t administi ' , " them, the innocent may sometimes oe doomed to suffer the te of the guilty ; for it W( re vain to Lope l^hat from any h iman institution all error can be excl^.ded." ^ Put certainty has not always been attained even in those sciences which admit of demonstration ; still less can unfailing assuruivce be invariably expected i?\ investigations of moral and contingent tnith. Nor ca" any argument against the validity and sufficiency of circumstan- tial evidence as a means of arriving at moral certainty be drawn from the consideration that it has occasioiially led to erroneous convictions, which does not equally apply as an objection against the validity and sufficiency of moral evidence of every kind ; and it is believed that a far greater number of mistaken sentences have taken place in consequence of false and mistaken direct and positive testimony, than from errone- ous inferences drawn from circumstantial evidence. "Ad- mitting," said Mr. Justice Story, " the truth of such cases, are we, then, to abandon all confidence in circumstantial evidence, and in the testimony of witnesses? Are we to declare that no human testimony to circumstances or to facts is worthy of belief, or can furnish a just foundation for a conviction? That would be to subvert the whole foundation of the administra- tion of public justice." ^ Human imperfection is such e.s to render it necessary to depend upon otlier evidence than such as is direct.* It has, at all times, been found necessary, in the intelligent administration of the law, to resort in a great measure to the force and effect of circumstances. A crim- inal act is commonly sought to be performed in secrecy, and an intending wrong-doer usually chooses his time, and an 1 Rex V. Thurtell, Hertford Ass., Jan. 1824, These remarks have been referred to with approving comment in People v. Jones, 2 Wheel. Cr. C. 4Ca, n. ; People v. Cronin, 34 Cal. 203 ; People v. Morrow, 60 Cal. 142. Tiie cases in the " Theory of Presumptive Proof," collected with the object of lessening our faith in the force of Circumstantial Evidence, have been several times made the subject of judicial censure, and hi»ve been declaied to be of no authority. See People v. Videto, 1 Park. 603. » RomJlly's Obs. on the C. L. of England, 74, » Whart. Cr. L. 343. * Ludlow, P. J., in Com. v. Cullen, 36 Leg. Int. 252. THE VALUE OF CIRCUMSTANTIAL EVIDENCE. 4,79 occasion when most favorable to concealment, and setlulously, schemes to render detection impossible. To require in such- cases the production of witnesses who saw the act committed, would be to defeat public justice, to deny all protection to society, to let the greatest offenders go free, the most heinous crimes remain unpunished.' " All evidence," to use the language of the court in an. early case in this country,' " flows from persons and things. These are the only two sources from which we can expect testimony, and unless we resolve to let all secret crimes go unpunished] all civil disputes to remain undecided, and to throw away our reason, we must act upon the statements of persons and things. I say statements of things because, if we consult the experience of every hour, we will be taught that inanimate objects have voice as well as sentient beings. It is in vain, then, for man to say that, because others have failed in their efforts to detect errors, he will sit quietly down and perversely refuse to apply his intelligence to the problems of life, whether they encounter him in the counting-room or in the jury-box. He might just as well refuse to use his legs because others have fallen or been killed in walking. He might with equal pro- priety refuse to eat because others have been poisoned while partaking of nourishment. Some persons, admitting the force of the principle which actually compels us to act upon evidence, still insist nothing but positive testimony should produce con' viction, and adhering tenaciously to this favorite dogma— those who are too timid or too weak to exercise the reasoning faculties with which kind Providence has endowed them-they assail all circumstantial evidence. A moment's reflection how- ever, must satisfy all candid minds of the unsoundness of such a pr-T)osition. Suppose for a moment that this was the rule of being, and that we had been so constituted that we could be- lieve nothing unless it was demonstrated to us by our senses or by the statement of an eye-witness, what would then be our condition ? Of course we could not p: lish any crime unless it were perpetrated in the presence of spectators. All secret murders, arson, burglaries, forgeries, and other offences could be committed with impunity. Nor would the mischief stop ' See remarks of Gray, J., in People v. Harris, 136 N. Y. 428 • Dean v Com., 32 Orat. 912: Rf^lioolfraff ^' P-^r!-. ii'^ ti. «-, - ^ * ^ ^ • *' '"'■ "Com. V. Twitchell, 1 Brewst. 571. m^^^^^tsSffli 480 THE VALUE OF CIRCUMSTANTIAL EVIDENCE. m there. Few civil controversies could be settled by juries, no book of original entries could be received in evidence, no note or obligation would avail unless there were a sub- scribing witness; indeed, this would not be sufficient, for, if he died before trial, the claim would expire with him, and insurance on the life of the witness would not even avoid the difficulty, for the policy would die with its attesting witness. For the samo reasons all receipts would perish with those who saw them signed, and all our deeds and muniments of title would be swept away by the death of the subscribing witness, and the magistrates before whom they were acknowledged ; all proof of handwriting by comparison be annihilated ; com- merce would be destroyed, or remitted to its infancy in bar- barous ages. With the abolition of legal punishment for crime, mob law and vigilance committees would supersede the use of courts and juries. The whole framework of society would be impaired if not destroyed. The absurdity of the prejudice against circumstantial evidence may be still further illustrated by reflecting for a moment upon the use to which we constantly and properly apply it. Not only do business men answer letters, pay drafts, and credit others to the extent of millions daily upon the testimony of circumstances alone, but they com- mendably carry this faith, as the evidence of things unseen, into the reasoning which connects them with the world beyond our own. A trifling circumstance — the fall of an apple — has proved to the satisfaction of philosophers the great laws of gravitation which control the motion of the universe. The man who denies the existence of his Maker is properly regarded by many as thereby evincing his want of reason. Yet what proof have we of this important and accepted truth except from circumstances ? The same kind of testimony is the proof of our belief in all the great truths of revelation. If we turn from the world to the great mechanism within us, we see again that no rational man pauses for one instant to doubt the force of circumstantial testimony. What evidence have we that it is a heart that beats or a brain that thinks within us, except from the fact that these organs exist in all similarly constituted beings ? And we accept remedies for all the ills that flesh is heir to upon precisely the same faith as circumstantial evidence." Having quoted this language. Judge Parker, in a late case, said in further illustration : " You are in a telegraph office, and ly juries, evidence, re a sub- ient, for, him, and ivoid the ; witness, hose who s of title r witness, wledged ; ed ; com- y in bar- for crime, ;he use of would be prejudice llustrated onstantly 1 answer f millions they com- s unseen. Id beyond pple — has b laws of rse. The regarded Yet what h except the proof f we turn see again the force re that it is, except ►nstituted it flesh is vidence." late case, Dliice, and THE VALUE OF CIRCUMSTANTIAL EVIDENCE. 431 see the battery in motion— a message is received. The station at the other end of the line may be a thousand miles distant. No human eye ever saw the subtle fluid pass along the wire, and yet you would hardly listen with patience to the man or the argument undertaken to reason to you that the message might have come through the air or the earth without the agency of the wire; and that all your evidence to the contrary was cir- cumstantial and therefore unworthy of regard. In short a scepticism like this would oi)en wide the door for the perpetra- tion of all secret crimes, would uproot our faith in man, and destroy even our belief in a Creator and in a future state." » The legitimate consequence of the reflection that persons have been convicted and have sulfered the extreme penalty of the law, on circumstantial evidence, whose innocence has been afterwards made clear, ouglit to be, not to produce an unrea- sonable and indiscriminate scepticism, but to inspire a salutary caution in the reception and estimate of such evidence, and to render the legislator especially wary how he authorizes, and the magistrate how He inflicts, punishment of a nature which admits neither of reversal nor mitigation .» Would that the total abolition of such punishment were compatible with the paramount claims of social security ! It is indispensable, hoAv- ever, under every system, to the very existence of society, that the tribunals should act upon circumstantial evidence. And our judiciary recognize this paramount necessity in declar- ing that a juror should be set aside who declares his unwilling- ness to convict upon evidence of this kind.s Infallibility belongs not to man ; and even his strongest degree of moral assurance must be accompanied by the possible danger of mis- take ; but after just efl'ect has been given to sound practical rules of evidence, there will remain no other source of uncer- tainty or fallacy, than that general liability to en-or which is necessarily incidental to all investigations founded upon moral evidence, and from which no conclusion of the human judg- ment in relation to questions of contingent truth, whether based upon direct or circumstantial evidence, can be absolutely and entirely exempt. » Judge Parker, in U. S. v. Howell, 56 Fed. R. 21. 2 1 Chitty Cr. L. 459. »CheverJii3 v. Com., 8 Crirn. L. iMag. 760; People v. Ah Chune 54 Cal 398 ; State v. Leabo, 89 Mo. 247. 81 p-'i r CHAPTER IV. OASES IN ILLUSTRATION OP THE FORCE OF CIRCUMSTANTIAL EVIDENCE. Many remarkable cases of this nature have been given in the preceding pages, in application to the exemplification of some specific doctrine or object. To these will now be added, as an appropriate commentary upon this discussion of the scientific principles which govern the reception and estimate of circumstantial evidence, some of the most curious and in- structive examples of the force of a cumulation of moral and mechanical facts which are to be found in the annals of crim- inal jurisprudence. In the autumn of 1786, a young woman, who lived with her parents in a remote district in Kirkcudbright, was one day left alone in the cottage, her parents having gone out to the harvest-field. On their return home a little after midday they found their daughter murdered, with her throat cut in a most shocking manner. The circumstances in which she was found, the character of the deceased, and the appearance of the wound, all concurred in excluding any presumption of suicide ; while the surgeons who examined the Avound were satisfied that it had been inflicted by a sharp instrument, and by a person who must have held the instrument in his left hand. Upon opening the body the deceased appeared to have been some months gone with child ; and on examining the ground about the cot- tage, there were discovered the footsteps of a person who had seemingly been running hastily from the cottage, by an indirect road through a quagmire or bog in Avhich there Avere stepping- stones. It appeared, however, that the person in his haste and confusion had slipped his foot and stepped into the mire, by Avhich he must have been wet nearly to the middle of the leg. The prints of the footsteps Avere accurately measured, and an exact imnression taken of them : and it appeared that thev 482 by FORCE OF CIRCUMSTANTIAL EVIDENCE. 433 Which S f ' ^'"T ''•'", '""'' ^''"'^ ^^'^'-^ «^"«« ^b« *-^^ Of Winch had been newly mencled, and which, as is usual in that pait of the country, hud iron knobs or nails in them. There were discovered also, .long the track of the footsteps, and It certain intervals, drops of blood ; and on a stile or smill gate way near the cottage, and in the line of the footsteps, fome marks resembling those of a hand which had been bloody ^ot the slightest suspicion at this time attached to any par- ticuar person as the murderer, nor was it even suspected who S 'f/^r f ""f ''''''''''' "'^'^'^^ ^^« g-'^-« preg- nant At he funeral a number of persons of both sexes at- tended, and the Stewart-depute thought it the fittest opportun- ity ot endeavoring if possible to discover the murderer • con ceiving rightly that to avoid suspicion, whoever he was he would not on that occasion be absent. With this view' he called together after the interment the whole of the men (vho were present, being about sixty in number. He caused the s oes of each of them to be taken off and measured ; and one of the shoes was found to resemble, ,,retty nearh' the im the shoe Av^is the schoolmaster of the parish, which led to a suspicion that he must have been the father of the child, and had been guilty of the murder to save his character. On a cbser examination, however, of the shoe, it was discovered that t was pointed at the toe, whereas the impression of the footstep was round at that place. The measurement of the rest went on, and after going through nearly the whole num- ber one at length was discovered which corresponded exactly ^ ith the impressions in dimensions, shape of the foot, form of the sole and the number and position of the nails. William Kichardson the young man to whom the shoe belonged, on being asked where he was the day the deceased was murdered rephed seemingly without embarrassment, that he had been all that day employed at his master's work, a statement which his master and fellow-servants, who were present, confirmed This going so far to remove suspicion, a warrant of commit! nient was not then granted ; but some circumstances occurring a few days afterwards, having a tendency to excite it anew the young man was apprehended and lodged in jail. Upon his examination he acknowledged that he was left-handed; and some scratches bemg observed on his cheek, he said he had got SpSSSRS 484 CASES IN ILLUSTI^ATION OF THE them when pulling nuts in a wood a few days before. He still adhered to what he had said of his having been on the day of the murder employed constantly at his master's work, at some distance from the place where the deceased resided ; but in the course of the inquiry it turned out that he had been absent from his work about half an hour (the time being distinctly ascertained) in the course of the forenoon of that day ; that he called at a smith's shop, under the pretence of wanting something, which it did not appear he had any occasion for ; and that this smith's shop was in the way to the cottage of the deceased. A young girl, who was some hun- dred yards from tiie cottage, said that about the time the murder was committfci (and which corresponded to the time that Richardson was absent from his fellow-servants) she saw a per- son exactly with his dress and appearance running hastily toward the cottage, but did not see him return, though he might have gone round by a small eminence which would intercept him from her view, and which was the very track where the footsteps had been traced. His fellow-servants now recollected that in the forenoon of that day they were em- ployed with Richardson in driving their master's carts ; and that when passing by a wood, which they named, he said that he must run to the smith's shop and would be back in a short time. He then left his cart under their charge ; and having waited for him about half an hour, which one of the servants ascertained b}'^ having at the time looked at his watch, they remarked on his return that he had been longer absent than he said he Avould be, to which he replied that he stopped in the wood to gather some nuts. They observed at this time one of his stockings wet and soiled as if he had stepped into a puddle ; on Avhich they asked where he had been. He said he had stopped into a marsh, the name of which he men- tioned ; on which his fellow-servants remarked, " that he must have been either mad or drunk if he had stepped into that marsh, as there was a footpath which went along the side of it." It then appeared, by comparing the time te wa? absent with the distance of the cottage from the place where he had left his fellow-servants, that he might have gone there, cora- mitten soon fixed upon the prisoner, and in his sleeping-room was found a pair of stockings rolled up like clean stockings, but with the feet plastered over with the sort of soil found on the wharf, and a ramrod was found in the privy. The prisoner usually wore boots, but on the evening of the murder he wore shoes and stockings. It was supposed that, to prevent alarm to the deceased or the female servant, the murderer must have approached without his shoes, and afterwards gone on the wharf to throw away the pistol into the river. All the prisoner's statements as to his pecuniary transactions with Goom and his right to draw upon him, and the payment of the bill, turned out to be false. He attempted to tamper with the servant-girl as to her evidence before the coroner, and urged her to keep to one account ; and before that officer he made several inconsistent statements as to his pecuniary transactions with the deceased, and equivocated much as to whether he wore boots or shoes on the evening of the murder, as well as to his owner- ship of the soiled stockings, which, however, were clearly proved to be his, and for the soiled state of which he made no attempt to account. The prisoner suggested the existence of malicious feelings in two persons with whom the deceased had beea on ill terms ; but they had no motive for doing him any injury, and it was clearly proved that upon both occasions of attack they weia at a distance. FORCE OF CIRCUMSTANTIAL EVIDENCE. 4yj) The prisoner's motive was to possess him-lf of the business and property of his benefactor ; and to all appearance his falsehootls and duplicity were on the point of being discovered. His apparent incaution on the evening of tbo murder could be accounted for after the preceding alarm by no other supposi tion than that it was the result of i)remeditation, and intended to afford facilities for the execution of his dark purposes. The direction of the first ball through the shutter excluded the possibility that it had b^«n fired froni any other place than the deceaseil's own premises; and by a singular concurrence of circumstances, it was clearly proved that no person escaped from the premises after either of the shots, so that suspicion was necessarily restricted to the persons on the premises. The occurrence of the first attack during the temi)orury absence of the servant (that absence contrived by the prisoner himself), the discovery of a ramrod in the very place where the prisoner had been, and of his soiled stockings folded up so as to evade observation, his interference with one of the witnesses, his false- hoods respecting his pecuniary transaction- with Goom and with the deceased, and his attempts to exonerate himself from suspicion by implicating other persons, all these cogent circum- stances of presumption tended to show, not only that the prisoner was the only person who had any motive to destroy the deceased, but that the crime could have been committed by no other person ; and while all the facts were naturally expli- cable upon the hypothesis of his guilt, they were incapable of any other reasonable solution. The prisoner was convicted and executed.^ A respectable farmer, who had been at Stourbridge market on the 18th of December, left that place on foot a little after four in the afternoon, to return home, a distance of between two and three miles. About half a mile from his own house he was overtaken by a man, who inquired the road for Kidder- minster, and they walked together for two or three hundred yards, when the stranger drew behind and shot him in the back, and then robbed him of about eleven pounds in money and a silver watch. After lingering ten days, he died of the wound thus received. The wounded man noticed that the pistol Avaa long and very bright, and that the robber had on 1 Surrflv Spring Ass., 1806, coram L. C. B. Macdonalb. Gufiicy's Short- hand Report. 400 CASES IN ILLUSTRATION OF THE ti ^^ 1 " iln [P^rv a dark-colored groat-coat, which reached down to the calves of his legs. Several circumstances of corrcspondenco with the description given by the deceased conspired to fix suspicion u]>on the prisoner, who for about fourteen months had workeout the town for lodgings, and ultimately went to his lodg- ings about SIX o'clock in the evening. The account which the prisoner thus gave of himself was proved to ho a tissue of false- hofxis. lie had been seen by several witnesses between four and five in the afternoon of the day in question, on the road leadmg from Stourbridge toward, and not far from, the spot where the deceased was shot, and about halfpast five ho was seen gomg in great haste in the opposite m about six o'clock, and at the other about nine the same evening; at both of which the attack and robbery were the subjects of conversation, in which the pris- oner joined; and he was distinctly spoken to as having worn a fawn-skin waistcoat. On the 2 1st of December the prisoner sold a watch of which the deceased had been robbed, at War- wick, stating it to be a family watch. But the most conclusive circumstance was, that a letter was sent by the prisoner, while m jail, to his wife, who, being herself unable to road, had got a neighbor to read it to her, which contained a direction to remove some things concealed in a rick near Stourbridge; where, upon search being made, were discovered a glove, con- taining three bullets, and a screw-barrel pistol, the fellow to that found in the prisoner's box. A gunmaker deposed that the bullet extracted from the wound had been discharged from a screw-barrel pistol, such as that produced, and that that bullet and the bullet found in the prisoner's box had been cast m the same mould. The prisoner's denial, on his apprehension, that he had ever been at Stourbridge, or heard of the act, though he had been seen near the spot about the time when the shot was fired denoted a consciousness of the fatal effect of any evidence tending to establish the fact of his presence there. The dis- covery of a fawn-skin waistcoat in his possession, correspond- ing with that worn by him when seen at Stourbridge on the evening of the murder, his possession and disposal of the deceased's watch within three days after he had delivered it to his murderer, his false statement that it was a famUy watch, the correspondence between the weapon found in the rick and that found in the prisoner's box, and between the bullet extracted from the wound and that found in the same box, and 492 CASES IN ILLUSTRATION OF THE 'I i the peculiarity that the deceased had been killed by a wound from a screw-barrel pistol, — all these circumstances placed the guilt of the prisoner beyond any reasonable doubt, and there was no possibility of referring them to casual and accidental coincidence, or of explaining them upon any hypothesis com- patible with his innocence. lie was convicted and before his execution confessed his guilt.* Three men, named Smith, Varnham, and Timms, were tried before Mr. Justice Coltman, at the Norfolk Spring Assizes, 1837, for the murder of Hannah Mansfield, on Tuesday the 3d of January preceding. The deceased, who was about forty years of age, lived alone in a cottage at Denver, on the border of a common, at a distance from the turnpike-road leading from Hilgay through Denver to Downham, and remote from any other house, except an adjoining cottage under the same roof, occu]>ied by a laborer and his family. The deceased had acquired some repute as a fortune-teller, for which purpose she kept by her some money, which she called her bright money ; and she possessed a quantity of ]>late, con- sisting of cream jugs, table and tea-spoons, sugar-tongs, salt- cellars, and a silver tankard, which she kept in a corner cup- board and had frequently boastfully displayed. She spent the evening preceding the murder at her neighbor's house, which she left about half-past eleven; her neighbor's wife, being engaged in washing, did not go to bed till one o'clock, when she disturbed her husband, who, as he lay awake, about two o'clock, heard a noise in the deceased's cottage, but hearing nothing further, went to sleep again. About ten o'clock the following morning the poor woman was found dead in her cottage, with her throat cut from ear to ear ; the cottage door had been split open by some violent effort, and the cottage had been robbed of her money and treasure. The footsteps of two men were traced from the turnpike-road towards the deceased's house, and from the house into the stackyard, and back again to the footpath, and across the common to a run of water, and thence to the turnpike-road : one of the foot- steps was very large, and peculiarly shaped and nailed, there being four nailmarks in the centre of the heel, in a line from back to front, and two on each side ; and there were nailmarks also in Ibo waist of the heel, between the sole and the heel, 1 Stafford Spring Ass., 1813, coram Mr, Justice Baylky. FORCE OF CIRCUMSTANTIAL EVIDENCE. 493 a wound laced the and there U3cidental lesis com- )efore his vere tried J Assizes, jsday the as about ;r, on the pike-road id remote inder the ily. The teller, for ;he called >late, con- jngs, salt- irner cup- spent the ise, which ife, being >ck, when ibout two it hearing clock the ad in her tage door le cottage >otsteps of vards the yard, and 1 to a run the foot- ilcd, there line from nailmarks tlio hocl, and the sole was very full of nailmarks. The prisoner Timms's shoes exactly corresponded with these marks ; the other foot- step was a smaller one, and full of such marks. The large footmark proceeding from the house had nuirks of blood, and the smaller footstep was on the other side of the path, and the centre of the path was so hard and beaten that a third person iiiij^lit have walked on it without leaving any impression. Only the larger footstep was traced to the stackyard, but both footstei)s were traced in a direction toward and from the house. There was also the footstep of a third person, who appeared to have been stationed for the purpose of watchino- the back door of tiie adjoining cottage. The three prisoners had worked in the neighborhood as excavators, a few months before the murder; and about twelve months previously, the prisoner Smith, in company with two other men, had called at the adjoining cottage, and asked if Hannah Mansfield was at home, supposing that to be her cottage, stating that he had lost some tools, about which he wished to consult her. They htui been loitering at various low public houses in the neigh- borhood of the deceased's cottage for several days preceding the murder, and left one of those public houses, about two miles from her residence, where they had spent the evening, about eleven o'clock on the night of the murder. Three men, corresponding in appearance with the prisoners, one of whom was identified as the prisoner Timms, were met on the follow- ing morning about three o'clock, a mile from the deceased's house, walking very fast along the road from Denver to Down- ham; and about half-past eight the same morning the same three men were seen at Leveriiigton, fourteen miles from Den- ver, apparently fatigued, and the iDocket of one of them stuffed with something bulky. At Sutton St. Edmunds, about twenty miles from Denver, the prisoners stopped at a public house to refresh themselves, and one of them paid away a very bright and unworn sixj^ence and shilling of the year 1817. After hav- ing stayed some hours, they proceeded to Whaplode Drove,where they remained at a public house for several days, and fell into company with a shoemaker, who made two pairs of boots for Varnham and Smith, for which Tininis paid in a half-sov- reign, a haif-gu" ^a, and a sixpence. Varnham cut the tops fruiii bis old boots, and the iaiidlot'd's wife burne'J the soies, and threw the elates upon an ash-heap, w here they were after- 494 CASES IN ILLUSTRATION OF THE ;sr,fl wards found by a police officer, and they exactly fitted one of tiie impressions made in the snow near the cottage. While sittmg by the fireside one evening at this public house, the prisoner Smith laid hold of the bottom of his pocket, which seemed heavy, and a bundle contained in a silk handkerchief dropped out, from which some tea-spoons, a pair of sugar-tongs, and some glass fell on the floor ; the glass was broken, the other things he hastily collected and replaced. On the follow- ing day the prisoner Timms called upon the shoemaker, who had been present on the previous evening, professedly to talk about the boots which he had to make, and took occasion to remark, that " he need not say anything about what he had seen, as it might get the landlord into a scrape, though for themselves they did not care about it, as they had got the things from Lisbon." On the Saturday following the prison- ers were traced to Whittlesea, where they offered for sale to a gunmaker a mass of molten silver, upwards of two pounds' weight, which the prisoner Timms said had consisted of spoons, salt-cellars, and elegant things fit for any table, a deycription corresponding with the deceased's plate; and they offered to purchase a pair of pistols. The silver Avas cut by the person to whom it was offered into six or seven pieces, and offered by him for sale to another person ; but not having suc- ceeded in disposing of it, they gave his wife in return for his trouble a small strip of it, weighing about an ounce, and three keys, which were afterwards identified as having belonged to the deceased. The prisoners were then traced to and appre- hended at Doncaster. To the officers they gave false accounts of themselves. Stains of blood Avere found upon some parts of the clothes of all the prisoners, and the clothes of two of them appeared to have been washed in order to remove stains. On the person of Smith were found several pounds in money, a picklock key, lucifer matches, and a knife on which was some coagulated blood ; and on the person of Timms was found, wrapped up in a piece of linen, a mass or wedge of molten sil- ver. With several of their fellow-prisoners Smith and Varnham conversed upon the subject of this cruel action in language of disgusting coarseness and brutality; which implied guilty knowledge of and participation in' the crime, since they expressed confidence of security if their companions reTnair.ed silent, as nobody had seen them go to the house. FORCE OF CIRCUMSTANTIAL EVIDENCE. 495 The knowledge which the prisoners possessed of the locality of the deceased's cottage, and of her character and circum- stances, their presence in the vicinity at so suspicious an hour m the inclement season of mid-winter, so close upon the time when the deceased was murdered, their subsequent wanderings apparently Avithout any object, their profuse expenditure of money, their apparently wanton destruction of valuable arti- cles of apparel, unaccountable except on the supposition that they were the pregnant evidences of guilt, their possession of so much money and molten silver when apprehended, the cor- respondence of the shoe-marks about the cottage with the shoes of two of the prisoners, and the possession of the deceased's keys,-the concurrence of thece otherwise inexpli- cable facts could not be rationally accounted for except by the conclusion of the guilt of the prisoners, who made a full con- fession, two of whom. Smith and Timms, were executed. A foreigner, named Courvoisier, was tried at the Central Criminal Court in London for the murder of Lord William Russell, an elderly gentleman, seventy-five years of age a widower, who lived in Norfolk Street, Park Lane. The de- ceased's family consisted of the prisoner, who had been in his service as valet about five weeks, and of a housemaid and cook who had lived with him three years, beside a coachman and groom who did not live in the house. On the 6th of May the female servants went to bed as usual, and the housemaid on going to bed lighted a fire and set a rushlight in her master's bedroom, which presented its usual appearance ; the prisoner remained sitting up to warm his bed. The housemaid rose about half-past six on the following morning, and on goino- downstairs knocked, as usual, at the prisoner's door. At he? master's door she noticed the warming-pan, which was usually taken downstairs; on going into a back drawing-room she found the drawers of her master's desk open, his bunch of keys lying on the carpet, and a screw-driver lay on a chair. In the hall his lordship's cloak was found neatly folded up, together with a bundle, containing a variety of valuable articles, most of them portable, such as a thief would ordinarily put in his pocket instead of deliberately packing up. In the dining-room she found several articles of plate scattered about. The street- door, though shut, was unf.astened, but the testrraony of the police, who passed the house many times in the night, rendered ^'^;-j?ifS }^f^ ; "' '^■1-"> '5?^^^ HiiM j.*ii i^ . 496 CASES IN ILLUSTRATION OF THE it very unlikely that any person had left it in that direction. Alarmed by these appearances, the housemaid called the prisoner, and found him dressed, though only a few moments had elapsed since she had knocked at his door, which was a much shorter time than he usually took to dress. They went together downstairs; and after examining the state of the dining-room and the prisoner's pantry, where the cupboard and drawers were all found opened, they proceeded to their master's bedroom, where he was found with his throat cut, in a manner which must have produced instant death. His lord- ship usually placed his watch and rings on his dressing-table ; but they had been taken away, and his note-cases, in one of which the prisoner stated that he had seen a £10 and a £5 note a few days before, were open and emptied of their con- tents. A book was found on the floor, and his lordship's spectacles lay upon it, and there was a candlestick about four or five feet from the bed with a candle burned to the socket. These articles appeared to have been so placed to create the impression that his lordship had been murdered while reading ; but he was not accustomed to read in bed, and only so much of the rushlight Avas burned as would have been consumed in about an hour and a half, though the candle was completely burned aAvay. The prisoner stated that he left his master reading. Upon the door of the prisoner's pantry, leading to a back area, Avere marks as if it had been broken into, and the prisoner suggested that the thieves had entered by that door ; but they appeared to have been made from within, and none of them had been made by the application of sufficient force to break open the door ; the bolts appeared not to have been shot at the time, and the socket of one of them had been wrenched off when the door was open. The marks on this door ap- peared to have been made with a bent poker found in the pantry. It Avas clear that no person had entered the premises from the rear, since in one direction they could have been ap- proached only by passing over a wall covered with dust, which would have retained the slightest impression ; and on the other, the party must have passed over some tiling v\'hich was so old and perished as necessarily to have been damaged by the passing of any person over it ; while from the testimony of the police it was equally clear that no person had escaped through the front door. For several days the missing articles V 1 direction, called the V moments bich was a rhey went ite of the cupboard id to their •oat cut, in His lord- sing-table ; , in one of 9 and a £5 their con- lordship's about four ,he socket, create the e reading ; y so much msumed in completely tiis master sading to a :o, and the that door ; nd none of nt force to i been shot wrenched 3 door ap- md in the e premises 'e been ap- lust, which id on the which was imaged by stimony of id escaped ng articles FORCE OF CIRCUMSTANTIAL EVIDENCE. 497 could not be found, and the case appeared to be wrapped in impenetrable mystery ; but at length, upon a stricter search, his lordship's rings and Waterloo medal, five sovereigns, and a £10 note, the latter of which had been removed from his note- case, were found concealed behind the skirting-board in the prisoner's pantry ; and beneath the leaden covering of a sink was found his lordship's watch, and several other articles were a so found in other parts of the same room. But a quantity of plate which had been stolen still remained undiscovered not- withstanding the most diligent efforts to discover it ; and its non-production was the only circumstance which gave any ap- parent conntenance io the possibility that the house had been robbed on the night of the murder, by parties who had es- caped. The mystery was cleared up, however, in a very extraordinary manner during the progress of the trial. About a fortnight before the murder, the prisoner had left a parcel in the care of a hotel-keeper with whom he had formerly lived as waiter, whose curiosity was excited to examine its contents by reading in a newspaper a suggestion that, as the prisoner was a foreigner, he had probably left the plate at one of the foreign hotels in London. The parcel was found to contain the miss- ing plate. The prisoner had been known in this situation only by his Christian name, which circumstance accounted for the fact that suspicion had not been sooner excited by the account ot the murder and robbery which had appeared in the daily journals. This discovery, in conjunction with the simulated appearances of external violence and robbery, and the con- clusive evidence that the premises had not been entered from without made it certain that the robbery of the plate and the murder had been committed by one of the inmates; while the manner and place of concealment, and the artless and satis- factory account given by the female servants, rendered it equally clear that the prisoner, and he alone, could have been the perpetrator of this cruel action. He made a confession of his guUt, and was executed pursuant to his sentence.^ /low was accused of the murder of one Church, and the evidence relied on for conviction was wholly circumstantial. Ihe deceased had been called out of bed at one o'clock in the mormng by a person pretending to have a letter for him, and as he opened the door was shot dead on the spot. The following g^ » Sessions Papers, 1840 ; 3 Townsend's St. Tr. 244. li 498 CASES IN ILLUSTRATION OF THE II .h m ' liilll Pill facts are set forth by the reporter as having been developed on the trial : The prisoner had, on various occasions, complained that Church had defrauded him of his property, and hud threatened to avenge himself. On one occasion he had gone so far as to threaten to take the life of the deceased, and had en- deavored to persuade a person to lend him aid in putting Church out of the way. On the night of the crime the accused left a village a few miles disi i \' the deceased's residence, in time to have committed the .', and at tlie time of leaving had something under his coai, wliich bore the .appearance of a rifle. On the morning after the murder the horse which the prisoner rode the evening before was found wet with sweat, and the prisoner made false statements about the horse being sick. The ball with which the fatal wound was inflicted on the deceased was almost identical in Aveight with the balls found with the prisoner's rifle; and the patch and wadding found near where the deceased fell were similar to those in the prisoner's rifle-box. The prisoner was convicted, and while he was awaiting execution, made a circumstantial confession.^ The recent case of People \. Johnson"^ affords a good illus- tration. The death by violence was established by direct evi- dence, and the dead body with marks of murder upon it had been found. The defendant appealed from a judgment of con- viction on the ground that the evidence (circumstantial) upon which the verdict had been rendered was inconclusive. The Court of Appeals, in sustaining the conclusion of the jury, set out the following comprehensive statement of the incriminat- ing facts : " A sufficient and adequate motive for the crime, consisting of revenge for a supposed injury, and supplemented by a desire to obtain the money known to have been paid to the deceased and which was stolen from his person, a convenient and pre- sumably safe opportunity arising from the prisoner's familiarity with the premises, his knowledge of a place in which to hide until all the occupants of the building had departed after their usual habit, and leaving the engineer alone and unprotected while closing the premises and preparing for his own depart- ure ; the presence of the tools and instruments sufficient to effect the killing, the existence and locality of which were well known to the prisoner, and which were found near by with 1 a Wheel. Cr. Cas. 410. "^ i40 N. Y. 350. oped on iplained LTid had gone so had en- ; Church ed left a !, in time t^ing had if a rifle, prisoner and the ing sick. . on the lis found ig found 3 in the while he lion.^ >od illus- irect evi- n it had it of Gon- ial) upon ve. The jury, set criminat- onsisting Y a desire deceased and pre- jniliarity h to hide fter their protected n depart- Ilcient to were well ' by with FORCE OF CIRCUMSTANTIAL EVIDENCE. 499 blood and hair upon them ; the track of the murderer fmni the basement to the washing closet on the fourth floor, shown by the bloody finger-marks on the doors passed in the ascent, and the s ains upon the towel used in an eflFort to efface the marks which the struggle had left uix)n him ; the theft of the black trousers left on the same floor, and which, on the next day were found in the possession of the prisoner, who sought to dispose of them to others; his display immediately after the killing of an amount of money, and in denominations closely corresponding to that which was taken from the pockets of the deceased, coupled with the fact that before the kiUino- the prisoner was penniless, unable to pay his rent, borro win -"small sums where he could, out of work and earning nothing and pawning his clothing to relieve his want ; his manifest false- hood as to the source from which he obtained the money • bis effort to frame and prove a false defence of absence in New Jersey on the day of the homicide; the blood stains on the clothing and shoes he wore that day ; his attempt to avoid and escape arrest when the crime became known and suspici,.n arousetl ; the fact that while offering himself as a witness and protesting with a vehemence almost amounting to blasphemy that he was innocent, he nevertheless gave no explanation of his possession of the stolen trousers, or of the money which he had displayed, but remained utterly silent where explanation was easy and imperative if innocence existed " The remarkable case of Udderzook v. Cow.i showed a com- bination of two to cheat insurance companies, and the murder of one b^ ihe other to reap the fruit of the fraud. W. S. Goss, an inhabitant of Baltimore, had insured his life to the amount of $25,000. He was last seen at his shop near Baltimore, on the evening of February 2d, 1872 in com' pany with W. E. Udderzook, his brother-in-law, the 'prisoner and a young man living near. Shortly after the two had left the deceased to go to the house of the prisoner's father the shop was discovered to be on fire. After it had burned down a body was drawn out of the fire, supposed to be that of Goss' Claims were made on the insurance companies which the pris- oner was active in prosecuting. On the 30th of June, 1873 the prisoner and a stranger, a man identified as A. C. Wils'on ai)' peared at Jennerville.. in Pennsylvani.n, and remained over night » 76 Pa. St. 340. 600 THE FORCE OF CIRCUMSTANTIAL EVIDENCE. and the next day. On the evening of July 1st, the two left the town together in a buggy. Next day, on being met and asked what what had become of his companion, the prisoner said he had left him at Parkesburg. On the 11th July, the body of a man identified as W. S. Goss or A. C. Wilson Avas found in a stretch of woods about ten miles from Jennerville. The head and trunk were buried in a shallow hole in one place and the arms and legs in another. The stranger who was with the prisoner at Jennerville, identified as A. C, Wilson, was traced from place to place, living in retirement from June 22, 1872, until within a few days of the time when he appeared with the prisoner at Jennerville. During the interval the prisoner and Wilson were seen together several times under circumstances indicating great intimacy and privacy. Wilson was not seen or heard from subsequent to the time when he left Jennerville in company with the prisoner. The great question in the case was the identity of A. C. Wilson and W. S. Goss. This was established by a variety of circumstances, leaving no doubt that Goss and Wilson were the same person, and that the body found in the woods was that of Goss. A photograph of Goss taken in Baltimore was introduced and presented to a witness, who, so far as he knew, had never seen Goss, but had seen a man named Wilson, and was declared by him to be the photograph of Wilson. There were letters from Wilson, identified as being in the handwriting of Goss. Wilson wore a peculiar ring which belonged to Goss, Wilson had at one time recognized A. C. Wilson as his brother. Packages addressed to W. S. Goss, and envelopes bearing the mark of the firm with which Goss had been employed, came and went to and from Baltimore. There Avas also evidence that Wilson and Goss were both in the habit of becoming intoxicated. Other circumstances there were which pointed to the one con- clusion. Altogether the facts were most convincing, and left no room to doubt that W. S. Goss and A. C. Wilson were one and the same person. This being established, it was equally clear that Udderzook had done away with his accomplice in the fraud, to secure to himself the whole proceeds thereof, and to make it impossible for any witness to jeopardize the posses- sion of his ill-gotten gains. Accordingly the prisoner was con- victed and suffered the full penalty of the law. li TABLE OF CASES. Abernethy v. Com. (101 Pa. St. 322), 55. Abbott, Com. v., 888. Abbott, People v., 82. Ackerson v. People (124 111. 568), 271, Ackley v. People (9 Barb. 609), 270. Adams, R. v., 90. Adams v. Field (31 Ver. 256), 215. Adams v. State (28 Fla. 511), 1.50 Aclams v. State (52 Ala. 379), 73, 141. ^tna Ins. Co. v. Johnson (11 Bush. 587), 322. Ah Chuey, State v., 191, 354, 377. Ah Chung, People v., 481. Ah Fook, People v., 129. Ah Ki, People v., 80. Ah King, State v., 302. Ah Sing, People v., 333. Aiken, People v., 281, 382. Ala. G. S. R. Co. v. Hall (17 So. 176), 156. Albin V. State (63 Ind. 598), 871, Alcorn, R. v., 388. Aldridge, R. v., 211. Alexander, State v., 262. Algheri v. State (25 Miss. 584), 802. Allbntton v. State (94 Ala. 76). 277 Allen, R. v., 298. Allen, State v., 396. Allen, U. S. v., 261. Allen V. State (16 Tex. Cr. App. 837), 308. Allport V. Meek (4 C. & P. 867), 215. Alphonse, State v., 113. Alton Lime & C. Co. v. Calvav f47 111. App. 343), 838. Alviao, People v., 377. Amrick v. Mitchell (1 Norris, 214), Anderson, State v., 155, 160. Anderson u. State (24 Fla. 139), 354. Anderson v. State (2 West. 341), 133 Anoals v. People (134 111. 401), 273*, Angus, R. v., 448. Ann^ley v. Earl of Anglesea (17 St. Tr. 1416), 140. Annis, Com v., 132. Antonio, People v., 80, 95. Aram's Case (Eugene), 130, Arden, E. v., 184. Ardesco Oil Co, v. GiLson (63 Pa. St. 146), 163. Armor v. State (8 Ala. 173), 263. Armstead's Case (1 City Hall Rec. 174), 86. Armstrong, People v., 301. Armstrong, U. S. v., 52. Armstrong u. State (30 Fla. 170), 296. Ai-nold, Stater., 81. Arnold v. State (23 Ind. 170), 826. Arthur, People v., 201. Arthur v. Arthur (38 Kan. 691). 210. Arundel, R. v., 254. Ashe, People v., 260, 328. Ashford v. Thornton (4 B. & Aid. 405), 290. ^^"^L^o^^^^y (^ H^Se- Ecc. R. 7«0), o50. Atwood, R. v., 459. Austin, State v., 267. Austin V. State (51 111. 236), 116. Austin V. State (14 Ark. 555), 5?, 116. ouv), 80. Babb, State v., 96. Babcock v. People (13 Col. 515). 57. Bacon v. State (22 Fla. 51), 263. Baden, State v., 142. Bailey, State v., 854. Baines, R. v. , 375. Baker, State v., 67. Baker v. Haines (6 Whart, 284), 819. Baker v. Mygatt (14 la. 131), 217. Baker v. State (53 N. J. L. 45), 260. Baldry, R. v., US, 116. Baldwin, R. v., 245. Baldwin, State v., 409. Ball, R. v., 71. ^^^l^ !^xf***« (1^ Neb. 609), 113, ItH), 396. ^*"^^*' ot^- "^^'*® (27 P. F, Smith, Ballew V. State (36 Tex. 98), 36. ??Q7o^^^'"*Se Case (1 Sim. & S. loo), 334. Bank of Pa. v. Jacob's Adm. (l P. & W. 161), 814. Bank of Washington v. Harrington (3 Pcnn. 37), 131. Banker v. People (37 Mich. 4), 139. 501 502 TABLE OF CASES. {J it^ ntv ^ Banks, R. v., 03, Banks, Stater., 288. Banks v. State (72 Ala. 622), 306. Barnard, R. v., 257. Baranelli, R. v., 180. Barbour v. Conn. (9 Va. L. J. 809), 198. Barfield v. Britt (8 Jones' L. 41,) 838. Barker, State t\, 103. Barnarda v. State (88 Tenn. 181). 247. Barndt v. Frederick (78 Wis. 1), 32. Barr v. State (10 Tex. Cr. Ann. 507), 800, 388. Barrie, People v., 11.3. Barron v. People (73 111. 256), 132. Barrow, State r., 216. Barth. State v., 260. Bartlett, H. v., 128, 412. Bartlett, Stater., 310. Hartley v. People (166 ni. 234), 114, Barton v. State (18 Ohio, 221), 58. Barton v. Thompson (46 la. 30), 341. Baaye v. State (63 N. Y. 811), 113. 252. Bate, R. v., 206, 447. Bates V. Morris (101 Ala. 282), 142. Bauer's Case (3 Chand. Am. Cr. Tr. 856), 876. Bean v. People (124 111. 576), 241. Beards, R. v., 204. Beasley, State v., 275. Beatty, State v., 88. 103. Beavers v. State (58 Ind. 530), 129. 198, 800, 877. Beek, People v., 303, 336. Beck V. State (44 Tex. 430), 90, 95, 144. Becker V. Com., 268. Beck with. People v., 365. Beebe, Stater., 259. Belaney's Caae, 828, 428. Bell, Com. r., 62. Bell, People r., 262, 295. Bell, R. r., 51. Bell V. Brewster (44 Ohio, 696). 221. Bell V. Com. (88 Va. 365), 399, 409. Bell r. Norwood (7 La. 98), 214. Belote's Case (36 Miss. 97), 79. Bemis, People r., 37, 105. Bemis r. Rd. Co. (58 Vt. 686), 163. Bemmerly, People v., 328. Benedict r. Flanigan (18 S. C. 508), Benedict r. State (14 V.''is. 438), 54. Benjamin. R. r., 256. Bennett, People v., 301, 362, 365. Bennett v. State (86 &a. 401), 270. Bennett v. State (80 Tex. Cr. App. 341), 819. Benson, People v., 243. Berckmans r. Berckmana (17 N. J. Eq. 458), 344, 348. Berg V. Peterson (49 Minn. 420), 211, Bergen r. Peoplo (17 III. 426), 118. Bernecker v. .State (40 Neb. 810), 265. Bernhart r. State (83 Wis. 23), 261. Berry r. Com. (10 Bush, 15), 123. Berrjhill v. Kirchnor (96 Pa. St. Best, Stater., 894. Bestor r. Roberts (58 Ala. 331), 216 Betsall, State v. , 4.59. Betts r. Stak> (06 (Ja. .Wfi). 98, 99. Bovan r. Atlanta Nat'l Bank, 217. Bickle, R. r., 388. Bigelow, Com. r., 71. Bill V. Com. (88 Va. 365), 388. BlUard r. State (80 Tex. 367), 330. Bingham, R. v., 224, 250. Binns r. State (66 Md. 428), 302. Birch r. Ridgway (1 F. & F. 270), 220. Bird r. State (21 Qiat. 800), 103 Bishop, R. r., 369. Bishop r. State (43 Tex. 390), 310. Bishop r. State (30 Ala. 34), 215, 216. Bissell r. West (35 Ind. 54), .342. Bitter r. Saathoff (98 111. 236), 322. Black r. State (1 Tex. Crim. Ann. 308), 281, 30;. . ' Black r. State (18 Tex. Crim. App. 184). 97, 309. Blacser r. Mil. Mech. Mut. Ins. Co. (37 Wis. 31),.341. Blake, People r., 334. Blake r. Blake (70 111. 618), 348. Blandy, R. r., 28, 147, 337. Blatch r. Archer (Cowp. 65), 188. Bleasdale, R. r., 59, 73. Blewett r. U. S. (10 Ct. of 01. 33f), 816. Blood, Com. r., 63. Bloom, State v., 262, 268. Blunt, State r., 373. Blunt, Stater., 330. Boardman v. Woodman (47 N. H. 120), 164. Bodekee, State r., 330. Bodine, People r., 154, 370. Bolam, R. v., 148. Bonin, State v., 87. Bonsall r. Com.. (20 Grat. 800), 319. Boober, R. r., 249. Bookser r. State (26 Tex. Cr. App. 593), 311. ^^ Booms' Case, 363. Booth, R. v., 171. Booth r. Com. (4 Grat. 535), 52. Boswells Case (63 Ala. 302), 319. Bottomley r. U. S. (1 Story, 135), 63. Boulden r. State (102 Ala. 78), 326. 330. ' Bouldin r. State (8 Tex. Crim. Ann. 333), 36, 198, 301. ^ Bo wd itch, R. r., 244. Bower v. Statu (5 Mo. 364), 124. TABLE OF CASES. 603 Bowler v. State (41 Mlns, 570), 282, 384. Bowman, People v., 302. Bowman, R. r., 94. Bowman, State v. (N. Y.), 12«. Bowman, State u. (N. C), 156. Bowman v. Sanborn (5 Foatei , 87), 211. Boyd's Adm. v. Wilaon (1 P. & W. 211), 214. Boydv. State (2 Humph. 39), 118, 115. Boykin v. State (84 Ark. 443), 83. Bradford, Com. v., 68. Bradish v. Bliss (35 Vt. 226), 841. Bradley, State v., 56. Bradh^ v. State (81 Ind. 492), 8?4, Bradshaw v. State (17 K eb. 147). 288. Brady v. Com. (11 Bush, 282), 828. BragK v. State (17 Tex. Crim. App. 219), 00. Brain, R. v., 449. Brannon, People v., 280, 838. Bra f V. State (41 Tex. 560), 328. Ercedlove v. State (26 Tex. 445), 41, 42. Brennan, R. v., 272, 277. Brennan v. People (7 Hun, 171), 243. BresHler v. People (117 111. 422), 833, 466. Brewster, State v., 92. Briceland v. Com. (74 Pa. St. 463), 150, 273, ;n7. Bridgman v. Corey (62 Vt. 1), 222. BrigRs V. Cooper, 342. Briggs V. Minneapolis St. Ry. Co, (52 Minn. 86), 159. Brigham v. Petem (1 Gray, 139), 213. Brihdley, R. v., 202. Brister v. State (?6 Ala. 107), 115, 119. Britton, R. v., 195. Britton, U. S. v., 838. Brockman, State t ., 116. Brodick v. Hunt (48 Ind. 381), 318. Bromage v. Rice, 215, 219. Brontin, U. S. v., J61. Brook, R. v., 183, 185. Brooks, People v., !,^63. Brooks, R. v., 92. Browns Case (9 Lei,^h, 332), 124. Brown, State v. (la.), 11.5. Brown, State v. (Mo.), 83. Brown v. Com. (14 Bush, 398), 156. Brown v. Com. (76 Pa. St. 819), 98. Brown v. Shock (77 Pa. St. 471), 338. Brown v. State (46 Ala. 175), 270. Brown v. State (59 Ga. 456), 89. Brown v. State, (88 Ga. 257), 388, 396, 397,410,411. Brown v. State (105 Ind. 385). 332. Brown v. State (32 Miss. 433), 115. Brown v. State (16 So. 308), 830. Brown V. State (23 Tex. 195), 310. Brown r. State (1 Tex. Cr. App. 1.54), 826, 885, 854. Brownell v. People (88 Mich. 782), Browning v, Ooenell (59 N. W. 840), 826. Browning v. 8tat., 61. Carroll v. Com. (84 Pa. St. 107), 486. Carroll v. State (8 Humph. 816), 264. Carsewell, R. v., 221. Carson, State v., 806. Carson v. State (50 Ala. 134), 262. Carson v. State (80S. W. 709), 886. Carter, R. v., 78. Carter v. Boehm (1 Sm. L. C. 9th ed. 791), 168. Carter v. People (87 N. E. 244), 42. Carter v. State (86 Neb. ), 265. Carter v. State (46 Ga. 687), 91. Carter v. State (56 Oa. 468), 156. Carver v. Heskey (79 Mo. 509), 58, 56. Cary v. Pitt, 212. Casey V. state (20 Neb. 188), 302, 304. Caasiflv, U. S. r., 800, 332. Castelfon v. State (15 Tex. App. 551), 85. Caster, State v., 87, 88, 90. Cathcart v. Com. (37 Pa. St. 108), 109. Cauley v. State (92 Ala. 71), 364. Cavender v. State (126 Ind. 47), 802. CLaflfee v. Taylor (3 Allen, 598), 212- Chambers, People v., 80. Chambers, State v., 179. Chase v. People (40 111. 352), 319. Chee Gong, State v., 273, 295. Chester v. State (33 Tex. Crim. Add. 577), 217. ^*^ Cheverins v. Com. (8 Cr. L. Mac. _ 760), 41, 42, 48, 109, 461, 481. Cheverton, R. v., 870, 373, 874. Chicago, M. & St. P. Co. v. Kendall (49 111. App. 398), 162. Chicago, etc., R. Co. v. Lambert (119 111. 256). 164. Chick V. State, (40 Ind. 368), 370. ChUd, State v., 818. Ching Ling, State v., 331. Chisholm v. State (45 Ala. 66), 298. 307. Chitister v. State (28 Ga. 683), 386. Choate, Com. v., 68. Christensen, People v., 325. Cicely v. State (18 Sm. & M. 311), 832. Cicero v. State (54 Ga. 156), 185. Clapp V. Clapp (97 Mass. 531), 349. Clare v. People (9 Col. 132), 466. Clare v. State (26 Tex. Cr. App. 634), 309. *^^ Clark, People v., 75. Clark, R. v., 110. Clark, State v., ?18. Clark V. Casaidy (62 Oa. 407), 333. Clark V. Com. (123 Pa. 555), 880. Clark V. HUite (13 Ohio, 483), 886. Clark V. State (28 Tex. App. 694). 199. Clark V. Wyatt (15 Ind. 271), 216. Clawson, State i'., 62. Clay, R. v., 248, Clayton, State v., 826, Clayton v. State (16 Tex. Cr. App. 848), 298. ' ' Cleary, Com., v., 262. Clements, People v., 262. Clements, State r., 296. Clowe, R. v., 67, 123,376. Clinch, R. v., 181. Clinton, State «., 315. Clough V. State (7 Nob. 830), 47, 199. Clouser, State v., 800. Clunnes v. Pezzey (1 Camp. 8), 140. Cobb, Com. v., 802. Coohran, People v., 96. Cochran, R. v., 134, 392, 474. Cochran v. U. S. (157 U. S. 286), 836. Coffee V. State (1 Tex. App. .'548), Coffin's Caae (4 City Hall Rec. 63), 318. Coffman, People v., 319. Coggeshall v. U. S. (3 Wall. 383), 468. Com. (100 Pa. St. 578), 108), 328, 128), 219. Cogle V. 296. Cohen v. State (50 Ala, 831. Cohen v. Teller (93 Pa. St Coke, R. v., 51, 69, 350. Cole, R. v., 366. Cole, State v., 44. Cole, State «., 166, 163. Cole, U. S. v., 29. Cole V. Lake Shore & M. S. Ry. Co. (95 Mich. 77), 139. ^ Cole V. State, (59 Miss. 484), 263. Coleman, R. v., 127, 136, 180. Coleman, State v., 306. Coleman, State v.. 158, 382. Coleman v. People (53 N. Y. 555), Coleman v. State (26 Fla. 61), 277 Coleman v. State (87 Ala. 14), 298. Coleman v. State (44 Tex. 10P\ 460 Coleman v. State (59 Miss. 484), 363. Collier, Com. v., 155. Collier, R. v., 255. Collins, State v., 377. Collins V. People (98 111. 584), 460. Comfort V. People (54 111. 404), 82 Com. V. Abbott (130 Mass. 472). 338. Com. V. Annis (15 Gray, 197). 133. Com. V. Bell (36 W. N. C. 146), 63. Com. V. Bigelow (8 Met. 235), 71. Com. V. Blood (3 N. Erip. 393), 63. Cow, V, Bradford (126 Mass. 42v rs. TABLE OF CASES. 006 Com. V. Carey (2 Pick. 47), 21;). Com. V. Carey (2 BrewHt. 404), 262. Com. V. Choate (105 Ma«8. 451), 6.'). Com. V. Cleary (135 Pa.), 262. Cora. V. Cobb (14 Gray. 57), a02. Com. V. Collier (134 Matw. 308), 155. Com. V. Cofltley (118 Mass. 1), 808. Com. V. CuUen (36 Leg. Int. 252), 41, 322, 478. Com. V. Cunningham (104 Mass. (545), 824. Com. V. Drum (58 Pa. St. 9), 326. <^om. V. Eaatman (1 Cush. 189), 83, Com. V. Ferrigan (8 Wriglit, 386), 67. Com. u. Oriffln (4 Allen, 310), 106, 131. Com. I). Hardy, (2 Mass. 317), 261. Com. V. Harman (4 Pa. 269). 80. 829, 830. Com. V. Hawkins (3 Gray, 468), 52. Com. V. Hobbs (140 Mass. 448), 397. Com. V. Jackson (182 Mass. 16), 59. Com. V. Kimball (24 Pick. 366), 283. Com. V. Knapp (9 Pick. 406), 113. Com. V. Leach (156 Moss. 99), 186. Com. V. Leonard (140 Mass. 478), Com. V. Ix)cke (5 N. Eng. 498) 129 Com. V. McCarthy (119 Mass. 354)1 68. Com. V. McKee (Add. 38), 214. Com. V. McMahon (145 Pa. St. 413). 131,185,277. Com. V. Merriman (14 Pick. 518), 62. Com. V. Meyers (160 Mass. 530), 114. ( om. V. Miller (189 Pa. 77), 327. Com. V. Mitchell (117 Mass. 481), llo. Com. V. Montgomery (11 Met. 584), lOo. Com. V. Morgan (107 Mass. 199), 268. Com. V. Mullen (150 Mass. 394), 265. Com. V. O'Brien (119 Mass. 342), 269. Com. V. O'Connei (12 Allen, 451), 95. Com. V. Pitsinger (110 Mass. 101), Com. V. Regan (105 Mass. 193), 243. Com. V. Robinson (5 N. Eng. 217). 62 63,396,414. ' Com. V. Robinson (Thach. Cr. Cas. 230), 261. Com. V. Saokett (22 Pick. 394), 270. Com. V. Scott (123 Mass, 222), 63, 187, 459. ' ' Com. V. Sego (125 Mass. 210), 116. Com. V. Sheenan (163 Mass. 170), 114. Com. V. Shepard (1 Allen, 575), 64. Com. V. Smith (6 S. & R. 571), 214. Com. V. Smith (21 Grat. 809), 373. Com. V. Stine a Mpt, 4.s^ 7i Com. t'. Terrigan (8 Wright, 886), 62, (om. V. Tollier (119 Mass. 312), 180. Com. V. Trecy (8 Cush. 1), 291. Com. V. Tuckoman (10 (Jray, 178), 64. Com. V. Twitchell (1 Browst. 568). 265, 479. Com. V. Webster (5 Cush. 293). 324. 281,808,886, .374. Com. V. White (145 Mass. 892), 71. Com. V. Williams (1 Muss. 6), 97. Com. V. Willard (105 Mnss. 62), 106, 185. Com. V. Wilson (1 Gray, 337), 164. Com. V. Worcester (3 Pick. 463), 264. Concord Rd. v. Greeley (67 Cal. 815), 155. Conger v. Conger (82 N. Y. 603), 344. Connaghan v. People (88 111. 460), 333. Connecticut Mutual Life Ins. Co. v. Bathroi>(lll U. S. 472), 155. Conner v. Stanley (67 Cal. 315), 155. Conner t'. State (6 Tex. Crim. Apn. 455), 86. ^^ Conners v. People (50 N. Y. 240) 268. '• Connor, R. v., 471. Connor v. State (34 Tex. 659), 324. Conroy, People v., 52. Cook, R. v., 147, 876. Cook, State v., 384. Cook V. State (4 Zab. 843), 155. Cooke V. Cooke (152 111. 286), 31. 847. 850. Cooper, R. v., 90. Cooper V. Slado (6 E. & B. 447», 333. Cooper V. State (53 Miss. 898), 155. Cooper V. State (88 Ala. 107), 197, Cooper V. State (16 Tex. Cr. App. 841), 300. ^^ Cooper V. State (29 Tex. Crim. Apn. 8), 81. *^* Cooper V. State (19 Tex. 449), 36. Coots, R. v., 98. Coppard, R. v., 350. Copperman v. People (56 N. Y. 591), 96. Cordelli, State v., 354, 360. Corder, R. v.. 383. Cork V. Field (3 Esp. 133), 340. Cornwallis's Case, 337. Costello V. Crowell (138 Mass. 352). 319. Cor.^ley, Com. v., 308. Cotton, R. v., 68, 413. Couch, R. r., 211. Counts V. State (19 Tex. Cr. App. 450), 309. ^^ Courtnage, R. v., 188, 257. Courvoisier, R. v., 186, 495. Cousins, State v., 143. Covender i\ State (126 Ind. 47), 264 606 TABLE OP CASES. Covprotis V. Jones (ftl N. H. 658), 64. Covington, State, v.. 122. Coward v. State (16 Tex. Crim. App. 89), 42. Cowper, R. v., 379, 380. Cowper V. French, 148. Cox, People v., 330, 331. CoxwieH V. State (66 Oa. 809), 261. Coyle, R. v., 244. CraJbtree, State v., 65. Craig, U. S. v., 214. Craig V. Noblesville & Stoney Creek G. R. Cc. (98 Ind. 109), 156. Craine, People v., 306. Cramer, State v., 191. Cranch v. State (12 S. W. 490), 281. Crank, State v., 87. Crapo, People v., 268. Crass V. State (30 Tex. App. 480), 68. Crawford, State v., 820. Crawford, State v., 324, 826. Crawford v. State (4 Cold. 190), 122. Creson, State v., 80, 265. Creswell v. Jack (2 F. & F. 24), 220. Crickmer, R. v., 60. Crilly V. State (20 Wis. 231), 324. Crisp V. Walpole (2 Hagg. 521), 227. Cronin, People v., 478. CronkwTight v. Pteople (35 111. 204), 82. Crossfield. R. v., 54, 130, 142, 247. Crossley, R. v., 337. Crowhurst, R. v., 85. Crowley v. State (26 Tex. Cr. App. 578), 309. Crowninshield v. Crowninshield (2 Gray, 524), 291. Crumes v. State (28 Tex. Crim. App. 516), 199. Crump, R. v., 188. Crutchley, R. v., 449. Cruttenden, R. v., 90. Crymble v. Crymble (50 111. App. 544), 349. Culbertson v. Hill (87 Mo. 553), 53. Cullen, Com. v., 41, 322, 478. Cummins v. People (42 Mich. 142), 132. Cunningham, Com. v., 324. Cunningham, State v., 241. Cunningham v. State (56 Miss. 269), 321. Cunningham r. State (20 Tex. Cr. App. 162), 310. Curtis V. State (6 Cold. 9), 89. Cutbush V. Gilbert (4 S. & R. 551), 297. D'Arwin v. State (71 Ala. 352), 267. Dacey v. People (116 Ind. 556), 820. Dailey v. Dailey (Wright, 514), 344, 350. Pain V. Ptate (74 Ala. 88), 334. Pale V. Johnson (50 N. H. 453), 163. Dalston V. Cotsworth (1 P. Wms. 731), 140. Dalton Case, 302. Dalton, State v., 268, 265. Daly, State v., 800. Daniel v. State (65 Ga. 199), 87. Daniels v. Musher (2 Mich. 183), 156. Daniels v. State (14 S. W. 895), 509. Davenport, State v., 802. Davidson, R. v., 259, 265, 451. Davidson, State v., 246, 361. Davis, People v. (Cal.), 122. Davis, People v. (Cal.), 807. Davis, People v. (N. Y.), 326. Davis, State v. (Mo.), 103. Davis, State v. (Mo.), 75. Davis V. People (114 111. 98), 333. Dawson v. State (62 Miss. 341), 272. Dawtrey, R. v., 108. Day V. Day, 184. Day V. State (63 Oa. 667), 199. Dayly, State v., 262. DelaMotte, R. v., 140, 214. De Graff, People v., 153. De Ranee, State v., 295. Deal V. State (39 N. E. 930), 185. Dean, R. v., 248. Dean v. Com. (32 Grat. 912), 34, 41, 43, 108, 189, 274, 461. 466, 479. Debbs V. State (48 Tex. 660), 154. Debley, R. r., 85. Deitz V. Fourth Nat'l Bank (69 Mich. 287), 218. Dejamette v. Com. (75 Va. 867), 156, 161. Delahaunt, R. v., 244. Delaney, R. v., 138. De los Santos v. State (26 S. W. 831), 336. Demerritt v. Randall (116 Mass. 331), 218. Despard, R. v., 294. Devcre v. State (5 Ohio C. C. 509), 71. Devoto V. Com.(8 Met.— Ky.— 417),72. Dewhirst, R. v., 89. Dick, People v., 801. Dick V. State (30 Miss. 593), 116,459. Dick V. State (87 Ala. 61), 237, 281, 326. Dickenson v. Fitchburg (18 Gray, 546), 163. Dickson, State v., 54, 147, 183, 354. Dill, State v., 49, 331, 332, 333. Dillon V. People (1 Hun, 679), 80, 101 , 209. Dimmitt, State v., 277. Dimmitt v. State (55 N. W. 531), 97. Dineen, State v., 328. Dixon, R. v., 50. Dixon V. State (15 Tex. Cr. App. 480), 298. Dobbs u.^ Justice (17 Ga. 624), 236. Doekstadoi", Stato v., 270. Dodge V. Bacbe (57 Pa. St. 421), 183. TASLE OF CASES. Doe d. Brainbridgo iv Brainbridge, 158. Doe d. Fleming v. Fleming (4 Bine. 266), 234. * Doe d . Jenkins v. Davfa (10 Q. B. 814). 215. Doe d. Mudd v. Suckermore (5 Ad. & E. 214), 216. Doe d. Perry v. Newton (5 A. & E. 514), 215, 219. Doe V. Tearford (8 B. & Ad. 897), 327. Doe V. Traver (Ry. & Moo. N. P. C. 141), 215. Doo V. Wallinger(Mann. Index. 131), Doggett, People v., 282. Dolly V. Morrid (10 Hun, 201), 159. Dofz V. Morris (201 Mo. 45), 161. Donahoe, State v., 281. Donnall, R. v., 146, 889,410. Donnell, R. v., 184, 142, 148, 248. Donnellan, R. v., 142, 146, 148, 389, 410, 416. Donnelly t». State (26 N. J. L. 601). 127, 332, 336. Donoghoe v. People (6 Park. Cr. R. 120), 270. Donohoe, State v., 265. Donovan, State v., 263. Donovan, State v. , 86. Dorsett, R. v., 64, 413. Dorsey v. State (1 Tex. Crim. App. 33), 243. Dougherty's Case (8 City Hall Rec. 148), 73. Douglas Peerage Case (3 Pothier, 337), 144. Douglas V. Mitchell (35 Pa. St. 440), 280. " Douglass, State v. , 263. Dove V. State (3 Heisk. 348), 819. Dowling V. State (5 Sm. & M. 664), 265. " Downing, R. v., 251, 283, 284, 472, Doyle V. State (5 Tejr, Cr. App. 442). 319. Drage, R. v., 73. Dredge, R. v., 358. Dreesen v. State (88 Neb. 375), 302. 381. Drew V. Prior (5 M. & Gr. 264), 213. Drory, R. v., 256. Drum, Com. v., 826. Dryman v. State (103 Ala. 130), 270. Duffin, R. v., 51. Duncan v. State (22 S. E. .324), 317. Dunham v. Dunham (6 L. R. 141). 848. ' Dunn, R. v., 78. Dunn V. People (109 III. 635), 332. Dupree v. State (33 Ala. 380), 251, 269. Durant v. Peonle (iH Minh- .351^ «0 Durett V. State (73 Ala. 404), 47, 53. Durham, R. v., 459. 607 (1 M'N. & G. Dursley, R. v., 95. Dyce Bomber's Case 138), 166. Dyer, R. v., 95. ISii! parte Humphrey (19 L. J. M. C). 471. Eagleton v, Kingston (8 Ves. 487). 222. ' Earle v. People (78 111. 829), 280, 459. Earles v. Pickens (5 C. & P. 542), 118. Early v. State (9 Tex. Crim. App. 476), 282, 875. ^ Earp V. State (55 Ga. 186), 115. Eastman, Com. v., 63, 219. Eastwood, People v., 56. Eberhardt v. State (47 Ga. 598), 113, 118. Echols V. State (81 Ga. 696), 104, 314. Eckert v. State (9 Tex. Crim. App. 105), 112, 118, 809. ^^ Eckman, People v., 306. Edge, R. v., 299, 370. Edwards, State v., 260. Edwards, Stater., 87. Egan v: Cowan (2 Irish Jurist, N. S.. 394), 219. Eiland v. State (53 Ala. 322), 122. Elder, R. v., 389. Eldridge, R. v., 317. Elizabeth v. State (37 Tex. Crim. App. ,329), 249. Elliott V. Van Buren (38 Mich. 49). 841. " Ellis, R. v., 64, 95. Ellis V. Buzzell (00 Me. 209), 343. EUwood, State v., 181, 184. Elmore v. State (96 Ala. 12), 138, 187. Ekham, Statev., 827. Elster, People v., 81, 85, 136. Emory, State v., 268, 265. Engleman v. State (2 Ind. 91), 367. En, State v., 81, 85. Enoch, R. v., 449. Eskridge v. State (25 Ala. 80), 113. Ettinger v. Com. (98 Pa. St. 388), 112, 138. ' Eubanks v. State (83 Ga. 63), 86. Eugene Aram's Case, 130. Evans, People v. , 370. Evans, State v., 353. Evans v. Evans, 360. Evening News, People v., 822. Every's Case, 467. Exall, R.u,, 803, 465, 466. Ezekiel, State v., 321. Ezell V. State (15 So. 818), 193. Fairchild, People v., 332. Fairchild v. Bascomb (35 Vt. 898). 158. '' Fanning v. State (14 Mo. 386), 133. Farler, B. v., 459. 608 TABLE OF CASES. SM Farmers' Bk. v. Whitehill (10 S. & R. 110), 214. Farmers' Ina. Co. v. Garrett (43 Mich. 389), 46. Farrington, R. v., 50. Faulk V. State (53 Ala. 415), 806. Faulkner, R. v., 117 Faulkner v. State (15 Tex. Crim. App. 115), 78, 83, 809. Faulkner v. Terr. (30 Pao. 905), 831. Fee V. Taylor (83 Ky. 359), 317. Felix V. State (18 Ala. 720), 360, 262. Felter, State v., 156. Fennill, State v., 116. Fenning, R. v., 251, 887. Ferguson, People v., 100, 208. Ferguson, R. v., 447. Ferguson v. Hubbell (97 N. Y. 507), 158, 166. Ferris, R. v., 49. Ferris, State v., 191. Ferrigan, Com. v., 67. Field V. State, 91. Fields, in Resp. Peck., 140, 126. Fields V. State (47 Ala. 603), 262. Fife V. Com. (80 Pa. St. 429), 116, 339. Finch V. State (1 So. 565). 125, Findley v. State (5 Biackf. 576), 801. Finlan v. State (13 S. W, 866), 311. Finley, People r., 321. Finn v. Com. (5 Rand. 701), 123, Fisher, R. v., 117. Fisher v. People (23 111. 283), 319. Fitter, R. v., 148, 256. Fitzgerald, State v., 380, Flagg V. People (40 Mich. 706), 113. Flanagan, State v., 303. Fletcher v. State (90 Ga. 468), 97, 885. Fletcher v. State (49 Ind. 124), 268. Flowers v. Fletcher (20 S. E. 870), 212. Flynn, People v., 241. Foley, People v., 801. Folkes V. Chad (4 T. R. 498), 153. Folsom, R. v., 185, Folsom V. Brown (25 N, H, 114), 342, Folwell, State v., 60, 346, Fong Ah Sing, People «,, 317. Foo Ching, People v., 268, Forbes v. Carothers (3 Y, 527), 153, Ford, State V,, 56, Ford, State v., 825, Ford V. State (71 Ala. 385), 319, 320. Forgey v. First Nat'l Bank (66 Ind. 123), 218. Forshner, State v. , 248. Fortner, State v., 118, Foster's Will (84 Mich, 21), 218, Foster, R, v., 72, Foster v. State (4 Tex. Cr. App. 246), 278, Foster v. State (52 Miss. 695), 82. Foulke, U. S. r., 880. Fowler, People v., 62. Fox r. Lambson (2 Halst. 276), 134. Frances, R. v., 157. Francis, R. v., 70. Frank, State v., 307. FrankUn v. State (31 S. W. 648), 886. Fraser, R. v., 278. Fraser v. State (55 Ga. 825), 41, 43. Frasier, People v., 97. Freeland's (Jase (1 City Hall Rec. 83); 361, 363. Freeman, R. v., 357, Freeman, State v., 113. Freeman, U. S, v., 361. Freeman v. Brewster (93 Ga. 648), 313. Freeman v. Freeman (31 Wis. 385), 344, 848. Freeae v. State (31 S. W. 189), 181. Frey v. Com. (7 Crim. L. Mag. 72), Fritz, State u., 216. Frost, R. v., 247, 259, 294. Fuhi-man, People v., 295. Fuller, R, v., 72, 74, 97, Furlong, State v., 78, 209, Fussell V. State (93 Ga, 450), 124. Gablick v. People (40 Mich. 292), 88, 91. Gabrielsky v. State (13 Tex, Cr, App. 428), 297, Gaines v. Com. (14 Wright, 319), 194. Galbrant's Case (1 City Hall Rec. 109), 74. Gallagher v. State (28 Tex. Crim. App. 347), 381, 311. Gallaher v. State (20 Tex. Cr. App. 247), 818. Gandolof v. State (11 Ohio St. 114), 264. Gammon v. Ruffln (151 Mass. 204), 822. Gannon v. People, 332. Gannon v. Stevens (13 Kan. 447), 87. Garbutt, People u,, 261, Garcia v. State (16 So. 228), 295. Gardelle, R. v., 147. Gardner, People v., 74, 270, Gardner, State v., 118, Garetz v. People (107 111, 162), 295, Garner, R, v., 116, 413. Garner v. State (28 Fla. 113), 252. Garrallv, Alexander (4 Esp. 87), 211. Garrett, State v., 149, Garrett v. State (97 Ala, 18), 367. 800, Gass, State v., 281, 806. Gassaway, People v., 80. Gay, Stater,, 212. Gay V. Gillelan (92 Mo, 250), 648. Gedicke. State v., 164. Geering, K. v., 67, 413. ii \y I I TABLE OP CASES. 509 Gentry v. McMinnis (8 Dana, 882). 153. " Genze, R. v., 473. George v. Surrey (M. & M. 516), 211. German, State v., 117. Getty, People v., 102. Gibbs, State v., 335. Gibson, People v., 192. Gibson v. Trowbridge Furniture Co. (96Ala. 857),212, 216. Giiabert, People v., 122. Gilbert, U. S. v., 29, 297, 366. Giles V. State (6 Oa. 276), 303, 326, ou7. Gill, R. v., 110, 111. Gill V. State (59 Ark. 422), 800. Gills V. Brown (9 C. & P. 601), 156. Ginger, State v., 160. Girard Coal Co. v. Wiggins (52 111. App. 69), 161. Oleason, People v., 263. Glenn, R. v., 244. Goersen v. Com. (106 Pa. St. 477). 395, 414. Goeus V. State (Tex. Crim. App. 31 S. W. 656), 84. Goldsmith v. State (16 So. 933), 260. Goldsmith v. State (32 Tex. Crim. App. 112), 200. Gooch, State v., 41. Good, R. v., 147, 374. Goodwin v. State (96 Ind. 550), 56, 161. Gordon, People v., 79. Gordon v. Parmnlee (15 Gray, 418), 343. Gordon v. People (33 N. Y, 508), 14 Gordon v. State (3 la. 410), 267. Gordon v. State (33 N. Y. 501), 108. Gorham, State v., 114, 115, 124. Gould. R. v., 206. Gowgill, People v., 263. Graham, R. v., 401,415. Graham, State v., 102. Graham, State v., 199. Graham v. Com, (16 B. Mon. 587), 295, 319. Graham v. Graham (50 N. J. 701). 351. Graham v. Nesmith (24 S. C. 296), 221. Graham v. State (29 Tex. App. 81) 270. Grand Id. Bk. Co. v. Shoemaker (31 Neb. 124), 215. Grant, R. v. , 46. Grant, State v., 56. Grant, States., 113. Grant v. State (06 Ala. 201), 118. Grant v. State (11 Ho. 915), 466. Gravely v. State (38 Neb. 871), 319. Graves v. People (18 Col, 170), 387, 409, 466. Graves v. State (12 Wis. 591), 80. Gray, R. r., 65. Gray, SUte v., 82, 87. Gray v. Com. (101 Pa. St. 380), 117. 867, 375, 878. ' Grear, State v., 117, 295. Grel)e. Statev., 141, 197. Green's Case (14 St.Tr. 1369), 136, 868. Green, People v., 127. Green, R. v., 71. Green v. State (69 Ala. 6), 252. Green v. State (17 Fla. 667), 195. Green v. State (13 Mo. 382). 124. Green v. State (12 Tex. Crim. Add. 51), 105. ^^ Greenacre, R. v., 147, 471. Greene v. Cromwell (1 City Hall Rec. 11), 259. Greenfield v. People (9 Va. L. J. 309), Greenfield v. People (85 N. Y. 75). 127, 188, 137, 198. Greenleaf v. Goodrich (101 U. S. 278), 155. Greenslade, R. v., 472. Greenwade v. Com. (12 S. W. 131). 117. " Green wall, People v., 264. Gregg V. State (17 So. 321), 386. Gregory v. Richards (3 Jones' L. 410), 88, 95. Gregory v. State (80 Geo. 603), 187, 200, Grielig v. People (66 Ind. 94), 320. Griffin, Com. v., 106, 131. Griffin, State v., 181. Griffin v. State (14 Ohio St. 55), 268. Griffith V. State (90 Ala. 583), 270. Griffiths V. Ivery (11 A. & E. 222). 215. ' Griffiths V. Williams (1 Cr. & J. 47). 215. '' Griggs V. State (59 Ga. 788), 197. Grimes v, Bowerman (92 Mich. 458). 81. ' Griswold v. State (24 Wis. 144), 124. Gronnall, R. v., 451. Grout, State v., 113. Guajardo v. State (24 Tex. Crim. App. 603), 85. Guetig V. State (66 Ind. 94), 161, 166, 296. Guflfery v. Deeds. 214. Guidici, People, v. 331. Guitterman v. Liverpool.etc. , Steamv ship Co. (83 N. Y. 358), 156. Gulerette v. McKinley (27 Hun' 820), 129. Gulf C. & S. F. Ry. Co. v. Ellis (54 Fed. 481), 138. Gumberg v. Treusch, (61 N. W. 872), 32 Gunnell, U. S. r., 280. Gustat'son, State v. , 260. Guttridge, R. v., 299. M II 3 510 TABLE OF CASES. *• .1 ill liana v. Green (57 N. Y. S. B. 54fl). 168. ' liaggerty, People v., 74, 261. Haggerty, R. v., 180. llagy, R. v., 298. riaigh, R. v., 261, 274, 275, 276. Haines, R. v., 188. Haldane v. Harvey (Burr, 2484), 188. Hale, Stater.. 80. Hale V. State (16 So. 387), 832. Halifax's Case (B. N. P. 298), 235 Hall, People v., 890. Hall, People v., 862. Hall, R.V., 71,90. Hall V. Barnes (82 11 228), 341. Hall V. People (39 Midi. 717). 808. Hall V. Rankin (87 la. 261), 102. Hall V. State (182 Ind. 317). 264. Hall V. State (40 Ala. 698), 200, 262. Hall V. Van Vranlslin (64 How. Pr. 407), 210. Halleck, State v., 66. Hainerton v. Hamerton (2 H&ee. Con. 13), 344. Hampton i>. State (1 Tex. Crim, App. 652), 234. 291, 836. Hand, People v.. 43, 194. Handcock, People v., 260. Handley, R. i'.,449. Handline v. State (6 Tex. Crim. App. 347), 128. Hannah v. State (1 Tex. Crim. App, 582), 80. ^^ Hanson, R. v., 388, 407. Hanson, State v., 296. Harborns, R. v. , 284. Hardin v. State (8 Tex. App. 653), Hardtke v. State (67 Wis. 552), 264. Hardy, Com., v. 261. Hardy, R. v., 275. Hardy v. U. 8. (23 Wash. L. Rep. 826), 116. Hare, People v., 185, 381, 459. Harnian, Com. v., 30, 829, 330. Harnian, State t'., 118. Harmer, R. r., 85. Harper, U. S. v., 826, 332. Harrigan, State v., 296. Harrington v. Fry (1 Ry. & Moo. 90), 212. Harriot v. Sherwood (82 Va. 1), 218. Harris, People v., 30, 161, 387, 408. 489,479. Hariis, R. v., 65. Harris v. State (28 Tex. Cr. App. 308), 449. Harrison v. State (37 Ala. 154), 265. Harrison v. State (83 Ga. 129), 317. Harrison v. State (6 Tex. Cr. App. 42), 281, 309. Hart V. Hart (2 Low. Ch. 207), 349. Hart V. State (15 Tex. Crim. App. 203), \41,89. *^*^ Hart V. State, 22 Tex. Crim. App. 563), 132. Hartless v. State (82 Tex. 88), 261. Hartley, State v., 206. Hartung, People v., 896. Harvey v. Smith (17 Ind. 272), 1. Harvey v. U. S. (18 Ct. CI. 470), 166. Harwood v. Goodright (Cowp. 87), Hastings, R. v., 450. Hastings, State v., 218, 219. Hastings v. Stetson (180 Mass. 76). 189. Hatch V. State (6 Tex. Crim. App. 348), 219. Hatchett v. Com., 385, 393, 894, 895. Hathcock v. State (88 Gn 91), 268. Hatfield, R. v., 49. Hawkins, Cora, v., 52. Hawkins, R, v., 251. Hawkins, R. v., 286. Hawkins v. Grimes (13 B. Mon. 567), 217. Hawkins v. State (12 S. W. 490), 281. Haworth, R, v., 299. Hay den, Stater., 884. Hayes, R. v., 374. Haynes v. McRae (101 Ala. 818), 142. Hazard v. Vickery (78 Ind. 64), 218. Heacock v. State (13 Tex. Crim. App. 97), 217, 219. Heald v. Thing (45 Me. 392), 163. Hearn, R. v., 116. Heath, R. v., 187. Heath, U. S. v., 826. Heath v. Waters (40 Mich. 157), 141. Heaton, R. v., 198. Heaton v. State (2 Mo. 166), 115. Heed, , State v., 880. Heed v. State (25 Wis. 421), 85. Heine v. Com. (91 Pa. 145), 262. Heldt V. State (20 Neb. 498), 308. Henderson v. Hackney (16 Ga. 521), 215. Hendrickson, People v., 42, 44, 46. Henley, R, v., 370. Hennesey, Peofde v., 117. Henrich, State v., 295. Henry, State v., 260. Heron v. State (22 Fla, 86), 53. Herrick v. Swomley (56 Md. 439), Heslop V. Heslop (82 Pa. St. 537), 144. Hester v. Com. (39 S. W. 875), 336. Hester v. Com. (85 Pa. 189), 76. Hewett, R. v., 89. Hicks' Case (1 City Hall Record, 66), 124. Higgins, R. v., 124. HiU V. Com. (2Grat. 594), 50. Hill t'. State (11 Tex. Crim. App. iS2), 117. TABLE OF CASES. fill Hill V. State, (16 So. 901), 253. Hilland v. State (81 N. E. 859), 2tt2. Hills V. Home Ina. Co. (129 Ma«s. 845), 162. 168. Himrod v. Oilman (147 111. 293), 217, Hindniaish's Case (2 Leach C. C. 871), 365, 867. Hinley.R. v., 78. Hirshraan v. People (101 III. 568), 863. ' Hitohcock V. Burgett (88 Mich. 501), 165. Hitchcock V. Munger (15 N. Y. 102). 843. Hobbs, Com. v., 897. Hooker v. State (30 S. W. 873), 31 1. Hodge, State t^., 80, 88. Hodge V. State (98 Ala. 10), 188, 194, 199,831. Hodgea, R. v., 187. Hodgkins v. State (89 Ga. 761), 882. HodgkiHH, R. v., 266, 306. Hodgson, R. v., 71. Hoffman v. W. M. & F. Ins. Co. (1 La. Ann. 216), 341. Hogan V. State (86 Wis. 226), 261. Hogard, Stater., 306. Hogher, R. v., 359. Holden, State v., 99, 109, 877. Holland v. State (131 Ind. 568), 260. HoUenschirt, State v., 124. Holler V. State (37 Ind. n^ ofii. Holmes, R. v., 243. Holmes, R. v., 116. Holmes v. Goldsmith (147 U. S. 150 : 37 L.Ed. 118), 36. Holmes v. State (88 Ala. 26), 266. 267. Holroyd, R. v., 148. Holt, R. v., 59. Hopkins, R. v., 371. Hopkins, State v., 213, Hopkins, U. S. v., 325. Hopkins v. McGuire (35 Me. 78), 214. Horn V. State (15 So. 278), 300. Home, R. v., 299. Hornek v. People (134 111. 139), 352. Horning, State v., 260. House V. State (19 Tex. Cr. App. 227), 309. Houser v. State (58 Ga. 78), 97, 301, 307. Housh I'. State (61 N. W. 371), 287. Houston, State v. , 72. Hovey, People v., 141. How, People v. , 497. How's Case (2 Wheel. Cr. Cas. 410), 497. Howard, State v., 183. Howard v. Providence (6 R. 1. 514). 163. Howard v. State (8 Tex. Crim. App. KQ\ QA it; iaa "^^ Howell, R. v., 95. 2 Howell, State v., 262, 817. Hoyt, State v., 56. Hoyt V. State (130 U. S. 480), 825, 328, 881, 885. Hubby V. State (8 Tex, Crim. App. 597), 76, 192. ^^ Huff V. Nims (11 Neb. 868), 216. Hughes, People t)., 827. Hughes, State v., 123. Hughes, U. 8, v., 880. Hughes V. Rodgers (8 M. & W. 128), 219. Hughes V. State (8 Humph. 76), 88, 87. Humanson, State v., 85. Humphreys' Case, 306. Humphreys, Kx parte (19 L. J. M. 0. 189), 471. Humphreys, R. v., 190. Humphreys, R, v., 225,827,861, 381. Hunt V. Com. (18 Grat. 757), 78. Hunt V. Lowell Gas Light Co. (8 AUen, 169), 160. Hunt V. State (1 Cr. L. Mag. 234), 800. Hunter, R. v., 299, 247, 276, 278. Hunter, State v., 802, 554. Hunter V. State (43 Ga. 483), 41, 43. Hurley, People v., 87, 91. Hussey v. State (87 Ala. 121), 263. Huston V. Schindler (46 Ind. 88), 218. Hutchins' Case (4 City Hall Rec. 119). 214. ' Hyatt V. State (25 S. W. 291), 83. In re Gordon's Will (28 A A. 268), 220. 222,224,225. In re Will of Norman, 161. In re Rockey's Estate (155 Pa. St. 455), 221. Ingalls V. State (48 Wis. 647), 79, 88. 87,459. Ingram, State v., 80, 102, 104. Ings,R. u.,887, 407. Irving, People v., 268. Isaacs, R. v., 108. Jachne, People v., 117, 118. Jack V. State (20 Tex. Crim. App. 656), 103. ^'^ Jackson, Com. v., 59. Jackson, People v., 243. Jackson, State v., 188. Jackson, U. S. v., 263. Jackson v. Burnham (39 Pac. 577). 161. Jackson v. Phillips (9 Cowp. 94), 314. Jackson v. Statv (9 Tex. Crim. Add. 114), 54, 107. Jackson v. State ''"» Tex. Cr. Add. 190), 309. *^*^ Jackson v. State (17 So. 388), 836. Jacobs, State v., 190. James v. State (45 Miss. 572), 308, 322, 324. 512 TABLE OF CASES. ;k' Jameson v. State (25 Neb. 185), 833. Jamison v. People (145 111. 857), 137, 181, 383, 320. Jane, The, v. U. S. (7 Cranch, 863), 308,303. Jane v. Com. (2 Met. 80), 837, 333. Jarrell v. State (58 Ind. 298), 829. Jarvis, R. v., 116, 459. Jarvis, R. v., 73. Jarvis v. Vanderford (21 S. E. 803), 317. Jeiferds v. People (5 Park. Cr. Rep. 533), 57, 126. 801. Jefif arson, State v., 830. JeflFerys, R. v., 180, 186. Jenkins, State v., 81, 83. Jenkins v. State (62 Wis. 49), 16, 89. Jennett, State v. , 95. Jennings, State v., 82, 817. Jernigan v. State (10 Tex. Crim. App. 546), 380. Jerome, State v., 367. Jerry et al. v. Townsend (9 Md. 145), 160. Jewett V. Banning (31 N. Y. 27), 29. Jim V. State (15 Ga. 585), 116. Joe V. State (88 Ala. 422), 116, 324. Joe V. State (6 Fla. 591), 385. Johnson, People v., 98, 105. Johnson, People v., 80, 169, 277, 330, 498. Johnson, R. r., 331, 224. Johnson, State v., 195, 800. Johnson, State v., 333. Johnson, State v., 370. Johnson, U. S. v., 38. Johnson v. Com. (115 Pa. 369), 179, 185. Johnson v. Com. (17 Cent 354. Johnson v. Com. (29 Grat 345. Johnson v. Deverne (19 Johns. 134), 213. Johnson v. State (18 Tex. Crim. App. 385), 54, 129. Johnson v. State (59 Ala. 87), 117. Johnson v. State (47 Ala. 62), 37. Johnson v. State (94 Ala. 35), 263; Johnson v. State (14 Ga. 55), 36, 831. Johnson v. State (27 Neb. 687), 281. Johnson v. State (84 Neb. 257), 263. Johnson v. State (34 S. W. 285), 449. Johnson v. U. S. (157 U. S. 830), 337. Johnston Harvester Co. v. Milburn (73 Mich. 265), 226. Jones, People v., 478. Jones, People v., 117. Jones, R. v., 459. Jones, R. v., 53. Jones, R. v., 133. Jones, R. v., 265. Jones, R. v., 127. Joues, State v., 336. . L. J. 428), 796), 76, Jones, State v., 42, 44. Jones, U. 8. v., 262. Jones V. Greaves (86 Ohio St. 2), 823. Jones V. Gregory (48 111. App. 380), 3. Jones V. State (18 Tex. Cr. App. 1), 293. *^ Jones V. State (71 Ind. 66), 156. Jones V. State (76 Ala. 8), 365. Jones V. Tucker (41 N. H. 547), 168. Jordan, State v., 85, 87. Jordan v. Osgood (109 Mass. 457), 58. Josephs, People v. , 363. Jupitty V. People (84 III. 516), 360. Kabrick, State v., 270. Kane v. Hibernia Ins. Co. (89 N. J. L. 697), 841. Karr v. State (14 So. 851), 252. Keasby, State v., 826. Keddick, State v., 820. Kee V. State (28 Ark. 155), 263. Keeler, State v., 353, 354. Keener v. State (94 Mo. 811), 254. Keener v. State (18 Ga. 149), 56. Kehoe v. Com. (85 Pa. St. 127), 300. Keithler v. State (10 Sm. & M. 192). 117. " Keller, U. S. v., 333. Kelley v. People (17 Colo. 130), 291. Kelly, People v., 371, 295. Kelly, State v., 79, 87. Kelly, State v., 61. Kelly, Stater., 80. Kelly V. People (55 N. Y. 565), 128, Kelly V. State (6 Ga. 12), 41, 42. Kellogg V. Krauser (14 S. & R. 187), 158. " Kelsey v. Bush (2 Hill, 440), 122, 124. Kemp V. State (28 Tex. Cr. App. 519), 458. Kempner v. Churchill (9 Wall. 362), 38. Kendall v. State (55 Ala. 196), 123. Kendig v. Overhulser (58 la. 195), 341. " Kendrick v. State (55 Miss. 486). 128. Keniston v. Rowe (16 Me. 83), 184. Kenneda v. State (16 Tex. Cr. App. 358), 809. *^*^ Kennedy, People v., 16. Kennedy, People v., 190. Kennedy, State v., 83. Kennedy, State v„ 42, 44, 82. Kennon v. State, 117. Kenrickv. Kenrick (4 Hagg. Ecc. R. 114), 850. Kent, State v., 101, 209. Keogh, R. v., 260. Kepper, State v., 37. Kern, People v., 41. Kerr, People r., 263. Kerr, People v., 332, 338, 466, 479. Kerwin v. Hill (37 ill. 209), 217. TABLE OF CASES. 513 Kesler, People v., 42, 45. Kidd V. State (88 Ala. 58), 88 Kilgore, Statev., 268. Killam, B. v., 150, 277. Kimball, Com. v., 288. Kimbrough v. State (76 Qa. 787). 143. Kmg, State v., 819. King, State v., 187, 265. King, State v., 252. King, U. S. v., 74, 326, 381. Kmg V. State (13 Lea, 51), 190. Kmg V. State (19 Tex. Cr. App. 658), OOO, King V. Whitley (1 Lead. Cr. Cas. 185), 59. Kinney, State v., 259. Kinney v. Flynn (2 R. I. 319), 214. Kirby, People v., 259, 261. Kirkaldie v. Paige (17 Vt. 256), 142. Kirksey v. Kirksey (41 Ala. 626), 216. Kistler V. State (54 Ind. 400), 259, 262. ' Kirkwood, R. v., 71. Klinger, State v., 319. Knapp, Com. v., 113. Knapp, Statev., 243. Knickerbocker v. People (43 N Y. 177), 80, 96, 108. ^ Knight, State v., 167. Knowles, State v., 117. Knowles v. Scribner (57 Me. 496). 342. " Kohl, R. v., 303. KoUock V. State (60 N. W. 817), 311. Knel V. Com. (5 Bush, 362), 819. Krmg V. Mo. (107 U. S. 221), 3. La Page, Stater., 58. Lackin, State v., 41. Laird, People v., 262. Lake, People v., 164. Lake v. People (1 Park. Cr. R. 495), 49, 156, 295. Lamb, People v., 262. Lambkin v. State (12 Tex. Crim. Add. 341), 154. '^^ Lamson'a Case, 397. Lan V. Fletcher (62 N. W. 357), 156. Lanes, People t>., 117. Lang V. Ferrant (55 Minn. 415), 238. Langdon v. People (133 111. 382), 112. Langford v. State (82 Neb. 788), 330. Langford v. State (33 Fla. 333), 260. Langford v. State (17 Tex. Crim. App. 445), 106. Langraead, R. v„ 95. Lann v. State (35 Tex. App. 495), 262 Larison v. Larison (30 K J. Eq. 100), Laros v. Com. (84 Pa. 200), 295. Latham v. Latham (30 Grat. 307), 350. Law V. M.'^rriU (S Wend. 268), 113. Law V. State (33 Tex. 37), 29. Lawless v. State (4 I«a, 173), 808. Lawler, State v., 43. Lawrence, State v., 819. Lawson, R. v., 385, 488. Lawton v. Sweeney (8 Jurist, 964), Laxton, Statev., 269. Ln,avto R. v., 158. Le Comte v. U. S. (23 Wash. L Rep. 482), 836. Leav. State (29 S. W. 900), 270. Leabo, State v., 481. Leabo, Stater., 380. Leach, Com. v., 186. Lee, People v., 260, 326. Lee, Statev., 264. Lee V. State (3 Tex. App. :, Cr. 889), 262. App. 366). Lee V. State (Id Tex, 309. Lee V. State (76 Qa. 498), 380. Lee Gam, People v., 371, 272. Leeper v. State (29 Tex. Cr. Add. 154), 309. *^^ Lehman v. State (18 Tex. Crim. Add. 174), 80, 90. ^^ Leigh V. People (118 111. 872), 888. Leonard, Com. v., 262. Leonard v. Terr. (2 Wash. Terr. 881). 326, 327, 465. ^' Leppere, State v., 268. Letty V. State (Tex. Crim. App. Feb. 9th, 1893), 265. ^^ Levigne's Case (17 Nev. 446), 263. Levison v. State (64 Ala. 530), 123 Lewis, Statev., 69. Lewis V. Sapio (Moo. & Mai. 89), 69, Lewis V. State (96 Ala. 6), 135. Pauer (16 Tex. App. Sutherland Lexington Ins. Co. v. Ohio 334), 340. Lincecum v. State (39 833), 264. Lincoln B. H. R. Co. v. (62 N. W. 859), 156. Lindley, State v., 260. ^"t8^,S36,W^ ^*^ ^' ^- ^^^' ^' Link v. Sheldon (136 N. Y. 1), 156 164. ' Linn v. Sigsbee (67 111. 75), 155. Lmton V. State (88 Ala. 216), 266. Little V. Ragan ^3 Ky. 331), 109. Livmgstone v. People (16 So. 801), Locke, Com. v., 139. Lockhart v. State (29 Tex. Crim App. 35), 80. Loeflfner v. State (10 Ohio St. 59) Logan V. State (16 Ky. L. Rep. 508), Loggins V. State (33 Tex. Cr. Add. 364), 336. Long, State v., 117. 614 TABLE OF CASES. I Long V. First German Congregation (6;j Pa. St. 156), 168. Long V. State (22 Oa. 40), 122. Long V. State (88 Oa. 491), 382. Long V. State (28 Neb. 88), 260. Longborne, State v., 116. Loolier.R. v., Ill, 300, 256, 286, 472. Lopea V. State (20 S. W. 395\ 801. Lord Mayor, R. v., 471. Louiaville, etc., Ry. Co. v. Falvey (104 Ind. 409), 161. Love V. State (15 Tex. Cr. App. 568), 298. Loveden v. Loveden (4 Eng. Ecc. R. 461) 846. Lovett V. State (60 Oa. 267), 109. Lovett V. State (17 L, R. A, 705), 336. Lovelady v. State (14 Tex. Cr. App. 545), 862, 880. Loveless, State v., 300. Lowder v. Com. (8 Bush, 432), 824. Lowenberg v. People (5 Park. Crim. Rep. 414), 263, Luby V. Com, (12 Busli, 1), 112. LuU, Stater., 102. Lunning v. State (1 Chand. 178), 150. Lynch v. Com. (77 Pa. St. 206), 330. Lynn v. Com. (13 S. W. 74), 241. Lyon V. Lyman (9 Conn. 55), 218. Lyons, People v., 66, MoAUiflter, Statev.,270. McBee v. Bowman (89 Tenn. 183), 808. McCaliill, Statev.,55. McCallam, People v., 201. McCann, People v., 819. McCann v. State (18 Sm. & M. 471), 179. McCarthy, Com. v., 68. MoOartv v. Com. (20 S. W. 229), 156. McCarty v. People (51 111. 281), 269. McCleskey v. State (13 S. W. 997), 810. McClure v. Purcell (6 Ind. 380), 290. McConnell v. Del. Mut. Ins. Co. (18 111. 228), 841. McConkey v. Oaylord (1 Jones' L. 94), 212. McCorkle v. Binns, 214. McCue V. Com. (78 Pa. St, 185), 41. McCuUough V. State (48 lud. 109), 874. McCullough V. State (23 Tex. Cr. App. 620), 333. McCurdy, People v., 198. McDaniel, R. v., 244. McDauiel v. State (53 Ga. 258), 196. 198 McDonald, State v., 122. McDonald v. State (23 S. W. 403), 109. McDonel v. State (18 Cent. L. J 374), 110, 191, 366. McDou^al, R. v., 874. McElvame, People v., 158. McElven v. State (80 Ga. 869), &d3. McFall, People v., 116 McGhee, U. S. v., 61, 166. McGill V. State (35 Tex. App. 499). 107, 197. 378, 876, McGinnis, State v., 369, McGloin, People v., 118. McGregor v. State (16 Ind. 9), 78, 824,327. McGuire v. People (44 Mich. 286), 826, 832. McGuire v. State (37 Miss. 269), 324. MoGulre v. State (48 Tex. 310), 836. McGungill, People v., 36a McHenry v. State (40 Tex. 48), 134. McKay v. Lasher (42 Hun, 270), 217, McKay v. Overton (65 Tex. 82), 166. McKechnie, R. v., 101, 30a McKee, Pennsylvania v., 814. McKenzie, V.S.V., 881. McKenzie v. State (43 Ga. 334), 819. McKie, Com. v., 292, 298. McKioley, R. v„ 233. McLain, State v.. 818. McLain v. Com. (99 Pa. St. 86). 47 172, 260. McLain v. State (80 Tex. App. 482), McLain v. State (18 Neb. 154), 217. McLarens, R. v., 92, 249. McMahon, People v., 136. McMahone, Com. v., 181, 185, 277. McManuD v. State (36 Ala. 285), 54. McMechem v. McMeachem (17 W. Va. 684), 158. MoMeen v. Com. (114 Pa. St. 300). 42, 44, 109, 829, 413. McMillan, U. S. v., 316. McMillan v. State (7 Tex. Cr. App. 143), 461. ^'^ McMjirphy, State v., 263. McNaghten, R. v., 157, 819. McNair v. Com. (2 Cas. 388), 214. NcNair v. State, 80. NcNally, State v., 263. McQueen v. State (83 Ind. 72), 859, 262. MoWhorter, People v., 143. Mack V. State (48 Wis. 271), 42, 45. Mackey v. State (20 Tex. Cr. App, 603), 809. Maclin v. State (44 Ark. 115), 262. Macomber v. Scott (10 Kan. 835), 318. Madigan, State v., 61. Mahan, Statev., 134. Maher v. People (10 Mich. 312), 51. Mahn, Statev., 821. Maier, Siaie v., Im >Qt. L. J 8. 869), &d2. 1. App. 499), [nd. 9), 72, Mich. 286), 8. 269), 324. . 210), 826. i c. 46), 124. n, 270), 217. sx. 82), 16S. )a 214. . 834), 819. St. 86). 47. , App, 482), 154), 217. 'l85, 277. i. 285), 54. em (17 W. a. St. 800), c Cr. App. 19. m, 214. id. 72), 259, 2. 1), 42, 45. :. Cr. App, 15), 262. Kan. 335), , 212), 51. TABLE OF CASES. ^"^I'La ?^^ ^"*»» Wales (L. R. 1894, A C 57), 61. ^ Mall ., State v., 137. Mar.orick, State v., 200. Manchester, State v., 820. Manluff, Statev.,259. Manning, R. v., 824, 836, 874, 462, Manning «. John Hancock Mut. L Ins Co (100 U. S. 693), 280. Mansfield, R. v., 92, 116. Mangano, R. v., 98, 100. 222 **' ^"^y <^* ^"""y- Mass. 161). Marion, State v , 849. Marion v. State (7 Neb. 820). 42 47 Marion v. State (16 Neb. 349), 406 Marion v. State (20 Neb. 228) 375." Markham, R v., 180. Marler v State (67 Ala. 55), 41. Martin, R. u, 49, 71 Martin v. Com. (5 Leigh, 707), 72. Martin v. State (28 Ala. 71), 68 Martin v. Taylor (1 Wash. C. C. 1), Mason v. State (43 Ala. 532), 59. 127 Massey v. Bank (104 III. ,S80), 217. " Matler v. State (67 Ala. 55), 240. Matthews, State I'., 115. Matthews, State v. , 300. Mattliews v. State (9 Lea (Tenn ) 128). 116. uenn.), Matthews v State (55 Ala. 187), 117 Maxwell, State v., 62, 302. May, R. v., 418. May V People (60 111. 119), 832. Maybnck's Case, 415. Mayenc's Case, 200, 258. ""^^Mr^^ir" '"""'^ ^'^^ (^« Maxagora, R. r.,50. Meagher, U. S. r., 381. i Means, U. S. v., 261, 336. ' Mejster V. People (31 Mich. 99), 68. Me cik V. State (24 S. W. 417), 382. Mellor, R. v., 274, 294. Melville's Case (29 How. St. Tr. 7C3), Melvin V. Easby (1 Jones' L. 386), 164 Mendum v. Com. (6 Rand. 704), 162, Meniaka v. State (55 Ala. 47), 116 Mernck, Statev., 82. Merriman, Com. v., 62. Merrill, State v., 265. Merriman, State v., 267. Merritt v. Shaw (33 N. E. 657), 218 ^'^TlJ^^'l^jf^^^^ (2 Tex. Cr.' App. Meyers, Com. v., 114. filS Meyers v. Com. (88 Pa. St. 181), 819 ^'""llV' ^'"'"' ^® ^"*'*' ^^^' 825. S|^i*'«j- State (27 Ala. 80), 806. Midland R. Co., R. v., 140. Miles V. Loomis (75 N. Y. 288) 215 Ml est,. State (93 Ga. 117), 276, JSs. Ml ain, ,St8te v., 828. AliUard, Pwplew., 165, 298 862 flfii „., 885. 890, 392. 438. ' ' ^' '^• Miller, Com. v., 827. Miller. State v., 122 124 1«K ma ^,.,,237,249,300,362: • ^^' ^^' Miller V. Eraser (4 Id. 65), 227 Miller^t- Miller (20 N. J. Eq. 217), '''"S-sWs^''"'-^^^'^^^'^^' Miller V. State (40 Ala. 64). 116, 122 Miller V. State (21 H. E. 128). 116 Miller V. State (25 Wis. 884). 113 Milling, State v., 803. Millward, R. v., 71 ^^''^aj'Jti^e & St. P.R. Co. v. Kellogjt ,,. (94 U. S. 472). 156. ^^ Mingo, U. S. r.. 52. {j!J"f'',rV^'^P'*' (8 Colo. 440), 838. Mitchell. Com. v., 118 Mitchell, People v.. 218. ?|j,''f/ ,,^®^"^** ('■^^ la- 329), 217. , Mookfoid, R. v., 358. Moelchen. State v., 44. Moett, People v., 262. Mondragon v. State (83 Tex. 480) 89 Monke r. Butler (1 R^oll. R. 88^285 " Monghan v. State (57 Ga. 102), 3W, ^''"374; ^*^*^ ^^^ '^^^- ^'- ^PP- ^). Monroe v. State (23 Tex. 210), 835 Montgomery. Com. v., 108. Montgomery, U. 8. v., 118. Montgomery v. State <13 Tex. Crim App. 669). 81, 310. Moody, State v., 138, 137. Moody V. Rowell (17 Pick. 490), 214 Moody 1,. State (37 Tex. App!' 287); M"°^J8Adm. V. Crowder(72Ala. 79), Moore v. Ellis (89 Wis. 1O8), 166. Moore v. State (17 Ohio St. 521), 156 Moore v. State (64 Ga. 449) 248 Moore v. U. S. (91 U. S. 270); 216. Morehouse «. Matthews (2 Comst. 014). 154. ''"isrsKif'^^^-^'^-^pp- Morey, State v., 881. Morgan. Com. v., agg Morgan, K. v., 219. Morgan, State v., 452. 616 TABLE OF CASES. 1 tfll w Iff^f- Morgan v. State (48 Ohio St. 871), 831,886. Morgan v. State (88 ;k.la. 228), 203, Moore, State v., 96, 118. Morris, State v., 198, 199. Morrison v. Porter (85 Minn. 428), 216, 218. Morrow, People v., 478. Morse v. State (6 Conn. 9), 158. Mortimer v. Craddoclc (12 L. J. N. S. 166), 139. Mose V. State (86 Ala. 211), 116, 118, 835 Mossoni V. Ivy (10 St. Tr. 616), 228. Mott, U. S. v., 119. Moultrie, State v. , 95. Moulton V. State (88 Ala. 116), 267. Mountford, R. v., 188. Moxley, State v., 48, 44, 801. Mudd V. Suckermore (5 A. «&£. 705), 210. Mullen, Com. v., 265. Muller's Case, 327. Mulling v. Com. (20 S. W. 1035), 118. Mullins V. People (110 111. 42), 333. Munco, State v. , 52. Munson v. Atwood (30 Conn. 102), 348. Murieta v. Wolfhagen (2 C. & K. 744), 213. Murphey v. State (11 Colo. 170), 273. Murphy, R. v., 338. Mui-phy V. People (63 N. Y. 590), 47, Murphy v. State (31 Fla. 166), 318. MurpJiy V. State (17 Tex, Cr. App. 645), 309. Murray, People v., 300. Murray, State I'., 243. Murray v. State (1 Tex. Crim. App. 417), 53. Murrell v. State (46 Ala. 89), 127, 133, 137. Muslim, State v., 330. Myers v. Foscan (8 N. H. 47), 214. Myers v. State (6 Tex. Cr. App. 1), 831. Nash, State v., 326. Nation, R. v., 167. Nave V. Tucker (70 Ind. 15), 161. Neal V. Tesperman (1 Jones L. 446), Nelins u. State (9 So. 193), 211, 216. Nelson, People v., 301. Nelson, State v., 386. Nelson v. Sun Mutual Ins. Co. (71 N. Y, 459), 163. Nelson v. U. S. (Pet. C. C. 235), 28. Neverson, U. S. v., 129. New Jersey Traction Co. v. Brabban (32 Atl. 217), 155, 163. Newcomb v. State ^37 Miss. 3fi3>. 9fl.'5, I Nevis V. Look (Plowd. 412), 822. Newman v. State (26 Ga. 687), 108. Newton, People v., 196. N.wton, R. v., 158, 176. Newton, U. S. f.,261. Newton t<. State (92 Ala. 88), 36. Newton v. State (21 Fla. 58), 160. Nicholas v. Com. (31 S. E. 864), 87, 01, 381. Nichols V. Winfrey (79 Mo. 546), 348. Nwlke, People v., 268. Noftsinger r. State (7 Tex. Crim. App. 801), 86. Noonan v. State (55 Wis. 258), 166. Norfolk V. Gaylord (38 Conn. 809), 368. North. State v., 87. North V. McConnell (42 Mich. 473), 218 Northup, State v., 260. Norwood, State v., 806. Norwood V. State (20 Tex. Crim. App. 306), 86. Nugent V. State (18 Ala. 521), 242. O'Brian v. Doe (6 Ala. 787), 836. O'Brian v. People (48 Barb. 274), 116. O'Brien, Com. v., 269. O'Brien v. O'Brien (30 Atl. 875), 347. O'Bryan, People v., 324. O'Coiglev, R. v., 130. O'Connell, Com. v., 95. O'Connell v. People (87 N. Y. 877), 296. O'Connor, State v., 260. O'Kernau, R. v., 185. O'Neal. State v., 270. O'Neil, People r., 346. O'Neil, People v., 87. Ober, Statev.,268. Oddy, R. v., 58. Odle V. State (18 Tex. Crim. App. 612), 106. *^ Oflford, R. v., 49. Ogburn V. State (87 Ga. 173), 267. Ogle, People r., 131. Ogletree v. State (28 Ala. 698), 233, 2U. Ohio Rd. Co. V. Irwin (27 111. 178), 162. Okeman, R. v., 35, 150. Oliver, R. v., 185. Ormiston, State v., 261. Ormsby V. People (53 N. Y. 472), 270. Orr, State v., 303. Orr V. State (34 Ga. 342), 108. Ortwein v. Com. (76 Pn, St. 414), 320. Oscar, State v., 828, 338. Ostrander. State v., 336. Outerbric' > • . Patterson, People v., 62. Patterson, State v., 115. Patterson v. Patterson (20 Atl 850. Patterson v. People (46 Barb, 819. Patterson v. State (41 Neb. 588), 267. Patza, State v., 69. Paul V, State (14 So. 684), 238, 280. Pauli V. Com. (8» Pa. 432), 265. Paulk.Stateu., 295. Paxton, State v., 801. Payne v. State (57 Miss. 848), 84. Pay ton, State v., 380, Pearce, State r.,265. Peck V. Callaghan (95 N. Y. 73), 219. 220. Pendergast, U. S. v., 218. Penhallow, People v., 122. Pennsylvaina v. McKee (Addison. 88), 214. People V. Abbott (36 Pac. 129), 82. People t-. Ah Chung (58 Cal. 398), 481. People V. Ah Fook (64 Cal. 380), 129. People V. Ah Ki (20 Cal. 177), 80. People V. Ah Sing (51 Cal. 373), 833. People V. Ah Sing (59 Cal. 400), 81. People V. Aiken (66 Mich. 460), 281, 883. People V. Alviso (55 Cal. 230), 377. People V. Antonio (37 Cal. 404), 80, 95. People V. Armstrong (56 Cal. 397), People V. Arthur (93 Cal. 536), 301. People V. Ashe (44 CJal. 288), 260, 328. People V. Bagley (16 Wend, 53), , People I'. Barrie (49 Cal. 343), 113. People V. Beck (o8 Cal. 42), 303, 336. People V. Beck with (108 N. Y. 67), 8(WI. People V. Bell (49 Cal. 486), 263, 295. People V. Bemia (51 Mich. 422), 87, 105. People V. Bemmerly (87 Cal. 117), o28* People V. Bennett (40 N. Y. 187), 801, 363, 365, People V. Benson (6 Cal. 281), 348 People t>. Blake (1 Wheel. Cr. cks. ^"'^'-fn"'* ^'"^ (1 I^n^o. 483), 164, People V. Bowman (81 Cal. 566), 362. People V. Brannon (47 Cal. 96), 380, 888. People t. Brooks (131 N. Y, 821). 263. '• People V. Buchanan. 391. People V. Burns (2 Park. C. R. 84), 116, People V. Burns (67 Mich. 587), 106. People V. Chambers (18 Cal. 382), 80, People u. Christensen (85 Cal. 568), u«0. People f. Clark (2 Hun, 520), 76. People V. Clements (42 Hun, 863). 262. '' People V, Cochran (1 Wheel, Cr. Rep, 81), 96. People V. Coff man (24 Cal. 230), 319. People V. Conroy (83 Hun, 110), 53. People r. Cox (70 Mich. 347), 330, 331. People V. Craine (34 Cal. 191), 306. People V. Crapo (76 N. Y. 288), 268. People V. Cronin (34 Cal. 203), 478. People V. Davis (64 Cal. 440), 807. People V. Davis (3 Cal. 106), 123. People u. Davis (19 N. Y. S. 781), 336. People V. De Graff (1 Wheel. C. C. 205), 153. People V. Dick (83 Cal. 113), 801. People V. Doggett (62 Cal. 27), 262. People V. Eastwood (14 N. Y. 5^32), 56. People V. Eckman (73 Cal 582), 306. People V. Elster (5 Crim. L. Mae. 687), 81, 85, 128. ^ People V. Evans (72 Mich. 367), 270. People V. Evening News (51 Mich, 11), 322, People V. Fairchild(48 Mich. 31), 332, ^"21^ u. Ferguson (1 City Hall Rec, 65), 100, 208. People V. Finlcy (38 Mich. 483), 331, People V. Flynn (95 Mich. 276), 241. Peop e V. Flynn (78 Cal, 511), 105. People V. Foley (59 Mich, 553), 301, an"' ^^^^ ^^ feing(64Cal, 353), People u. Foo Ching (78 Cal, 169), People V. Fowler (63 N. W. 573), 62. 51S TABLE OF CASES. P««ple V. Frasier (3 Wheel. Cr. Rep, 55), 97. ^ People V, Fuhrman (61 N. W. 8«a), 385. People V, Garbutt (17 Mich. 9), 261. People r. Gardner (1 Wheel. 28), 74, 270. People t>. Gardner (3 Wheel. Cr. Ren. 2;}),74. ' People V. 0«.s8avray (28 Cal. 404), 80. People V. Getty (4» Cal. 581), 103. People V. Gilwon (106 Cal. 458), 103. People p. Oilabert<89 Cal. (W8), 133. People V. OieaHon (1 Nev. 176), 363. PiBople V. Gonzales (85 N. Y. 49). IW. People V Gordon (40 Mich. 716), 70. People V. QowfoM (98 Cal. 596), 268. People V. Green (1 Park. Crim. Rep. 11), 137. * People V. Greenwall (108 N. Y. 296), 364. People V. Guidici (100 N. Y. 508), 881, People V. Haggerty (1 City HaU Rec. 195), 74, 261. People V, Hall (48 Mich.), 890. People V. Hall (43 Mich. 485), 863. Hand, 43, 194, Handcock (7 Utah, 170), People r. People V. 260. People V Hare (57 Mich. 605), 185, 381, 459. Pfeople V. Harris (136 N. Y. 428), 30, 161, 887, 408. 489, 479. People V. Hartung (4 Park. Cr. R. 256), 896. People V. Hendriokaon (1 Park. Cr. R. 406), 42, 44, 46. People t>. Hennesey (15 Wend. 147), People V. Hovey (92 N. Y. 554), 141. People V. How (2 Wheel. Cr. Cas. 410), 497. People r. Hughes (32 N. E. 1105), 827. People V. Htirley (60 Cal, 78), 87, 91. People V. Irving (2 N. Y. Cr. R. 171), 268. People V. Jachne (4 N. Y. Crim. Rep. 478), 117, 118. People V. Jackson (3 Park. C. R. 301), 243. People V. Johnson (2 W^heel. Cr. Cae. 361), 98, 106. People V. Johnson (149 N. Y. 850), 80, 169, 277, 330, 408. People V. Jones (3 Wheel. Cr. Cas. 462), 478. People V. Jones (31 Cal. 565). 117, People V. Josephs (7 Cal. 129), 263. People V. Kelly (35 Hun, 295), 271, 295. Peoplo V. Kennedy (33 N. Y. 141), 16. People r. Kennedy (93 N. Y. 141), 190. People V. Kern (61 (^al. 244). 41.' People V. Kerr (6 N, Y. Rupp, 674), 368, People V. Ken (6 N, Y. Cr. R. 406). 333, 888, 486, 479. People V. Kesler (8 Wheel. Cr. Cas. 18), 43, 45. People V. Kirby (1 Wheel. Crim. Caa. 64), 269, 261. People r. Lnird (60 N. W. 457), 862, People V. Lake (18 N. Y. 868), 164. People V. Ijamb (3 Keves, 860), 263. People V, Lane (49 Mich. iMO), 1 17, People V. Lee (72 Cal, (528). 360, 826. People V. Lee Gam (69 Cal. 662), 871, 872. People V. Lyons (17 N. E. 791), 66. People V. McCallam (8 N. Y, Cr. Rep. 189), 301, People V. McCann (16 N. Y. 86), 819. People V. McCurdy (88 Cal. 576), 198. People V, McElvame (131 N. Y. 350). 158, People V, McFall (1 Wheel, Cr. Cas. 107), 116. People V. McGloin (91 N. Y, 241), 113, People V. McOungill (41 Cal. 428), 268. People V. McMahon (15 N. Y. 884). 126. People V. McWhortcr (4 Barb, 488), 142. " People V. Malaspina (57 Cal, 628), 276, People V. Marble (30 Mich. 309), 827, People V. Marks (4 Park. Cr. R. 168). 298. People V. Messersmith (61 Cal. 246). 295. People V. Movers (3 Hun, 6), 188, 187. People V. Milgate (5 Cal. 127), 288. People V. Millard (58 Mich. 68), 165, 393, 352, 384, 385, 390, 3.>3. 438. People t), Mitchell (92 Cal, 59i., 218. People V. Moett (23 Hun, 60), 263. People V. Morrow (60 Cal. 142), 478. People V. Murray (41 Cal. 66), 300. People V. Nelson (85 Cal. 421), 301. People V. Newton (31 Fla. 240), 196, People V. Noelke (1 N. Y. Cr. R. 496). 268, People V. O'Bryan (1 Wheel. Cr. Cas. 21), 324. People V. O'Neil (109 N. Y. 251), 346. People V. O'Neil (6 N. Y. Cr. R. 274), 87. People V. Ogle (2 N. Y. Crim. Rep. 349), i;Jl. * People V. Padillia (42 Cal. 585), 801. 303,306. People V. Palmer (109 N. Y, 110 ) 345, 3fi5, 874. People V. I'almer (06 Mich, 580), 54. People V Paolick (7 N. Y. Cr, R. 30). 248, 259. '' TABLE or CASES. nu Pcop e V. PetorNon (08 Mich. 27), 258 Peop e V. Phdlen (19 Mioh. 492), 842 Peop V. Pliipiw (iJtt cal. 826), 281. ' People V. Pomeroy (3 Wheel. Crira. Rep. 159), 74. People I'. Powell (87 Cal. 848), 65. People V. Preston (1 Wheel. Cr. Caa 41), 87. People t'. QiiackenbosH (1 Wheel. Cr Cns. 91), 188. People w. Itankin (3 Wheel. Cr. Caa. People V. Reaney (4 N. Y. Cr. R. 1), PeoP'« /'• Rilpy (8 N. Y. Cr. R. 374), 150. People^ V. Robinson (1 Park. Cr. R, People V. Ri)lfe (61 Cal. 540), 158. People V. RuhenBtoin, 41, 48, 248 People V. Sands (5 N. Y. Cr. R. 261), People V. Sansome (84 Cal. 449), 75, 98, 305. People t'. Schryvor (42 N. Y. 1). 319 332,386,854. ^-^hniv, People u. Scott, (4 N. Y. Cr. R. 306), People V. Severence (67 Hun, 182), People V. Shuler (28 Cal. 400), 303. People a Smith (39 Pac. 40), 168, People V. Smith (15 Cal. 408), 116. Peop e V. Smith (59 Cal. 601), 268. People V. Smith (1 Wheel. Cr. C. 131), ^^'*m)%92"^^'' (33 N. Y. S. R. People V. Stanley (47 Cal. 113), 133. People V. Stephens (4 Park. Cr R ) 393,396.597,409,412.435. ^' People V. Stiebenvoll (62 Mich. 329), People u. Stone (7 N. Y. Cr. R. 480), People V. Stott (4 N. Y. Cr. R. 306), People u. Strong (30 Cal. 157), 302, OOD* People V. Sweeney (133 N. Y. 609), Peoples. Sweeney (41 Hun, 433), 143. People V. Thayer8(l Park. C. R. 595), OoO. People V. Thiede (38 Pac. 837), 156. People V. ThraU (50 Cal. 415), 117 People V Thurston (1 Park. Crim. R. 49), 154. P^o^e f ^TurreU (1 Wheel, Cr. Rep. 24, 478. People V. Walker (88 Mich. 156), 281. 855)!"58^ '' (4 N. Y. Cr. R. People V. WMner(62 N. W. m), 114. PeopU^v. Wayman (128 N. Y.m), People V. White (14 Wend. HI), 269. Peop e V. White (34 Wond. 520) 270. Ooo), 134, ^^262 ''■ ^"•'™*" ^^ H»n. 187), ^^fts"" ^*"*'"°'' ^^ Hun. 520), People V. Wilson (85 Cal. 44). 271 People f, Wilson (30 Mich. 488), 81. People^ V. Wilson (d Park. Cr. R. 199) o7o. ' People V. Winters (20 Cal. 653), 76 People V. Witherington (59 Cal. 598), People V. Wohlform, 328. ^°^®^''ioy°•<'°" (' ^'"'°- L. Mag. 84), 184. " People V. Wolff (95 Mich. 625), 888. People V. Wong AI Foo (89 Cal. 180), People V. Wyman (15 Cal. 70), 124 Perknis v. Concord Ry. Co. (44 N H. 223), 158. • ^*» «. Perkins v. State (32 Tex. 109), 92. Perkins v. Stickney (132 Mass. 217), loo. Perry's Case, 121. Perry u Dubuque S. W. R. Co, (36 la. 106), 3. Perry v. State, 85. Perry v. State (87 Ala. 80), 281, 326. Perry v. State (44 Tex. 473), 52. Perry «. State (41 Tex. 483), 79, 85. Perrys, R. i>., 362. Peterson, People v., 258. Peterson V. Toner (80 Mich. 560), 56. 266"' ^^^ ^^' ^' ^^'- '^^^' Phalen, People v., 342. Pharr v. 8tf>te (9 Tex. Crim. Am) „, 129), 37. 98, 99, 263. *^" m' ^*^^ ^^^ ^^''" ^'■- ^PP- **^)' Phelps, State v., 113. Phelps, State v., 61. Kielps, State v., 108, 118. Philhps, State v., 135. Phillips, State v., 92. Phillips V. State (29 Ga. 105), 234, 846. Phipps, People v., 281. Phipps V. Slate (3 Cold. 344), 151, 807. Pierce, Stater.. 338. i'ierson v. People (70 N. Y. 486), 47. 520 TABLE OF CASES. Pik«« V. Chicago (40 N. E. 687), 163. Pinckford v. State (18 Tex. Crim. App. 468). 44. Pinkham v. Cockrell (87 Mich. 265). 212. Pitman v. State (22 Ark. 354), 252. Pitsinger, Com. v. . 122. Pitts V. State (42 Mias. 472), 117, 862, 862. Place, State v.. 69. Pogin V. State (12 Tex. Crim. App. 288), 105. ^^ Pogue V. State (12 Tex. Cr. App. 288), 304, 313, 336. Polk V. State (86 Ark. 117), 162, 166, 385, 892. Pollak r. Harmon (94 Ala. 420), 142. Pollard V. State (Tex. C/im. App. 26 S. W. 70), 80, 91. ^^ Pollock V. Pollock (71 N. Y. 137). 848, 349. ' Pomeroy's Case, (117 Mass. 148), 296, 820. Pomeroy, People v., 74. Pond V. State (55 Ala. 196), 123. Poolton, R. v., 449. Pope V. Askew (1 Ired. L. 16), 214, 217. ' Porath V. State (63 N. W. 1061), 62. Farter, State v., 332. Porter, Stater., 69. Porter v. State (55 Ala. 95), 113. Porter v. State (1 Tex. Cr. App. 394), Porterfleld r. Com. (28 S. E. 852), 82. Posey, State v., 42, 43. Potter, State v., 113. Potter V. State, (85 Tenn. 88), 254. Potts, State v., 329, 331. Powell, People v., 55. Powell V. Ford (2 Stark. 164), 211. Powell V. Milburn, (3 Wils. 355), 235. Powers V. State (16 Tex. 546), 800. Prather v. Com. (10 Crim. L. Mair. 890), 197, 322, 824. Prator v. State (15 Tex. Crim. App. 363), 84. ^^ Pratt, State v., 122, 128. Pratt V. State (19 Ohio St. 217), 243. Preston, Peonle v., 87. Preston t'. State (8 Tex. Crim. App, 30), 36, 49, 136, 197. Price, State v., 296. Price V. Richmond & D. R. Co. (38 S. C. 199), 158, 165. Price V. State (8 Ohio St. 418), 116. Prince V. State (100 Ala. 144), 278, 995, 880. Puett V. Beard (86 Ind. 104), 128. PuUen V. State (28 Tex. Cr. App. Prirkey v. State (8 Heisk. 26), 808, 832. Puryea v. State, 28 Tex, Cr. App= 73), 863. Quackenbose, People v., 136. Quinn v. Huggins (63 Wis. 664), 161. V. Adams (3 C. & P. 600), 90. V. Alcorn, 388. V. Aldridge (3 F. & F. 718), 211. 1'. Allen (1 Mo, C. C. 154), 298. V. Angers, 448. V. Arden(8 London Med. Gaz. 36), 184. R. V. Arundel (1 Lewin's C. C. 115), R. V. Atwood, 459. R. V. Baines (31 St. Tr. 1991), 275. R. V. Baldry, 118, 116, R. V. Baldwin (21 L. J. M, c, 130), 246, R. V. Ball (1 CampbeU, 324 ; R, & R. R. V. Banks (1 Cox C. C. 238), 92. R. V. Baranelli (C. C. C. Ap. 1855), R. V. Barnard (19 St. Tr. 815), 257. R. V. Barnard (19 St Tr. 815), 257. R. w. Bartlett(7 C. & P. 832), 128, 412. V. Bartlett (7 C. & P. 832), 128, 412. V. Bate, 206, 447. V. Beards, 204. V. Belaney, 438. V. PeU, 51. V. Benjamin (C. C. C. June, 1885), 25d. * . V. Bickle, 388. . V. Bingham, 224, 250. . V. Bishop, 369. . V. Blandy (18 St. Tr. 1187), 28, 147, o37. . V. Bleaadale (2 C. & K, 765), 59, 73. . V. Bolam, 148. . V. Boober (5 Cox's C. C. 272). 249. , V. Booth, 171. V. Bowditch, 244. V. Bowman, 94. V. Bram (6 C. & P. 350), 449. V. Brennan (30 St. Tr. 79), 272, 277. V. Brindlev, 202. V. Britton'(l F. & F. 354), 195. V. Brook (31 St. Tr. 1135, 1137), 183, 185. V. Brooks (6 Cox C. C. 151), 92. V. Brown, V. Buish (1 Syme, 267), 247. V. Burdett (4 B. & Aid. 161), 18. 78,140,292,293,352. ' V. Burke, 369. V. Burt (5 Cox's C. C. 284), 268. V. Burton (23 L. J, M. 52 ; 6 Cox C. C. 298), 209, 558. V. Butler (2 C. & K. 221), 70. V. Byrne (18 St. Tr. 819), 183. V. O.-.ldcr (1 Cox C. C. 818), 413. V. Cane, 375. R R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R, R. R. R. R. R. R. R. R. R. R. R. R. R. p R. TABLE OF CASES. 621 R. «. Canning (19 St. Tr. 667), 244, «74. R. V. Carroll (3 East P. C. 400), 51. R. V. Carsewell, 221. R. V. Carter (15 Cox C. C. 448), 73. R. V. Cheverton (2 F. & F. 833), 370, 378, 874. R. V. Clark, 110. R. V. Clay (5 Cox C. C. 146), 243. «• ''• C'e^es (4 C. & P. 221), 67, 128, 875. R. V. Clinch (3 P. & F. 144), 181. K- «• Cochran (Gumey, 479), 124, 292, 474. R. V. Coke (16 St. Tr. 54), 51, 250. R. V. Coke (R. & R. 653), 69. R. V. Cole, 266. R. V. Coleman, 127, 135, 180. R. V. Collier (4 Jurist, 708), 255. R. V. Connor (1 Cox C. C. 233), 471. R. V. Cook, 147, 876. R. V. Cooper (2 C. & K. 318), ), R. V. Coots (Cox C. C. 138), 98. R. V. Coppard, 250. R. V. Corder, 888. R. V. Cotton (12 Cox C. C. 400), 68, R. V. Couch (4 Cox C. C. 163), 211. R. V. Courtnage, 188, 257. R. V. Courvisier, 186. R. V. Cowper (13 How. St. Tr. 1106), o79, 380. R. V. Coyle, 244. R. V. Crickmer (16 Cox C. C. 701), 60. R. V. Crossfield (26 St. Tr. 215), 54, 130, 142, 247. R. V. Crossley (26 St. Tr. 218), 337. R. V. Crowhurst (1 C. & K. 370), 85. R. V. Crump, 188. R. V. Crutchley (7 C. & P. 814), 449. R. V. Cruttenden (6 Jurist, 267), 90. R. V. Dale (16 Cox C. C. 708), 68. R. V. Davidson '81 St. Tr. 217), 259, 265,451. ' R. V. Dawtrey, 108. R. V. De la Motte (21 St. Tr. 810). 140, 214. ' R. V. Dean (6 Cox C. C. 28), 243. R. V. Debley (2 C. & K. 818), 85. R. V. Delahaunt, 244. R. V. Delaney, 133. R. V. Despard (28 St. Tr. 521), 294. R. V. Dewhirst (2 Stark. 614), 89. R. I'. Donellan, 142, 146, 148, 889. R. V. Dixon (2 M. & S. 11), 50. R. V. Donnall, 146, 389. R. V. Donnell, 184, 142. 148, 248. R. V. Dossett (2C. & K. 306), 64, 413. R. V. Downie, R. V. Downing, 251, 283, 284, 473. R. V. Drage (14 Cox C. C. 85), 78. R. V, Dredge M Cox ZH!i\ HKg R. V. Drory, 256. R. V. Duffin (R. & R. 865), 61. R. V. Dunn (1 Moo. C. C. 150), 78. R. V. Durham, 459. R. V. Dursley (6 C. & P. 899), 95. R. V. Dyer, 95. R. V. Edge, 299, 370. R. V. Elder, 389. R. V. Eldridge (R. & R. 441), 117. R. V. Elhs (6 B. & C. 145), 64. R. V. Ellis, 95. R. V. Enoch (5 C. & P. 589), 449, R. v-Exall (4 F. & F. 922), 803, 465, R. V. Farler (8 C. & P. 106), 459. R. V. Farrington (R. & R. 209), 50. R. V. Faulkner ( R. & R. 481), 117. R. V. Fennell (50 L. J. M. C. 126), 116. R. V. Penning, 251, 387. R. V. Ferpuson, 447. R. V. Ferrers (19 St. Tr. 885), 49. R. V. Fisher (1 Leach, 286), 117. R. V. Fitter, 148, 256. R. V. Folsom (4 F. & F. 108), 185. R. V. Foster (6 Cox C. C. 521), 72. R. V. Frances (4 Cox C. C. 57), 157. R. V. Francis (12 Cox C. C. 612). 70. R. V. Fraser, 273. R. V. Freeman, 257. R. V. Frost (Gurney, 766, 749), 247, 259, 294. R. V. Fuller (R. & R. 308), 72, 74, 97. R. V. Gardelle, 147. R. V. Gardner (4 F. & F. 346), 1 16, 418. R. V. Geering (27 L. J. M. C. 215), 67, 418. R. V. Genge, 473. R. V. GiU, 100, 111, R. V. Glenn, 244. R. V. Good, 147, 374. R. V. Gould, 206. R. V. Graham, 401, 415. R. V. Grant (4 F. & F. 322), 46. R. V. Gray (4 F. & F. 1102), 65. R. V. Green v3 C. & K. 209), 71. R. V. Greenacre (8 C. & P. 82), 147, R. V. Greenslade (11 Cox C. C. 412). 472. ''' R. V. Grownall, 451. R. V. Guttridge (9 C. & P. 471,) 299. R. V. Haggerty (6 Cel. Tr. 19), 130. R. V. Hagy (2 C. & P. 458), 298. R. V. Haigh (31 St. Tr. 1122). 261, 274, 275, 276. R. V. Haines (3 P. & F. 144>, 183. R. V. Hall (1 Cox C. C. 231), 71, 90. R. V. Handley(13 Cox C. C. 79), 449. R. V, Hanson, 338, 407. R. V. Harborns (2 Ad. & E.), 284. R. V. Hardy, 275. R. V. Harmer (3 Cox C. C. 487), 85. R. V. Harris (4 F. & F. 342), 65. R. V. Harvey (2 B. & C. 257), 50. R. V. Hastings (7 C. & P. 152), 459. 522 TABLE OF CASES. ir 'I R R R, R, R. R. R. R. R. R. B. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R. R, R. B. R. R. R. B. R. B. B. R. R. B. B. B. R. B. B. B. . V. Hatfield (27 St. Tr. 1281), 4». . V. Hawkins, 251. . V. Hawkins (10 East, 211), 286. V. Haworth (4 C. & P. 234), 299. V. Hayes, 374. V. Heath, 187. V. Heaton (1 Lew. C. C. 116), 198 V. Hearn (1 Car. & M. 109), 116. V. Henley (1 Cox C. C. 112), 370. V. Hewett, 89. V. Higgins (3 C. & P. «»(«), 124. V. Hinley (1 Cox C. C. 12), 73. V. Hobson (1 Lew. C. C. 261), 337. V. Hodges, 187. «. Hodgkiss (7 C. & P. 298), 266, 306. V. Hodgson, 71. V. Holmes (L. R. I. C. C. 334), 243. V. Holmes (1 Car. & K. 248), 116. V. Holroyd (4 Cel. Tr. 167), 148. V. Holt (8 Cox C. C. 411), 59. V. Hooper (1 F. & F. 85), 359. w. Hopkins (8 C. & P. 591), 371. V. Home, 299. V. Howell, 95. V. Hughes (Cox C. C. 176), 84. "" milium ^®'^'°**'"' ^)' ^5' V. Humphreys, 190. V. Hunter, 247, 276, 278. V. Hunter (3 C. & P. 491), 299. V. Ings (33 St. Tr. 1135), 387, 407. V. Isaacs, 108. V. Jarvis, 116, 459. V. Jarvis (25 L. J. M. C. 30), 72. V. Jeffreys, 150, 186. V. Johnson, 221, 224. V. Jones (2 Camp. 132), 459. V. Jones (9 C. & P. 258), 53. V. Jones (2 C. «fc P. 629), 123. V. Jones (31 St. Tr. 310), 265. V. Jones (4 Cel. Tr. 344), 127 V. Keogh, 260. V. Killan (20 St. Tr. 1085). 277. " V. Kirkwood. 71. V. Kohl, 303. V. Langmead (9 Cox C. C. 464), 95. V. LawelJ, 111. V. Lawson, 885, 433. V. Layton, 158. V. Looker, 111, 256, 286, 472. V. Lord Mayor (5 Q. B. 555), 471. V. McClarens (3 Cox C. C. 425), 92, 249. V. McDaniel, 244. V. McDougal, 374. V. McKechnie, 101, 209. V. McKinley (33 St. Tr. 506), 233. V. MoNaghten (10 CI. & F. 200), 157 31fl V. Manning, 314, 326, 374, 462, 473. V. Mansfield (14 Cox C. C. 689), »2, U5. 150, R. V. Manzano (2 F. A F. 64), 98, 100. R. V. Markham, 180. R. V. Martin, 49, 71. R. V. May (1 Cox C. C. 236), 413. R. V. Mazagora ( R. & R. C. C. 291). 50. " R. V. Mellor(31 St. Tr. 1032), 274, 294. R. V. Melville (29 St. Tr. 1427), 139 R. V. Midland Ry. Co. (20 L. Mae. M. C. 145), 140. ^ R. V. Mill ward (R. & R. 245), 71. R. V. Mockford (11 Cox C. C. 16), 358. R. V. Morgan (1 Mon. & R. 134 n.). 219. " R. V. Mountford (1 Moody's C. C. 441), 188. R. V. Murphy (8 C. & P, 306), 808. B. V. Nairn (19 St. Tr. 1284), 148, 250. R. V. Nation, 167. R. V. Newton, 158, 175. R. V. O'Coigley, 130. R. V. O'Keman, 185. R. V. Oddy (20 L. J. M. C. 198), 58. B. V. OflFord (5 C. & P. 168), 49. B. V. Okeman, 35, 150. B. V. Oliver (1 Syme Bep. 224), 185. B. V. Palayo, 190. B. V. Palmer, 59, 142, 146, 231, 247, 389, 411, 428. E. V. Partridge (7 C. & P. 551), 89. B. V. Patch (Gurney, 171), 30, 147, 148, 185, 230, 305. R. V. Pate, 158. B. V. Perrys (14 St. Tr. 1312), 362. B. V. Poolton (6 C. & P. 399), 449. B. V. Reeve, 116, B. V. Beeves (9 C. & P. 25), 449. R. V. Bichards (1 F. & F. 87), 154. B. V. Richardson (2 F. & F. 343) 64 185. 204, 274, 486. ' R. V. Rjckman, 97. R. V. Riley (16 Cox C. C. 191), 243. R. V. Eoberts (1 Camp. 399), 63. R. V. Robinson, 151, 181. R. V. Roden (12 Cox C. C. 630), 68. R. V. Roebuck (25 L. J. M. C. 51) 70 R. V. Rogan (1 CoxC. C. 291), 268, B. V. Booke, 243, 250. R. V. Roper, 299. R. V. Ross, 369, 374. R. V. Rowton (L. &C. 520), 263, 269. R. V. Rudge, 371. R. V. Rush, 225, 276, 469. R. V. Sawyer, 182. B. V. Scarfe (20 L. J. M.C. 229), 299. ^247*^ 274 ^^^ '^'" ^* ^^^^' ^^^' B. V. Se'llis (7 C. & P. 856), 449. R. V. Sheppard (R. & B. C. C. 169), 50. R. V. Shrimpton (3 C. & K. 273), 269. R. V. Simon CIO Ht. Tr. fi«n\ 9!?h B. V. Simons (6 C. & P. 540),~il8. TABLE OF CASES. 323 R. V. Simpson, 451. R. V. Sissington (1 CoxG. C. 48), 843 R. V. Slaney (5 C. & P. 313), 218. B. V. Sleeman(l Dear. C. C. 240), 116 R. V. Smethurst, 152, 885, 388, 389, R. V. Smith (2 C. & K. 217), 83. R. V. Smith, 231, 305, 407. R. V. Smith, 71. R. V. Smith (27 L. J. M. C. 204), 249. R. V. Smith, 30. R. V. Smith, 204, 805. R. V. Smithies (3 C. & P. 832), 128. R. V. Spiggott, 204. R. V. Squires (19 St. Tr. 275), 243. R. V. Standard (7 C. & P. 673), 262 R. V. Standsfield (11 St. Tr. 1403), 35, B. V. Stephens (16 Cox. C. C. 387) 64, 860. " R. V. Steptoe (4 C. & P. 397), 124. R. V. Stewart, 453. R. V. Stubbs (7 Cox C. C. 48), 459. R. V. Sunderland (1 Lewin, 102), 71. R. V. Taverner (6 C. & P. 418), 71. R. V. Tawell, 69, 826,358, 362, 412. R. V. Taylor (5 Cox C. C. 138), 64. R. o. Taylor (6 Cox C. C. 58), 215. R. V. Thomas, 146. K- V. Thornton, 111, 200, 231, 256, 274, R. V. Thurtell, 258, 370, 478. R. V. Tippett, 117. R. V. Trannock, 21. R. V. Trilloe (1 C. & M. 650), 449. R. V. Turner (30 St. Tr, 1132), 57. R. V. Twvning (2 B. & Aid. 386), 235 R. V. UnkleH(8 Ir, L. T ~ R R. 38), 385. C. 485), V. Upchurch (1 Moo. C 116. R. V. Vamham, 98. R. V. Vaughan, 214. R. V. Walford (8 C. & P. 767), 471. R. V. Wall (28 St. Tr. 61), 299. R. V. Warrickshall (1 Leach's C. C. 299), 115. R. V. Warringham (2 Den. C. C. 447), 115. R. V. Watson (2 Stark. 155), 338. R. V. Watson (32 St. Tr. 583), 294. R. V. Webster (19 St. Tr. 494), 206. R. V. Wescombe, 148, 251. R. V. Westron, 160. R. V. Whalley, 240. R. V. Whitby, 244. R. V. White, 117, 183. R. V. Whiting (7 Car. & P. 771), 262. R. V. Whittle, 257. R. V. Wilka (7 C. & P. 278), 459. R. V. Williams (8 C. & P. 434), 222. R. V. Wilson, 125. R. V. Wilson, 84. R. V. Winslow (8 Cox C. C. 897), 68. R. V. Wishart (1 Syme's Rep. 22), R. V. Woo ^ Ki.jX-iga Richardson v. Eureka (96 Cal. 443), 156. Richardson v. Green (61 Fed. Rep. 423), 317. ^ Richardson v. Newcomb (21 Pick. 815), 214, 218. Richart, State v., 80, 83. Richman, R., 297. Ridley v. Ridlev (1 Cold. 323), 28. Riggs V. Powell (142 111. 453), 217. Rights, State v., 90. Rigsby, State v., 115, 116. Riley's Case (1 City Hall Rec. 38), 259, 261. Riley, R. v., 248. Riley v. State (88 Ala. 193), 199, 381, 302. Rippey v. Miller (1 Jones' L. 479), 332. Roberts, R. v., 68. Roberts, State v., 334. Roberts v. Gee (15 Barb. 449), 124. Roberts v. Johnson (58 N. Y. 613). 163. Roberts v. People (9 Col. 468;. Roberts v. State (17 Tex. C/im. App. 82), 80, 83, 84. Robertson v. State (9 Tex. Cr. App. 209), 460. Robinson, Com. v., 62, 63, 396, 414. Robinson, Com. v., 261. Robinson, R. v., 151, 181. Robinson, State v., 820. Robinson, State v., 158, 356. Robinson v. Blen (20 Ind. lOS), 138. Robinson Min. Co. v. Craig (4 N. Y. St. R. 478), 312. Robinson v. Randall (83 111. 521), 341. Robinson v. State (12 Mo. 592), 117. Robinson v. State (22 Tex. Crim. App. 690, see facts), 91. Robson V. Rocke (2 Add. 79), 222, 233. Rochester v. Chester (3 N. H. 349), 152. Roden, R. v., 68. Rodger v. Kay, 227. Rodman, State v., 86, 141, 259. Roe, State v., 8. Roe V. State (35 Tex. 33), 43, 46, 109. Roebuck, R. v., 70. Rogan, R. v., 368. Rogers v. Tyley (144 111. 653), 217. Romero, U. S. v., 336. Rooke, R. v., 343, 250. Rooker v. Rooker (12 W. R. 807), 179. Root's Admr. v. Rite's Admr. (1 Leigh, 216), 214. Roper, R. v., 299. Rose V. Ft. Nat'l Bank (91 Mo. 399), 215, 216. Rosier, State v., 142. Ross, R. v., 369, 874. Ross V State (29 Tex. 60), 810. Rothschild v. Am. Ins. Co. (62 Mo. i 356), 341. I Roundenbush, U. S. v., 260, Rounds, State v., 330. Rover, State v., 328. Rowell V. Fuller (59 Vt. 688), 210. 222. Rowton, R. v., 268, 269. Rudge, R. v., 371. Rudy V. Com. (128 Pa. St. 600), 295, 817. RuloflF V. People (18 N. Y. 179), 362. G63. Rush, R. v., 325, 376, 469. Rush, State v., 131. Rusher v. State (94 Ga. 368), 118. Russ V. Wabash West Ry. Co. (113 Mo. 45), 158, 160, 161. Rutledge v. Carruthers, 184. Ryan, State v., 806. Ryan v. People (79 N. Y. 694), 268. Ryan v. State (83 Wis. 486), 97. 188. 308, 838. Rye V. State (8 Tex. Cr. App. 158), 310. Sackett, Com. v. 370. Sahlinger v. People (103 111. 241), 82. Salazer v. Taylcr (33 Pac. 369), 218. Sanders, State v., 318. Sauer, State v. , 262, 381. Sawyer, R. v., 182. Scarf e, R. v., 299. Scheefer v. State (18 S. E. 552), 117. Schaffer, State v., 86, 181, 331. Schaifer, State v., 319. Schaubert v. State (88 Tex. Crim. App. 222), 288. Schiller v. State (14 Me. 502), 259. Schleagel, State v., 264. Schloss V. Creditors (31 Cal. 203), 3. Schneider v. Barney (113 U. S. 645), 155. Schcenwald, State v., 51, 800. 333. Schofield, R. v., 186, 247, 374. Schoolcraft v. People nil 111. 371). 197, 479, 306. Schulsler v. State (29 Ind. 894), 305. Schultz V. State (16 Tex. Crim. App. 144), 81. ^^ Schultz V. State (30 Tex. Crim. App. 308), 81, 298. Scott, Com. v., 63, 187, 456. Scott, State v., 315, 216. Scott V. Home Ins. Co. (1 Dill. 105), 841. Scott V. State (16 So. 925), 360. Scott V. State (19 Tex. Crim. App. 325), 281. Scroggins v. Scroggins (Wright, Sego, Com, f., 116. TABLE OF CASES. 525 I, 810. Co. (62 Mo. 260. ;. 688), 210, t. 600), 295, r. 179), 362, 63), 118. ly. Co. (113 184. 594), 298. 86), 97. 1»3, App. 153), [11. 241), 82. . 369), 213. 552), 117. ,331. rex. Crim. •02), 259. al. 203), 3. U. S. 645), 300. 333. 274. [7 111. 271), I. 894), 305. I!rim. App. jtim. App. 56. Dill. 105), 2C0. 'nm, App. (Wright, Sellis, R. v., 449. Senn, State v., 333. Sliaeflfer, Statev., 380. Shafner v. Com. (72 Pa. St. 60), 58, 63. Shannon v. State (57 Ga. 482), 196. Sharp V. State (17 Tex. Cr. App. 486), 809. Shaw, R. v., 198, 240. Sliaw V. State, 42, 44. Slieenan, Com. v., 114. Sheenan v. People (131 111. 22), 271. Shepard, Com. v., 64. Shepherd v. State (10 So. 663), 186. Shepherd v. State (44 Ark. 39), 88, 91. Sheppard, R. v., 50. Sheppard v. State (17 Tex. Cr. App. 74), 452. Shettleworth, State v., 828. Shipp V. Com. (11 S. E, 1065), 281. Sliorb V. Kinzie (80 Ind. 580), 218. Shriedley v. State (23 Ohio St. 180) , 72. Shrimpton, R. r.,269. Shropshire v. State (81 Ga. 589), 262. Shryver, State v., 318. Shultz V. State (13 Tex. 401), 334. Sibeny v. State (133 Ind. 677), 325, 330 331 SiebertV. People (148111. 571), 42, 44, 333. Simmons v. State (95 Ga. 224), 309. Simmons v. State (61 Miss. 243), 272. Simms v. State (10 Tex. Crim. App. 131). 179. Simon, R. v., 258. Simons, R. v., 118. Simpson, R. v., 451. Simpson, State v., 95. Simpson v. State (1 Ala. L. J. 289). 269. Sims V. State (14 So. 560), 330. Sissington, R. v., 243. Slade V. State (29 Tex. Crim. App. 381), 55. Slaney, R. v., 213. Slatterly v. People (76 111. 217), 128. Slavers, The. See Coggeshall v. U. S., 463. Sleeman, R. v., 116. Slingerland, State v., 263, 306. Smethurst, R. v., 152. 885, 888, 389. Smith's Case. See R. v. Smith. Smith, Varnham & Timms' Case, 492. Smith, Com. v., 873. Smith (Madeline), R. v., 231, 405, 407. Smith, R. u, 71. Smith, R. v., 249. Smith, R. v., 30. Smith, R. v., 88. Smith, State v., 330. Smith, State v., 386. Smith, State v., 270. >3iiisvn, L;, cj. X.'., 4vi, Smith V. Com. (10 Grat. 734), 116. Smith V. Com. (21 Grat. 800), 345, 854, 862. Smith t'. Com. (86 Ky.), 56. Smith V. Ferrers, 225. Smith V. Hickenbotham (57 la. 788), 158. Smith V. People (103 111. 82), 83. Smith V. Sainsbury (6 C. & P. 196 ; 24 E. C. L. R.), 218. Smith V. State (58 Ind. 341), 79. Snell, Statev.,87. Snell V. Bray (56 Wis. 156), 213. Snowden v. State (62 Miss. 100), 79, 88. Solita V. Yarrow (1 Moo. & R. 133), 214, 215, Sorter, State v., 268. Sparf V. U. S. (156 U, S. 51), 114. Sparks v. Com. (89 Ky. 644), 254. Spencer, State v., 319. Spies V. People (122 111. 1), 268. Spiggott, R. v., 204. Spoof V. U. S. (156 U. S. 51), 128. Spooner's Case (2 Chandler's Am. Crim, Tr.), 200. Spottiswood V. Weis (66 Cal. 525), 219. Springer V. Hall (83 Mo. 69«), 211, 215. Squires, R. v., 248. Squires, State v., 116. St. Clair v. U. S. (154 U. S. 124), 367. Standard, R. v., 262. Standsfield, R. v., 35. Stat« V. Ah Chuev (14 Nev. 79), 191, 354 377 State v'. AhKung (17 Nev. 361), 302. State V. Alexander (66 Mo. 148), 262. State V. Allen (103 N. C. 488), 806. State V. Alphonse (34 La. Ann. 9), 113. State V. Anderson (10 Ore. 448), 155, 160. State V. Arnold (12 la. 479), 81. State V. Austin (108 N. C. 780), 267. State V. Babb (76 Mo. 501), 96. State V. Baden (42 La. Ann. 395), 142. State V. Bailey (94 Mo. 311), 254. State V. Baker (23 Ore. 441), 67. State V. Baldwin (36 Kan. 1), 409. State V. Banks (43 la. 595), 233. State V. Barker (64 Mo. 382), 103. State V. Barrow (31 La. Ann. 691), 216. State V. Barth (25 S. C. 175), 260. State V. Bartlett (43 N TI. 324), 819. State V. Beasley (50 N. W. 570), 275. State V. Beatty (90 Mc 142), 82, 103, State V. Beebe (17 Minn. 241), 259. State I'. Best (15 S. E. 930), 394 State V. Betsall (11 W. Va. 70;)), 159. State V. Bloom (68 Ind. .54), 262, 263. State V. Blunt (59 la. 648), 272. State V. Blunt (91 Mo. 503), 330. State V. Bodekee (34 la. 520), 330. m 526 TABLE OF OASES. • 'm m state V. Bon in (34 Mo. 537), 87. State V. Bowman (80 N. Y. 482), 128. State V. Bowman (98 N. 0. 509), 156. State V. Bradley (04 Vt. 466), 56. State V. Brewster (7 Vt. 118), 92. State t'. Brockman (46 Mo. 506), 116. State V. Brown (48 la. 882), 115. State V. Brown (75 Mo. 317), 83. State V. Bruce (48 la. 533), 820. State V. Bucklty (60 la. 471). 108. State V. Bulla (89 Mo. 595), 82. State V. Bullard (100 N. 0. 486), 267. State V. Basil (122 Ind. 42), 281, 324. State V. Butterfleld (75 Mo. 297), 82. State V. Campbell, 50. State V. Carson (20 S. E. 824), 303. State V. Caster (93 Mo. 242), 87, 88, 90. State V. Chambers (45 La. Ann.), 179. State I'. Chee Gong (16 Ore. 534), 272, 295 " t State V.' Child (40 Kan. 482), 818. State V. Clark (54 N. H. 456), 218. State V. Clr-wson (32 Mo. App. 93), 62. State V. Clayton (100 Mo. 526), 826. State V. ChingLing(160re. 419), 331. Statt> V. Clements (47 La. Ann. 1088), State t'. Clinton (67 Mo. 380), 215. State V. Clouaer (69 la. 813). 300. State V. Cole (63 la. 695), 44. State V. Cole (94 N. C. 958), 156, 168. State V. Coleman (22 La. Ann. 455). 806. State V. Coleman (20 S. C. 441), 158. 332. State V. Collins (20 la. 85), :;77. State V. Cook (17 Kan. 392), 384. State V. Cordelli (19 Mo. 319), 354. 360. State t>. Cousins (50 la. 250), 142. State V. Covington (2 Bail. 569), 128. State V. Crabtree (111 Mo. 186), 55. State V. Cramer (40 Pac. 944), 191. State V. Crank (75 Mo. 406), 87. State V. Crawford (11 Kan. 32), 820. State V. Crawford (34 Mo, 200), 324, 326. State V. Creson (38 Mo. 372), 80, 265. State V. Cunningham (100 Mo. 525), 241. State V. Dalton (27 Mo. 12), 263, 205. State V, Daley (41 "Vt. 564), 300. State V. Daly (37 La. Ann. 576), 81, 83. State V. Davenport (7 S. E. 37). 302. State V. Davidson (30 Vt. 377), 846. 361. State V. Davis (73 Mo. 129), 103. State V. Davis (80 Mo. 53), 75. State V. Dayly (58 Vt. 442), 262. State V De Ranee (34 La. Ann. 186), State V. Di,-kson (78 Mo. 438), 54, 147. 183, 354. State V. Dill (18 Atl. 763), 49, 831, 888, 333. State V. Dimitt (88 la. 551), 277. State V. Dineen (10 Minn. 416), 828. State V. Dookstader (42 la. 486), 270. State V. Donahoe (78 Iowa, 486), 281. State V. Donohoe(22 W. Va. 761), 265. State V. Donovan (61 la. 278), 203. State V. Donovan (20 8. W. 340), 86. State V. Douglass (44 Kan. 618), 863. State V. Edwards (13 S. C. 30), 260. State V. Edwards (19 S. W. 91), 87. State V. EUwood (17 R. I. 763). 131. 184. State V. Elsliam (70 la. 581), 327. State V. Emery (59 Vt. 84), 368, 265. State V. En (10 Nev. 277), 81, 85. State V. Evans (33 W. Va. 417), 352. State V. Evans (58 Mo. 460), 830. State V. Ezekiel (33 S. C. 115), 221. State V. Fairlamb(12 Mo. 137), 138. State V. Felter (25 la. 67), 156. State V. Ferris (128 Mo. 447), 191. State V. Fitzgerald (20 Mo. App. 408). 330. State V. Flanagan (26 W. Va. 116). 808. ' State V. Floyd (15 Mo. 349), 88. State V. Folwell (14 Kan. 105), 60, 846. State V. Ford (3 Strobh. 517), 56. State V. Ford (21 Wis. 610), 835. State V. Forshner (48 N. H. 89), 843. State V. Fortner (48 la. 494), 118. State V. Freeman (1 Spears, 57), 118. State V. Frank (5 Jones L. 384), 807. State V. Fritz (38 La. Ann. 55), 816. State V. Furlong (19 Me. 225), 78, 209. State V. Gardner (Wr. 293), 118. State u. Garret (71 N. C. 85), 149. State V. Gay (94 N. C. 814), 212. State V. Gedicke (43 N. J. L. 86), 164. State V. Gee (92 N. C. 756), 306. State V. German (54 Mo. 536), 117. State V. Gibbs (10 Mont. 813), 335. State V. Ginger (80 la. 577), 160. State V. Glass (5 Ore. 78), 281, 306. State V, Gooch (94 N. C. 987), 41. State V. Gorham, (31 Atl. 845), 114. 115, 134. ' State V. Graliam (05 la. 617), 103. State V. Graham (74 N. C. 640), 199. State V. Grant (79 Mo. 113), 54, 56 State V. Grant (9 Shep. 171), IIP,. State V. Gray (37 Mo. 4<13), 83, 87. State V. Grear (39 Minn. 381), 117, State V. Grebe (17 Kan. 458), 141, 197. State V. (hiiT'n (87 Mo. 008), 131. State V. f!r.jut(33 Me. 171), 118. State 7\ Gustafson (50 la. 194), 260. Statfl V. Hale (18 Ore. 353), 80. Stn. 133. State V. State I'. 354. State V. 104. State V. State V. State i) ^30 State V. State u. State i\ State V, State V. State t>. State 1'. State V. 93, State V. State V. State V. State V. State t\ State i». State V. State V. State V. State V. State V. State V. State V. 83. State V. State r. State t'. State V. State V. State V. State r. State V, Harrigan 9 Houst. 369), 390. Hartley (40 Pac. 373), 20«. Hastings (53 N. H. 452), 218, Hayden (45 la. 11), 334, Heed (57 Mo. 253), 380. Henrick (63 la. 414), 395. Henry (50 N. C. 65), 360. Hodge (50 N. H. 510), 80, Hogard (13 Minn. 293), 300. Hofden (48 Minn. 350), 99. '. 877. HoUenscheit (61 Mo. 302), Hopkins (50 Vt. 316), 318. Horning (49 la. 153), 280. Houston (1 Bail. 300). 73. Howard (118 Mo. 127), 183. Howell (100 Mo. 628), 263, Hoyt (40 Conn. 330), 56. Hughes (89 L.^. Ann, 514), Humanson (32 Pac. Ill), 85. Hunter (50 Kan. 302), 302, Ingram (16 Kan. 14), 80, 102, Jackson (95 Mo. 623), 133. Jacobs (5 Jones, 259), 190. . Jefferson 43 La. Am. 995), Jennpt (88 N. C. C05), 95. Jenkins (2 Tvl. 37t'/, 81. 83. Jennings(81 Mo. 185), 83, 817. Jerome (33 Com. 265). 207. Jolmson (19 la. 230), 195, 800. Johnson (37 Minn. 493), 383. '■ Johnson (60 N. C. 152), 270. Johnson (1 Winst. 151), 84, 270. Jones (19 Nev. 305), 3.%. Jones (3 S. E. 507), 42, 44. Jordan (69 la. 500), 85, 87. Kabrick (39 la. 277), 270. Kearley (20 Kan. 77), 326. Keddick(7Kan. 143), 320. Keeler (28 la. 551), 352, 354. Kelly (73 Mo. 608), 79, 87. Kelly (57 la. 644), 80. 87. Kelly (27 Atl. 203), 61. Kelly(9Mo. App. 512),79. Kennedy (88 Mo. 341), 83. Kennedy (77 la. 208), 42, 44, Kent (65 N. C. 311), 101, 209. Kepper (65 la. 745), 37. Kilgore (70 Mo. 546). 263. King (1 Mo. App. 438), 319. King (78 Mo. 558), 137, 265. King (47 I^. Ann. 28), 252. Kinney (43 la. 394), 259. Kiinger (43 Mo. 127), 319. State V. Knapp (45 N. H. 148), 248. State V. Knights (43 Me. 11), 167. State V. Knowles (48 la. 598), 117. State V. Lackin (11 Nev. 814), 41. State V. LaPage (57 N. H. 245), 58. State V. Lawler (38 Miun. 816), 48, State V. Lawrence (57 Me. 574), 319. State V, Laxton (76 N. C. 216), 269. State V. Leabo (89 Mo. 247), 481. State V. Lee (22 Minn. 407), 264. State V. Leeper (78 Mo. 470), 830. State V. Leppere (66 Wis. 855), 263. State V. Lewis (80 Mo. 110), 69. State V. Lindley (51 la. 348), 860. State V. Long (1 Hayw. 455), 117. State V. Longborne (66 N. C. 588), 116. State V. Loveless (17 Nev. 424), 860. State V. Lull (37 Me. 246), 102. State V. McAllister (84 Me. 189), 270. State V. MoCahill (78 la. Ill), 65. State V. McDonald (73 N. C. 346), 182. State V. McGinnis (6 Nev. 109), 859 State V. McLain, 818. State V. McMurphy (52 Mo. 251), 268. State V. McNally (87 Mo. 644), 262. State V. Madigan (57 Minn. 425), 61. State V. Mahan (88 Vt. 841), 124. State r. Mahn (85 Kan. 186), 381, State V. Maier (86 W. Va. 757), 170. State V. Mallon (75 Mo. 355), 137. State V. Marabrick (65 la. 614), 300. State V. Manchester (46 le. 88), 880. State V. Manluff (1 Houst, Crim. E. 809), 859. State V. Marion (35 N. H. 22), 849. State V. Mathews (66 N. C. 106), 115. State V. Matthews (66 N. C. 106), 300 State V. Maxwell (42 la. 208), 52, 302. State V. Merrick (19 Me. 398), 82. State V. Merrill (18 N. C. 269), 265. State V. Merriman(34S. C. 576), 867. State V. Millain (3 Nev. 481), 828. State V. Miller (9 Houst. 564), 122, 124, 165, 168, 237, 249, 300, 363. State V. Miller (65 la. 60.) State V. Millinc (35 S. C. 16), 803. State V. Moelchen (53 la. 310), 44. State V. Moody (.50 la. 443), 133, 137. State V. Moore (38 S. W. 1086), 96, 118. State V. Morey (36 Pac. 878), 881. State V. Morgan (95 N. C. 641), 452. State V. Morris (84 N. C. 756), 198, 199. State V. Moultrie (33 La. Ann. 1146), 95. State V. Moxley (108 Mo. 374), 48, 44, 301. State V. Munco (12 La. Ann. 625), 52. State V. Murray (63 N. C. 31), 243. State V. Muslein (25 Mo. Ill), 330. State V. Nash (7 la. 347), 896. State V. Nelson (11 Nev. 334j, 336. 628 TABLE OF CASES. w •&. ,1 state V. Nelson (118 Mo. 124), 265. State V. North (95 Mo. 816), 87. State V. Northup (48 la. 68U), 260. State V. Norwood (74 N. C. 247), 306. State V. O'Connor (31 Mo. 389), 260. State V. O'Neal (29 N. C. 251), 270. State V. Ober (52 N. H. 459), 268. State V. Orniiston (66 la. 143). 261. State V. Orr (64 Mo. 889), 308. State V. OBcar (58 N. C. 305), 328, 333 State r.' Ostrander (18 la. 458), 326. State V. Outerbridge (82 N. C. 617), 189. State V. Owen (73 Mo. 440), 219. State V. Owens (79 Mo. 619), 96, 103. State V. Palmer (65 N. H. 216), 43, 133, 137. State V. Parsons (3S W. Va. 464), 854. State V. Patterson (73 Mo. 695), 115. State V. Patza (3 La. Ann. 513), 69. State V. Paulk (18 S. C. 514), 295. State V. Paxton (126 Mo. 500), 301. State V. FnyUm (90 Mo. 220), 880. State V. Pearoe (15 Nev. 188), 265. State V. Phelps (11 Vt. 116), 113. State V. Phflps (59 N. W. 471), 61. State V. Phelps (91 Mo. 478), 103, 113. State V. PhiUips (24 Mo. 457), 135. State V. Phillips (91 Mo. 478), 99. State V. Pierce (21 Md. 448), 833. State V. Place (82 Pac. 736\ 69. State V. Porter (64 la. 237), 332. State V. Porter (45 La. Ann.), 69. State V. Posey (4 Strobh, 142), 42, 48. State V. Potter (18 Conn, 166), 113. State V. Potts (20 Nev. 398), 329, 331 State" V. Pratt (88 N. C. 689), 122, 123 State v'. Price (41 Pac. 1001), 296. State t'. Rainsbarger (71 Iowa, 746), 42, 46, 74, 77, 265. State V. Rector (120 Mo. 635). 135. State V. Red (53 la. 69). 332. State V. Reed (53 Kan. 767), 44, 61. State V. Reed (39 Vt. 417), 248. State V. Reed (89 Mo. 168^ 137. State V. Reegan (5 Mo. .cLpp. 592), 268. State V. Reese (27 W. Va. 875), 81. State V. Reid (62 Me. 129), 335. State V. Reno (67 Id. 587), 36. State V. Renton (18 N. H. 169), 266. State V. Rhodes (15 S. E. 1038), 86. State V. Richart (57 la. 245), 80, 83. State V. Rights (82 N. C. 675), 90. State V. Rigsby (6 Lea, 554), 115, 116. State V. Roberts (15 Ore. 157), 384. State V. Robinson (20 W. Va. 727), 3J,0. State V. Robinson (117 Mo. 649), 156, 3{i6. State V. Rodman (62 la. 466), 86, 141, 269. State V. Roe (12 Vt. 93), 8. State V. Rosier (55 la. 517), 142. State V. Rounds (76 Me. 128), 830. suite V. Rover (11 Nev. 848), 828. State V. Rush (96 Mo. 199), 131. State V. Ryan (12 Mont. 397), 806. State V. Sanders (106 Mo. 188), 818. State V. Sauer (88 Minn. 488), 262, 381. State V. Schsefer (116 Mo. 96), 819. State V. Schaffer (70 la. 871), 86, 181, 331 State V.' Schleagel (50 Kan. 826), 264. State V. Schcenwald (31 Mo. 147), 51, 300, 383. State V. Scott (45 Mo. 802), 215, 216. State V. Senn (32 S. C. 392), 882. State V. Sheeflfer (89 Mo. 371), 880. State V. Shettleworth (18 Minn. 208), 828. State V. Shroyer (104 Mo. 441), 818. State V. Slingerland (19 Nev. 135), 268, 306. State V. Smith (21 Mo. App. 595), 380. State V. Smith 31 Atl. 206), 886. State V. Smith (50 Kan. 69), 270. State V, Snell (46 Wis. 624), 87. State V. Sorter (52 Kans. 581), 263. State V. Stimson (45 Me. 608), 95. State V. Spencer (1 Zab. 197), 819. State V. Squires (48 N. H. 364), 116. State V. Stanley (48 la. 221), 460. State V. Stebbins (29 Com. 403,, 459. State V. Sterrott (68 la. 76), 266. State V. Sterrett (71 la. 886), 269. State V. Stewart (47 La. Ann. ), 252 State V. Stevens (67 la. 557), 138. State V. Stic (38 la. 27), 66. State V. Stickley (41 la. 332), 154. State V. Streeter (20 Nev. 408), 331, State V. Summers (97 N. C. 702), 255. State V. Talmage (107 Nev. 548), 380. State V. Tatro (50 Vt. 483), 115. State V. Taylor (111 Mo. 538), 801, 310. State V. Taylor (117 Mo. 181), 182. State V. Taylor (118 Mo. 158), 295. State V. Taylor (20 S. W. 239), 90. State V. Teeter (69 la. 717), 52. State V. Terrell (12 Rich L. 821), 164. State V. Thomas (12 S. W. 668), 198. State V. Thomas (6 Law Rep. 64), 28. State V. Thompson (80 Me. 194), 218, 219 State V. Tippet (63 N. W. 448), 191. State V. Tozier (49 Me. 404), 270. State V, Turner (110 Mo. 196), 330. State V. Underwood (76 Mo. 630), 263. State V, Upham (88 Me. 261), 270. !•; TABLE Ol CASES. 089 state V. Valley (47 La. Ann. 183). 852. State V. Van Winkle (6 Nebr. 844), State V. Van Winkle (80 la. 15), 93 State V. Vatter (71 la. 557), 1)7. State V. Walker (84 Vt. 31)6), 1 1«. State V. Walker (41 la. 317), 90. SUtte V. Wallace (« N. H. 515), 63. State V. Ward (49 Conn. 589), 78. State V. Ward (89 Vt. 158). 151, 817. State V. Ward (81 Vt. 385), 318. State V, Ward (38 la. 583), 270. State V. Warford (15 S. W. 886), 90, state V. Waterman (1 Nev. 548). 296, 817. ' State V. Watklns (9 Conn. 47), 42. 46, 63, State V. Watt (47 La. Ann.), 114. Stater. Wells (1 N. J. L. 484), 861. State V. Wheeler (79 Mo. 866), 96. State V. White (89 N. C. 463), 88, 468, State V. White (85 Mo. 500), 248. State V. Whitten (18 8. W. 871), 841 State V. Wilkins (88 Atl. 883), 188. State V. Williams (9 Ired. 140), 88, 89, 90. State V. Williams (40 La. Ann. 168), 864. State V. Williams (87 Vt. 724), 144. State V. Williams (7 Jones L. 446), State V. Williams (43 Tex. 182), 138 State V. Willingham (88 La. Ann 687), 801. State V. Wings (66 Mo. 181), 898. State V. Winner (17 Kan. 298), 854. State V. Wisdom (84 S. W. 1047), 887. State V. Witham (72 Me. 581), 62. 180. State V. Wohlman (84 Mo. 482), 93. State V. Wolff (15 Mo, 168), 88, 91. State «. Wood (58 N. H. 484). 164. State V. Woodard (50 N. W. 885), 58. State V. Woolard (111 Mo. 848), 317. State V. Zimmerman (47 Kan. 848). 218. Stalker v. State (9 Conn. 841), 71. Stanley, State v., 460. Stebbins, StateT;.,459. Stephen v. State (11 Ga. 235), 118. Stephens, R. v., 64, 860. Stephens v. People (4 Park. Crim. Rep. 896), 363. Sterrett, State v., 360. Sterrett, State v., 266. Steptoe, R. v., 124. Stevens, State v., 188. Stevenson v. Marony (29 111. 533), 291. Stewart, R. v., 453, Sttiwart, State v., 369. Stewart v. State (23 Ohio St. 477), Stioe, Stater., 66. Stine, Com. r., 71. SUxiking V. Stiito (7 Ind. 326), 867. Stickloy, State u., 154. StokeH V. State (68 Min. 677), 79, W. StokeH «. U. S. (167 U. 8. 187), 818, 317. stone V. State (12 Tex. Crim. Adb. 319), 198. *^*^ Stone V. State (17 So. 114), 114, 849. Stoppert V. Nierle (63 N. W. 888), Stout V. State (90 Ind. 1), 803. Stover V. People (56 N. Y. 815), 868 Struder v. Mullane (17 Ohio St. 634) 840. Stratittthan v. Greaves (86 Ohio St. Stranger v. Serle (1 Esp. 14), 811. Streeter, Statov.. 831. Stringfellow v. State (86 Miss. 157), Strother v. Lucas (9 Pet. 768), 815 Struggle, The, v. U. S. (9Cranch, 71), 38. Stuart V. People (48 Mioh. 866), «7, Stubbs, R. t'., 459. Sturm V. Clmlfant (18 S. E. 461), 88. Sullivan V. People (81 Mioh. 1), 818. Sulhvan v. Stute(18Tex. Crim. Add 683), 81. ^*^ Summers, State v., 265. Sumner v. State (5 Blackf. 679), 381. 301, 302, 307. Sunderland, R. r., 71. Talmage, State v., 380. Tatro, State v., 115. Tavemer, R. v., 71. Tawejl R. v., 69, 111, 386, 868, 868, Taylor,'R. v., 64,216. Taylor, State v., 801, 310. Taylor, State v., 183. Taylor, State d.. 895. Taylor, State v., 90. Taylor V. Com, (42 Leg. Int. 1«8), 191. Taylor v. Com. (90 Va. 109), 186, 189. Tay or v. Riggs (1 Pet. 596), 397. Taylor v. State (3 Tex. Cr. App. t69). 307, 874, 37.5. ^^ ' "^"^ 28o!'334!'** ^^ '^*^- ^'■- "^PP- *^>' Taylor v. Taylor (0 Ecol. & Mar. Cas 563), 458. Teeter, State v., 58. Terrell, Stater., 164. Terrigan, Com. v., 62. Terr. v. Bannigan (1 Dak. 451), 888. Terr. v. urysoa (9 Mont. 88), I8i, 530 TABLE OF CASES. m I n\i IS. 1' 4 tfi ;TI h Terr, v. Campbell (9 Mont. 16), 252. Terr. v. Chavely (30 Pac. 908), 825. Terr. v. Egan (8 Dak. 119), 81, 191. Terr. v. Keen (1 Wa«h. Terr. 188), 262. Terr. " '. ' ■ 't Mont. 894), 115, M.' Terr, v. NfcHctH < 10 Pac. 867), 460. Terr. r. T^<.> oru (9 Mont. 12), 57. Terr. v. TrujiUo (32 Pec. 154), 816. Tliomas v. Heriacker (1 Dall. 14), 216, Thomas, B. v., 146 Thomas, State v., 198, Thomas, State v,, 28, Thomas v. State (18 Tex, Crim, App. 498), 1U9, 309. Thomas v. State (69 (.a. 784). 220. Thomas v. State (67 Ga. 460), 193, 362, 370, 881. Thomas v. State (103 Ind. 417), 61, 70, 212 218. Tliompson, State v., 218, 219. Thompson v. Com. (20Grat. 724), 116. Thompson v. State (14 So. 878), 260. Thompson v. State (30 Tex. 356), 201. Thornton, R. v., Ill, 200, 231, 256, 274, 822, 472. Thorpe v. Gilburne (2 C. & P. 21), 212, Thurston, People v., 154. Thurtell, R. v., 268, 370, 478. Thurtell v. Beaumont (1 Bing. 839), 840. TUer V. N, Y, C, R. R. Co. (49 N. Y, 142), 161, Timmerman v. Terr. (17 Pac. 624), 834, 354. Timms. See Smith, Varnham & Timms. Tippett, R. v., 117. Tippett, State v., 191. Toler V. State (16 Ohio, 588), 150, 151, 277. ToUier, Com. v., 130. Tomev. Parkersburg R, R. Co. (39 Md. 92), 216. Tompkins v. State (32 Ala. 569), 465. Tooney v. State (8 Tex. Cr. App. 452), 809. Towle V. State (47 Wis. 545), 86. Tozier, State v., 270. Trapton v. State (5 Tex. Cr. App. 480), 298. Trannock, R. v., 21. Travis v. Brown (43 Pa. St. 17), 321. Trecy, Com. v., 291. Tiilloe, R. v., 449, Trimble v. State (18 Tex. Crim. App. 632), 95. Trogdon v. Com. (31 Grat. 862), 53, 59, 63. Truax v. State (12 Tex. Crim. App. 230), 81. Tuckerman, Com. v., 64. Tucker v. Kellogg (8 Utah, 11), 216, 318. Tucker v. State (57 Qa. 608), 78. Turbeville v. State (40 Ala. 716), 808. Turner, R. v., 57. Turner, State v., 380. Turner v. Com. (86 Pa, 64), 62, 160, 298, 817. Turner v. State (4 Lea, 206), 301, 808, Turrell, People v., 88, Twv nan v. Knowles (13 C, B, 224), . ). Twyning, R, v., 286. Tyner i'. State (5 Humph, 383), 117), 846, Udderzook v. Com, (76 Pa, St, 840), 877 499. Underwood, State v., 268. U. S. V. Allen (10 Biss. 90), 261. U. d. V. Armstrong (3 Curt. C. C. 446), 52. U. S. V. Britton (2 Mason, 464), 388. U. S. Brontin (10 Fed. Rep. 730), 261. U. S. V. Carpenter (41 Fed, 880), 332. U. S. V. Cassidy ^7 Fed. 698), 800, 332. U, S. V. Cole (5 McLean, 601), 29. U. S. V. Craig (4 Wash. C. C. 729), 214, U. S. r. Foulke (6 McLean, 849), 330. U. S. V. Freeman (4 Mason, 506), 261. U. S. V. Gilbert (SSumn. 19), 29, 297, 866. U. S. V. G'inne!l(5Mackey, 196), 260. U. S. V. Harper (38 Fed. 471). 326, 332. U. S. v'. Heath (19 Wash. L. Rep. 818), 326. U. S. V. Hopkins (26 Fed. Rep. 443), 825, U. S. V. Howell (26 Fed. R. 21), 481. U. S. V. Hughes (34 i^ed. 782), 330. U. S. V. Jackson (29 .Ked. Rep. 503), 263. U. S. V. Johns (1 Wjtsh, C, C, 863), 28, U, S. V. Johnson (2fc Fed. Rep. 682), 261, 331. U. S. V. Jones (31 Fed. Rep. 718), 262. U. S. V. Keller (19 Fed. 633), 382. U. S. V. King (34 Fed. ?J02), 335. U. S. V. King (5 McLtan, 208), 74, 331. U. S. V. King (2 Wash. L. Rep. 501), 336. U. S. V. McGhee (1 Curt. C. C. 1), 51, 156. U. S. V. McKenzie (35 Fed. 826), 331. U. e V. McMillan (39 Fed. Rep. 247), 216. U. S. V. Meagher (37 Fed. 875), 331. U. S. V. Means (42 Fed. Rep.), 261, 326. U. S. V. Miugo (2 Curt. C. C. 1), 53. )8), 78. ». 716), 308. 4), 62, 150, 6), 301, 308. C. B. 224), . 383), 117), a. St. 340), I), 261. urt. C. C. , 464), 388. p. 730), 261. 1. 330), 332. , 698), 800, 601). 29. U. C. 729), n, 849), 330. n, 505), 861. 19), 29, 297, y, 196), 260. 471). 326, \. L. Rep. , Rep. 443), R. 21), 481. 782), 330. . Rep. 503), C. C. 363), . Rep. 682), ip. 718), 262. m), 382. 12), 335. n, 208), 74, ,. Rep. 501), t, C. C. 1), sd. 826), 331. i. Rep. 247), i. 875), 331. Rep.), 261, t. C. C. 1), TABLE OF CASES. 631 U. S. V. Montgomery (3 Sawy, 552), 118. U. 8. V. Mott (1 McL. 499), 119. U. S. V. Newton (52 Fed. Rep. 275). 261. ' U. 8. t). Nevereon (1 Mack. 152), 129, U. S. V. Pendergast (82 Fed. Rep. 198), 216. ^ U. 8. V. Romero (35 Pac. 1059), 386. U. S. V. Roudenbush (1 Baidw. 514), 260. U. 8. V. Smith (3 Bond, 323), 261. ^- ^!,Xi ^ii"*™«(^ ^^'"' '*>' 112, 117, oOa, otto. U. S V. Zes Cloya (35 Fed. 498), 831. Unkles, R. v., 865. Upohurch, R. v., lie. Upham, State v., 270. ^^::^'i.Pf«P'.«?aHin,895).ii8. Valley, Stater., 252. Van Sickler v. People (9 Mich. 61), Van Winkle, State v., 80, Van Winkle, State v., 92. Van Wyck v. Mcintosh (4 Kern. 439), 215. Van der Donckt v. Tliellesson (8 M. G. & S. 812), 163. Vane, People v., 270. Vann v. State (88 Ga. 44), 326. Vamham. See Smith, Varnham & Timms. Vatter, State v., 97. Vaughan, R. v., 244. Vaughn v. Com. (17 Gray 576), 116. Verlarde, People v., 264. Videto, People v., 24, 478. Vinton v. Peck (14 Mich. 287), 218. Wacaaer v. People (134 111. 438), 332. Waddington v. Cousins (1 C. & P. 595), 215. Wagner v. State (107 Ind. 71), 263. Walbridge v. State (13 Neb. 236) m, Walford, R. v., 471. Walker, Peoples., 361. Walker, State v., 116. Walker, State v., 90. Walker v. Com. (1 Leigh, 574), 58, 59. Walker v. State (85 Ala, 7), 54. Walker v. State (6 Tex. Crim. App. Walker v. State (28 Tex. App. 503), Walker V. State (102 Ind. 502), 268. Wall, R. r., 299. WaU V. State (37 Ind. 453), 331. Wall V. State (51 Ind. 453), 325. Wallace, State v., 62. Wallace v. State (10 Tex. Cr. App. 255), 451, 452. ^^ Walter v. People (32 N. Y. 147), 319. Walworth. Ppnnlo t< RQ — ' X *"? "'•''' Ward, state v.. , .«, Ward, State v., 151, 817. Ward, State v., 217. Ward, State v., 270. Ward V. State (50 Ala. 120), 118. Ward V. State (10 Tex. Cr. App. 398). 280, 801. *^ '* Wareing V Wareing (6 Moore's P. Warford, State v., 90, 96. Warner, People v. 114. Warner V. Com. (8 Va. Cas. 106). 844. Warren v. State (1 la. 106), 88. Warnokshall, R. v., 115, 119. Warringham, R. v., 116. Wash. Ins. Co. v. Wilson (7 Wia 169), 341. ^ Washmgton v. State (8 Tex. App. Waterm'an, State v., 296, 817. Watkins, State v., 42, 45, 62. Watkins v. Wallace (19 Mich. 67), Watson, R. v., 838. Watson, R. v„ 294. Watson V. Brewster (1 Barr, 881), 188. Watson V. Robertson's Heirs (15 Tex. 333), 105. Watt, State v., 114. Watt V. People (126 111. 9), 326, 839. Way V. State (35 Ind. 409), 83. Way man. People v., 324. Weaver v. People (132 111. 586), 888. Weaver v. Whilden (88 S. C. 190), Webb V. State (9 Tex, Cr. App. 490), 333. Webster, Com. v. (5 Cush. 295), 187. 336' m ^^^' ^^*' ^^^' ^®^' ^' Webster, R. v., 206. Weller v. People (39 Mich, 16), 41. Welch V. Juggenheimer (56 la. 11), 341. Wells, State v., 261. Welsh V. State (96 Ala. 92), 134, 133, Wescombe, R. v., 148, 251. West V. State (2 Zab. 212), 215. West V. State (76 Ala. 98), 28. Westron, R. v., 160. Whalley, R. v., 240. Wharton v. State (12 So. 661), 302. Wharton v. State (73 Ala. 366), 43, 46, 466. Wheeler, State v., 96. Whetston V. State (31 Fla. 240), 196. Whitby, R. v., 244. White, Com. v., 71. Wliite, People v., 269. White, People v., 270. V/hite, R. v., m, 183. 682 TABLE OF CASES. •f ^M White, stater., 88, 468. White, Htate v., 848. White V. Com. (M()Ky. 480), 180,270. White I'. State (72 Ala. 195), 14, 88, 89. White V. Htate (11 Tex. 769), 60. White V. Htate (86 Tex.), 280. White V. State (32 Tex. Grim. App. 628), 113. Whitenack v. Whitenack (48 N. J. Eq. 474), 850. Whitflfeld V. State (25 Fla. 289), 197. Whiting, R. v., 262. Wliitney v. Htate (8 Mo. 165), 118. Whittaker v. Com. (18 Ky. L. Rep. 604), 54. Whitten, State t'., 241. Whittle, R. v., 357. Wicks, Peoi.lev., 124. Wileinan, People v., 262. WilkiiiH, Stater., 182. Wilkinson r. Mosely (80 Ala. 562), 162. Wilks, R. r., 459. Willard r. State (27 Tex. Cr. App. 380), 117, 845, 354. Wlllard, Com, v., 96. Willett r. People (27 Hun, 469), 118. Williams, Com. r., 106, 185. Williams, People r., 188. Williams, R. v., 222. Williams, State r., 88, 89, 90. Williams, State v., 254. Williams, State r., 144. Williams, State v., 877. Williams, Stater., 183. Williams, U. S. v., 161. Williams r. Brown (88 Ohio St. 647), 165. Williams r. Com. (80 Ky. 313), 326, 882. Williams r. East India Co. (8 East, 192), 235, 298. Williams r. People (101 111. 382), 117. Williams r. State (19 Tex. Cr. App. 276), 298. Williams r. State (52 Ala. 411), 262, Williams r. SUte(98 Ala. 22), 324. Williams r. State (25 8. W. 689), 195. Williams v. State (22 Tex. Crim. App. 497), 148. Williams r. Williams (1 Hagg. Con. 299), 344, 3.')0. WiUiamson r. State (17 S. W. 722), 91. Williamson r. State (30 Tex. Cr. App. 330), 811. Willingham, State v., 301. Willis r. State (93 Ga. 808), 114. Willis r. State (61 N. W. 254), 880, 333 Wilraett r. Banner (8 C. & P. 695), 340. WilHon, Com. v., 164. Wilson, People v., 271. Wilson, People v., 81. Wilson People v., 876. Wilson, R. v., 125. Wilson V. Beauchanip (50 Misfl. 34), 318. Wilson r. Kirkland(5HiU, 183), 214. Wilson V. State (17 L. R. A. 664), 254. Wilson V. Van Leer (127 Pa. St. 871), 211. Wimbish r. State (89 Cla. 294), 217. Winchellr. Edwards (57 111.41), 143. Wings. Htate r., 398. Winner, Htate r. , 864. Winslow, R. r.,68. Winslow r. State (76 Ala. 43), 846. Winter v. State (20 Ala. 39), 880. Winl«»rs, People v., 75. Winthrop r. State (48 la. 679), 449. Wisdom r. People, 273. Wisdom, State r, (81 Fla, 166), 887. Wisdom r. People (11 Col. 170), 817, 460. Wishart, R. r. , 245. Witham, State r., 68, 180. Witherington, People r., 81. Wohlfrom, People r., 828. Wohlman, Stater., 98. Wolcott, People v., 184. Wolff, People r., 838. Wolff, Stater., 88, 91. Wong Ah Foo, People v., 276. Wood, Stater., 164. Wood, R. r., 83, 180, 269. Wood r. State (92 Ind. 369), 263. Woodard, State r., 62, Woodgulc, R. v., 869. Woodman r. Dana (52 Me. 18), 318. Woodon r. People (1 Park. Crim. R. 464), 215. Woods r. People (56 N. Y. 516), 248. Woodward ef al v. Spiller (1 Dana, 180), 215. Wool r. State (20 Ohio St. 460), 370. Woolard, Stater., 817. Wooldridge r. State (18 Tex. Cr. App. 453), 810. Worcester, Com. r., 263, Worth r. Norton (33 Tex. 192), 280. Wright, R. r., 449. Wright r. Hardy (22 Wis. 348), 160, 341. Wyatt r. State (25 Ala. 9), 116. Wyman, People v., 124. Yarbrough r. State (16 So. 758), 301, 324. Yates r. State (37 Tex. 202). 90, 95. Yates r, Yates (76 N. C. 148), 217. Yend, R. r., 352. Yeomans r. Petty (40 N. J. Ep. 495), 220. TABLE OF CASES. 633 Yewln, R. v., 140. Young V. Com. (6 Bush, 813), 26S. Young V. Johnson (128 N. Y. 326), l.Vt. Young V. State (2 Yerg. 202), 134. Young "State (68 Ala. 66»), 124, lv4f J06( Young V. State. (9S Ala. 4). .308. Youngc t^. Horner (1 C. & K. 751) 219. ZesCloya, U. S. v., 381. Zimmerman, State v., 218. iiilJ INDEX. See Moral CERTAnrre. ABSOLUTE MORAL CERTAINTY, unnecessary, 306. ACCOMPLICE, confirmatory evidence of, not necessary to convict, 469. corroboration of, usually required, 459. law in England as to, 459. law in America as to, 459, 460. credibility of, for jury, 459. ■ dangers of accomplice testimony, 460. corroboration may be by circumstances, 461. ADULTERY, as bearing on motive for crime, 44, 45. rule as to quantum of proof required to establish, 343, 844. proof of corpus delicti, 346. circumstantial evidence sulRcient to establish, 346. when innocence should be declared, 347. circumstances usually relied on to establish, 347. proof of opportunity alone not sufficient to establish, 348. opportunity and will to commit, sufficient, 348. evidence to establish, must be decisive, 85L ALABAMA, rule in, as to proof of handwriting by comparison, 816. ALIBI, nature of, 150. fabrication of, 150. effect of, 150. importance of verifying time where alibi is relied on, 280. amount of proof necessary to establish, 315. rule in Iowa, 315. rule in South Carolina, 315. rule in Nev^ Mexico, 316. rule in Georgia, 317. rule in Michigan, 318. when a special instruction as to, unnecessary, 818. effect of proof of , 271. evidence as to, to be received with caution, 271. danger of abuse, 271, 272. 635 636 INDEX. ALIBI. — Continued. weight of evidence as to, question for jury, 27a instructions aa to, 272, 276, 295. evidence as to, must relate to what time, 278. eflfect of setting up, when accused, 274. caution as to difference in time, 274. caution as to identity of person, 275. caution as to lapse of time, 276. effect of withholding evidence a»to, 276. effect of unsuccessful attempt to prove, 276, 277. effect of fraudulent attempt to prove, 277. burden of establishing, is on defendant, 295. amount of evidence necessar:?- to establish, 295. ANALOGY, its place in investigation, 12. ANCIENT WRITINGS, proof of handwriting by comparison with, 215. practice aa to, 215. ATTEMPTS. See Pheviods Attempts. BELIEF, 6, 14. BLOOD-STAINS, who may testify as to, 180, 19S. character of, 167. identification by, 192. BRIBERY OF WITNESSES, effect of, upon party guilty thereof, 143. BURDEN OF PROOF, as to voluntary confessions, 114. as to alibi, 295. CALIFORNIA, nile as to affect of silence under accusation, 128. code, as to evidence, 2. CAUSE OF DEATH, necessfl^y to sho^, to establish corpus delicti, 879; CERTAINTY. See Moral Certaintt. distinguished from probability, 7. CHANCES, DOCTRINE OF, not applicable to human affairs, 13. CHARACTER, when can be shown, 58. when important, 76. evidence of, to rebut presumption from recent possession, 87. evidence of good character, whpn imnortant. 2ri9. INDEX CHARACTER.— Conhnwed. benefit of good, not restricted to minor offences, 260 of no importance if guilt be clear, 260, 261. misleading instructions as to, 261. to be considered with otiier facts, 262. value of proof of, depends on what, 263. inquiry concerning, limited to a particular trait, 263. negative testimony as bearing on, 264. proved by reputation, 265. mode of inquiry aa to, 265. when bad, may be shown, 266. how to test knowledge of witness as to, 266. testimony of' accused as to, 268. testimony aa to, how rebutted, 269. English statute as to, 269. inquiry as to, confined to time previous to oflfence, 270. who may testify as to, 270. effect of absence of evidence as to, 270. CIRCUMSTANTIAL EVIDENCE, cannot be reduced to mathematical proportions, 8. characteristics of, 15. what is it, 15. distinguished from direct evidence, 16. compared with direct, 27. to be carefully scanned, 33, 34. sources of, 35. facts to be received in cases of, 36 et seq. CIVIL CASES, distinction between, and criminal as to amount of proof, 322, 339. rules of evidence same in, as in criminal, 389. COMMUNICATED THREATS. See Threats. COMPARISON, proof of handwriting by, 214. common-law rule, 214, 815. in various states, 216. COMPLAINT, JOINT, must be prov«\ where several are charged, 314. CONCLUSIVE PRESUMPTIONS, 19. CONDUCT, of complaining party as tiiio*» ing light m charge, 241 et seq. in cases of rape, 241, 244. of accused as bearing on his innocence, 245. effect of language of accused, 245. unreliability of such evidence, 245, 246. inconsistencies of humanity to be taken into account, 246. failure to hide as bearing on guilt, 247. m 638 INDEX, CONFESSIONS, judicial, definition of, 113. extrajudicial, definition of, 112. voluntary, admissible, 113. voluntary, what are, 113. induced by undue infiuence, 114. what amounts to, 114. to officers, 113. burden of proof as to, 114. what evidence necessary to show voluntariness of, 115. weight to be attached to, 115. ground of admissibility of, 115. caution to be observed in reception of, 115, 118, 119. when sufficient to convict, 116, 117. what sufficient to corroborate, 117, 118. facts admitted not as, but as res gestae, 118. not sufficient to establish corpus delicti, 119. must be taken as a whole, 122. weight of, is for the jury, 123, 125. made wheu intoxicated, 125. CORPUS DELICTI, in cases of larceny, 78. proof of, as corroborative of confessions, 116, 117. must be clearly proved, 296. CORPUS DELICTI. See Adultery. means what, 345. proof of, involves what, 845. how proved, 346. proof of, in adultery, 346. must be established clearly, 352. no criminality without crime, 352. must be proved beyond a reasonable doubt, 354. may be shown by circumstantial evidence, 354. in case of homicide, 362. death must be shown, 362. discovery of body best proof, 362. rule in Texas, 363. rule in New York, 265. discovery of body not required in all cases, 365, moral certainty sufficient, 366. illustrations, 367. identification of body necessary, 370. circumstantial evidence sufficient, 374. illustrations, 374 et seq. cause of death must be shown, 379 etaeq. direct evidence not necessary, 380. circumstances held sufficient, 381. in cases of poisoning, 384. who may testify as to effect of poisons, 384. catue of death. 895. INDEX. ^39 CORPUS DELICTI.-'^onftnited. various symptoms, d35. appearance of symptoms in several persons, 887. importance of chemistry, 81^8. difficulty as to vegetable poisons, 889, post-mortem imbibition, 889. direct evidence unnecessary, 892. poBsesswn of poison by accused, 395. opportunity to administer poison, 397. as to motive, 399. cautionary suggestions, 399. importance of conduct of acrused, 408. former attempts, 413. necessity of caution, 414. in cases of infanticide, 447. sources of difficulty, 447, that child was bom alive necessary to be shown, ^49. question for jury, 450. hydrostatic test, 450. nature of motive important, 458. desire to conceal shame, 453. wilful injury must be clear, 454. distinction between infanticide and other cases of homicide, 455, CREDIBILITY, what is, 10. CREDIBILITY OF TESTIMONY. See Testimony. CRIMES. See Other Crimes ; Opportunity ; Preparation. (Only the most important cases are huiexed.) Adultery, 62, 180, 848, 350. Arson, 64, 65, 66, 68, 96, 97, 114, 120, 125, 190. Assault, 68, 69. Burglary, 75, 96, 97, 105, 132, 205. Conspiracy, 63, 76, 132. Embezzlement, 64. Forgery, ,^28. Homicide (see Infanticide ; Poisoning), 59, 61, 62, 67 68 69 74 76 98, 100, 108, 109, 110, 119, 120, 123, 126, 129, 130, 131, 132. 133 136' 156, 167, 168, 169, 170, 171, 172, 191, 192, 201, 202, 240, 256, 275* 283* 286, 312, 315, 363, 366, 367, 375, 376, 880, 382, 463, 482, 486, 489 492* 495, 498, 499. > , , to , t»^. Infanticide, 104, 870, 371, 373, 451. Larceny, 58, 60, 66, 70, 78, 80, 94, 106, 107, 109, 131, 184, 180, 181 201 206. 207, 359. ' ' Miscarriage, procuring, 68. Obscene letters, sending, 70. Ob<,aining money by false pretenses, 58, 59, 63, 70. Poisoning, homicide by, 385, 886, 887, 893, 401, 411, 418. 416. 420 424 428,438,485,488,439. Rapo, 182, 153, 231, 241, 'Ill Is r i 540 INDEX. CRIMES. —Continued. Receiving stolen goods, 72, 95, 249w Robbery, M* 161, 187, 1«B. Sending threatening letters, 286. Slander, 842. Uttering false coin, 71, 72, 74, 105, 186. CRIMINAL CASES, RULES IN. See CiviL Cases. CRIMINALITY, no, without crime, 852. DEFINITION OF, evidence, 1, 2. judgment, 1. testimony, 2. prooi. f>. probability, 6. oirciiinslantial evidence, 15. DEGREES OF PROOF, no place in our law, 22. DEMONSTRATICvN, what is. 4. DEMONSTRATIVE EVIDENCE, no degrees in, 6, n. J:>ESTRUCTION OF EVIDENCE, 189. removal of marks etc., 146. attempt to prevent post mortem, 146. destruction of human remains, 147. DIRECT EVIDENCE, distinguished from circumstantial, 15. compared with circumstantial, 27. DISPUTABLE PRESUMPTIONS, 19. ENGLAND, statutory rule in, as to proof of other crimes, 64. statutory rule in, as to rebuttal of evidence as to character, 289. EUGEI^i. ARAM, trial of, 129 et seq. EVIDENCE. See CiRCtmSTANTiAL EviDimcE. definition of, 1, 14. nature of, 1. distinguished from testimony, 1, 2. law of , embraces what, 2. rules of, result of what, 2. arc i ales of law, 8. same m civil and criminal cases, tgaHiiiiii INDEX. 541 r, 369. EVlDEliCE.— Continued. distinguished from proof, 8. sources of, 3, n. moral, 5. jLXCULPATORY presumptions, 282 et aeq. EXPERIENCE, basis of credibility, 10. comprehends what, 11. EXPERT TESTIMONY, value of, as to handwriting, 395, 236. principles upon which admission of, rests, 163. not receivable as to obligation, 154, as to sanity, 154. not receivable as matters of general knowledge, 156. illustrations, 155, 156. not necessary as to blood-stains, 166. as to controverted questions, 106. upon what evidence to be based, 156, 157, 168. not received as to weight of evidence, 158. to be based on hypothetical questions, 158. character of such questions, 160. who may give, 162. value of, 165. to be weighed as other evidence, J66. weakness is inherent in, 166. as to blood-stains, 167. illustrations, 167. Iflft, 171. EXPERTS. See Expert Testimony. who are, 162, 165. EXPLANATION, of recent possesfiijn, 80. 81. weight to be attached to, 84. rule as to, in Texas, 84. what may be shown by way of, 85. suspicions arising from, 85, 86. of recent possession of stolen property, 355, 356. of other suspicious appearances, 256, 257. fabrication of suspicions, 258. FABRICATION, of suspicious appearances to divert suspicion, 258. FABRICATION OF EVIDENCE, 188. by bribery of witnesses, 142, 143. to prove truth, 143, 144. self-infliction of wounds, 148 as to alibi, 150, 151. 542 INDEX. i V i FALSE EXPLANATIONS, of suspicious appearances, 104 et aeq. insufficient to convict uncorroborated, 110. FALSEHOOD. See Testimony. FICTITIOUS NAME, use of, as evidence of guilt, ISO, IM. FLIGHT, aa evidence of guilt, 130 et aeq. attempt at, effect of , 181. what indicative of, 182. affects whom, 132. ' after release on bail, 182. escape from jail, 183. weight to be attached to, 185. may be referred to other aots, 847. FOOTPRINTS, identification of accused by, 194. weight of evidence as to, 194. not sufficient for conviction, 195. additional force arising from peculiarities of, 196. recency of, imp( rtant, 198. accuracy in comparison essential, 198. who may testify as to. 198. comparison of, need not be made in presence of accused, 199. caution as to fabrication of, 200. as to horsetracks, 200, 201. illustrations, 200, 204. i'ORCE, weight attached to variations between narratives, 474. the effect to be given omissions, 476. cases illustrating, 482 et aeq. FORCE OF CIRCUMSTANTIAL EVIDENCE, considerations bearing on, 456 et aeq, circumstantial evidence likened to a chain, 484. metaphor inaccurate, 465. circumstantial evidence likened to a bundle of rods, 466. depends on whether facts be dependent or independent, 466, 467. necessity of harmony, 472. FRAGMENTS, of garments, used in identification, 186. FRAUD, rule as to quantum of proof when there is a charge of, 348. GEORGIA, rule in, as to quantum of proof to establish alibi, 817. definition of circumstantial evidence in code of, 15. INDEX. 648 HAIR, m. )6,467. identification by, 191. , HANDWRITING, usual method of proof of, by direct evidence, 310. extent of knowledge of witneaa to be first shown, 210. who may testify as to, 311. knowledge from correspondence, 211. identity of writer must be assured, 212. who is a competent witness, 212, 213. proof of, by comparison, 213. what is, 214. common-law rule — comparison from memory, 214, comparison by court and jury, 214, 215. other instruments inadmissible for comparison, 315. this changed by Procedure Act, 219, 220, comparison witli ancient writings, 215, practice as to, 215. grounds of the rule, 215, 216. rule in this country — in Federal court in various states, 216 et seq. as to genuineness of standard, 216-219. question for court, 219. rule otherwise in New Hampslure, 219, as to admission of papers not already in case, 220. reasons for caution in proof of, 221, imitation of, 221. microscopic examination of, 222. as to use of enlarged copies of, 223, reliability of evidence as to, 223. peculiarities of spelling, 224. as to disguised writing, 224, 225. weight of expert testimony as to, 225, 326. may be tested, 226, HIGH SEAS, proof of corpus delicti where homicide has occurred in, 365. HOMICIDE. See Corpus Delicti ; Crimes. proof of corpus delicti in cases of, 362 et seq. on high seas, 385. identification of body, 370, cause cf death, 379, HYDROSTATIC TEST, in cases of infanticide, 450. HYPOTHETICAL QUESTIONS, nature of, 160. upon what to be based, 160, 162. See Expert Thstimont. IDENTIFICATION OF BODY, necessary to es'.ablish corpus delicti in homicide, 370. ]4 544 INDEX. IDENTIFICATION OF PERSON, 179. by voice, 124. usually by circumstantial evidence, 179. slightest circumstances may be important, 179. test as to proximate facts, 179. often a question of difficulty, 179. illustrations, 179-182. light as bearing on, 182. voice as related to, 188, 185. liability of mistake in, 188. witness may testify on belief em to, 188. family likeness as bearing on, 184. photograph used in, 184, 185. by correspondence of fragments, etc., 186. by clothing, 187. by various minute circumstances, 187, 188, 189. by letters and postal cards, 190. by tracks, 190. by wounds on person of offender, 190. by permanent marks on peraon, 190. by hairs, 191. by blood-stains on instruments of crime, 192. by blood-stains on person or clothing of accused, 193. by tracks and footprints, q. v., 194. IDENTIFICATION OF PROPERTY, by circumstances similar to those which identify person, 205. liability of witnesses to error, 205-207. positive evidence not necessary, 207, 208. illusfratiobs, 207-209. ILLINOIS, effect of recent possession in, 81. rule in, as to proof of handwriting by comparison, 216. rule in, as to quantum of proof to establish insanity, 820. IMBIBITION, POST MORTEM. See Corpus Deucti. INCULPATORY CIRCUMSTANCES, 39, 177 et aeq. INDIANA, rule in, as to proof of handwriting by comparison, 218. rule in, as to quantum of proof to establish insanity, 320. INFANTICIDE, proof of corpus delicti in cases of, 447. INDIRECT CONFESSIONAL EVIDENCE, danger of, 126. acts amounting to, 127. silence as, 128. rule in California, 128. silence of co-defendant, 128. deportment of accused in presence of corpse, 128. INDEX. INDIRECT CONFESSIONAL EVIDENCE. -Cowfmwcd. conduct of accused when arreeteu, ISti. concealment as, 180. t disguise as, 180. flight as, 180. importance of such indications, 185, 186. weight of, for jury, 187. INNOCENCE, PRESUMPTION OF, See Prksumption. INNOCENT, effect of criminal charge upon the, 133, 184. IOWA, rule in, as to quantum of proof to establish alibi, 816. INSANITY, expert testimony as to, 154, 156, 157, 168. burden of establishing, as a defense is on defendant, 295, 296. amount of evidence necessary, 296. rule as to quantum of evidence to establish, 819. former rule, 810. modem doctrine, 320. rule in Indiana, 820. rule in Illinois, 820. rule in ICansas, 821. INSTRUCTIONS, bearing on character, 261, 262, 270. as to alibi, 272, 273, 276. as to best evidence, 298. approved language should be used in, 808. few abstract principles should be given, 309. court must instruct on circumstantial evidence in Texas, 809. charge need net be given in a set form, 810. illustrations of correct, 811. when a special, as to alibi unnecessary, 818. on circumstantial evidence should confine jury to facts, 881. INSURANCE, as offering inducement to commit murder, 46. as motive to crime, 62, 65, 68. rule as to quantum of evidence in actions to recover, 389 et aeq. INTENTION, what admissible to show, 62. collateral facts as showing, 52. rule as to amount of evidence to show, 52, 53. evidence of threats to show, 53. evidence of previous attempts and other crimes, 57. INTIMIDATION OF WITNESSES, effect of, upon party guilty thereof, 142. 645 T IMAGE EVALUATION TEST TARGET (MT-3) 4 1.0 I.I 1.25 ^1^ iS^ '" ^ IIIII12 ^ lis lllllio 1.4 1.8 1.6 ^ ^n' ^ ^^ ^ ^/: >4 ^^'>» ^ '/ Photographic ScierxCes orporation C # « ^8\ \\ 2? WEST MAIN STREET WEBSTgR.N.Y. MSSO (716) 872-4503 .'*/» <» v^^^ ".^^ ■>> ^v :<> "a ' -■ .. «ite^ '^'^- ? 4f^ 'rf|.i ■ im IND£X. INTOXICATION, as affecting importance to be attached to threats, 66. as affecting credibility of confessions, 125. INTUITION, explained, 4. JUDGMENT, definition of, 1, JURY, weight of evidence as to alibi for, 379. KANSAS, rule in, as to proof of handwriting by comparison, 218. rule in, as to quantmn of proof to establish insanity, SSI. KENTUCKY, rule in, as to proof of hwidwridng by comparison, S17. LEGITIMACY, presumption in favor of, 334. LIGHT, quantity of, as bearing on identification of person, 189. LOUISIANA, rule in, as to proof of handwriting by compari8