ainrn^U Sam ^rijnol Sltbtatii 
 
KF9677.B9T"""'"'''"""-"'"^ 
 * Jjeatjse on the nature, principles and 
 
 3 1924 020 622 894 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020622894 
 
TREATISE 
 
 ON THE 
 
 NATUEE, PEINOIPLES AOT) EULES 
 
 CmCUMSTANTIAL EVDENCE, 
 
 ESPBCIAIiLT THAT OF THE 
 
 BY ^, ^1 ^ ^'^ 
 
 alexa:n'dee m. bueeill, 
 
 COUirSELLOB AT LATT, 
 
 Auflwr of the New Lam SioUonari/ and OloBSwry, Lam and Practice 
 of Voluntary Assigmrnents, Sc., &e. 
 
 NEW YORK: 
 BAKEE, VOOEHIS & CO., LAW PUELISHEES, 
 
 66 NASSAU STREET 
 1868, 
 
filtered, according to Act of Congress, in the year 1856, hy 
 
 ALEXANDER M. BUKKILL, 
 
 In the clerk's office of the District Court of the United States for the Soa11i«Tn 
 
 District of New York. 
 
PREFACE. 
 
 In designating the subject of the following "work on its 
 title-page, both the terms " circumstantial " and " presump- 
 tive," it will be seen, have been employed. This has been 
 aone with a view to greater expressiveness, though at the 
 expense of brevity, and, perhaps, of something approaching 
 the character of repetition. To a certain extent, both terms 
 convey the same idea. Strictly considered, however, " cir- 
 cumstantial" is the more comprehensive epithet, (circum- 
 stantial evidence always including presumptive as a species,) 
 besieles being the one by which this kind of evidence is al- 
 most exclusively designated in popular language. On the 
 other hand, it is the presumptive species of circumstantial 
 evidence which is found, in practice, to constitute its most 
 important variety, and has called forth almost all the dis- 
 cussion and elucidation which have been bestowed on the 
 subject. The term " presumptive," moreover, expres''«s, on 
 its face, and in its composition, the great radical idea and 
 principle upon which the evidence is applied, which " cir- 
 cumstantial" does not. These considerations have led to 
 the use of both terms, as already explained. 
 
 The principle of presumption, founded, as it is, in the 
 
IV PREFACE, 
 
 structure of the human mind and its adaptation to the pheno- 
 mena of the external world, has, in all ages and in all sys- 
 tems of evidence, natural or judicial, been recognized as an 
 appropriate and adequate, no less than as a necessary instru- 
 ment for the development of desired but unknown truths. 
 But the most important sphere of its application has always 
 been as an instrument of judicial inquiry, and, particularly, 
 as a means of discovering crimes and detecting and punish- 
 ing their authors. 
 
 In the Roman law, the recognition of this principle ex- 
 pressly appears in several passages of the Digest and 
 Code, (a) and the civilians have not only expanded the ideas 
 derived from this source, in commentaries on particular titles 
 of these collections, but have embodied their views and ar- 
 guments in distinct and, in some instances, extensive and 
 elaborate works (6). 
 
 In England, the subject has not, until within a compara- 
 tively recent period, been treated in a judicial point of view, 
 with much minuteness or method. Mr. Bentham was among 
 the earliest writers to perceive its importance and compre- 
 hend the range of its application ; and the fifth book of his 
 " Rationale of Judicial Evidence " contains a valuable col- 
 lection of facts and principles, of which later writers have 
 largely availed themselves. In the well known and deserved- 
 ly esteemed treatises of Mr. Starkie and Mr. Phillipps, es- 
 pecially the former, the subject is clearly and instructively 
 treated at considerable length. And, more recently, it has 
 received particular and exclusive illustration in the excellent 
 treatises of Mr. Best and Mr. Wills, both of which have been 
 
 (o) Dig. 22. 3. Cod. 4. 19. 25. 
 
 (ft) See the treatises of Alciatas and Menocliius on Presumptiona. 
 
PREFACE, V 
 
 re-printed in the United States. No American work, however, 
 on a plan similar to those of the publications just mentioned, 
 has yet appeared, notwithstanding the accumulation of much 
 valuable matter available for the purpose ; although the lead- 
 ing ideas and principles applicable to the subject have been 
 ably presented by Professor Greenleaf, and many important 
 facts and views are to be found in the American Notes to the 
 late editions of Phillipps on Evidence. , 
 
 It was supposed that a work composed on a considerably 
 broader basis of fact than has yet been adopted, — presenting 
 the elements or materials of the evidence .with as much of 
 that minuteness which the term " circumstantial " itself im- 
 plies, as might be practicable, and exhibiting not only the 
 principles upon which they are applied to the purposes of 
 proof, but also, to some extent, the process of applying them, 
 — would not be unacceptable to the profession or the public. 
 Under this impression the following work was undertaken, 
 the plan of which it now remains to describe. 
 
 The whole matter is comprised in two' parts. In the first 
 of these, which is introductory to the other, after some ele- 
 mentary explanations of the nature of evidence, a consider- 
 able space is devoted to the illustration of the principle of 
 presumption as founded in nature, and the manner in which 
 it is applied to the development of truth in matters of science, 
 as well as in ordinary life. This is followed by a general 
 view of the nature and operation of circumstantial evidence, 
 as an instrument of judicial investigation in criminal cases ; 
 presenting, first, the object of inquiry or fact sought ; next, 
 the facts which are to constitute a basis for the inferences by 
 which it is to be reached ; next, the process of inference it- 
 self j and finally, the conclusion arrived at, or verdict given. 
 
VI PREFACE, 
 
 lu the second part, the subject is considered exclusively 
 in a judicial point of view, and is treated in detail, with as 
 much minuteness as the limits of the work would allow. The 
 order adopted is the natural one ; presenting, first, the ele- 
 ments or materials of which the evidence is composed, and, 
 next, the manner in which they are, applied to the purposes 
 of proof; with the principles and rules governing such ap- 
 plication. Under the first of these heads, a large number of 
 facts has been brought together and classified under conve- 
 nient divisions. Nearly all these facts, (especially those of 
 the criminative class,) have been extracted with considerable 
 labor from cases of actual occurrence, which are minutely 
 referred to throughout ; thus furnishing a digest or reposi- 
 tory of useful matter, not otherwise easily accessible. 
 
 The whole work, although chiefly intended for profession- 
 al use, has been composed with a considerable reference t« 
 more extensive circulation. The subject itself is, indeed, 
 distinguished from most others of a judicial character, 
 by the attraction which it has always been found to 
 possess for the popular mind. There are few occurrences in 
 a community which create a more widely diffused interest 
 than the commission of crimes, especially those of a high 
 grade of enormity ; and of all these cases, those are always 
 found to take the strongest hold of popular sympathies', which 
 require to be made out by circumstantial evidence. It is 
 precisely that state of things which calls for the employment 
 of this great instrument of inquiry, which presents all the 
 elements and conditions for producing and working up to its 
 highest pitch, this species of mental emotion and' impression. 
 It is the characteristic fact, — with which investigation ia 
 these cases usually sets out, — that both the crime and tiie 
 
PREFACE. Vii 
 
 criminal are unknown, and are to bo brought to light out of 
 a mysterious obscurity, by a gradual process, which attracts 
 and holds with a constantly increasing power, the attention 
 of thousands. More specific sources and elements of inter- 
 est are found in the circumstances which generally attend 
 trials for high crimes by this species of evidence ; — in the 
 unusual concourse of witnesses, the immense number of facta 
 elicited by their testimony, the laborious minuteness with 
 which the investigation is prosecuted, the great length of 
 time consumed in the process of proof ; and in addition to 
 all these, the consideration that this process is, throughout, a 
 natural one, unembarrassed by technicalities either of rule 
 or reasoning, and such as the mind of every intelligent and 
 attentive observer and spectator can, without much difficul- 
 ty, comprehend and follow. 
 
 But there is still another consideration which gives to the 
 interest naturally awakened by investigations of this kind, 
 a far graver cast than that of mere curiosity or temporary 
 excitement of feeling, however strong ; namely, the possibil- 
 ity, (common to numbers in every community) of being 
 brought into that intimate connection with the process of 
 trial which is involved in the responsible character of juror. 
 The importance of this office, — ^the great characteristic duty 
 of which consists in the interpretation of facts in evidence, 
 cannot,- especially in capital cases, be over-estimated ; nor 
 will it be denied that every individual called to assume it 
 should be furnished with every legitimate means for enar 
 bling him to discharge it with intelligence and effect. As 
 the practice is, on trials for crimes by evidence of the cir- 
 cumstantial kind, the jury are usually instructed by the 
 court, — sometimes at considerable length — in the nature of 
 
Viii PREFACE.' 
 
 such evidence, and the rules which ate to be observed in 
 applying it. The value of these judicial expositions is ob- 
 vious ; neither will it be questioned that they are most likely 
 to be effective upon minds which have been prepared by 
 some previous acquaintance with the subject. 
 
 It is with a view to supplying a source of information to 
 readers of the class just indicated, that a considerable por- 
 tion of the present volume has been written ; and that a 
 space unusually (and, perhaps, in the opinion of some, un- 
 necessarily) large, has been devoted to statements of the 
 materials of evidence, and illustrations of the manner in 
 which such materials are practically applied. A leading ob- 
 ject, throughout, has been to exhibit the process of proof by 
 circumstances in as much of the character of system as its • 
 nature admits, by a constant reference to the principles which 
 lie at its basis, and to the rules which judicial experience has 
 established or approved for its regulation. A convenient 
 summary of these rules will be found in the concluding chap- 
 ter. 
 
 It was the author's original intention to have appended to 
 the work a selection of criminal cases, and considerable 
 progress has been made in this part of the undertaking. But 
 the'time unexpectedly consumed in carrying the body of the 
 volume through the press has induced its postponement to a 
 future occasion. 
 
 New-Yobk, June 19th, 1856. 
 
CONTENTS. 
 
 Table of cases cited. - ...... xv 
 
 PART I. 
 
 General oe Intkobuctoet View. 
 
 CHAPTER I. 
 Evidence in General. ...... 1 
 
 CHAPTER II. 
 Presumption. ..-------9 
 
 Section I. 
 Natural Presumption. - . - - - - 11 
 
 Section II. 
 Judicial Presumption. -------41 
 
 CHAPTER ni. 
 Circumstantial and Presumptive Evidence. - - - - 76 
 
 CHAPTER IV. 
 
 Circumstantial Evidence, as an instrument of Judicial investi- 
 gation. - .......88 
 
X CONTENTS, 
 
 Section I. 
 The Object of Inquiry, or Principal fact sought. - - 118 
 
 Section II. 
 
 The Facts proved, constituting the Materials of the evidence 
 and Basis of inference or presumption. .... 120 
 
 Section III. 
 The Process of Inference or Presumption. ... - 146 
 
 Section' IV. 
 The Conclusion or Verdict. 195 
 
 CHAPTER V. 
 Relative value of direct and Circumstantial £vidence. - - 206 
 
 PART II. 
 
 ClKCUMSTANTIAL EviDENCE, CONSIDERED WITH KEFBEENCE TO 
 
 ITS Materials ok elements, their use and application 
 AS PROOF, and the Rules or Principles bt which such 
 APPLICATION IS governed. --...- 249 
 
 CHAPTER I. 
 
 Facts or circumstances, consid'ered as the Elements or materials 
 of evidence ; including a view of their sources and varieties, and 
 of their probative force individually. - - . - . 250 
 
 Section I. 
 Criminative or inculpatory Circumstantial Evidence. - - 252 
 
 Section II. 
 Physical facts or Circumstances. ..... 253 
 
CONTENTS. SI 
 
 Sjbotion III. 
 Moral Circumstances — ^Precedent Circumstances. - - - 280 
 
 Section IV. 
 Motives to the commisfflon of crime. - • - - 281 
 
 Section V. 
 
 Means of commitlang crime, as a subject of contemplation in 
 connection with motives. - - - - - - -329 
 
 Section VI. 
 Verbal intimations of future criminal action. - - . 331 
 
 Section VH. 
 Expressions of iU wilL ^ •---.. - 335 
 
 Section VHI. 
 Declarations of criminal intention. - - • . - 338 
 
 Secuqn IX. 
 Threats to injure or destroy. 340 
 
 Section X. 
 Preparations for crime, including the acq[uisition of means. 343 
 
 Section XI. 
 
 Opportumties and facilities for the commission of crime, in- 
 cluding the possesion of means. .... 354 
 
 Section XTT. 
 Attempts to commit crime. ...... 365 
 
 Section XTTT. 
 Concomitant Circumstances. -----. 368 
 
Xii CONTEXTS. 
 
 Section XIV. 
 Subsequent Circumstances. - .... 401 
 
 Section XV. 
 Destruction, Suppression and Eloignment of Evidence. - 402 
 
 Section XVI. 
 Fabrication or Forgery of Evidence. - - . . . 420 
 
 Section XVII. 
 Possession of articles of Criminative evidence. - . - 436 
 
 Section XVIII. 
 Recent possession of the Fruits of crime. ... - 445 
 
 Section XIX. 
 Sudden change of life or Circumstances. - - - . 457 
 
 Section XX. 
 
 Conduct, Demeanour and Language after the commission of 
 crime. .---- 459 
 
 Section XXI. 
 Alarm and confusion in view of Discovery. ... 455 
 
 Section XXII. 
 Concealment and Flight. • - 469 
 
 Section XXIII. 
 
 Conduct and language on arrest: Fear as expressed by de- 
 portment. - 474 
 
 Section XXIV. 
 Silence under Accusation. ....... 480 
 
CONTENTS, Xiii 
 
 Section XXV. 
 Evasive and incomplete Response. 486 
 
 Section XXVI. 
 False Response or explanation. . , . . . 433 
 
 Section XXVII. 
 Indirect Confessional Evidence. 495 
 
 Section XXVILE. 
 Demeanor durmg Trial. 502 
 
 Section XXIX. 
 
 Exculpatory circumstantial evidence, and its materials, includ- 
 ing the Infirmative circamstances and considerations applicable to 
 criminative evidence. ■ - - 508 
 
 Section XXX. 
 Exculpatory Facts or circumstances, actually proved. - - 509 
 
 Section XXXI. 
 
 Exculpatory facts or circumstances, not Necessarily proved ; 
 Deing the Infirmative considerations applicable to the criminative 
 facts proved. ..---.--- 536 
 
 CHAPTER II. 
 
 Facts or circumstances, considered as constituting Bodies of 
 Evidence ; including a view of the Principles upon which they 
 are applied to the purpose of proof, and the Processes involved in 
 . Buoh application. -------- 581 
 
 Section I. 
 
 The Process of constructing a body of evidence out of cir- 
 cumstances, considered as developing the essential Principles up- 
 on ■which its efficacy as proof depends. - . 582 
 
 B 
 
XiV CONTENTS, 
 
 Section II. 
 The subject continued, with illustrations from Actual Cases. 602 
 
 Section HI. 
 
 Recapitulation of Processes involved in the application of cir- 
 cumstantial Evidence. ----.-. 629 
 
 Section IV, 
 The process of Identification, particularly considered, r - 631 
 
 Section V. 
 Psychological Considerations. -..-.. 663 
 
 Section VI, 
 Proof of a Corpus Delicti. -.--.. 677 
 
 CHAPTER ni. 
 
 Bules of Circumstantial Evidence, given as Eesults of the pre- 
 ceding views. -.- -..-. 727 
 
 Section I. 
 General and preliminary Rules of Evidence, ... 728 
 
 Section II. 
 Rules regulating the formation of the Basis of proof, or pre- 
 sentation of the evidence of the facts from which the inference 
 of guilt is to be drawn. .---... 731 
 
 Section HI. 
 
 Rules of Inference, by which the Factum proiandum is de- 
 duced in the first instance from the evidentiary facts proved. 734 
 
 Section IV. 
 Rules for the more certain attainment of Truth in the conclu- 
 sion or verdict, and for the avoidance of error and consequent 
 injustice to the accused. ------. 737 
 
TABLE OF CASES. 
 
 Abercrombie's case, 255, 480, 
 
 594. 
 Adam's case, 290, 359, 377, 
 406, 480, 491, 684. 
 Adams, Rex v. 448, 449. 
 
 Adams, State v. 449, 490. 
 
 Alcorn, Rex v. 548. 
 
 Annesley v. Anglesea, 13, 217. 
 Antonio, State v. 438. 
 
 Appleby, Rex v. 482. 
 
 Aram's (Eugene) case, 326, 463. 
 Arden's (Mrs.) case, 132, 254, 
 
 257, 264, 275, 290, 296, 
 350, 351, 366, 373, 429, 
 475, 670. 
 
 Armstead's case, 452. 
 
 Arrison, State v. 255, 256, 257, 
 
 258, 261. 339, 346, 347, 
 389, 474. 
 
 Arery, State v. 98, 101, 108, 
 134, 142, 273, 274, 383, 
 385, 514, 571, 621, 638, 
 639, 711. 
 
 B 
 
 Badgley, People v. 499. 
 
 Banbuiy Peerage case, 38. 
 
 Barbot, Rex v. 69, 180, 217, 
 226, 255, 259, 260, 276, 
 336, 339, 349, 350, 378, 
 381,383,638,639. 
 
 Barnard, Rex v. 154, 174 
 
 Beards, Rex v. 257, 258, 260, 
 
 268, 413, 442, 451, 542, 
 
 644. 
 Beehan, People v. 254, 255, 
 
 256, 258, 259, 260, 271, 
 
 291, 388, 471, 492, 637. 
 Bell, Pennsylvania v. 49. 
 
 Bell's case, 377, 56§. 
 
 Bellingham, Rex v. 291. 
 
 Bennet, State v. 449. 
 
 Berry's case, 542. 
 
 Bingham, Rex v. 522. 
 
 Bishop, WUliama and May, 
 
 Rex V. 258, 261, 286, 409, 
 519. 
 Blandy's (Mary) case, 217, 255, 
 
 259, 261. 289, 291, 295, 
 
 309, 310, 334, 338, 354, 
 
 358, 364, 391, 393, 394, 
 
 410. 
 Blatch V. Archer, 165. 
 
 Blodgett, State v. 726. 
 
 Bodine, People v. 78, 79, 83, 
 
 201, 204, 209, 222, 226, 
 
 232 259 
 Bolam, Rex v. 259, 260, 424. 
 Booms, State v. 539, 579. 
 
 Booth, Rex V. 262, 538. 690. 
 Bowman, Rex v. 270, 641, 644. 
 Bradford's case, 356, 370, 373, 
 
 542, 552. 
 Brewster, State v. 446. 
 
 Brindley, Rex v. -257, 259, 269. 
 
SVl 
 
 TABLE OP CASES. 
 
 Bronson, State v. 726. 
 
 Brook, Eex v. 638, 639, 640. 
 
 Burdett, Eex v. 9, 10, 12, 23, 24, 
 27, 65, 69, 73, 80, 117, 
 118, 165, 166, 167, 728, 
 729 730 
 
 Burdock, Kex v. 254, 259, 261, 
 287, 348, 357, 390, 393, 
 397, 403, 459, 672, 718. 
 
 Burke and Macdougal, Eex v. 
 286, 361. 
 
 C 
 
 Cadogan v. Cadogan, 119. 
 
 Canton and Bedding's case, 213. 
 
 Carawan, State v. 254, 256, 258, 
 272, 274, 275, 304, 327, 
 337, 341, 358, 378. 381, 
 385, 386, 387, 405, 409, 
 412, 418, 430, 435, 439, 
 462, 471, 474, 507, 637, 
 673, 701. 
 
 Carey v. The State, 726. 
 
 Carter, Eex v. 563, 654. 
 
 Chapman, Commonwealth v. 
 
 2bb, 337, 359, 390, 397, 
 721. 
 
 Chislie's case, 291. 
 
 Cicely, State v. 254, 255, 256, 
 257, 260, 264, 265, 267, 
 423, 437, 460, 464, 471. 
 
 Clewes, Eex v. 681. 
 
 Clinch and Mackley, Eex v. 645. 
 
 Cochrane, Peoplaw. 298, 523. 
 
 Cockin's case, 446, 454, 582. 
 
 Coe's case, 476. 
 
 Cole, Eex v. 55. 
 
 Coleman's case, 519, 571, 577, 
 578. 
 
 Collins' case, 454. 
 
 Colt, People V. 98, 100, 135, 
 137, 254, 255, 256, 258, 
 261, 277, 408, 4fi9, 413, 
 415, 416, 429, 437, 673, 
 6S1, 684, 691. 
 
 Columbia v. Harrison, 496. 
 
 Cook, Eex V. 254, 407, 679. 
 Corder, Eex v. 347, 384, 409. 
 
 431, 462, 475, 668. 
 Couley V. The State, 499. 
 
 Courtnage and Mossingham, 
 
 Eex V. 273. 
 
 Courvoisier, Eegina v. 256, 261, 
 
 270, 291, 295, 417, 423, 
 
 424, 438, 697, 724. 
 Cowper, Eex v. 101, 885, 514, 
 
 717. 
 Cruttenden, Eex v. 448. 
 
 Cunningham's case, 359, 426, 
 
 553, 556. 
 
 D 
 
 D'Anglade's ease, 438, 458, 565, 
 
 572. 
 Davis V. The People, 446, 450, 
 
 451, 452, 455, 456. 
 Davison, Eex v. 581. 
 
 Dawtry, Eex v. 259, 260, 276, 
 
 642. 
 Dean, People v. 726. 
 
 Delahunt's case, 215. 
 
 Dewhirst, Eex v. 448. 
 
 Diggles, Eex v. 262, 452, 455. 
 
 642. 
 Dixon, Eex v. 44, 47. 
 
 Dodd's (Dr.) case, 326. 
 
 Doe d. PatteshaU v. Tur- 
 
 ford, 151. 
 Donellan, Eex v. 117, 217, 254, 
 
 258, 260, 261, 280, 289, 
 
 303, 334, 347, 358, 359, 
 
 361, 391, 404, 410, 411, 
 
 414, 438, 460, 461, 476, 
 
 603—664. 
 DonnaU, Eex v. 403, 411, 718. 
 Dorset's case, 363. 
 
 Douglas' case, 23, 81, 197. 
 
 Douglass V. Tousey, 526, 527. 
 Downie and Milne, Eex v. 644. 
 Downing, Eex v. 262, 522, 538, 
 
 5^2. 
 
TABLE OP CASES. 
 
 XYU 
 
 Drayiie's case, 253, 254, 257, 
 258, 351, 356, 409, 415, 
 431, 437, 444.452,458, 
 462, 684. 
 
 DuMoulin's case, 564. 
 
 Du Tilh's case, 646. 
 
 B 
 
 Eldridge, Eex v. 
 Ellis, Rex V. 
 
 F 
 
 498. 
 566. 
 
 Farrell, Pennsylvania v. 726. 
 Fanington, Eex v. 44, 48. 
 
 Faulkner and Bond, Rex v. 498. 
 Fauntleroy, Rex v. 530, 671, 
 
 675. 
 Fellows, Rex v. 726. 
 
 Ferguson, People v. 653. 
 
 Fern's case, 304, 312 
 
 Ferrers' (Earl) case, 309, 326, 
 
 351. 
 Fisher, Rex v. 498. 
 
 Fitter, Rex v. 535. 
 
 Floyd, State v. 447, 449. 
 
 Forbes, Rex v. 198 
 
 Ford, State v. 531 
 
 Foster's (Dr.) case, 472. 
 
 Foxley's case, 472. 
 
 Francis, Commonwealth v. 235, 
 
 273. 
 Fraser, Rex v. 513. 
 
 Frazier, People v. 456. 
 
 Freeland's case, 531. 
 
 Freeman, United States v. 531. 
 Fuller, Commonwealth v. 255, 
 
 291, 350. 372. 
 Furber v. HUliard, 726. 
 
 G 
 
 Galbrant'fl caae, 
 Gardner, People v. 
 
 475. 
 364, 438. 
 
 Gibert, United States v. 117, 
 211, 213, 214, 215, 216, 
 
 '.^30, 679. 
 Giles, Regina v. 326. 
 
 Giles V. The State, 197, 198. 
 Gilham, Rex v. 499. 
 
 GiU. Rex V. 557, 565. 
 
 Godfrey's (Sir Edm.) case, 143. 
 Goodere, Rex v. 256, 326, 328, 
 
 335, 360. 383, 530. 
 Goodtitle v. Duke of Chandos, 
 
 54, 121. 
 Gottfried's case, 254, 255, 289, 
 
 290, 322, 334, 348, 349, 
 
 358, 390, 394 395. 
 Graham, People v. 255, 409. 
 Graham, People v. 692. 
 Green, Rex v. 61, 120, 149, 216, 
 
 217. 
 
 Green, People v. 254, 255, 256, 
 259, 261, 290, 299, 305, 
 315, 317, 328, 348, 349, 
 354, 359, 394, 395, 397, 
 672. 
 
 Green, Berry and Hill's case, 421. 
 
 Greenacre, Rex v. 253, 254, 407, 
 491, 556, 682, 692. 
 
 Grim wood's case, 543. 
 
 Guerre's (Martin) case, 646. 
 
 Grunzig, People v. 397. 
 
 Guild, State v. 499. 
 
 H 
 
 Hackman's (Rev.) case, 327. 
 
 Haggerty, People v. 475. 
 
 Haire v. Wilson, 44. 
 
 Hamilton, State v. 726. 
 
 Harden v. Gordon, 44. 
 
 Hardy. Commonwealth v. 531, 
 533. 
 
 Harman, Commonwealth v. 6, 8, 
 74, 118,. 210, 213 214, 
 235, 291, 336, 337, 340, 
 
 359, 519, 640. 
 Harris' ease, 234, 563, 573 
 
XVUl 
 
 TABLE OP CASES. 
 
 Harrison, Eex v. 2bb, 256, 260, 
 
 291, 336, 337, 340, 359, 
 
 519, 640. 
 Hart V. Newland, 138, 151. 
 
 Hauer, Commonwealth v. 271, 
 
 275, 289, 295, 353, 366. 
 Hainee, Kex v. 639, 640. 
 
 Hawkins v. The State, 499.' 
 
 Hawkins and Simpson's case, 518. 
 Hawkins, Eegina v. 523. 
 
 Heath and Crowder, Kex v. 258, 
 
 270, 364, 474. 
 Heaton, Rex v. 267.' 
 Helms' case, 400. 
 
 Hendrickson, People v. 295, 394, 
 
 397. 
 Hendrickson v. The People, 304, 
 
 305, 322. 
 Hennessey, People v. 499. 
 
 Hewlett, Eegina v. 449. 
 
 Hill, Eex V. 255, 256, 258, 260, 
 
 261, 346, 364, 399, 438, 
 
 643. 
 Hill's case, 49. 
 
 Hill's case, 277. 
 
 Hillary v. Walker, 27, 44, 203. 
 Hindmarsh, Eex v. 680. 
 
 Hoag, People v. 650. 
 
 Hoare, People v. 309. 
 
 Hodges, Eegina v. 198, 207. 
 Hodgkiss' case, 533. 
 
 Holroyd's case, 834. 
 
 Honeyman, Pennsylvania v. 49. 
 How, People v. 254, 256, 257, 
 
 258, 259, 260, 272, 291, 
 
 336, 340, 341, 349, 379, 
 
 382, 385. 
 Howe, Rex V. 271, 272, 285, 
 
 S03, 364, 378, 414, 445, 
 
 452, 474, 489, 639, 641, 
 
 643. 
 Howell, People v. 726. 
 
 Hughes V. The State, 446. 
 
 Hutchinson, Commonwealth v. 
 
 726. 
 
 Jaoobson, United States v. 117, 
 
 217. 
 Jenkins, State v. 446, 454. 
 
 Jenning's case, 425, 442. 
 
 Johns, United States v. 117. 
 Johnson, People v. 254, 257, 
 
 259, 261, 373, 408, 409, 
 
 417, 480. 
 Johnson, People v. 299. 
 
 Johnson and Fare, Eex v. 257, 
 
 271, 272, 275, 361, 377, 
 
 535, 542, 661. 
 Jones, United States v. 213. 
 Jones, Eex v. 642, 661. 
 
 K 
 
 Keating, Respublica v. 726. 
 Kenney, Commonwealth v. 484, 
 
 486, 574, 575. 
 Kesler, People v. 255, 259, 290, 
 
 336, 390, 394, 395. 
 Kimball, Commonwealth v. 729. 
 Kimmel v. Kimmel, 527. 
 
 King V. Francis, 281. 
 
 Kirby, People v. 531. 
 
 Lake, People v. 282, 296, 299, 
 
 315, 317, 322. 
 Lalouettes' case, 394. 
 
 Lamb's case, 451, 540, 563. 
 Lambe, Rex v. 496, 498. 
 
 Le Brun's case, 271. 
 
 Lewis, Pennsylvania j. 49. 
 
 Looker, Eex v. 273. 
 
 Long, State v. 499. 
 
 Loveden v. Loveden, 119. 
 
 M 
 
 Mansfield, Eegina v. 451. 
 
TABLE OF CASES. 
 
 XIX 
 
 Mason, People v. 646. 
 
 Maxwell, People v. 298. 
 
 Mazagora, Kex v. 44. 
 
 McCann, State v. 177, 254, 25C, 
 
 257, 258, 259, 275, 379, 
 
 381, 386, 475, 636, 681, 
 
 684, 700. 
 MoCann v. The State, 102, 118, 
 
 139, 198, 214. 
 McDaniel, Rex v. 215. 
 
 McFall, Pennsylvania v. 49. 
 McKecbnie, and Tolmie, Rex v. 
 
 453. 
 MoKinley, Rex v. 198. 
 
 MeLeod, People v. 49. 
 
 Mendum v. The Commonwealth, 
 
 621, 642, 660. 
 Merrick, State v. 446, 455, 561. 
 Millard, Commonwealth v. 452, 
 
 454, 455. 
 Milia, Commonwealth v. 255, 
 
 348. 
 Montgomery, Commonwealth v. 
 
 457, 659. 
 Mountford, Rex v. 255, 389. 
 Murphy's case, 363. 
 
 Myers, Pennsylvania v. 446, 
 
 452. 
 
 N 
 
 V*irn and Ogilvie, Rex v. 133, 
 255, 259, 290, 337, 339, 
 348, 349, 358, 359, 390, 
 394, 395, 419, 434, 461, 
 672. 
 
 Vieholson, Rex v. 267, 309. 
 
 N'orkott's case, 77, 143, 256, 
 257, 421, 422, 478, 687, 
 697, 706. 
 
 
 
 O'Bryan, People v. 623 
 
 O'Hara, Commonwealth v. 49. 
 
 P 
 
 Palayo, Rex v. 271, 389, C41. 
 Partridge, Rex v. 449. 
 
 Patch, Rex V. 102, 259, 261, 
 
 271, 276, 287, 295, 345, 
 
 351, 361, 490, 492, 637. 
 Peck, Commonwealth v. 726. 
 Peroival, Commonwealth v. 158. 
 Perry's case, 215. 
 
 Peverelly, People v. 255, 256, 
 
 258, 261, 276, 347, 351, 
 
 398. 
 Phelps, Commonwealth v. 338, 
 
 394. 
 Phelps, State v. 726. 
 
 Pomcroy, People v. 475. 
 
 Preston, People v. 446, 455. 
 Pryor's case, 535, 54S. 
 
 Q 
 
 Quaekenboss, People v. 
 523. 
 
 R 
 
 475, 
 
 Rathbun, People v. 470, 515, 
 522. 
 
 Read, Rex v. 498. 
 
 Reynolds' case, 490. 
 
 Rhodes' case, 400. 
 
 Richardson, Rex v. 243, 255, 
 257, 259, 260, 268, 271, 
 274, 276, 291, 378, 380, 
 381, 383, 409, 413, 466, 
 489, 512, 542, 637. 
 
 Rickmans, Rex v. 138, 455. 
 
 Riembauer's case, 253, 256, 
 
 259, 291, 327, 412, 435, 
 438. 493. 
 
 Riley's case, 452, 490 
 
 R,obinson (R. P ) People v. 142, 
 254, 417, 519. 
 
XX 
 
 TABLE OF CASES. 
 
 Robinson (Henrietta) People v. 
 282, 297, 390, 396. 
 
 Robinson, State v. Ill, 278, 
 288, 360, 406, 412, 415, 
 416, 417, 430, 437, 438, 
 440, 443, 445, 459, 462, 
 464, 467, 482, 487, 490, 
 493, 494, 642, 661, 684. 
 
 Rebinson v. The State, 499. 
 
 Robinson, Rex v. 645. 
 
 Robinson's case, 711. 
 
 Robinson v. Blon, 485, 575. 
 
 Ross, Respublica v. 726. 
 
 Rush, Regina v. 274, 291, 295, 
 
 336, 350, 379, 382, 883, 
 
 435, 492, 506, 634, 637, 
 
 638. 
 
 S 
 
 Sawyer, Regina v. 211, 642, 
 
 Schonleben's case, 255, 358. 
 393, 396. 
 
 Sellick, People v. 410. 
 
 Shaw's case, 155, 535, 542. 
 
 Shaw, Rex v. 267. 
 
 Sheppard, Rex v. 44. 
 
 Shoppard, Respublica v. 726. 
 
 Shurtliff, State v. 726. 
 
 Simmons, Rex v. 271, 291, 622. 
 
 Simmons v. The State, 726. 
 
 Simons, Rex v. bll. 
 
 Smith, People v. 452. 
 
 Smith, Regina v. 454. 
 
 Smith, Respiiblica v. 726. 
 
 Smith, Varnham, and TimiriS, 
 
 Rex V. 257, 258, 260, 
 
 262, 265, 268, 277, 302. 
 
 350, 413, 417, 419, 438, 
 
 442, 452, 642, 670. 
 
 Smithies, Rex v. 483, 487. 
 
 Snell, Commonwealth v. 726. 
 
 Spooner's (Mrs.) case, 132, 256, 
 
 257, 260, 265, 290, 296, 
 
 304. 337, 341, 350, 406, 
 
 413, 429, 437, 443, 461, 
 
 480, 668. 
 
 Spring, Commonwealth v. 
 2bl, 260, 379, 
 
 Standsfield,RexjJ. 38, 254, 
 
 258, 264, 291, 337, 
 
 430, 461, 479, 
 
 Stanton, State v. 
 
 Stone, Rex v. 
 
 Stewart, Rex v. 229, 233, 
 256, 305, 318, 336, 
 340, 358, 378, 381, 
 
 Strangwayes' (Major) case, 
 275, 291, 308, 326, 
 347, 352, 384, 479, 
 
 Swan and Jeffreys, Rex v. 
 
 Swink, State v. 
 
 254, 
 413. 
 257. 
 340, 
 717. 
 726. 
 198. 
 255, 
 337, 
 545, 
 639. 
 272, 
 340. 
 516. 
 266, 
 429. 
 485. 
 
 T 
 
 Tawell, Regina «. 235, 311, 391, 
 460, 492, 718, 719. 
 
 Taylor, Rex v. 499. 
 
 Taylor's case, 708 
 
 Teal, People v. 299, 524, 673. 
 
 Thorn, State v. 691. 
 
 Thornton, Rex v. 256, 257. 267. 
 268, 377, 384, 514, 553. 
 
 Thurtell and Hunt, Rex v. 255, 
 
 257, 258, 259, 345, 406, 
 
 409, 412, 437, 438, 443. 
 
 684. 
 
 Tippet, Rex v. 498. 
 
 Tnrrell, People v. 455. 
 
 Tyner 7). The Statue, 726. 
 
 Vane, People ». 
 Videto, People v. 
 Voke, Rex v 
 
 W 
 
 Waigh, Rex v. 
 Warren v. The State, 
 
 531 
 
 701. 
 
 311, 366: 
 
 531 
 
 450 
 
TABLE OP CASES. 
 
 XXI 
 
 Warrickshall's case, 496, 498. 
 
 Watson, Rex v. 450, 451. 
 
 Webster, Commonwealth v. 49, 
 69, 77, 98, 104, 118, 
 126, 136, 137, 143, 157, 
 160, 163, 164, 167, 169, 
 179, 186, 193. 197, 198, 
 199, 201, 228, 236, 253, 
 254, 258, 259, 261, 272, 
 273, 277, 278, 291, 407, 
 409, 415, 416, 429, 432, 
 484, 438, 440, 464, 467, 
 476, 494, 501, 520, 531, 
 532, 533, 637, 662, 679, 
 682, 684, 691, 729. 
 
 Webster, Rex v. 
 
 Weeks, People v. 
 
 Wells, State v. 
 
 Weston, State v. 
 
 Wheeling, Rex v. 
 
 Whiley's case. 
 
 White, Rex v. 
 
 Whitney, Commonwealth v. 
 Whittall, Rex v. 
 Whitten, State v. 
 Williams, People v. 255, 
 336, 394, 
 Williams, Commonwealth v. 
 
 Williams, State v. 446, 
 Williamson, People v. 
 Wolff, State V. 
 Wood, People v. 285, 303, 
 Wood and Brown, Rex v. 
 Woodbury, Commonwealth v 
 
 44. 
 521. 
 
 726. 
 290, 
 396. 
 438, 
 439. 
 448. 
 653. 
 447. 
 379. 
 552. 
 
 158. 
 
 563, 655. 
 
 
 
 717. 
 
 Tend, Rex v. 
 
 725 
 
 531. 
 
 York, Commonwealth v 
 
 49. 
 
 446. 
 
 
 
 498. 
 
 Z 
 
 
 400. 
 
 
 
 382, 383. 
 
 Zellers, State v. 
 
 49. 
 
CIRCUMSTANTIAL EVIDENCE, 
 
 PAET I. 
 
 GENERAL OR INTRODUCTORY VIEW. 
 
 CHAPTER I. 
 
 EVIDENCE IN GENERAL. 
 
 " The word evidence" observes an American jurist, " in 
 legal acceptation, includes all the means by which any al- 
 leged matter of fact, the truth of which is submitted to in- 
 vestigation, is established or disproved." (a) Considered 
 with reference to its derivation, it is that which serves to 
 make clear, or evident, the truth of an alleged fact. (&) 
 
 Evidence may otherwise be concisely defined, by distin- 
 guishing it from the term " proof," with which it is some- 
 times confounded, (c) Evidence is not proof, but the me- 
 dium of proof; proof is the effect or result of evidence, (jl) 
 " Proof," in the words of an English writer on the subject, 
 " is the perfection of evidence ; without evidence there can 
 be no proof, although there may be evidence which does not 
 amount to proof. Take the case, for instance, of a man 
 
 (a) 1 Greenleaf on Evidence, § 1. See Wills on Ciroumgtantial Evidence, 1 , 2. 
 
 (6) See note (a) on next page. Sir William, Blackstone has defined evidence 
 in more absolute terms, as " that which demonstrates, makes clear or ascertains 
 the truth" of a fact or point in issue. 3 Bl. Com. 367, But this, as will be 
 seen in the text, is rather the definition of proof. 
 
 (c) See 3 Bl. Com. 367. 
 
 (t/) 1 Greenl. Evid. § 1 . Wills on Circ. Evid. 2. 
 
2 EVIDENCE IN GENERAL. [PART I. 
 
 found murdered at a spot towards wliich another had been 
 seen walldng, a short time before ; this fact would be evidence 
 to show that the latter was the murderer, but, standing alone, 
 would be far from ^roo/ of it." (a) 
 
 Evidence has been well described as a relative term, hav- 
 ing no complete signification of itself, and presenting no 
 complete idea to the mind, unless in connection with the 
 object to which it necessarily relates. (&) That object is 
 fact, or matter of fact. Hence the idea of fact is insepa- 
 rable from that of evidence. Facts have been called " the 
 necessary subject matter of evidence ; " (c) its component ma- 
 terials ; (d) and, in short, evidence has been defined in so 
 many words, as matter of fact itself, (e) 
 
 Evidence, in a legal point of view, may be considered as 
 the statement or presentation to a judicial tribunal, of one 
 or more matters of fact, in a proper form to be used in the 
 investigation of some other matter of fact, the existence of 
 which is questioned, and which is intended to be made the 
 basis of a decision. (/) In such investigations, there are 
 
 (a) Best on Presumptions, §6. The term "eTidence," in this sense, is 
 considered by Mr. Best to be peculiar to the English law. The Latin evidentia 
 and French evidence, when used by foreign jurists, he observes, are rather in- 
 tended to designate clearness or fullness of conviction. Id. ibid, note ; citing 
 Mascardus de Prob. lib. 1, quaest. 8; Domat, Lois Civiles, liv. 3. tit. 6. And 
 see Burlamaqui, Principles of Natural and Politic Law, part 1, ch. 1, sec. 9. 
 Evidence, in the latter sense, is properly the state or quality of bein^ evident, 
 that is, clear, manifest, open to view; (Lat. e, out, and videre, to see,) which, 
 indeed, is the true radical meaning of the English word. Johnson's Diet. 
 
 The Latin probatio, commonly translated by the English word "proof," is 
 frequently used by the civilians, to designate direct evidence, in contradistinc- 
 tion to prasumptio, argumentum, &c. J. Voet ad Pand. lib. 22, tit. 8, n. 15, 
 &c. Best on Pres. § 4, note. 
 
 (6) 1 Bentham's Rationale of Judicial Evidence, 17, 39, 
 
 (c) Id. ibid. 
 
 (d) 1 Starkie on Evidence, 14, 15. 
 (c) 1 Benth. Jud. Evid. 17. 24. 
 
 (/ ) Mr, Starkie has defined evidence to be " that which is legally submitted 
 to a jury, to enable thom to decide upon the questions in dispute, or issues as 
 pointed out by the pleadings, and as distinguished from all comment and argu- 
 ment." 1 Stark. Evid. 8, 9. 
 
CHAP. I.] EVIDENCE IN GENERAL. 3 
 
 always two general descriptions of facts involved : first, the 
 facts whicli are the ultimate objects of the inquiry, and re- 
 specting the existence of which, a definite belief or persua>- 
 sion is required to be formed ; and, secondly, the facts which 
 are immediately presented by the evidence, and the effect, 
 tendency or design of which is to produce such belief or 
 persuasion, (a) The former of these may, from their supe- 
 rior importance and prominence, be distinguished as princi- 
 pal facts; the latter may be designated as evidencing or 
 evidentiary facts, and, where they actually have the effect 
 of producing the degree of persuasion desired, as proving or 
 probative facts. (6) Evidentiary facts, thus connected with 
 principal facts, constitute what will presently be described 
 as circumstantial evidence, (c) 
 
 The principal facts which it is the object of the investiga- 
 tion or trial to prove by evidence, are always formally put 
 in issue between the contending parties, by pleadings framed 
 for the purpose ; and, in civil cases, there frequently are 
 several of these facts or issues presented, at once, for proof 
 and determination. In criminal cases, however, there is but 
 
 (a) Mr. Beniham, has defined evidence, in general, to be " any matter cf 
 fiict, the effect, tendency or design of which, when presented to the mind, is to 
 produce a persuasion therein, af5rmative or disaffirmative of the existence of 
 some other matter of fact." 1 Jud. Evid. 17, 18. This definition has been 
 adopted by Mr. Best, in his " Treatise on Presumptions and Presumptive Evi- 
 dence," p. 7, § 6. 
 
 (6) This distinction, together with the terms used to express it, is taken 
 from the work of Mr. Beniham, already cited. 1 Jud. Evid. 18, 40. 3 Id. 2, 
 3. The terms themselves belong to a numerous class, coined by that eccentri-: 
 writer, in oharacteristio disregard of authority, and mth a sole view to conve- 
 nience of expression. Some of these are extremely uncouth, besides being, in 
 fact, uncalled for: such as " disprobabilize," " clandestmity," " jaotitantial, " 
 and the like. Others are less objectionable, and of this number are " eviden- 
 tiary," " probative," and " iufirmative." As the latter epithets possess the 
 undoubted merit of expressing certain necessary ideas with much precision, 
 they have been adopted and freely used by late writers of authority on the 
 subject of presumptive and circumstantial evidence Best on Pres. § 6, et 
 passim. Wills, Circ. Evid. 22, 35. 
 
 1 1 1 Benth. Jud. Evid. 60. 
 
4 DIRECT AND [PAET I. 
 
 one ultimate principal fact to be proyecl, — the guilt of the 
 accused ; but one issue to be tried, — that of guilt or inno- 
 cence. 
 
 Evidence, as thus presented for the consideration of courts 
 of justice, is of two kinds ; direct and indirect, (a) 
 
 Direct evidence, (or positive evidence, as it is sometimes 
 called, (b) ) is that which is applied to the fact to be proved, 
 or principal fact, immediately and directly, and without the 
 aid of any intervening fact or process : (c) as where, on a 
 trial for murder, a witness positively testifies that he saw 
 the accused give the mortal wound, or administer the poison. 
 Here, the fact of the killing, which is sought to be proved, 
 is the very fact testified to ; it is contained, as the civilians 
 express it, in the testimony itself, (rf) and needs no process 
 of special inference to make it appear. The moment the 
 testimony is given, if it is believed, the fact, (so far as the 
 affirmative of the issue is concerned,) is considered to be 
 proved, (e) 
 
 Indirect evidence (called by the civilians, oblique, (/) and 
 more commonly known as circumstantial evidence) is that 
 which is applied to the principal fact, indirectly, or through 
 the medium of other facts, by establishing certain circum- 
 stances or minor facts, already described as evidentiary, 
 from which the principal fact is extracted and gathered by a 
 process of special inference : (g-) as where a witness testifies 
 
 (o) 1 Stark. Evid. 446,454. The civilians have adopted a similar division. 
 Omnis nostra probatio aut directa est, aut obliqua. Vinnius, Jurispr. Contr. 
 lib. 4, c. 25. 
 
 (6) 1 Stark. Evid. 18. Theory of Presumptive Proof, 17. 1 Greenl. Evid. § 13. 
 
 (c) 1 Benth. Jud. Evid. 41, note. 1 Greenl. Evid. § 13. 
 
 (ri) Direota, [^est probaiio"] cum id quod probare volumus, ipsis tabulis aut 
 testimoniis continetur. Vinn. Jurispr. Contr. ubi supra. 
 
 (e) 1 Greenl. Evid. § 13. See Wills Circ. Evid. 16. 
 
 (/ ) Vinnius Jurispr. Contr. ubi supra. 
 
 (g-) 3 Benth. Jud. Evid. 2, 5. Probatio obliqua est, cum id quod intendi- 
 m'JLs ex tabulis aut testimoniis argumentando coUigitur. Vinn. Jurispr. Contr. 
 ubi supra. 
 
CHAP.. I.] INDIRECT EVIDENCE. 5 
 
 that he sold a deadly weapon, or poison to the accused, 
 shortly before the murder ; or that he saw him in the imme- 
 diate vicinity of the place where the crime was committed, 
 at or near the time of its commission. Here, it is not suffi- 
 cient merely to present the facts themselves, and to prove 
 them, though ever so clearly. They must be actually con- 
 nected with the fact sought, and this is effected by an inter- 
 mediate process of reasoning or inference, in which the faculty 
 of judgment is called into exercise, and which is commonly 
 known as presumption, (a) 
 
 Thus, the characteristics of indirect or circumstantial evi- 
 dence, as distinguished from that which is direct, are, first, 
 the existence and presentation of one or more facts of the 
 class described as evidentiary ; (6) and, secondly, a process 
 of special inference, by which these facts are so connected 
 with the fact sought, as to tend to produce a persuasion 
 of its truth, (c) Hence it has been very significantly 
 
 (a) See the next chapter. According to Mr. SfarWe, evidence is either direct 
 and positive, or presumptive and circumstantial. " It is direct and positive 
 when the very facts in dispute are communicated by those who have had actual 
 knowledge of them by means of their senses, and where, therefore, the jury 
 may be supposed to perceive the fact through the organs of the witness. It is 
 presumptive or circumstantial, where the evidence is not direct; but where, on 
 the contrary, a fact which is not directly and positively known, is presumed or 
 interred from one or more other facts or circumstances which are known." 1 
 Stark. Evid. 18. In this explanation, it will be seen, there is no reference to 
 documentary evidence. This has been observed by an accurate writer, who 
 distinguishes the two species of evidence in the following clear and comprehen- 
 sive terms: When the witness or document attests the very fact to be proved, 
 (as when a man proves the making of a promissory note by the defendant, 
 who denies that he made it; when a man states that he was stabbed by the 
 prisoner who is indicted for the stabbing; or the date of a man's death is 
 proved by a monumental inscription or an entry in a parish book;) the evi- 
 dence is said to be positive or direct. But if the witness or document attests, 
 not the fact to be proved, but something from which that fact may be inferred, 
 the evidence is said to be presumptive or indirect. 6 London Law Magazine, 
 358, 359. And see Best on Pros. § 186. 
 
 (6) See ante, p-. 8. 
 
 (c) In the case of direct evidence, also, it has been said, there is alivavs an 
 
6 DIRECT AND [PART I. 
 
 called in Scotch jurisprudeiice, argumevtaiive evidence, (a) 
 In a certain point of view, or up to a certain point of the 
 procedure, indirect evidence is itself of a direct character. 
 The minor or evidentiary facts which are relied on, as the 
 basis of the inference required, must always be directly 
 p:Coved. (b) So far as the evidence goes to prove them, it 
 is unquestionably and necessarily direct. But in giving 
 characteristic names to these species of evidence, we are to 
 consider their relation to the principal fact, or ultimate 
 object of the investigation, and not to any thing intermedi- 
 ate. Direct and indirect evidence both equally contemplate 
 such a principal fact, but they arrive at it iu different ways ; 
 the former by a direct course ; the latter, indirectly or 
 obliquely ; that is, through other facts, (c) 
 
 evidentiary foot presented, but it is throughout of a uniform description, 
 namely, the existence of a person appearing in the character of a ■witness, and 
 asserting the existence of the principal fact, on the ground of its having, in 
 some way or other, come within the cognizance of his perceptive faculties. 3 
 Benth. Jud. Evid. 4. So, it has been said, there is inference always made use 
 of in the application of direct evidence, but it is of a general, not a special 
 kind; it is that general inference by which, from the mere statement of the 
 witness, asserting the existence of a fact, the existence of that fact is inferred 
 and credited. Id. 2. This takes place where the evidence is purely direct, in 
 the strictest sense. As to inference, as an actual ingredient in much that is 
 called direct evidence, see post. 
 
 (a) Trial of James Stewart, (Mackintosh arg.) 19 Howell's State Trials, 33. 
 The equivalent term " inferential " has been used in a late American case. 
 Commonwealth v. Harmon, Gibson, C. J. 6 American Law Journal, 128. 
 
 (A) 1 Stark. Evid. 601, 502. 
 
 (c) Mr. Wills has objected to the use of the term " indirect," as applied 
 to circumstantial evidence; contending that that species of evidence is of a 
 nature identically the same with direct evidence. According to his view, the 
 evidence itself is always direct, it is the fads immediately proved by it, which 
 are indirect, as applicable to the particular subject of enquiry. Wills on 
 Circ. Evid. 15, 16. Whatever may be said of this distinction, it seems clear, 
 that the evidence, as it comes from the witness, is always intended to establish 
 two successive results; one, immediate, — the existence of the fact directly 
 testified to ; the other, ultimate, — the existence of the principal fact. It is 
 manifestly with a leading reference to this latter object, (though at the time 
 comparatively remote,) that the evidence is originally presented : it is to 
 
CHAP. I.] INDIRECT EVIDENCE. 7 
 
 Indirect evidence, however, is more commonly termed, in 
 practice, circumstantial and presumptive, both words being 
 sometimes used indifferently, to express the same idea, (a) 
 Strictly, the former is the more general term, and includes 
 the latter as its species. Evidence is called circumstantial, 
 from its basis or materials, as being made up, in an emphatic 
 sense, of circumstances, or relative facts ; and presumptive, 
 from its legal effect in authorizing or raising a certain infer- 
 ence or presumption. All presumptive evidence is circum- 
 stantial, but all circumstantial evidence is not presump- 
 tive. (6) 
 
 Circumstantial and presumptive evidence are thus both 
 clearly distinguishable from that which is direct and posi- 
 tive. In strictness, however, all evidence is presumptive,(c) 
 that is, it suggests or requires, to make it complete, a process 
 of presumption, of some kind or other. Thus, direct evi- 
 dence itself always involves a general presumption of the 
 veracity of the testifying witness, or the genuineness 
 of the document proved-, (d) Indeed, independently of this 
 general presumption, there is very little direct evidence, 
 which may not, on a close analysis, be found to be intrinsic- 
 ally composed, in a greater or. less degree, of inference. 
 The simplest, and apparently the strongest example of direct 
 evidence, is where an eye-witness to the fact sought, — for 
 instance, the killing of a person, — positively testifies to what 
 he saw. But it has been well remarked, that it is seldom 
 
 prove the principal fact ; to prove it in the only way practicable, that is, 
 through intermediate facts, which are merely means to the end. It is with 
 reference to this fact, that the evidence seems to be, in the strictest literal 
 sense, indirect ; going out of the direct course ; passing obliquely through 
 intervening points. 
 
 (a) 1 Stark. Evid. 18, 481. 1 Phillipps on Evidence, 436-438, (Am. ed. 
 1849.) The term indirect is not often used in the books. Mr. BenVum't 
 division is into direct and circumstantial. 3 Jud. Evid. 2. 
 
 (A) Wills Circ. Evid. 16, 17. Sec further on this subject, post, Chapter DX 
 
 (c) 1 Stark. Evid. 19. 
 
 (if) Best on Pres. § 11. 1 Stark. Evid. 19. 
 
8 DIRECT AND mOIEECT EVIDENCE. [PAHT I. 
 
 that any belief of any matter of fact is prodiiced, by the 
 exercise even of the sense of sight, but the judgment has 
 been more or less at work iri the production of it. (a) 
 Hence it has been repeatedly said, and "with reason, that 
 almost all evidence is, in strictness, circumstantial. (6) 
 
 Other considerations, illustrative of the nature and con- 
 nection of these two species of evidence, will be presented 
 in a subsequent chapter, (c) 
 
 The expressions " circumstantial evidence," and " pre- 
 sumptive evidence" distinctly present the three ideas of 
 evidence, circumstance and presumption. The nature of 
 evidence has been already sufficiently explained. A circum- 
 stance may be shortly defined as a relative fact ; circum- 
 stances, according to the etymology of the word, are certain 
 minor facts standing- around (circum stantia') a principal 
 fact, and which, as from so many distinct surrounding points, 
 shed a converging light upon it, as a common centre. Pre- 
 sumption is a subject requiring a much more extensive explar 
 nation, as will appear in the following chapter. 
 
 (o) 8 Benth. Jud. Evid. 7. This idea is made the basis of some forcible 
 remarks by Chief Justice Gibson, in his charge to the jury in the case of 
 Commonwealth v. Harman, 6 American Law Journal, 123. 4 Barr's R. 272. 
 
 (6) Id. ibid. 
 
 (c) See post. Chapter V. 
 
CHAPTER II. 
 
 PEESUMPTION. 
 
 The essential import of the term presumption is well in- 
 dicated by its etymology, — a taking or assuming in ad- 
 vance, (a) Applied to evidence, the object of which is the 
 discovery of truth, it is the taking of a fact or proposition 
 to be true, before it is positively shown or certainly known to 
 be so. (V) It is an act of reasoning ; a mental process by 
 which one fact is inferred from another ; a process by which 
 a fact not known is deduced from one that is known, (c) 
 
 It is, in strict propriety, a process, — ^the act of presuming 
 rather than the consequence of it. The term, however, has 
 long been extended beyond the sense of mere process, so as 
 to uiclude that of result, also. Hence its common and, in- 
 
 (q) Presumptio, Lat. from prtssumere, to take before, (jyra, before, and 
 sumere, to takej Pmsumere is similar, in its composition and radical import, 
 to antecapere, (to anticipate.) Calvin. Lexic. Jurid. in voo. Hence Huberus 
 defines presumption to be, anticipatio judicii, the anticipation or preliminary 
 fermation of a judgment Hub. Prselect. Jur. Civ. lib. 22, tit. 3, n. 14. 
 
 (J) " By a thing being presumed to be so," says Locke, " is meant, as the 
 ward imports, that it is taken to be so, before it certainly appears." Essay on 
 the Human Understanding, b. 4, u. 14, s. 4. This is almost identical with the 
 explanation of Alciatus: Sumit pro vera, prse, id est, ante aliunde probetur: 
 (it takes a thing to be true before it is proved by other means.) Tract.de 
 Prses. cited in Pothier on Obligations, part 4, ch. 3, sect. 2. 
 
 (c) See the observations of Abbott, C. J. (Lord Tenterden,) in Rex v. Bur- 
 dett, 4 B. & Aid. 95, 161. 1 Phill. Evid. 436, (Am. ed. 1849.) Roscoe'S 
 Crim. Evid.l4. 
 
10 PRESUMPTION. [part I. 
 
 deed, prevailing signification is, — a conclusion, judgment, or 
 belief, as to the truth of some proposed matter of fact, 
 arrived at and formed by a process of inference, (a) It 
 has also the further sense of assumption or proposition, pass- 
 ing finally into that of principle or rule. (6) 
 
 The first thing observable of presumption, is the extent 
 of the range of its application. It is constantly employed 
 in science, as a means of discovering abstract truths, or the 
 truth of facts connected with material objects, whether such ■ 
 truths be actually uncertain or imknown, or assumed as such, 
 for the purpose of discussion or inquiry. It is every day 
 employed in common life, as a basis of opinion or belief 
 respecting past, present and future events, and not only of 
 
 (a) Some of the civilians vsa preesumptio to express a consequence or con. 
 elusion, and argumentum, tiie process of reasoning by which it is reached. 
 Jlrgumenla — ex guibus oritur preesumptio. G. A. Struvius, Jurispr. Rom. 
 Germ, lib, 4, tit. 11, n. 3. Others define it by various words, all conveying 
 the idea of a result. Thus, some call it conjecture, {conjectura.) Heinecoius 
 ad Pand. pars iv. § 124. Others, opinion, {opinio.) Vinnius Jur. Contr. lib. 
 4, u. 36. J. Voet ad Pand. lib. 22, tit. 3, n. 14. Others, proof, (probatio.) 
 Struvius, Syntagma Juris, exero. 28, s. 15. Westenhergius, Princ. Juris, lib. 
 22, tit. 3, 11. 21. Huberus terms it a preliminary or provisional judgment, 
 (anticipatiojudicii.) Prsel. Jur. Civ. lib 22, tit. 3, n 14. Domotcalls it a 
 consequence drawn from a known fact. Civil Law, part I, book 3, tit. 6, sect 
 4, art. I. Pothier, a judgment formed by or upon a consequence. Treatise on 
 Obligations, part 4, eh. 3, settt. 2, p. 806. The English writers on evidence 
 .almost uniformly define presumption to be an inference. 3 Stark. Evid. 1234. 
 1 Phill. Evid. 436. Best on Pres. § 11. Wills on Circ. Evid. 17. These defi- 
 nitions will be more particularly considered in another place. 
 
 On the other hand, the civilian Matthceus defines presumption to be argument 
 or reasoning, {argumentum.) Matt, de Criminibus, in lib. 48, Dig. tit. 15, 
 u. 6 ; adopted by Best, J. in Rex v. Burdett^B. & Aid. 124. Lord Tenter- 
 den, in the case last cited, called presumption, " an inferring " of a fact from 
 other facts; " an act of reasoning." 4 B. & Aid. 161. Professor Greenleaf 
 gives to presumptions of fact the name of "mere arguments." 1 Greenl 
 Evid. § 44. And see 6 Lond. Law Mag. 369. 
 
 (A) These several significations of the term presumption are accurately dis- 
 tinguished in an article in the London Law Magazine, vol. vi. pp. 364, 369, 
 372—374. 
 
CHAP, n.] • PEESUMPTION. 11 
 
 belief, but of action, (a) And it is finally employed in law, 
 as a means of arriving at the truth of facts actually and 
 formally disputed between contending parties. It is the 
 vital and essential principle of that important branch of evi- 
 dence, which it is proposed to consider in the present work; 
 and is therefore entitled to some distinct preliminary notice. 
 Presumption may be conveniently treated under two gene- 
 ral divisions : first, as it is applied to subjects not of a legal 
 or judicial character ; secondly, as it is applied to the pur- 
 poses of judicial investigation. And, for the sake of brevity, 
 the former may be distinguished as natural, the latter as 
 judicial presumption. Under the former, will be presented 
 what may be termed the general principles of the subject ; 
 under the latter, such modifications as have been introduced 
 for the more effective administration of justice. 
 
 SECTION I. 
 Natural Presumption. 
 
 Natural presumption is that process of reasoning (ft) 
 which the miud of any person of ordinary intelligence is 
 competent to exercise, and which it naturally will and con- 
 stantly does exercise, in arriving at the belief of the truth 
 of any desired fact, by the aid or through the medium of 
 one or more other facts. The reasoning employed is of the 
 description known as probable, and it is founded on the 
 
 (a) See 1 Stark. Evid. 24, and noteiiirf. 
 
 (A) Mr. Starkie's Tiew of the nature of presamption is peculiar. He calls 
 it an inference made solely by virtue of previous experience, and independently 
 of any process of reason in the particular instance. 1 Stark. Evid. 473. 3 
 Id. 1235, 1246. 
 
s 
 
 12 NATURAL PEESUMPTION. [PART I. 
 
 ordinary and usual course of things, according to which, the 
 fact Imomi and the fact sought, or facts of the same char- 
 acter, have been previously known, observed or understood 
 to be in some way connected together. All these ideas are 
 very concisely combined in the definition of -presumption 
 given by the civilian Matthaeus : — argumentum verisimile, 
 communi sensu perceptum, ex eo quod plerumque fit aut 
 fieri intelligitur. (a) 
 
 This kind of presumption may be more adequately ex- 
 plained by considering separately, (1) its object, or the 
 fact proposed to be ascertained ; (2) its source or immedi- 
 ate foundation, or the fact or facts from which the inference 
 is made ; (3) its general or ultimate foundation or prin- 
 ciple ; (4) its character as a process ; and (5) its result 
 and effect. 
 
 I. The fact proposed to be ascertained, or the truth of 
 which is sought to be discovered, is always something which 
 is not only uncertain, (6) but respecting which no absolute 
 certainty can, at the time, be obtained, (c) What is desired 
 is a reasonable judgment in regard to its truth, as a ground 
 of belief. Where the truth of the proposed fact certainly 
 appears, or can be made certainly to appear, so that actual 
 knowledge can be had of it, there is no necessity, and, in- 
 deed, no room for presumption; that being, as already ex- 
 
 (n) Matthaeus de Criminibus, in lib. 48, Dig. tit. 15, c. 6. Approved by 
 Mr. Justice Best, in Rex v. Burdett, 4 B. & Aid. 95, 124. Translated by Mr. 
 Phillipps, " a probable inference which our common sense draws from circum- 
 stances usually occurring in such cases." 1 Phill. Evid. 436, 437. 
 
 (B) Domat's Civil Law, part I, b. 3, tit. 6, sect. 4, art. I. Hence Huberus 
 nptly defines presumption to be, anticipaiio judicii de rebus incertis. Prasl. 
 Jur. Civ. lib. 22, tit. 3, u. 14. So, Struvius defines it as probatio negotii 
 dubii. Syntag. Juris, exero. 28, s. 15. And Voet calls presumptions opiniones 
 de re incerta, necdum penitus probata. J. Voet ad Pand. lib. 22, tit. 3, n. 14. 
 
 (c) See further, as to certainty, under the head of presumption, considered 
 as a result, post, p. 25, et seq. 
 
CHAP. II.J NATURAL PRESUMPTION. 13 
 
 plained from its radical import, merely a substitute for 
 knowledge, — something that is relied on in the absence of 
 Imowledge, and until that certainty which constitutes know- 
 ledge can be attained, (a) Where we do not know, we are 
 content to pi-esume ; but where knowledge begins, presump- 
 tion ends. The illustrations of this proposition are so obvi- 
 ous and familiar, as to occur readily to the mind, without 
 further explanation. 
 
 II. The immediate source, foundation, or medium of natu- 
 ral presumption is always a fact, — sometimes several facts — 
 having the quality of certainty, and in this respect distin- 
 guishable from the fact sought. It is something either act- 
 ually known from observation, or proved, or admitted, or 
 regularly inferred from another fact previously proved. In 
 what may be termed speculative presumption, or presumption 
 applied to the discovery of abstract or general truth, this 
 fundamental fact is presented in an abstract form, either as 
 a general result of previously observed facts, or as a con- 
 clusion of mere reason. But where the discovery of the 
 iruth . of some particular fact is sought, with reference to 
 iome practical or immediate use to be made of it, the funda- 
 mental fact is something actually and specially proved, or 
 Known by being immediately and sensibly apparent to ob- 
 servation. It is not necessary, however, that the fact be of 
 an affirmative character. It may be negative, that is, it may 
 consist in the absence of evidence. (6) 
 
 The forms of presumption may be reduced to three : — from 
 'acts to other facts, as their causes ; from facts to other facts, 
 IS their concomitants, (all being referable to a common 
 
 (a) Best on Prea. § 3. And see the observations of Mr. Baron Jitounteney , 
 in the case of Annesley v. AngUsea, 17 Howell's State Trials, 1429. 
 
 (4) 2 Evans' Pothier on Obligations, num. 16, sect. 14, p. 280, (Phil. ed. 
 1853.) 
 
14 NATURAL PRESUMPTION. [PART I. 
 
 cause ;) and from facts to other facts, as their effects, (a) 
 The latter division embraces that very large class of pre- 
 sumptions which hourly occur in common life, where, from 
 certain acts done, certain results are anticipated by the 
 party doing them. In these cases, the acts done are the 
 fundamental facts, and they are facts of the strongest and 
 clearest possible kind, being wholly created by the party 
 presuming, and therefore entirely and absolutely known by 
 him. 
 
 III. The general foundation of this process of natural 
 presumption or inference from one fact to another, is the 
 connection which has previously been observed or understood 
 to exist between them ; not an occasional or fortuitous con- 
 nection, but one that is referable to the operation of some 
 general principle or law, which has been found to prevail in 
 the natural or moral world, and the permanence of which is 
 relied on. The fact sought is inferred from the fact known, 
 because, in all the instances which have been observed by 
 the party presuming or by others on whose observation he 
 relies, it has usually, if not invariably, preceded, accom- 
 panied, or followed it. 
 
 It is here that we discover the ultimate principle of pre- 
 sumption, which may be said to spring from the constitution 
 of the human mind itself, or rather from the adaptation of 
 that constitution to the world around it. (6) There is a 
 natural tendency or disposition in the mind to expect the 
 recurrence of events or appearances which have frequently 
 happened; and, where they have uniformly occurred at 
 stated periods of time, to expect or anticipate their recur- 
 rence with corresponding regularity. This is the case even 
 where the subject of observation is a single event or appear- 
 ed) See Domat's Civil Law, part I, b. 3, tit. 6. 
 (A) See 1 Stark. Evid. 24, note. Id. 493, 494. 
 
CHAP. II.] NATURAL PEESUMPTIOy. 15 
 
 ance, unconnected with any other, and where no reason is 
 known or can be given for the expectation, but the rnere iii.cz 
 that the event has occurred before. And this constitutes the 
 whole ground of the belief in the phenomena of external 
 nature, in cases where not the most remote idea is enter- 
 tained of their cause. The savage expects the ebb and flow 
 of the tide, as confidently as the astronomer who can de- 
 monstrate its reason and its laws. To him, it is merely the 
 habit of nature, but a habit, the undeviating uniformity of 
 which, as observed by himself and all of whom he has ever 
 neard, carries with it the assurance of its continuance, (a) 
 
 This kind of belief affords an example of the simplest and 
 lowest form in which presumption can be said to exist, being 
 rather a mental instinct or habit, than a properly intelligent 
 act. If we go a step farther, and suppose that, instead of » 
 single event or fact, two or more have been observed to- 
 gether, and, from repeated observation, have been found to 
 present a certaiu connection with, or to bear a certain rela- 
 tion tc^each other ; we find the same tendency in the mind 
 to expect, anticipate, or presume, as in the former case. 
 The observed events or appearances having been found to 
 occur usually or uniformly together, it is expected that when 
 they again occur, they will occur in the same connection. 
 This may be believed, as iu the former case, without any 
 idea of the reason -why the connection does and should exist. 
 But when such reason comes to be perceived and understood, 
 the gi'ounds of belief become greatly enlarged and strength- 
 ened ; and presumption itself, from being a mere instinctive 
 inclination, assumes the character of an intelligent and 
 
 (a) This is the ground upon which, according to a writer of great authority, 
 the belief iu the continuance of this particular phenomenon rests in civilized 
 communities. "A man's having observed the ebb and flow of the tide to-day," 
 says Bishop Butler, " affords some sort of presumption, though the lowest 
 imaginable, that it may happen again to-morrow; but the observation of this 
 event for so many days and months and ages together, as it has been observed 
 by mankind, gives us a full assurance that it will." Butler's Analogy, Introd. 
 
16 NATURAL PEESUMPTION. [PAKT I, 
 
 philosophic act. It is, in short, from these same connections, 
 observed in repeated instances, and found to be constant and 
 uniform in their occurrence, that the general laws which 
 govern the physical world are iirst presumed, and eventually- 
 deduced ; and the great leading relation of cause and effect 
 comes to be perceived and understood in its full force and 
 extent, (a) 
 
 These general principles, thus discovered by the aid of 
 presumptive reasoning, become, in their turn, important 
 guides to presumption itself. The law regulating the con- 
 nections being known, the mind becomes more confident in 
 the conclusions it is led to form respecting them. An event 
 is no longer expected to occur, simply because it has been 
 observed to occur, although the instances of such observ- 
 ation may be innumerable ; but because of its dependence 
 upon some law, under the operation of which, its occurrence 
 is a kind of necessity. An appearance which has first been 
 observed to follow uniformly after another, and then satis- 
 factorily ascertained to have been actually produced '\w it, is 
 looked forward to, as its natural, if not necessary effect. 
 An assemblage of facts which have usually, if not uniformly, 
 been found to occur together, is referred to some common 
 cause or principle of association, which induces the expect- 
 ation of its recurrence in the same or a similar combination. 
 
 The strength of presumption, as guided by these general 
 laws, depends upon the degree of perfection to which the 
 ascertainment of them has been carried. The laws regu- 
 lating some of the phenomena of external nature, especially 
 those which occur at regular periods, have been so thoroughly 
 investigated and so completely tested by observation, that 
 their results or effects are anticipated with a confidence 
 amounting to absolute certainty. We can hardly, indeed, 
 be said to presume that the sun will rise and set to-morrow, 
 as it has done to-day, and for ages before, for our belief 
 
 (a) See 1 Stark. Evid. 24, 25, note. 
 
CHAP. II.] NATUBAL PRESUMPTION. 17 
 
 partakes rather of the character of knowledge than of pre- 
 sumption ; and yet it is knowledge which, the most intelli- 
 gent will admit, rests upon the general fundamental condition 
 that the laws of nature will continue to operate as they have 
 always done ; which itself is, in strictness, a mere presump- 
 tion, (a) 
 
 If we turn, next, to those phenomena of the material 
 world which are capable of being made the subjects of human 
 action or experiment, we shall find similar general laws 
 serving as guides to the mind in the anticipations and con- 
 clusions it forms respecting them. Certain appearances and 
 products, when found, in repeated instances, to be the uni- 
 form results of the contact or combination of certain ma- 
 terial substances, are referred to a general law founded on 
 their essential properties, in obedience to which, they are 
 expected to occur in the same form, whenever the same con- 
 tact or combination is again produced. The confidence, 
 indeed, with which these results are anticipated, is of the 
 very strongest kind, amounting, in cases where all the 
 elements and conditions of the experiment are exactly known, 
 to absolute certainty. Where the expected result fails to 
 occur, such failure is always attributed to the presence of 
 some new element, or the existence of some condition not 
 previously perceived. Further experiments have the con- 
 stant effect of detecting the exact source of the disturbance, 
 and, by this means, of verifying with increased force the 
 correctness of the -origiaal conclusions. 
 
 The great ultimate foundation of this whole process of 
 
 (a) "There is, in every case," observes 5u</er, "a probability that all 
 tilings will continue as we experience they are, in all respects except those in 
 which we have some reason to thinls they will bo altered. This is that kind of 
 presumption or probability from analogy, expressed in the very word continu- 
 ance, which seems our only natural reason for believing the course of the world 
 wiU continue to-morrow, as it has done, so far as our experience or knowledge 
 of history can carry us ba«k." Analogy, part I, chap 1. 
 
18 NATURAL PEESUMPTION. [PAET, I. 
 
 presumption, as applied to material objects, and the indis- 
 pensable condition to any confident reliance even upon 
 general lavs, though ever so clearly established, is the ex- 
 pectation that such laws will continue to operate as they 
 have done. In other words, it is faith in the permcmence of 
 the known existing order of things. It is confident belief 
 that the essential properties of matter, and the existing 
 relations between bodies and substances will continue to be 
 preserved ; that what has happened before will, under the 
 same circumstances, happen again; and that like causes, 
 under like circumstances, wiU produce like effects. 
 
 If we next consider presumption as applied to subjects of 
 observation in the moral world, — the actions of men and the 
 concerns of life — ^we shall find it to rest upon connections 
 and associations similar to those which constitute its basis in 
 the natural world, (a) The conduct of men has always been 
 found to be influenced and determined by their opinions, 
 passions and habits, and their relations to external objects ; 
 and the uniformity with which these influences have been 
 observed to produce their results, has led to the deduction 
 and establishment of certain general principles, similar to 
 those by which the phenomena of external nature have been 
 ascertained to be regulated. Motives and acts have been 
 found to stand in the same relation to eaL-h other as causes 
 and effects. In numberless instances, have motives been 
 ' traced forward to their effects in action, and in equally 
 numberless instances have acts been traded back to their 
 sources in motives ; and many of these observations have 
 been practically verified in the most convincing manner. 
 Hence a certain general correspondence and relation have 
 been established between them, serving as a ground for in- 
 ferring the one from the other. And hence, where, in a 
 particular case, certain circumstances indicating the exist- 
 once of a motive are shown, and certain other circumstances 
 
 (o) See 1 Stark. Evid. 26, 26. 
 
CHAP. 11.] NATURAL PRESUMPTION. 19 
 
 indicating a corresponding act as its result, the former is 
 naturally assigned to the latter as its cause, and frequently 
 becomes a most convincing element in proving it. (a) 
 
 But it is to be observed of these general principles of 
 moral conduct, that they are not capable of being eitlier 
 ascertained or stated with the same precision as the laws of 
 the physical world, nor are they found to operate with the 
 same undeviating regularity ; and this arises from the char- 
 acter of the subject itself. (6) For, unlike matter, which is 
 entirely passive, inert, and invariable, under the operation 
 of its law, mind, the great spring of moral conduct, pos- 
 sesses a power of independent action ; and, however strongly 
 it may be impelled, in general, to obey its law, may yet, in 
 the exercise of an erratic discretion or determined will, 
 totally disregard or deliberately violate it. Again, mind 
 possesses the power of operating upon circumstances them- 
 selves, — ^the great source of all presumption, — and of giving 
 them appearances to suit particular purposes. Besides, 
 many of the facts indicative of conduct are, in themselves, 
 whollj psychological ; that is, they are confined to the mind 
 itself, and cannot, in their nature, be made the subjects of 
 direct observation, but are to be reached only by inference. 
 Finally, the whole process of investigating the facts con- 
 stituttng cases of moral conduct, is materially different from 
 that by which the phenomena of nature are explored ; and 
 this is especially the case where criminal conduct is made 
 the subject of judicial examination, for the purpose of de- 
 tecting its cause. The power which investigates is compelled 
 to observe with the senses of others ; to take its facts, as it 
 were, at second hand ; to rely upon the observations of wit- 
 nesses, not always made under circumstances favorable to 
 perfect accuracy, and rarely made with a view to future use ; 
 
 (a) See 1 Stark. Evid. 25-29. 
 (4) Id. 25, note. 
 
20 NATUEAL PEESUMPTION, [PAET I. 
 
 and in addition to these disadvantages, is often forced 'to 
 grope its way to truth through a veil of obscurity purposely 
 cast around the whole transaction. In some cases, facts are 
 entirely lost, from not having fallen under the notice of any 
 ol?server. Prom these and the like causes, important ele- 
 ments of truth are sometimes excluded from the process, and 
 elements of disturbance and error introduced ; rendering the 
 application of any general rule more or less uncertain, and 
 liable to exception. Hence it happens that presumption, as 
 it is employed for the discovery of moral truth, comes to 
 possess that quality of contingency which may be considered 
 its chief characteristic, and of which more will be said here- 
 after, in treating of presumption as a result. It does not 
 discover the truth sought with absolute precision, but only 
 presents an approximation to it. In short, its whole ope- 
 ration is not to demonstrate certainty, but to establish probar 
 bility. (a) 
 
 But, though by no means infallible, presumption and the 
 general laws in accordance with which it is exercised, con- 
 stitute, nevertheless, valuable and, indeed, (as will be seen 
 in the sequel,) indispensable aids and guides to investiga- 
 tion. Though imperfect, they are the best attainable means 
 for the discovery of the truths to which they are applied. 
 Their ultimate foundation is similar to that already npticed 
 as the foundation of presumption, when applied to material 
 objects ; namely, a confidence in the permanence of the 
 existing order of nature, and a belief that the conduct of 
 men will continue to be influenced and regulated by their 
 opinions, passions, and habits, as well as by surrounding 
 circumstances : and (to give- the idea its most general ex- 
 pression,) that what has repeatedly happened under certain 
 
 (o) Bishop JB«Wer uses the terms "presumption" and " probability " in 
 close connection, as expressive of the same idea. Analogy, Introd. Id. part I, 
 
 C.I. 
 
CHAP. 11.] NATURAL PRESUMPTION. 21 
 
 circumstances, will, under the same circumstances, happen 
 again, (a) 
 
 The conduct of men, as it constitutes a basis of presump- 
 tion, includes, as ■we have seen, their habits ; and these com- 
 prise not only what may be called natural habits, but arti- 
 ficial habits, such as the custom* and conventions of society, 
 the course of trade and dealing, and even the personal 
 habits of individuals. (6) The great fundamental presump- 
 tion applicable to these subjects, is, also, the same which 
 has been already noticed ; namely, that of continuance. 
 
 The presumption of continuance, indeed, may be con- 
 sidered the most general one that can be entertained by the 
 mind. The very word " continuance," according to Butler, 
 implies a kind of presumption or probability from an- 
 alogy, (c) And as it is deeply founded in nature, so it is 
 extensively recognized in law. Things once proved to have 
 existed in a particular state, are to be understood as con- 
 tinuing in that statCj until the contrary is established by 
 evidence. (cZ) 
 
 The knowledge of the connections between facts, upon 
 which presumption has been shown to rest, is obtained by 
 experience and observation. By these terms are understood, 
 not the mere personal experience and observation of the 
 party presuming, for that is often very limited, and never 
 extensive enough to meet all cases in which the exercise of 
 presumption may be required ; but the general experience 
 and observation of mankind, (e) to which it is the constant 
 
 (a) A very instructive view of the natui-e and foundation of presumption is 
 given by Mr. Starkie, in his " Treatise on the Law of Evidence," vol. i. pp. 
 23-29, and the note ibid. 
 
 (6) Best on Pres. § ISl, etseq. 3 Phill. Evid. (Cowen &. Hill's notes) 
 Note 285. 1 Stark. Evid. 35, 75. 
 
 (c) Butler's Analogy, part I, ch. I. 
 
 (d) Best on Pres. § 136. 2 Evans' Pothier on Obi. 284. 1 Stark. Evid. 36. 
 
 (e) Experience comprehends not merely the facts and deductions of personal 
 observation, but the observations of mankind at large in every age and country. 
 
22 NATUEAL PEESUMPTION. [PART i. 
 
 and necessary habit of the individual mind to refer, upon 
 ■which it relies -with the same confidence as if they were its 
 own, and -which it actually makes its own, whenever occasion 
 may require. In the language of a definition already quoted, 
 it is not merely what ordinarily takes place, (^quod plerumque 
 fit,') but what is imderstood to take place, ( fieri intelli- 
 gitur.) (a) 
 
 IV. The character of the process of natural presumption 
 is next to be considered. It is probable reasoning, (6) as 
 distinguished from demonstrative. It is not of that close 
 and severe kind, (termed by the civilians argumentum neces- 
 sarium, (c)) where the conclusion, follows necessarily from 
 the premises, and the mind is allowed no discretion, and left 
 no alternative in adopting it. (c?) It is what the civilians 
 
 Wills on Giro. Evid. 10, 11. Mr. Starkie uses the word in the narrower sense, 
 implying the actual observation of the individual. 1 Stark. Evid. 26, note; 27. 
 
 (a) See ante, p. 12. 
 
 (6) This is the constant language of the civilians. Pj-iBsumpHo est — Ulatio 
 probabilis ex argumentis. Strauchius Diss. 25, aphor. 33. Opinio ex proba- 
 bilj ratiooinatione concepta. Vinnius, Jurispr. Contr. lib. 4, o. 36. Probatio 
 ex probabilibus argumentis. G. A. Struvius, Syntag. Juris, exero. 28, s. 15. 
 Probatio per argumenta probabilia facta. Westenbergius, Princ. Jur; lib. 
 22, tit. 3, n. 21. 
 
 (c) Argumentum vel necessarium vel contingens est. Necessarhim, cujua 
 consequentia necessaria est, veluti earn coivisse qua peperit ; contingens, 
 cujus consequentia probabilis est, veluti ccedem fecisse qui cruentatus est. 
 Matthseus de Crim. c. 6. 
 
 {d} Where the existence of one fact so necessarily and absolutely induces 
 the supposition of another, that if the one is true, the other cannot be false, 
 as where connection is inferred from pregnancy, the term presumption cannot 
 be legitimately applied. 2 Evans' Pothier on Obi. 280; num. 16, sect. 14. 
 " The moment we talk," says Mr. Best, " of any thing following as a neces- 
 sary consequence from others, all idea of presumptive reasoning is at an end." 
 Best on Pres. § 192. Mr. Starkie's view of presumption is quite different and 
 peculiar. According to his opinion, a presumption is, in strictness, an infer- 
 ence made solely by virtue of previous experience, and independently of any 
 process of reason, in the particular instance. 1 Stark. Evid. 478. 8 Id. 1235. 
 He further considers the term presumption as including certain as vfell as 
 
CHAP. II.] NATURAL PRESUMPTION. 23 
 
 tave expressively called argumentum verisimile. (a) The 
 conclusion to ■which it leads is assented to, because of its 
 probability or verisimilitude ; not because of its absolute and 
 self apparent truth, (verurn) which is rarely attained, but 
 because of its likeness, similitude or approximation to 
 truth. (6) The inference sought is presented to the mind 
 in the shape of a question between two probabilities ; namely, 
 whether a fact, considered in its relation to one or more 
 other facts, be true or not : in determining which, the mind 
 exercises a discretion of judgment, and finally decides ac- 
 cording to a preponderance of probability. Hence presump- 
 tion has been said to mean "nothing more than the weighing 
 of probabilities, and deciding, by the powers of common 
 sense, on which side the truth is." (c) This was stated on 
 the authority of Lord Mansfield, who, in the celebrated 
 Douglas case, gave the reason of the process in the follow- 
 ing words. " It is an undoubted truth that judges, in form- 
 ing their opinion of events, and in deciding upon the truth 
 or falsehood of controverted facts, must be guided by the 
 xvIqs oi probability; and as mathematical or absolute cer- 
 tainty is seldom to be -attained in human affairs, reason and 
 public utility require that judges and all mankind, in forming 
 their opinion of the truth of facts, should be regulated by 
 the superior number of the probabilities on the one side or 
 the other." (d). 
 
 This process of weighing (which is only another term for 
 the exercise of judgment^ goes on with more or less 
 
 probable inferences. Id. ibid. But this, as Mr. Best has shown, is an obvi-. 
 ous departure from the true sense of the word. Best on Pres. § 3, note, and 
 authorities there cited. 
 
 (a) See the definition of Matthaus, cited anU, p. 12. 
 
 (6) Quoniam in arduo est veri exploratio, — ea ire qua ducit veri similitudo. 
 Seneca de Benef. lib. 4, o. 33. 
 
 (c) Best, J. in Rex T. Burdett, 4 B. & Aid. 95, 124. See 1 Stark. Eyid. 
 451, 452. 
 
 (i) Quoted in Theory of Presumptive Proof, p. 62. 
 
24 NATURAL PRESUMPTION. [PAET I. 
 
 rapidity, according to the degree of clearness with which 
 the fact used and its connection with the fact sought are 
 apprehended. It, doubtless, is always exercised, though 
 sometimes, where the case is very clear, so instantaneously, 
 that the mind itself may be unconscious of it ; the result 
 suggesting itself with almost the readiness of an intuitive 
 perception, (a) In judicial investigations of the truth of 
 criminal charges, this balancing of probabilities is not al- 
 lowed ; as will be more fully shown in another place, (i) 
 
 It is further to be observed of the reasoning involved in 
 this process of natural presumption, particularly where it is 
 applied to subjects not of a professedly scientific character, 
 that it is not of an abstruse or technical kind, dealing in 
 remote or refined analogies, .and which can be apprehended 
 and followed by none but cultivated and practised minds ; 
 but it is a simple, ordinary act of an ordinarily intelligent 
 understanding. It is, in short, merely an exercise of coni- 
 mon sense, (c) being what the civilians have expressively 
 designated as prcesumptio hominis. The only exception to 
 this entire competency of " the common mind " to judge for 
 itself, exists in those cases where the perception of the 
 proper relation between facts, depends on some peculiar 
 science or skill, attainable by only a comparatively few per- 
 sons. But even this circumstance interposes no difficulty in 
 the way of arriving at a desired conclusion. The means of 
 judging are, in such cases, always borrowed, without hesita- 
 tion, from the statements of those whose experience qualifies 
 
 (o) See Wills on Giro. Evid. 16. 
 
 (6) See posi, Chapter IV. 
 
 (c) Communi semu, perceptum. Matthocus De Crim. in Lib. 48 Dig. tit. 15, 
 c. 6. See 1 Phill. Evid. 436. And see the opinion of Best, J, in Rex v. Burdett, 
 4 B. & Aid. 95. Mr. Starkie has well observed that "presumptions could 
 never have been adopted as the means of proof before a jury, if their nature 
 and force could not be estimivted by men of plain and ordinary sense and dis- 
 cretion." 1 Stark. Evid. 24. And see Beooaria on Crimes, o. 14, 
 
CUAV. 11.] NATURAL PREStTJIPTION. 25 
 
 them to express a reliable opinion; (a) and with these 
 borrowed means, transferred and superadded to its own 
 stock of knowledge, the mind finally acts as freely and effect- 
 ively as if they had always been its own. 
 
 V. The result of this process of probable reasoning is a 
 persuasion or belief of the truth or falsity, the existence or 
 non-existence, of the fact which it is its object to discoTer. 
 It is this result, iadeed, which the term /iresMmjofew is usually 
 employed to*express ; and in this secondary sense it will now 
 be more particularly considered. (6) 
 
 By the majority of English writers on evidence, presump- 
 tion is expressly defined to be an inference or consequence. 
 Thus, according to Mr. Star/cie, " a presumption may bo 
 defined to be an inference as to the existence of a fact not 
 actually known, arising from its necessary or usual connec- 
 tion with others which are known." (c) According to Mr. 
 Phillipps, " a presumption is a probable inference which our 
 common sense draws from circumstances usually occurring 
 in such cases." (cZ) According to Mr. Wills, " the word 
 presumption, ex vi termini, imports an inference from 
 facts ; " (e) — " it inherently imports a conclusion of the 
 judgment." (/) The same writer expressly defines a pre- 
 sumption to be " a probable consequence drawn from facts, 
 
 (a) As to the evidence of experts or scientific witnesses, see 1 Stark. Evid. 74. 
 
 (b) In the sense of process, the word " presumption," it will be seen, is used 
 only in the singular number, and without an article. In the sense of result, 
 it is used both in the singular and plural number; in the formers always with 
 an article prefixed. 
 
 (c) 1 Stark. Evid. 23, 24. And see another definition by the same writer. 
 3 Id. 1234. 
 
 {d) 1 Phill. Evid. 436. This is almost a literal translation of the definition of 
 Matthicus, cited on a former page, ^nte, p. 12. 
 (e) Wills on Giro. Evid. 16. 
 (/) Id. 17. 
 
26 NATUKAIi PRESUMPTION. [PAET I. 
 
 as to the truth of a fact alleged, but of which there is no 
 
 direct proof." (a) 
 
 Considering presumption in this sense of a result, it is in- 
 dispensable, as we have seen, to its creation, that it be 
 founded on one or more /flc^s, and that these facts should be, 
 either directly established, or themselves deduced from other 
 facts, upon the same principle of inference ; so that the ulti- 
 matfe presumption may bo connected, either mediately or 
 immediately, with facts established by proof. (6) A pre- 
 sumption may be founded on a single fact, as constantly hap- 
 pens in the common affairs of life. Where this is the case, 
 the result is aivrived at, with comparative ease and rapidity ; 
 the only mental process employed being that of pure infer- 
 ence. But it may, also, and frequently does have for its 
 basis, a variety of facts, and in these cases, which usually 
 present the most important questions for determiuation, 
 the formation of a presumption is a matter of more diffi- 
 culty ; as, in addition to the process of inference, there 
 is a necessity (especially if the facts be numerous and iude- 
 pendent,) for the employment of the auxiliary or prepara- 
 tory processes of arrangement, combination and comparison. 
 There is not only the bearing of each fact upon the desired 
 conclusion, to be ascertained, but also the consistency of the 
 different facts with each other. The process, in short, is a 
 complex, and not a simple one. 
 
 Supposing, however, the presumption to be duly formed, 
 the first thing observable respecting it, is the variety of 
 degrees of strength in which it is found to exist, — from the 
 
 (a) Wills on Giro. Evid. 17. According to Pothier, a presumption is a judg- 
 ment ■which the law, or which an individual makes, respecting the truth of 
 one thing, by a consequence deduced from another thing. Pothier on Obi. 
 p. 4, c. 3, sect. 2. " Presumptions are consequences drawn from a fact that is 
 known, to serve for the discovery of the truth of "• fact that is uncertain, and 
 which one seeks to prove." Theory of Presumptive Proof, 17. 
 
 (5) 2 Evans' Pothier on Obi. 283; num. 16, sect. 14. 
 
CHAP. II.J NATUBAL PRESUMPTION. 27 
 
 lowest degree of probability, consistent with the formation 
 of any definite belief, up to that high degree of assurance 
 which falls short only of positive and absolute certain- 
 ty, (a) Some writers, indeed, consider presumption to 
 begin at a still lower point, that of mere supposition, (b) 
 surmise or conjecture, which has also been sometimes fixed 
 as its lowest degree, or weakest variety, in its application to 
 legal investigations, (c) But presumption, properly so 
 called, cannot be said to begin until there has been some 
 exercise of judgment, however limited, as to probability, 
 and some definite, (however inadequate) conclusion or be- 
 lief (cZ) arrived' at. A fact may arrest the attention and 
 impress the mind ; it may even suggest the idea of another 
 fact, as a possible cause, concomitant or result, (which 
 seems to be the true definition of a conjecture,) and it may 
 lead to active inquiry into the correctness of such idea or 
 impression ; but unless the latter fact be pronounced prob- 
 
 ' " « 
 
 (a) Butler's Analogy, Introd. 1 PMU. Evid. 437. 
 
 (6) It has sometimes been spoken pf as " mere naked presumption," as 
 fliough it were something essentially slight and ineffective. Holroyd, J. in 
 Rex V. Burdett, 4 B. & Aid. 139. And Bishop Butler seems to recognize the 
 three degrees of presumption, opinion and full conviction. Analogy, Introd. 
 
 (e) Domat's Civil Law, part I, h. 3, tit. 6, c. 4, sect. 2. Some of the oiTil- 
 ians expressly define a presumption to be a conjecture: Conjectura ducta ab eo 
 quod ut plurimum fit. Heineccius ad Pand. pars 4, sect, 124. Est ex indiciis 
 tantum queedam conjeotio. Matth. de Prob. o 1, n. 43. Prcesumptiones sunt 
 oonjectnrse ex signo verisimili ad probandum assumpttz. J. Voet ad Pand. 
 lib. 22, tit. 3, 11. 14. The Latin conjectura, however, as thus used, seems to 
 convey more than the English word by which it is commonly translated; its 
 radical import, like that of conjectio, being " a throwing together," a putting 
 together, a putting of one fact with another so as to show their relation; which 
 very aptly expresses the vrhole essence of the process of presumption. But 
 conjectura was also used by the civilians in the sense of conjecture or surmise. 
 Mascardus defines it to be " a reasonable trace of a latent truth, from which 
 the opinion of a prudent man may take its rise;" {rationabile vestigium latentis 
 mritatis, unde nasciiur opinio sapientis.) Tie Prob. lib. 1, qusest. 14. 
 
 (d) " It has been said, you cannot presume unless you believe," Lord Chan- 
 cellor Erskine, in Hillary v. Walker, 12 Vesey Jun. 239, 266. 
 
28 NATUEAL PRESUMPTION. [PABT I. 
 
 able in some degree and for some reason, there results no 
 presumption, in the true sense of the word, (o) 
 
 The strength of a presumption may be said, generally, to 
 depend, first, on the certainty of the fact or facts from which 
 it is gathered ; and, secondly, on the justness of the conse- 
 quence drawn from them to prove the fact or facts in 
 dispute. (6) More particularly, it may be said to de- 
 pend upon the following circumstances or considerations : 
 first, the intrinsic impressiyeness of the fact from which 
 it is deduced ; secondly, the clearness with which such fact 
 is apprehended, or the certainty with which it is made to 
 appear ; thirdly, the closeness of its connection with the 
 fact sought to be proved ; fourthly, the number of instances 
 in which this connection has been established ; fifthly, its 
 combination with other corroborating facts ; and sixthly, the 
 absence of any fact tending to qualify or vary the conclusion, 
 or actually tending to an opposite conclusion. In other and 
 fewer words, it depends upon the degree of probability 
 apparent in the case. 
 
 The degrees of probability being very extensive, it seems 
 impossible to classify the degrees of presumption itself, 
 under any other division than the very general one of their 
 comparative weakness and force ; a division well expressed 
 by the terms levior ani fortior, employed by the civilians, (c) 
 What degree of probability shall be sufficient to satisfy the 
 judgment, and so induce a presumption, in any particular 
 case, must, of course, depend upon the individual circum- 
 stances of such case, as made apparent to the mind at the 
 
 (o) " That the slightest possible presumption," says Butler, " is of the 
 nature of a probability, appears from hence, that such low presumption often 
 repeated will amount to moral certainty." Butler's Analogy, lutrod. See 1 
 Phill. Evid. 437. 
 
 (6) Domat's Civil Law, p. 1, b. 3, tit 6, sect. 4, art. 3. 
 
 (e) Huberus, Praileot. Jur. Civ. lib. 22, tit. 3, n. 15. See further, under tho 
 head of " presumptions of fact," post, p. 51. 
 
CHAP, n.] NATUEAL PEESUMPTION. 29 
 
 time of the investigation ; and cannot therefore, in its nature, 
 be previously defined by any general rule, (a) 
 
 What may be called the completeness or sufficiency of a 
 presumption, when formed, mil be found to vaiy according 
 to the circumstances under which it is formed, the length of 
 time allowed for the presumptive process, the nature of the 
 subject, and the use intended to be made of the conclusion 
 itself. Where no great accuracy is necessary, or where no 
 time is allowed for minute or deliberate iuvestigation, as 
 sometimes happens in that class of natural presmnptions 
 upon which some immediate action is intended to be based, a 
 judgment formed upon what may be termed the exterior 
 probabilities of the case, that is, upon a few prominent and 
 impressive facts, without seeking for other facts of a cor- 
 roborative or infirmative kiud, wiU often be sufficient. In 
 the common affairs of life, men are frequently obliged from 
 necessity and duity to act upon the lowest degree of be- 
 lief; (6) and where such action concerns none but the parties 
 themselves, or, if it affect others, is in no danger of affecting 
 them injm-iously, it cannot be objected to. But where accu- 
 racy is important, as where the consequences of error are 
 dangerous, especially to the rights of others, and time for 
 thorough investigation is given, a judgment gathered from 
 the surface of the case is never a safe nor proper basis of 
 action. And where the correctness of a presumption is 
 actually disputed by a party whose rights are claimed to be 
 injuriously affected by it, in- the form of a judicial issue, such 
 a judgment will not be permitted. In investigations of this 
 character, it is essential, in order to ascertain with any 
 confidence the truth of the facts proposed to be established, 
 not only that the leading evidentiary facts should be known, 
 but that all the facts and circumstances connected with them, 
 
 (a) Domat'9 CiTJl Law, ubi supra . 2 Evans' Pothier on Obi. 283. 
 
 (A) Wills on Circ. Evid, 14. See Butler's Analogy, Introd, cited post, p. 40. 
 
30 NATURAL PEESUMPTION. [PART I. 
 
 and serving to explain or qualify them, should be made to 
 appear. Indeed, it is always desirable that all the eviden- 
 tiary facts of the case should, if possible, be presented pre- 
 cisely as they occurred, and in their original connection. If 
 this could uniformly be done, if the case could be thus re- 
 produced in its origiaal form, (the principal fact alone being 
 wanting,) the presumption sought to be deduced from it 
 would follow naturally and as a reasonable and obvious con- 
 clusion from fully established premises. 
 
 But this completeness and accuracy of presentation, espe- 
 cially where the transaction to be investigated consists of 
 numerous facts, are rarely attainable in practice. In almost 
 every case as it occurs, there is some fact which, through 
 accident or design, fails to come to the notice of any observer, 
 and is thus stricken out of the connection, and becomes as 
 though it had never existed. Cases, as presented to courts 
 in evidence, often exhibit chasms of this kiad, leading to 
 perplexity and doubts on the part of- juries, and eventually 
 to insuperable disagreement or acquittal. Again, the order 
 in which the facts are presented is not always the same with 
 that in which they occurred, and, from this cause, their 
 mutual connection and dependence sometimes fail to be cor- 
 rectly appreciated. Lastly, the facts are liable to take a 
 false coloring from the medium of evidence through which 
 they come. In this way, elements of certainty are lost, and 
 positive elements of error introduced into the investigation. 
 From all these causes, the deduction of a presumption often 
 becomes a matter of difficulty, involving the slow and labori- 
 ous processes of analysis, comparison, arrangement, and 
 combination, of which more will be said hereafter. And 
 when the process is at length completed, the result proves to 
 bo a mere approximation to the truth desired. 
 
 In order to render this approximation to absolute truth as 
 close as possible, recourse is had to certain tests, pointed out 
 by reason and experience, by which the strength of a pre- 
 
CHAP. 11.] NATURAL PEESUMPTION. 31 
 
 sumption may be tried, and its accuracy determmed. These 
 tests are various suppositions or hypotheses, applied to the 
 facts from which the intended presumption is to be drawn, 
 with the view of ascertaining their entire sufficiency to con- 
 stitute it. It may be observed that, in most cases, the pre- 
 sumption, while in process of formation, and until conclu- 
 sively made up, itself takes the shape of a supposition, so 
 that, while in this state or stage, one supposition, if at all 
 reasonable, is as much entitled to notice as another. In- 
 deed, the process of presumption is often nothing more than 
 the selecting, out of two or more suppositions, that one 
 which, upon examination, seems most consistent with proba- 
 bility and reason. 
 
 Sometimes, this test of hypothesis is applied to the evi- 
 dentiary facts, si?^/^, and apart from their connection with 
 others, by inquiring whether this or that particular fact will 
 admit of more than one explanation, or may not be equally 
 well accounted for upon more than one supposition. But it 
 is necessary, in such cases, that all the suppositions should 
 have some appearance of probability ; the suggestion of a 
 remote and merely possible or fanciful hypothesis will have 
 no weight in varying a conclusion otherwise plainly in- 
 dicated, (ffi) Indeed, the whole method of applying these 
 tests to the individual facts, with a view of varying what 
 is seen to be their joint or general result, is often fallacious, 
 and may be considered essentially destructive of the effect 
 of all evidence of the presumptive kind. The facts proved 
 or admitted, if found to be relevant, and not inconsistent, 
 are to be taken in their cormection, and viewed in the light 
 which they mutually reflect on each other, {b) 
 
 The great test of the strength or sufficiency of a presump- 
 tion, is to look at the assemblage of facts collectively form- 
 Co) See 2 Evans' Pothier on Obi. 289. 
 (b) See Butler's Analogy, part 2, chap. 7. 
 
32 NATURAL PRESUMPTION. [PART I. 
 
 ing the case under consideratioa, upon opposite sides, or 
 from opposite points of view ; to treat the contemplated 
 result, (though it be presented to the mind in the form of a 
 distinct proposition which it is desired to establish,) as a 
 -doubt to be settled, a question which of two opposite suppo- 
 sitions or hypotheses is to be credited and relied on ; and, 
 for this purpose, to compare the facts with both suppositions, 
 so as to ascertain their consistency or inconsistency with one 
 or the other, {a) And this process of testing, it may be 
 observed, is essentially a natural, and not exclusively an 
 artificial one ; although art may be employed to give it 
 greater exactness and efficacy. 
 
 The grand rule on this subject, the application of which 
 will be more fully considered in the course of this work, is 
 ,that the facts proved must not only be consistent with the 
 truth of the proposition, supposition or hypothesis which 
 they are intended to establish, but they must also be actually 
 inconsistent with the truth of the opposite proposition, or of 
 such hypotheses as may be resolvable into it. (6) In other 
 words, they must not only render the affirmative supposition 
 probable, but the negative improbable, (c) If, under the 
 application of this test, it be found that the facts of the 
 case are wholly inconsistent, in any one particular, with 
 the truth of that supposition or hypothesis, which, if finally 
 approved, would become the presumption desired, such sup- 
 position cannot be maintained, and must be abandoned for 
 some other. 
 
 (a) See 2 Evans' Pothier on Obi. 289-293. Instead of a cose presenting 
 simply two opposite general propositions, an afiSrmative and a negative, it 
 sometimes presents several, or rather, the general negative proposition divides 
 itself into ■■ variety of particular hypotheses, which are nothing more than 
 various modes of accounting for, or explaining the facts proved, or reconciling 
 them with such negative proposition. This often happens on the trial of issues 
 in criminal cases, as will be shown in a subsequent chapter . 
 
 (6) See the last note. 
 
 (c) 2 Evang' Pothier, 289. 
 
CHAP. II.J NATURAL PRESUMPTION. 33 
 
 The conTersion of the process of presumption into the 
 solution of a question between two opposite suppositions, (as 
 just adverted to,) is much facilitated, where the fundamental 
 facts, as they are discovered or proved, are of so obvious a 
 bearing as to range themselves at once on opposite sides, (a) 
 In these cases, the two important points to be considered 
 are, first, the number of the opposing facts ; and, secondly, 
 the degree of their opposition. 
 
 Where the facts from which the affirmative supposition is 
 deducible, are abundantly sufficient, if considered by them- 
 selves, to indicate and maintain its truth ; but are met by a 
 body of facts on the opposite side, indicating with equal or 
 nearly equal clearness the contrary, there is always great 
 difficulty in arriving at any satisfactory conclusion, or de- 
 ducing, on the whole, any presumption that can be confi- 
 dently relied on. But it more frequently happens that the 
 facts stand relatively thus : a number, constituting the larger 
 proportion, are found to point unitedly, with great, or at 
 least reasonable clearness, to the conclusion or presumption 
 desired ; but there happen to be one or two, and sometimes 
 more, but always a smaller number, which either absolutely 
 point in an opposite direction, or throw seeming difficulties 
 in the way of the affirmative supposition. Whether this 
 supposition shall finally prevail, so as to constitute the pre- 
 sumption desired, depends, of course, upon the ease with 
 which these conflicting or disturbing elements can be got 
 rid of. 
 
 The rule on this subject may be briefly laid down to the 
 following effect : that if there be but a single fact on the 
 opposite side of the question, but the degree of its opposition 
 amounts to absolute and manifest inconsistency with the 
 truth of the affirmative supposition, its effect will be to de- 
 
 (ffl) As to the disposition of such facts as are termed by the writer last 
 quoted, " ambiguous," that is, admitting of more than one exposition, see 2 
 Evans' Pothicr, 292. 
 
34 NATURAL PBESUMPTION. [PABT I. 
 
 stroy that supposition entirely, however clear and reasonable 
 it may otherwise appear to be. It thus more than counter- 
 balances the whole mass of facts on the other side. But the 
 more existence of a fact on the opposite side, which is not 
 accounted for, will not be attended with this effect. And the 
 reason of the difference is that, in the former case, the nature 
 of the opposing fact is such that it cannot possibly, and 
 under any circumstances, be made to harmonize with tho 
 aflrmative supposition ; but, in the latter, the diflBculty arises 
 from want of full information in regard to the apparently 
 discordant fact. In the latter case, the mind is merely em- 
 barrassed in adopting what it, nevertheless, sees to be the 
 only rational conclusion : in the former, it sees its absurdity, 
 and is at once compelled to relinquish it. {a) 
 
 Hence it is concluded, by an able writer on the subject, 
 that " when a series of facts, distinctly and unequivocally 
 
 (a) M. Burlamaqui, in liia " Treatise on the Principles of Natural mA 
 Politic Law," has the following judicious observations on the subject of difiS- 
 oulties in the form of mere objections. " I own, it is necessary, in the research 
 of truth, to consider an object on every side, and to balance equally the argu- 
 ments for and against : nevertheless, we must take care we do not give to those 
 objections more than their real weight. We are informed by experience that, 
 in several things which, in respect to us, are invested with the highest degree 
 of certainty, there are many diffisulties, notwithstanding, which we are in- 
 capable of resolving to our satisfaction, and this is a natural consequence of 
 the limit? of the mind. Let us conclude, therefore, from hence, that when a 
 truth is suffijiently evinced by solid reasons, whatever can be objected against 
 it, ought not to stagger or weaken our conviction as long as they are such 
 difficulties, only, as embarrass or puzzle the mind, without invalidating the 
 proofe tliemselves." Parti, chap 2, sect. 11. And in a note, he proceeds to 
 quote the following passage from the Bibliotheque Raisonnde, as serving further 
 to explain the reason. " There is a wide difference between seeing that a thing 
 is absurd, and not knowing all that regards it; between an unanswerable ques- 
 tion in relation to a truth, and an unanswerable objection against it; though a 
 great many confound these two sorts of difficulties. Those only of the latter 
 order are able to prove that what was taken for a known truth cannot be true, 
 because otherwise some absurdity must ensue. But the others prove nothing 
 but the ignorance we are under, in relation to several things that regajrd a 
 Known truth," Biblioth. Rais. torn. 7, p. 346. 
 
CHAP, n.] NATURAL PRESUMPTION. 35 
 
 proved, manifestly tends to one conclusion, and another fact 
 is proposed in contradiction to that conclusion, the mere in- 
 ability to account for such opposite fact is not sufficient to 
 destroy the inference deduced from the others, but the posi- 
 tive inconsistency should be fully shown." (a) But, on the 
 other hand, he continues to remark, " a presumption is not 
 to be hastily formed, from the difficulty of explaining the 
 cause and reason of existing circumstances, unless the vrhole 
 of the subject with which those circumstances are connected 
 is sufficiently seen. This applies more strongly, when the 
 difficulty is, to account for the non-existence of facts, which 
 might be reasonably supposed to exist, upon a different sup- 
 position from, that which is assumed. There is no point 
 upon which presumption is more material than in ascribing 
 to particular conduct, motives and dispositions which cannot 
 be seen, and can only be inferred from the facts that are 
 seen, and the probable motives by which they may be 
 occasioned ; but it will often be very fallacious to reason 
 upon the motives or disposition of others, without a most 
 perfect view of all the circumstances with which they afe 
 connected." (6) We shall see, in the course of the present 
 work, that, in criminal investigations, if thte mind becomes, 
 from whatever cause, embarrassed to such a degree as to 
 create a reasonable and permanent doubt of the truth of the 
 affirmative supposition, such supposition must be aoandoned. 
 Such are the methods which reason and experience have 
 pointed out, for giving to natural presumptions the quality of 
 as close approximations to absolute truth as is consistent 
 with their character. Under no circumstances, however, 
 can a natural presumption be said to be invested with the 
 quality of positive certainty. This would be destroying its 
 distinctive character, as an inference of probability. As 
 
 (o) 2 Evans' Pothier on Obi. 291, 292. 
 
 (6^ Id. 293. These remarks are made with an obvioos reference to the 
 Douglas case, irhich is commented on in Tvhat follows. 
 
86 NATURAL PRESUMPTION. [PART I. 
 
 long as it continues to be a mere presumption, so long is it a 
 merely contingent inference ; (a) it may, or may not, in 
 fact, be correct. Subsequent actual kno-wledge may demon- 
 strate its truth or falsity ; and tMs may be the case, what- 
 ever be the degree of the presumption itself. A mere con- 
 jecture may prove to be the truth ; the most confident belief 
 may turn out to be without foundation. If thus verified, the 
 presumption is immediately superseded ; if the reverse, it is 
 wholly destroyed. But, until thus superseded or destroyed, 
 it is always more or less implicitly relied on, as the best 
 attainable means for the discovery of a desired truth. Hence 
 the intrinsic soundness of the law maxim, stabitw prcBsump- 
 tioni, donee probetur in contrarivm. {b) 
 
 The last thing to be observed of presumption, whether 
 considered in the sense of a process or a result, is its quality 
 or effect as proof. 
 
 The whole object of presumption,, as has been already ex- 
 plained, is to ascertain the existence of a fact which cannot 
 be directly made to appear^ by the indirect course of infer- 
 ence from other facts of which such direct evidence exists. 
 Its peculiar function is to apply such evidence, indirectly 
 and argumentatively, to the fact which is sought to be estab- 
 lished. Now, as satisfactory evidence of any kind becomes 
 proof, (c) so the process which applies such evidence, and, 
 indeed, gives it its satisfactory and convincing quality and 
 effect, ought, it would seem, to be regarded as a process of 
 proof. But by some of the best writers on evidence, pre- 
 sumption is carefully distinguished from proof. Thus, ac- 
 cording to Lord Chief Baron Gilbert, " where the fact itself 
 cannot be proved, that which comes nearest to the proof of 
 
 (a) The civilians call the argument itself by which it is deduced, a contin- 
 gent one, (argumentum contingens.) Matthseusde Crim. o. 6; oited ante, p. 
 22, note (c). 
 
 (*) Sec 2 Evans' Pothier, 280, 281. 
 
 (c) 1 Stark. Evid. 450. 
 
CHAP. U.] NATURAL PRESUMPTION. 37 
 
 the fact, is the proof of the circumstances that necessarily 
 and usually attend such facts ; and [these are] called pre- 
 sumptions and not proofs, for they stand instead of the 
 proofs of the fact, till the contrary be proved." {a) So, 
 Polliier observes that " presumption differs from proof, 
 properly so called ; the latter attests a thing directly and of 
 itself ; presumption attests it by a consequence deduced from 
 another thing." (b) And Sir W. D. Evans, in his com- 
 mentary on the last named writer, by way of appendix, adds 
 that " the distinction between presumption and proof, is, 
 that the one may be false, but until shown to be so, must be 
 regarded as true ; but the other, (the facts upon which it is 
 foimded being admitted,) cannot be otherwise than true." (c) 
 There are writers, on the other hand, comprising names of 
 the highest authority on the subject, who so far blend the 
 ideas conveyed by these terms, as actually to make the one 
 descriptive of the. other. This may be seen in the constant 
 use of the expression " presumptive proof," — which signifies 
 proof by presumption, — ^in the well known works of Mr. 
 Starkie, {d) Mr. Phillipps, (e) and Mr. Best. (/) And some 
 of the civilians have adopted the same view ; not only con- 
 sidering presumption as proof, {probatio,) but even defining 
 it by that word, (g-) 
 
 This diversity of opinion arises from the cii'cumstance 
 that the term "proof," itself, has not, by any means, a 
 
 (a) 1 Gilb. Evid. 142. 2 Russoll on Crimes, 726. 
 (6) Pothier on Obligations, part 4, c. 3, sect. 2. 
 
 (c) 2 Kvans' PotUer on Obi. 281. 
 
 (d) 1 Stark Evid. 481. 
 
 (e) 1 Pliill. Evid. 436, 439. Tlie essay appended to the second edition of 
 Phillipps on Evidence, entitled, " On the Theory of Presumptive Proof," is 
 usually attributed to this writer. 
 
 (/) The third part of Mr. BesVs work on Presumptions, is entitled, "On 
 Presumptive Proof in Criminal cases." 
 
 (g) Prasuinptio est probatio negotii dubil ex probabilibus argumentis, 
 Q. A. Stravius, Syntag. Jur. exero. 28, s. 15. Prasumptio est probatio per 
 argumerta pro'iabilia facta. Westenbergius, Princ. Jur. lib. 22. tit. 3, n. 21. 
 
38 NATURAL PRESUMPTION. [PART I. 
 
 single invariable signification, (a) In its most general sense, 
 proof is the satisfactory establishment of the truth or falsity 
 of some alleged matter of fact ; (6) but this takes place, 
 as has already been sufficiently explained, by two very dif- 
 ferent processes, corresponding with the nature of the truth 
 in question ; namely, by showing such truth to be reasonable, 
 and probable, and by demonstrating it to be certain. In the 
 latter sense of the term, it is clear that presumption is not 
 proof, (c) In the former, presumption is constantly regarded 
 as practically equivalent to proof, if not importing the same 
 idea. Indeed, it has been judicially said, that " proof is 
 nothing more than a presumption of the highest order." (rf) 
 
 Presumption has, thus far, been chiefly considered in its 
 two senses of \h.& process and result of inference from facts. 
 There is another sense in which the term is often employed, 
 which requires some notice before passing from the present 
 division of the subject ; namely, that of assumption or propo- 
 sition. Thus, when it is said that every man is presumed to 
 intend the natural and probable consequences of his own 
 
 (a) Proof is a generic term ; an appellation given to any thing which serves 
 to convince the mind of any truth, and necessarily varying with the nature of 
 that truth. Best on Pres. § 4. As there are truths of diverse sorts, so like- 
 wise there are different kinds of proofs. Domat's Civil Law, part I, b. 3, tit. 6. 
 
 (6) "We call that a proof," says Domai, "which convinces the mind of a 
 truth." Civil Law, ubi supra. Things established by competent and satis- 
 factory evidence are said to be proved. 1 Greenl. Evid. § 1. " To prove " is 
 to convince another of the truth of our assertions. In law, probare est fidem, 
 facerejudici; to prove is to convince or satisfy the judge. Theory of Pre- 
 sumptive Proof, 20. See argument in the case of Philip Standsfidd, 11 
 Uowell's State Trials, 1388. And see 1 Stark. Evid. 450. 
 
 (c) Some writers, especially the civilians, employ the term " proof" in the 
 limited sense of the result of direct evidence; and this enables them to draw 
 the liae very distinctly between presumption and proof. See Pothier on Obi. 
 p. 4, 0. 3, s. 2, cited ante, p. 37. J..Voet ad Pand. lib. 22, tit. 3, n. 15, &o. 
 
 ((i) Wills on Giro. Evid. 32 ; citing Lord Erskine in the Banbury Peerage 
 case. ' We ought," says Domnt, "to take good heed, not to distinguish 
 [separate] the sense of the word presumptions from that of proofs, in such a 
 
CHAP. II.J NATURAL PHESUMPTION. B9 
 
 voluntary acts, this is not a presumption, in either of tlie 
 senses which have been explained ; that is, it is neither a 
 process of inference, nor an inference itself, from a known to 
 an unknown fact, by a course of probable reasoning. It is 
 an immediate and necessary deduction of reason from the 
 known constitution of the human mind. It is an abstract 
 proposition, carrying its truth upon its face. It is not a 
 special means employed to discover some particular desired 
 truth ; nor is it a result having the quality of an approxima- 
 tion to truth ; but it is a direct assumption of the very truth 
 itself. Finally, it has no contingent character ; it is not to 
 be taken for truth until the contrary is proved. It is held 
 for truth under all circumstances, and the contrary is not 
 susceptible of proof. It is, in short, a principle, a general 
 rule, a maxim of natural reason, a guide to the formation of 
 presumptions in particular cases ; the force of which resides 
 not only in its intrinsic justice, but in its absolute necessity 
 to the order and well-being of society. 
 
 Again, it is always presumed that men are in their best or 
 most natural estate or condition ; that is, that they are sane, 
 not insane ; innocent, not guilty ; legitimate, not illegitimate ; 
 and the like. This is not so much a presumption as a direct 
 assumption of the whole truth required. It is an abstract 
 general rule, founded upon like considerations of reason and 
 necessity as the one last noticed. In two respects, however, 
 it does partake of the character of a presumption, in the 
 stricter sense. First, it is intrinsically founded upon proba- 
 hitity, and the natural course of things. Thus, sanity arises 
 naturally from the ordinary constitution and union of the 
 human mind and body ; insanity springs from some disturb- 
 ing cause. Sanity is the rule ; insanity the exception. 
 Hence, in any given case, where a particular individual be- 
 
 manner as never to take presumptions to be proofs, seeing there are such pre- 
 sumptions as are sufficient to establish the proof of a fact." Civil Law, part I, 
 b. 3. tit. 6. 
 
40 NATURAL PEESUMPTION. [PABT I. 
 
 comes the subject of remark or judgment, he is presumed to 
 be of sound mind. Nor will any mere allegation to the con- 
 trary, avail to destroy this natural and reasonable presump- 
 tion. But, secondly, however strong the persuasion or belief 
 may be, it is, like any other strict presumption, entirely 
 contingent. The contrary is always allowed to be shown; 
 and when circumstances of sufficient force for that purpose 
 are proved, the presumption immediately shifts to the oppo- 
 site side ; or rather, the general and ordinary presumption 
 gives place to a special and particular one. Qa) 
 
 It is in this last mentioned sense of assumption, proposition 
 or rule, that the term " presumption " is extensively used 
 in law, as will be particularly shown in the following section. 
 Indeed, what are termed " presumptions of law," are exclu- 
 sively of this character, being either conclusive or conditional, 
 according to the case. 
 
 The process of natural presumption, as it has just been 
 described, is one that is called into constant exercise in the 
 ordinary course of life, and is applied alike to the most 
 momentous and the most trivial concerns. Opinions are 
 'extensively formed by it, and action is, every day, confi- 
 dently based upon it. And this takes place, not only^ as a 
 conclusion of reason, but as a matter of obvious necessity. 
 Absolute certainty, in matters of moral conduct, is rarely to 
 be attained. In tracing out the causes of action, as well as 
 in looking forward to its results, we are, at every step, com- 
 pelled to rely upon probabilities and presumptions. (6) 
 " He that will not eat," observes a great metaphysician, 
 " tiU he has demonstration that it will nourish him ; he that 
 will not stir till he infallibly knows the business he goes 
 about will succeed, will have but little else to do but to sit 
 
 (o) 2 Evans' Pothier on Obi. 283. 
 
 (6) Burlamaqui, Prino. Nat. and Pol. Law, part I, oh. 6, sect. 6. Butler's 
 Analogy, Introd. And that men constantly form their opinions, and aot, even 
 in matters of importance, upon very low degrees of probability and presump- 
 
CHAP. II.] JUDICIAL PRESUMPTION. 41 
 
 Still and perish." (a) Probability is called by another pro- 
 found reasoner, " the very guide of life." (i) Indeed, the 
 whole business of human life may be said to be founded upon 
 one grand and constant presumption, — ^the continuance of 
 life itself. 
 
 SECTION n. 
 Judicial Presumption. 
 
 The nature and application of presumption, as a means of 
 discoTering truth in general, especially in matters relating to 
 human conduct, and the reasons why it is resorted to for that 
 purpose, have been sufficiently explained in the last section. 
 The same reasons will be found to account satisfactorily for 
 its employment in the character in which it is next proposed 
 to be considered ; namely, as a means of judicial investiga- 
 tion. 
 
 A trial before a judicial tribunal is nothing more than an 
 inquiry, under certain forms of procedure, into the truth of 
 
 tion, ig very clearly shown by the author last cited. Burlamaqui remarks 
 that men often act upon mere possibility. Prino. N. and P. Law, ubi supra. 
 
 (a) Locke's Essay on the Human Understanding, b. 4, c. 14, s. 1. 
 
 (d) Butler's Analogy, Introd. The same ideas, expressed with great force 
 and beauty of illustration, are to be met with in so early a writer as Seneca. 
 JVunquam- exspectare nos certissimam rerum comprehensionem, quoniam in 
 arduo eat veri exploratio ; sed eS, ire qu^ ducit veri similitude. Omne hao 
 TJa proeedit officium. Sic serimus, sic navigamus, sic militamus, sic uxores 
 ducimus, sic liberos toUimus : quum omnium horum incertus sit eventus. 
 Ad ea accedimus de quibus bene sperandum esse credimus. Quis enim jmllice- 
 atur serenii proventum, naviganti portum, militanti victoriam, marito pudi- 
 cam uxorem, patri pios liberos? Sequimur qu3, ratio, non quS. Veritas trahit. 
 JExspecta, ni nisi bene cessura non facias, et nisi comperta veritate nihil 
 moveris ; relicto omni actu vita cousistit. De Beneficiis, lib. 4, o. 33. 
 
42 JUDICIAL PEESUMPTION. [PABT I. 
 
 facts connected with, or growing out of human conduct; 
 with the additional effect of annexing certain legal conse- 
 quences to the result, and of enforcing such consequences 
 against the individual who may become liable to them. A 
 criminal trial constantly deals with human conduct in its 
 most unfavorable aspects ; those, namely, of action contem- 
 plated and committed against law, and action seeking to 
 escape the penalties of law : its policy throughout being to 
 throw every species of obstacle in the way of investigation 
 by direct means. Hence the peculiar necessity, in these 
 cases, of resorting to the indirect or presuviptive method of 
 inquiry. 
 
 Judicial presumption may be divided into two distinct 
 kinds ; that which is made by the law, as represented by the 
 court ; and that which is made by the jury, as the appointed 
 investigators of matters of fact. The latter is, for the most 
 part, nothing more than natural presumption, or the pre- 
 sumption of the individual, (a) as it has already been de- 
 scribed, and as it will be further considered, under the head 
 of presumptions of fact: the former is a different species, 
 resting often on artiiicial grounds, and hence called artificial 
 as well as leg-al presumption. (&) 
 
 The law, then, as well as the individual, is under the ne- 
 cessity of inferring, intending or presuming the existence of 
 facts, as the basis of its conclusions. The definition of a 
 distinguished French writer places both on the same footing, 
 in regard to the process of presumption itself, and the found- 
 ation on which it rests, (c) In its process of presumption, 
 
 (a) 1 Greenl. Evid. § 44. 
 
 (i) 3 Stark. Evid. 1235, 1241. 
 
 (c) Presumption may be defined to be a judgment which the law, or which 
 an individual makes respecting the truth of one thing, by a consequence de- 
 duced from another thing. These consequences are founded upon what com- 
 monly and generally ta-kes place. (On pent d^finir la pr&omption, un juge- 
 ment que la loi ou I'homme porte sur la v<JritiS d'une chose, par nne consequence 
 tir^e d'une autre chose. Ces consequences sont fonddes sur ce qui arrive com- 
 
CHAP. II.J JUDICIAL PRESUMPTION. 43 
 
 however, the law takes a different course from that pursued by 
 the judgment of the individual or juror. As it contemplates 
 conclusions, not of a temporary but permanent kind, intended 
 to have, not a particular but a general application, it takes 
 into account other considerations than those of mere proba- 
 bility or reasonableness. It looks to policy, expediency and 
 convenience, as well as to reason. It seeks to give to its 
 deductions the quality of practical and general utility, as 
 well as those of moral justice and logical propriety. And 
 when it has framed its inferences, it frequently makes up 
 for their want of intrinsic certainty, by superadding a techni- 
 cal certainty of its own creation ; or, in other words, by 
 converting what would otherwise be a contingent, variable 
 inference,- into a fixed and inflexible rule ; the presumption, 
 in such cases, being called one of law, in a double and peculi- 
 arly emphatic sense, — a prcesumptio juris et de jure. It does 
 not so much regard the actual truth of facts in particular 
 cases, as the correctness of the legal consequences which are 
 attached to them. In short, the whole process is more or 
 less arbitrary in its character: the term presumption, itself 
 having, in this application, rather the absolute sense of as- 
 sumption, which has already been alluded to. (a) 
 
 To consider this process of legal presumption more par- 
 ticularly. In some cases, a mere natural presumption or 
 inference is taken and adopted, without change. Thus, the 
 general presumption of reason, considered under the pre- 
 ceding head, (6) — that every man intends the natural and 
 
 munement et ordinairement.) Pothier, Traits des Oblig. p. 4, o. 3, see. 2. 
 But see the next note. 
 
 (^a) Ante, p. 10. In legal presumption, there is, strictly speaking, as an 
 accurate writer has shown, no inference ; that is, there is no special inference 
 or process of reasoning from fact to fact, as there is in natural presumption. 
 AVh.it is called legal presumption is properly assumption; a legal presumption 
 is a propoaiiion of law, or the application to a certain fact proved, of a rule 
 previously established. Sea 6 Lond. Law Magazine, 354. 
 
 (6) Anle,p.Z%. As to the quaMoation of sanity in the statement of this pre- 
 sumption, sec post, p. 47. 
 
44 JUDICIAL PRESUMPTION. [PART I. 
 
 probable consequences of Ms own acts, — is converted into a 
 fundamental and most important maxim of law ; (a) and 
 from it are deduced such particular rules or conclusions as 
 the following : that 'he who sets fire to a building, intends 
 injury to its owner ; (&) that he who forges the handwriting 
 of another, intends to defraud him ; (c) and that he who 
 lays a poison for another, or discharges loaded arms at him, 
 intends death or bodily harm to him. (t?) In other cases, 
 the law takes a natural presumption, and gives it an increased 
 force ; or, in other words, attaches to the facts which give 
 rise to it, an artificial eifect beyond their natural tendency to 
 produce belief, (e) Thus, the presumption of payment from 
 a receipt under hand and seal, is a natural one, because true 
 in the vast majority of cases ; but it does not amount to a 
 necessary consequence. The conclusive effect of such a 
 receipt is altogether a creature of the law. (/) In othei 
 cases again, the law, from a similar motive of expediency, 
 establishes inferences which natural reason does not perceive, 
 and to which it sometimes does not assent. In these cases, 
 the process is purely artificial, resting on a foundation arbi- 
 trarily assumed, and not only not proved, but often incapable 
 
 (a) Best on Pres. § 16. 1 Phill. Evid. 4.U. 1 Greenl. EvM. § 18. Haire 
 V. Wilson, 9 B. & Cress. 643. Lord EUenborough, in Rex v. Dixon, 3 M, & 
 S. 11, 17. 
 
 (A) Rex T. Farrington, Rusg. & R. Or. C. 207. 
 
 (c) Rex T. Skeppard, Id. 169. See Rex t. Mazagora, Id. 291. 2 Russell 
 on Crimes, 362. Commonwealth v. Whitney, Thaoher's Crim. Cases, 58*. 
 
 (d) Best on Pres. § 16. 1 Greenl. Evid. § 18. See Stale v. Smith, 2 
 Strobhart, 77. ^ 
 
 (e) 3 Stark. Evid. 1235. Best on Pres. § 16. See the reasoning of Lord 
 Chanoellor Erskine, in Hillary v. Walker, 12 Vesey Jr. 239, 266, 267. 
 
 (/) 1 Gilb. Evid. 143. Best on Pres. §§ 16, 17. 3 Stark. Evid. 1272. But 
 the common law doctrine as to the conclusive effect of a seal, is to be taken 
 subject to the equitable doctrine of relief against sealed instruments, and to 
 such modifications as have been introduced by statute. See Harden v. Gordon, 
 •2 Mason, 531, 561. 2 New York Revised Statutes, 406, §77; (328, § 97, 
 2d ed.) 
 
CHAP. II.] JUDICIAL PEESUMPTION. 45 
 
 of being proved. The assumption mentioned by Mr. Best, 
 that all persons in a kingdom, whether natives or foreigners, 
 are acquainted with its common and general statute law, 
 belongs to this class, (a) 
 
 In what has just been said, presumption has been con- 
 sidered chiefly in its character of a process. It is in the 
 sense of a result or consequence, however, that the term is 
 most frequently used in connection with judicial investiga- 
 tions, (hi) Viewed in this light, presumptions are inferences, 
 positions and assumptions, derived from various sources, 
 framed upon different principles, and invested with various 
 degrees of force and authority. They are of two principal 
 kinds : presumptions of law, and presumptions of fact, (c) 
 
 I. Presumptions of law, or, as they are sometimes called, 
 intendments of law, and by the civilians, prasumptiones seu 
 positiones juris, are, in the words of an English writer on the 
 subject, " inferences or positions established, for the most 
 part, by the common, but occasionally by statute law, and 
 are obligatory alike on judges and juries." (d) They differ 
 from presumptions of fact and mixed presumptions, (e) ac- 
 cording to the same writer, in two important respects ; first, 
 that no discretion in drawing the inference is vested in the 
 tribunal, but the law peremptorily requires a certain infer- 
 ence to be made, whenever the facts appear which it assumes 
 as the basis of that inference ; and, secondly, that, as they 
 are in reality rules of law, (/) and part of the law itself, 
 
 (a) Best, on Pres. § 16. 
 (4) See ante, p. 25. 
 
 (c) 1 Greenl. Evid. § 14. A third division is sometimes added to there, by 
 writers who treat the subject minutely, consisting of mixed presumptions, or 
 those which partake of the qualities of both the others. See Best on Pres. 
 §§ 14, 38. 3 Stark. Evid. 1243. 
 
 (d) Best on Pres. § 15. 
 
 (e) As to mixed presumptions, see svpra, note (c). 
 (/) See Vinnius, Jurispr. Contr. lib. 4 tit. 36. 
 
46 PRESTIMPTIONS OP LAW. [PART I. 
 
 the court may draw the inference, wlieneyer the requisite 
 facts are developed in pleading, without the intervention of 
 a jury, (a) 
 
 Of these presumptions of law, some are, as already ob- 
 served, (6) mere natural presumptions or principles, recog- 
 nized and enforced without change. Others are natural pre- 
 sumptions artificially strengthened. Others, again, are mere 
 technical assumptions, or arbitrary rules. They have long 
 been divided into two distinct classes ; conclusive, or abso- 
 lute, and disputable or rebuttable presumptions, (c) 
 
 Conclusive presumptions, as they are ably explained by an 
 American writer on the subject, " are rules determining the 
 quantity of evidence requisite for the support of any par- 
 ticular averment, which is not permitted to be overcome by 
 any proof that the fact is otherwise. They consist chiefly 
 of those cases in which the long experienced connection 
 [between facts] has been found so general and uniform, as 
 to render it expedient for the common good, that this con- 
 nection should be taken to be inseparable and universal. 
 They have been adopted by common consent, from motives 
 of public policy, for the sake of greater certainty, and the 
 promotion of peace and quiet in the community ; and there- 
 fore it is that all corroborating evidence is dispensed 
 with, and all opposing evidence is forbidden." (c^) These 
 presumptions have been termed by the common lawyers, 
 irrebuttable presumptions, and by the civilians, prcesump- 
 tiones juris el dejwre. The force of the latter expression is 
 thus explained by Menochius : — " it is called a prcBsumpHo 
 juris, because it is a presumption made by law, and de jure, 
 because the law holds for truth the presumption thus made, 
 and establishes a fixed right upon it." (e) They are in 
 
 (a) Best on Pres. § 15. 
 
 (A) Jlnte, p, 43. 
 
 (c) Best on Pres. § 17. 1 Greenl. Evid. § 14. 
 
 (of) 1 Greenl. Evid. § 15. 
 
 (e) Praesumptio juris, quia a lege introducta est, et de jure, quia super talt 
 
CHAP, n.] PRESUMPTIONS OP LAW. 47 
 
 fact, as Vinnius has observed, (a) rather rules of law, than 
 presumptions in the proper sense. Of this class is the pre- 
 sumption that a sane man contemplates and intends the 
 natural and probable consequences of his own acts, (6) 
 which has already been shown to be a natural presumption 
 or principle, (c) Another is, that an infant under seven 
 years of age is incapable of committing a felony, (rf) which 
 also rests essentially upon the laws of nature ; the precise 
 limitation of time being dictated by obvious considerations 
 of expediency, and indeed of necessity. " In these cases of 
 conclusive presumption," it has been well remarked, " the 
 rule of law merely attaches itself to the circumstances, 
 when proved ; it is not deduced from them. It is not a rule 
 of inference from testimony ; but a rule of protection, as 
 expedient, and for the general good." (e) 
 
 Disputable or "rebuttable presumptions, otherwise called 
 inconclusive presumptions, and by the civilians prcesnmp- 
 tiones juris tantum, are, like the preceding class, intendments 
 made by law, but, unlike them, only hold good until dis- 
 
 prtBsttmptione, lex inducit firmum jui, et habet mm pro reritate. Menooh. de 
 Frses. lib. 1, qu. 3. The explanation of Mascardus is nearly in the same 
 words : super hac prasumptione lex firmum sancit jus, et earn pro veritate 
 habet. De Prob. vol. I, qu. x. 48. Alciatus defines a prtesumptio juris et de 
 jure in the following expressive language : est dispositio legis aliquid prasu- 
 mentis,etsuper preBsumpto, tanquam sibi comperto, statuentis. Tract, de Prses, 
 pars 2, n. S. 
 
 (a) Jurispr. Contr. lib. 4, tit. 86. 
 
 (6) 1 Greenl. Evid. § 18. Lord Ellenborough, in the case of Rex v. Dixon, 
 (8 M. & S. 11, 15,) said " it was an universal principle, that when a man is 
 charged with doing an act of which the probable consequence may be highly 
 injurious, the intention is an inference of law, resulting from the doing the act. ' ' 
 
 (c) Ante, p. 43, where it is stated in a more general form, omitting the 
 qualification of sanity. In this form, there is a double presumption invohed; 
 first, that of sanity, and secondly, that of the natural action of a sane mind. 
 Thus generally expressed, the presumption belongs to the rebuttable class. See 
 Best on Pres. § 25. 
 
 (d) 1 Hale's P. C. 27. 4 Bl. Com. 23. Best on Pres. § 17. 
 
 (e) 1 Greenl. Evid. § 82. 
 
48 PRESUMPTIONS OF LAW. [PART I. 
 
 proved, (a) " These, as -well as the former," observes an 
 Americaa 'writer, already quoted, " are the result of the 
 general experience of a connection between certain facts or 
 things, the one being usually found to be the companion or 
 the effect of the other. The connection, however, in this 
 class, is not so intimate, nor so nearly universal, as to render 
 it expedient that it should be absolutely and imperatively 
 presumed to exist in every case, all evidence to the contrary 
 being rejected ; but yet it is so general, and so nearly uni- 
 versal, that the law itself, without the aid of a jury, infers 
 the one fact from the proved existence of the other, in the 
 absence of all opposing evidence. In this mode, the law 
 defines the nature and amount of the evidence which it deems 
 sufficient to establish a prima facie case, and to throw the 
 burden of proof on the other party ; and if no opposing evi- 
 dence is offered, the jury are bound to find in favor of the 
 presumption." (&) Presumptions of this kind may be re- 
 butted by presumptive, as weU as by direct evidence ; the 
 weaker presumption giving way to the stronger, (c) 
 
 A prominent example of this class of inconclusive pre- 
 sumptions, is the well known presumption in favor of inno- 
 cence, (d) Another is that of malice from the fact of killing 
 a human being, (e) These two presumptions, taken together, 
 
 (o) Best on Pres. § 25. J. Voet nd Pand. lib. 22, tit. 3, n. 15. 
 
 (4) 1 Greeul. Evid. § 33. So the civilian Baldun defines a presumption of 
 law to be, animi le^islatoris ad verisimile applicatio, onus probandi trans- 
 f evens. Bald, in Kubr. Cod. de Prob. (lib. 4, tit. 19,) n. 4. Best on Pres. 
 §25, note (e). 
 
 (c) Prcesumptio juris dicitur, qua ex legibus introducta est, ac pro veritate 
 habelur, donee probatione aut preesumptione oontraria fortiore enervata fuerit. 
 J. Voet ad Pand. lib. 22, tit. 3, n. 15. Best on Pres. §§ 25, 43. 
 
 (d) 1 Greenl. Evid. § 84. Best on Pres. § 25, 
 
 (e) Foster's Crown Law, 255, 290. 1 Hale's P. C. 455. 1 East's P. C. 
 340. Rex V. Farrington, Russ. & R. Cr. C. 207. 1 Greenl. Evid. § 84. Sea 
 note (i) on next page. Mr. Best considers this presumption as resting partly 
 on natural equity, and partly on policy. Best on Pres. § 16. 
 
Chap, ii.] peesumptions op law. 49 
 
 furnish a good illustration of the shifting and flexible charac- 
 ter belonging to this species of legal intendment or inference. 
 A person accused of homicide is presumed to be wholly inno- 
 cent until proved guilty, and the burden of this proof always 
 rests on the prosecutor. But as soon as proof has been made, 
 sufficient to show that the accused did kill the deceased, the 
 presumption, which before was in his favor, now shifts against 
 him ; it being presumed that he killed him with a malicious 
 intent, (a) Here we have a presumption of innocence 
 followed by one of guilt, and carrying with it the burden of 
 proof ; that is to say, it is now incumbent on the accused to 
 show, affirmatively, circumstances of justification or extenu- 
 ation, in order to escape from the otherwise decisive effect of 
 the presumption of a malicious killing. (&) Both these are 
 presumptions of law ; but a presumption of law may also be 
 rebutted by a presumption of fact, (c) Thus, to take the 
 same presumption of innocence in a similar case of homicide, 
 if proof be made, on the part of the prosecutor, that the 
 accused suppressed or destroyed certain evidence, which 
 would have tended to fix the charge upon him, or fal»ricated 
 evidence to produce a false show of iimocence, a contrary 
 presumption of guilt is at once raised against him ; which 
 however, (being in this case a presumption of fact,) is for 
 
 (a) 1 Stark. Ev. 452. 2 /d. 948. 2 Bussell on Crimes, 731 . See the au- 
 thorities cited in the last note. 
 
 (i) 1 Stark. Evid. 452. 1 Greenl. Eyid. § 34. This is the rule in Massa- 
 chusetts, as expressly recognized and affirmed in the case of Commonwealth v. 
 York, (9 Metcalf, 93;) and, more recently, in Commonwealth v. Webster, 5 
 Cushing, 305. The same rule prevails in New York, ( The People v. McLeod, 
 1 Hill, 377, 436,) New Jersey, (The State v. Zellers, 2 Halsted, 220, 243,) 
 and Virginia; (Hill's Case, 2 Grattan, 594.) The same rule prevailed also 
 in Pennsylvania, before the act of 1794. Pennsylvania v. Honeyman, Addi- 
 son, 148. Pennsylvania v. Lewis, Id. 171. Pennsylvania v. McFall, Id. 
 357. Pennsylvania v. Bell, Id. 282. But by that act, the burden of proof is 
 thrown on the prosecutor, to show circumstances of malice in the first instance. 
 See Commonwealth v. O'Hara, 1 Wharton's Dig. 327, (4th ed.) 
 
 (c) As to presumptions of fact, see the next general head. 
 
50 PRESUMPTIONS OP LAW. [PART I. 
 
 tlie jury alone to consider, in maSng up their verdict upon all 
 the evidence before them, (a) 
 
 Natural presumption has already been shown to be founded 
 on certain connections between facts, ascertained by experi- 
 ence to have uniformly or usually existed in cases previously 
 observed. (6) Legal presumption has also been shown to 
 rest on a similar foundation of knowledge derived from a 
 similar source, (c) The law, (that is, the court which ad- 
 ministers the law,) is, as well as the individual, said to 
 have experience of the necessary or usual connection between 
 particular facts, and by virtue of this legal experience, it 
 presumes, or rather assumes, similar connections to exist in 
 particular cases, (d') So that legal is essentially founded 
 upon natural presumption, (e) being, in other words, natural 
 presumption modified by artificial rules. 
 
 Artificial presumptions, thus made by the law itself, 
 whether of the conclusive or inconclusive kind, are not, in 
 general, used as rules of evidence, for the purpose of ascer- 
 taining doubted facts, but are, in effect, mere arbitrary rules 
 of law. • They are founded, as we have seen, upon principles 
 of policy and utility, without any necessary reference to the 
 real existence of the fact presumed, and sometimes entirely 
 independently of it. (/) Hence, although beneficial as gene- 
 ral and practical rules, they are, in the words of a judicious 
 writer, " usually very uncertain and precarious instruments 
 for the investigation of truth in particular instances. They 
 
 (a) 1 Greenl. Evid. § 37. Best on Pres. §§ 148, 149. 2 Evans' Pothier on 
 Obi. 287, 288. 
 
 (6) See ante, pp. 14, 21. 
 
 (c) Ante, p. 42. 
 
 (d) 1 Stark. Evid, 76, 77. 
 
 (e) Wills on Giro. Evid. 18. 
 
 (/ ) 3 Stark. Evid. 1286. 1240, note. In fictions, which are closely allied to 
 irrebuttable presumptions of law, the fact itself has no existence; it is wholly 
 and avowedly created by the law, and not allowed to be disputed. Best on 
 Pres. § 20, el seq. 2 Evans' Pothier, 281. 
 
CHAP. II.] PRESUMPTIONS OP PACT. 51 
 
 are therefore unfit to be employed where any application of 
 the law, contrary to the real fact, would be attended with 
 positive injustice, as in crimiaal cases." (a) / In these cases, 
 they, for the most part, give place to that other description 
 of presumptions, known as presumptions of fact, which will 
 next be considered. 
 
 11. Presumptions of fact, (b) as employed in judicial in- 
 vestigations, are inferences as to the existence of certain 
 facts proposed and disputed, deduced by reasoning or argu- 
 ment, (c) from certain other facts shown : (d') both species 
 of facts being made the subjects of actual inquiry, with the 
 view of ascertaining the truth of their existence in particular 
 cases. To constitute these presumptions, two descriptions 
 of facts standing in this relation to each other, are always ne- 
 cessary : the object of the presumption being to connect them 
 together, (e) The designation of these inferences as simply 
 those " of fact," would seem, on its face, not to express 
 with entire accuracy their distinctive character. (/) In 
 strictness, all presumptions deal with facts, as the essential 
 basis of all law. (g") The most artificial presumptions of 
 
 (o) 3 Stark. Evid. 1236, 1239, note. See the reasoning of this author. Id. 
 ihid. And see Best on Pres. § 190. Wills on Circ. Ev. 20. 
 
 (i) That is, of mere fact, as distinguished from mixed presumptions of law 
 and fact. 3 Stark. Evid. 1241, 1244. 
 
 (c) They are themselves called "mere arguments," by high authority. 1 
 Greenl. Evid. § 44. But the term "argument" or "reasoning," seems ap- 
 plicable to presumption as a process, rather than as a result. See ante, p. 22. 
 
 (d) 1 Phill. Evid. 436. Mr. Best's definition of a presumption in a legal 
 sense, is " an inference, affirmative or disaffirmative of the existence of a dis- 
 puted fact, drawn by a judicial tribunal, by a process of probable reasoning, 
 from some one or more matters of fact, either admitted in the cause or other- 
 wise satisfactorily established." Best on Pres. § 11. 
 
 (e) They are the same with the principal and evidentiary fects, which have 
 already been explained. See ante, p. 3. 
 
 (/ ) Pothier's division of presumptions is into those established by law, and 
 those not established by any law. Oblig, part 4, c. 3, sect. 2, §§ 2, 3. 
 (g-) Ex facto jus oritur. 2 Inst. 49. 3 Bl. Com. 329. Best on Pres. § 9. 
 
62 PRESUMPTIONS OP PACT. [PABT I, 
 
 law, when resolved into their elements, will be found to con- 
 template the same two species of facts, standing in a similar 
 relation to each other. Thus, the presumption of law, that 
 a receipt under seal is sonclusire evidence of payment, (a) 
 obviously involves two distinct facts, — the existence of a 
 sealed writing, and payment or satisfaction: for payment, 
 though, in one view, merely a legal consequence annexed to 
 the actual fact of a sealed receipt, is, in itself, a fact, though 
 an assumed one. But the word " fact," in the expression 
 " presumptions of fact," is used in an emphatic sense. (6) 
 It is actual, as distinguished from assumed fact : fact which 
 has had a real existence, and the truth of which is always to 
 be investigated, whenever it is presented for consideration. 
 In presumptions of law, the fact may be, and constantly is 
 assumed, — sometimes actually and wholly created: its in- 
 trinsic truth being often regarded as less material than the 
 observance of a legal rule or consequence. But in presump- 
 tions of fact, the actual truth of the fact is the exclusive and all- 
 important subject of investigation, without regard to conse- 
 quences, (c) The facts which are the basis of the prcsum]> 
 tion must always be proved in each case, and the fact pre- 
 sumed is itself arrived at by a process so convincing as to be 
 regarded as equivalent to proof. In short, a presumption of 
 fact is the natural connection of one fact with others, by a 
 combined process of proof and argument : a presumption of 
 law is a similar connection, artificially made, by annexing a 
 rule of law, or legal incident, to a particular fact proved. 
 
 Another and a material point of distinction between pre- 
 sumptions of fact and those of law, is in regard to the tribur 
 
 (a) .5nie,p.44,and the note ibid. 
 
 (b) These presumptions, might, in another language, be called with much 
 aptness and brevity, prtesumpHones de facto ; that expression combining the 
 three ideas of presumption about a, fact, presumption /rom a fact, and pre 
 sumption actually made. 
 
 'c) 3 Stark. Evid. 1231, 1232. Id. 1236, note. 
 
CHAP. II.] PEESUMPTIONS OF PACT. 53 
 
 nal appointed to deal with them. The inferences, as we 
 have seen, are always to be made upon a basis of actual 
 fact, and, as nearly as possible, according to the exact truth 
 of the particular case which is the subject of inquiry. Hence 
 the deduction of them necessarily falls within the particular 
 province of that tribunal, or rather that branch of the tribu- 
 nal, whose allotted duty is to investigate and declare the 
 truth of disputed matters of fact, namely, the jury ; who 
 are always bound by oath to decide according to the real 
 truth, without regard to consequences, (a) In the discharge 
 of this duty, thus solemnly assumed, the jury are limited by 
 no boundaries but those of truth and actual fact, which they 
 are always bound to find according to their conscientious con- 
 viction and persuasion, unfettered by any extraneous con- 
 siderations of policy and convenience. (6) In the process 
 of inference, the jury merely exercise their natural faculties 
 of judgment and common sense : first, ascertaining the truth 
 of the facts which are its basis ; and then allowing to these 
 facts merely their own natural force and efficacy in generating 
 belief and conviction in the mind, as derived from those con- 
 nections which are pointed out by experience. In fine, a 
 presumption of fact is nothing more than a natural presump- 
 tioni, judicially applied, (c) 
 
 Presumptions of fact, then, are to be understood as 
 
 (a) 1 Stark. Evid. 76, 445. 3 Id. 1232, 1245. It is true that jurors some- 
 times may make, and, indeed, are required to make, presumptions of strict 
 law : but, in so doing, they are merely passive instruments in the hands of the 
 court, exercising none of that discretion and natural judgment which properly 
 characterize their function. See Id. 1226. So, on the other hand, the courts 
 sometimes draw inferences of pure fact. Id. 1246. 
 
 (6^ 3 Stark. Evid. 1231. 
 
 fc) So, in the Eoman law, presumption is said to be either that which is 
 made by the law, orby the/uig'e, {vel a lege inducitur, vel ajudice,) the latter 
 being distinguished as prasumplio hominis, the presumption of the man or 
 individual, that is, natural presumption unfettered by strict rule. Heineccius 
 ad Pand. pars 4, s. 124. 
 
64 PEESUMPTIONS OP PACT. [PAET I. 
 
 comprising that great mass of inferences which juries 
 are constantly called upon and specially authorized to 
 draw, from the immense variety of facts which are pre- 
 sented to them by means of evidence, on the trials of judi- 
 cial issues. Lord Mansfield, in the case of Goodtitle dem. 
 Brydges v. Duke of Chandos, {a) distinguished them from 
 presumptions of law, as being " a species of evidence; " and 
 spoke of them as being " of the nature of evidence." They 
 have been said by an accurate writer, to belong to evidence 
 itself, — that is, to statements made by witnesses, or contained 
 in documents offered to a court of justice, — in contradistinc- 
 tion to legal presumptions, which belong to the law of evi- 
 dence, {b) " Presumptions of fact," it is further said, " do 
 not properly belong to the law of evidence. They are argu 
 ments, probable, improbable, or certain, involving no con-' 
 sideration of law, equally valid in and out of a court of 
 justice, belonging to any subject matter, and to be judged by 
 the common and received tests of the truth of propositions 
 and the validity of arguments." (c) Strictly, they are pro- 
 cesses founded upon evidence of the indirect kind, (and 
 which is hence termed presumptive evidence ;) or, rather, 
 results deduced from it, as will be fully explained in a subse- 
 quent part of this work. " They depend," according to a 
 standard American author, " upon their own natural force 
 and efficacy in generating belief or conviction in the mind, as 
 derived from those connections which are shown by experi- 
 ence, irrespective of any legal relations. They differ from 
 presumptions of law in this essential respect, that while 
 those are reduced to fixed rules, and constitute a branch of 
 the particular system of jurisprudence to which they belong, 
 these merely natural presumptions are derived wholly and 
 
 (o) 2 Burr. 1065, 1072, 1073. 
 
 (J) 6 Lond. Law Mag. 369. 
 
 (c) Id. 870 See 1 Greenl. Evid. § 44. Best on Prea. 5 14. 
 
CHAP. n.J, PEESUMPTI0N3 OP PACT. 55 
 
 directly from the circumstances of the particular case, by 
 means of the common experience of mankind, withput the 
 aid or control of any rules of law whatever." (a) 
 
 In one point of view, however, these natural presumptions 
 are not independent of legal control. They may be, and 
 frequently are wholly excluded from the consideration of 
 juries, by rules excluding the evidence which would raise 
 them, {b) Thus, the admission by an accused person, that he 
 is addicted to the commission of offences similar to that with 
 which he is charged, though a circumstance naturally en- 
 titled to consideration, is, in law, inadmissible to prove his 
 guilt in the actual case, (c) So, the fact that such a person 
 bears a notoriously bad character, though, according to 
 natural reason, entitled to its weight in producing an impres- 
 sion of his guilt, will not, in law, be allowed to be shown in 
 evidence, in the first instance, with a view to criminate, (^d) 
 So, on the other hand, the effect of some of the rules pf evi- 
 dence is to invest natural evidence with an artificial weight, 
 and sometimes to receive that which, abstractly considered, 
 ought not to be received as evidence at all. (e) 
 
 Another important feature by which these presumptions 
 of fact are distinguished, is that they are not only the appro- 
 priate subjects of consideration hj juries, but that a discre- 
 tion, more or less extensive, as to entertaining and acting 
 upon them, is always vested in that tribunal. (/) Hence, 
 
 (o) 1 Greenl. Evid. §§ 44, 48. 
 
 (i) Best on Pres, § 28. " Although," observes this writer, " in resorting 
 to presumptive reasoning, judges and jurors only apply under the sanction of 
 the law, a process which the unassisted reason of man would have applied for 
 itself, it by no means follows, e converse, that all facts which are naturally evi- 
 dentiary of others, will be received as evidentiary of them in the courts of jus- 
 tice." Td. ibid. 
 
 (c) Id. ibid, citing Rex v. Cole, Mich. 1810. 1 Phillipps & Amos on Evi- 
 dence, 499. 
 
 id) Best on Pres. §§ 151, 155. 
 
 (c) Id. § 28. 
 
 (/) Id. ^15 
 
56 PRESUMPTIONS OP FACT. [PAHT I, 
 
 ■where they are overlooked or disregarded, the granting of 
 a new trial is always a matter resting in the discretion of 
 the court, and not a matter of right, as in case of the dis- 
 regard of a presumption of law. (a) 
 
 The grounds or sources of these presumptions of fact, are 
 obviously innumerable, being co-extensive with the facts 
 which may, under any circumstances whatever, become evi- 
 dentiary in courts of justice, (b) They are, indeed, no 
 other than the facts themselves which constitute the ma- 
 terials or elements of circumstantial or presumptive evidence. 
 They have been classed under the three general heads of 
 things, persons, and the actions or thoughts of intelligent 
 agents, (c) They will be considered in detail hereafter, 
 under appropriate divisions, {d) 
 
 The process by which these presumptions are deduced 
 from their fundamental facts, is identical with that employed 
 in the investigation of ordinary subjects ; namely, a process 
 of probable reasoning, conducted on principles which have 
 already been suf&ciently explained. The immediate guides 
 to their formation are certain previously established results 
 of human experience and observation, which are adopted as 
 general standards or rules for judgment in corresponding 
 cases, such as the following : — ^that conformity with the ordi- 
 nary course of nature is to be presumed : that persons are to 
 be presumed to be in the possession of their reasoning facul- 
 ties : that men are to be presumed to act according to the 
 dictates of their nature, and in conformity with the known 
 customs and habits of society. These are sometimes referred 
 to as examples of presumptions of fact ; (e) but they are 
 obviously only mere rules of presumption. Examples of 
 pure presumptions of fact are such as the following. A per- 
 son is seen lurking around a building, or coming out of it, 
 
 (o) Best on Pres. § 15. * (d) Seeposi, Part II. 
 
 (i) Id. § 27. (6) Best on Pres. § 27. 
 
 (c) Id. ibid. 
 
CHAP. II.] PRESUMPTIONS OP FACT. 67 
 
 in a suspicious manner, at an unseasonable hour of the night ; 
 and, soon after, the building is seen to bo on fire. The pre- 
 sumption is that such person was -the incendiary. A person 
 is observed to enter the premises of another, and is never 
 seen alive afterwards. Portions of a human body, corres- 
 ponding in description to the body of the missing person, are 
 subsequently found concealed upon the premises, under the 
 lock and key of the occupant. The presumption is that such 
 person met his death there, and at the hands of the occu- 
 pant, {a) 
 
 Of these presumptions, when formed, it is sufficient to 
 observe that they are always of the contingent kind, that is, 
 subject to be rebutted or disproved by counter evidence : 
 the maxim, in all case?! applying, — stabitur prcesumptioni, 
 donee probetur in contrcrium. (6) 
 
 Presumptions of fact, are constantly employed as means 
 and aids towards the discovery of truth, on the trials of 
 judicial issues, both in civil and criminal cases. The execu- 
 tion of a written instrument, (c) and the commission of a 
 murder, may be proved by the same indirect process, {d) 
 It is in criminal cases, however, that they assume a peculi- 
 arly important character, being constantly resorted to, from 
 the necessity of the case, and largely, and sometimes exclu- 
 sively relied on, as means of establishing the proof of 
 charges putting liberty, character and life itself, in peril. 
 In these, too, it happens that they are found in their greatest 
 variety, and are, for the most part, allowed to prevail with 
 their entire natural weight. The present chapter will there- 
 fore be closed with some considerations particularly illustra- 
 
 (o) These examples are given merely as presenting combinations of promi- 
 nent facts, from Thioh inferences may be made, without reference to the com- 
 pleteness or sufficiency of the inferences themselves . 
 
 (4) Bract, lib. 3, c. 22, fol. 143. Co. Litt. 373, b. 3 Bl. Com. 371. 2 
 £vans' Pothieron Obi. 281. 
 
 (c) 3 Stark. Evid. 1230, 1231. 
 
 ((/) 1 Phill. Evid. 4.37. 
 
68 PRESUMPTIONS IN CRIMINAL CASES. [PAET I. 
 
 tive of the character and practical value of presumptions in 
 criminal cases. 
 
 The weight allowed to considerations of expediency and 
 policy, in framing presumptions of law, has already been 
 adverted to. (a) It is in civil cases that these presumptions 
 are chiefly found to have application, and for reasons peculiar 
 to that division of subjects. It is in these that the interest 
 of the individual is more commonly subordinated to that of 
 the community. The probable or actual inconvenience, or 
 even the seeming moral injustice, (abstractly considered,) 
 which may be sustained by a party whose rights are made 
 the subject of adjudication in any particular case, is deemed 
 to be compensated by the general good resulting from fixed 
 invariable rules, though resting essentially on an artificial 
 basis. But in criminal investigations, especially those which 
 may result in the infliction of an extreme punishment, the 
 case is directly reversed. The interest of the individual 
 whose conduct is the subject of inquiry, is here the leading 
 consideration, to which those of supposed general utility are 
 always made to yield. (6) This is very forcibly illustrated 
 by those two great cardinal maxims which may be said to be 
 written on the portals of every criminal court, and to hang 
 over an accused, like an sBgis of protection, from the moment 
 he is placed at its bar for trial : — Every person is presumed to 
 be innocent, until proved to be guilty : It is better that many 
 
 (a) See ante, p. 43. 
 
 (6) Dr. Paky takes the opposite view, maintaining that the sufferings, or 
 even the death of an innocent individual, when they are occasioned by no evil 
 intention, cannot be placed in competition with the security of civil life ; and 
 that he who falls by a mistaken sentence, may ba considered as falling for his 
 country, whilst 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. Paley's Moral Philosophy, b, 6, c. 9. These opinions have been 
 strongly condemned by two of the latest writers on circumstantial evidence. 
 See Best on Pres. § 215. Wills on Giro. Evid. 154. 
 
CHAP. 11.] PRESUMPTIONS IN CRIMINAL CASES. 59 
 
 guilty persons (o) should escape, than that one innocent per- 
 son should suffer. In these cases, it becomes essential that 
 the range of inquiry should be enlarged, in proportion to the 
 magnitude of the interests at stake ; that truth should be 
 drawn from its natural sources by natural processes, im- 
 fettered, as far as practicable, by arbitrary and inflexible 
 rules. (6) And these objects are very effectually secured by 
 the composition of the tribunal itself, to which the decision 
 of criminal issues is exclusively confided. Hence it happens 
 that the great mass of those presumptions with which juries 
 are authorized to deal, and upon which their verdicts are 
 constantly founded, are of that class which the unaided 
 " common sense " of men (c) is competent to deduce from 
 facts proved. In other words, they are natural presumptions, 
 or presumptions of fact. 
 
 It is not to be understood, however, that presumptions of 
 law are excluded from the view of juries in criminal cases. 
 Some leading presumptions of this class, and belonging t(» 
 its rebuttable division, such as the presumption of malice in 
 cases of homici'de and of an intent to defraud in cases of 
 forgery, (d) constantly occur for consideration, and are of 
 great importance as guides to correct conclusions. It is true, 
 that these are essentially founded upon a natural presump- 
 tion which has been already adverted to ; (e) but they are 
 
 (a) It may not be trivial to notice the varieties of expression whioh different 
 writers have adopted, in stating this most important rule. "It is better," 
 observes Sir Matthew Hale, " five guilty persons should,^oape unpunished, 
 than one innocent person should die." 2 Hale's P. C. 289. " It is better," 
 says Sir W. Blackstons, " that ten guilty persons escape, than that one inno- 
 cent suffer." 4 Bl. Com, 858. Wills Circ. Evid. 153. " It is better," says 
 Mr, Starkie, " that ninety nine (i. e. an indefinite number of ) offenders should 
 escape, than that one innocent man should be condemned." 1 Stark. Evid. 607' 
 
 (6) Wills on Circ. Evid, 20, 21, 26. 
 
 (e) 1 Phill. Evid. 436. 1 Stark. Evid. 24. 1 Greenl. Evid. § 48. 
 
 (d) See ante, p.p.44,48. Best on Pres, § 190, note. 
 
 (e) That every man intends the natural and probable consequences of hLs 
 own acts. See ante, p. 38, 39. And see 1 Greenl, Evid. § 14. 
 
60 PRESUMPTIONS IN CRIMINAL CASES. [PART I. 
 
 not processes, nor the results of processes of reasoning from 
 proved facts in particular cases. The fundamental natural 
 presumption itself has been shown to be strictly an abstract 
 rule or maxim, (a) and of the same character are the legal 
 presumptions derived from it. Hence it belongs properly to 
 the province of the court to direct the attention of the jury 
 to such of them as become applicable in cases submitted to 
 them for trial. (U) 
 
 Of conclusive presumptions (prcesumptiones jwris et dt 
 jii/re,') in criminal cases, there are but few ; and the fewer, 
 it is said, the better, (c) The reason of this has already 
 been explained, (d) The presumption of fear, in cases of 
 robbery, is of this class ; and this is always required to bt 
 made, in odium spoliatoris, even though the evidtence may 
 show that, in fact, no fear existed, (e) 
 
 Presumptions of fact, in criminal cases, have been usually 
 classified according to their degree of strength, probative 
 force, or proving power. In the common law of evidence, 
 as laid down by Lord Coke, three sorts of presumption were 
 recognized, — ^violent, probable and light : violent presump- 
 tion being considered as full proof; probable, a,s of little 
 weight ; light, of no weight at all. (/) But the third of 
 these is rejected, as not deserving any consideration, by 
 Lord C. B. Gilbert, who considers presumptions as twofold; 
 
 (a) See ante, p. 39. 
 
 (A) See an instance on the trial, in the case of Commonwealth v. Webster, 
 Bemis' Report, 457» As to the weight to he allowed the testimony of accom- 
 plices, see 1 Greenl. Evid. § 45. 
 
 (c) Best on Pres. § 190, note. 
 
 (d) See ante, p. 50. 
 
 (c) 1 Phill. & Am. Evid. 468. 
 
 (/ ) " And, many times, juries, together with other matter, are much in- 
 duced by presumptions, whereof there be three sorts, viz. violent, probable and 
 light or temerary, [rash]. VioUnta prtesumptio is many times plena probatio 
 Prtemmptio probabilis moveth little; but prasumptio levis sen temeraria 
 moveth not at all." Co. Litt. 6 b. 
 
CHAP. II.] PRESUMPTIONS IN CRIMINAL CASES. 61 
 
 violent or only probable, (a) Sir William Blackstone, 
 though he formally adopts Lord Coke's division, (6) follows 
 substantially, the views of Gilbert. Thus, after adopting 
 the latter's definition of presumptions, namely, the circum- 
 stances which necessarily or usually attend the facts, (c) he 
 makes violent presumption to arise from circumstances 
 " which necessarily attend the fact," and probable pre- 
 sumption " from such circumstances as usually attend the 
 fact." (d) But instead of regarding the latter, with Lord 
 Coke, as " of little weight," he remarks that it has " its 
 due weight." (e) 
 
 The example of violent presumption, given by Lord Coke, 
 is well known. A man is run through the body with a 
 sword, in a house, and instantly dies of the wound ; another 
 man is seen to come out of the house with a bloody sword ; 
 and no other man was at the time in the house. (/) The 
 presumption deducible from these circumstances, or the fact 
 considered to be proved by them, is that the person with the 
 sword was the murderer. And this is held to be a necessary 
 presumption, which must be made, and cannot be escaped ; 
 the circumstances being considered to exercise upon the 
 mind an overpowering degree of force or coercion, well 
 expressed by the epithet " violent." {g) Lord C. B. Gilbert 
 states the example in somewhat different terms : "As if a 
 man be found suddenly dead in a room, and another be found 
 
 (o) 1 Gilb. Evid. 142. 
 
 (6) 3 BI. Com. 371. 
 
 (c) Id. ibid. 
 
 (rf) Id. ibid. See the examples given ibid. 
 
 (e) Id. ibid. And see 3 Phill. Eyid. (Cowen & Hill's notes) Note 286. 
 
 (/ ) " As if one be run thorough the body with a sword, in a house, whereof 
 he instantly dieth ; and a man is seen to come out of that house, with a bloody 
 Bword; and no other man was at that time in the house." Co. Litt. 6. b. 
 
 (§•) Such circumstances have been called, in the language of the civil law, 
 indicia indubitata, undoubfed tokens, which extort belief, {quee fidem extor- 
 guent.) Trial of Capt. Green and his crew, 14 Howell's State Trials, 1199. 
 1281. 
 
62 PRESUMPTIONS IN CRIMINAL CASES. [PART I, 
 
 running out in haste, with a bloody sword. This is a violent 
 presumption that he is the murderer ; for the blood, the 
 weapon and the hasty flight, are all the necessary concomi- 
 tants to such horrid facts ; and the next proof to the sight 
 ■ of the fact itself, is the proof of those circumstances that do 
 necessarily attend such fact." (a) It will be seen that the 
 important circumstance of no other person being in the 
 house, (b) which was doubtless considered by Lord Coke as 
 the turning point of the presumption, is altogether omitted 
 by Gilbert, and a new circumstance, not mentioned by (Joke, 
 is introduced ; namely, " the hasty flight " of the suspected 
 person, (c) upon which a principal stress is laid, (d) 
 
 (a) 1 Gilb. Evid. 142. 
 
 (b) See supra. 
 
 (c) Mr. Serjeant Hawkins gives the same example in the following form. 
 "Violent presumption, from plain circumstances, is in some cases taken for 
 full proof ; as where a man is stabbed in a house, and another runs out with 
 a bloody knife in his hand, and no one else is in the house." 2 Hawk, P. C. 
 618; b. 2, c. 46, sect. 42. Both the circumstances mentioned by Coke and 
 Gilbert are here introduced. The example itself is manifestly framed in mush 
 more precise and careful terms than that given by the last named writer. 
 
 {d) This example, and the presumption intended to be illustrated by it, may 
 be traced, in England, to a remote period of antiquity. Bracton, writing on 
 crown law as early as the thirteenth century, treats at some length of presump- 
 tions as means of proof, especially in oases of homicide. Among these, he 
 enumerates presumptions which do not admit either of proof or defence to the 
 contrary; as if a man with a bloody knife have been caught over a dead per- 
 son, {ut si quis cum cultello sanguinolento captus fuerit super mortuum,) or in 
 the act of fleeing from a dead body, (weZ a mortuo fugiendo.) Bract, lib. 3, cap. 
 22, IT 1, fol. 143. In another passage, he calls such a presumption a violent 
 one, {violenta prtesumptio ;) as where a man is caught over a dead body, with 
 a bloody knife, he cannot deny the killing, and there is no need of other proof. 
 And this, he observes, is an ancient law or ordinance, {et hac est constiiutio an- 
 tiqua.) /i. cap. 18, IT 4, fol. 137. So, in Britton, the king, who speaks through 
 the writer, ordains that if a man be found slain, and any one be found near 
 him, with a bloody knife or other weapon, thereby raising a suspicion that he 
 has slain him, the coroner shall go immediately to the spot, and in his presence, 
 by the testimony of those who witnessed the felony, the suspected person shall 
 be condemned to death, Britt. cap. 5, fol. 14 b. Both these writers also men- 
 tion the case of a person being found alone in a house where another has been 
 found killed, as affording a conclusive presumption against him, unless he had 
 
CHAP. 11.] PRESUMPTIONS IN CRIMINAL CASES. 63 
 
 The conclusion just mentioned as drawn from tlie state- 
 ment of facts embodied in the example given by Lord Coke, 
 has been disputed, and indeed reprobated by some modern 
 ■writers, (a) on the ground that it does not take into account 
 certain suppositions or hypotheses, such as those of suicide 
 and accident, upon either of which, the facts of the case 
 might be consistent with the entire innocence of the ac- 
 cused, (i) But there is reason for the opinion that the 
 example itself was purposely framed to exclude these very 
 hypotheses ; and so acute a writer as Mr. Starkie has not 
 hesitated to regard the circumstances as wholly and neces- 
 sarily excluding any hypothesis but one. (c) The subject 
 will be further considered under another head, (d) 
 
 The following may be taken as an illustration of the three 
 different degrees of presumptions which have been mentioned. 
 If, upon an indictment for stealing in a dwelling house, it 
 should appear in evidence that the accused was apprehended 
 a few yards from the door, with the stolen goods in his pos- 
 
 raised the " hue and cry," or coald show, as by wounds upon his person, that 
 he had attempted to protect the deceased against the felonious assault of an- 
 other. Bract, fol. 137 b. Britt. fol. 14 b. The presumption in this case seems 
 to have been made to turn upon views of public policy. A person who hap- 
 pened to be alone in close proximity with another who had been murdered, 
 might escape suspicion by raising^ the "hue and cry," which, indeed, it was 
 his imperative duty to do. If he neglected this duty, the law visited his neg- 
 lect upon his own head. And although this peculiar institution of ancient 
 police has for centuries fallen into disuse, its radical idea may be said to sub- 
 sist in the obvious policy by which individuals found in unfavorable or danger- 
 ous positions or circumstances, are urged to make an open and immediate dis- 
 closure of the facts, instead of seeking to escape by the hazardous expedients 
 of concealment and artifice. 
 
 (a) Best on Pros. § 30. 3 Benth. Jud. Evid. 236, 237. "If the learned 
 authors above quoted," observes Mr. Best, "mean to say, as their words imply, 
 that there is no possible mode of reconciling the above facts with the innocence 
 of the man seen coming out of the house, the proposition is monstrous." Best 
 on Pres. ubi supra. 
 
 (i) See these suppositions stated at length, post. Chapter IV, Sect. HI. 
 
 (c) 1 Stark. Evid. 483, 484, note. 
 
 (i) See post. Chapter IV, Sect. III. And see Part 11. 
 
64 PRESUMPTIONS IN CRIMINAL CASES. [PART I. 
 
 session, the presumption raised by this evidence would be a 
 violent presumption that the goods were stolen by him. If 
 they were found in his lodgings some time after the larceny, 
 and he refused to account for his possession of them, this, 
 together with proof that they were actually stolen, would 
 raise a probable presumption of the same fact. But if the 
 property were not found recently after the loss, as for 
 instance, not until sixteen months after, the presumption 
 would be light or rash, and entitled to no weight, (a) 
 
 But the utility of this threefold classification has been 
 strongly questioned, (b) It was long ago modified, as we 
 have seen, by Chief Baron Gilbert, (c) And, by modern 
 writers, it has been considered more accurate in principle, 
 and more useful in practice, to classify presumptions of fact, 
 with reference to their effect on the onus probandi, or burden 
 of proof, {d} In this view, which is that taken by some of 
 the civilians, presumptions may be divided into two kinds, 
 slight and strong, or slighter and stronger, (c) (Icviores et 
 fortiores.) (/) 
 
 A slight presumption {prcesumptio levior,) is one which 
 serves to excite suspicion, and to impress the tribunal in 
 some degree, but does not, taken by itself, either amount to 
 proof, or shift the burden of proof, (g) Thus, where a per- 
 
 (a) Best on Pres. § 31, citing Arohbold's Criminal Pleading, 124. (9tJi ed.) 
 (6) Best on Pres. ubi supra. 2 Russell on Crimes, 727. 
 
 (c) See ante, p. 60. 
 
 (d) Best on Pres. § 32. 
 
 (e) As it is diificult to draw a plain line of demarcation between even these 
 two degrees, the comparative expressions as literally translated from the Latin, 
 seem to indicate the true principle of the division more accurately than tho 
 positive ones, slight and strong. 
 
 (/) See the next note. According to Domat, presumptions are of two kinds; 
 strong presumptions, amounting to a certainty, and conjectures, which leave 
 some doubt. Civil Law, part I, b. 8, tit. 6, sect. 4, art. 2. This division pre- 
 cedes that into presumptions of law and of fact. Id. art. 5 Mr. Wills 
 divides presumptions into violent or strong, and slight. Circ. Evid. 25. 
 
 (g) Prasumptio levior movet suspioionem, et judicem. quodammodo in- 
 
CHAP. 11.] PEESUMPTI0N3 IN CRIMINAL CASES. 65 
 
 son is found to hare come to his death by violence, and it is 
 shown that another had a pecuniary interest in his death, or 
 had a previous quarrel with him, and threatened to kill 
 him, (a) this fact, though calculated to excite suspicion 
 against the latter, is, without other proof, insufficient even 
 to put him on his defence. (6) The presumptions of guilt, 
 in these cases, are of a description which might be compared 
 to the " light or temerary " presumption of Lord Coke, (c) 
 having individually no weight to convict the accused. They 
 have been otherwise termed " simple presumptions," {d) 
 " mere naked presumptions," (e) and " conjectures." (/) 
 To the same class belong presumptions from foot-marks 
 on the snow or ground near the scene of a crime, and from 
 the mere possession of the fruits of crime, a long time after 
 its commission. (§•) The weakness, or rather the total want 
 of force of these slighter presumptions, in a judicial point of 
 view, arises, it will be seen, from the ciTcumstance of their 
 standing alone, and unsupported by others. The moment 
 additional facts are shown to have existed in the same case, 
 giving rise^ to additional presumptions against the accused, 
 though individually of the same slight kind, a chain or body 
 of evidence begins to form ; and from the mere circumstance 
 of the concurrence or coincidence of sucli presumptions, 
 bearing upon one point, or in one direction, and mutually 
 aiding each other, they acquire a force and weight eventually 
 
 clinat,) sed per se nullum, h<ibet juris effectum , nee onere probandi levat. 
 Hub. PraeL Jur. Civ. lib. 22, tit. 3, n. 15. Matth. de Prob. c. 2, n. 1, p. 77. 
 
 (a) See these circumstances particularly considered, post. Part II. 
 
 (6) Best on Pres. § 41. 3 Beuth. Jud. Evid. 188. Domat's Civil Law, 
 Part I, b. 3, tit. 6, sect. 4, art, 1, 4. 
 
 (c) AnU,v- 60, note (/). 
 
 (d) Pothier on Obi. p. 4, c. 3, sect. 2, § 8. 
 
 (e) Holroyd, J. in Rex v. Burdett, 4 B. & Aid. 139. 
 
 (/) Domat's Civil Law, p. 1, b. 8, tit. 6, sect. 4, art. 2, 4. 
 (g) Best on Pres. § 41 . See these circumstances particularly considered, 
 post. Part n , 
 
66 PRESUMPTIONS IN CRIMINAL CASES. [PART I. 
 
 sufficient, not only to shift the burden of proof, but in some 
 cases to amount to proof of the most convincing kind, (o) 
 This will be more fully illustrated in the sequel of the pres- 
 ent work. 
 
 A strong presumption of fact, ( prmsumptio fortior^ is 
 one which, in the language of Huberus, determines the 
 tribunal in its belief of an alleged fact, without, however, 
 excluding the belief of the possibility of its being other- 
 wise : {determinat judicem ut credat rem certo modo se 
 habere, non tamen quin sentiat earn rem aliter sb habere 
 posse.') {b) Its effect, therefore, is to shift the burden of 
 proof to the opposite party, and if this proof be not made, 
 the presumption is held for truth ; {ideoque, ejus hie est 
 effectus, quod transferal onus probandi in adversarium, quo 
 non probante, pro veritate habetu/r.) (c) The recent posses- 
 sion of stolen goods, by an accused person, raises a strong- 
 presumption that he is the thief; it puts him upon his de- 
 fence, and calls upon him to show hoY he came by them ; 
 and, in the event of his failing to do so, satisfactorily, it 
 justifies the final and absolute presumption of his guilt, {d) 
 Presumptions of this nature are entitled to great weight, 
 and, where there is no other evidence, are generally decisive 
 in civil cases. In criminal cases, and more especially capital 
 ones, a greater degree of caution is, of course, requisite ; 
 and the technical rules regulating the burden of proof can- 
 not be always so strictly adhered to. (e) 
 
 A strong presumption of fact is scarcely distinguishable 
 
 (a) Pothier on Oblig. p. 4, o. 3, sect, 2, § 3. Dig. 22, 0, 26. Huberus, 
 Pr39l. Jur. Civ. lib. 22, tit. 3, n. 4, 16. Carpzovius, Praot. Eer. Crim. quaast. 
 223, u. 57. Best on Pres. § 34, note. 3 Bl. Com. 371 ; Christian's note. 
 
 (ft) Hub. Prsel. J. C. lib. 22, tit. 3, a. 16. 
 
 (c) Id. ibid. 
 
 (d) Best on Pres. § 35. 1 Starlj. Evid, 488, 509. Id. 483, 484, note. 1 
 PhiU. Evid. 447. 1 Qreenl. Evid. § 34, 
 
 le) Best on Pres. § 86. 
 
CHAP. 11.] PRESUMPTIONS IN CRIMINAL CASES. 67 
 
 from a rebuttable presumption of law. (a) Indeed, in some 
 cases, the same presumption has been referred to both 
 heads, {b) / 
 
 Prom what has been said, it wiU appear that presumptions 
 of fact, properly so caUed, never rise above the general 
 grade expressed by the word " strong." (c) What are 
 sometimes called necessary presumptions, (d) where the 
 facts proved compel the mind at once to a conclusion, with- 
 out the liberty of exercisiag the faculty of the judgment, are 
 strictly, "as we have before seen, no presumptions at all ; the 
 result arrived at having the quality of actual certainty, (e) 
 The evidence, in such cases, is not presumptive but circum- 
 stantial, the latter epithet being used in a distinctive sense. 
 Or, as it has otherwise been designated, it is circumstantial 
 evidence of the certain kind. (/) 
 
 The value of presumption, and, indeed, the necessity of 
 relying upon it, as a means of discovering truth in general, 
 and as a basis of conduct in most of the concerns of life, 
 have been sufficiently shown under a previous head. The 
 same considerations which demonstrate the value and neces- 
 
 (o) BestonPres. § 37. 
 
 (A) The presumption, last mentioned, of a felonious taking of property, from 
 the fact of recent possession, has sometimes been called, a presumption of law, 
 or, at least, treated as such. Best on Pres. § 37, note. Bat it is obviously a 
 presumption of fact. Id. § 35. 3 Stark. Evid. 1239, note. Id. 1245. 
 
 (c) The indefinite signification of this word, however, admits of various de- 
 grees, the presumption, in some cases, being stronger than in others ; and, 
 when at its highest point of strength, being regarded as conclusive, or equiva- 
 lent to moral certainty. See Puffend. Law of Nat. & N., b. 1, c. 2, sec. 11. 
 
 , (d) The " violent " presumption of the old common law, seems to have been 
 of this character, although some writers make a distinction between violent and 
 necessary. Wills on Circ. Evid. 25. The terms are used in close connection, 
 and as descriptive of each other, both by Gilbert and Blackstone. And the 
 example given by Coke seems to have been intended to exclude every conclusion 
 but the one indicated. 
 
 (e) See ante, p. 35. 
 
 (/) See these significations considered, post. Chapter III 
 
6i8 PRESUMPTION IN CRIMINAL CASES. [PART I. 
 
 sityof this mental process, in its application to any ordinary 
 subject of research, apply -with equal force to its employment 
 in judicial investigations, especially in criminal cases. Crime 
 itself is a fact -which, in comparatively few instances, be- 
 comes the subject of full and absolute knowledge, through 
 the medium of positive proof. Indeed, a principal aim of . 
 criminal action, in some of its most atrocious forms, and one 
 to which its most earnest endeavors are constantly addressed, 
 is to cut off, in advance, this very source of knowledge. The 
 exclusion of human observation is, generally, to him who 
 meditates a crime, especially one- of magnitude, a matter of 
 equal importance with its actual commission. Hence, secrecy 
 is found to be a characteristic of his movements in all their 
 stages ; — those of plan, of execution, and of after action ; — 
 sometimes carried to the length of destroying all traces of 
 the crime, but always directed to the effectual concealment 
 of the criminal. It is to baffle these endeavors, to penetrate 
 this veil, to track out the guilty agent by means oi circum- 
 stances which, by a providential arrangement, are often 
 beyond his power to suppress or destroy, that courts of 
 justice, in the absence of positive evidence, resort to a pro- 
 cess indicated and dictated by nature herself, — ^that of pre- 
 sumption founded on facts. Cut off, by the criminal's own 
 contrivance, from the power of pursuit in the direct course, 
 their action necessarily assumes the indirect form ; which, 
 though it may, in some cases, lead them by circuitous paths, 
 and over difficult ground, frequently proves competent to 
 bring them ultimately to the point desired. 
 
 The propriety and reasonableness, (to say nothing of the 
 necessity) of such a course, are sustainable by many obvious 
 analogies and considerations. Indeed, it is in processes 
 which imply and involve investigation, deliberation, the 
 exercise of reason, judgment and discretion, the patient and 
 laborious extraction of one principal truth from a multitude 
 of minor particulars, that the functions of a jury find their 
 
CHAP. II.] PRESUMPTION IN CRIMINAL CASES. 69 
 
 largest and most appropriate exercise. Exclusive of these 
 processes, there is comparatively little room or occasion for 
 -intelligent discretionary action on the part of such a tribunal. 
 Where evidence is full and positive, juries have only to hear, 
 and then, provided credence be given, to find in exact con- 
 . formity with it. In such cases, their verdicts, instead of 
 being the conclusions of deliberate, reflective, independent 
 judgment, are the merely formal findings of prescribed re- 
 sults, (a) 
 
 But it is not exclusively on views of abstract propriety or 
 adaptation to a supposed end, that the employment of pre- 
 sumption, as a basis of judicial action, may be justified. 
 Ever since the institution of coui'ts of justice among civilized 
 nations, of which any record can be traced, it has actu- 
 ally and constantly been resorted to, as an ef&ca,cious means 
 of discovering the truth of disputed facts; (6) and it 
 continues to be fi-eely employed for the same purpose, in 
 the tribunals of our own time and country. Every day are 
 criminals found guilty on evidence which derives its convinc- 
 ing effect solely from the presumptions it serves to raise, (c) 
 Indeed, the necessity of convicting upon this basis is obvious, 
 undeniable, and, in fact, for the most part, unquestioned, (d^) 
 
 There is one class of crimes, however, in which the moral 
 right to conh^ict on the basis of presumption has been strenu- 
 ously denied ; those, namely, where conviction involves the 
 
 (a) The nature of a trial before a jury, as implying protracted investigation, 
 and the constant use of the presumptive process, was illustrated with much 
 force and aptness, in the argument of the Solicitor General, in the case of John 
 Barbot, A. D. 1753. 18 Howell's State Trials. 1229, 1297—1299. 
 
 (6) For the early use of presumption in England, see the quotation from 
 Bracton, ante, p. 62, note (d). And see Hume's Commentaries, Trial for 
 Crimes, vol. 2, o. 15, p. 237. 
 
 (c) See the observations of Best, J. in Rex v. Burdelt, 4 B. & Aid. 95, 122, 
 and of Bayley, J. Id. 149. 
 
 (d) See the observations of Shaw, C. J. in Commonwealth v Webster, 
 Bemis' Eeport of the Trial, 462. 
 
70 PHESUMPTION IN CRIMINAL CASES. [PART I. 
 
 infliction of the punishment of death, (a) The grounds of 
 this denial are, in brief, the possibility of error in the con- 
 clusions arrived at, and the injustice of inflicting in such 
 cases, a punishment which, in the event of such possibility 
 proving to be reality, becomes an irreparable injury. What 
 is demanded as a safe basis of action, is that absolute cer- 
 tainty in the conclusion which is supposed to be derived 
 from what is called " positive proof," or, in other words, the 
 testimony of eye-witnesses. That very description of evi- 
 dence is thus insisted on, which criminals, as we have seen, 
 are so constantly desirous and determined that society shall 
 not possess, and in excluding which, their efforts are so fre- 
 quently successful. The requirement virtually is, however 
 absurd may be the statement of it, that the most atrocious 
 of crimes shall be perpetrated in the most open manner ; and, 
 failing this indispensable condition, immunity from punish- 
 ment is, practically, proclaimed. The effect of the whole 
 argument is to require, on the one hand, the establishment 
 of what is, in most cases, an actual impossibility, in order to 
 meet and extinguish the mere abstract possibility which is so 
 much regarded on the other. 
 
 It is not difficult to see that this argument rests .essenti- 
 ally upon grounds of sentiment, rather than of reason. 
 The objection it presents, springs from a tendeif regard to 
 the highest of human interests, and a reluctance to inflict 
 what might, perchance, prove to the individual concerned, 
 an injury not only extreme, but irreparable ; (6) sentiments 
 in themselves worthy of commendation, but capable, as in 
 
 (a) See Brackenridge's Law Miscellanies, 505, 506. And see the subject as 
 farther pursued in Chapter V. post. 
 
 (b) The objection, though nominally to the mode of proof, is substantially 
 to the mode of punishment. It is resolvable into a denial of the moral right , 
 to punish capitally in oases where the accused has been convicted on circum- 
 stantial evidence; and this form has been given to it, in so many words, by the 
 late Mr. Justice Brackenridge. Liw Miscellanies, 505, 506 
 
CHAP. II.] PRESUMPTION IN CRIMINAL CASES. 71 
 
 this instance, of being carried to lengths inconsistent with 
 the order and safety of society. It demands for an arraigned 
 prisoner, in that solemn contest between him and the com- 
 munity, represented by a criminal trial, not only the full 
 advantages which the law allows, — the great preliminary 
 advantage of being presumed innocent until proved guilty, 
 and the equally important final one of being allowed the 
 benefit of all reasonable doubts, — but the still greater, and, in 
 all cases, overwhelming advantages which would at once arise 
 from the exclusion of evidence of the presumptive kind. It 
 overlooks, or, at least, regards as of inferior moment, the 
 important considerations that society has, on these occasions, 
 rights and interests which it is bound to protect ; that it is 
 for this very purpose of protection, that the court is organized 
 and the individual arraigned before it ; that the trial is con- 
 fessedly and primarily undertaken, not to aid the prisoner to 
 prove his innocence, (although that is a privilege conse- 
 quentially and necessarily involved in it,) but to enable the 
 community to establish his guilt; that, in fine, the whole 
 necessity for judicial action, in any criminal case, springs 
 from the act of the individual, not that of society ; and that 
 the entire procedure of arraigning, trying, convicting and 
 punishing him, though aggressive in its form, is defensive, in 
 substance and efliect. 
 
 It may be worth while to dwell, for a moment, upon some 
 of the most prominent features of the theory which the 
 objections just considered tend to establish. Instead of a 
 practical basis, composed of the great mass of facts and 
 realities Avith which the administration of justice is, and has 
 always been compelled to deal, it substitutes one made up of 
 abstract possibilities, sustained by an occasional and excep- 
 tional actual case. It reverses, by the mere effect of specu- 
 lation, the accumulated results of the reason and experience 
 of mankind. It casts off a means, and often the only means 
 of discovering truth, because, though tested by innumerable 
 
72 PRESUMPTION m CRIMINAL CASES. [PART I, 
 
 experiments, as a safe and efficacious instrument, it is not 
 absolutely and invariably perfect and unerring in its conse- 
 quences. But it is hardly necessary to observe that to refuse 
 to act, because such action, however imperative, may per- 
 chance be fraitless or injurious, would be as suicidal in the 
 community, as it has been shown to be in the individual. 
 The inevitable and vital necessity of acting upon presumption, 
 has been simply but most powerfully illustrated by the 
 example before cited from Locke, (a) Nor does the magni- 
 tude of the interest involved — even that of life and death — 
 serve to vary the rule in the least, except to render action 
 under it correspondingly cautious and deliberate. Life is 
 frequently and justifiably taken by individuals, upon the 
 strength of mere presumption. The man who kills an adver- 
 sary whom he sees advancing rapidly upon him', with a 
 murderous weapon uplifted in act to strike, he having no 
 opportunity of escape, or strength to repel the assault, acts 
 upon the imminent and overwhelming probabilities of the 
 case. ^Q judges, on the instant, — and does not wait for an 
 impossible knowledge — that his life is in danger. And yet 
 it might be, it is obviously consistent with possibility, that 
 his life would not have been taken, had he passively awaited 
 the result; that the whole demonstration of the supposed 
 assailant, however violent and alarming to the eye, -rt-as or 
 was intended to be mere menace ; or, if really intended 
 to harm, would have been checked by a sudden change of 
 purpose, before the blow was actually struck. 
 
 The speculative character of the objections to convicting, 
 in capital cases, on presumptive grounds, has already been 
 adverted to. (6) They obviously rest on an overstrained 
 idea of the responsibility attached to judicial action, and a 
 
 (o) Human Understanding, b. 4, c. 14, s. 1. 
 
 (A) These objections have sometimes been placed on a supposed adequate 
 basis of actual facts, and invested with a popular character, as will be more 
 particularly shown in a subsequent chapter. 
 
CHAP. II.J PEEBUilPTION IN CRIMINAL CASES. 73 
 
 conscientious dread of incurring the guilt of blooa as the 
 consequence of error. Hence the demand of an impracti- 
 cable certainty, so much at variance with the whole current 
 of human experience. To the advocates of such views, it 
 may be enough to say, in the language of a writer whose 
 humane tendencies on the subject of punishment will not be 
 questioned, — " moral certainty is only probability, but which 
 is called certainty, because every man of sense assents to it 
 necessarily, from a habit produced by the necessity of acting, 
 and which is anterior to all speculation. The certainty 
 which is necessary to decide that an accused person is guilty, 
 is the very same which determines every man in the most 
 important transactions olPlife." (a) 
 
 To relieve the mind from the distressing embarrassment so 
 inevitably resulting from these speculative views of the duty 
 of human tribunals, it is sufficient to recur to certain great 
 leading facts, or self-evident propositions, which, in the Ian 
 guage of the writer just quoted, are precedent and paramount 
 to all speculation, and which lie at the foundation of the 
 administration of criminal justice, as it must necessarily be 
 conducted among men. It is sufficient to know that crimes 
 are committed; that the safety of society demands their 
 punishment ; and that the proof requisite to this end must 
 be of a kind adapted to the present condition of human 
 knowledge, and the known principles of human conduct. (Z>) 
 It is with special and express reference to these same practi- 
 cal objects and considerations, that the tribunals themselves 
 
 (o) La certezza morale non e die una probabilita, ma probabilitu tale che 
 e chiamaio certezza, perohfe ogni uomo di buon senso vi acoonsente necessarie- 
 mente per una consuetudine, nata della neoessitk di agire ed anteriore ad ogni 
 speculazione; la certezza che se richiede, per accertare un uomo reo e dunque 
 quella che determina ogni uomo nelle operazioni pih imporlanie della vita. 
 Beccaria, dei Delitti, o. 14. Mr. Starkie cites the original as liere given. 1 
 Stark. Evid. 445, note. Tlie common American translation of Beccaria, (Ptiil. 
 ed. 1819,) has been slightly departed from in the text. 
 
 (6) Best, J. in Rex v. Burdeit, 4 B. & Aid. 95, 123. 
 
 7 
 
74 PRESUMPTION IN CRIMINAL CASB3. [PART I. 
 
 are so carefully constituted by the law : tliat the power to 
 convict, in capital, as in other cases, is confided and solely 
 confided to men taken from the mass of society, and ac- 
 customed to follow, in their own daily avocations, the dictates 
 of a sound judgment, and of that " common sense," which 
 is declared to be the peculiar instrument of all natural pre- 
 sumption. A tribunal of this character, whose impartiality 
 is secured by the forms provided for that purpose, is always 
 sufficiently disposed, from obvious sympathies, to act humanely 
 and liberally towards an accused party, while it is, at the 
 same time, suitably impressed with the necessity of acting 
 firmly in behalf of society. It is rarely apt to shrink from 
 the performance of a duty, where%iis clearly seen, out of 
 mere dread of the consequences of possible error. Indeed, 
 the whole notion of responsibility attaching, in such cases, to 
 the tribunal, in any other sense than as it attaches to judicial 
 action upon any kind of evidence, is obviously a mistaken 
 one. If, after all the pains taken to prevent an erroneous 
 conclusion, all the rules and limitations which experience has 
 provided for that purpose, and all the advantages allowed the 
 accused in furtherance of the same end, error should, in fact, 
 ensue, it is to be taken as the unavoidable accompaniment 
 of necessary action, an accident inseparable from the present 
 constitution of human affairs, and the limited powers of the 
 human mind, (a) 
 
 Finally, the necessity of presumption, as an aid to judicial 
 action in capital cases, is demonstrable from the very use 
 which, in such cases, is constantly, and without hesitation, 
 made of direct or positive evidence itself. It is not difficult 
 to show that, even in this, there always lurks the same danger- 
 ous element which is so much dreaded in evidence of the 
 presumptive kind, to wit, the possibility of error. It is 
 clearly possible that a witness, testifying to what he himself 
 
 (a) Romilly's Obs. on the C. Law of England, p. 74. Wills on Cfro. Evid. 
 24B Gibson, C. J. in CommonweaUh v. Harman, 6 Am. Law Journal, 128. 
 
CHAP. 11.] PREBUIIPTION IN CRIMINAL CASES. 75 
 
 saw, may not represent the truth, either through mistake or 
 from design : and this is not only abstractly possible, but is 
 shown to have been in many instances the actual fact. But 
 this consideration is never, in itself, allowed to impair, for a 
 moment, that confidence in the accuracy and veracity of wit-* 
 nesses, which is felt to be an indispensable general condition 
 to the effect of any testimony. The witness is presumed to 
 speak the truth, until his veracity is. impeached, or his in- 
 accuracy proved. So that, after all, it is by presumption 
 itself that the tribunal is saved from speculative doubts, 
 which, if indulged, -would exclude all proof by witnesses, 
 and thus render the administration of justice impracticable. 
 
CHAPTER III. 
 
 dttCUMSTANTIAL AND PRESUMPTIVE EVIDENCE. 
 
 Having considered the nature of evidence and of pre- 
 sumption, and also seen how circumstances compose the* 
 materials of the former and the basis of the latter, we are 
 now prepared to consider these several subjects in combina- 
 tion, as they constitute what is called circumstantial and 
 presumptive evidence. 
 
 It has already been remarked that the terms " circumstan- 
 tial" and "presumptive" are often used indifferently, to de- 
 note the same kind of evidence, namely, that which is not di- 
 rect and positive, (a) In stfictness, however, the terms are 
 by no means entirely convertible. It is not all evidence de- 
 rived from circumstances, which authorizes that particular kind 
 of inference known as a 'presumption. (&) Presumptive evi- 
 dence is a species of circumstantial evidence, (c) though so 
 large a species, as to be practically almost co-extensive with 
 its genus, and this explains why it is so frequently regarded 
 as identical with it. The true import and relation of the 
 
 (a) Sea anie, p. 7. 1 Stark. Evid. 478, 481. 1 Phill Evid. 436— 440. 
 
 (A) Evidence may be circumstantial without being presumptive, in two 
 senses: it may fail to raise any adequate presumption; and, on tlie otlierhaml, 
 the inference to which it leads may bo much stronger than any mere presump- 
 tion ; being of the necessary kind, as will be explained on a subsequent page. 
 As to the former, see Wills on Giro. Evid, 16, 17. 
 
 (c) Id. ibid. 
 
CHAP, in.] CrRCUMSTANTIAL EVIDENCE. 77 
 
 terms may be shown by a few additional explanations, wMch, 
 it is hoped, will not be deemed superfluous. 
 
 Oitcumstantial evidence is only another name for that 
 kind of evidence which has already been described as in- 
 direct, (a) It is evidence composed of circumstances, or 
 relative facts, bearing indirectly on the fact in issue, or which 
 is sought to be proved, and requiring, in its application to 
 •such fact, a process of special inference leading to the con- 
 clusion desired. 
 
 Sometimes, this conclusion is of a kind which follows, 
 necessa/rily, from the fact or facts presented by the evidence. 
 Thus, where a person is found dead, with a recent mortal 
 wound causing great effusion of blood, and the print of a 
 bloody left hand is discovered upon the left arm, the conclu- 
 sion is that another person, besides the deceased, must have 
 been present at or after the time the wound was inflicted. (6) 
 This is a necessary consequence of the appearance observed; 
 a fact which must be believed, although no living human eye 
 may have seen such person. It is a necessary consequence 
 of the laws of nature ; (c) it being impossible, in the nature 
 of things, that the mark could have been made by the de- 
 ceased. So, on the other hand, where, on a trial for an 
 alleged crime involving the personal presence of the accused, 
 it is conclusively proved on his part, that, at the very time 
 when it is charged to have been committed, he was in an- 
 other place, the conclusion follows, necessarily, that he 
 could not have been the perpetrator. (Cf) The fact inferred 
 in each of these cases is a self-evident proposition : it is cer- 
 tainly known to be true, and not merely presumed to be so. 
 
 (a) See ante, p. 4. 
 
 (6) Cas^ of Jliitry JVorkott and others, 14 HoweH's State Trials, 1324. 
 Best on Pres. § 205. 1 Greeal. Evid. § 13 a. Shaw, C. J. in Commonwealth 
 V. Webster, Bemis' Report, 468. 
 
 (c) Best on Pres. §§ 11, 186. 
 
 (d) Jd. § 7. More femiliar illustrations of proof by this species of indirect 
 
 7* 
 
78. CIRCUMSTANTIAL AND [PART I, 
 
 Hence, tlie evidence which gives rise to it is called certain 
 circumstantial evidence, (as) 
 
 But it more commonly happens that the conclusion drawn 
 from the circumstances presented by the evidence, does not 
 necessarily follow, but is probable only, and is obtained by a 
 process of reasoning, (b) Thus, to take the example first 
 above given, the facts shown do not necessarily lead to the 
 conclusion that the person found dead was murdered, or that 
 the person, the mark of whose hand is discernible on the 
 body, was the murderer. It may have been a case of suicide, 
 and whether a case of suicide or murder, the hand may have 
 been that of a friend, attempting to prevent the commission 
 of the act, or to afford relief after it. (c) Which of these 
 suppositions is to be considered the truth, depends upon a 
 process of probable reasoning, founded upon the facts shown, 
 in connexion with such other circumstances as may be ascer- 
 tained in the case. Thus, it is natural and reasonable to 
 suppose and expect that, had the person present been a 
 friend, he would immediately make known the circumstances, 
 and readily offer himself as a witness for that purpose. The 
 entire absence of any such person or disclosure would tend 
 to destroy the supposition of a friendly presence, and thus 
 to confirm the opposite supposition of murder. If the in- 
 strument of death were found lying at such a distance from 
 tke body, and in such a position, as to render it improbable 
 that it could have been used by the deceased, this circum- 
 stance would tend to strengthen the same supposition. The 
 nature and number of the wounds inflicted would also be 
 very important circumstances. The conclusion arrived at, by 
 such a course of reasoning, may be exceedingly strong and 
 
 evidenoe, are given in tlia olvarge of tlie presiding judge to the jWy, in the 
 case of The People v. Bodine, 4 New York Legal Observer, 90, 91. 
 
 (o) 1 Greenl. Evid. § 13 a. And see 6 Lond. Law Mag. 373. 
 
 (6) 1 Greenl. Evid. § 13 a. 
 
 (c) Id. ibid. 
 
CHAP, m.] PRESUMPTIVE EVIDENCE, f 9 
 
 convincing ; but, from its wanting the quality of absolute and 
 manifest certainty, the evidence from which it is drawn has 
 been called uncertain circumstantial evidence, (a) 
 
 It is easy to see that the process of reasoning just de- 
 scribed is nothing more than one of presumption. Hence, 
 the evidence on which it rests has been accurately termed 
 "presumptive circumstantial evidence." (&) But, as it can- 
 not be presumptive without being circumstantial, the simple 
 epithet "presumptive" seems to designate, with sufficient 
 precision, the species in question, the nature and effect of 
 which will now be more particularly described. 
 
 Presumptive evidence is, in brief, evidence presenting 
 facts from which that particular kind of inference, already 
 described as a presumption, may be drawn, as to the exist- 
 ence of other facts. In other words, it is that species of 
 indirect evidence which, when presented to the mind, in con- 
 nection with any fact sought to be established, suggests or 
 induces, with more or less force, a presumption or belief as 
 to the truth of such fact ; that is, that it is either true or 
 false ; that it has or has not existed ; that it will or will not 
 take place ; (c) and when the effect of such evidence is 
 satisfactory and convincing, it is termed " presumptive 
 
 (a) 1 GreenL Evid. § 13 a. A writer in the London Law Magazine for 
 October, 1831, states the distinction between certain and uncertain circum- 
 stantial evidence, in the following terms : it is " certain, when the existence 
 of the fact in dispute is a necessary condition for the existence of the fact at- 
 tested; " it is " uncertain, when the fact in dispute is a natural effect of the 
 fact attested, but may likewise have been caused by other things." 6 Lend. 
 Law Mag. 373. 
 
 (6) See the report of the judge's charge to the jury, in the case of The 
 People V. Bodine, 4 N. T. Legal Observer, 91. 
 
 (c) Circumstantial evidence, whether of the certain or presumptive kind, 
 may be, and constantly is used negatively, as well as affirmatively; to establish 
 the non-existence, as well as the existence of facts ; the falsity, as well as the 
 truth of propositions ; and hence it may, and often' does have the effect of dis- 
 proving, as well as proving a fact proposed, or alleged and sought to be estab- 
 lished; whether formally questioned by an actual disputant or otherwise. But 
 however it may be employed, and whether on one or the other side of a formal 
 
80 CIRCUMSTANTIAL AND [PART I, 
 
 proof." (a) The mental act, in such cases, is an inference 
 or deduction ; and it is an inference not yielded to, as a 
 necessary and inevitable consequence, but drawn by a process 
 of probable reasoning. The faculty employed in this process 
 is the judgment ; and the result of its exercise is an impres- 
 sion or conviction of the probability of the fact to be 
 proved; such probability varying in degree, from the slight- 
 est, up to that high degree which is usually term»d moral 
 certainty. (&) 
 
 Probability, therefore, as distinguished from absolute cer- 
 tainty, is the true foundation of the judgment exercised in 
 inferring, by this presumptive process, the truth of any fact 
 proposed, from evidence of other facts submitted. It is the 
 great source of belief in all investigations of human conduct 
 which, from their nature, do not admit of the certainty of 
 proof flowing from demonstrative evidence ; (c) and hence 
 is largely and necessarily relied on, in trials of fact before 
 judicial tribunals, (d) Indeed, the assurance produced by 
 direct evidence itself, has been well described as nothing 
 more than a high degree of probability, (e) And so rare 
 
 question or issue, the great ultimate result at which it always aims, or pro- 
 fesses to aim. in common with direct evidence, is invariably an affirmative 
 one, — the discovery and establishment of truth. 
 
 (a) 1 Stark. Evid. 481. 
 
 (6) Moral certainty is defined by Puffendorf to be nothing more than " a 
 strong presumption, grounded on probable reasons, and which very seldom 
 fails and deceives us." Law of Nature and Nationa, b. 1, o. 2, s. 11. 
 
 (c) 1 Greenl. Evid. § 1. Hence, evidence of the presumptive kind is termed 
 by a great reasoner, " probable evidence." Butler's Analogy, Intr. It is also 
 constantly termed "moral evidence." 1 Greenl, Ejid. ubi supra. Wills on 
 Circ. Evid. 5. " To us," says Butler, " probability is the very guide of life." 
 AnaL Intr. And presumption itself has been resolved into " the .weighing of 
 probabilities." Best, J. in Rex v. Burdett, 4 B. & Aid. 124. 
 
 (rf) 1 Stark. Evid. 450. Lord Chief Baron Gilbert calls the rules by which 
 evidence offered to a jury.onght to be weighed and considered, " rules ot proba- 
 bility." 1 Gilb. Evid. 1. 
 
 (c) 1 Stark. Evid. 450 
 
CHAP. III.] PBESUJIPTI7E EVIDENCE. 81 
 
 are the cases in ■which absolute certainty of conviction is 
 attainable, that a distiaguished writer on judicial evidence 
 has not hesitated to lay down the broad proposition, that the 
 HgMs of men must be determined by probability, (a) 
 
 Probability, in this sense of the basis of judgment on evi- 
 dence, has been well defined to be " the likelihood of a 
 proposition or fact being true or false, from its conformity or 
 repugnancy to our general knowledge, observation and ex- 
 perience." (J) More briefly, it is likeness to truth, or veri- 
 similitude ; (c) the nearest approach to absolute truth, which 
 the limited faculties of the human mind in many cases ad- 
 mit, (d) 
 
 The process by which this probability is made apparent, 
 and the Wuth of the fact sought indirectly established by 
 inference from the facts known or proved, has already been 
 sufl&ciently explained under the preceding head of presump- 
 tion, (e) Its foundation has also been shown to consist in 
 the connections previously observed to exist between facts, 
 arising from a conformity to certain general laws by which 
 the phenomena of nature and the conduct of men are known 
 to be uniformly or usually regulated. It is essentially a 
 process of comparison ; the facts presented in the particular 
 case being compared with the general results of previous 
 knowledge or experience. (/) A principal fact having beer, 
 found, in numerous instances, to have been accompanied by 
 certain minor facts ; and the same minor facts being again 
 
 (d) 1 Gilb. Evid. 2. So, a higher judicial authority has said that "judges 
 and all mankind," in forming their opinions as to the truth of controverted 
 faets, must be governed "by the rules of probability.^'' Lord Mansfield, in the 
 JJouglas case, cited ante, p. 28. « 
 
 (A) Iiocke on the Human Understanding, }>. 4, a. 15, ss. 3, 4. See various 
 definitions of probability, in Wills on Circ. Evid. 5. 
 
 (c) Butler's Anal. Introd. 
 
 (d) Seneca de Beneficiis, lib. 4, c. 33; cited ante, p. 25, note. 
 
 (e) See Chapter II. 
 
 (/) Butler's Anal. Introd. 
 
82 CIRCUMSTANTIAL AND [PAET I. 
 
 made to appear, or proved to have existed, in the case under 
 investigation ; the principal fact, though otherwise wholly 
 unknown, is, by the mere effect of such association, inferred 
 to have existed in the same case, also. It is also, in most 
 instances, a process of investigation of causes, or, an assign- 
 ment of probable causes to known effects ; whether suclj 
 effects be of a physical or moral nature. Finally, it is, to a 
 great extent, a process of reasoning from 'analogy ; facts or 
 events of a similar character being referred to causes of a 
 similar kind, (a) 
 
 The following may be taken as familiar illustrations of 
 what has just been observed. It is known by constant ex- 
 perience, as well as from reason, that impressions ^made by 
 one material substance upon, another, correspond accurately, 
 where they are distinct and permanent, with the form and 
 surface of the impressing substance. Hence, where impres- 
 sions of human footsteps on earth or snow, having certain 
 peculiarities, are found on comparison to correspond accu- 
 rately with the shoes of a particular individual, having pre- 
 cisely the same peculiarities, the inference or presumption is 
 that such impressions were actually made by the shoes of 
 such person, (i) leading to the further inference of the pres- 
 ence of such person at the place where the footmarks are 
 found. Again, it is known from observation, that the sur- 
 face of iron, when exposed to the direct action of fire, be- 
 comes discolored ; and that a bar of iron exposed to such 
 action, in certain parts, and protected against it in others, 
 becomes discolored in the former only. Hence, where the 
 bolt of a door, which has been exposed to the action of fire, 
 is found to be discolored only in certain parts, it is inferred 
 that the parts not discolored were protected by their position 
 at the time ; • and this leads to the further inference or pre- 
 
 . (n) See Wills Circ. Evid. 11, 12. 
 
 (ft) See farther, as to coincidences, post. Chapter IV. 
 
CHAP, ni.] PRESUMPTIVE EVIDENCE. 83 
 
 sumption as to the question whether the door was or was not 
 bolted, at the time of the fire, {a) These cases present cor- 
 respondencies of a physical or material kind ; but the same 
 kind of reasoning is equally applicable to circumstances of a 
 moral character. Thus, guilt is known to have certain 
 indicia or badges almost invariably attached to it ; such as 
 attempts to hide a crime committed, to escape from appre- 
 hended punishment, and the like. When, therefore, it has 
 been shown by evidence, that a certain person has attempted 
 to hide the dead body of another, upon which marks of 
 violence are discovered; or was seen, on the approach of a 
 third person, to fly from the place where the body was found ; 
 or has fled or conceaLd himself, in such a case, from the 
 pursuit of justice ; the reasoning is, to attribute such conduct 
 to the cause or motive known to actuate the guilty, under 
 such circumstances ; and the probable inference therefore is 
 to connect the individual with the crime, as author or 
 participator. 
 
 This process of probable reasoning, or presumptive infer- 
 ence, may be based upon a sing-le fact, as well as upon 
 several. In practice, however, it rarely happens that a 
 single fact presents sufficient ground for the formation of a 
 satisfactory judgment. (/;) It is seldom, indeed, that any 
 principal fact, or fact sought to be proved, is associated with 
 only a single circumstance, so weighty in itself, and so 
 forcibly indicative of the former, as to justify the inferring 
 it from such circumstance, unsupported by any other. In 
 the vast majority of cases, the principal fact is surrounded 
 by a variety, sometimes a multitude, of circumstances, or 
 minor facts, bearing various relations to it ; and all consti- 
 tuting, with it, the case under consideration ; and it is always 
 
 (o) See the remarks of the presiding judge, in his charge to the jury, in tho 
 case of TVic People v. Bodine, as reported in 4 N-. Y. Legal Observer, 92. 
 (6) See a Benth. Jud. Evid. 12, 13. 
 
84 CIRCUMSTANTIAL AND [PART I. 
 
 the main object of the investigator, to possess himself of as 
 many of these circumstances as possible. 
 
 Where several facts are thus presented in evidence, each 
 is to be examined, to ascertain its bearing on the fact sought 
 to be established, and each, if relevant, will be found to have 
 its share of influence in producing an ultimate resulting 
 impression of the probability or improbability of the truth of 
 such fact. The process of reaching this ultimate conclusion, 
 however, -will be found to vary, according as the evidentiary 
 facts or circumstances are found to be in harmony, or other- 
 wise. Accordance or mutual consistency, it may be observed, 
 is their natural and proper condition ; and always follows, 
 as a matter of necessity, where they are all placed before 
 the mind exactly as they occurred ; for it is undeniable that 
 unless they had been consistent, they would not have oc- 
 curred, (a) In these cases, the conclusion is reached by 
 connecting and combining all the circumstances together 
 into one body, and contemplating them as they unitedly tend 
 toward or indicate such conclusion. . And this process may 
 be called an imitation of nature. It is a re-construction of 
 the case, as fiir as may be possible, out of the very elements 
 which originally composed it. 
 
 But it does not always happen that facts or circumstances, 
 constituting a body of evidence, present themselves in this 
 their natural state of accordance and harmony. They are 
 sometimes found to be discordant, pointing to different con- 
 clusions ; and sometimes in actual conflict, pointing to oppo- 
 site conclusions. This condition of the facts is an unnatural 
 one, and is always occasioned by imperfection in the evi- 1 
 deuce itself: some actual fact being either omitted or untruly 
 represented, or something being represented as fact which 
 
 (a) "Truth," observes Mr Starkie, " is neoessivrily consistent witli itself; 
 in other words, all facts which really did happen, did actually consist and agree 
 with each other." 1 Stark. Evid. 20. See W. 482. And see 1 Greenl. Erid. 
 §12. 
 
CHAP. III.] PBESUMPTIVE EVIDENCE. 85 
 
 was not so. The great object of endeavour, in such cases, 
 is to ascertain, if possible, the cause of the apparent dis- 
 turbance or inconsistency, so as to explain and remove it, 
 and thereby to restore to the facts their natural capacity and ■ 
 tendency of being harmoniously combined into one connected 
 whole, excluding and rejecting every thing fabricated, (a) 
 But where this process proves to be impracticable, the only 
 alternative method of arriving at any definite conclusion, is 
 by the complex process of first separating the facts into two 
 divisions, — those which tend to establish the probability of 
 the ultimate fact sought, and those which tend to show its 
 improbability ; — and then, by weighing the one against the 
 other, to ascertain on which side the final preponderance of 
 probability lies ; and to adopt the conclusion according with 
 such preponderance. (6) 
 
 It will be seen, in the sequel of this work, that in a very 
 important class of cases, constituting its particular subject, 
 this weighing of probabilities is not allowed ; the probability 
 required as the basis of judgment, being of that high kind 
 which excludes any counterpoising or opposite probability 
 altogether. Nor is even this regarded as sufficient, without 
 being raised to the still higher grade of moral certainty, by 
 means of tests, which have already been generally described, 
 and will be more fully explained under anothei' head, (c) 
 
 Such is an outline of the nature and practical operation of 
 that species of circumstantial evidence, known as presump- 
 tive; and it is this species which is found, in practice, to 
 constitute its most common variety. It is comparatively rare 
 that the evidence presented in any case is wholly of the cer- 
 tain kind, leading to necessary inferences, and irresistibly 
 forcing the mind to an ultimate conclusion ; which is thus 
 
 (a) See 1 Stark. Evid. 530—532. 
 
 (A) See 7rf. 533. As to the process of weighing probabilities, see fiutha: 
 ante, p. 23. And see Will3,Circ. Evid. 9. 
 (e) See Chapter IV. 
 
 8 
 
8S CIRCUMSTANTIAL AND [PART I. 
 
 made, in the exaggerated language of the cml law, " clearer 
 than light." (a) On the other hand, cases where the evi- 
 dence is entirely presumirtive, are of constant occurrence. 
 It sometimes happens that both kinds are presented in combi- 
 nation, and, in this way, necessary inferences come to be 
 mixed up with probable ones. But the proportion of certain 
 evidence is usually small ; and where the inferences dedu- 
 cible from such portion are (as for the most part happens,) 
 only intermediate, leaving an ultimate conclusion still to be 
 drawn from the combined mass, such ultimate conclusion 
 is always drawn by a presumptive process. 
 
 In the present chapter, circumstantial evidence is intended 
 to be presented in its widest range of application, without 
 any particular reference or restriction to judicial subjects. 
 This general view of it, however, is not always taken ; it 
 being a common error to consider its employment as a mode 
 of reasoning or proving doubtful facts peculiar to courts of 
 justice ; whereas, as an accurate writer has observed, " it is 
 nothing else than the common course of settling all ques- 
 tions which can be settled by argument, employed, whether 
 knowingly or unknowingly, by all mankind." (6) Jt is the 
 common basis of an intellectu3.1 process, called into exercise in 
 almost every branch of human speculation and research, (c) 
 The truth of divine revelation itself is, to a great extent, 
 proved by circumstantial evidence, (d) 
 
 Evidence, in general, may be said to have its most effective 
 and impressive application in law, because the results of that 
 particular mode and course of application are of the most 
 practical and important kind : it being always intended as a 
 basis of action, and that, coercive action, going the length 
 of forcibly depriving men of their liberty, property, char- 
 Co) Jndiciie — luce clarioribus. Cod. 4, 19, 26. 
 (A) 6 Lond. Law Mag. 368, 
 
 (c) Wills on Giro. Evid. 4. 1 Stark. Evid. 24, and note ibid. 
 
 (d) Butler's Analogy, part 2, ohap. 7. 
 
CHAP. m.J PRESUMPTIVE ETIBENCE. 87 
 
 acters and lives. But questions of evidence are, by no 
 means, confined to courts of justice. " They arc," as Mr. 
 Bentham has remarked, " continually presenting themselves 
 to every human being, every day, and almost every waking 
 hour of his life." (a) 
 
 (a) 1 Jad. Evid. 13. 
 
CHAPTER IV. 
 
 CIRCUMSTANTIAL EVIDENCE, AS AN INSTRUMENT OF JUDICIAL 
 INVESTIGATION. 
 
 The nature of circumstantial evidence, as a means of dis- 
 covering truth in general, the process by ■which it is applied, 
 and the results deduced from it, have been sufficiently con- 
 sidered in the preceding chapters. It will now be examined 
 with more immediate reference to its use, as an instrument 
 of judicial investigation. 
 
 In this particular point of view, we see it applied exclu- 
 sively to one class of subjects ; namely, to questions or issues 
 as to matters of fact which have had, or are claimed to have 
 had, an actual existence, raised and agitated by contending 
 parties in courts of justice. Within these limits, we find it 
 further subject to the operation of certain fixed rules, which, 
 though they may abridge the extent of its natural range, 
 serve, not infrequently, to add to its natural efficacy. Some 
 of these rules are equally applicable to direct and indirect 
 evidence ; being modifications of natural evidence in general, 
 which the law always assumes to make. These may be re- 
 duced to the three following : the evidence must always be 
 presented under the sanction of an oath, or its equivalent ; 
 its production and statement may be compelled ; and its 
 reception is invariably subject to judicial supervision, with a 
 discretion to admit or exclude it. The more particular rules 
 which govern the application of circumstantial evidence, 
 
CHAP. IV.J CIRCUMSTANTIAL EVIDENCE. 89 
 
 especially that of the presumptive kind, will be enumerated 
 and considered under a future head. 
 
 Circumstantial evidence, then, in a judicial point of view, 
 ■s evidence of certain facts or circumstances, presented to a 
 piry on the trial of a cause, as a means of ascertaining the 
 truth of a principal fact in issue, by the indirect mode of 
 special inference or presumption ; and which leads to neces- 
 sary or probable conclusions, according to a distinction 
 already explained, (a) 
 
 The general and radical signification of the tbrm " pre- 
 sumptive," as expressive of a leadiug distiuction between 
 diiect and iudirect evidence, wUl not require to be again 
 adverted to. But there is another and more limited sense 
 constantly given to the term in practice, as descriptive of its 
 actual operation and effect, which has not hitherto been con- 
 sidered. In this sense, presumptive is distiuguished from 
 conclusive evidence. In criminal cases, presumptive evidence 
 is that which, while it' justifies a belief of the trut^ of the 
 fact to which it is applied, admits, nevertheless, of expla- 
 nation or contradiction to any extent. It thus is, in itself, 
 incomplete or inconclusive, having the true conditional or 
 contingent quality of a presumption. Conclusive evidence, 
 on the other hand, is that which either does not, in its nature 
 admit of explanation or contradiction ; such as has been 
 called certain circumstantial evidence ; or, if it does, has 
 not, in fact, been explained or contradicted ; having, in 
 either case, the final and absolute effect of producing satis- 
 factory assurance or conviction in the minds of the jury. In 
 the former case, it is obviously and radically distinguishable 
 from presumptive evidence : it is conclusive, in the first 
 instance, without passing through the presumptive stage. In 
 the latter, it is nothing but presumptive evidence, to which a 
 conclusive effect has been given by the absence or insuffici- 
 
 (o) See Chapter IH. 
 
90 CIECUMSTANTIAL EVIDENCE [PART I. 
 
 ency of the evidence on the opposite side, (ti) In other 
 words, it is presumptive evidence, with its contingent or 
 conditional quality changed into a final and conclusive one, 
 by the operation of the circumstances under which it is pre- 
 sented. In criminal cases, it is essential that the evidence 
 should be of a conclusive nature ; (6) but, in the sense last 
 considered, it cannot acquire this quality without first passing 
 through the presumptive stage, 
 
 • Again, presumptive is sometimes confounded with prima 
 facie evidtence ; although the latter term is more commonly 
 used in civil proceedings. These two kinds of evidence 
 resemble each other in their conditional or preliminary 
 quality of standing good unless or v/ntil rebutted, contrar 
 dieted or explained. But they differ in this important 
 respect ; that prima facie evidence derives its effect from the 
 judgment of the law, while presumptive evidence depends 
 upon its natural force or efficacy, as it impresses the judg- 
 ment of the jury, (c) 
 
 Before proceeding to the more particular consideration of 
 the subject of this chapter, it may answer a useful purpose, 
 to institute, in some detail, a comparison between the pro- 
 cesses of judicial and philosophical inquiry, as they are con- 
 
 (a) 1 Stark. Evid. 454. 
 
 (J) Id. 453, 454. 
 
 (c) See 3 Phill. Evid. (Cowen & Hill's notes,) Note 287. Kelly v. Jackson 
 ex d^m. Morris, 6 Peters, 622, 631,632; cited ihid. Mr. S^rfcie dr^ws a 
 distinction between prima facie and conclusive evidence, in the following terms. 
 " Prima facie evidence is that which, not being inconsistent with the falsity of 
 the hypothesis, nevertheless raises such a degree of probability in its favor, that 
 it must prevail, if it be accredited by the jury, unless it be rebutted or the 
 contrary proved ; conclusive evidence, on the other hand , is that which excludes 
 or at least tends to exclude, the possibility of the truth of any other hypothesis 
 than the one attempted to be established." 1 Stark. Evid. 453. " Prima 
 facie evidence," says another writer, " is evidence which if uncontradicted, or 
 unexplained, is sufficient to determine the matter at issue. Conclusive evidence 
 is evidence which, of itself, whether contradicted or uncontradicted, explained 
 or unexplained, is sufficient to determine the matter at issue." 6 Lond. Law 
 Mag. 373. 
 
CHAP. IT.] JUDICIALLY APPLIED. 91 
 
 ducted on the common ground of presumption from facts. 
 This will serve to present, in a promiaent light, certain 
 peculiar characteristics of circumstantial judicial evidence, 
 which might otherwise escape notice, while it will furnish a 
 natural means of transition from the general views which 
 have preceded, to the special considerations which are to 
 follow. 
 
 In certain leading points of view, judicial inquiry, as con- 
 ducted on the presumptive basis just mentioned, differs in no 
 respect from philosophical research in general, or, indeed, 
 from any earnest, intelligent inquiry concerning the affairs of 
 ordinary life. Tt has the same object, the discovery of 
 truth ; — ^the ^ame foundation, evidence fiirnished by observed 
 facts, as a basis of inference ; — and the same principle, pre- 
 sumption or induction from what is knoAvn to what is un- 
 known. Hence, it has been well remarked by an able writer 
 on the subject, that " it is clear that presumptive evi- 
 dence, and the presumptions or proofs to which it gives 
 rise, are not indebted, for their probative force, to any rules 
 of positive law. When inferring the existence of a fact 
 from others which have been already established, courts of 
 justice (assuming the inference pi'operly drawn,) do nothing 
 more than apply, under the sanction of the law, a process 
 of reasoning which the mind of any intelligent, reflecting 
 being would have applied for itself, under similar circum- 
 stances." (a) So, to use the words of an eminent American 
 jurist, " the presumption of a malicious intent to kill, from 
 the deliberate uge of a deadly weapon, and the presumption 
 of aquatic habits in an animal found with webbed feet, 
 belong to the same philosophy, differing only in the instance, 
 and not in the principle of its application." (&) It is the 
 observation of another writer on the same subject, that " it 
 is upon this principle that all philosophical knowledge ulti- 
 
 (a) Best on Pres. § 14. (i) 1 Greenl. Evid. § 14. 
 
92 JUDICIAL AND PHILOSOPHICAL [PART I. 
 
 mately rests ; except, perhaps, that part of it which relates 
 merely to abstract numbers and quantities." (a) And again, 
 tnat " the daily practice of investigating truth in our courts 
 of justice, rests upon principles which form the basis of every 
 rational system of philosophy." (6) 
 
 But in other and very important points of view, a trial at 
 law, and more especially a criminal trial, differs widely from 
 the philosophical investigations with which it has just been 
 compared. The essential circumstance of its being a pro- 
 cedure enjoined and regulated throughout hy law, and in 
 which all who participate do so, for the most part, under 
 coercion, presents at the outset a most material and obvious 
 point of contrast. A trial is a duty, demanded by the highest 
 interests of society. It is a practical duty, not called forth 
 by the contemplation of abstract questions in morals, or 
 remote objects in the physical world, but rendered necessary 
 by the actual conduct of men, and contemplating immediate 
 and retributive action against them. It is a public, official 
 duty, performed, not in the seclusion of the closet, nor with 
 a deliberation admitting months and years of progress ; but 
 in crowded assemblages, before close observers, and neces- 
 sarily limited, in its duration, to certain determinate periods. 
 Finally, it is a solemn duty, constantly affecting the most 
 vital interests of those against whom it is directed, and 
 
 (o) 1 Stark. Evid. 24, note. 
 
 (6) 1 Stark. Evid. 24, 26, note. The same writer goes on to remark thut, 
 " in its great essentials, the system of evidence is founded upon the purest and 
 most scientific principles; it rests upon no arbitrary or fanciful assumption; de- 
 pends not upon the use of force and constraint, every species of torture being 
 justly considered to constitute the worst test or guarantee of truth; it is founded 
 upon the sober and discreet application of the reason and experience of man- 
 kind, to all the facts and circumstances upon which that reason and discretion 
 can properly be exercised ; assuming no other prinoiple than that upon which 
 the most rigid systems of philosophy must be founded ; viz. that those associ- 
 ations and connections which have been pointed out and established by experi- 
 ence, will again occur." Jd. ibid. 
 
CHAP. IT.] INVESTIGATION COMPARED. 93 
 
 always conducted with public ceremonies indicative of its 
 character. 
 
 All these considerations afford reasons of the strongest 
 kind, why the truth, and the exact truth, should, if possible, be 
 developed on these occasions. Hence it is that the law, at 
 the very opening of a trial, not only formally propounds the 
 investigation of truth as its great and only object, in terms 
 of peculiar force and impressiveness, but imposes, as a 
 guaranty of these results, the most solemn sanction under 
 which men can be called to act. Hence the oath of the 
 juror, who is the appointed investigator, — " well and truly 
 to try " the issue submitted to him ; or, iu the language of 
 the record, " to speak the truth " of the matters in issue : 
 the verdict required of him being, in its most literal sense, a 
 declaration of the truth, (o) But it is to the conduct of the 
 witness, — the principal source of evidence, the main, reliance 
 of the juror, and the real foundation of the whole inquiry, — 
 that the law looks with the most careful regard ; and it is in 
 framing the oath under which he is to speak, that it employs 
 terms so pre-eminently and almost redundantly precise and 
 impressive, as to have rendered them familiar even to common 
 ears : — " the evidence which you shall give on the trial of 
 this cause, shall be the truth, the whole truth, and nothing 
 but the truth." 
 
 But " the truth," thus anxiously and publicly held up to 
 view, and the attainment of which is so carefully enjoined as 
 a solemn duty, is not absolute truth, which is free from all 
 possibility of error ; not that abstract and necessary truth 
 which the mathematician seeks and finds ; but moral truth, 
 as developed by moral evidence, the essence of which, even 
 at its highest point of impressiveness, is probability ; and 
 which has a quality, or, (if the expression be allowed,) an 
 infirmity of contingency, from which it can never, by any 
 
 (a) Verdict, ha,t. veredictum ; veritaiis dictum. 3 Bl. Com. 377. See Burr. 
 Law Diet, in voce. 
 
94 JUDICIAL AND PHILOSOPHICAL [PART I. 
 
 human precaution, be effectually freed. The impression, 
 therefore, which the result of a trial by circumstantial evi- 
 dence, — at least, by that of the presumptive kind, — ^is to 
 make upon the juror's mind, can never exceed the force of 
 what is usually termed moral certainty, (a) the nature of 
 which will be more particularly explained at the close of this 
 chapter. 
 
 In this latter respect, there is a resemblance between the 
 results of judicial investigation of crime, and those of certain 
 philosophical inquiries, — such, namely, as relate to the phe- 
 nomena of the natural world, — which has been noticed and 
 commented on, by writers on judicial evidence, (ft) There 
 exist, also, between these two branches of research, further 
 analogies worthy of consideration. Thus, they both have a 
 common subject, — a past transaction, occurrence or event, 
 which has had an actual, though merely transient existence ; 
 and they have a common immediate object, — the discovery 
 of its cause ; and, in the attainment of this object, they act 
 upon the same general principle. But in all that relates to 
 the particular mode and course of inquiry, and what may 
 be called its external circumstances, the resemblance again 
 fails, and further particulars of difference and contrast are 
 found to present themselves. The most important of these 
 will now be enumerated. 
 
 1. The philosophic inquirer deals with the particular cases 
 which come under his observation, for the sake of, and with 
 reference to some general truth to be eventually deduced 
 from them. It is, moreover, a characteristic of the occur- 
 rences or events to which his attention is directed, that they 
 are liable to be repeated in the same or nearly the same form, 
 or happen again, under precisely similar circumstances. In 
 fact, it is to the recurrence of a phenomenon, in some form 
 
 (0.) See 1 Stark. Evid. 450. 
 
 (A) See Id. 483, note. And Id. note to pp. 24-28. 3 PhiU. Evid. (Cowen 
 and Hill's notes) Note 285. 1 Greenl. Evid. § 11. 
 
CHAP. IT.J INVISTIGATION COMPAEKD. 95 
 
 or other, that he constantly looks forward, and upon it that 
 he often confidently relies, either to complete his observations, 
 or to verify and confirm their results. 
 
 But the cases -with which the judicial investigator, — the 
 juror — ^has to deal, have not, in general, this quality or 
 capacity of recurrence or repetition, in the same or similar 
 forms. The same combination of circumstances which go 
 to make up a case of crime, cannot, where they are at all 
 numerous, be expected to occur again. And even if it could 
 and did occur, it would answer no purpose ; for it is the 
 identical transaction which took place, and as it took place, 
 which. is to be the sole subject of inquiry. The investigator 
 deals with the cases submitted to him, for their own sake, 
 and for the express purpose of ascertaining the truth of every 
 fact composing them ; and not at all with reference to any 
 thing that may happen or be discovered in future. He looks 
 exclusively to the past, as well for the facts from which he is 
 to reason, as for the experience which enables him to reason 
 accurately. His object is not to establish a general principle, 
 but to ascertain the existence or non-existence of a partic- 
 ular disputed fact. Hence, the very first step he is obliged 
 to take, is actually to revive and recall his subject; to 
 " retrieve " it (in the words of Lord Chief Baron Gil- 
 bert, (a)) from the " obscurity " into which it has fallen ; 
 to search for and collect the scattered facts which composed 
 it, and to put them together, as nearly as possible, in their 
 original connection. This must always be done, before the 
 great business of trial, — examination and decision — can be 
 intelligently entered upon. It is in this peculiar process of 
 revival and re-construction, that the characteristic difficulties 
 of judicial inquiry by means of circiunstantial evidence, are 
 found to consist, as may appear from the following further 
 considerations. 
 
 (a) 1 Gilb. Evid. 2. And see 1 Stark. Evid. 15, 23. 
 
96 JUDICIAL AND PHILOSOPHICAL [PART I. 
 
 2. In the majority of instances, the philosophical investi- 
 gator combines with the character of inquirer, that of 
 original observer, also. He has himself witnessed the 
 occurrence, the cause of which he seeks to discover. He 
 has observed the phenomena, not only once, but repeatedly, — 
 observed them as they occurred, and with the utmost de- 
 liberation and precision, — observed them for the very pur- 
 pose of deducing a result. His impressions of them are 
 direct, and therefore of a corresponding perfection. K he 
 ever relies upon the observations of others, it is only such 
 as he has found to be worthy of confidence, because made 
 with the same care that he himself would have bestowed ; 
 and even these he sometimes prefers to repeat, and thus to 
 test by his own personal observation. He reasons and draws 
 his conclusions confidently, because he knows the facts upon 
 which they are based. 
 
 But with the juror, the case is different. He knows, or ia 
 presumed to know nothing of the transaction into which he 
 is called to inquire. He has not witnessed one — even- the 
 most trifling-y-of its component circumstances. For his 
 knowledge of each of them, in its character of a past event, 
 he must rely on the observations of others, (a) The law 
 indeed, actually prohibits him from acting on his own per- 
 sonal knowledge. (&) If he be possessed of any fact impor- 
 tant to be known, he must divest himself of the character 
 of juror, and formally assume that of witness, (c) Hence 
 
 (n) 1 Stark, Evid. 15, 23, 78, 79. It sometimes happen^ that facts of a 
 certain permanent kind, such as material objects and substancea whicli have 
 been connected with the commission of a crime, are actually submitted to the 
 juror's own personal observation, by being produced in court on the trial. 
 So the place or scene of the crime itself is presented in a, similar way; 
 the jury being allowed to leave the court and view it, in order to obtaiu 
 a clearer understanding of the testimony. But even these facts are always 
 introduced and accompanied by the evidence of witnesses, which is essential to 
 give them their proper connection with the case. 
 
 (b) 1 Stark, Evid. 449. 3 Bl. Com. 375. 
 
 (£) Id. ibid. 1 Stark. Evid. 449. 
 
CHAP. IT.J INVBSTIGATION- COilPARED. 97 
 
 the witness becomes the indispensable adjunct and assistant 
 to the labors of the judicial investigator. 
 
 This, then, is the peculiar characteristic of the juror's 
 observation of facts ; it is not original, but secondary. He 
 observes with and through the organs or senses of the wit- 
 ness. He perceives the facts, not immediately, but after an 
 interval : not actually and sensibly, but mentally, and only 
 as the narrative of the witness brings them before him. {a) 
 Hence, his observation is of an indirect, dependent, and 
 therefore inferior kind. 
 
 3. Again, the disadvantage arising from the last consid- 
 eration is often increased by the intrinsic character of the 
 observations themselves, as originally made by the witness. 
 The philosophical observer either actually goes in search of 
 his subject, or, where it is suddenly presented to his view, 
 arrests and keeps it before him, and in both instances, for 
 the very purpose of examination. He observes with express 
 reference to a speciiic object and result ; and his pre-deter- 
 mination always is that his observation shall be complete 
 and correct to the minutest particular possible. Accordingly, 
 he makes it his especial business, and, for the time, his whole 
 and exclusive business. He discharges from his mind every 
 other subject, and suffers it to become absorbed in the con- 
 templation of the one before him. Hence, coolness, delibe- 
 ration and precision, are found to be the invariable accom- 
 paniments and characteristics of the whole process. 
 
 But the observer of the facts and appearances which 
 constitute, or are connected with criminal action, — especially 
 of those which precede or accompany the commission of 
 crime, — the observer who is to appear in the future char- 
 acter of a judicial witness, often acts under very diferent 
 circumstances, and in a very different frame of mind. Many 
 of the facts and appearances just mentioned, (including 
 
 (a) See, however, what is said in note (a) on the last page. 
 
93 JUDICIAL AND PHILOSOPHICAL [PABT I. 
 
 frequently some of the most important materials of evidence) 
 not only present themselves to the senses, incidentally, un- 
 expectedly and transiently, but are, outwardly, and as they 
 present themselves, of the most ordinary and familiar kind, 
 having nothing on their face to attract or arrest attentiou 
 in any considerable degree ; and not to be distinguished 
 from the great mass of facts and events which are constantly 
 passing before the eyes of men, in their daily public inter- 
 course with each other. Hence, where they are perceived 
 merely by the organs of sense, without any act on the part 
 of the observer, to give them connection with himself, they 
 are usually perceived in a general and superficial manner. 
 The following may be mentioned as examples of this de- 
 scription of circumstances : — a person seen walking through 
 a street, or approaching or entering a house : {a)- -crossing 
 a field, a ferry or a bridge, at a certain hour ; (b)- -seen at 
 different points, by difi'erent persons ; (c) — ^his size, dress, 
 gait, movements, and the like. None of these circumstances 
 are, or can be known, in their true and full relation and 
 significance, until after the crime which they tend to indi- 
 cate, has been committed. Hence, they are observed under 
 imperfect, if not untrue impressions of their real character : 
 they are observed merely as ordinary occurrences, and with 
 no particular object in view, or none at all commensurate 
 with what would be the object of observation, could the 
 impending crime be, at the time, foreseen. And this arises 
 from the unavoidable necessity of the case. Crime is a 
 thing, in itself, unlocked for. The very idea of crime, in 
 the abstract, is not willingly entertained, but rather repelled 
 from the mind ; the idea of it, as a possible, actual, impend- 
 
 (o.) Commonwealth v. rfcfts/er, Bemis' Keport, 55, 211. TKe People v. 
 Colt, New York Oyer and Terminer, before Kent, Circuit Judge, January, 1842; 
 testimony of J. Johnson. 
 
 (6) The State t. Avery, before the Supreme Court of Rhode Island, May, . 
 1833 ; testimony of B. Manchester, W. Pearce, Jr. and G. Lawton, 
 
 (c) Commonwealth v. Webster, Bemis' Report, 51 — 58. 
 
CHAP. IV.J INVESTIGATION COITPAEED. !0 
 
 ing occurrence, in connection with any ordinary circumstance, 
 may almost be pronounced unnatural. Men do not walk the 
 streets, nor labor in the fields, under the impression that a 
 crime may be either in preparation, or in actual commission, 
 in their vicinity, and that therefore it behooves them to keep 
 every sense awake, to observe every possible circumstance or 
 occurrence within reach, and to observe all accurately. The 
 necessary avocations of human life would, of course, admit 
 of no such thing. Indeed, the natural habit of the mind 
 appears to be, to attribute occurrences, even out of the ordi- 
 nary course, to any other cause than crime. Hence it is 
 after a crime is committed, and has been discovered, that the 
 observer is first effectually reminded and impressed that, at 
 such a time and place, he witnessed such a circumstance, 
 which is now, for the first time, seen to have a bearing on 
 the transaction. 
 
 There are, however, certain facts and occurrences, pre- 
 ceding and accompanying the commission of crime, which, 
 even at the time they present themselves to the view or 
 sense of an observer, have an aspect or quality so remarkable 
 as to render them the subjects of more than ordinary observ- 
 ation. A person is heard to threaten the life of another, 
 and is soon after seen to go in search of him. This natu- 
 rally awakens apprehension of an unfavorable result, and 
 thus impresses the mind, and .places it in the attitude of 
 determined observation. So, the more secret but peculiar 
 movements — ^by way of preparation — of a person contem- 
 plating crime, and sometimes the air and manner of such 
 person, awaken suspicion, and induce an observer to watch 
 their progress. So, certain peculiarities about a material 
 object or substance, intended as an instrument of crime, — 
 a loaded fire-arm, or the odor of inflammable substances, — 
 may have a similar impressive effect. So, it occasionally 
 happens that while a crime is in course of actual perpetra- 
 tion, something strikes the sense of a person in the immedi- 
 
100 JUDICIAL AND PHILOSOPHICAL [PAET I. 
 
 ate vicinity, ■with sufficient force to attract instant attention, 
 and in these cases observations are made with great care. 
 A sudden, peculiar and alarming sound, or a succession of 
 such sounds, is heard in an adjoining room, followed immedi- 
 ately by total and continued silence. This " draws attention 
 to the spot, and leads to minute observation and vigQant 
 endeavors to ascertain the cause, (o) Observations thus 
 deliberately made for a particular purpose, and under a full 
 impression of their nature and importance, constitute the 
 most valuable and reliable materials of which circumstantial 
 evidence can possibly be composed, 
 
 But cases of this description are of comparatively rare 
 occurrence. A person contemplating crime generally takes 
 care that no circumstance calculated to excite attention, 
 before it is committed or while it is in progress, shall escape 
 to the notice of the world about him ; and his precautions to 
 ensure secrecy are, up to a certain point, at least, too often 
 successful. Hence it constantly happens that the first thing 
 distinctly known respecting a crime, is the fact that it has 
 been committed. It is true that one and another circum- 
 stance, connected with it and forming important items of 
 evidence, may have fallen iinder the observation of one and 
 another individual, before and during its perpetration ; but 
 these have occurred as ordinary circumstances, without any 
 character to excite or justify more than ordinary observation. 
 This brings us to consider, more particularly, the nature of 
 the observations, as they are usually found to be made in 
 these cases. 
 
 In contrast with the philosophical observations which have 
 been adverted to, they may be described as casual, transient 
 and superficial. They are casual, or incidental ; the occur- ■ 
 rences or appearances themselves literally falling under 
 notice, or falling in the way of the senses, and not being 
 
 (a) The People v. Colt, New York Oyer and Terminer, before Kent, Circuit 
 Judge, January, 1842; testimony of A. H. Wheeler, and of A- Seignette. 
 
CHAP. IT.J INVESTIGATION COMPARED. ♦ 101 
 
 sotight out, for the purpose of observation. They are not 
 made -with a predetermined object : the mind, in the process, 
 is passive rather than active, and receives impressions, often 
 without a distinct idea of their cause. They are transient; 
 and this, either from the nature of the circumstances them- 
 selves, or from the limited time whicli men occupied with 
 their own concerns are, in most cases, willing, or, indeed, 
 able to bestow on ordinary occurrences going on around 
 them, especially where they do not affect themselves. They 
 are finally, and as a natural result of ttie two preceding 
 characteristics, superficial; or, in other words, they are 
 made generally, and without refereince to minuta or latent 
 particulars. The latter quality is most strikingly displayed 
 in reference to the three leading circumstances of persons, 
 places and times, — the essential components of all criminal 
 transactions,^-when sought to be made the subjects of accu- 
 rate identification. 
 
 Thus, impressions derived from the exterior and dress of 
 persons are often indistinct, especially in minor particulars ; 
 and different observers will receive different impressions 
 from a view of the same person, at or about the very same 
 time. Place is another fundamental circumstance, of which 
 the mind is usually content to receive a general idea, especi- 
 ally if there are no striking visible objects at hand to give it 
 precision. Distance, in its relation to place, is almost neces- 
 sarily observed without exactness ; for men rarely measure 
 space accurately, without some immediate motive, (a) Time 
 is a circumstance of the very highest importauce in criminal 
 investigation ; a necessary concomitant of all other circum- 
 stances ; without which, they could have no individuality, 
 and therefore no value. Upon a question of time, — a few 
 
 (a) Distances are often measured after a crime is discovered, for the purpose 
 of giving accuracy to the statement of the observations of a witness. Trial of 
 Spencer Cowper and others ; 13 Howell's State Trials, 1105, 1178. The 
 9(aM T. A»wy; testimony of P. R. Bennett. 
 
102 JUDICIAL AND PHILOSOPHICAL. [PART I. 
 
 minutes earlier or later, — a human life has often depended. 
 In philosophical observations, like those which have already 
 been alluded to, time is always an indispensable element, and 
 the observer notes and registers it to the minutest fraction 
 possible. Such accuracy is, of course, quite out of the ques- 
 tion in any observation of facts in ordinary life. But accu- 
 racy, even of an ordinary and attainable kind, is not always 
 observed in these cases. As a general rule, men do not note 
 time with precision, in connection with any occurrence they 
 may incidentally witness, particularly where it does not con- 
 cern their own affairs, even where the occurrence itself is 
 observ ed . with some minuteness, {a}^ A pistol-shot or a 
 scream is heard by a person passing along a street or road ; 
 it excites his attention, and affects him with more or less 
 interest, but he does not recur, on the instant, to his watch, 
 to fix the hour and minute. Indeed, direct evidence itself, 
 of the most positive kind, or what is so called, is liable to 
 the same imperfection and disadvantage. A person wit- 
 nesses a scuflSe between two others, a few feet from him, in 
 open day ; he sees the occurrence distinctly ; he sees a fatal 
 blow struck and its immediate consequences ; but he does 
 not recur at the moment to a time-piece. The surprise and 
 excitement which such a transaction produces in most men, 
 are, in fact, at variance with any such coolness of observation. 
 It does, however, sometimes happen that the time of an 
 occurrence is accurately noted ; but this is generally acci- 
 dental or unintentional. The observer having already noted 
 time for a certain purpose, the fact in question falls immedi- 
 ately under his observation ; and the two circumstances thus 
 
 (a) Seethe observations of Mr. Justice Clayton, ia McCann v. The State, 
 13 Smedes & Marsh. 471, 495.^ So, persons unaccustomed to the observation 
 of time, have often very inaccurate ideas of the length of certain periods, 
 especially of small portions. A few seconds or minutes, when accurately 
 measured by a watch, prove to be a much longer space of time than people in 
 general conceive them to be.' See the qjjservations of Lorl C. B. Macdonald, 
 in the case of Rex v. Patch, Gurney's Report, 171. 
 
CHAP. IV.] INVESTIGATION COMPARED. 103 
 
 become, by tlie mere force of the coincidence, effectually 
 associated. In other cases, time is estimated by comparison 
 and inference. The observer recollects that, some hours 
 before, he left a certain house, where he observed the time ; 
 and that he had walked a certain distance before reaching 
 the spot where he witnessed the fact in question. Or, some- 
 time after, he notes the time, and calculating backwards, 
 arrives at his conclusion. If he has no standard of this 
 kind, he contents himself with an approximation, and places 
 the time somewhere between two specified hours. 
 
 Completeness and accuracy of observation may be said to 
 depend upo# the following considerations : first, the quality 
 of the occurrence or fact observed, to attract and fix atten- 
 tion ; secondly, the length of time during which it remains 
 before the' senses of the observer ; thirdly, the situation of 
 the observer himself, in regard to time, leisure, and oppor- 
 tunity of observation ; and fourthly, the character of the 
 observer, as possessing, in a greater or less degree, the 
 faculty of observation and the disposition to exercise it. (a) 
 Hence it is possible that a circumstance of the most common- 
 place and unimpressive character, may, from some peculiarity 
 accidentally attending it, or having its seat in the observer 
 himself, become the subject of as minute and accurate ob- 
 servation, as if it had actually worn a criminal or suspicious 
 aspect. But, even under the most favorable circumstances, 
 the accuracy attained in these cases falls greatly below that 
 of the philosophic observer, wlio makes observation his 
 special business, and, for the time, his only business, and 
 who observes with express refereuce to some future use to 
 be made of his observation. 
 
 What has thus far been said mi^t, however, be understood 
 to have exclusive application to facts or events which exist 
 or take place, and are witnessed before a crime is known or 
 believed to be committed. After that period, the character 
 
 (ji) As to observations by witnesses, see 1 Stark. Evid. 79. //. 459, 4C0. 
 
104 JUDIOUL AND PHILOSOPHICAL [PART I. 
 
 of obserTation is materially- chang-ed. It henceforth has not 
 only a definite object, but a most attractive and absorbing 
 one. Men now, for the first tim3, make observation their 
 determined business ; they observe for the very purpose of 
 reporting their observations ; of reporting them on oath, and 
 having them taken for the truth ; they go in search of cir- 
 cumstances, to be used as materials of evidence ; the most 
 minute inquiry is instituted into all objects and appearances 
 of a physical kind^ including the most triSing and insignifi- 
 cant, and, at times, the most repulsive. In short, the aid of 
 science itself is often called in, and observations are made 
 and registered with the strictest philosophical decision, (a) 
 4. Another point of contrast between philosophical inquiry 
 into physical phenomena, and judicial investigation of crime, 
 is in the manner in which the observations which' may have 
 been made are, at the time, disposed of. The philosopher 
 not only observes, but registers his observations ; registers 
 them as they are made, and with the most careful accuracy, 
 in the permanent form of writing. Hence the confidence 
 with which he makes use of facts observed and recorded 
 years before. But the observer, who is to be the future 
 judicial witness, rarely does any such thing ; especially where 
 he is unaware, as in the case of ordinary occurrences, that 
 what he is witnessing is, in reality, the component element 
 or accompaniment of a crime, and that he may be called on 
 to testify respecting it. Whore a registry is, from any cause 
 ever made by a witness, it is usually in the form of a memo- 
 randum or note, drawn up, not at the time of the observ- 
 ation, but afterwards, and with the help of the memory, and 
 intended to be used in aid of it. But in the vast majority 
 of cases, memory is the great and sole repository of observed 
 facts, and it is upon memory alone that witnesses are con- 
 stantly compelled to rely. After a crime has been dis- 
 
 (a) See, for example, the reports of the medical examiners upon the remains 
 and fragments of bones submitted to them in the case of The Commonwiallh 
 V. Webster, Bemia' Report of the trial, 62-C5. .'Vad see 11. 73-75, 91. 
 
CHAP. IV.] INVESTIGATION COMPARED. 105 
 
 covered, -written registries of observed facts are not unusual, 
 and indeed are sometimes positively required, as in cases of 
 scientific, professional or medical examinations. 
 
 5: To return to the judicial investigator, — the juror. His 
 facts, — the elements of the transaction which it is his sworn 
 duty to investigate, are revived from their obscurity, and 
 brought before him, through the medium of witnesses, re- 
 porting from memory their past observations. But here, at 
 the very threshold of inquiry, another and very material 
 point of difference presents itself. The philosophical investi- 
 gator has always an unlimited discretion as to the subjects 
 of his observation, and the choice of the facts which he is to 
 take as the basis of his inferences. It is sufficient for him 
 that the phenomena have, or have had an existence, and that 
 they are, or have been accurately observed. These are the 
 only conditions which limit the use he is allowed to make of 
 them. Bat the juror has no such large discretion as "this. 
 It is hot sufficient that a circumstance has occurred, and has 
 been accurately observed by the witness of it ; and that it has 
 a bearing on the transaction which is to be inquired into. 
 When the juror comes to observe it, he must do so, under 
 supervision, and according to rule. The law assumes to judge 
 of the quality of the fact before it is presented to him ; to say 
 whether it is or is not a fact proper to be observed, whether 
 it has or has not a bearing that can be legally recognized. 
 Many of the rules of judicial evidence are rules determining 
 its admissibility/, and excluding certain kinds of natural evi 
 donee altogether. The courts, which represent the law, 
 constantly apply these rules in practice ; and thus it often 
 happens, in the course of a trial, that the lips of a witness 
 are sealed by the injunction of the law itself, (speaking 
 through the judge,) and the fact proposed to be proved by 
 him, thereby entirely shut out from the juror's view. 
 
 6. But supposing the facts fairly placed before the juror, by- 
 evidence to which no objection on the score of admissibility 
 
106 JUDICIAL AND PHILOSOPHICAL [PABT I. 
 
 exists, — they are, in the next place, to be put together ;. to 
 be considered in connection ; to be used in re-constructing 
 the case. Assuming all those testified to, to have been re- 
 ported accurately, to be, in short, the actual facts as they 
 occurred, a new difficulty may arise. Some fact is seen to 
 be wanting ; it has not been proved. And some fact may 
 be wanting, the absence of which is not noticed. This may 
 arise from a variety of causes. It may have been observed, 
 but so transiently or imperfectly, as to have left no impres- 
 sion. It may have been duly observed, but the witness is 
 beyond reach. And, finally, it may not have been observed 
 by any human being ; the criminal's own precaution, or the 
 accidental concurrence of circumstances, having had the 
 effect of excluding all observation. In cases like these, the 
 investigation usually fails. If the desired fact be of any 
 importance to the conclusion, it ought always to fail. The 
 philosophic anatomist may, by the aid of scientific rules, 
 build up, with accuracy, an entire skeleton, from a single 
 fossil bone, (a) But the juror cannot supply a single fact ; 
 he cannot add one component element to the number of those 
 which have been " retrieved " from the past ; he cannot go 
 a step beyond the evidence. 
 
 Supposing, however, the facts to be presented with all 
 desirable completeness, and all possible accuracy, the investi- 
 gation proceeds, as will be more fully shown hereafter, on 
 the same general principle of presumption as is employed in 
 philosophical researches ; and the unknown cause or fact is 
 developed from the known effects or concomitants, in the 
 same • general way. The analogy in this particular, has 
 already been noticed. But in all that relates to the actual 
 course and outward circumstances of procedure, — the time, 
 place and mode of inquiry, — there are material points of 
 contrast, which may be added to those already enumerated. 
 
 ia) Cuvier's Fossil Remains; referred to in 1 Stark. Evid. 494, note. 
 
CHAP. IV.] INVESTIGATION COMPARED. 107 
 
 7. The great characteristics of philosophical inquiry are 
 deliberation and precision ; and, as necessary conditions of 
 these, mental, if not physical, abstraction, and unlimited 
 freedom in every sense. We have seen with what undivided 
 attention and laborious accuracy, the investigator in physical 
 or astronomical science collects his facts. He observes and 
 registers with the utmost care. He rarely, especially on a 
 subject not before examined, attempts to draw a conclusion 
 from a single observation, or set of observations. He ob- 
 serves and registers again and again. Observation and 
 deduction, indeed, may be considered, in his case, as two 
 distinct processes, admitting of wide separation. It is not 
 until he has observed, either singly or with the aid of associ- 
 ate observers, a basis of facts, numerous and authentic to the 
 utmost desirable degree, that he sits down, at his leisure, to 
 the business of inference : to examine his materials and 
 apply his principles ; to analyze, compare, arrange, combine, 
 conclude. In all this, he is under no sort of constraint. 
 He is not necessarily confined to any particular place. He 
 may retire into the most perfect seclusion, not admitting even 
 the presence of his associates in inquiry ; and he often 
 adopts this course, to secure that mental composure which 
 such investigations generally require. He is equally at 
 liberty, in regard to time. He may decide now, a month or 
 a year hence, as he may choose. He constantly postpones 
 decision until he can re-examine his facts, or confirm them 
 by new observations. And where he does decide, he often 
 does so provisionally. 
 
 But the juror, with his eleven associate inquirers after truth, 
 finds himself under very different circumstances. The pro- 
 cesses of collecting the facts, and deducing from them the infer- 
 ence desired, are, in his case, if not positively combined, (a) 
 
 (a) According to the strict theory of judicial inquiry, the juror should post- 
 pone the formation of any definite opinion us to the effect of evidence, until all 
 the evidence has been placed before him; otherwise there is danger of acting 
 
108 JUDICIAL AND PHILOSOPHICAfi* [PART I. 
 
 at least so hedged in by the common limits ef a single inquiry, 
 as not to admit of separation fot any practical purpose. 
 The juror, as we have seen, collects his facts from the re- 
 ported observations of others ; and the- facts, thus indirectly 
 obtained, are themselves presented and disposed of, in a 
 manner most strikingly in contrast with that which has just 
 been described. Though reported long after the time of 
 observation, they have, in most cases, never been registered, 
 except in the tablets of memory. And even as they come 
 from the mouth of the witness, the juror is not allowed to 
 register them for himself. They are to be immediately 
 transferred from the memory of the witness to his own, 
 without any visible record, (a) Thus, the faculty of mem- 
 ory is made the sole repository of a mass of facts which it 
 has taken days and weeks to collect in evidence. 
 
 But this is not all. From the moment the juror enters 
 upon the business,^^with him, the duty — ^of inquiry, to the 
 
 under the influence of imperfect, premature, or false impressions. An impres- 
 sion, once made by a prominent fact, is not always easily removed, even by 
 new facts entirely adequate for the purpose. In practice, however, it is hardly 
 doubtful that the process of making up an opinion upon evidence, is generally 
 a gradual one, beginning with the first fact proved, and growing into shape 
 and distinctness as the proof goes on. Indeed, it is, in itself, almost impossible 
 to admit a fact into the mind, as a mere item of evidence^ and yet to exclude 
 the impression which naturally accompanies it. And the entire dependence of 
 the juror on his memory, seems inconsistent with any effectual separation of 
 the processes of hearing and determining, above alluded to. The theory of the 
 procedure is, that the juror, having heard all the evidence, retires *ith his 
 associates, "to consider" of his verdict. But in many (not to say most) 
 cases, the opinion of each individual juror is essentially made up before he 
 retires ; the chief object of that formality being to give opportunity for the 
 interchange of Opinions, and to harmonije and mould them into one common 
 expression. 
 
 (a) Jurors are not allowed even to take notes of the testimony, except by 
 express permission of the court, which is very rarely granted. In the case of 
 The Slate v. Mvery, tried before the Supreme Court of Rhode Island, May, 
 1833, — a trial of unprecedented length, commencing May 16th, and continuing 
 to June 2d, and in Trhioh upwards of one hundred and fifty witnesses were 
 examined, — such permission was applied for, but refused. 
 
CHAP. IT.] INTESTIGATION COMPARED. 109 
 
 moment after his verdict is pronounced, he acts under the 
 almost constant pressure of immediate personal constraint. 
 From the moment he enters the court-room, in obedience to 
 the summons of the law, until discharged, he places himself 
 under judicial control. He renounces, fro hac vice, his 
 personal freedom. He cannot leave the place but by ex- 
 press permission, which the court has always a discretion to 
 withhold, and where he is permitted to leave, as for the day, 
 it is under strict injunction as to his conduct in the interval. 
 Always, while in the presence of the court, and often when 
 out of it, he is under the immediate guard of the officers of 
 justice. He may, in short, be considered as being, during 
 the whole period of the trial, in the custody of the law. 
 
 More than this, — ^he must observe, inquire, examine, infer, 
 all but decide, in public ; subject to all the exciting and 
 exhausting influences which confinement in the immediate 
 presence and close contact of crowded assemblages, so 
 naturally exerts upon the human frame ; and this he must do 
 day after day, and sometimes for weeks together. It is true, 
 he retires, with his associates, at the close of the trial, to 
 the comparative seclusion of the jury-room, to consider of 
 his verdict. But there he is under greater constraint than 
 before. He cannot withdraw to his own apartment, for 
 private reflection on the momentous decision he may be about 
 to make. He must, if he have not done it before, (a) carry 
 on the processes of recalling the facts proved ; passing them 
 through his mind, in a certain order and combination ; and 
 extracting a satisfactory conclusion, in the constant presence 
 and close proximity of all his associates. 
 
 Finally, the juror is limited and constrained in the impor- 
 tant particular of Hme. A trial, once entered upon, cannot 
 be, for any considerable period, postponed. The process of 
 collecting the facts once closed, those of examination and 
 decision must immediately follow. There can be no delay 
 
 {a) See ante, p. 107, note (a) . 
 10 
 
110 JUDICIAL AND PHILOSOPHICAI, [PAET I. 
 
 until new light be obtained from further observations. The 
 limits which have, all along, confined the juror's action, are 
 now fast narrowing to a point ; and though the active duties 
 of his office may be said to be only beginning, (for he has 
 hitherto been chiefly a passive observer of the case,) he is 
 expected to discharge them all within the compass of a few 
 hours. The effect, and, indeed, the avowed object of the 
 personal constraint to which he is now more stringently sub- 
 jected than ever, is to hasten and enforce decision. He 
 cannot escape from what is visibly a state of imprisonment, 
 he cannot return to his family and his necessary avocations, 
 until he has made up his verdict and agreed with his follows. 
 And, what is the most important circumstance of all, he 
 must decide, not only at once, but absolutely. Though the 
 life of a human being may depend on the result, he cannot 
 decide with any reservation. The law waits to act upon his 
 verdict, and expects and demands it to be rendered in a final 
 and unconditional form, or not at all. 
 
 The foregoing comprise the principal points of view in 
 which a course of philosophical inquiry, and the process of a 
 criminal trial by jury, as means of discovering a desired 
 truth, in the way of presumptive inference from other known 
 truths, may be made subjects of comparison ; and they would 
 appear to present a decided preponderance of advantages, 
 in point of correctness of conclusion, on the side of the 
 former. But there are points of view, in which most of 
 these circumstances of seeming disadvantage will be found 
 either to have a positively favorable effect upon the result 
 of the trial, or to be balanced by advantages peculiar to the 
 subject. 
 
 Thus, in the first place, a trial being a public investiga- 
 tion regulated by law, is placed, at the outset, upon a basis 
 entirely different from that occupied by philosophical investi- 
 gation of any kind. But even this material circumstance of 
 difference is instrumental in working out the same great 
 
CHAP, IV.] INVESTIGATION COMPARED. Ill 
 
 end : publicity being relied on for the very same purpose in 
 the one case, that privacy is in the other, — the more effectual 
 development of truth. 
 
 Secondly. The subject matter of a criminal trial is human 
 conduct, mixed up, as it comes to be examined, with a variety 
 of merely physical circumstances, but originating wholly in 
 the moral nature, developed into action by moral influences, 
 and to be judged of by considerations of a moral kind. The 
 inquiry itself is practical throughout, and in no sense specu- 
 lative ; not demanding, for the attainment of its object, any 
 extraordinary acuteuess of bodily sense, or any exclusive 
 exercise of intellectual power ; and therefore not calling for 
 that physical and mental abstraction, which studies involving 
 those conditions, in their nature require. 
 
 Thirdly. As to any seeming imperfection in the mode of 
 collexling the necessary /acfo, — ^namely, from the orally report- 
 ed observations of witnesses, — and in the manner in which 
 the observations themselves are originally made, it is to be ob- 
 served, that the same minute accuracy in the perception of 
 each individual circumstance, as it is not, in the nature of 
 things, to be expected, is not actually required: the jury 
 constantly relying upon one circumstance to aid another, 
 and being always governed, in the end, by the effect of all 
 the circumstances taken together. 
 
 Fourthly. The disadvantages which would appear to 
 grow out of the circumstances and concomitants of a public 
 trial, considered in a physical point of view, — the confine- 
 ment of the person in close contact with crowded assem- 
 blages, and the continued exposure to impressions which 
 would tend to embarrass, if not to frastrate any purely intel- 
 lectual inquiry, — are, for the most part, overbalanced by the 
 effect of the principle upon which juries themselves are 
 selected and composed. They are made up, not of men pro- 
 fessionally accustomed to philosophic processes, and in the 
 daily habit cf observing and thinking with philosophic pre- 
 
112 JUDICIAL AND PHILOSOPHICAL [PAET I. 
 
 cision ; not of men with whom physical privacy is almost a 
 necessary condition of mental action, and who are often 
 constitutionally susceptible of disturbance from external 
 causes ; but of men taken from the mass of the people, 
 accustomed to meet and mingle in promiscuous assemblages, 
 and, though sufficiently qualified in point of intelligence, yet 
 largely governed by their moral sympathies : — of men strongly 
 actuated by natural curiosity to hear the details of occur- 
 rences which have agitated a whole community ; and whose 
 personal interest, therefore, in the subject of inquiry, even un- 
 aided by the consciousness of a sworn public duty, is power- 
 ful enough to overcome and neutralize the effect of what 
 might, with others, operate as disturbing causes. Indeed, 
 the circumstances before alluded to, and which would appear 
 so unfavorable to accurate inquiry and reflection, in other 
 points of view, seem to have a positively favorable effect, in 
 concentrating the juror's attention upon his subject, and in 
 impressing upon his mind the facts upon which he is to de- 
 cide. 
 
 Fifthly. The peculiar physical constraint under which the 
 juror is obliged to investigate, is practically found to be 
 rather an aid than an impediment to the proper discharge of 
 his duty. It has, indeed, an effect quite analogous to that 
 of seclusion in the study of speculative subjects. The policy 
 of the law, (which, in this respect, obviously coincides with 
 the requirements of reason and justice,) demands that the 
 juror, while engaged in the important business confided to 
 him, shall be kept, as far as possible, from the influence of 
 any external circumstances which might divide, or even 
 divert his attention, or serve to give a direction to his verdict. 
 He is to inquire of nothing but the single case before him, 
 and he is to know nothing of that, but through the single 
 channel of the evidence. And, in order to accomplish these 
 desirable ends, the law adopts the very effectual means of 
 separating his person, for the time, from the mass of his 
 
CHAP. IV.] INVESTIGATION COMPARED. 113 
 
 feUows, and of taking him, in short, into its own peculiar 
 keeping. Thus, although the juror observes and inyestigates 
 in public, he does so under circumstances of isolation almost 
 as complete^jas any to which the philosophical inquirer ever 
 subjects himself. 
 
 Lastly. The circumstance of limitation, in point of time, 
 though apparently calculated to interfere seriously with that 
 deliberation which should always distinguish judicial inquiry, 
 arises necessarily out of the nature of the inquiry itself, as a 
 practical duty affecting the interests, comfort and convenience 
 of numbers. Trial, although the ordinary and proper busi- 
 ness of courts, is only the occasional and temporary business 
 of those who assume the characters of jurors and witnesses. 
 To them, it is emphatically an interruption of business, — of 
 the daily and often necessary pursuits of life ; always inter- 
 fering with their convenience, and sometimes seriously 
 abridging their personal freedom. It is a great public duty, 
 overbearing for the time all other human duties, except those 
 of the most sacred kind. Hence it is desirable that these 
 irksome and afflictive restraints should be made as short in 
 their duration as possible. Indeed, so far as jurors are con- 
 cerned, the powers of human endurance themselves neces- 
 sarily fix a limit to the length of inquiry. Exhaustion 
 beyond a certain point would unfit them for duty, and thus 
 defeat or endanger the whole object of the trial. And this 
 is a state of things utterly without remedy. The philosophic 
 inquirer, when wearied by labor, may refresh himself by a 
 long and indefinite interval of rest. His facts are registered 
 and placed beyond the risk of loss, and even if they were 
 not, decision is, with him, a purely voltintary matter. But 
 in a criminal trial, two considerations imperatively forbid 
 any such disposition of time. The facts are registered 
 nowhere but in the juror's memory, and any considerable 
 interval of interruption would endanger their accurate pres- 
 ervation, and thus lead to disastrous results. And finally, 
 
 10* 
 
114 JUDICIAL AND PHILOSOPHICAL [PART I. 
 
 the condition of the accused himself, — a prisoner, under 
 treatment as a felon, with his dearest rights put in imminent 
 jeopardy, — demands uninterrupted inquiry, and the speediest 
 possible decision, consistent with the attainment of truth. 
 
 Thus, on the whole, it is seen that the pfocess of judicial 
 inquiry after truth, especially by means of circumstantial 
 evidence of the presumptive class, when compared witli 
 philosophical researches of a certain kind, presents, with 
 striking points of analogy, equally striking points of con- 
 trast. It is seen, also, that the disadvantages which appear 
 to exist on the side of the former, are compensated, in a 
 material degree, and so far as the subject itself allows, by 
 the positive provisions of the law. To a superficial observer, 
 there would appear to be little of philosophy in the aspect 
 and arrangements of an ordinaiy criminal trial : — twelve 
 plain men, applying their common sense, in the natural inter- 
 pretation of familiar facts, with the view of drawing a single 
 proposed conclusion. But profound wisdom often lies con- 
 cealed under the most unpretending esterior. It has been 
 already sufficiently shown, that these plain men cannot 
 effectually discharge the apparently simple duty confided to 
 them, without (however unconsciously or inartiflciaUy,) ap- 
 plying principles, and performing processes, which lie at the 
 foundation of all philosophical knowledge. And so it is 
 with the external arrangements of the trial, considered in 
 relation to their effects. And thus it will be found that the 
 law, in adapting the only practicable mode of inquiry to the 
 important end it contemplates, and in converting apparently 
 unfavorable circumstances into positive aids to investigation, 
 has acted in the spirit of the soundest philosophy. 
 
 The great object of judicial inquiry into crime, in common 
 with research in any branch of knowledge, we have seen to 
 be, the discovery of truth : and this object is equally attained 
 by the conviction of the guilty, and the acquittal of the inno- 
 cent. But the truth, thus arrived at, is, as we have further 
 
CHAP. IV.J INVESTIGATION COMPARED. 115 
 
 seen, not absolute but contingent; that is, it is liable to 
 certain possibilities of error, arising either in the process of 
 acquiring the necessary facts, or in that of deducing a con- 
 clusion from them. In this too, it has a quality in common 
 with the truth attained even iu philosophy, — a quality from 
 which it can never be wholly freed. But the results arrived 
 at in criminal trials, and embodied in the shape of criminal 
 verdicts, are distinguished from all other human conclusions 
 by their immensely practical character and consequences. 
 Their effect is, not to settle abstract principles, nor to aid in 
 establishing general laws, but to dispose of human rights, 
 and that, often, irretrievably. Hence there is actual dan- 
 ger attending error in these cases,, which gives to the possi- 
 bilities above described, great prominence and importance : — 
 the danger of reversing the true results of inquiry, of ac- 
 quitting the guilty and convicting the innocent. The latter 
 of these contingencies involves consequences so repulsive and 
 intolerable to humanity, no less than to justice, as to give it 
 an immense preponderance over the former ; so that, in any 
 case, the danger (in any serious sense of the term,) may be 
 said always to lie on the side of conviction. This, indeed, 
 is the view of the law itself, and hence the precautions it 
 has taken to prevent its occurrence. It provides that convic- 
 tion shall always be made to turn, not on any niceties of 
 observation or deduction respecting particular facts, nor on 
 any elaborate balancings of conflicting probabilities; but 
 upon broad, practical, convincing views of the case, derived 
 from the whole body of facts proved, taken together. It 
 does not allow the contemplation of error, as a merely pos- 
 sible result, to interfere with the progress of investigation, 
 nor to shake the firmness of the juror in the discharge of his 
 office ; neither does it exclude possibilities entirely from his 
 view. But, having provided that the desired conclusion 
 shaU, in the first instance, be made up on considerations of 
 reasonable probability, it admits, and indeed requires, that 
 
116 CIRCUMSTANTIAL EVIDENCE [PART I. 
 
 possibilities shall be taken into account, and actually applied 
 as final tests of its correctness. Above all, it provides a 
 most desirable relief for humane and conscientious minds, 
 intent on the discharge of a great public duty, but oppressed 
 by perplexities which cannot be readily escaped, by demand- 
 ing that, in cases of reasonable doubt, no verdict shall be 
 rendered but a verdict of acquittal. 
 
 In treating of circumstantial evidence, as a means of judi- 
 cial inquiry, any method aiming at comprehensiveness would 
 seem to require the consideration, first, of the materials of 
 which such evidence is composed ; and, secondly, of the 
 principles which regulate its application. This twofold 
 division will therefore be prominently maintained in the 
 present work; and, in regard to both its branches, the sub- 
 ject will be considered with an exclusive reference to crimi- 
 nal jurisprudence. 
 
 It is in the character of a means of detecting and punish- 
 ing crime, that circumstantial evidence comes to assume its 
 greatest importance ; and it is in the same character that it 
 has been made the subject of much ingenious speculation and 
 earnest argument. The reasoning upon which it has been 
 condemned as a basis of decisions affecting human life, has 
 already been adverted to, (a) and will receive additional 
 notice hereafter. (6) But this reasoning, it may be here 
 observed, has been forcibly met by a single consideration of 
 the most practical and impressive kind, to wit, its actual 
 necessity to the proper administration of criminal justice. 
 Secrecy, — intentional withdrawal from human observation, 
 with the view and the constant effect of cutting off the 
 sources of direct evidence, — has already been shown to be a 
 characteristic of criminal action in all its stages ; (c) and 
 the inducement to this secrecy is generally found to increase 
 
 (a) See ante, p. 70. (4) See CUiapter V. (c) See ante, p. 68. 
 
CHAP. IV.J JUDICIALLY APPLIED. ^ 117 
 
 ■witla the enormity of the crime, and the severity of the pun- 
 ishment apprehended as its consequence, (o) Hence the 
 necessary resort to indirect evidence, the only description of 
 evidence left within human reach. The subject has been 
 placed in a clear light, by the observations of the judges of 
 the King's Bench, in the important case of Rex v. Bur- 
 delt. (6) " If no fact," said the Chief Justice in that case, 
 " could be ascertained by inference in a court of law, very 
 few oflFenders could be brought to punishment. In a great 
 portion of trials, as they occur in practice, no direct proof v 
 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 ingredients poured 
 into the cup." (c) The language of Mr. Justice Best, on 
 the same occasion, was still more emphatic. "Until it 
 pleases Providence," said that learned judge, "to give us 
 means beyond those our present faculties afford, of knowing 
 things done in secret, we must act on presumptive proof, or 
 leave the worst crimes unpunished." QcT) Opiaions to the 
 same effect, have been expressed by American judges, in 
 several important cases, (e) The necessity of employing 
 evidence of this kind, as an instrument of conviction, is, 
 
 (a) "Visible proofs," said Mr. Justice Buller, in the case of Rex t. Donel- 
 lan, (Warwick Spring Assizes, 17S1,) "must not be expected in works of 
 darkness." The very name given by the old common law to one of the highest 
 crimes in its catalogue, implied concealment, {murdrum.) And the earliest 
 writer on English crown law has graphically described the same offence by the 
 same characteristics : — homicidium, quod nuUo prsBSente, nuUo scieute, nullo 
 audiente, nullo vidente, cl&m perpetratur. Bract, lib. 3, c. 15, IT 1, fol. 134 b. 
 
 (A) 4 B. & Aid. 95. 
 
 (c) Abbott, C. J. (Lord Tenterden,) in Rex v. Surdett, 4 B. & Aid. 161. 
 
 (d) Best, J. in Rex v. Burdett, Id. 123. 
 
 (c) Story, J. in United States v. Gibert, 2 Sumner, 19, 27, 28. Living- 
 ston, J. in United States v. Jacobson, 2 City Hall Recorder, 143, 149, 152. 
 .Washington, J. in United States v. Johns, 1 Washington, C. C. 372. Shaw, 
 
118 THE OBJECT OF INQUIRY, [PAET I. 
 
 indeed, agreed on by all modem writers of authority who 
 have treated of it ; (a) even by those who have confined its 
 application within the narrowest bounds. (&) And, in fine, 
 the same necessity is most forcibly exemplified by the actual 
 practice of the courts, which constantly allow convictions to 
 take place by the sole aid of the light which such evidence 
 affords, (c) 
 
 The subject of the present chapter may be most conveni- 
 ently considered under the following heads : first, the object 
 of inquiry, or principal fact sought ; secondly, the facts con- 
 stituting the materials of the evidence, and intended as a 
 basis of inference ; thirdly, the process of inference or pre- 
 sumption from such facts, and by means of which the prin- 
 cipal fact is reached ; and fourthly, the character of the 
 inference, conclusion or verdict itself. 
 
 SECTION I. 
 
 The object of inquiry, or principal fact sought. 
 
 The object of inquiry, in all criminal cases, is simply to 
 determine which of the two suppositions, involved in the issue 
 of " guilty or not guilty," submitted to the jury, is, in fact, 
 the truth. The object, indeed, primarily is to establish the 
 affirmative supposition of g^iVi; innocence being left to be 
 
 C. J. in Commonwealth v. Webster, Bemis' Report, 462. Gibson, C. J, in 
 Commonwealth v. Harman, 6 Am. Law Journal, 123. Clayton, J, in McCann 
 V. The State, 13 Smedes & Marshall, 471, 489. 
 
 (a) 1 Stark. Evid. 23,479. 1 Phill. Evid. 437. Wills, Giro. Evid. 247. 
 Best on Pres. § 189. 1 East's P. C. c. 5, § 11. 2 Russell on Crimes, 727. 
 
 (6) Theory of Presumptive Proof, p. 56. 
 
 (c) " I apprehend," said Mr. Justice Bayley, in Rex v. Burdett, " that 
 
CHAP. IV.] OB PEINCIPAL PACT SOUGHT. 119 
 
 made out, either as a consequence of failure in tlie attempt 
 to convict, or in the way of defence distinctly set up and 
 adequately proved. The jury, it is true, always enter on the 
 inquiry under the presumption, which the law itself imposes, 
 that the accused is innocent ; and they are governed by the 
 same presumption throughout, until it is fairly overcome by 
 the force of the evidence submitted. But the proposition 
 actually presented to the court, the fact offered to bo proved 
 in the first instance, and with express view to which, the 
 accused is arraigned for trial, is that he is guilty. This is 
 otherwise termed " the fact sought," " the fact to be proved," 
 (^factum probandum,) or " the principal fact," (a) as dis- 
 tinguished from the facts presented in evidence ; sometimes 
 as " the hypothesis of guilt or delinquency," or " the affirm- 
 ative hypothesis ;" and sometimes simply, and by way of 
 eminence, as " the hypothesis of the case." 
 
 This principal fact is, in all cases, composed of two others ; 
 first, the fact that a crime has been committed ; and, sec- 
 ondly, the fact that the accused has been instrumental in its 
 commission. The former of these, technically known as 
 " the corpus delicti," (b) always constitutes the foundation 
 of the latter ; and both must be proved, otherwise no con- 
 more than one half of the persons convioted of crimes, are convicted on pre- 
 sumptive evidence." 4 B. & Aid. 95, 149. 
 
 The position that it is lawful to convict on circumstances "only, observes 
 the Scotch writer Hume, " is not only vouched by the wholcf scries of our 
 criminal records, but also is grounded in reason and necessity, and the law 
 and practice of all other civilized realms." Hume's Coram. Trial for Crimes, 
 vol. 2, c, 15, p. 237. In cases of prosecutions for divorce or damages, on the 
 ground of criminal conversation, courts and juries are constantly compelled to 
 act upon presumption ; direct proof being in its nature unattainable. See 
 Loveden v. Loveden, 2 Haggard's Cons. Rep. 1. Cadogan v. Cadogan, Id. 4, 
 note. 3 PhiU. Evid. (Cowen & HUl's notes,) Note 285. 
 
 (o) 3 Benth. Jud. Evid. 3. 
 
 (4) The term corpus delicti is taken from the civil law, and is usually ex- 
 plained to mean, " the substantial general fact of a crime having been com- 
 mitted." According to its literal signification, it is the body or substance of 
 the crime, as distinguished from the particular form given to it by its conuoc- 
 
120 THE PACTS SHOWN IN EVIDENCE, [PART I. 
 
 viction caa take place, (a) Until a corpus delicti be estab- 
 lished, there is, in fact, no proper subject before the jury. 
 The act complained of, may have no quality of legal guilt 
 whatever. It may have been exclusively the act of the 
 party who is the subject of it, or it may have been the result 
 of natural causes, or pure accident. The article charged to 
 have been stolen, may have been either lost or mislaid ; the 
 person alleged to have been murdered, may have either died 
 by his own hand, or from the effect of sudden illness, or 
 casualty ; in either of which cases, judicial procedure against 
 another person, as the criminal cause of the disappearance 
 or death, would be manifestly out of place. But when the 
 character of a crime has been satisfactorily given to a trans- 
 action or occurrence, a foundation is effectually laid for the 
 next great step in the process of inquiry, — the tracing out 
 of its author. 
 
 SECTION II. 
 
 Tlie facts proved, constituting the materials of the evi- 
 dence, and basis of inference or presumption. 
 
 The object of the trial, or principal fact sought, being to 
 be reached by the process of inference or presumption, the 
 first thing to be considered is the basis of such presumption. 
 " There can be no presumption, in the nature of evidence, 
 
 tion with the accused. Sometimes it has been translated " the subject of the 
 crime," or its visible effect ; such as a body killed or house burned, or their 
 remains : corpus being used in its ordinary sense of a material substance. 
 See the argument on the Trial of Captain Green and his crew, 14 Howell's 
 Stat(S Trials, 1229, 1230. 
 
 (a) See Julius Clarus, Sententlarum, lib. 5, qu. 4. 
 
CHAP. IV.] OB BASIS OP INFERENCE. 121 
 
 in any case," said Lord Mansfield in the case of GoodtUle 
 dem. Brydges v. Duke of Chandos, {a) " without something 
 from whence to make it, some ground to found the presump- 
 tion upon." This foundation always ■ consists oi the fads 
 proved in the case, aad constituting the materials of the 
 evidence. 
 
 These facts are sometimes termed, from their relation and 
 subordination to the principal fact, minor facts ; (6) and 
 from their office or effect, evidentiary or probative facts, (c) 
 They are, in other words, the circumstances from which the 
 evidence they compose derives its most familiar name, (rf) 
 They are, as has already been observed, the constituent 
 parts or elements of a past transaction, into which it is 
 proposed to inquire, and which it is the first object of 
 inquiry to revive, in order to consider. Hence, the greater 
 the number that are truly presented, the greater the 
 probability that the case made out by combining them, will 
 
 (a) 2 Burr. 1065. 
 
 (6) Wais, Cire. Evid. 27. 
 
 (c) See ante, p. 3. And see 1 Benth. Jud. Evid. 18, note. 
 
 (rf) Pains have sometimes been taken to distinguish between a fact and a 
 circumstance ; the latter being defined to be ." a minor fact." Theory of 
 Pres. Proof, p. 29. Wills, Giro. Evid. 27. As expressive of the materials of 
 evidence, the terms seem to be entirely convertible. Hence they are constantly 
 used in connection, as in the expressions, " facts and circumstances," and 
 "facts or circumstances.". As applied, however, to the ultimate end of in- 
 quiry, " fact " is the exclusively proper term. The term " circumstance " 
 always implies relation, which " fact" does not : a circumstance is a relative 
 fact. " Any fact," observes Mr. Benlham, " may be n. circumstance with 
 reference to any other fact." 1 Jud. Evid. 42, note. See Id. 142. Taking 
 the radical import of the word, circumstances are facts standing around, sur- 
 rounding or accompanying another fact, (see ante, p. 8,) and giving to it .i 
 certain determinate character or quality. Hence, they are very expressively 
 termed, in Scotch law, " qualifications." See 11 Howell's State Trials, 1388. 
 14 Id. 1237, 1245, 1246, et passim. But the most significant term is that of 
 the Roman law, — indicia, which expresses their office of indicating or pointing 
 to the fa«t sought. Cod. 3, 32, 19. Id. 4, 19, 25. This has been translated 
 "indications," and in Scotch law, "tokens ; " and has been retained in 
 French law, in the word indice. Best on Pres. § 11, note (/). 
 
122 THE PACTS SHOWN IN EVIDENCE, [PAET I. 
 
 be identical with tlie case as it actually occurred, (a) Oc- 
 casionally, they are few in number, and eren two or three 
 circumstances have sometimes been held to be a sufficient 
 basis for an inference of guilt. But circumstantial evidence 
 is more commonly found to consist of a variety of facts, 
 capable of presenting every variety of modification and 
 combination : often running into great minuteness of detail — 
 a quality which the term " circumstantial," itself, is, even 
 in ordinary language, constantly used to express. When 
 arranged in a certain order, and combined by means of 
 proper connections, they are frequently said to constitute 
 a chain of evidence. (6) 
 
 Crime, as it is regarded and punished by law, is an out- 
 ward act, directly affecting the rights of another. A crime, 
 in the strictest sense, is a single, voluntary, injurious act 
 against law, committed under certain circumstances of time 
 place and manner. But considered with reference to its 
 intrinsic character, and as a subject of investigation, the 
 term " crime " presents a much more complex idea. The 
 criminal act, which alone the law regards and punishes, is 
 but one of a series of mental and outward acts, constituting 
 a course of conduct ;_ beginning at an antecedent point, some- 
 times quite remote, when the idea of crime is first presented 
 \ 
 
 (ff) 1 Stark. Evid. 503. 
 
 (A) The common figurative term " chain" very, aptly and adequately ex- 
 presses the following ideas, which are inseparable from any correct idea of cir- 
 cumstantial evidence; first, connection or union of separate elements or links 
 composing one body; secondly, series, — one fact succeeding another, (as in a 
 line of links,) in a certain order; thirdly, dependence, — one fact resting or de- 
 pending upon another, as a result of the preceding. This quality of depend- 
 ence, it should be observed, is not to be confounded with another species of de- 
 pendence, which will be hereafter explained, arising out of the mode of proof ; 
 and which is regarded as an imperfection in a body of evidence. 
 
 What is called a chain of circumstances, is very often found to be composed 
 of a variety of minor or subordinate chains, each connecting the accused with 
 some leading evidentiary fact. More will be said on these subjects under a 
 future head. 
 
CHAP. IV.J OR BASIS OP INFERENCE. 123 
 
 to the mind, or the first criminal inclination is entertained ; 
 and ending with the last act of the criminal which can be 
 made the subject of evidence. All these acts are connected 
 together by the order of their succession, by their immediate 
 relations to each other, and by their common and constant 
 reference, direct or indirect, to the principal act, or crime 
 itself. And as the object of the criminal agent is usually 
 threefold, — ^to prepare for the crime, to commit it, and to 
 escape from its legal consequences, the acts themselves may 
 be conveniently classed under a corresponding threefold 
 division of precedent, concomitant and subsequent circum- 
 Etances. (a) 
 
 It may serve to illustrate the course which criminal action, 
 in this more extended view of it, is usually found to take, if 
 we consider these acts in somewhat of detail, observing their 
 historical order, as they may be supposed to have existed in 
 a given case ; abundant examples and proofs of every one of 
 them being furnished by the most authoritative records of 
 actual trials. Let it then be supposed that an adequate 
 motive has been awakened in the miad of an individual, to 
 commit the crime of deliberate murder ; and that, under its 
 influence, a settled purpose has been formed to take the life 
 of another, either for the gratification of revenge, or with 
 the view of gain. The first direct act towards the accom- 
 plishment of this purpose, and the foundation, indeed, of all 
 subsequent action, is the ascertainment of the possibility and 
 means of committing the crime. This settled, the criminal's 
 plan is next arranged. (6) The requisite instrument of 
 
 (o) A prominent use will be made of this division in the next part of this 
 work. See Part II. Chap. I. Sect. HI. XIH. SVI. 
 
 (6) The example here given is that of a crime deliberately planned, upon a, 
 settled purpose, and in which the action of the criminal goes on slowly, step 
 by step, from its commencement to its consummation. In many cases, however, 
 the action is much more rapid, sometimes actually precipitate ; the existence 
 of a criminal motive and inclination being immediately followed by the forma- 
 tion of a corresponding purpose, and that, again, instantly carried into exeou 
 
124 THE FACTS SHOWN IN EVIDENCE, [PART I. 
 
 destiTiction is next sought for, selected or fashioned, pre- 
 pared and secreted for use. The preparations being com- 
 plete, the criminal either awaits his opportunity, or creates 
 it by his own act. The victim being within reach, the feloni- 
 ous assault is finally made, and the crime itself actually per- 
 petrated. . This done, the whole object of subsequent action 
 is to avoid the effect of that which has preceded, — to escape 
 the consequences' which are now known to be impending. 
 If time and means be allowed, the murderer proceeds to 
 destroy the subject of the crime itself ; he removes the body 
 of the victim from the scene, buries it in some lonely spot, 
 sinks it in some stream, or disposes of it by more elaborate 
 and revolting methods of concealment or destruction. He 
 carefully obliterates from neighboring objects, ■ as well as 
 from his own dress and person, the bloody witness of the 
 transaction. He hides or destroys the instrument of violence, 
 or removes from it the traces of its use. Sometimes he 
 forges facts, with a view to change the outward appearance 
 of the act, by giving it the semblance of suicide or casualty ; 
 or, leaving that untouched, to attract suspicion towards some 
 other person, and by that means to divert it from himself. 
 Sometimes, he invokes the aid of another crime, and arson 
 is employed to involve in one common destruction, the scene, 
 the subject, and the evidence of the murder. Lastly, if no 
 time be allowed for action of this kind, or if he be disturbed 
 before he has completed it, he flies precipitately, and hides 
 himself from view. 
 
 Of this whole course of criminal conduct, the usual ac- 
 companiment and characteristic is secrecy : a quality some- 
 times furnished by favoring circumstances, sometimes inten- 
 tionally and laboriously impressed upon the transaction, but 
 always relied on by the offender, as a means of preventing, 
 or, at least, of baffling or retarding the pursuit of justice. 
 
 tion ; as where an opportunity presents itself the moment the criminal impulse 
 J3 felt, and the instrument of violenoe is at hand. 
 
OHAP. IV.] OR BASIS OP INFERENCE. 125 
 
 Thus, as long as he keeps his motive and purpose within his 
 own breast, he knows they cannot be directly penetrated by 
 any human power, and he is careful to abstain from any out- 
 ward intimation that might reveal, even to a casual observer, 
 the existence of these moving springs of crime. His plan is 
 arranged with equal regard to the same object. The instru- 
 ment of violence, if of a description in the least calculated 
 to awaken suspicion, is stealthily procured, and industriously 
 kept out of view. But it* is around the actual perpetration 
 of the crime, that the veil is thrown with peculiar and re- 
 doubled care. He sets out on its commission under the 
 cover of darkness, or with person muffled and disguised ; he 
 finds his victim alone, or buried in sleep, or watches for Mm 
 at some solitary place ; and there, with no human eye to 
 witness, suddenly dispatches him. From this moment, the 
 motive to secrecy acquires additional force. What before 
 was a means to a desired end, is now an absolute necessity 
 of existence. The murderer feels himself to be such, and 
 knows that the ministers of justice will soon be on his track. 
 Some of his precautions to baffle or elude them, have just 
 been enumerated. Hencef6rth, in short, the whole object of 
 his life is concealment, either of his crime, or of his own 
 person. To attain this, he will make any sacrifice. To 
 hide the body of the slain, he will, though utterly unused to 
 manual labor, toil for hours at ithe most revolting drudgery, 
 denying himself rest and food. To conceal himself, he will 
 undergo almost any amount of personal suffering. Sup- 
 posing, however, this great object to be frustrated, and that 
 he falls at last into the hands of his pursuers, — even in the 
 actual grasp of the law, he does not lose sight of his deter- 
 mined policy. He assumes the air, the demeanor, and the 
 language of innocence ; resolutely and perseveringly repels 
 the charge of guilt ; or wraps himself up in impenetrable 
 silence. 
 But these precautions, though ever so elaborately con- 
 
126 THE PACTS SHOWN IN EVIDENCE, [PAET I. 
 
 trived, and ever so diligently adhered to, are not always, — 
 we might rather say, are rarely, — entirely successful ; simply 
 because the subjects of them cannot, in their nature, be 
 brought wholly under human control, or moulded to ' accord 
 with human purposes. It is in the nature of acts like those 
 which have just been mentioned, in common with facts- in 
 general, that they are surrounded on all sides by those inci- 
 dents and accompaniments known as- circumstances ; thtj 
 connections with which, (more or less obvious in themselves) 
 sometimes run to great extent, involving a variety of minute 
 particulars, wholly beyond human power or foresight to pre- 
 vent, suppress or destroy. Along the whole course of crim- 
 inal action, such as it has been described, these faithful 
 indicia of human agency are found, pointing immediately to 
 the subordinate acts with -which they have been directly con- 
 nected, and all often bearing, without exception, though 
 from different points and distances, in one common direction, 
 towards the principal or central act, — the crime itself, (a) 
 
 The character and ofBce of these indicatory circumstances 
 may be most aptly illustrated, by taking them in their his- 
 torical order, which is the order of their actual existence 
 and occurrence. The motive of revenge or gain could not, 
 in itself, and as^a mere mental impulse, be known or directly 
 reached, even by the most strenuous efforts for the purpose. 
 But it had its origin in certain relations between the parties, 
 which relations are perfectly known to others ; and through 
 the medium of these circumstances, the motive stands re- 
 vealed, sometimes with all the clearness of confession. 
 
 (a) " Happy is it for tlie interests of sooiety," observes Mr. Starlde, 
 "-that forcible injuries can seldom be perpetrated, without leaving many and 
 plain, vestiges by which the guilty agent may be traced and detected. In-. 
 stances of this nature, where apparently slight and unexpected oiroumstanoea 
 have led to the detection of offenders, are familiar to all who are concerned in 
 the practical administration of justice." 1 Stark Evid. 485. And see the 
 observations of Shaw, C. J. in Commonweallh v. l^tbsier', Bemis' Report, 462 
 463. 
 
CHAP, IV.] OR BASIS OP INFERENCE. 127 
 
 Again, tlie unlawful purpose may have been, in general, suc- 
 cessfully concealed. But in an unguarded moment, or under 
 the pressure of intense desire or hate, an expression or a 
 word is dropped in another's hearing, disclosing effectually 
 the feeling which prompted it. So, notwithstanding the care 
 with which the intended instrument of destruction may have 
 been procured, — perhaps from a distance, and by a circuitous 
 course, — ^it is only in cases where it has been stolen or fabri- 
 cated by the criminal alone, that it is procured without the 
 agency or aid of others, in noway parties to the transaction. 
 The gunsmith who sold the pistol, and the apothecary of 
 whom the poison was purchased, always furnish the means 
 of tracing the instrument to the hand that used it. 
 
 It is to the concealment of the crime itself, as before observ- 
 ed, that the most strenuous efforts of the criminal are address- 
 ed ; and these efforts are often successful. Traces of guilt 
 may be distinctly visible, before and after ; but the important 
 space occupied by the crime itself, and where these traces 
 would otherwise be found to unite, presents to the view a 
 perfect blank. But in other and numerous cases, though the 
 acts themselves, whichi»immediately compose the crime, may 
 be effectually hidden in darkness by their author, no means 
 of precaution avail to prevent or suppress the circumstances 
 which attend them. Indeed, as has been well observed, 
 " the very measures which he adopts for his security, not 
 unfrequently turn out to be the most cogent arguments of 
 guilt." (a) Though he may have set out for the scene of 
 crime, under the cover of midnight, his departure is ob- 
 served. He is seen on his way, and his direction is noticed. 
 His disguise fails to conceal some striking personal peculi- 
 arity, by which he is identified. The darkness itself is 
 lighted up by a transientflash, revealing his form or features. 
 Supposing him arrived at the scene of crime, another sense, 
 
 (o) 1 Stark. Evid. 480. 
 
128 THE PACTS SHOWN IN EVIDENCE, [PART T 
 
 more subtle and far-reaching than sight, is aroused against 
 him. The noise of his forcible entry, the cry of alarm, the 
 report of the murderous -weapon, the scream of mortal 
 agony, penetrate the distant ear, proclaiming the commission 
 of a crime. In the hurry of escape, the instrument of death 
 is dropped ; some article of clothing is left behind ; the 
 bloody hands leave traces on every thing they touch. Snow 
 has fallen, or the ground has been softened by rain ; and on 
 its surface, the criminal's footsteps are faithfully impressed, 
 betraying his presence, indicating the direction of his move- 
 ments, and often affording the first material clue to his arrest. 
 
 The crime is discovered, and the perpetrator sought, and 
 now additional circumstances accumulate. Finding himself 
 suspected, or actually pursued, he flies. Overtaken, the 
 emotions he feels, refuse to be disguised or suppressed, and 
 exhibit themselves openly in his countenance and demeanour. 
 His person is examined, and found stained with blood ; or, 
 if he has succeeded in removing this, similar stains are dis- 
 covered on his dress ; some, possibly, accompanied by visible 
 marks of attempts to erase or wash them out. His dwelling 
 is searched, and, in some obscure noqjc, is found hidden an 
 article of clothing bearing plainer tokens of the recent 
 slaughter, or stained with soil peculiar to the scene of crime. 
 A pistol is found concealed, and with marks of having been 
 lately discharged. The bullet taken from the mortal wound, 
 is applied to the barrel, and ascertained to fit it accurately. 
 A fragment of paper, taken from the prisoner's pocket, is 
 observed to correspond with another composing the wadding 
 of the charge ; and, on being brought together, the torn 
 edges of the one, are found to fit those of the other with 
 the minutest accuracy. Lastly, the fruits of the crime, 
 themselves, are discovered ; the watch, plate or jewels, 
 known to have belonged to the deceased, are found in the 
 prisoner's possession. 
 
 It is by circumstances like these, that light is shed along 
 
CHAP. IT.] OR BASIS OP IXFERENCE. 129 
 
 a ■whole course of criminal conduct ; indicating its object 
 and direction, revealing the principal acts of which it is 
 composed, through the obscurity ineffectually thrown around 
 them ; and pointing out the perpetrator himself, by connec- 
 tions and indications as conclusive as though the facts had 
 been directly proved by actual eye-witnesses. It is of such 
 as tl^pse, presented in every variety of modification and 
 combination, according to the crime, the parties, and the 
 nature of the case, that circumstantial evidence, in the 
 broadest sense of the term, is found to be composed. 
 
 These elementary facts or circumstances will now be con- 
 sidered, under the several heads of their sources, divisions, 
 varieties, and medium of proof. 
 
 The general sources of facts or circumstances, which may 
 be used as materials of evidence, are found in the constitu- 
 tion and, conduct of man, including his relations to his 
 fellow-men, and to the external world ; in the course of 
 external nature ; and in external or material objects and 
 appearances, as they become the subjects, instruments or 
 auxiliaries of human action. 
 
 The facts themselves have been classed under various 
 divisions, usually of a twofold character. 
 
 The first division of facts has reference to their source 
 and seat. " Considered in respect of its source," observes 
 Mr. Bentham, " all evidence flows either fi-om persons or 
 from things ; all evidentiary facts, as well as all principal 
 facts, are afforded either by persons or things." (a) This 
 division seems to be expressed with sufficient accuracy, for 
 practical purposes, by the terms " physical " and " mor- 
 al " ; (6) the former having their source and seat in inani- 
 
 (o) 3 Jud. ETid. ll.note. 
 
 (A) " Real " and " personal " would be more literaljy expressive, were it 
 not for the equivocal sense of the former word. And these are the terms actu- 
 ally adopted by Mr. Bentham, in his division of evidence. See infra. The 
 terms "mechanical" and " moral" are used by Mr. Wills. Circ. Evid. 35, 36 
 
130 THE PACTS SHOWN IN EVIDENCE, [PAKT I. 
 
 mate objects ; the latter iu moral persons. The common 
 ultimate source of all facts, (considered as materials of judi- 
 cial evidence,) is, doubtless, human will and agency, ope- 
 rating by means or with the aid of external objects and 
 phenomena, or subject to their influences. A fall of snow, 
 the light of the moon, or of a street lamp, — often very im- 
 portant circumstances in the proof of a crime, — aae of 
 course, in their origin and nature, wholly independent of the 
 conduct of the criminal ; but their connection, as circum- 
 stances of the case, arises entirely from it. 
 
 This division of physical and moral, as founded on the 
 corresponding division of things and persons, is manifestly 
 not philosophically precise, as it leaves certain properties of 
 both descriptions of facts, in common. Persons, being com- 
 posed of matter, as well as spirit, are, in an important point 
 of view, physical objects ; and, in that respect, belong to 
 the class of things, (a) The requisite accuracy of division 
 has been attempted to be reached by the employment of the 
 terms "physical" and "psychological," which is the division 
 adopted by two writers of eminence, (i) A physical fact is 
 defined to be " a fact considered to have its seat in some in- 
 animate being ; or, if in an animate being, by virtue, not of 
 the qualities by which it is constituted animate, but of those 
 which it has in common with the class of inanimate 
 beings." (f) A. psychological fact is " a fact considered to 
 have its seat in some animate being ; and that by virtue of 
 the qualities by which it is constituted animate." (ji) Physi- 
 cal facts are, in other words, objects of sense ; such as the 
 sound of a pistol-shot ; a man running ; impressions of 
 human feet on the ground. Psychological facts are those 
 
 («) 3 Benth. Jud. Evid. 11, note. 
 
 (6) 1 Benth. Jud. Evid. 45—47. Best on Pres. § 18. 
 
 (c) 1 Benth. Jud. Evid. 45. 
 
 (d) Id. 45, 46. 
 
CHAP. IV.] OR BASIS OP INFERENCE. 131 
 
 which can only be perceived mentally ; such as the motive 
 by which a person is actuated, (a) 
 
 Another important division of facts, as materials of evi- 
 dence, having reference to their origin and effect, is into 
 genuine and fabricated; the latter being also sometimes 
 termed simulated and fraudulent. A genuine fact is one 
 which, when accurately observed, conveys a true impression 
 as to its cause, or in other words, indicates truly, on its 
 face, the person of whose action it has formed a part, or 
 accompaniment, or out of whose action it has originated. 
 A fabricated fact is one which conveys, and is intended to 
 convey a false impression as to its cause, or indicates a 
 wrong person as its origin. The possession of stolen prop- 
 erty by the real thief, is a genuine fact ; the possession of 
 stolen property by an innocent individual, to whose person or 
 premises it has been conveyed by the thief himself, is a 
 fabricated or simulated fact. 
 
 Fabrication of facts, or of the evidence of facts, is the 
 giving an outward appearance to things, which leads to a 
 wrong conclusion. (&) This deceit is, in a few rare instan- 
 ces, the pure work of nature or accident ; but, in the vast 
 majority of cases, it is the work of human artifice, (c) In 
 these, it is very significantly expressed by the term com- 
 monly applied to it,— forgery, (cf) 
 
 Forgery of facts, as the materials of evidence, is usually 
 the act of the real criminal ; its object being to conceal or 
 destroy the effect of genuine facts which, otherwise, would 
 serve to betray him. Occasionally, it is resorted to by inno- 
 cent persons, under the influence of a natural anxiety to 
 
 (a) See Best oa Pres § 13. •Physical facts are classed by Mr. Bentkam, 
 under the head of " real evidence ; " psychological facts, under that of " 2>er- 
 tonal evidence." 3 Jud. Evid. 11, note, 
 
 (A) 3 Benth. Jud. Evid. 49. 
 
 (e) Id. ibid. 
 
 (d) Id. 49, 50. Best on Pros. §§ 219, 220, et aeq. 
 
132 THK FACTS SHOWN IN EVIDENCE, [PART I, 
 
 escape the effect of facts of a criminative aspect, with which, 
 tliough without fault on their part, they have become closely 
 connected, (a) 
 
 The facts which are most frequently made the subjects of 
 this fraudulent or deceptive action, are those which have 
 just been described as physical facts, — ^inanimate objects, 
 which passively receive and retain the impressions put upon 
 them, or the appearance or position of which can be changed 
 at the will of man. With reference to these, forgery has 
 been well described as " an attempt to corrupt and pervert 
 the nature of things, and thus force them to speak false. Of 
 themselves, the things are silent ; or, if they speak, speak to 
 the inculpation of the defendant, [the crimiQal ;] by the 
 force he applies, a thing that was silent is made to depose 
 falsely ; a thing that was speaking against him is either 
 made to speak in his favor, or at least put to silence." (6) 
 In a large sense of the term, as used in contradistinction to 
 psychological, none hut physical facts can be the subjects of 
 forgery, (c) But there are facts coming under the denomi- 
 nation of moral, which can be simulated with perhaps the 
 greatest ease possible. A woman who has procured the 
 murder of her husband, and has had his body disposed of. 
 Bends out her servants before the crime is known, to inquire 
 after him at houses in the neighborhood, as though she be- 
 lieved him to be absent, and knew nothing of what had 
 taken place, (d) A woman who has administered poison to 
 
 (a) See the case of the uncle and niece, given by Lord Coke, and referred 
 to by almost every writer on oiroumstantial evidence. 3 Inst. o. 104, p. 232. 
 2 Hale's P. 0. 290. 1 Stark. Evid. 33. Best on Pres. §§ 149, 202. 
 
 (6) 3 Benth. Jud. Evid. 50. 
 
 (c) Id. 51. • 
 
 (of) Case of Mrs. Jlrden, convicted of the murder of her husband, A; D. 
 1551.; Burlie's Celebrated Trials, connected with the upper classes, 1. 5 
 London Legal Observer, 59. Trial of Bathsheba Spooner and others, for 
 murder, at Worcester, Mass. A. D. 1778 ; 2 Chandler's Criminal Trials, 3. 
 
CHAP. IV.] OR BASIS OF INFEEENCB. 13S 
 
 her husband, abandons herself, on his death, to apparently 
 inconsolable grief, (a) 
 
 Another division of evidentiary facts, is into criminative 
 and exculpatory ; having reference solely to their effect or 
 tendency to establish or disprove the principal fact sought. 
 Another is, into precedent, concomitant, and subsequent facts ; 
 expressing the natural order of their relation to the prin- 
 cipal fact. More will be said of these in a subsequent part 
 of this work, where a prominent use is intended to be made 
 of them. (6) 
 
 To enumerate, with completeness, the various descriptions 
 of facts which may come to constitute the materials of evi- 
 dence in criminal cases, would be obviously impracticable ; 
 since they are co-extensive with their general sources, al- 
 ready pointed out. An acute writer, speaking of evidence 
 in general, has observed that " there is no sort of fact 
 imaginable, to which it may not happen to serve as evidence, 
 with relation ±0 some principal fact." (c) From the results 
 of the most e^borate scientific research, down to matters so 
 familiar and trivial as scarcely to attract the attention of a 
 child, there is not a fact which can be made the subject of 
 human observation, or knowledge, but may come to be 
 placed before a jury. The whole field of physical science 
 may thus be laid under contribution, as an aid to judicial 
 inquiry, (rf) In cases of crime, science is constantly re- 
 sorted to, especially for the proof of a corpus delicti. Cases 
 of homicide, in particular, daily draw upon the stores of 
 medical and chemical knowledge. 
 
 But looking at facts and circumstances, as materials of 
 evidence, in a more ordinary light, they have been well de- 
 Co) Trial of Katharine JVairn and P. Ogilvie, 19 Howell's State Trials, 
 1235, 1284. 
 
 (6) See post. Part II. 
 
 (c) 1 Benth. Jud. Evid. 41. 
 
 (d) See 3 Id. 28. 
 
134 THE PACTS SHOWN IN EVIDENCE, [PART I. 
 
 scribed to be " as various as the modifications and combina- 
 tions of events in actual life." (a) An eloquent writer has 
 described their range in -the following expressive language. 
 " All the acts of the party, all things that explain or throw 
 light on those 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, pre- 
 tences and explanations ; his looks, his speech, his silence 
 where he was called to speak ; every thing which tends to 
 establish the connection between all these particulars ; every 
 circumstance, precedent, concomitant and subsequent, be- 
 come parts of circumstantial evidence." (6) It is only ne- 
 cessary to add that circumstances, intrinsically of the most 
 insignificant kind, but acquiring great temporary importance 
 from their close connection with crime, are not only con- 
 stantly presented in evidence before juries, but sometimes 
 give rise to prolonged inquiry and minute disjjussion. In a 
 late memorable American case, the particular mode of tying 
 a knot on a stake with a twine string, led to the examination 
 of numerous witnesses, and called out the expression of a 
 variety of opinions, (c) 
 
 The great medium through which the evidentiary facts or 
 circumstances which have just been considered, are made to 
 appear to the jury, or proved to their satisfaction, is the 
 testimony of witnesses under whose immediate observation 
 
 (a) Wills, Giro. Evid. 35. " There are, iu fact," observes Mr. Starkie, 
 " no existing relations, natural or artificial, no occurrences or incidents in the 
 course of nature, or dealings of society, which may not constitute the materials 
 of proof, and become ioiportant links in the chain of evidence." 1 Stark. 
 Evid. 486, 487. 
 
 (b) Burke's Works, vol. 2, p. 623 ; quoted in Wills Giro. Evid. 35. 
 
 (t) The State v. Avery, before the Supreme Court of Rhode Island, May, 
 1833. The string in question was one with which the deceased was found 
 hung in a stack-yard. See 2 Beck's Medical Jurisprudence, 197, 198 
 (10th ed.) 
 
CHAP, IV.] OB BASIS OP INFERENCE. 135 
 
 they took place, or to whose senses they immediately pre- 
 sented themselves. In these cases, the jury perceive and 
 know the facts only throng the stp.tements of the witnesses ; 
 the facts themselves, or, at least, such of them as bear the 
 transient character of events or occurrences, having irrevo- 
 cably passed away. It occasionally happens that some of 
 them, being intimately connected With or impressed upon 
 material objects of a permanent character, or actually having 
 their seat in such objects, have, by that means, been pre- 
 served in nearly or entirely their original form. Of this de- 
 scription are, in cases of homicide, the instrument with which 
 the mortal wound has been inflicted, articles of clothing 
 bearing visible marks of the crime, the box in which tho 
 dead body was concealed, portions even of the remains of 
 such body, and the like, (a) These objects are some- 
 times produced and exhibited in court, and viewed and 
 handled by the jury themselves. (&) But even in these 
 cases, there must be oral testimony to accompany and iden- 
 tify the objects produced. So, important facts are occa- 
 sionally established by means of written instruments, such 
 as letters, &c. ; but the connection of these with the transac- 
 tion must be made out in the same way. Thus it is, that 
 the sworn statements of witnesses take the place of the 
 original facts of the transaction, and represent them for all 
 the purposes of the pending investigation. It is, of course, 
 essential that they should represent them truly ; and in their 
 belief on this point, the jury are governed by the usual con- 
 siderations, in addition to that universal basis of credence 
 which is afforded by the presumption that the witnesses 
 speak the truth, until their character for veracity is legally 
 impeached. 
 
 We are thus brought to the most important consideration 
 connected with this stage of the inquiry ; namely, the proof 
 of the facts or circumstances which are to be used as means 
 
 (a) The People v. Colt, cited ante, p. 98, note (a). (A) Id. ibid. 
 
136 THE FACTS SHOWN IN EVIDENCE, [PART I. 
 
 of arriving at the principal fact sought. It is an invariable 
 rule that these facts, or such of them as may be necessary 
 to the conclusion in question, must be Sbctuallj proved, other- 
 wise no sufficient foundation can be laid for the process of 
 inference or presumption which is to follow, (a) The party 
 upon whom the burden of proof rests, is bound to prove 
 every single circumstance which is essential to the conclusion 
 in the same manner, and to the same extent, as if .the whole 
 issue had rested upon the proof of each individual and 
 essential circumstance. (6) But this rule, it will be ob- 
 served, is confined to facts necessary to the conclusion. " It 
 may, and often does happen," to use the words of an Ameri- 
 can judge, in a late memorable case, (c) " that, in making 
 out a case on circumstantial evidence, many facts are given 
 in evidence, not because they are necessary to the conclusion 
 sought to be proved, but to show that they are consistent 
 with it, and not repugnant, and go to rebut any contrary 
 presumption." If a fact of this latter description be at- 
 tempted to be proved, but the proof fails, " such failure," 
 in the words of the same learned judge, " would not pre- 
 vent the inference from other facts, if of themselves suffi- 
 cient to warrant it. The failure of such proof does not 
 destroy the chain of evidence ; it only fails to give it that 
 particular corroboration which such fact, if proved, might 
 afford." {d) 
 
 Proof, then, in the strict sense of the word, is, at this 
 stage of the trial, indispensable ; and its place cannot be 
 supplied by presumption. Thus, where the clothing of a 
 person who has been apprehended on a charge of murder, 
 or the floor or walls of an apartment in which that crime is 
 supposed to have been committed, are found to be stained or 
 
 (a) Shaw, C. J. in Commonwealth v. Webster, Bemis' Report, 464. 
 
 (S) 1 Stark. Evid. 502. 3 Phill. Evid. (Cowea & Hill's notes) 472, nota 238. 
 
 (c) Shaw, C. J. la Commonwealth v. Webster, ubi supra 
 
 (d) Id. ibid. 
 
CHAP. IT.] OR BASIS OF INPEREXCE. 137 
 
 spotted with a substance resembling blood, it cannot be pre- 
 sumed to be blood, but must be proved to be such by actual 
 examination ; (a) and this is effected by chemical and other 
 scientific tests, in the most satisfactory manner. (V) The 
 danger of relying upon mere appearances, in such cases, un- 
 supported by accompanying circumstances, is obvious. The 
 spots which rust imparts to an instrument of iron or steel, 
 like a hatchet or knife, subjected to the action of moisture, 
 are often of a color approaching that of blood ; and some- 
 times, to an ordinary observer, quite undistinguishable from 
 it. (c) The juices of certain plants and infusions of certain 
 dyes often communicate to the dress or person, stains oi a 
 blood-red color. There are, however, necessary exceptions 
 to this rule. Thus, where a body has been found bleeding 
 from a mortal wound, and a knife lying near, which, together 
 with the floor or ground, is covered with a substance resem- 
 bling blood ; and traces of the same appearance are dis- 
 covered, leading from the spot ; an examination, like that 
 which has been described, would be superfluous : the facts 
 which accompany it, in such close juxtaposition, sufficiently 
 determining the character of the appearance observed. 
 And if, in such a case, the traces leading from the body 
 were followed, until they reached a person in the act of 
 flight, whose clothing presented similar recent bloody ap- 
 pearances, a similar inquiry would doubtless be dispensed 
 with. Here, the facts in relation to the blood, are, it is 
 
 (a) Theory of Pres. Proof, 17. 
 
 (i) In the ease of Thi People v. Colt, (cited anU, p. 98, note (o) ) spots 
 were taken from the walls of a room, and portions of mitter from the eye of a 
 hatchet, and from the creases of a wooden floor, which, on being chemically 
 examined, were found to he blood ; and this, notwithstanding other substances 
 had been employed to disguise it. Where the quantity is too small for chemical 
 analysis, the microscope may be made use of ; and this was the test employed 
 in the case of Commonwealth v. Webiter. See Bemis' Keport of the trial, 
 90, and the note ihii. 
 
 (c) See Id. ibid. 
 
138 THE PACTS SHOWN IN EVIDENCE, [PAKT I. 
 
 true, in, the nature of inferences, but they are inferences of 
 the necessary kind, flowing from, and directly traceable to 
 the subject of the crime itself, which is actually before the 
 observer. 
 
 Again, a fact, in the nature of an inference, may itself be 
 taken as the basis of a new inference, (whether intermediate 
 or final,) provided the first inference have the required basis 
 of proved fact, (a) ' Thus, on an indictment for arson, proof 
 that property stolen from the house at the time it was burnt, 
 was, shortly afterwards, found concealed in the possession 
 of the prisoner, is presumptive evidence that he was con- 
 cerned in the arson, (b) Here the inference is, first, from 
 the finding of the stolen property, that it was stolen by the 
 prisoner ; and from this last fact, so inferred, the further 
 inference is that he was concerned in the burning of the 
 house from which it was stolen. But this should be sup- 
 ported by other evidence, (c) And the right to draw one 
 inference from another has, in some instances, been de- 
 nied, (fif) 
 
 In the proof, thus to be made of these evidentiary circum- 
 stances, the two great objects to be kept in view are com^- 
 pleteness and correctness. 
 
 1. It should be a leading object, to present as many of 
 
 («) Beit on Pres. § 187. 2 Evans' Pothier on Obi. 283. 
 
 (6) Best on Pres. § 187. 1 Greenl. Evid. § 34. Rex v. Rickmans, Win- 
 chester Summer Assizes, 1789, coram Buller, J. 2 East's P. C. 1035, In this 
 case, the proof of the prisoners having been present in the house burnt, and 
 implicated in the fact, was, that a bed and blankets were afterwards found in 
 their possession, which had been talien out of the house at the time it was fired, 
 and concealed by them from that time. Buller, J. doubted, at first, whether 
 such evidence of another felony could be admitted in support of this charge ; 
 but as it seemed to be all one act, although the prisoners came twice to the 
 house fired, which was adjoining to their own, he admitted this, amongst other 
 evidence. Id. ibid. 
 
 (c) See the last note. 
 
 (i) See Harl v. JVewland, 3 Hawks, 122, 123, 124 ; cited in 3 Phill Evid, 
 (Cowen & Hill's notes,) Note, 289. Theory of Pres. Proof, 37. 
 
CHAP. IV.] OR BASIS OF INFERENCE. X39 
 
 the facts of the case, not subject to exclusion on the grounds 
 of irrelevancy or inadmissibility, as may be practicable. It 
 is always desirable to present all the facts ; but this fre- 
 quently proves impracticable, in consequence, either of some 
 of them not having fallen under the notice of any observer, 
 or of some witness who may have observed them, having 
 died, or being otherwise inaccessible. As close an approxi- 
 mation to this completeness, as possible, should always be 
 the aim of the investigating tribunal, (a) " The more the 
 jury can see of the surrounding facts and circumstances," 
 observes a judicious writer, " the more correct their judg-^ 
 ment is likely to be. It is possible that some circumstances 
 may be misrepresented, or acted with a view to deceive, but 
 the whole context of circumstances cannot be fabricated ; 
 the false invention will have its boundaries, where it may be 
 compared with the truth ; and therefore, the more extensive 
 ,the view of the jury is of all the minute circumstances of 
 the transaction, the more likely will they be to arrive at a 
 true conclusion." {b) And, in another passage, the same 
 writer remarks that " a few circumstances may be consistent 
 with several solutions ; but the whole context of circum- 
 stances can consist with one hypothesis only ; and the wider 
 the range of circumstances is, the more certain will it be 
 that the hypothesis which consists with, and reconciles them 
 all, is the true one." (c) Indeed, where even fabricated or 
 simulated facts are shown to be such, the object for which 
 they were created being thus defeated, they often re-act with 
 great force against their authors, and in this way become, in 
 themselves, important circumstances to establish guilt, as 
 will be more fully shown under another head. 
 2. The next leading object to be kept in view, in present- 
 
 (o) As to the limits of inquiry in this respect, see the observations of Mr. 
 Justice Clayton in the case of McCann v. The State, 13 Smedes & Marshall, 
 471, 498, 
 
 (6) 1 Stark. Evid. 20, 21. 
 
 (c) Id. 502, 503. 
 
140 THE PACTS SHOWN IN EVIDENCE, [PART X. 
 
 ing the facts to the jury, is to present them correctly, that is, 
 as they actually occurred iu connection with the transaction. 
 
 The character of a fact may be misrepresented, by the wit- 
 ness testifying to it, either from mistake or design ; and, 
 again, mistake may have arisen either from the want of 
 adequate opportunity of observation, on his part, or from 
 want or weakness of the proper powers of perception and 
 recollection. Difficulties, from these sources, are constantly 
 encountered in trials upon direct, as well as indirect evi- 
 dence ; and the rules for avoiding or overcoming them are 
 sufficiently laid down in the standard works on evidence. 
 
 But, supposing the opportunity; faculties and fidelity of 
 the witness to be without objection, and the fact to be repre- 
 sented truly by him, as he observed it ; it may, nevertheless, 
 be a different fact from that which actually occurred, in con- 
 sequence of some change to which it has been subjected 
 before the observation was made. Changes of this kind 
 frequently happen to facts of the class already described as 
 physical or mechanical, consisting ot sensible appearances 
 having their seat in some material substance ; and this 
 remark is especially applicable to those indicia which are 
 discovered in the vicinity of a crime, immediately after it is 
 committed. Supposing a dead body to be found with marks 
 apparently of ■violence, it is of the very highest importance 
 that all the appearances, to the minutest particular, pre- 
 sented by the body, and objects in its vicinity, should be 
 immediately and accurately observed, with an express refer- 
 ence to reporting them in evidence, and that a faithful im- 
 pression, as it were, of the whole corpus delicti, or subject 
 of the crime, should be taken while its features are fresh, 
 and before they have undergone change, either from their 
 own perishable character, or from some extraneous act or 
 accident. An apparently trifling circumstance, — the posi- 
 tion of the body, the appearance of the wound, the distance 
 at which the instrument of death is found, — may serve to 
 
CHAP. IV.] OR BASIS OF INFERENCE. 141 
 
 determine what is always the first question in the case ; 
 namely, whether the death was occasioned by accident, 
 suicide, or the felonious act of another. It is so with traces 
 of footsteps on the ground, the whole value of which, as 
 indicia of crime, obviously depends upon early and minute 
 examination. In point of fact, however, there is usually an 
 interval between the discovery of crime, and the taking 
 exclusive cognizance of the case by public authority, in 
 which it becomes the subject of more or less indiscriminate 
 observation ; and it is at this stage that the identity or in- 
 tegrity of some of the minor facts becomes exposed to hazard, 
 from the causes which have just been mentioned. The first 
 observers, in cases like the one assumed, are often persons 
 (relatives or friends,) who are so exclusively impressed by 
 the event itself, as to overlook what, at the time, may natu- 
 rally be deemed insignificant matters ; to take no note of 
 them, or, at least, none that can be confidently recalled to 
 mind afterwards. The common attentions of humanity all 
 partake of this summary character. The first impulse is to 
 see what -relief can be afforded in the case. The body of 
 the sufferer is turned over, raised up, perhaps removed, the 
 blood carefully washed from the wound, &c. In this way, 
 important indications may, inadvertently, be wholly oblite- 
 rated. But, supposing the attention of one thus humanely 
 occupied, to be sufiiciently directed to the necessity of 
 observing and recollecting the minuter appearances of the 
 case, a similarly injurious effect upon the evidentiary facts 
 may be produced by the ofiScious action of one or more per- 
 sons, attracted to the spot by mere curiosity. The implement 
 of destruction is often first discovered by obseiwers of this 
 class ; it is handled with more or less of interest, — passed, 
 possibly, from hand to hand among several, — until, by this 
 very process, it is more or less deprived of the appearances 
 which give it its peculiar value as an instrument of evidence. 
 In this way, not only may genuine facts be destroyed and 
 
142 THE PACTS SHOWN IN EVIDENCE, [PAKT I. 
 
 lost, but spurious facts may be actually, though urwiitention- 
 ^Uy and unconsciously, fabricated, and interpolated into the 
 case, to the obvious deception or confusion of those who 
 come to observe afterwards, and who may be the witnesses 
 actually called upon to testify. (») 
 
 But supposing the facts to have undergone no change, and 
 to be accurately observed and faithfully reported in all re- 
 spects ; it may be that they belong to that class of simulated 
 facts, already described, which originate in the act of the 
 criminal himself; being contrived with an express view to 
 deceive and mislead an observer. The requisite means of 
 detection, in these cases, is sometimes furnished simply by a 
 minute examination of the object or ai^pearance fabricated, 
 or, where these fail, by the accompanying circumstances of 
 the case. (&) Thus, where a person has been shot by an- 
 other, and the murderer, in order to give to the case the 
 appearance of suicide, places the pistol of the deceased 
 near his body ; if the ball taken from the wound be found, 
 on examination, to be too large to have been discharged 
 from that pistol, the fabrication of the circumstance becomes 
 
 (a) The marks of the recent discharge of a fire-arm may be removed, to a 
 greater or less extent, by frequent and indiscriminate handling and examina- 
 tion. Minute stains of blood upon a hatchet, or other instrument, would, if 
 recent, be obliterated in the same way ; and a similar change would be pro- 
 duced in the appearance of a cord or string, by similar causes. In the case of 
 The State v. Avery, {ante, p. 98, note (a) ) so important an article as a por- 
 tion of the string with which the deceased was found hung to a stake^ was left 
 in the possession of a witness, who cut off and gave away a portion of it. Testi- 
 mony of W. Durfee. In the case of The People v. Robinson, (New York 
 Oyer and Terminer, before Edwards, Circuit Judge, June, 1836,) a hatchet 
 with a string attached, found in the yard of a house in which a murder had 
 been conimitted, passed through a number of hands, before it came to be ex- 
 amined officially. Testimony of JS. Eldredge, D. Brink, and others. And in 
 the late case of Commonwealth y. Webster, an apartment in which discoveries 
 of the greatest importance were made, was, even in the presence of the coroner, 
 filled with persons, " every one," according to the testimony of that officer, 
 " acting in his own way." Bemis' Keport, 59. 
 
 (6) 1 Stark. Evid. 503. 
 
CHAP. IV.] OB BASIS OP INFERENCE. 143 
 
 apparent, {a) In reference to this object, tlie importance 
 of presenting as many relevant facts in evidence as possible, 
 Decomes doubly apparent. I'or no matter how skilfully the 
 fabricated fact may have been contrived, or how natural the 
 inference which may appear to flow from it, in itself con- 
 sidered, there is always a diflBeulty, if not an impossibility, 
 in so incorporating it with the genuine facts of the case, as 
 to avoid the inconsistencies which must always exist between 
 truth and falsehood. (6) The means of detecting these 
 inconsistencies are, of course, increased with the number of 
 the genuine facts ascertained. Minute circumstances often 
 throw important light on these inquiries ; it being found, by 
 observation, that the facts selected for fabrication are usually 
 those of the prominent or leading kind, (c) 
 
 The order in which the facts are proved is another con- 
 sideration of some importance. As actually laid before 
 juries, the. evidence usually presents the facts in the order in 
 which they were discovered^ beginning with those con- 
 stituting the corpus delicti, and the facts immediately con- 
 neoted with it, as indicating the perpetrator, and terminating 
 with the remoter facts, both precedent and subsequent, as 
 serving to increase and complete the effect of the former. 
 In examining and combining the facts at a later stage of the 
 inquiry, a different order may be adopted with advantage, as 
 may be seen under a future head. 
 
 The proof of the facts constituting the materials of pre- 
 sumptive evidence, is made in the ordinary mode of direct 
 proof; that is, by witnesses, -swearing positively to the facts. 
 
 (a) See I Stark. Evijl. 505., and WUls, Circ. Evid. 80; citing the case of a 
 citizen at Leige.frpm 3 Paris & EonWanque'g Medical Jurisprudence, 34, 39. 
 See also the case of Mary JVorkott a^d others, (14 Howell's State Tria,l3 
 1324) and the case of Sir Edmondbury Godfrey, (7 Id. 159) which will be 
 more particulai'ly examined under a fiiture head. 
 
 (A) 1 Stark. Evid. 603. See also the observations of Shaw, C. J. ia Cow 
 monwealth v. Webster, Bemis' Report, 468. 
 
 (c) 1 Stark. Evid. 20, 21. 
 
144 THE FACTS SHOWN IN EVIDENCE, [PART I. 
 
 as having come under their observation ; and is subject to 
 all the rules regulating direct evidence. Up to this point, 
 indeed, the evidence is actually of the direct kind. It is 
 its application to the principal fact, which gives to it its 
 peculiar presumptive character. 
 
 It is in this proof that the essence of the case may be 
 considered to consist; it being the establishment of the 
 premises from which the desired conclusion is to be argu- 
 mentatively deduced. The evidence is shaped, from the 
 outset, on the side of the prosecution, with express reference 
 to such conclusion ; and it is always so regarded and inter- 
 preted on the side of the defence. The bearing of leading 
 facts, proposed to be proved, is often seen at once, and their 
 effect with the jury anticipated, even by ordinary observers 
 of the proceedings. And the bearing of minute, indifferent 
 or apparently trivial facts, is generally perceived, without 
 much difficulty, by sagacious, experienced and well advised 
 advocates. Hence, the policy of defence always is to dis- 
 pute these evidentiary facts, and to dispute as many of them 
 as possible ; to contest, throughout, the ground which is to 
 form the basis of the proposed inference. The facts requi- 
 site to constitute this basis once conclusively proved, and 
 satisfactorily combined in, that order and connection known 
 as a chain of evidence, all that the prisoner's advocate can 
 do is to argue against them ; to endeavor to impress his 
 view of the case, and his construction of the evidence upon 
 the jury ; and to induce them to adopt them as their own ; 
 and the hopelessness of this portion of his duty is, no doubt, 
 often felt even in the act of discharging it. Accordingly, it 
 is at the stage of proof, that the great struggle always takes 
 place. Pacts, seen to be of an oppressive character, are 
 sought to be got rid of, by the usual expedients of cross- 
 examination, proof of facts of a contradictory, explanatoryj 
 or exculpatory tendency, or, in the last resort, attacks on 
 the veracity of the witnesses. Sometimes, the whole force 
 
CHAP. IV.J OB BASIS OP INFERENCE. 145 
 
 of the defence is concentrated against a single fact which is 
 seen to occupy an important place, as a connecting link be- 
 tween others, with a view of breaking the chain of the evi- 
 dence. If the affirmative facts cannot be got rid of, the 
 constant policy is to complicate them with conflicting circum- 
 stances, or cloud them with doubts sufficient to affect their 
 impression on the jury. 
 
 This policy of the defence, on criminal trials, is most 
 clearly manifested in cases where the affirmative view or 
 theory is sought to be made out by circumstantial evidence 
 of the certain kind ; as where the conclusion sought is seen 
 to flow necessarily from the facts proved. Thus, supposing 
 the case proposed to be proved, to be this : — A. B. entere'd 
 a room containing a watch, — the watch was gone, upon his 
 departure, — and no agent but A. B. had access to the room, 
 in the interval. If these facts are satisfactorily proved, the 
 conclusion that A. B. took the watch must follow, and cannot 
 be averted by any argument. The only practicable mode of 
 defence, therefore, is to assail the facts ; to take issue upon 
 each, and attempt to disprove it : as by endeavouring to 
 show, either that it was not A. B. who entered the room, as 
 charged, but some other person; or, admitting that he did 
 enter the room, that the watch was not there at the time ; 
 or, admitting it to have been there when he entered, that it 
 continued to be there after he left, no proper search having 
 been made for it ; or, admitting it to have been actually 
 taken away, that some other person had access to the room, 
 during A. B.'s stay, by whom it might have been taken. 
 
146 THE PROCESS OP [PAET I. 
 
 SECTION III. 
 The process of Inference or Presumption. 
 
 Having generally- considered, first, the fact to be proved, 
 or the afSrinative hypothesis of the case under investigation, 
 namely, the guilt of the accused ; (a) and, secondly, the 
 evidentiary facts from which it is to be deduced, inferred or 
 presumed ; the next subject for consideration is the process 
 of inference or presumption itself. 
 
 The great object with which every criminal trial is entered 
 upon, is to create a presumption of guilt strong enough to 
 warrant a conviction of the accused ; and to attain this, a 
 two-fold process is always necessary ; the presumption must 
 first be raised, that is, it must have a proper substance, 
 shape and application given to it, in order to constitute a 
 subject for consideration ; and, it must next be tested, for 
 the purpose of ascertaining its sufficiency as a basis of final 
 decision. 
 
 (tt) By some of the best writers on evidence, the term "hypothesis" is 
 constantly used in a comprehensive sense, to denote the general idea, proposi- 
 tion or statement that the accused is guilty, or innocent ; expressing the sum 
 of all the particulars of the case, as it is proposed to be proved, or contended 
 to have been proved, in the form of one general result . In this sense of the 
 term, the affirmative hypothesis is the single general proposition or state- 
 ment, — the proposed or assumed general fact— that the accused is guilty of 
 the crime charged. It is otherwise called " the hypothesis of guilt " or de- 
 linquency : and is considered as merely another name for the principal fad, 
 or factum- prohandum, of the ca-se. Best on Pres. §§ 2X0, 212. 3 Benth. 
 Jud. Evid. 18, 24, 25. Bnt the term "hypothesis " is also frequently used to 
 denote the entire view taken of the case, on either side, or the theoretical state- 
 ment of the case in detail, as it is supposed to have actually taken place, and 
 as it is proposed to be made out, or contended to have been made out by the evi. 
 dence: the facts composing it being arranged and connected in a certain order 
 and relation. In this sense, the affirmative hypothesis or theory is the view or 
 statement, at least in outline, of the entire case, on the side of the prosecution, 
 as it is supposed to have occurred ; showing by a combination of partioularSi 
 Aotc the accused is guilty of the crime charged. 
 
CHAP. IV.] XKPERENCB OR PRESUMPTION. 147 
 
 TMs whole process is, in both the stages just mentioned, 
 essentially one of comparison. In the first stage, it is a 
 comparison between the facts proved and the affirmative 
 hypothesis, in order to ascertain their agreement, consist- 
 ency or coincidence with it, and the extent of such coinci- 
 dence: and, in the final stage, it is a comparison of the 
 same facts with the opposite or negative general hypothesis 
 of innocence, or of such particular opposite hypotheses as 
 may be resolv#)le into it, in order to determine whether and 
 how far it may be reconcilable with any of them. Some- 
 times the entire process is very short ; the circumstances 
 though few, not only thoroughly coinciding with the affirma- 
 tive hypothesis, but excluding, at once, aU others. Thus, in 
 the example given at the close of the last section, the three 
 facts, — that A. B. entered a room contaiuing a watch, — that 
 the watch was gone upon his departure, — and that no agent 
 but A. B. had had access to the room, in the interval, — ^make 
 up a case of conclusive proof that the watch was taken by 
 A. B. ; the supposition that it might have been taken by any 
 other agent being entirely excluded, (a) There is always a 
 process of reasoning employed in such . a case, but it is of 
 that close description, (answering to the argumentum neces- 
 sarium (6) of the civilians,) in which the facts stand in 
 such a strictly logical relation of premises and conclusion, 
 that, the former beiug once established, the latter must 
 follow. 
 
 (a) See 1 Stark. Evid. 483. The word " agent " is here very properly em- 
 ployed in its broadest sense, without limitation to persons. To authorize the 
 conclusion, the facts proved should absolutely exclude the agency of any living 
 being. Animals have been known to remove objects, sometimes of consider- 
 able magnitude, and to considerable distances; their habits giving them means 
 of access to places which would naturally be overlook«d, where the possibility 
 of agency of this description was not at all taken into view. See Best on 
 Pres. § 219. 
 
 (b) Matthsns Se Criminibus, o. 6. Ante,^. 22. 
 
148 THE PROCESS OP [PART I. 
 
 But in the great majority of actual cases, the truth of the 
 hypothesis sought to be established, is not thus speedily and 
 logically made clear, beyond the possibility of doubt. The 
 conclusion is arrived at gradually, sometimes laboriously, by 
 a process of probable reasoning, in the course of which, free 
 scope and discretion are allowed to the judgment, in examin- 
 ing, comparing and -weighing the facts presented, and in as- 
 certaining their individual and united bearing and tendency ; 
 and the ultimate result of the whole investigatijp is acquiesced 
 in, not because of its absolute certainty, but because of its 
 freedom from all reasonable doubt, (a) In other words, the 
 evidence is of the presuthptivp. kind, properly so called ; and 
 the process employed in dealing with it, is that of presump- 
 tion, as it has already been explained. (&) 
 
 The discovery of truth being formally propounded as the 
 express object of inquiry in every criminal trial, (c), the 
 great question to be finally considered and answered by the 
 jury undoubtedly is, — " Is the hypothesis of guilt true ? " — 
 their verdict being, according to its strict import, a declara- 
 tion of the truth in regard to it. But as the truth sought 
 in these cases is not of the absolute and necessary, but only 
 of the probable and contingent kind, this question always 
 resolves itself, at least preliminarily, into another — " Is the 
 hypothesis of guilt probable ? " Probability is always the 
 essential basis of investigation, (c?) although mere proba- 
 bility, as will be shown, is never sufficient as a basis of 
 decision. It must be raised to a proper degree of persua- 
 siveness and force, before it can satisfy the judgment that 
 the conclusion which it indicates is the truth. 
 
 The facts, then, as presented by the evidence, — are, in 
 the first place, to be examined, in order to ascertain whether 
 
 (ffi) 1 Greenl. Evid. § 1. See post. Section IV. 
 
 (A) See Chapters II. and HI. 
 
 (c) See ante, p. 93. 
 
 (d) See ante, p. 80. 
 
CHAP. IV.] I2JEEBENCB OB PHESUMPTIOJT. 149 
 
 and to what extent, they render -the afSrmative hypothesis, 
 or principal fact, probable ; (cs) and, in the natural course of 
 such an examination, they are looked at, first, singly, and 
 then collectively; certain general principles or results of 
 previously acquired knowledge, observation and experience, 
 being recurred to and employed throughout, as standards 
 of comparison. The usual and natural course of things is 
 the great and efficient preliminary test in these cases. 
 "Where a fact has, from experience and observation, been 
 found to be constantly associated or connected with another, 
 as its cause, concomitant or effect, the prospective or general 
 presumption is, that it will, most probably, be found associ- 
 ated with it again, and in a similar relation. Accordingly, 
 where the latter fact is, in any given case, proved to have 
 actually existed, the presumption, which is now retrospective 
 and special, is that the former did actually exist also ; (Z>) 
 and this presumption is stronger or weaker, according to the 
 closeness and frequency of the observed association itself. 
 Thus, supposing, on a trial for murder, the evidentiary facts 
 or circumstances to be these, (a corpus delicti being first 
 fully proved ;) — ^the accused had been on ill terms with the 
 deceased, — had been heard to threaten his life, — ^had actually 
 made an attempt against it, — ^was seen in the immediate 
 neighborhood of the place where the crime was committed, 
 about the time of its commission, — ^was found to have fled 
 or concealed himself soon after, — was observed to betray 
 agitation or confusion on being arrested, — and was found, on 
 examination, to have his clothing stained with blood, (c) 
 Each of these facts, considered separately, in the light of 
 
 (a) Or " probabilize " it, to use a word of the coinage ot Mx . Bentham . 
 3 Benth. Jud. Evid. 13, et passim. 
 
 (6) See 1 Stark. Evid. 493, 494. 
 
 (c) An example presenting similar facts is made use of by the civilian 
 MatOimus. De Criminibus, ad lib. 48, Dig. tit. 15, c. 6 ; cited on the trial of 
 Capt. Green and his crew. 14 Howell's State Trials, 1253. 
 
150 THE PROCESS OP [PABT I. 
 
 the general principles or results which have been mentioned, 
 tends to render the hypothesis of guilt a probable, or, at 
 least, a not improbable one. That a threat, growing out of 
 previous ill-will, should be followed by attempts to carry it 
 into execution, is in accordance with the natural course of 
 human conduct, as shown by observation. That an opportvr- 
 nity afforded by close proximity of the person, should, under 
 the influence of an adequate motive, be taken advantage of, 
 JB probable for the like reason. That the blood of the per- 
 son killed should stain the dress of the person shedding it, 
 is a natural result of the physical relations of the objects. 
 Thai flight from pursuit, and terror on arrest should indicate 
 guilt, accords with the ordinary constitution of human 
 nature, and the constant observation of human conduct. In 
 this way, each fact proved contributes, though in different 
 degrees, its share of effect in rendering the hypothesis prob- 
 able. Each is such a fact as would naturally be looked for, 
 in such a case ; being regarded, in the abstract, as a natural 
 element, incident or accompaniment of crime, and, when 
 actually shown in evidence, having a corresponding signifi- 
 cance assigned to it. But there remains another and most 
 important step in the process of examination. Not one of 
 the circumstances above enumerated would, siMg-Zy considered, 
 justify an inference of guilt. They are to be taken and 
 viewed collectively, and in their common bearing upon the 
 fact sought ; and it is this part of the process which serves 
 to complete' the foundation on which the presumption in 
 favor of the affirmative hypothesis of guilt is raised. All 
 this will be more particularly illustrated in the sequel. 
 
 It has already been sufficiently explained, how a fact 
 sought, and at the time unknown, comes to be associated and 
 connected with a fact or facts proved ; its existence being 
 thus indirectly reached and shown. It is because such a 
 connection has been repeatedly found, by experience, to have 
 existed before. This connection need not be necessary or 
 
CHAP. IV.] INFERENCE OB PRESUMPTION. 151 
 
 absolutely invariable, no instance to the contrary having 
 ever been observed. It is sufficient, if it be ordinary and 
 usual, (a) But it must be more than Am^lj frequent ; (6) 
 at least, where the facts connected are principally relied on. 
 The mental process employed in raising a presumption, is 
 as already observed, one of comparison; and that, not only 
 in the general sense of reference to a common abstract 
 standard of probability, or to one or more assumed- hypo- 
 theses, but also in a much more particular sense ; namely, 
 the comparison of one fact or circumstance with another. 
 In dealing with circumstantial evidence, juries are constantly 
 employed in noticing and weighing coincidences, resemblan- 
 ces, and analogies of every possible kind. These sometimes 
 run to great minuteness of detail ; as where one evidentiary 
 fact of the physical class is immediately compared with an- 
 other : — foot-marks, with the feet of the party accused ; the 
 print of a left hand, or other traces of its use, at the scene 
 of crime, with the fact of the accused being a left-handed 
 person; a piece of paper, composing the wadding of a fire- 
 arm, with a similar and corresponding piece, found in the 
 pocket of the prisoner ; the cut edge of a piece of cloth 
 stolen from a loom, with the corresponding edge of a piece 
 found in his possession. It is thus a process by which the 
 accused is connected with the crime charged, by a variety of 
 ties or chains, consisting of the resemblances or coincidences 
 which have been mentioned ; and, by such means, is singled 
 out and identified as the person by whom it was committed. 
 Finally, it is a process by which the appearances presented 
 by the facts in evidence, and which it becomes necessary to 
 explain on some rational principle, are, with reasonable 
 probability accounted for. The hypothesis of guilt is as- 
 sumed as the true or probable one, because it accounts for 
 the facts proved ; just as, in natural philosophy, an hypo- 
 fa) Parke, J. in Doe dem. Palteshall v. Tarford, 3 B. & Adol. 890. 
 {b) Henderson, J. in Hart t. A''ewland, 3 Hawks, 122, 123. 
 
lo2 THE PROCESS OF [PAET I. 
 
 thesis founded upon certain observed phenomena, is adopted, 
 because it accounts for such phenomena, (a) 
 
 Such is an outline of the process by which a presumption 
 of guilt is preliminarily raised, upon a basis of facts proved 
 in the particular case tried. It is obviously an aggregation 
 of various minor presumptions, deducible from each separate 
 fact, into one single expression of belief. The next process, 
 namely, that by which its sufficiency is tried, will now be 
 considered in the same general way. 
 
 The hypothesis of guilt, though presented with great 
 prominence, by the very form of the proceedings, is not the 
 only one to be considered in the investigation ; nor is it 
 sufficient that the facts proved are affirmatively found to 
 coincide with it, however fully. The probability of the con- 
 clusion arrived at by the jury, must be something more than 
 mere probability. It must be raised to a higher degree of 
 force, before it can be adopted as a satisfactory basis of con- 
 viction. This is done by taking up whatever opposite sup- 
 positions or hypotheses, involving the general one of inno- 
 cence, may be reasonably conceived possible, and negativing 
 or excluding them, as will be hereafter explained. The 
 very terms of the issue which the jury are to try, present 
 a plain question between the two opposite general hypotheses 
 of guilt and innocence ; and the whole course of the proof 
 laid before them, renders a constant reference to both these 
 hypotheses a matter of obvious necessity. Indeed, it is of 
 the essence of all presumptions of fact, that they always 
 contemplate an opposite side ; standing g^od, (in the lan- 
 guage of the maxim,) until the contrary is proved. Hence 
 the whole process involved in the presentation of presump- 
 tive evidence, on a criminal trial, is one of raising presump- 
 tions, on the one side ; and rebutting, weakening or destroy- 
 
 (a) See 1 Stark. EviJ. 483, note ; where philosophical proof as to the rela- 
 tions of cause and effect, in the natural world, is compared with judicial proof 
 by circumstantial evidence. And see 1 Greenl. Evid. § 11. 
 
CHAP, IV.] INFERENCE OR PRESUMPTION. 153 
 
 ing them, on the other. And the action of the jury, in 
 dealing with such evidence, is in a corresponding course ; 
 the criminative facts presented by the prosecutor being first 
 examined, to see, if in themselves, they raise an adequate 
 presumption of guilt ; and, if this be so, then the facts 
 proved on the part of the prisoner, to see how far they 
 affect such presumption. And, even in the absence of facts 
 positively proved, in the way of defence, there are certain 
 considerations founded on the possibility of innocence, which 
 are frequently taken into account, in estimating the force of 
 the criminative facts proved. These considerations, — under 
 the several names of infirmative suppositions, hypotheses and 
 facts, counter-possibilities, and supposable facts, — ^have re- 
 ceived a large share of attention in some standard works on 
 evidence ; and for that reason, as well as on account of 
 their intrinsic importance, seem to require some explanation 
 in this place. 
 
 Supposing, then, an evidentiary fact testified to, and con- 
 sidered as proved, (a) and the principal fact in question 
 considered as being thereby, in a certain degree, rendered 
 probable ; {b) it will often happen that, by the bare consider- 
 ation of some other fact, which is not proved, nor so much 
 as attempted to be proved, the principal fact will be con- 
 sidered as being, in a greater or less degree, rendered 
 improbable, (c) And the reason of this has been thus 
 explained. The existence of this other fact {d} (which 
 may be termed for the sake of distinction, an opposite or 
 counter-fact,) being supposed, (it being itself, in the case in 
 question, not impossible,) it will be seen that, notwithstand- 
 
 (a) This explanation is taken from Mr. ien/Aaw's work on Judicial Evi- 
 dence, with a slight variation from the peculiar language employed by that 
 author. 8 Benth. Jud. Evid. 13, 14. 
 
 (6) Or " probabilized," to use Mr. Bentham's expression. 3 Jud. Ev. 13. 
 
 (c) Or " disprobabilized. " Id. ibid. 
 
 (d) " Disprobabilizing fact," as it is termed by the same writer. Id. ibid. 
 
154 THE PROCESS OP [PAKT I. 
 
 ing the existence of a fact rendering the principal fact prob- 
 able, the existence of such principal fact is not, in so high a 
 degree probable, as it would be, if the existence of the 
 opposite fact were impossible. In other words, the ten- 
 dency of such an opposite fact is to weaken, or render infirm 
 the probative force of the evidentiary fact proved ; and for 
 this reason, it has been termed an infirmative fact, (a) 
 
 Thus, supposing it fully proved, in a case of murder, that 
 the accused had been heard tQ threaten the life of the de- 
 ceased, shortly before the commission of the crime ; it may 
 be, it is not impossible, nor, indeed, to a great degree, (con- 
 sidering the fact by itself,) improbable, that this threat was 
 never carried into effect by the former. For, although 
 threats are often made good, they also often turn out to be 
 mere idle words, uttered with a view to alarm or .disquiet; 
 or spoken in moments of excitement, and without any settled 
 purpose of evil. (6) This is an infirmative fact or supposi- 
 tion, applicable to the aifirmative or criminative fact, and tend- 
 ing to weaken its force. Again, supposing it proved that the 
 accused was seen at or near the place where the crime was 
 committed, about the time of its commission, — the evidence 
 not excluding the possibility of the presence of other persons 
 at the same time and place, — the presence of the accused, 
 at that particular juncture may have been a merely fortuitous 
 coincidence, (c) So, admitting it proved that stains of 
 blood were found upon his clothing, it may be that they 
 
 (a) 3 Benth. Jud. Evid. 14. Best on Pres. § 217, et seq. Instead of " in- 
 firmative," the terra " exculpatory " is used by some writers. Wills, Giro. 
 Ev. 120, et seq. 
 
 (6) This, together with the other criminative facts supposed, will be more 
 fully considered in the next general division of the subject. See Part II. 
 
 (c) That the presence of a person, even repeatedly, at a particular place 
 privately designated by another, may be regarded as aooidental, seo the sin- 
 gular case of William Barnard, (19 Howell's State Trials, 815,) commented 
 on by Mr. Starkie, (1 Stark. Evid. 507, note,) and further noticed, post. 
 
CHAP. IV.] INFERENCE OB PRESUMPTION. 155 
 
 were produced by some entirely iDnooent cause, actual 
 examples of whicli are not wanting, (a) 
 
 It has been said by a writer already quoted, wlio appears 
 to have devoted much attention to the subject, that there are 
 few, if any, evidentiary facts, by which the .existence of a 
 principal fact is rendered probable, which are not liable to 
 be qualified by at least one, commonly, more than one — of 
 these infirmative considerations ; and that the proper ad- 
 ministration of justice requires that no fact of the latter 
 description, perceived to be capable of having place, should 
 be overlooked ; but that its probative force should be esti- 
 mated as carefully as that of those of a positively criminative 
 character, (b) The principal use, however, of these appli- 
 ances appears to be, in cases where one or two prominent 
 and impressive facts, among others, are relied on to crimin- 
 ate the accused, to diminish their proving power, or detract 
 from their conclusive quality. On the other hand, where 
 the evidence is composed of a considerable number of con- 
 sistent and mutually supporting facts, contributiag more 
 equally to the general conclusion indicated, the force and 
 range of these infirmative suppositions are much reduced, as 
 will be. more fully shown hereafter, (c) And, as a general 
 rule, they ought to be applied not singly, but collectively, at 
 a later stage of the process, in the form of hypotheses, to 
 the whole mass of criminative facts takeu together; and 
 not to each or any individual fact as it is proved, without 
 reference to others. (<^) For, as the presumption in favor 
 of the truth of the affirmative hypothesis, was effectually 
 raised only by taking the facts and circumstances from 
 which it was deduced, collectively; it is reasonable that, 
 
 (o) Case of William Shaw ; Theory of Pres. Proof, Appendix, Case yiii. 
 6 London Legal Observer, 476. 
 
 («) See 3 Benth. Jud, Evid. 14, 15. 
 
 (c) See ^0^, in this section. 
 
 (d) See ibid. 
 
156 THE PROCESS OF [PART I. 
 
 when assailed, it should be assailed in the same form, and 
 npon the same foundation. 
 
 In treating, more particularly, of the process of presump- 
 tion from facts proved, in criminal cases, what is called the 
 probative force, (a) or proving power (b) of such facts, — 
 t'.iat is, their competency to establish the probability, and, by 
 that means, the truth of the principal fact or affirmative hypo- 
 thesis, — ^becomes a very important subject of consideration. 
 
 The probative force of a body of circumstantial evidence 
 is said to depend upon the following considerations ; namely, 
 (1) the number, (2) the independence, (3) the weight, 
 and (4) the consistency of the elementary or component 
 circumstances themselves, (c) 
 
 1. As to the number of the circumstances, the great 
 importance of presenting to a jury as many of the facts of a 
 transaction as possible, as a means of reviving the whole 
 transaction with the greatest accuracy and effect, has al- 
 ready been dwelt upon, (rf) But the operation of number — 
 of the mere addition of one fact to another, — is more 
 strikingly seen in its power of heightening probability. A 
 single fact, — say, the first fact proved in the case, — may 
 produce no more than a slight impression of the probability 
 of the hypothesis proposed ; the next fact proved, though, in 
 itself, of the same slight kind, will, taken (as it must be,) 
 in connection with the preceding, often raise this impression 
 to a determinate and very considerable degree of force, (e) 
 . In this way, a number of circumstances, each individually 
 of slight significance, may so tally, and confirm each other, 
 
 (a) 3 Benth. Jud. Evid. 219. Best on Pres. § 188. 
 
 (A) Wills on Giro. Ev. 214. 
 
 (c) Best on Pres. § 188. 
 
 (rf) See ante, p. 139. 1 Stark. Evid. 20, 502, 503. As to tlie effect of number 
 in the detection of fabricated evidence, see Id. ibid. And see 8 PhiU. Evid. 
 iCowcn & Hill's notes,) Note 288, 
 
 (e) See 3 Benth. Jud. Evid. 222, 223. 
 
CHAP. IT.] . INPERENCB OR PRESUMPTION, 157 
 
 as to leave no room for doubt of the fact they tend to estab- 
 lish, (a) The importance of number becomes still more 
 apparent, when it is considered that the effect of increase in 
 this refspect, (provided the circumstances themselves have 
 the quality of independence which will next be considered,) 
 is not only to increase, but actually to multiply the proba- 
 bility of the conclusion sought. (6) Or, to speak in mathe- 
 matical language, the probability of the justness of the con- 
 clusion, is not merely the sum of the simple probabilities 
 created or afforded by the individual circumstances, but is 
 the multiplied or compound ratio of them, (c) Thus, (to 
 borrow an illustration from a writer already quoted,) on an 
 indictment for uttering a bank note, knowing it to be 
 counterfeit, proof that the accused uttered a coxmterfeit 
 note, amounts to nothing, or next to nothing, — any person 
 might have a counterfeit note in his possessiou : but suppose 
 further proof adduced, that shortly before the transaction, 
 he had, in another place, and to another person, offered an- 
 other counterfeit note, the presumption' of guilty knowledge 
 becomes very strong, {d) And it might be added that if 
 still further proof were made of a similar kind, as of the 
 offer of a third or fourth note, the presumption would soon 
 become conclusive, (e) 
 
 (a) Best on Pres. § 188. 
 
 (A) " Probable proofe," says Butler, " by being added, not only increase 
 the evidence, but multiply it." Analogy, part 2, chap. 7. The same writer 
 has remarked in another passage, that " the slightest possible presumption, 
 q/iea repeated, will amount to moral certainty." Id. Introd. And see the 
 observations of Shaw, C. J. in Commonwealth v. IVebster, Bemis' Report, 
 467, 468. 
 
 (e) Best on Pres. § 188. 1 Stark. Evid. 497, and note. 2 Evans' Pothier 
 on Obi. 292. This has been shown to be mathematically as well as morally 
 true ; and algebraical formulse have been employed to illustrate it. Best on 
 Pres. Appendix, Note I. See 1 Stark. Evid. 497, note. But the practical 
 utility of such calculations, as aids to judicial inquiry, especially in criminal 
 cases, may well be doubted. Id. ibid. 470, 501. 
 
 (d) Best on Pres. §188. 
 
 (e) See 1 PhUl. Evid. 473. 3 Id. (Cowen & Hill's notes), Notes 324, 825, 
 
158 THE PROCESS OP [PART I. 
 
 The effect of increase in the number of criminative facts 
 upon their probative force as evidence, consists in its power 
 to reduce the force, narrow the range, and finally to exclude 
 the application of those infirmalive considerations before 
 mentioned, to which such facts may, individually, be subject. 
 Thus, if but one or two facts of a criminative tendency are 
 met and attempted to be qualified by such considerations, 
 supposing their probative force to be, by that means, actu- 
 ally reduced, the addition of other facts, not thus qualified, 
 tends to restore the former to their original force. If, on 
 the other hand, a more extensive use be attempted to be 
 made of such infirmative considerations, the greater the 
 number of criminative facts proved, the greater the number 
 of infirmative considerations which will be necessary to meet 
 them. But increase in number has, with the latter, an effect 
 the reverse of that which it has with the former ; it tends to 
 diminish their probability in a similar ratio. Thus, it is 
 possible, — taking the suppositions singly, — that a threat to 
 kill, though uttered under the influence of settled ill-will, 
 may not have been carried into effect ; or, that proximity 
 to a scene of murder, at the time of its commission, may 
 have been purely accidental ; or, that stains of blood on the 
 clothing may have arisen from some innocent cause. We 
 may say, indeed, that either of these supposed facts, taken 
 by itself, is not positively improbable. But that all three of 
 them should have been the facts in the particular case, may 
 safely be pronounced a far less probable supposition ; and 
 the improbability of the joint truth of all would be found to 
 increase rapidly, with the addition of every separate suppo- 
 sition, (a) 
 
 326. Koscoe's Crim. Evid. 90. See also Commonwealth v. Woodbury, 
 Thaoher's Criminal Cases, 47, Commonweallh v. Percival, Id. 293. 
 
 (o) As to the effect of number upon physical coincidences, see post. As to 
 the consideration of number, in its application to witnesses, see 1 Stark. Evid. 
 466. 
 
CHAP. IV.] INFERENCE OR PRESUMPTION, 159 
 
 2. But, in order to giye to the facts proved the full effect 
 of number, it is further essential that they should be inde- 
 pendent of each other ; that is, so far as respects the evi- 
 dence by which they are presented, (a) If they are not 
 independent, and all arise from one source, an increase in 
 the number of the circumstances does not increase the prob- 
 ability of the hypothesis attempted to be proved by them. (6) 
 Hence, where all the facts are proved by the testimony of 
 one witness, as they all rest upon one foundation, — the 
 veracity of a single person, — addition to the number of facts 
 will not increase the strength of the proof, (c) 
 
 The increase of force produced by the concurrence of 
 independent circumstances, has been well illustrated by 
 comparing it to the effect of a relation of the same fact by 
 several independent witnesses. If the witnesses to the fact 
 be dependent on each other, so that the testimony of the 
 second depends, for its truth, upon the first ; that of the 
 third, npon the second, and so on ; the effect of the evidence 
 actually diminishes with every increase in the number of the 
 witnesses or the facts, (d) 
 
 According to Mr. Starkie, " the force of a particular in- 
 ference, drawn from a number of dependent facts, is not 
 augmented, neither is it diminished, in respect of the nmnber 
 
 (a) Mr. Starkie has distinguished dependent and independent facts in the 
 following terms. " If the facts A. B. C. D. be so essential to the particular 
 inference to be derived from them, when established, that the failure in the 
 proof of any one would destroy the inference altogether, they are dependent 
 foots : 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 proba- 
 bility, as to the contested fact, which they did before, they would be pro- 
 perly termed independent facts." 1 Stark. Evid. 495. 
 
 (A) Best on Pres. § 188. 
 
 (c) Theory of Presumptive Proof, 57 . 
 
 {d) Wills, Circ. Evid. 214. This writer employs an arithmetical illustration 
 of the feet stated. And see 1 Stark. Evid. 466. See also, the remarks of Mr. 
 Bentham, as to the meaning of the term " chain of evidence." 3 Jud. Evid. 
 223—225, note. 
 
160 THE PROCESS OF [PART I. 
 
 of such dependent facts, provided they be established ; but 
 the probability that the inference itself rests upon sure 
 grounds, is, in general, weakened by the multiplication of 
 the number of circumstances essential to the proof ; for the 
 greater the number of circumstances essential to the proof 
 ■was, the greater latitude would there be for mistake or de- 
 ception. On the other hand, where each of a number of 
 independent circumstances, or combinations of circumstances, 
 tends to the same conclusion, the probability of the truth of 
 the fact is necessarily greatly increased, in proportion to 
 the number of those independent circumstances." {a) 
 
 3. The weight of the individual circumstances comes next 
 to be considered. This is constantly found to vary in every 
 combination presented by evidence ; some facts affording 
 only a slight presumption of the truth of the hypothesis ; 
 others, that stronger degree which is sufficient to establish 
 it, unless weakened, rebutted, or destroyed by opposing 
 facts ; others, more rarely, reaching that high grade of 
 efficacy, denominated conclusiveness. The precise signifi- 
 cation of the latter term seems to require some notice. 
 
 The most common application of the epithet " conclusive," 
 is to the final effect of a number of facts taken together, and 
 constituting a body of evidence ; producing a degree of 
 persflasion or assurance, which shuts up the mind to the 
 adoption of one indicated conclusion, and excludes or shuts 
 out every other. (6) In other words, it is that effect of 
 evidence which gives it the character of proof, or converts 
 it into proof, (c) But the term "conclusive" is also fre- 
 quently applied, by the best- writers, to the effect of par- 
 ticular circumstances in a body of presumptive evidence, 
 considered independently of others, or in comparison with 
 others ; denoting great superiority of weight ; or decisive, 
 
 {a) 1 Stark. Evid. 495, 496. 
 
 (6) Id. 506, 509. Shaw, C. J. in Commonwealth v. Webster, Bemis' Re- 
 port, 462, 
 
 (c) 1 Stark. Evid. 506, 507. 
 
CHAP. IT.] INFERENCE OB PRESUMPTION. 161 
 
 convincing, overpowering weight : circumstances of an op- 
 posite character being denominated inconclusive, or imper- 
 fect. Thus, facts or circumstances of the class termed moral 
 and the coincidences they afford, and the probabilities de- 
 ducible from them, are regarded by Mr. Starkie, as of a 
 conclusive tendency, in contrast with those of the physical 
 or mechanical class, which are spoken of, as being, in their 
 nature, imperfect and inconclusive, (o) So, Mr. Bentham 
 applies the term " conclusive " to a single evidentiary fact ; 
 and undertakes to give practical directions for ascertaining 
 conclusiveness in such a case, by means of infirmative suppo- 
 sitions. (6) It will be seen, however, that this writer gives 
 to physical facts a higher capacity of conclusiveness than 
 Mr. Starkie. (c) 
 
 What is meant by a conclusive, and what by an incon- 
 clusive circumstance, may perhaps be more adequately ex- 
 plained by an example than a definition. The following, 
 taken from the writer last named, furnishes a very simple 
 illustration. The circumstance of finding an article which 
 has been recently stolen, in the possession of a person 
 charged with the theft, though of a highly suspicious nature, 
 is, in itself, imperfect and inconclusive ; and therefore quite 
 insufficient as a basis of conviction. But if, in addition to 
 this, it be proved that the party accused wholly refused to 
 account for the possession, or attempted to impOse a false 
 account, the latter circumstance is said to be conclusive, {d) 
 It will be seen from this, that conclusiveness, as applied to 
 circumstantial evidence of the presumptive kind, is not ai 
 quality absolutely belonging to a fact, in itself considered, 
 but is the result of union with something else. The two 
 
 (a) 1 Stark. Evid. 487, 497. As to physical and moral ooinoideuees, see 
 post, in this section. 
 
 (6) 3 Jud. Evid. 220, 221. 
 
 (c) /d. 224— 226. - 
 
 (rf) 1 Stark. Evid. 488. Id. 483, 484, note. It is also said to be of an ex- 
 clusive nature, forcibly tending to exclude any supposition of an honest pos- 
 session. Id. ibid. See another example of conclusiveness, Id. 497, 499, note. 
 
162 THE PROCESS OP [PART I. 
 
 circumstancea in the example must be considered together ; 
 the latter is based upon the former, and indeed necessarily 
 implies its existence. The former, without the latter, would 
 be incomplete ; with the addition of the latter, it becomes 
 complete and consequently conclusive, (a) 
 
 In the case of circumstantial evidence of the certain 
 kind, it may happen that a single fact, clearly proved, be- 
 comes in itself conclusive. Thus, the single fact of an 
 alibi, made out on the part of a prisoner, to the complete 
 satisfaction of the jury, will dispose at once of the whole 
 accusation. But this rarely or never happens on the part of 
 the prosecution, especially in capital cases ; it being always 
 considered dangerous to convict on the strength of any 
 single circumstance, {b) 
 
 To return to the more general term " weight," employed 
 in introducing the present subdivision of the subject. The 
 value of weight, as a quality of circumstances, may be most 
 aptly appreciated, by considering it in connection with that 
 of number, which has been already treated of. Each of 
 these qualities, when present, adds immensely to the force of 
 the other ; but each of them has also the effect of compen- 
 sating, to a certain extent, for the absence of the other. 
 The more weighty the circumstances individually are, the 
 smaller the number necessary to authorize a conclusion. 
 The union* of even two or three strongly criminative facts 
 may be sufficient for this purpose. On the other hand, mere 
 number constantly has the effect of giving a determinate 
 resulting weight to facts individually of slight significance. 
 This has been sufficiently explained under a previous head. 
 
 4. The consistency of the facts constituting a body of evi- 
 dence, with each other, and with the hypothesis or principal 
 fact sought to be deduced from them, is another iipportant 
 consideration in determining their aggregate proving power. 
 The consistency of these facts with the hypothesis of guilt 
 
 (a) 1 Stark. Evid. 509. 
 
 (4) Best on Pres. § 216. See 3 Benth. Jud. Evid. 12, 13. 
 
CHAP. IV.] INFERENCE OR PRESUMPTION. 163 
 
 is, indeed, under all circumstances, essential ; its ascertain- 
 ment constituting, as shown at the commencement of this 
 section, the first stage in the process of establishing the pre- 
 sumption required. " Therefore," to use the words of a 
 learned American judge, in a late important case, " if any 
 one fact necessary to the conclusion is wholly inconsistent 
 with the hypothesis of the guilt of the accused, it breaks 
 the chain of circumstantial evidence upon which the infer- 
 ence depends, and however plausible or apparently conclu- 
 sive the other circumstances may be, the charge must 
 fail." (c^ 
 
 The consistency or harmony of the evidentiary facts or 
 circumstances with each other, may also be pronounced an 
 essential condition to the deduction of any satisfactory 
 inference from them, as a body. An opposite state of the 
 facts always impedes the progress of the mind from its pre- 
 mises to its conclusion ; breaks that uniformity of concurrence 
 by which the facts, of themselves, indicate the end sought ; 
 and produces obvious confusion, often ending in permanent 
 doubt, on the part of the tribunal. Where this inconsist- 
 ency is found to prevail between leading facts, or such as 
 are essential to the conclusion, it is as destructive of that 
 conclusion as inconsistency with the hypothesis of guilt 
 itself ; being, in fact resolvable into it. (5) But where the 
 facts are found to agree in their leading features, a slight 
 incidental inconsistency will not affect the case. Thus, 
 where A. being in company with B. had his pocket picked 
 of three guineas, and B. afterwards boasted to C. that he 
 had picked A.'s pocket of four ; the substantial fact is that 
 he picked A.'s pocket, and an accidental inaccuracy of A. 
 or B. as to the number, would not weaken the case, (c) 
 
 (o) Shaw, C. J. in Commonwealth v. Webster, Bemis' Keport, 469. Aud 
 see 1 Stark. Eyid. 505. 2 Evans' Pothier on Obi. 289, 291. 
 
 (6) See 2 Evans' Pothier, ubi supra . 
 
 (c) 2 Evans' Pothier on Obi. 291, note (Phil. ed. 1853;) cited in 3 Phill. 
 Evid. (Cowen & ffiU's notes,) Note 288. And see 1 Stark. Evid 468. 
 
164 THE PROCESS OF [PART I. 
 
 It is to be observed, however, that inconsistency is never 
 a natural attribute or condition of facts, considered in them- 
 selves, or in the light of actual truth. The genuine facts of 
 any particular case or transaction, as they actually occurred, 
 must necessarily have been consistent with each other, or 
 they could not have happened, (a) Their inconsistency, 
 as presented in evidence, arises always from one of two 
 causes,— incorrectness or incompleteness in the presentation 
 of them. (6) Both these are sometimes the faults of the 
 medium of evidence itself; the facts undergoing more or 
 less of change, in the course of their transmission through 
 the witness to the juror, in consequence either of infirmities 
 naturally incident to the medium, and scarcely separable 
 from it, or of actual design on the part of the witness, (c) 
 In other cases, inconsistency arises, not from any fault of the 
 medium, but simply from the circumstance that all the facts 
 have not been observed, and cannot therefore be presented; 
 or that some fact has not been observed at the proper time, 
 and has undergone a change in its outward appearance. 
 Tacts, or outward appearances, which have been fabricated 
 by the criminal himself for his own protection, are always 
 inconsistent with the realities of the case, and are always 
 intended to be so ; but owing to the artifice employed in 
 fabricating them, the moral facts which accompanied and 
 produced them, and which if observed would have entirely 
 removed the inconsistency, have been hidden from human 
 view. But even in these cases, the inconsistency thus arti- 
 ficially produced, often serves a useful purpose in leading to 
 a minute and rigid scrutiny of the circumstances, and conse- 
 quent detection of the fraud, (d) 
 
 5. The foregoing considerations are chiefly applicable as 
 
 (a) 1 Stark. EticI. 20, 482. See the observations of Shnvi, C. J. iu Cam, 
 monwealth y. Webster, Bemis' Eep. 469, 
 (6) See 1 Benth. Jud. Evid. 28. 
 (c) See 1 Stark. Evid. 20. 
 {d) Id. 21, 503. 
 
CHAP. IT.] INFERENCE OR PRESUMPTION. 165 
 
 tests of probatiye force, to a body of criminative facts, con- 
 sidered in itself, and wittout reference to opposing evidence. 
 But there is another and very important consideration, 
 tending to the same end, and which naturally occurs next in 
 order, drawn directly and exclusively from a contemplation 
 of the opposite side of the case ; — namely, the production 
 or non-production, on the part of the accused, of evidence 
 of an exculpatory tendency, and the force of such evidence 
 when produced. <^ 
 
 According to the universal rule of evidence, proof must 
 be made, in the first instance, on the part of the prosecution, 
 of facts sufficient to raise a presumption of guilt, before the 
 prisoner can be called on to make his defence, (a) This 
 proof being made, the latter is always entitled to meet it, 
 by producing evidence in denial or explanation of the charge ; 
 and in fact, is bound to this course, the burden of proof 
 being now thrown upon him. If no such counter-evidence 
 be produced, then, according to the strict application of a 
 leading maxim, the presumption which, before, was only 
 contingent and conditional, becomes, from that very circum- 
 stance, absolute and conclusive. But, in practice, the rule 
 is applied with an important qualification. The power of 
 the party to produce such counter-evidence, is always taken 
 into the account. Indeed, this is a point of view in which 
 the evidence on both sides is always to be considered. " It 
 is certainly a maxim," observed Lord Mansfield, in the case 
 of Blatch V. Archer, (&) " that all evidence is to be weighed 
 according to the proof which it was in the poioer of one 
 side to haveproduced, and in the power of the other to have 
 contradicted." But, taking this last maxim, for the present, 
 in its application to the defence only, it may be illustrated 
 
 (a) See the observations of Sayley, J. in Rex v. Burdett, 4 B. & Aid. 149; 
 and of the Chief Justice, Id. 161, 162. 1 Phill. Evid. 436. 
 
 (6) Cowp. 63, 65. See 1 Stark. Evid. 487. 2 Evans' Pothier on Oblig 
 289, 290. 
 
166 THE PROCESS OP [PABT I. 
 
 by a few further considerations. It rests on the broad pre- 
 sumption that a man will do that which tends to his obvious 
 advantage, if he possess the means, (a) On this ground, it 
 is remarked by a learned writer, that " if, on the supposition 
 that a charge or claim is unfounded, the party against 'whom 
 it is made, has evidence within his reach, by which he may 
 repel that which is offered to his prejudice, his omission 
 to do so supplies a strong presumption that the charge or 
 claim is well-fouuded ; it would be contrary to every prin- 
 ciple of reason, and to all experience of human conduct, to 
 form any other conclusion." (&) 
 
 Again, a party's power to produce evidence in his defence, 
 may be inferred from his situation, or the nature of the case 
 itself. The following extracts from the opinions of the 
 court of King's Bench in the case of Rex v. Burdett, (c) 
 very aptly illustrate this point. Presumptions of guilt, ob- 
 served Mr. Justice Holroyd, in that case, (d) " stand only 
 as proofs of the facts presumed, till the contrary be proved ; 
 and those presumptions are either weaker or stronger, ac- 
 cording as the party has, or is reasonably to be supposed to 
 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. It is established, as a general rule of evidence, 
 that, in every case, the onus probandi lies on the person who 
 wishes to support his case by a particular fact which lies 
 more peculiarly within his own knowledge, or of which he 
 is supposed to be cognizant. This, indeed, is not allowed to 
 supply the want of necessary proof, whether direct or pre- 
 sumptive, against a defendant, of the crime with which he 
 is charged ; but when such proof has been given, it is a 
 
 (a.) 1 Stark. Evid. 487. 
 
 (6) Id. 488. See 8 Phill. Evid. (Cowen & Hill's notes,) Note 288. 
 
 (c) 4 B. & Aid. 95 
 
 (d) /i. 140. 
 
CHAP. II.J INFERENCE OR PRESUMPTION. 167 
 
 rule to be applied in considering the weight of the evidence 
 against him, whether direct or presumptive, when it is un- 
 opposed, unrebutted-or not weakened by contrary evidence, 
 which it would be in the defendant's power to produce, if 
 the fact directly or presumptively proved, were not true." 
 The remarks of the Lord Chief Justice were still more 
 forcible. " In drawing an inference or conclusion from 
 facts proved," observed the learned judge, (a) " regard 
 must always be had to the nature of the particular case, 
 and the facility that appears to be afforded, either of expla- 
 nation or contradiction. No person is to be required to 
 explain or contradict, until enough has been proved to war- 
 rant 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 conclusion 
 to which 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 same rule has been very guardedly laid down 
 by Mr. Chief Justice Shaw, in the late case of Common- 
 wealth V. Webster. (6) " Where probable proof is brought 
 of a state of facts tending to criminate the accused, the 
 absence of all evidence tending to a contrary conclusion, is 
 to be considered, — though not, alone, entitled to much 
 weight ; because the burden of proof lies on the accuser, to 
 make out the whole case by substantive evidence. But 
 when pretty stringent proof of circumstances is produced, 
 tending to support the charge, and it is apparent that the 
 accused is so situated that he could offer evidence of all the 
 facts and circumstances, as they existed, and show, if such 
 were the truth, that the suspicious circumstances can be 
 accounted for, consistently with his innocence, and he fails 
 
 (a) 4B. & Aid. 161, 162. 
 
 (A) Bemis' Keport of the Trial, 4G7, (Boston ed. 18D0.) 
 
 / 
 
108 THE PROCESS OP [PART I. 
 
 to offer such proof ; the natural conclusion is, that the proof, 
 if produced, instead of rebutting, would tend to sustain the 
 charge. But this is to be cautiously applied ; and only in 
 cases where it is manifest that proofs are in the power of the 
 accused, not accessible to the prosecution." 
 
 To return to the preliminary process of raising a pre- 
 sumption from facts proved. The essential basis of the 
 whole investigation into the truth of the affirmative hypo- 
 thesis proposed, on a criminal trial, has already been shown 
 to be probability. Until an impression of the probability of 
 this hypothesis be produced upon the minds of the jury, no 
 presumption of guilt can begin to be distinctly formed. This 
 probability or presumption, (for the terms seem to be nearly 
 convertible) is usually and very properly considered as com- 
 pounded of the several concurring probabilities or presump- 
 tions derived from each separate fact shown in evidence, (a) 
 Hence the greater the number of independent concurring 
 facts proved, the greater the consequent aggTcgate proba- 
 bility of the truth of the fact sought. The effect of mere 
 number on the probative force of independent circumstances, 
 has already been considered. As to the effect of a combi- 
 nation of concurring facts or probabilities, more will be said 
 in another place. 
 
 The foundation of probability, as deducible from any 
 single evidentiary fact, is its perceived agreement or coinci- 
 dence with the supposition of the truth of the fact sought. 
 The term " coincidence " very aptly expresses the particular 
 idea usually conveyed by it; (6) and is constantly and 
 prominently used by the best writers on presumptive evi- 
 dence. The nature and effect of coincidences, therefore, 
 next occur as subjects of illustration. 
 
 Coincidences are of two kinds ; physical, otherwise called 
 
 («) 1 Stavk. Evid. 497, and note. 
 
 (*) A falling together upon one point : a meeting in one point, (Lat. coinci- 
 dere.) 
 
CHAP. IV.] mPEEENCE OR PRESUMPTION. 1G9 
 
 meclianical, -srhicli are the objects of sense ; and moral ; (a) 
 answering to a leading division, already noticed, of facts 
 or circumstances themselves. (6) The circumstance that 
 impressions made by human feet upon earth or snow, at a 
 certain place, correspond accurately with the feet of an 
 accused party, is a physical coincidence, (c) The connec- 
 tion between the acts and motives of a party is a moral 
 coincidence, (d) The ultimate point or object of coinci- 
 dence is, undoubtedly, the hypothesis of guilt proposed to 
 be proved. But there is also an intermediate coincidence, 
 of which the elements of evidence themselves are the sub- 
 jects. There is a coincidence between one evidentiary fact 
 and another, as well as between either of them and the 
 ultimate fact or hypothesis. Indeed, the latter is rather an 
 argumentative conclusion from the former, which is always 
 first established. Some examples of these particular coinci- 
 dences, with their effects, will now be given. 
 
 A person, while attending a fair, is robbed of a purse, 
 containing precisely seven sovereigns. Another person is 
 apprehended at the same fair, in whose possession is found a 
 purse containing precisely the same number of coins of the 
 same kind. This is a coincidence of the physical kind, (e) 
 A person receives a letter, over a feigned signature, contain- 
 ing a demand, and a threat against his life, if such demand 
 is not acceded to ; and appointing a particular day and hour 
 and a particular place, (a certain tree near a park mention- 
 ed,) as a time and place of meeting. He accordingly 
 repairs to the spot indicated, at the time appointed, and 
 
 (re) 1 Stark. Evid. 484, 485. 3 Phill. Evid. (Cowen & HiU's notes) Note 
 288. 1 Greenl. Evid. § 11. Shaw, C. J. in Commonwealth v. Webster, 
 Bemis' Report, 465. 
 
 (i) Ante, p. 129. 
 
 (e) Shaw, C. J. in Commonwealth v. Webster, ubi supra. 
 
 (d) Id. ibid. 1 Stark. Evid. 491, 492. See further on this subject, post. 
 Part II. 
 
 (c) See the example, presenting additional coincidences, infra. 
 
170 THE PROCESd OF [PART I. 
 
 there meets a person, (a) Here is another coincidence, 
 essentially physical, although a person is the suliject of it. 
 A piece of cloth is cut out of a loom and stolon. A person 
 is arrested, with a similar piece of cloth in his possession, 
 one of the ends of which is found to have been cut; and 
 the edge thus left, on being compared with the cut edge of 
 the remnant left in the loom, is discovered to fit it ex- 
 actly. (6) Here is a mechanical coincidence. The corres- 
 pondence, which is the essence of coincidence in those cases, 
 is ascertained, or made ta appear by the process of compwri- 
 son, which is either mental, as in the two iirst examples, or 
 actual and mechanical, as in the last. The immediate 
 object of such comparison is identification ; and this object 
 is attained in a more or less satisfactory degree, according 
 to the case. The fact of the loss of a certain description 
 of money in a particular place, being mentally compared 
 with the fact of finding the same description of money in 
 another's possession, in the same place, induces an impres- 
 sion, that it is the same money. But, although both facts 
 be fully proved, the resulting coincidence will, as we shall 
 see, be far from proof of identity. The fact of meeting a 
 person at a particular spot, compared with the fact that that 
 very spot has been indicated in a private letter previously 
 received, creates an impression that such person was either 
 the writer of the letter or some one sent by him. But in 
 this instance, also, the coincidence falls far short of proof. 
 The piece of cloth cut from the loom, being compared (by 
 actual application and adjustment,) with the remnant of 
 cloth left in it, and found to correspond in every particular, 
 creates a belief that the piece cut out and the piece ap- 
 plied, — the piece stolen and the piece found, are one and 
 the same. In this last case, indeed, the belief may be so 
 strong as to amount, in itself, to proof ; for a reason which 
 will be explained farther on. 
 
 (a) See the example, presenting additional coincidences, infra. 
 
 (b) 1 Stark. Evid. 497, 499, note. 
 
CHAP. IV.] INFERENCE OK PRESUMPTION. 171 
 
 The force and effect of coincidence, in its general result, 
 always depends upon the number, exactness and concurrence 
 of the several particular coincidences proved. A single 
 coincidence, however perfect in itself, is seldom or never 
 sufficient as proof. Thus, in the first of the above examples, 
 the two facts of seven sovereigns lost by one person and 
 seven sovereigns found in the possession of another, though 
 coincident, are perfectly consistent with the innocence of the 
 person in whose possession the coins are discovered. It is 
 possible, and, in a large assemblage of persons, not improb- 
 able, that two and even more individuals might have in their 
 purses identically the same number of pieces of coin, of the 
 same denominations. But, suppose the fact to be, that the 
 money lost or taken from the purse of the one individual 
 consisted of the following varieties in combination : — one 
 penny, two sixpences, three shillings, four half-crowns, five 
 crowns, six half-sovereigns, and seven sovereigns ; (a) — and 
 that the money found in the purse of the other, consisted of 
 precisely the same combination of coins. Here is a coinci- 
 dence, composed of seven minor and exact concurring coinci- 
 dences ; increasing, to a very high degree, the probability of 
 the supposition that the coins lost or taken and those found 
 are identically the same ; and rendering proportionately 
 improbable the supposition of an accidental coincidence, and 
 a consequently innocent possession. Indeed, on the latter 
 supposition, the coincidence would be most extraordinary ; 
 and yet, in the absence of the actual proof of the identity 
 of any part of the money, and of any other circumstance 
 operating against the accused, it would not amount to legal 
 proof. (6) The reason given is, that the probability, in this 
 case, however high, is one of a definite and inconclusive 
 nature, (c) " The probability," observes a learned writer, 
 
 (o) This is a hypothetical case, put by Mr. Starkie, in illustration of the 
 point under consideration. 1 Stark. Evid. 497, 499, note. 
 (6) Id. ibid, 
 (c) Jd. Ibid. 
 
172 THE PROCESS OF [PART I. 
 
 " 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 certainly 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 sufiBcient to warrant conviction in the particular 
 case, it would be impossible to draw the distinction between 
 the degree of probability which would, and that which 
 would not justify the infliction of penal retribution, in other 
 cases of inferior probability. 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 pre- 
 cise determination." {a) The same writer, however, adds, 
 that " 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." (6) What number of mechanical 
 coincidences may amount to proof, will be considered on a 
 subsequent page. 
 
 To take the next example, above given. Supposing that 
 the person met near the tree mentioned, on being accosted 
 by the other, (who gives his name) and asked if he had 
 any thing to say to him, answers in the negative, — the con- 
 clusion would be, that he was not the person expected, and 
 that the meeting was accidental ; and this contingency 
 could not, in itself, be pronounced other than possible, even 
 at the particular spot indicated ; especially if it was in a 
 place accessible to, or actually frequented by numbers of 
 persons. But supposing that, a few days after, a second 
 letter, pursuing the tone of the first, and written in a similar 
 hand, is received by the person previously addressed; in 
 which the writer, after virtually acknowledging that a mect- 
 
 (a) Wills on Circ. Evid. 215. (6) IJ. ibid. 
 
CHAP. IT.] INFERENCE OE PRESUMPTION. 173 
 
 ing had taken place, (■which, however, failed, for a reason 
 given,) appoints another place of meeting, namely, a par- 
 ticular aisle of a particular church, at a particular hour and 
 day named ; and that the person addressed, on repairing to 
 this second place, finds there the same person whom he had 
 seen and accosted before, — here is, with a small increase 
 of facts, a large increase of probabilities. First, there is 
 the admission of the fact of the first meeting, taking from it 
 its character of fortuitousness, and showing or tending to 
 show the person met to have been the writer of both the 
 letters. Secondly, independently of this, there is the in- 
 creased improbability that the same person should, by mere 
 accident, have been met at two different places privately 
 designated by another. Now, supposing the person, thus 
 twice met, on being accosted and inquired of, as on the 
 former occasion, replies, as before, that he had nothing to 
 say, — a possibility that he was not the writer still re- 
 mains, resting on the following infirmative suppositions. 
 As the character of the first place indicated, admitted of the 
 presence of several persons, it might have been that the real 
 writer of both letters was in the vicinity, near enough to 
 have 'vWtnessed and understood the interview between the 
 other two. The character of the second place appointed 
 might also clearly admit of the presence of several. But, 
 supposing, after all these occurrences, that a third letter is 
 received, in which the writer alludes to the second interviev), 
 and its failure ; and repeats the threats conveyed in the first 
 letter, without, however, appointing any new place of meet- 
 ing, — the probability that the '[jerson twice seen and spoken 
 with, was the writer of all the letters, or concerned in, or 
 privy to the writing of them, or, at least, in some way con- 
 nected with the transaction, becomes now so strong as to 
 satisfy almost any reasonable mind of the fact. And yot, 
 without other corroborative evidence, even these extraordi- 
 nary coincidences would not be regarded as a sufScient 
 
174 THE PROCESS OP [PART I. 
 
 ground of convicting the accused, especially in a capital 
 case, (ffi) 
 
 Moral coincidences are correspondences between the con- 
 duct of a party accuse'd of crime, and the supposition of his 
 guilt, or certain facts indicative of his guilt. Of this de- 
 scription are, — the previous existence of an adequate motive, 
 on his part, to commit the crime ; acts of preparation by 
 him, before its commission ; his subsequent conduct in re- 
 fusing to explain appearances or circumstances obviously 
 tending to criminate him ; and his own voluntary admissions 
 or confessions in regard to the transaction. The great value 
 of such coincidences consists in the closeness with which they 
 connect the crime with' the criminal, and in their general 
 freedom from liability to the infirmative suppositions of for- 
 tuitousness or accident. 
 
 (a) 1 Stark. Evid. 507, note. The facts stated in the text, in the way of 
 supposition, were, together with others equally strange, the actual facts, in 
 the very remarkable case of William Barnard, who was tried at the Old- 
 Bailey, in 1758, for sending a threatening letter to the Duke of Marlborough. 
 The Duke received three letters, written in an atrocious strain of threat, (the 
 first being signed with the name of the assassin Felton, and demanding a 
 genteel support for life,) and desiring to detect the writer, with a, view to 
 punishment, had two interviews with a person, in consequence, as stated in the 
 text. He finally received a fourth letter, signed " Anonymous," and appa- 
 rently from a different source, advising him to have an interview with Barnard 
 (whose address it gave,) and who was acquainted, it stated, with some secrets 
 that nearly concerned his safety. On sending for Barnard, the Duke found 
 that he was the person whom he had so repeatedly met! The defence set up, 
 on the trial, was, that the meetings were acci-lental, uni upon evidence of 
 this, corroborated by evidence of character, the prisoner was acquitted. It is 
 difiicult to resist the conviction, however, that he actually was a party to the 
 transaction ; though the real intention of the writer may have been different 
 from that conveyed by the letters ; and this appears to be Mr. Starkie's solu- 
 tion of the case. See the report of the trial, in 19 Howell's State Trials 815 ; 
 and in Burke's Trials connected with the Aristocracy, 228. Another singular 
 coincidence mentioned in the work last cited, remains to be stated. In the 
 first letter, the writer threatened that in case of the Duke's refusal to comply 
 with his request, his life would-be at a period before the session of parliament 
 should be over. The Duke died before ihe session expired. 
 
CHAP. IT.] INFERENCE OR PRESUMPTION. 175 
 
 Coincideuces of a merely physical or mechanical kind are 
 usually ranked, in point of probative efficacy, below those of 
 a moral nature ; (a) or rather, they are held to require 
 some intermixture of the latter, to give them the efficacy 
 desired in a body of evidence, (b) That mere number, 
 however, may give to purely mechanical coincidences, con- 
 clusive force as proof, may be illustrated by the last example 
 given on a previous page, (c) The coincidence between the 
 cut edges of two pieces of cloth, (supposed to have previ- 
 ously constituted one piece,) is composed of the separate 
 coincidences of each thread of the one, with each corres- 
 ponding thread of the other. Here, the resulting probability 
 that the two pieces have been one, or that the piece applied 
 to the remnant in the loom, is the identical piece which had 
 been cut off from it, and stolen, is said to exceed the bounds 
 of arithmetical calculation ; and to deprive the mind of all 
 power of attributing such a series of coincidences, to mere 
 accident, {d^ 
 
 The peculiar force of circumstantial evidence, as a medium 
 of judicial proof, consists in the union of what may be called 
 its affirmative and negative qualities, answering to the two 
 stages in the process of presumption, before considered : its 
 affirmative or positive force consisting in its power of raising 
 a presumption of guilt, by indicating the affirmative hypo- 
 thesis, or fact sought, as the probable and therefore the true 
 one ; its negative or exclusive force consisting in its power 
 of trying such presumption, by demonstrating that no other 
 hypothesis can be the truth. 
 
 The great principle of its force, considered in an afifirma- 
 
 {a) 1 Stark. Evid. 487. 497. 
 (A) Id. ibid. 501. 
 (c) Ante. p. 170. 
 
 (cf) 1 Stark. Evid. 497, 500, note. The circumstances constituting coinci- 
 dences of both kinds 'will be considered in detail in the second part of this work. 
 
176 THE PROCESS OP [PART I. 
 
 tive point of view, is the concurrence of several distinct 
 circumstances in their indication of one and the same ulti- 
 mate fact ; or the concurrence of several presumptions raised 
 from such circumstances, constituting one single general pre- 
 sumption of the truth of such fact, (a) This concurrence, 
 with its consequent effect, has been expressed by a variety 
 of figures, but by none more aptly than that of a convergence 
 of rays of light to a common focus or centre, (b) The 
 whole process of investigating truth by circumstances is, 
 most emphatically, a process of shedding light upon dark- 
 ness. The circumstances (to speak of them in their literal 
 import) stand around the principal fact, which, until they are 
 presented and placed in this relative position, often lies wholly 
 in the shade ; and it is by the combined light which they 
 throw upon it, each contributing its share, that the object 
 
 (a) A writer in the London Law Magazine, wlio has been occasionally quoted 
 in the preceding pages, has taken some pains to prove this view of the opera- 
 tion of circumstantial evidence, which is prominently maintained by the best 
 writers, to be radically erroneous. Without adverting to the two-fold char- 
 acter of the process, as indicated in the text, he assumes that the entire pro- 
 cess by which the evidence is applied, is considered as one of strict argument, 
 looking to an immediate result as proof. " This man is a murderer, because he 
 had blood on his clothes, and murderers have blood on their clothes," &o. He 
 Very properly pronounces such an argument to be illogical or inconclusive, 
 and maintains that no assignable number of illogical arguments can (that is. 
 by their mere union,) logically prove anything. 6 Lond. Law Mag. 360. But 
 he has obviously mistaken or mis-stated the process which is always actually 
 employed where the evidence is properly presumptive. It is not strictly logical 
 argument, looking to absolute proof aa its immediate object. The syllogistic 
 form of reasoning is never made use of, at least in the preliminary stage of 
 raising a presumption from facts. It is reasoning of the presumptive kind, as 
 it has been repeatedly explained, applied by a process of comparison, and re- 
 sulting in an impression of likeness, verisimilitude or probability, to be after- 
 wards confirmed to the strength of moral certainty, by the test of counter- 
 hypotheses. While, therefore, it is conceded that arguments in strict form, if 
 illogical, gain no force by being accumulated to any extent, it is equally clear 
 that it is of the essence of probability to acquire strength indefinitely, by this 
 very process. See Butler's Analogy, Introd. 
 
 (4) Wills on Circ. Evid. 214. 
 
CHAP. IT.J INFERENCE OR PRESUMPTION. 177 
 
 sought is revealed to view. It is this concurrence or united 
 bearing, which gives to the circumstances proved their great 
 efficacy as evidence. Without it, the force of facts, indi- 
 vidually considerable, may be neutralized and destroyed ; 
 with it, aided by number and independence, facts, indi- 
 vidually of slight significance, may become conclusive. 
 
 It has been said, however, that the mere concurrence of 
 even numerous circumstances, or their resulting probabilities 
 or coincidences, will not answer the purpose of proof, in 
 criminal cases, unless some of such circumstances or proba- 
 bilities be, in themselves, of a conclusive nature ; or unless 
 the number of the coincidences is so great as to exceed all 
 definite limits. " It seems," observes Mr. Starkie, " that, 
 in criminal cases, the mere union of a limited number of 
 independent circumstances, each of which is of an imperfect 
 and inconclusive nature, cannot afford a just ground for con- 
 viction." (a) The terms " conclusive " and " inconclusive," 
 it may be observed, are used by this writer in a somewhat 
 peculiar sense, as indicating the comparative effect of moral 
 and physical coincidences. (6) What is meant in the pas- 
 sage last quoted, seems therefore to be, that no concurrence 
 of any limited number of merely physical coincidences, un- 
 mixed with those of a moral kind, can be adequate to the 
 purpose of conviction. Further than this, its meaning can- 
 not be extended, (c) For it is obviously possible, and fre- 
 quently the case, that, in the words of Mr. Best, " a number 
 of circumstances, each individually very slight, may so tally 
 
 (0)1 Stark. Evid. 500, 501. 
 
 (4) Id. 487, 497, 501. 
 
 (c) The passage from Starkie, quoted in the text, seems to have been the 
 one had in view by the court, in charging the jury in the case of The State v. 
 McCann. But it is given with a proper and very important qualification. 
 " In criminal cases, the mere union of a number of independent circumstances, 
 each of which is inconclusive in its nature and tendency, cannot afford a just 
 ground for conviction, unless the combination is conclusive." 13 Smedes & 
 Marsh. 499. And see 3 Phill. Evid. (Cowen & Hill's notes,) Note 288, p. 475. 
 
178 THE PROCESS OF [PART I. 
 
 and confirm each otlier, as to leave no room for doubt of the 
 fact they tend to establish." (a) Or, in the more emphatic 
 language of Mr. JBentham, " even two articles of circum- 
 stantial evidence, — though each taken by itself, -weigh but 
 as a feather, — -join them together, and yon will find them 
 pressing on the delinquent with the weight of a mill- 
 stone." (6) This language, like the figure employed, may 
 perhaps be considered extravagant ; but the principle indi- 
 cated is, doubtless, the true one : Juncta juvant. (c) 
 
 The circumstances of a case, then, when proved and found 
 to be uniformly concurrent, in the sense which has been 
 explained, are to be taken together, considered in combi- 
 nation, and finally passed upon in that form, (d) This is 
 a mental process consequent upon the ascertainment of the 
 character of the facts theniselves, and, indeed, demanded 
 
 (a) Best on Pres. § 188. And see Becoaria on Crimes, chap. 14. 
 
 (6) 3 Benth. Jud. Eyid. 242. 
 
 (c) The civilians have compared the effect of this union of slight circum- 
 stances to the overwhelming pressure of a storm of hail. Qua singula non 
 Tiocerent, ea universa, tanquam grando, reum opprimant. Matthseus de 
 Crim. lib. 48, Dig. tit. 15, de Probationibus, p. 675. Carpzoeius remarljs 
 that one presumption aids another, and a multitude of circumstances united, 
 produce belief, or malce proof. Queest. 223, num. 57. The principle is ad- 
 mitted by Mr. Starkie himself, in its application to witnesses. " Where it is 
 once established," he observes, " that the witnesses to a transaction are not 
 acting in oonaert, then, although individually, they -should be umoorthy of 
 credit, yet if the coincidences in their testimony be too numerous to be at- 
 tributed to mere accident, they cannot possibly be explained on any other sup- 
 position than that of the truth of their statement." 1 Stark. Evid. 466. 
 
 (li) See the observations of Shaw, C. J. in Commonwealth v. Webster, 
 Bemis' Report, 465. "It seems to be of the greatest importance," says 
 Butler, " that the -proof of revelation is, not some direct and express things 
 only, but a great variety of circumstantial things also ; and that though each 
 of these direct and circumstantial things is indeed to be considered separately, 
 yet they are afterwards to be joined together ; for that the proper force of the 
 evidence consists in the results of those several things, considered in their 
 respects to each other, and united into one view." Analogy, part 2, chap. 7. 
 And again, " the truth of our religion, like the truth of common matters, is 
 to be judged of by all the evidence taken to^ethir." Id. ibid. 
 
CHAP. IV.] INFERENCE OR PRESUMPTION. 179 
 
 by it. For, as the original facts constituted the case which 
 actually occurred, by means of their connection, it is obvious 
 that the case cannot be re-constructed out of the facts proved, 
 (which is always necessary, in order to make it a subject of 
 intelligent consideration) or, in other words, that no rational 
 view or theory- of it, as a whole, can be formed without a 
 similar process. This process has, as was just observed, 
 been illustrated by a variety of figures. It has been com- 
 pared to the construction of an arch out of a number of 
 separate stones ; to the weaving of a rope or cable out of a 
 number of separate filaments ; (a) and to the formation of 
 a chain out of a number of separate links. (6) The last 
 figure is the one most frequently employed, and it expresses 
 with great aptness and force, as well as simplicity, the chief 
 characteristic of the whole procedure, — connection in a 
 logical series, with a reference throughout to historical 
 order. The great object wil^h which criminative evidence is 
 presented to a jury, is always to form such a chain, in which 
 each circumstance or link shall be in its proper place ; and 
 all, taken together, shall connect the crime with the criminal 
 in the most effectual and satisfactory manner. 
 
 Again, the circumstances are not only to be combined, but 
 held in combination, and so passed upon. They are not to 
 be separated from each other, merely for the purpose of 
 examining and weighing the force of each, apart from the 
 rest. This method of argument is, indeed, often resorted 
 to, in practice, with a view to destroy the effect of a 
 mass of criminative evidence otherwise miassailable. But 
 to attempt to test the force of a body of evidence by this 
 means, would be as rational as to test the strength of an 
 arch, by taking it to pieces, and passing on the force of 
 
 (o) Wills on Circ. Evid. 214 : citing Reid's Esgay on the Intellectual 
 Powers, chap. 3. Clifford, Attorney General, arg. In Commonwealth v. 
 Webster, Bemis' Report, 397. 
 
 (4) BestonPres. §§ 187, 188. 
 
180 THE PROCESS OP [PART I. 
 
 each individual stone ; or the strength of a cable, by un- 
 twisting it into its component filaments, and demonstrating 
 the weakness of each, by snapping it separately asunder. 
 The chain of facts, once constructed, is not to be broken up, 
 with the mere view of showing the separate insufficiency of 
 each link composing it j and thence inferring the insuffici- 
 ency of the whole as connected, (a) It is true that it al- 
 ways may be assailed with the simple view of breaking it, 
 and thus destroying the continuity which constitutes its 
 chief value ; and this expedient is constantly resorted to, in 
 practice, by advocates for prisonei-s, and often with distin- 
 guished success. But in this procedure, it is not so much 
 the elementary facts themselves which are assailed, as the 
 connection which they are claimed to form. Where two 
 facts or groups of facts, in a chain, are seen to be incon- 
 sistent with each other, and so not capable of connection, 
 or where a link, though ever so small, is palpably wanting, 
 or only seemingly present, or, if present, improperly so ; or 
 is obviously too weak to answer the purpose of connection ; 
 a point of attack is offered which may always be legitimately 
 taken advantage of. 
 
 The process of analysis is doubtless always an important 
 and a necessary one ; and is constantly called into exercise 
 iu trials for crimes. It serves to test the relevancy and 
 bearing of each particular fact, to determine its consistency 
 with the rest, and to give it its proper individual significance. 
 But it is, in its nature, so far as the jury are concerned, 
 merely a preparatory one to the more important process of 
 combination ; without which, indeed, the whole investigation 
 would be left without an aim. It is a sifting of the mate- 
 rials of construction, to ascertain whether they properly 
 belong to the case, and are capable, by means of their con- 
 
 (o) See the observations of Mr. Bentham, 3 Jud. ^vid. 230, 282. And 
 see the observations of the SoUoitor General, in the case of John Burbot, 18 
 Howell's State Trials, 1302. 
 
CHAP. IV.] INFERENCE OR PRESUMPTION. 181 
 
 sistency, of being imited into one body. Force, weight and 
 efficacy'are, unquestionably, indispensable considerations to 
 the formation of any satisfactory conclusion from circum- 
 stances. But they are final, rather than intermediate con- 
 siderations ; applicable to the evidence as a body, and not 
 to its constituent elements. 
 
 Having thus considered the force of circumEtantial evi- 
 dence, in a positive or affirmative point of view, as exempli- 
 fied in the process of raising a presumption from facts, on 
 the basis of probability ; it remains, in the next place, to 
 consider it with reference to its negative or exclusive efficacy, 
 by which it finally proves the presumption raised, to be the 
 true one, by negativing or excluding every other : and this 
 is a point of view which never can be overlooked or dis- 
 pensed with. 
 
 Supposing then, that, by a course of examination, combi- 
 nation and inference, such as has already been described, 
 the jury have reached the point of forming an affirmative 
 belief of the probability, and strong probability of the hypo- 
 thesis of guilt ; their task is not yet completed. A great 
 and final test of the accui-acy of the conclusion they are thus 
 led to form, remains to be applied ; in which the entire and 
 peculiar efficacy of circumstantial evidence is said to con- 
 sist ; (a) its application constituting the second stage in the 
 general process of presumption employed in the case. This 
 test is the negative point of view, just mentioned. It is not 
 sufficient that the circumstances proved, coincide with, ac- 
 count for, and therefore render probable the hypothesis 
 sought to be established ; but they must exclude, to a moral 
 certainty, (b) every other hypothesis hut that single one. (c) 
 
 (fl) Wills, Circ. Evid. 17. 6 Lond. Law Mag. 364, note. 
 
 (i) 1 Stark. Evid. 482, 483. See farther, post, in this section. 
 
 (c) Best on Pres. § 210. Wills, Circ. Evid. 149. 1 Stark. Evid. 510. 1 
 PhiU. Evid. 438. 3 Id. (Cowen & HUl's notes) Note 28a 1 GreenI Evid. 
 § 13, a. 
 
182 THE PROCESS OP [PAKT I. 
 
 The object of this rule is to guard against the consequences 
 of haste and want of circumspection, and to combat the 
 tendency of the mind to take a one-sided view of facts, 
 when under the influence of a few powerful impressions. 
 The law, in its solicitude for the protection of individual 
 rights, under the most adverse circumstances, has estab- 
 lished the presumption or rule, already adverted to, that 
 every person is to be supposed innocent, until actually proved 
 to be guilty. This great fundamental presumption it holds 
 conspicuously before the jury, during the whole course of their 
 investigation ; and demands that it shall not be abandoned, 
 so long as any reasonable probability of its truth remains. 
 
 The hypothesis of guilt, in its most comprehensive sense, 
 we have seen to be the general proposition offered for proof, 
 on the part of the prosecution, that the accused is guilty of 
 the crime charged ; being the affirmative branch of the issue 
 before the jury, and the principal fact, ov factum probandum, 
 of the case. Spread out into particulars, this hypothesis or 
 proposition takes the form of a connected statement of the 
 leading facts of the case, as they are supposed to have oc-- 
 curred ; constituting what is often called the theory of the 
 case on the part of the prosecution. It is to sustain this 
 single theory, in its necessary details, that the facts proved 
 are framed into that particular combination akeady described 
 as a chain of evidence. 
 
 Supposing this chain to be so far perfect, that it cannot be 
 directly assailed on the part of the accused, by showing the 
 proof to be inadequate for the purpose of conviction ; its 
 force may frequently be evaded by taking the ground that 
 the facts proved do not necessarily or exclusively lead to, 
 or require the adoption of the theory claimed to be made 
 out, but that they may reasonably admit of another solution 
 or explanation, consistently with the idea, supposition or 
 belief, that the prisoner is innocent. Such an explanation, 
 given in detail, or in outline, presents what is called the 
 
CHAP. IV.] INPBEENCE OR PRESUMPTION. 183 
 
 particular hypothesis or " theory" of the case, on the part 
 of the prisoner ; and it sometimes happens, in certain com- 
 binations of facts, that a case 'trill admit of several of 
 these counter or rival hypotheses, as they have been termed. 
 These hypotheses are usually presented and urged by the pris- 
 oner's counsel in his closing address to the jury ; and they 
 are rested sometimes solely on the prosecutor's facts, and 
 sometimes upon these, as modified by facts shown in oppo- 
 sition. In some cases, they are of such a nature as to occur 
 to the jury themselves, as mere supposable facts of which 
 no evidence has been given. But in whatever way pre- 
 sented, if the case appear reasonably to admit of them, they 
 should always be examined by the jury, and applied as tests 
 of the correctness of the conclusion which they are about to 
 form. As they all purport to be founded upon the general 
 supposition of the prisoner's innocence, they must all be 
 satisfactorily disposed of, and excluded from the case, before 
 that supposition can with safety be abandoned. 
 
 These particular negative or infirmative hypotheses are all 
 reducible to two : — ^first, there has been no criminal agency 
 in the case ; secondly, admitting a criminal agency to be 
 proved, the agent has been some other person than the 
 prisoner at the bar. (a) The former of these involves the 
 sufficiency of the proof of a corpus delicti, which has already 
 been generally remarked upon ; (b) and it may be illustrated 
 by the explanations or solutions which have been offered by 
 some able writers, of the famous example of violent pre- 
 sumption given by Lord Coke. A man is found dead in a 
 house, having been run through with a sword ; another man 
 is seen coming out of that house, with a bloody sword ; and 
 
 (o) These are the two leading positions, coastantly assumed in pi-aotice, for 
 the defence ; corresponding with and intended to meet the two general con- 
 secutive points which are always to be made out by the prosooutor ; namely, 
 that a crime has been committed, and that the prisoner is the person who 
 eommitted it, 
 
 <b) See ante, p. 119. 
 
184 THE PBOCESS OP [PART I. 
 
 n.0 other person was at the time, in the house. The man 
 with the sword is arrested, and pat on trial for murder. 
 Now, instead of concluding, with Lord Coke, (a) Chief 
 Baron Gilbert, (6) and others, (c) that the facts of the 
 case conclusively prove the accused to have been the mur- 
 derer of the other, it has been said that they may be ex- 
 plained, consistently with the idea or supposition of his 
 innocence, upon either of the two following hypotheses ; 
 both proceeding on the ground that no murder at all has 
 been committed. First, the facts may have been, that the 
 deceased committed suicide, by plunging the sword into his 
 own body; and that the accused being present, and not 
 being in time to prevent the act, drew out the sword, and 
 ran out with it, through confusion of mind, for surgical 
 assistance. Or, secondly, the facts may have been, that, 
 the deceased and accused both wearing swords, the deceased 
 in a fit of passion attacked the accused ; and the latter, 
 being close to the wall and having no retreat, had just time 
 to draw his own sword, in the hope of keeping the other 
 off; but the deceased, not seeing the sword in time, ran 
 upon it, and so was killed. (<f) 
 
 Of the second class of infirmative hypotheses, — those, 
 namely, which proceed on the ground that some other person 
 than the accused has committed the crime charged, — the 
 following may be taken as an illustration. A person has 
 been found murdered in a dwelling-house inhabited by no 
 one besides the deceased and the prisoner. The circum- 
 stances strongly indicated that no other pei'son could have 
 been in the house, at the time of the murder, except these 
 two : no person had been seen or heard to enter from with- 
 
 (a) Co. Litt. 6 b. See ante, p. 61. 
 
 (4) 1 Gilb. Evid. 157. 
 
 (c) 2 Hawk. P. C. c. 46, s. 42. 1 Stark. Evid. 483, 484, note. Eosooe's 
 Crim. Evid. 14. 
 
 (i) See 3 Benth. Jud. Evid. 236, 237 ; quoted, substantially, by Mr. Best. 
 Best on Pres. § 30. 
 
CHAP. IV.] INFERENCE OE PEESUMPTION. 185 
 
 out ; the doors and windows, through which an entry would 
 naturally be made, were found closed and secure as usual, 
 and upon none of them, nor upon the ground about the 
 house, were the slightest traces of any entry found. The 
 house stood alone, but it stood in a narrow street, with 
 houses upon the opposite side. Such a case was tried, not 
 long ago, in England, (a) Here the facts proved, although 
 not numerous, were strongly criminative, (6) consistent with 
 the guilt of the prisoner, and, taken together, reasonably 
 indicated the hypothesis of that fact to be the natural and 
 probable, and therefore the true one. Now, as a particular 
 exculpatory hypothesis, it was possible that an entry might 
 have been effected by some person, other than the prisoner, 
 from one of the opposite buildings, by thrusting a board 
 across the street, from an upper window to an upper (and 
 unsecured) window of the house in question. It is not 
 known whether such an hypothesis was actually suggested 
 on the trial ; but had it been, it was so far out of the range 
 of ordinary probabilities, that little weight would probably 
 have been attached to it. And yet it turned out to be the 
 actual and only truth of the case, (c) although too late to 
 save the prisoner, who was executed upon the strength of 
 evidence which, doubtless, was regarded, at the time, as 
 abundantly sufficient to warrant conviction. Tliis was a 
 striking example of the deplorable consequences of neglect- 
 ing to notice every hypothesis favorable to a party accused, 
 which the facts of a case will admit. 
 
 The foregoing are examples of negative or infirmative 
 
 (a) This case is referred to by Mr. Starkie, in a very general way, as taben 
 from "common report," and occurring "some years before" his work on 
 Evidence was written. 1 Stark. Evid. 613, note. 
 
 (i) There were some other circumstances in the case, but of a less impor- 
 tant character. Id. ibid. 
 
 (c) The real murderers, on being afterwards apprehended, confessed that 
 they had entered and left the house by the upper window, in the way men- 
 Uoned. 1 Stark. Evid. ubi supra. 
 
\ 
 
 186 THE PROCESS OP [PART I 
 
 hypotheses, which might have been opposed to the hypothesis 
 or theory of the prisoner's guilt, in the cases stated. An 
 example of similar hypotheses, actually proposed and strenu- 
 ously maintained on the trial, was furnished in the late 
 American case of Commonwealth v. Webster. The hypo- 
 thesis or theory, on the part of the prosecution, in that case, 
 was that the deceased, between two certain hours of a day 
 specified, entered the chemical lecture-rooms in the Massa- 
 chusetts Medical College, occupied by the prisoner, and then 
 and there had an interview with him ; that he never with- 
 drew from those rooms, or left .that building alive ; that the 
 parties never separated ; but that the deceased was there 
 slain, and the remains of his body disposed of, and kept 
 concealed by the prisoner, in the building, until their dis- 
 covery during the week ensuing, (a) To meet this, there 
 were various propositions, views or theories advanced for 
 the prisoner; but the hypothesis formally presented and 
 principally relied on, in his behalf, was, — that the deceased 
 was killed, after leaving the building, by some person un 
 known, and his body carried into the apartments of the 
 prisoner, where it was disposed of and concealed. (6) 
 
 The intirmative or counter hypotheses which have just 
 been described are identical in character with the infirma- 
 tive suppositions considered on a previous page ; (c) only, 
 they are reserved to a later stage of the investigation ; or 
 rather, they are applied to the facts taken collectively, after 
 all the evidence has been presented, and not to each fact as 
 it is separately proved. They are applied on a principle 
 analogous to that observed in geometrical demonstrations, 
 in which, out of a number of hypotheses supposed, one after 
 another is examined and shown to be absurd, and therefore 
 rejected ; leaving only the original solution, the sufficiency 
 
 (o) Soe Bemis' Report of the trial, 287, 288. 
 (i) Id. 338, 339, 346, 361, 371. 
 (e) See anU, p.p. 153, 154, 
 
CHAP. IV.J INPEEENCB OB PEESUMPTION. 187 
 
 of which has already been affirmatively proved, and is now, 
 by this reverse process of negation or exclusion of all others, 
 conclusively established, (a) 
 
 The great object, then, of the jury, at this stage of the 
 trial, should be to possess themselves of all the negative or 
 counter-hypotheses of which the case will reasonably admit. 
 The deplorable consequences of overlooking a single one, 
 have been illustrated by one of the examples just given. 
 " It is essential," observes Mr. Starkie, " to inquire, with 
 the most scrupulous attention, what other hypotheses [be- 
 sides the affirmative one,] there may be, which may agree, 
 wholly or partially, with the facts in evidence. Those 
 which agree, even partially, with the circumstances, are not 
 unworthy of examination, because they lead to a more 
 minute examination of those facts, with which, at first, they 
 might appear to be inconsistent ; and it is possible that, upon 
 a more minute investigation of those facts, their authenticity 
 may be rendered doubtful, or may be even altogether dis- 
 proved. In criminal cases, the statement made by the ac- 
 cused is, in this point of view, of the most essential impor- 
 tance. Such is the complexity of human affairs, so infinite 
 the combinations of circumstances, that the true hypothesis 
 which is capable of explaining and reconciling all the appa- 
 rently conflicting circumstances of the case, may escape the 
 acutest penetration ; but the prisoner, so far as he alone is 
 concerned, can always aflbrd a clue to them ; and though 
 he be unable to support his statement by evidence, his ac- 
 count of the transaction is, for this purpose, always most 
 material and important. The effect may be, on the one 
 hand, to suggest a view of the case which consists with the 
 
 (o) 1 Stark. Evid. 481, note. The Roman law does not seem to have pro 
 vided any test of this particular kini But, in lieu of this, it required the 
 positive impression or assurance of guilt to be of the very highest degree of 
 strength conceivable ; and to express this degree, it made use of an extravi- 
 gant figure, — the 'piooi maSt he clearer than light, (luce clarioribus.) Cod. 4, 
 19, 25. 
 
188 THE PROCESS OP [PART I. 
 
 innocence of the accused, and which might otherwise have 
 escaped observation ; on the other hand, its effect may be to 
 narrow the question to the consideration whether that state- 
 ment be or be not excluded and falsified by the evidence."(a) 
 
 Having possessed themselves of all these counter-hypo- 
 theses which the most diligent inquiry and reflection can 
 afford, the next step, on the part of the jury, and the most 
 important one in the whole trial, is to dispose of them satis- 
 factorily ; it being an invariable rule that they must all be 
 excluded from the case, before the affirmative hypothesis, 
 however otherwise clear, can be safely adopted. The great 
 object of all evidence being to establish truth, which, in its 
 nature, is single and exclusive, so long as the evidence leaves 
 it indifferent which of several hypotheses is true, it can never 
 amount to proof of the principal fact sought. 
 
 The process by which these hypotheses are disposed of, 
 may now be more particularly considered. Before they can 
 be admitted to any efficient influence as tests of the suflS- 
 ciency of the affirmative hypothesis, they must themselves 
 appear to be possessed of a determinate quality. In other 
 words, they must themselves be tested, and this is done by 
 employing the same process and applying the same standard, 
 as those by which the affirmative hypothesis itself was pre- 
 sumptively established. They must be compared with the 
 facts of the case as shown in evidence. The inquiry in 
 regard to each separate hypothesis, as it is taken up for 
 examination, must always be, — " Does it consist with, or 
 account for these facts, and to what extent ? " 
 
 If it appear that it accounts for the facts with greater 
 reason than the "affirmative hypothesis, the result is obvi- 
 ous, — the latter must be abandoned. If it account for them 
 with equal reason, the same effect is produced, an equi- 
 librium of judgment being the consequence. And if it 
 
 (o) 1 Stark, Evid. 512. 
 
CHAP. IV.] INFERENCE OB PEESUitPTION. 189 
 
 account for them so far as to render it probable, against only 
 a greater probability on the affirmative side, the result must 
 be the same ; mere probability, as we have seen, never con 
 stituting a sufficient basis of conviction, (a) 
 
 If, on the other hand, the hypothesis under examination 
 be obviously inconsistent mth the facts in evidence, or 
 the great mass of them, or with any clearly ascertained facts 
 of a leading character ; or if it utterly fail to account for 
 them, or leave them ■without any reasonable significance ; it 
 cannot be allowed to prevail against an affirmative hypo- 
 thesis which has already answered and satisfied all these 
 conditions. In such a case, the circumstances or facts are 
 said to exclude the hypothesis under consideration ; and 
 upon the same principle, one after another, (where there are 
 several,) is examined and rejected, until the only reasonable 
 hypothesis left in the case is the affirmative one, which has 
 already been preliminarily or presumptively established, (b) 
 In such an event, no alternative remains but to adopt that 
 hypothesis, and consequently to convict the prisoner. 
 
 In order to exclude a counter or infirmative hypothesis, it 
 is not sufficient that it appear in itself, or in the abstract, 
 improbable. That a person, intending to enter a house for 
 a criminal purpose, should adopt the expedient of thrusting 
 a board across a street, from the upper window of another 
 house, might perhaps appear in itself improbable, although 
 even more improbable modes of entry than this, have some- 
 times been found to consist with actual fact. The great 
 test is the one just mentioned ; it must fail to accoimt for 
 the fundamental criminative facts. In the case of the entry 
 of the house, in the example before given, the hypothesis of 
 
 (o) And see 1 Stark. Evid. 506, 507. 
 
 (6) Hypothetical reaaonings are susceptible of the highest degree of en- 
 dence when the given [affirmative] hypothesis explains many phenomena, and 
 contradicts none ; and when every other hypothesis is inconsistent with some 
 of the phenomena. Theory of Presumptive Proof, 21. 
 
190 THE PROCESS OP [PAET I. 
 
 an entry in the way just mentioned, -would have borne this 
 test ; it would have accounted, in the most perfect manner, 
 for the absence of all marks of fracture or entry upon the 
 doors and windows examined, as well as for the absence of 
 all traces of footsteps on the ground outside of the house. 
 In the case of the Commonv}ealth v. Webster, the hypo- 
 thesis urged in behalf of the prisoner, was, in itself, in a 
 high degree improbable, although based on facts claimed to 
 have been' actually proved ; namely, that the parties sepa- 
 rated after the interview had between them, and that the 
 apartments where the remains were found, were accessible 
 to other persons besides their ordinary occupant, {a) But, 
 in addition to intrinsic improbability, it failed to account for 
 the great mass of the affirmative facts, or, at least, to ac- 
 count for them with any thing like the accuracy and fullness 
 of the affirmative hypothesis ; and its actual falsity through- 
 out was subsequently proved by the confession of the ac- 
 cused himself. In connection with this case, the following 
 passage from a well-known writer on evidence, has a very 
 appropriate application. " In a criminal case, where all the 
 circumstances of time, place, motive, means, opportunity and 
 conduct concur in pointing out the accused as the perpetrator 
 of an act of violence, the force of such circumstantial evi- 
 dence is materially strengthened by the total absence of any 
 trace or vestige of any other agent ; although, had any other 
 existed, he must have been connected with the perpetration 
 of the crime, by motive, means and opportunity, and by 
 circumstances necessarily accompanying such acts, which 
 usually leave manifest traces behind them." (6) 
 
 But while it is not sufficient ground for the rejection of a 
 counter-hypothesis, that it is merely improbable, either in 
 the abstract, or in the light of the facts proved ; it is not, 
 on the other hand, necessary to its exclusion, that it' should 
 be seen to be absolutely impossible. If its truth be rendered, 
 
 (a) Bemis' Report, 338. (6) 1 Stark. Evid. 494, 495. 
 
CHAP. IV.] INFERENCE OR PRESUMPTION. 191 
 
 on the principles of reason and experience, exceedingly re- 
 mote and improbable, and morally, though not absolutely 
 impossible, it will be sufiBcient to exclude it in favor of the 
 affirmative hypothesis, {a) But it must, at least, be reduced 
 within the limits of physical possibility. (6) 
 
 As the facts of the case, then, constitute the great stand- 
 ard by -which the hypotheses on both sides are to be tried, 
 the importance, (often already adverted to,) of being pos- 
 sessed of all the facts, and of contemplating them in all 
 reasonable lights and connections, becomes more than ever 
 apparent. If these conditions are attained, the process of 
 disposing of whatever counter-hypotheses may present them- 
 selves, becomes a short and easy one. In the case of the 
 man run through with a sword, given, in the way of example, 
 by Lord Coke, a single fact showing the nature and direction 
 of the wound, or showing the existence of several wounds 
 on the body, might, of itself, at once exclude both the hypo- 
 theses proposed. Again, where the facts are numerous, 
 and the connections established by them proportionately so, 
 a similar effect will be produced. The case of Eex v. 
 Richardson, which will be given in a subsequent chapter, 
 was of this character. In that case, the circumstances were 
 numerous and varied, and the coincidences founded upon 
 them, minute, multiplied and thoroughly accordant, fixing 
 the charge of guilt on the accused, in the clearest manner. 
 Hence the hypothesis set up in his behalf, — that a boat's 
 crew, proved to have landed at a place not far from the 
 scene of the crime, might have been the perpetrators of the 
 murder, — was seen at once to be wholly untenable. It would 
 not account for the facts proved. To have allowed it weight 
 enough to raise a doubt in the minds of the jury, would have 
 been attended with the absurd result of destroying the sig- 
 nificance of every fact accumulated in that remarkable mass 
 
 (a) 1 Stark. Evid. 482. (6) Best on Pres. § 195. 
 
192 THE PROCESS OP [PART I. 
 
 of evidence, wliicli was afterwards signally confirmed as the 
 truth by the prisoner's own confession. 
 
 It has been well said that " a few circumstances may be 
 consistent with several solutions, but the whole context of 
 circumstances can consist with one hypothesis only; and 
 the wider the range of circumstances is, the more certain 
 will it be that the hypothesis which consists with, and recon- 
 ciles them all, is the true one." {a) It would be extraordi- 
 nary indeed, if the same body of genuine and consistent 
 facts could give rise to, and support, with any show of 
 reason, two hypotheses involving radically different, if not 
 diametrically opposite, conclusions. 
 
 The great advantage arid constant efEect of entertaining 
 in the mind, for however short a period, all possible hypo- 
 theses in opposition to one already provisionally established, 
 however improbable they may .individually be, and even, 
 though no evidence whatever has been adduced in their 
 support, are — that it efi'ectually checks precipitancy, and 
 secures, to the utmost attainable degree, the thorough ex- 
 amination of the essential grounds upon which the verdict 
 is to rest. It leads the jury to review and scrutinize, some- 
 times repeatedly, the, whole evidence before them ; to satisfy 
 themselves as to the facts proved, and the connections which 
 they have been supposed to form ; to contemplate them in 
 every reasonable point of view ; to reconsider, under new 
 lights, their previous inferences ; and to test the sufficiency 
 of the entire chain of evidence by forces applied at every 
 possible point. Tried by 'so searching a process as this, the 
 belief of the truth of the hypothesis of guilt, if it still con- 
 tinue to prevail in their minds, may well be relied on as 
 possessing the quality— indispensable in ail criminal cases, — 
 of moral certainty. 
 
 Such is a view (however imperfect) of the manner in 
 
 (a) 1 Stark. Evid. 503. 
 
CHAP. IT.] INFEEENCE OB PRESUMPTION. 193 
 
 which a body of circumstantial CTidence, of the usual pre- 
 sumptive kind, ia found to perform its peculiar function, as 
 an instrument of judicial inyestigation into the truth of a 
 criminal charge ; by making the truth of a fact unknown, 
 and inaccessible by direct means, apparent by inferential 
 deduction from the truth of other facts left within the reach 
 of the investigator. The perfection of its operation may be 
 summarily considered to consist in the combination of the 
 two leading qualities which have been described ; by the 
 first of which, a certain given hypothesis is reasonably 
 indicated as probable, and by the last, satisfactorily proved 
 as true. 
 
 The whole process by which the jury are enabled thus to 
 apply the facts in evidence to the fact sought, is, essentially, 
 that of natural presumption, (a) as it has already been 
 fully described, {b) unfettered by artificial or arbitrary 
 rules. The* faculty principally called into exercise is the 
 judgment, or that power (common to all persons of ordinary 
 intelligence) by which the relations of facts are perceived, 
 and their natural significance, bearing and effect accorded 
 to them. And the intrinsic character of the facts them- 
 selves, (many of them being of the most familiar kind, and 
 the majority, of a nature to fall under the observation of 
 most men, in the daily concerns of life,) enables the jury to 
 deal with them as they would with a similar body of facts 
 affecting their own private interests, where the conclusion 
 necessary to be formed would be one upon which some 
 important action of their own was to be founded. It was 
 well remarked, in a late important American case, that " ths 
 common law appeals to the plain dictates of common ex- 
 perience and sound judgment, and the inference to be drawn 
 from all the facts must be a reasonable and natural one," (c) 
 
 (a) 1 Greenl. Evid § 48. 
 
 (4) See ante. Chapter II. Section I. 
 
 (c) Shaw, C. J. in Commonwealth v. Webster, Bemis' Report, 466. 
 
 17 
 
194 THE PROCESS OP INFEREITCE. [PART I. 
 
 But although this process of presumption is free from the 
 restraints of technical and arbitrary rules, it is, nevertheless, 
 held in constant and salutary control by the mere effect of 
 the grave and often momentous circumstances under Tfhich 
 it is exercised. The various minor or auxiliary processes 
 which, in important cases, must always be gone through 
 with, before the facts are prepared for the final question 
 upon them, — those, namely, of analysis, comparison, ar- 
 rangement and combination, — exclude the hasty and emo- 
 tional action which often accompanies presumption of the 
 merely natural kind. Conspicuous among these is the pro- 
 cess of weighing, (a) — the appropriate function of the 
 judgment, — ^whether applied to a single subject, or to two or 
 more in comparison. The whole attitude and frame of the 
 juror's mind, indeed, throughout the trial, should be of a 
 character comporting with the idea which the term " weigh- 
 ing" so expressively conveys. Unlike the jJhilosophical 
 investigator, he has no general principle to settle, but Ms 
 business exclusively is to interpret into a single collective 
 expression of belief, the particular facts of the case before 
 him. Hence he is not to admit into his mind any pre-con- 
 ceived theory, with which the facts proved are, if possible, 
 to be squared. The hypothesis of guilt, though proposed in 
 
 (a) It has sometliDes been said that, in criminal cases, the evidence is not 
 to be weighed. M.10 Nally on Evidence, 578. But by this must be understood, 
 that juries are not to suffer their niinds to be occupied with nice, elaborate and 
 protracted balancings of conflicting probabilities, in doubtful cases. In the 
 sense of deliberate examination, with a Yie^T to ascertain the force of a Single 
 subject, the process of weighing must necessarily he carried on constant- 
 ly; and in the sense of examination, with a view to ascertain the com- 
 parative force of two or more subjects, it is found to be exercised at every 
 stage of the trial. The testimony of one witness is weighed against that of 
 another, fact against fact, one group of &cts against another ; and so it is with 
 the inferences deducible from them, and with the opposite or rival hypotheses 
 which have been before explained. Without weighing, in short, the jury 
 would be left without an indispensable means of forming any judgment on the 
 case before them. 
 
CHAP. IV. J THE CONCLUSION OE VERDICT. 195 
 
 terms as the primary subject of proof, and necessarily occu- 
 pying the most prominent place, as the principal fact in the 
 case, is not to be considered as a proposition to which the 
 evidence is, if possible, to be adapted, but as a future con- 
 clusion to be naturally drawn out of it, without straining a 
 single fact beyond its proper significance, and without sup- 
 plying (except in the way of legitimate inference) a single 
 fact not actually proved. 
 
 When the evidence has reached that ultimate point of 
 impressiveness and effect which has been described, although 
 still " presumptive " in one sense, it is no longer merely 
 presumptive, in another, {a) It advances to that higher 
 degree, where it is denominated " conclusive," and becomes 
 invested with the quality of full proof. In other words, the 
 general inference finally deduced from it loses the prelimi- 
 nary, incomplete and conditional character in which it first 
 appeared, and assumes that more full and perfect one, upon 
 which the mind confidently reposes, as — to all human view — 
 the actual truth sought. But the more particular examina- 
 tion of the conclusion itself belongs to the next division of 
 the subject. 
 
 SECTION IV. 
 
 The Conclusion or Verdict. 
 
 Having, in the preceding section, considered the general 
 process by which the fact sought, or conclusion required 
 from the jury, is deduced by them from the facts shown in 
 evidence ; we proceed next and finally, to consider the char- 
 acter of such conclusion itself. 
 
 (a) See ante, p. 89. 
 
196 THE CONCLUSION [PART I. 
 
 The object of every criminal trial is the proof of the prin- 
 cipal fact in issue, or the general affirmative hypothesis pro- 
 posed, — ^that the accused is guilty of the crime charged. 
 Proof we have seen to be the result and effect of evidence ; 
 that is, it is evidence producing a satisfactory impression 
 upon the mind, or, creating a persuasion or assurance of the 
 truth of the fact sought to be established. In responding, 
 therefore, to the final question which is always asked of the 
 jury, — " guilty or not guilty ? " — they virtually respond to 
 the question — " proved or not proved ? " For, as they are 
 bound by the rule of law already considered, to presume the 
 accused innocent, until proved guilty, failure in this proof 
 serves to confirm the presumption, and therefore necessarily 
 demands a verdict of acquittal. 
 
 " By circumstantial or presumptive proof," observes a 
 learned writer, " is meant that measure and degree of cir- 
 cumstantial evidence which is sufficient to produce conviction 
 in the minds of the jury, of the truth of the fact in ques- 
 tion." {a) But " what circumstances will amount to proof," 
 the same writer adds, " can never be matter of general 
 definition." (6) That is to say, the number and quality of 
 the evidentiary facts or circumstances which are to constitute 
 presumptive proof, in any given case, can never be wholly 
 determined in advance, and before the case itself is actually 
 examined. This results from the endless variety of the cir- 
 cumstances themselves, the infinity of combinations of which 
 they admit, and the necessity of always considering them in 
 their true relations to each other. They are presented, not 
 in the character of abstractions, but as the component ele- 
 ments of actual cases or occurrences, which, having passed 
 
 (a) 1 Stark, Evid. 481. 
 
 (5) Id. 514. See Domat's Civil Law, part I, b. 3, tit. 6, sect. 4, art. 3. 
 The rescript of the Roman emperor Hadrian to Valerius Verus, as preserved 
 in the Pandects, was to the same effect : Qua argumenta ad quem modum pro- 
 bandce cuique reisufficiant, nuUo certo modo satis definiri potest. Dig. 22. 5. 3. 
 
CHAP. IV.] OR VERPICT. 197 
 
 away, are to be revivedhj means of the evidence ; and every 
 one of these elements is to be examined, before its signi&- 
 cance and effect can be practically pronounced upon. Hence, 
 every case submitted to a jmy is to be determined upon its 
 own peculiar circumstances, and in the exercise of a discre- 
 tion, on their part, {a) unfettered, as we have seen, by 
 arbitrary or artificial rules ; (&) the only condition imposed 
 by law, (as by natural reason and common sense,) being 
 that the evidence must be suf&cient to satisfy their under- 
 standings and consciences, (c) 
 
 But, although the precise amount of evidence necessary 
 to constitute presumptive proof, can never be reduced to 
 abstract formulae, applicable to all possible cases, some 
 definite idea of the degree of assurance which should always 
 be produced in the minds of the jury, may be obtained from 
 such considerations as the following. In the first place, it 
 is not essential that the truth of the fact sought should be 
 made to appear with all the clearness of absolute and de- 
 monstrable certainty ; that result being unattainable by moral 
 evidence of any kind ; {d) but it is essential that the proba- 
 bility of such truth, (which, as we have seen, (e) is the 
 characteristic basis of all presumptive reasoning,) should be 
 wrought up to a degree of persuasiveness and force, ap- 
 proaching as near to absolute certainty as the nature of the 
 
 (a) Domat'a Civil Law, ubi supra. 
 
 (6) See ante, p. 53. Best on Pres. § 190. 
 
 (c) 1 Stark. Evid. 514, So the emperor Hadrian, in hig rescript to 
 Valerius Verus, already cited, observed ; " You must be governed by the 
 conviction of your own mind, in determining what you will either believe, or 
 consider to be insuflSoieutly proved;" [ex sententia anirai tui te cestimare 
 oportet, quid aut credos, autparum probatum tibi opinaris.) Dig. 22. 5. 3. 
 
 (rf) 1 Stark. Evid. 450. Wills Giro. Evid. 5. 1 Greenl. Evid. § 1. Lord 
 Mansfield, in the Douglas case, {ante, p. 23.) Lord Tenterden, in Rex v. 
 Burdett, 4 B. & Aid. 162. Shaw, C. J. in Commonwealth v. Webster, Bemis' 
 Keport, 470. Lumpkin, J. in Giles y. The State, 6 Georgia, (Co6A,) 276, 
 285, 286. 
 
 (e) Jinte, p. 80. 
 
198 THE CONCLUSION [PAET I. 
 
 subject will admit. The case must not be determined, as civil 
 cases sometimes are, on a mere balance of probabilities, (a) 
 nor must the aggregate probability of guilt be considered as 
 sufficiently established while any counter-probability or even 
 reasonable possibility of innocence is admitted to exist. All 
 hypotheses, involving the idea or supposition of innocence, 
 are to be examined, negatived and excluded, by either being 
 pronounced impossible, or confined to the limits of mere 
 physical possibility. (&) In short, the jury are to be morally 
 certain of the guilt of the prisoner, to the exclusion of every 
 reasonable doubt, (c) This moral certainty is all that the 
 law, in any case of presumptive proof, requires ; (rf) and 
 even direct testimony, it is said, does not afford grounds of 
 belief of a higher nature, (e) Evidence which satisfies the 
 minds of the jury to this extent, constitutes /m// proof of the 
 fact in question before them. (/) 
 
 But what, it may be asked, is meant by moral certainty, 
 and reasonable, doubt ? The expressions are constantly used 
 by judges, in delivering their charges in criminal cases ; (g) 
 and jurors, impressed with a proper sense of the responsi- 
 bilities of their office, may be supposed to be often anxious 
 to obtain as precise an idea, as possible, of the meaning of 
 terms which so comprehensively sum up the duties demanded 
 of them. 
 
 («) Beat on Pres. § 190. 1 Stark. Evid. 451. 
 (A) Best on Pres. § 195. See anU, p. 188. 
 
 (c) Parke, B. to the jury, in R. v. Sterne, Surrey Summer Assizes, 1843; 
 cited in Best on Pres. § 195, note (I). 
 
 (d) 1 Stark. Evid. 514. Clayton, J, in McCann v. The State, 13 Smedes 
 & Marshall, 471, 490. Lumpkin, J. in Giles v. The State, 6 Georgia, 276, 
 285, 286. 
 
 (e) 1 Stark. Evid. 514. 
 (/) Id. 450. 
 
 ig) Parke, B. to the jury, in R. v. Sterne, Surrey Summer Assizes, 1843. 
 Alderson, B. in JR. t. Hodge, 2 Lewin's C. C. 228. Rushe, C. J. in R. v. 
 Forbes and others, Dublin, 1823. Lord Gillies in R. v. McKinley, 33 How- 
 ell's State Trials, 506. Best on Pres. § 195, note (/) citing these coses. Shnvi, 
 C. J. in Commonwealth v. Webster, Bemis' Report, 470. 
 
CHAP. IV.] OR VERDICT. 199 
 
 Moral certainty is a quality or state of mental impression, 
 •which has sometimes been said to be more easily conceived 
 than defined, (a) It has, however, been made the subject 
 of formal definition by several writers of eminence. Thus, 
 Puffendorf has explained it to be " nothing else but a strong 
 presumption, grounded on probable resisons, and which very 
 seldom fails and deceives us." (6) But this is rather a 
 description of its foundation and general effect. Mr. Wills 
 has defined it to be " that degree of assurance which induces 
 a man of sound mind to act without doubt upon the conclu- 
 sions to which it leads." (c) The term has also been some- 
 times made the subject of definition, in charges from the 
 bench. Thus, it was well explained by Chief Justice Shaw, 
 in his charge to the jury, in the case of Commonwealth v. 
 Webster, (rf) to be " a certainty that convinces and directs 
 the understanding, and satisfies the reason and judgment of 
 those who are bound to act conscientiously upon it." 
 
 Moral certainty may be said to bear the same relation to 
 moral subjects, or matters relating to human conduct, that 
 absolute certainty does to mathematical subjects. It is a 
 state of impression produced by facts, in which a reasonable 
 mind feels a sort of coercion or necessity to act in accord- 
 ance with it ; the conclusion presented being one which can- 
 not, morally speaking, be avoided, consistently with adhe- 
 rence to truth. " The guilt of the accused," observes Mr. 
 Best, " must be essentially connected with the facts proved, 
 so as to flow from them by a species of moral necessity." (e) 
 " Moral certainty," observes the Marquis Beccaria, " is 
 only probability ; but which is called certainty, because 
 
 (a) BestonPres. § 195. 
 
 (i) Law of Nature and Nations, b. 1, oh. 2, sec. 11. 
 
 (c) Circ. Eyid. 7 ; citing Stewart's Elements, vol. 2, cliap. 2, sect. 4 ; 
 Encyclopaedia Brit. art. Metaphysics, part I. 
 
 (d) Bemis' Keport, 470. 
 
 (e) BestonPres. § 195. 
 
200 THE CONCLUSION [PABT I. 
 
 every man of sense (or, in his senses) assents to it neces- 
 sarily, from a habit produced by the necessity of acting." (a) 
 
 It will be seen that, in some of the definitions above given, 
 the nature of moral certainty has been explained, by refer- 
 ring to common experience, — the experience and action of 
 any and every man of sound mind, (b) And the test of its 
 force, in this point of view, is a very practical one. It is 
 jot only what men, in general, will unhesitatingly believe to 
 be true, but what they will be willing and ready to act upon. 
 To practical men, such as jurors usually are, this undoubtedly 
 is the most satisfactory mode of explanation ; conveying a 
 more vivid idea of the nature of the certainty in question, 
 than any formal definition in abstract terms, however care- 
 fully conceived and expressed. But to make it thoroughly 
 impressive, it should be carried a step farther. The stand- 
 ard referred to, in the way of comparison, should be one with 
 which every juror must necessarily be familiar; and which 
 he can always apply at once, for himself; namely, his oivn 
 experience, and the operations of his own mind, in an- 
 alogous cases. " Is the juror," it should be asked, " so 
 convinced by the evidence, of the truth of the fact sought 
 to be proved, that he himself would venture to act upon 
 such a conviction, in matters of the highest concern and 
 importance to his own interests ? " (c) If this be so, he 
 may declare himself morally certain. 
 
 The meaning of the expression " reasonable doubt " comes 
 next to be considered. The definition of this is consequent 
 upon, and, in fact, involved in that of moral certainty. The 
 one quality or state of mind implies the absence of the 
 other, and this is seen in the terms of several of the best 
 definitions, (d) So long as moral certainty is not reached, 
 
 (a) Beooaria on Crimes, chap. 14. 
 (6) Id. ibid. Wills Giro. Evid. 7. 
 
 (c) 1 Stark. Evid. 514. See Beooaria on Crimes, chap. 14. 
 
 (d) See the definition of Mr. Wills, cited supra. Bishop Butler, speaking 
 
CHAP. IV.] OB VERDICT. 201 
 
 a reasonable doubt may be said to remain on the mind. 
 When all reasonable doubt is removed, moral certainty fol- 
 lows. The doubt, which the juror is allowed to retain on 
 his mind, at the close of the trial, and of his own subsequent 
 investigation, and under the influence of which he may frame 
 his verdict, must always be a reasonable one. (a) Hence, 
 where it arises from his own misconduct or neglect, — as 
 where he has, through inattention, overlooked facts, or 
 failed to perceive their relations and tendencies, and conse- 
 quently finds himself at a loss in forming his opinion, — ^the 
 doubt is not an allowable one. So, where it arises solely 
 fi'om considerations unconnected with the discharge of the 
 duty imposed on him by his oath,' — as where it is produced 
 by undue sensibility, in view of the consequences of his ver- 
 dict in a capital case, — it is not a reasonable doubt. (6) So 
 a juror is not allowed to create sources or materials of doubt 
 by resorting to trivial and fanciful suppositions, and remote 
 conjectures as to possible states of fact, differing from that 
 established by the evidence, (c) It is true, as we have seen, 
 that hypotheses of no higher grade than possibilities may 
 sometimes be entitled to serious regard, and even to prepon- 
 derant weight ; but this is only when the affirmative facts, 
 
 of moral certainty, as to a future event, resolves it into " ground for an ex- 
 pectation, vrithout any doubt of it." Analogy, Introd. And, c converso, see 
 the definition of Chief Justice Shavi, cited infra. 
 
 (a) " What is reasonable doubt ? It is a term often used, probably pretty 
 well understood, but not easily defined. It is not mere possible doubt ; be- 
 cause every thing relating to human affairs, 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 certainty, of the truth of the charge." .Shaw, 
 C. J. in Commonwealth v. Webster, Bemis' Report, d70. See also the observ- 
 ations of the presiding judge, in charging the jury, in the case of The People 
 V. JBodine, i N. T. Legal Observer, 94. 
 
 (6) See 2 Evans' Pothier on Obi. 288, 289. 
 
 (c) Id. ibid. 
 
202 THE CONCLUSION [PART I. 
 
 already proved, may be accounted for, ou the basis of such 
 hypothesis. («) To acquit, under the influence of doubts 
 unreasonably created, from whatever cause, is not only error, 
 but, in the words of a judicious writer, " a virtual violation 
 of the juror's oath, and an offence of great magnitude against 
 the interests of society ; directly tending to the- disregard 
 of the obligation of a judicial oath, the hindrance and dis- 
 paragement of justice, and the encouragement of malefac- 
 tors." (6) On the other hand, when all the facts, upon 
 both sides, have been faithfully examined, and every effort 
 made to ascertain their precise character and bearing, as the 
 real facts of the case, any reasonable doubt finally and per- 
 manently remaining on the mind, from whatever cause, even 
 though additional evidence might have completely dispelled 
 it, will always justify a juror in withholding his assent to a 
 verdict of " guilty." 
 
 From the preceding view of presumptive evidence, as 
 practically applied to the purposes of judicial investigation, 
 it will be seen that a verdict rendered on evidence of this 
 character, is arrived at in essentially the same way, and by 
 essentially the same means, as any ordinary conclusion from 
 evidence of a similar kind, (c) There is the same order of 
 proceeding throughout : — ^first, a fact proposed for investiga- 
 tion, in the shape of a question between two opposite hypo- 
 theses ; next, evidence, presenting a combination of circum- 
 stances, as a basis of inference and medium of proof; 
 next, a process of presumptive reasoning, applied to the 
 circumstances thus presented ; and finally, a corresponding 
 result deduced, declaring one of the two hypotheses to be 
 the tmth. 
 
 The verdict is, essentially, a presumption, however high 
 in degree ; because founded upon belief, as distinguished 
 
 (a) Ante, p. 187. (i) 1 Stark. Evid. 514. (c) Best on Pres. § 14. 
 
CHAP. IV.] OR TERDICT. 203 
 
 from actual knowledge, (a) It has the characteristic quality 
 of a presumption, in this respect, that it is always contingent, 
 it may not be true. Supposing the best conceivable use made 
 of the means of investigation which the evidence affords, 
 and the juror's oaths to be most scrupulously observed ; two 
 sources of possible error will always be found to exist, and 
 can never be effectually excluded or escaped. First, the 
 facts presented in evidence may not be the true and genuine 
 facts of the case ; or they may fail to present the case as it 
 actually occurred, arising either from accident, depriving 
 the evidence of its completeness, or from some addition or 
 modification derived from the medium of testimony through 
 which it has passed. And this is a contingency common to 
 direct, as well as circumstantial evidence. Secondly, the 
 inference drawn by the jury, may be, with the best possible 
 intentions on their part, incorrect, from causes which have 
 already been adverted to. But error from the latter cause 
 may be considered as of the more rare occurrence. 
 
 The liability of verdicts to error, is sometimes made 
 practically manifest, as in civil cases, by a course of judicial 
 review ; and, although an equal scope of re-examination is 
 not allowed in cases of crime, a similar result is occasionally 
 revealed, with equal clearness, by facts which come to light 
 after, (and sometimes long after) the trial has terminated. 
 The term " trial," itself, in short, expresses, with great 
 propriety, the essential character of the whole procedure, 
 as conducted by the light of presumptive evidence, and the 
 contingent quality of the verdict which is the object and end 
 of it. It is, though in the gravest sense, an experiment, an 
 endeavour after truth, — an attempt to make the best possible 
 use of the best means attainable for the purpose. It is often 
 conducted, from the outset, under disadvantages — sometimes 
 numerous, and occasionally insuperable, — arising from the 
 
 (o) See ante, pp. 12, 13. Lord Chancellor Erskine, in Hillary v. Walker, 
 12 Vesey, Jan. 239, 266. 
 
204 THE CONCLUSION [PART I. 
 
 transient character of the transaction which is the subject 
 of it ; the difficulty of penetrating the veil of obscurity 
 which accident or criminal design may have cast around it, 
 and of obtaining the facts out of which it is to be re-con- 
 structed, for the purpose of examination ; and the constant 
 necessity, (which, however, is not peculiar to cases of pre- 
 sumptive evidence,) of taking these facts implicitly upon 
 the statements of witnesses, involving, under the most favor- 
 able presumptions of veracity, the accuracy and fidelity of 
 faculties confessedly liable, in themselves, to infirmity and 
 error. Consequent upon these processes, is the great, pecu- 
 liar and indispensable one of inference, as exercised by the 
 jury ; by which one single, reasonable and satisfactory con- 
 clusion is to be extracted from a mass of often multifarious 
 facts, under difficulties which have already been dwelt upon. 
 But the error to which verdicts, in their character of mere 
 human conclusions, are thus admitted to be liable, will, it is 
 believed, be found, with very rare exceptions, at least in 
 modem times, to exist on that side to which the law itself, 
 in all cases of reasonable doubt, (as we have just seen) 
 positively turns the balance of the juror's mind ; namely, on 
 the side of mercy, rather than of justice, — in acquitting the 
 guilty, rather than in condemning the innocent. The rules 
 by which the application and effect of circumstantial evi- 
 dence of the presumptive kind, are now understood to be 
 limited, concur to produce this humane and desirable result ; 
 and under their operation, as guided by learned and im 
 partial judges, it seems scarcely possible that one of an 
 opposite character can be found to take place, (a) 
 
 (a) It was observed by the presiding judge, in charging the jury, in the 
 case of The People v. Bodine, that " the unfrequency of error is manifested 
 by the remarkable fact, that of 934 prisoners in the state-prison at Sing Sing, 
 only 168 pretended to assert their innocence. Yet, of that whole number, a 
 large majority must have been convicted on circumstantial evidence alone." 4 
 N. Y. Legal Observer, (March, 1816,) 94. And see post. Chapter V. 
 
CHAP. IV.J OB VERDICT. 205 
 
 Thus, on the vrhole, a criminal trial is seen to be an 
 inquiry after truth, vdth the best means at command, but 
 with means, in their nature, often far short of perfection. 
 That it should sometimes fail in its professed object, — ^the 
 discovery and identification of a criminal agent, — even in 
 cases where the attainment of such object is most intensely 
 desirable, is a result inseparable from the present conditions 
 of human existence. Failure, in this respect, is often inevit- 
 able from the intrinsic insufficiency -of the evidence employed ; 
 and its formal announcement, in the shape of a verdict of 
 acquittal, becomes, in such a case, an imperative duty on 
 the part of a jury. But failure to convict may also be posi- 
 tive error ; for it is possible (as will be shown in the sequel) 
 that a mass of circumstantial evidence may be accumulated 
 in a case, which shall indicate guilt and identify the guilty, 
 with a cogency and clearness amounting to moral certainty, 
 and excluding all reasonable doubt. To disregard such a 
 body of proof, however otherwise convincing and satisfactory 
 to the judgment, from a timidity produced by the contem- 
 plation of the abstract possibility of error attending it, is 
 not only error in itself, but obvious injustice to the commu- 
 nity for whose benefit and at whose instance the inquiry is 
 prosecuted. 
 
CHAPTER V. 
 
 KELATIVB VALUE OP DIRECT AND CIRCUMSTANTIAL ETIDENCffil. 
 
 Pboh the description given in the preceding chapters, of 
 the nature and application of circumstantial evidence, its 
 distinctive quality will be seen to lie in what may be termed 
 its argumentative character, (a) It does not indicate the 
 principal fact to which it is applied, without a process of 
 reasoning and special inference. (6) 
 
 In reasoning from facts proved to facts sought, there is, as 
 already explained, (c) a constant necessity of referring to 
 certain general laws or principles by which the course of 
 nature and the conduct of men are found, from experience, 
 to be usually, if not uniformly regulated. But this reference 
 to rule and system is sometimes found to be carried too far. 
 According to Lord Bacon, there is a natural tendency in the 
 human mind to suppose a greater order and conformity in 
 things than actually exist, (d) If this be true in regard to 
 external nature, it is not improbable that it sometimes proves 
 so, in matters of moral conduct. It is doubtless a natural 
 habit of the mind to compare facts, and to observe and mark 
 their mutual relations. From this the transition is neither 
 difficult nor unnatural, to the habit of framing these materials 
 
 (a) See ante, p. 6. (i) See ante, p. 5. (c) See ante, p. 16 — 18. 
 
 {d) Bacon's Novum Organum, aphor. 45. Best on Fres. §§ 193, 212. 
 
CHAP, v.] RELATIVE VALUE, ETC. 207 
 
 into theories, by the aid of the general principles above te- 
 ferred to ; and of laying them up in the mind for future use. 
 It is by too close an adherence to these pre-conceived ideas 
 or theories, that men are led to reason inaccurately from 
 facts in particular cases ; to indulge in wrong constructions 
 and to deduce unwarrantable inferences. Sufficient allow- 
 ance is not made for aberration or departure from supposed 
 general or uniform rules, to which mental operations, as the 
 springs of moral conduct, are, in their nature, liable, (a) 
 This habit has sometimes been attributed to a feeling of 
 pride or vanity. (6) It may procee"3, in certain cases, from 
 indolence, or aversion for the patient and accurate consider- 
 ation of minute and ever-varying particulars.. But perhaps 
 the most common source of inaccurate reasoning from facts, 
 in cases of moral conduct, is precipitation, produced or 
 heightened by moral emotion. This is particularly the case 
 where a great crime, or what seems to be such, has been 
 committed in the heart of a community, arousing a sentiment 
 of natural indignation, even at the mere recital of the fact, 
 and creating an intense desire to discover and bring to 
 justice the perpetrator. In such a frame of feeling, the 
 mind is prepared to yield to the force of impressions pro- 
 duced by a few prominent and concurring facts, without 
 waiting to ascertain the whole context of accompanying 
 circumstances, and without admitting them, when ascer- 
 tained, to every species of reasonable construction and con- 
 sideration. 
 
 It is from causes of this kind, that some lamentable mis- 
 takes have, in times past, been made in the application of 
 circumstantial evidence, in judicial investigations of crime ; 
 and that jurors, acting either in the exclusive exercise of 
 their own discretion, or under the influence of narrow or 
 
 (a) Theory of Pres; Proof, 64. 
 
 (A) See the observations of Baron Alderson, in Reg. v. Hodges, 2 Lewin's 
 C. C. 227. Wills, Circ. Evid. 32. Best on Pres. § 193. 
 
208 RELATIVE VALUE OP DIRECT [PART I. 
 
 erroneous views of the law of evidence, as expounded by 
 the courts, {a) have drawn conclusions entirely at variance 
 with truth and justice ; condemning innocent persons to 
 suffer death for the crimes of others. This has led to the 
 opinion that a species of evidence which not only admits 
 but actually requires a certain latitude and discretion of 
 reasoning in its application, is a dangerous instrument of 
 investigation; and that its use, at least in cases where 
 human life is put in jeopardy, should be discouraged or dis 
 allowed. This opinion has not only been supported by 
 abstract or speculative reasoning, on the general basis of 
 intrinsic liability to error, which was noticed in a previous 
 part of this work ; (6) but has had a more practical and 
 impressive form given to it, by being presented in the light 
 of recorded /acfo. Diligent inquiry has been made after all 
 cases, attended with the unfortunate results just mentioned ; 
 and they have been skilfully connected and placed in striking 
 points of view, as supposed convincing proofs of the truth of 
 the opinion maintained, (c) Attempts have occasionally 
 been made to influence the popular mind in the same direc- 
 tion, through the medium of works of fiction founded, as 
 asserted, on fact. But the channel through which opinions 
 adverse to the employment of circumstantial evidence have, 
 perhaps, been most effectually, because most directly and 
 urgently, communicated, is one which runs through the very 
 form of judicial procedure itself. At the bar, and in the 
 act and course of exercising their functions as judicial in- 
 vestigators, jurors are constantly accustomed to hear from 
 eloquent advocates for prisoners, the open condemnation, 
 and sometimes the unmeasured denunciation of the use of 
 indirect evidence, as a basis and means of -conviction in 
 capital cases ; and it is on these occasions that the adverse 
 cases above alluded to are found to be constantly quoted, 
 accompanied by impressive appeals in behalf of the accused. 
 
 (a) Best on Pres. § 191. (4) See ante, p. 69. (c) See post, p. 212. 
 
CHAP. T.J AND CIRCUMSTANTIAL EVIDENCE. 209 
 
 By influences like these, a state of mind occupying the oppo- 
 site extreme of that before noticed and condemned, has 
 occasionally been produced ; and jurors, instead of acting, 
 as in former days, with an undue desire to enforce the effect 
 of circumstances, as evidence, even where the life of the 
 accused was at their disposal ; have been found to entertain, 
 and openly to express a determination not to convict upon 
 such evidence, however strong and clear, in any case where 
 life should be placed in peril, (a) 
 
 It may tend to a clearer understanding of the subject of 
 this chapter, to consider this adverse view of circumstantial 
 evidence, with a more particular reference to the grounds 
 upon which it has been formally maintained. These are, 
 first, that it is intrinsically liable to mistake and abuse ; and 
 secondly, that it has actually led to gross injustice, in the 
 conviction and execution of innocent persons. 
 
 The liability to error is said to arise from the very process 
 of reasoning and inference which is inseparable from its 
 application. Men, it is said, may and constantly do reason 
 inaccurately, and form opinions, in the way of deduction 
 and presumption, without any sufficient foundation ; and 
 human life, in being made to depend upon the correctness of 
 such conclusions, is exposed to great and obvious peril: 
 
 (a) In an article on circumstantial evidence, in the New York Legal Ob - 
 server for March, 1846, in which the case of The People v. Bodine is promi- 
 nently noticed, the following remarks occur. " In many of the trials in 
 capital cases which have lately taken place in this city, all the profession 
 must have been struck with the apparent prevalence in the popular mind, of a 
 singular error in regard to the propriety of convicting on circumstantial evi- 
 dence. Very many of the jurors examined have deposed that they would not 
 convict on such evidence, under any circumstances. The error doubtless 
 arises from want of knowledge or reflection upon the subject, but is none the 
 less injurious on that account. On the trial of Polly Bodine, this was so 
 strongly exhibited, that the judge, in his charge to the jury, devoted much 
 attention to combatting it." The article proceeds to give that part of the 
 charge in full, and it has been referred to by Professor Greenleaf, as embody- 
 ing a full discussion of the nature and value of circumstantial evidence . 4 
 N. Y. Legal Observer, 89—95. 1 Grecnl. on Evid. § 13 a. nota. 
 
210 RELATIVE VALUE OF DIRECT [PART I. 
 
 whereas, by the exclusive employment of direct or positive 
 evidence, which admits of no such latitude of reasoning or 
 range of discretion, this source of error and consequent 
 danger is entirely cut off. (a) But it may well be doubted 
 whether the process of inference can be wholly avoided, in 
 the application of judicial evidence of any kind. Not to 
 speak of presumption, as a necessary basis of credence or 
 faith in any human testimony, much that is called direct evi- 
 dence, will, on a rigid analysis, be found. to depend on infer- 
 ence, or in fact to be composed of a series of inferences, 
 though individually so minute, so close in their connection 
 and so rapid in their succession, as not to be perceived in 
 their true character by the mind through which they pass. (6) 
 A witness, on a trial for murder, testifies that he saw the 
 prisoner discharge a loaded gun at the deceased, and that he 
 saw the latter immediately fall lifeless to the ground. This 
 is called strictly direct evidence ; and is considered to be 
 entirely free from any process of special inference. But the 
 actual nature of the mental operation, in such a case, was 
 very forcibly, and philosophically explained by Chief Justice 
 Gibson, in his charge to the jury, in the case of Common- 
 wealth V. Harman. (c) " You see a man," said the learned 
 judge, " discharge a gun at another ; you see the flash, you 
 hear the report, you see the person fall a lifeless corpse ; 
 and you infer from all these circumstances, that there was a 
 ball discharged from the gun, which entered his body and 
 caused his death ; because such is the usual and natural 
 cause of such an effect. But you did not see the ball leave 
 
 («) " The senses are ever true, but the understanding often reasons ill." 
 Theory of Pres. Proof, 22. 
 
 (6) " Eo rapid are our intellectual processes," observes a learned writer, 
 " that it is frequently difficult, and even impossible, to trace the connection be- 
 tween an act of the judgment, and the train of reasoning of which it is the 
 result ; and the one appears to succeed the other instantaneously by a kind of 
 necessity, as the thunder follows the flash." Wills, Giro. Evid. 16. 
 
 (c) C Am. Law Journal, 123. 
 
CHAP. V.J AND CIRCUIISTAXTIAL EVIDENCE. 211 
 
 the gnn, pass through the air, and enter the body of the 
 slain ; and your testimony to the fact of killing is, therefore, 
 only inferential, — in other words, circumstantial. It is 
 possible that no ball -was in the gun ; and we infer that 
 there was, only because we cannot account for the death on 
 any other supposition." This is a description of the process 
 of inference, as it unconsciously goes on in the mind of an 
 observing witness. But what is more to our present purpose 
 is the fact that, in the natural course of things, the same 
 process becomes repeated in the minds of the jury before 
 whom he testifies. As the jury must always observe with 
 the senses of the witness, putting themselves, mentally, in 
 his place ; and thus transferring themselves to the scene 
 and time of the occurrence related ; they must see and hear 
 as the witness saw and heard ; and, if they believe him, 
 must of course infer, as he did. 
 
 The other reason which has been urged against the pro- 
 priety, and, indeed, the justice and safety of circumstantial 
 evidence, as a medium of proof in capital caees, is that a 
 reliance upon it has repeatedly led to the execution of per- 
 sons whose entire innocence of the crimes for which they 
 suffered, has afterwards been clearly demonstrated. In 
 support of this position, several actual cases, taken chiefly 
 from the records of English courts, have been referred to, 
 and some of them so repeatedly and uniformly on criminal 
 trials, as to justify the appellation given to them by Mr. 
 Justice Story, (a) of being " the common-places of the law" • 
 on such occasions. Among the earliest of these are the case 
 of the uncle and niece, given by Lord Coke, (b) and that of 
 
 (a) In the case of The United States t, Gibert, 2 Sumner, 19, 27. 
 
 (A) An uncle had the bringing up of his niece, who was entitled to some 
 landed property, under her father's will, to which she would be entitled at the 
 age of sixteen. He was one day correcting her for some offence, when she 
 was heard to say, " Oh, good uncle, kill me not ! " After this time, the 
 child could not be heard of, and the uncle being committed to jail on suspicion 
 of her murder, was admonished by the judge of assizes, to find out the child 
 
212 RELATIVE VALUE OF DIRECT [PART I. 
 
 the person executed for stealing a horse, mentioned by Sir 
 Matthew Hale, (a) But the most elaborate collection of 
 cases, considered applicable to the point in question, is to be 
 found in the Appendix to the work published in England, 
 some years ago, under the title of " The Theory of Pre- 
 sumptive Proof." (6) The composition of this work ap- 
 pears to have been occasioned by the result of the trial of 
 Captain John Donnellan, who was convicted and executed 
 in 1781, for the murder of his brother-in-law, Sir Theodosius 
 Boughton, by poisoning him with laurel-water : its immediate 
 object being to prove that the accused in that case was con- 
 victed on insufficient evidence, (c) The drift of the work 
 itself is, on the whole, unfavorable to the employment of 
 circumstantial evidence, as an instrument of capital convic- 
 tion. But the object of the Appendix is not to be mistaken ; 
 the cases there presented going to show, (and in fact being 
 intended to show (rf)) the actual and extreme danger of 
 relying upon such evidence as proof in any capital case. 
 So clearly did this appear on their publication in this form, 
 that great and confident use soon came to bo made of them, 
 
 against the next assizes. Unable to do this, he dressed up another child to 
 represent her, but the falsehood being detected, he was convicte'd and executed 
 for the supposed murder. It afterwards appeared, however, that, on being 
 beaten by her uncle, the niece had run away into an adjoining county, where 
 she remained until the age of sixteen, when she returned to claim her property. 
 3 Inst. 0. 104, p. 2.32 ; cited in Best on Pres. § 149. 2 Hale's P. -C 290, note 
 
 (a) A man was convicted and executed for stealing a horse, on the strength 
 of the presumption of the animal's being found in his possession on the same 
 day on which it was stolen ; but it afterwards appeared that the real thief, 
 being closely pursued by the officers of'justice, had met the unfortunate man, 
 to whom he was a total stranger, and requested him to walkljis horse for him, 
 while he turned aside upon a necessary occasion : and so escaped. Best on 
 Pres. § 210. 2 Hale's P. C. 289. 
 
 (6) This work was published anonymously, but has always been considered 
 to have proceeded from the pen of Mr. Fhillipps, the author of the well known 
 " Treatise on the Law of Evidence. " It was actually appended to the first 
 American (from the second London) edition of that work, published in 1816. 
 
 (c) Best on Pres. § 208. 3 Benth. Jud. Evid. 232. 
 
 (d) See the preface. 
 
CHAP. T.J AND CmCUMSTANTIAL EVIDENCE. 213 
 
 by advocates for prisoners ; and sometimes to such an extent 
 as to draw special remark from the courts, (a) 
 
 Considered superficially, these cases, (of which there are 
 eleven) (6) appear entirely adequate to produce the im- 
 pression intended. But, upon a close analysis, they will all, 
 with a single exception, be found to be possessed of char- 
 acteristics which deprive them of their appositeness and 
 applicability to the object in question : the convictions, in 
 some of the casc.^, being founded on palpable fraud, perjury 
 and conspiracy ; in others, being attributable to professional 
 error, the prejudice or superstition of juries, or the honest 
 mistakes of witnesses ; and in others, to the admixture of 
 direct evidence itself, (c) The only case in the collection, 
 of purely circumstantial evidence, in which the conviction 
 had it taken place, could not, in itself, have been censured, 
 . is the sixth (anonymous,) in the series, which, it must be 
 admitted, was an extraordinary one. ((T) But even had the 
 whole eleven been cases of purely legitimate circumstantial 
 evidence, rationally applied, and, thus applied, fatal to inno- 
 cence, it might have been said of them, in the words of an 
 American judge, (e) " the wonder is that there have not 
 
 («1 " These cases," observes an American writer, " were, for some time, 
 rung through our criminal courts, as seriously impugning the doctrine which 
 sanctions such evidence. Weak juries were sometimes alarmed by them ; and 
 judges felt bound peremptorily to interpose, in order to maintain the best settled 
 principles in the law of evidence." 3 Phill. Evid. (Cowen & Hill's notes,) 
 Note 305, p. 556. See the observations of Radcliff, M in Canton & Redding' s 
 case, as given ibid. See also the observations of Thompson, J. in United 
 States V. Jones, cited. Id. 562 ; and of other judges, cited ibid. And a.s to 
 the effect of these and similar cases upon juries, see further, the observations 
 of Story, J. in United Slates v. Gibert, 2 Sumner, 27 ; and of Gibson, C. J 
 in Commonwealth v. Harman, 6 Ara. Law Journal, 123. 
 
 (A) Of these, however, only nine were actually attended with fatal results. 
 
 (c) A critical examination of these cases may be found in 3 Phill. Evid. 
 (Cowen & Hill's notes.) Note 305, pp. 555, 556, (Van Cott's ed. 1850.) 
 
 (d) This case is given in another form, and at much greater length, in 3 
 Phill. Evid. (Cowen & Hill's notes,) Note 305, pp. 558—562. 
 
 (c) Gibson, 0. J. in Commonwealth v. Harman, 6 Am. Law Journal, 321. 
 
214 EELATITE TALUE OF DIRECT [PART I. 
 
 been more." They are scattered over a space of more than 
 a century, and are taken from the records of a comitry 
 •whose criminal code then made a great variety of offences 
 capital. It would probably not bo difficult to find, on an 
 investigation of the same sources of information, during an 
 equal period, eleven cases in which a reliance on direct evi- 
 dence itself -was attended with results equally disastrous and 
 unjust, (a) 
 
 On a review of the two leading grounds just considered, 
 upon which the unfavorable view of circumstantial evidence 
 is sought to be maintained, the following considerations pre- 
 sent themselves. 
 
 First. Intrinsic liability to error is no sufficient objection 
 against the employment of any species of otherwise legiti- 
 mate evidence. All human evidence is imperfect and fal- 
 lible, simply because if all comes and must come through an 
 imperfect and fallible medium. (6) The only species of 
 infallible evidence is one which, it has been well said, it 
 would be absurd to require ; namely, that which, without 
 the intervention of human testimony, presents itself directly 
 to the senses of the tribunal, (c) 
 
 Secondly. . If the fact that courts and juries have actually 
 been misled by a species of evidence, even to the extent of 
 convicting innocent persons in capital cases, be a sufficient 
 ground for excluding that species of evidence from use, then 
 direct evijience itself must be discarded ; for it is known 
 that innocent persons have sometimes been convicted and 
 executed on what is called positive proof; (d) the witnesses 
 against them either designedly swearing to what they knew 
 
 (fl) story, J. in United States v. Gibert, 2 Sumner, 19, 27. 3 Phill. Evid. 
 (Cowen & Hill's notes,) Note 305, p. 556. 
 
 (i) Best on Pres. § 191. Clayton, J. in McCann v. The State, 13 Smedes 
 & Marshall, 471, 489. 
 
 (c) 3 Benth. Jud. Evid. 249. Best on Pres. § 191. 
 
 (rf) Gibson, C. J. in Commonwealth y. Harman, 6 Am. Law Journal, 128. 
 
CHAP. V.J AND CIRCUMSTANTIAL EVIDENCE. 215 
 
 to be false, (a) or, with an honest intention, having been 
 led by mistake to testify to facts which had no actual exist- 
 ence. (6) Indeed, there are cases on record, in which juiies 
 have been led to the conviction of innocent persons, by a 
 species of evidence which might well be regarded as stronger 
 than even the direct testimony of any witness, leaving no 
 room for any possible doubt; namely, the voluntary and 
 deliberate confessions of the accused persons themselves. 
 " It is not even certain," to use the language of Mr. Justice 
 Story, (c) " that criminals who, in capital cases, plead 
 guilty, and, by confession of their guilt in open court, sub- 
 mit to the sentence of the law, are always guilty of the 
 offence. Cases have occurred in which men have been ac- 
 cused and tried, and convicted of murder, upon their own 
 solemn confession in a court of justice ; when it has been 
 afterwards ascertained that the party could not have been 
 guilty ; for the person supposed to be murdered was found 
 to be still living, or lost his life at another place, and at a 
 different period. And yet it never has been supposed that 
 a solemn confession in open court was not a just ground 
 to believe the guilt of the party accused." (d) 
 
 (o) Case of John Delahunt, executed at Dablin, January, 1842 ;. cited in 
 Best on Pres. § 191, note («). 11. v. McDaniel and others. Old Bailey Ses- 
 sions, 1755, reported in Foster's Crovrn Law, 121. 
 
 (i) Case of James Crow, Theory of Pres. Proof, Appendix, case 4. The 
 resemblance of one person to another is a well known and most fruitful source 
 of mistakes as to identity ; and several have narrowly escaped conviction on 
 this kind of positive evidence. See Best on Pres. ubi supra. This subject 
 will be more particularly considered hereafter, under a separate head. 
 
 (c) United States v. Gibert, 2 Sumner, 19, 28. 
 
 (d) Perhaps the most singular instance on record, of a person deliberately 
 confessing himself guilty of a crime which he never committed, was the cele- 
 brated case of " The Perrys," called, at the time the account of it was pub- 
 lished, " one of the most remarkable occurrences which hath happened in the 
 memory of man." In this ease, John Perry, a servant of William Harrison 
 who had suddenly disappeared on the 16th of August, 1660, being arrested on 
 suspicion of murder, made a voluntary confession before the magistrate, in 
 
216 RELATIVE VALUE OF DIRECT [PART I, 
 
 " But to what just conclusion," we may, on the whole, 
 ask in the language of the same eminent judge, " does this 
 tend ? Admitting 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 foundations of the ad- 
 ministration of public justice." (a) 
 
 From the consideration of the opinion that circumstantial 
 evidence is a dangerous and unreliable medium of proof, on 
 account of its liability to mislead the judgment of himian 
 tribunals, especially in cases where the consequences of 
 error cannot be repaired, we turn next to the opposite opinion 
 which has sometimes been maintained, — that such evidence 
 is worthy of all confidence, because it cannot mislead. The 
 essence of this opinion seems to be summed up in the brief 
 expression, which has been used even in judicial opinions, — 
 
 which he declared that it was his {Perry's) mother and brother who had 
 robbed and murdered Harrison. In his confession, he went into full particu- 
 lars, describing what had induced them to commit the crime, and how and when 
 it was committed, and what disposition was made of the body ; implicating 
 himself throughout as an accessory. Upon this, the three Perrys were indicted 
 for the murder, tried, found guilty by the jury, and all executed. Some years 
 after, Mr. Harrison appeared, and gave an account of what had befallen him, 
 which was, in substance, as follows : — that, on the day of his disappearance, 
 as he was returning home in the evening, he was attacked and seised by three 
 men, who after robbing, wounding and otherwise maltreating him, carried him 
 to Deal, on the sea-coast, where they put him on board a vessel. This vessel 
 was captured at sea, by a Turkish pirate, and Harrison, being carried to 
 Turlsey, was sold as a slave to a physician living near Smyrna. On the death 
 of his master, he contrived to escape from the country, and returned by the 
 way of Lisbon, to England. See the account in full, in the Appendi.t to the 
 trial of Capt. Green and his crew, 14 Howell's State Trials, 1812—1824. 
 
 (a) United States v. Gibcrl, 2 Sumner, 28. The remarkable case of Capt. 
 Green and others of his crew, who were executed in Scotland, A. D. 1705, on 
 a charge of piracy and murder, demands a passing notice, iu connection with 
 
CHAP. V.J AND CIRCUMSTANTIAL EVIDENCE. 217 
 
 that " facts or circumstances cannot lie." (a) Before uniting 
 however, in the condemnation which has been bestowed on 
 this proposition by some able writers on judicial evidence, (6) 
 the actual meaning of the expression, or the idea intended 
 to be conveyed by it, stould be clearly ascertained. 
 
 In the literal sense of the term " lie," — the utterance of 
 a known falsehood, — the proposition is undoubtedly true, to 
 its fullest extent. Facts cannot lie, and never lie. They 
 are not moral agents, who alone are capable of such action, 
 nor are they subjects of those moral influences which divert 
 human beings from the path of truth. They are inanimate 
 existences, and thus, in their nature, inflexible ; — in the 
 common phrase, " stubborn things." (c) Hence they have 
 sometimes been significantly called " mute " or " dumb wit- 
 nesses." (d) But, giving to the term " lie," a sense more 
 appropi'iate to inanimate subjects, (and probably the one 
 intended,) that of deceiving or misleading the senses or 
 the judgment, let us see whether facts or circumstances can 
 ever be said to possess this most undesirable quality. 
 
 the observations in the test, and in the preceding note. This was a case which 
 presented all the three descriptions of evidence by which judicial tribunals are 
 governed in their conclusions, to wit, — posilive testimony, corroborated by cir- 
 cumstances, and the verdict based upon such evidence confirmed by detailed 
 confessions of some of the condemned parties. And yet, notwithstanding this 
 multiplication of proof, it turned out, after the execution of Capt Green, the 
 first mate of his ship, and the gunner, that the captain and his crew were 
 wholly innocent of the crimes charged. See the report of the trial in 14 How- 
 ell's State Trials, 1199 — 1293. And see the case and remarks appended, 
 establishing the innocence of the parties, Id. 1294 — 1312. 
 
 (o) Paley's Moral and Political Philosophy, book vi. chap. 9. MounUney, 
 B. in Annesley v. Earl of Anglesea, 17 Howell's State Trials. 1430. Legge, 
 B. in Rex v. Blandy, 18 Id. 1187. Buller, J. in Rex v. Donnellan, Gurney'9 
 Kcport, A. D. 1781. Livingston, J. in United States v. Jacobson, 2 City 
 HaU Recorder, 143. 
 
 (A) Mr. fTj/Zs calls it " a sophism." Circ. Evid. 27. Mr. £es« speaks of 
 it as a " dictum" which has led to mischievous results. Best on Pres. § 192. 
 
 (c) Solicitor General, arg. in Rex v. Barbot, 18 Howell's State Trials, 1244. 
 
 (d) Temoins muets. Mittermaier, Traite de la Preuve, ch. 53. 
 
218 EELATIVE VALUE OF DIRECT [PART I. 
 
 The popular application of the term " fact " undoubtedly 
 conveys its true meaning. We every day hear it employed 
 to denote the very reverse of supposition and opinion, much 
 more of fiction and error. A fact is an actual reality or 
 verity, — something absolutely and inflexibly true, — some- 
 thing which has actually existed or does exist, — some event 
 ■which has actually occurred or does occur, (a) This is fact 
 in the abstract, such as it may exist independently of any 
 human observation, opinion or judgment respecting it. In 
 this sense, fact and truth are synonymous, and the idea of 
 fact is wholly at variance with any thing like deception or 
 error. The expression, therefore, that " a fact "— ^that is, 
 a reality or verity, " cannot lie," — that is, express a false- 
 hood, may very properly be regarded as a truism, or an- 
 other form of saying that a fact is a fact. (&) 
 
 But this is not the only sense in which the term " fact" is 
 used ; for, however paradoxical it may appear, there may be 
 such things as false facts, (c) In order to be available for 
 any human purpose, facts must become the subjects of human 
 observation. In this point of view, a fact, as observed, is 
 often the real fact as it exists ; and the impression made 
 through the senses, upon the mind, is, so to speak, an exact 
 copy of it. But frequently this is otherwise ; an appearance 
 resembling the fact, or a " counterfeit presentment " of it, 
 impresses the sense so strongly, that it is allowed to take its 
 place, and is believed and reported as such ; as may be 
 explained by a few familiar examples. 
 
 A. sees an act done by B. who, to his view, and possibly 
 to that of many others, so closely resembles C. as to convey 
 the impression that it is actually C. himself. Here the real 
 and absolute fact of the case is, that the person seen is 
 
 (a) Mr. Beniham ha3 divided foots into states and events. 1 Jud. Et. 47, 
 48. See his illustrations, ibid. 
 (A) Wills, Giro. Evld. 27. 
 (c) 3 Benth. Jud. Evid. 251. 
 
CHAP, v.] AND CIBCUMSTANTIAL EVIDENCE. 219 
 
 B. The fact, as it appears to A.'s sense, and as it impresses 
 his mind and memory, is, that it is C. In this there is mani- 
 fest delusion and error. The semblance of a fact has de- 
 ceived the observer or witness ; owing to imperfect or hasty 
 observation on his part, — to omission (or, it may be, in- 
 ability) to notice points of difference, as well as points of 
 similarity. If he reports to a jury, as a fact, what he 
 believes. he saw, and they believe him, and act upon his evi- 
 dence, there is further and much more serious error. But 
 the error is attributable to no fact (in the true sense,) as 
 its cause. An appearance has deceived the witness, and, 
 through him, the jury. To honest mistakes of this kind, 
 direct as well as indirect evidence is constantly liable. 
 
 Again, A. has been showing to B. a valuable coin from 
 the drawer of a cabinet. B. after handling and closely 
 examining it, returns it to the drawer, and soon after takes 
 his leave. Immediately on his departure, the coin is missed ; 
 it is carefully and repeatedly sought for, but cannot be 
 found. No other person except' B. has been present. The 
 fact, as it appears to A. and as he would no doubt be willing 
 to state it on oath, is that the coin is not in the cabioet ; the 
 inference being that it has been taken by B. But the real 
 fact is just the reverse. It is actually in the cabinet ; but 
 having slipped into an unknown or unperceived crevice, it 
 has been entirely overlooked in the search. Here again, 
 the deception or error is in the observer himself, and it 
 arises from the same cause, as that intimated in the last 
 example, — ^neglect or omission to carry the process of obser- 
 vation /ar enoug-fi to reach the fact as it exists, (o) 
 
 But there is a class of facts, of which it has been confi- 
 dently said that they may and do " lie ; " namely, such as 
 are fabricated or forged by the perpetrators of crimes, with 
 the express and only intent of deceiving those who may 
 
 (a) A case resembUng this is said to have occurred a fen years since, at 
 the British Museum. 
 
220 RELATIVE VALUE OP DIRECT [PART I. 
 
 observe or witness them. A. intending to commit a murder, 
 and being desirous to avert suspicion from himself, by fasten- 
 ing it on another, gets possession of the shoes of B. the 
 soles of which have certain peculiar marks, and also a knife 
 belonging to B. ; puts on the former and proceeds unobserved 
 to the scene of the crime, leaving the prints of his feet dis- 
 tinctly impressed on the snow or ground ; perpetrates the 
 crime with the knife, which he places near the dead body ; 
 and then returns to B.'s house, leaving the knife and the 
 foot-prints to tell the story of the transaction. The impres- 
 sions are seen as soon as the crime is discovered, traced to 
 the house of B., compared with the shoes found upon his 
 person, and ascertained to correspond with all the peculiar 
 marks upon the soles. The knife is also found, bloody, and 
 proved to belong' to B. (a) The observer of these facts 
 concludes that B. was the murderer ; and hence it is said 
 that the facts or circumstances " lied " to him. He states 
 them to a jury, on the trial of B. for the crime. If they 
 take his view, adopt his conclusion, and declare B. guilty, 
 the facts are said to lie to them, and to lie " wickedly and 
 cruelly." (6) They undoubtedly do " speak," in the iigura- 
 tivc language of Mr. Bentham, (c) to the inculpation of a 
 wholly innocent person, because they have been made to 
 speak so. But the criminal has been the liar, rather than 
 the facts or appearances which he has fabricated ; they being 
 merely passive, senseless instruments in his hands. The 
 facts reported and acted upon in such a case, are not, as in 
 the preceding examples, false facts ; that is, facts existing 
 only in statement. They are actual facts, or realities, and 
 the witness has been right in considering them as realities, 
 and in representing them as such. But still the error is 
 essentially on his part, however unavoidable. It is an error, 
 
 (o) See a similar case, reported, as an actual oocurreaoe, in the Appendix 
 to the " Theory of Presumpthe Proof," case 10, And see Best on Res. § 1D2. 
 (4) Id. ibid. 
 (e) 8 Jud. Evid. 50. 
 
CHAP, v.] AND GreCUMSTANTIAL EVIDENCE. 221 
 
 not of observation but of deduction ; but it is produced essen- 
 tially, by the same causes "as were seen to operate in the 
 previous examples ; namely, .want of possession of all the 
 facts. It is clear that the actual facts, as they occurred, 
 would never have deceived the most careless observer. Had 
 the criminal been seen in the act of possessing himself of" 
 the articles, and in the act of using them, or in either, the 
 mere physical objects and appearances observed would have 
 gone for nothing. The existence of the knife and that of 
 the foot-prints were doubtless facts, but wholly dependent 
 for their significance as truths, upon the moral facts, — ^the 
 facts of conduct — which accompanied and created them ; 
 and which, if observed, would have placed them in their 
 true light ; revealing the fraud, as their absence concealed 
 and aided it. 
 
 Again, facts are sometimes fabricated or created by other 
 causes than the act of the criminal ; as where genuine facts 
 of the physical kind, and forming parts of a criminal trans- 
 action, have undergone some change, either from accident, 
 or the innocent, ignorant or unconscious act of some person 
 to whom they have been presented. In this altered condi- 
 tion, they are witnessed and reported, (in both respects, 
 accurately) in evidence, and thus lead to the adoption of 
 ideas and conclusions more or less wide from the truth. But 
 in this instance, also, the deception proceeds, not from the 
 genuine facts, but from their subsequent concealment or 
 modification ; and it arises from the same general cause al- 
 ready intimated, — want of possession of all the facts. 
 
 From the preceding explanation, it may be seen that, in a 
 judicial point of view, and as materials of evidence, facts or 
 circumstances are of several kinds : first, the genuine facts 
 of a case, properly so called, that is, the facts as they actu- 
 ally occurred, proceeding in a natural way from the criminal, 
 and indicating truly and consistently their connection with 
 the crime : secondly, extraneous facts, having in themselves 
 
222 RELATIVE VALUE OP DIRECT [PABT I. 
 
 a real existence, but interpolated into the case, either by 
 some natural accident, or by the fraudulent act of the crimi- 
 nal himself, or the innocent or unconscious act of eome other 
 person ; and thirdly, facts reported by witnesses as such, 
 but having no existence whatever, being the offspring either 
 of honest mistake or corrupt design. It is obviously to the 
 last two only, that the mendacious or deceptive quality under 
 consideration can, with/ any propriety, be attributed ; and 
 the (so called) facts of the third class are full as likely to 
 be encountered where the evidence is direct, as where it is 
 circumstantial. And even in the case of fabrication, the 
 deception has been shown to be produced as much by the 
 absence of facts as by their presence. 
 
 The proposition that " facts or circumstances cannot lie," 
 that is, cannot indicate a wrong conclusion, is strictly true 
 in the case of circumstantial evidence of the certain kind, 
 as has already been explained, (a) 
 
 Th^re is also another sense in which it may be said of 
 facts or circumstances, that they cannot lie ; that is, where 
 they are presented as actual verities, to the senses of the 
 tribunal itself. In this aspect, they have been well called 
 " inflexible proofs" (6) and " dumb witnesses ; " (c) speak- 
 ing to the sight only. Unlike the living witness, who often, 
 while under examination, equivocates, takes back his expres- 
 sions, or mars their effect by voluntary explanations, and is 
 sometimes led to the point of positively contradicting him- 
 self, by the pressure of cross-examination, — these inanimate 
 witnesses speak without emotion or confusion. They speak 
 but one language, and in one way ; and their meaning can- 
 not be distorted by any efforts of human ingenuity. The 
 
 (a) Sec ante, p. 77. See the observations of the presiding judge in his 
 charge to the jiiry, in the case of The People v. Bodinc, 4 New York Legal 
 ObserTer, 91. 1 Greenl. Evid. § 13a. 
 
 (i) BvLiTiet's Criminal Law of Scotland, eh. 21, p. 623. 
 
 (c) Miiteriaaicr, oh. 53, cited ante, p. 217, note {d). 
 
CHAP. V.J AND CIECUMSTANTIAL EVIDENCE. 223 
 
 water-mark discovered in the paper of a -written instrument 
 produced before a jury, is a fact of this description. 
 
 But facts of this kind, dispensing with the' usual channel 
 of judicial communication, are of extremely rare occur- 
 rence, (a) In the vast majority of cases, facts must come 
 through witnesses, and here the objection to the expression, 
 that " facts cannot lie," occurs in another form. Granting 
 that facts cannot lie, the witnesses who report them to the 
 jury can and may. (6) Unquestionably ; and they may hon- 
 estly misrepresent also, with results equally disastrous and 
 unjust. That the great source of deception and inlet of 
 error lie in the medium of evidence, has perhaps been seen 
 in the analysis of facts already given. How far the admis- 
 sion presents the case to the disadvantage of circumstantial 
 evidence, in particular, wiU be considered on another page. 
 
 On the whole, the truth of the proposition that facts or 
 circumstances " cannot lie," that is, cannot deceive or mis- 
 lead the judgment of a tribunal, depends upon the class to 
 which they belong, and the signification attached to the term 
 " fact " itself. If, by it, be meant, that the genuine facts of 
 a case, fully and correctly presented in evidence, cannot 
 deceive or mislead a tribunal endowed with ordinary reason- 
 ing powers, it is undoubtedly true. If, on the other hand, it 
 be meant, that evidence derived from facts or circumstances, 
 in the most general sense, and as actually presented by the 
 statements of deposing witnesses, can never deceive a jury, 
 or, in other words, is infallible, the proposition is as errone- 
 ous as it is extravagant. 
 
 Indeed, both the opinions respecting circumstantial evi- 
 dence which have just been reviewed, considered in their 
 broadest expression, are extravagant propositions, occupying 
 opposite extremes : the one placing circumstantial evidence 
 
 (a) Best on Pres. § 191. 
 
 (6) Best on Pres. § 192. Theory of Pres. Proof. 23. 
 
224 RELATIVE VALUE OP DIEECT [PAET I, 
 
 far below direct, — and, in some cases, wholly excluding its 
 use ; while the other elevates it to a rank far above direct 
 evidence. They thus present the two species of evidence in 
 an adverse relation to each other, as though they were natu- 
 rally in conflict, and as though one species could be employed 
 or relied on, only at the other's expense. But this is obvi- 
 ously an incorrect view of the subject, — the two species 
 being parts of one system of means, natural as well as 
 judicial; intended, where they are faithfully used in the 
 cause of truth, to aid, and not to thwart each other ; and, 
 when legitimately employed, having constantly such effect. 
 As distinct species, however, they undoubtedly possess char- 
 acteristic peculiarities ; and, in this point of view, they have 
 often been made the subjects of comparison, upon grounds 
 which will now be briefly considered. 
 
 There is no difficulty in conceding, at the outset, that, as 
 a medium of judicial proof, direct evidence unquestionably 
 ranks as the superior species. " Abstractedly speaking," 
 observes Mr. Best, " presumptive evidence is inferior to 
 direct evidence, seeing that it is, in truth, only a substitute 
 for it, and an indirect mode of proving that which other- 
 wise could not be proved at all : so that a given portion of 
 credible direct evidence must ever be superior to an equal 
 portion of presumptive evidence of the same fact." (a) So, 
 Mr. Bentham remarks that, " regarded in an abstract point 
 of view, — the essence of the species being considered, with- 
 out regard to the quantity naturally found in a state of con- 
 junction, in the several individual cases, — the inferiority of 
 circumstantial [evidence,] as compared with direct, is out of 
 dispute." (6) The very nature of direct evidence necessarily 
 leads to this conclusion. It proceeds, at once, to the point at 
 which it aims, by the shortest possible course, and reaches it 
 apparently by a single step, involving the least mental action 
 possible ; whereas, presumptive evidence always proceeds 
 
 (a) Best on Pres. § 193. (i) 3 Benth. Jud. Evid. 219. 
 
CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 225 
 
 circuitously and gradually, by a successioa of steps, each 
 resting on direct proof, requiriilg to be constantly borne in 
 mind, and ■which, however numerous and varied, must all be 
 strictly linked together. The precedence of the former, 
 therefore, rests on grounds of natural propriety and reason, 
 too obvious to be dwelt upon ; and it is a precedence which 
 the rules of evidence themselves constantly recognize. 
 Where direct evidence is attainable, circumstantial evidence 
 is of a secondary nature ; and no greater discredit can be 
 thrown upon the latter, even in civil cases, than where it is 
 attempted to be used in cases where the former, if attainable 
 is wilfully withheld, (a) 
 
 It is in its character of a substitute for direct evidence, 
 -therefore, that circumstantial evidence is most prominently 
 presented ; and it is on account of this very feature that it 
 has been pointedly condemned as a medium of proof. " Cir- 
 cumstantial evidence," it has been said, " is merely supple- 
 mental, and is only resorted to, from the want of original 
 and direct proof. And it never can be said that what is 
 secondary is equal to that which is original, — ^the thing sub- 
 stituted equal to that which it is meant to supply." (6) But 
 in reply to this, it may be said that the whole policy of the 
 law, and the constant effect of the rules provided for the 
 purpose, are that the substitute shall be made equal to the 
 original, — ^that the operation of the indirect evidence era- 
 ployed shall be made equally as convincing as if it were in 
 
 (o) 1 Stark. Evid. 515, 526, 527. See 3 Phill. Evid. (Cowen & Hill'a 
 notes,) Note 293. 
 
 (6) Theory of Presumptive Proof, §6. In support of this view, the writer 
 goes on to quote the remark of Lord Chief Baron Gilbert, that "when the fact 
 itself cannot be proved, that which comes nearest to the proof of the fact is 
 the proof of the circumstances that necessarily and usually attend such facts, 
 and called presumptions and not proofs ; for they stand instead of the proo6 
 of the fact till the contrary is proved." 1 Gilb. Evid. 142. But the obvious 
 meaning of the passage is that presumptions, (that is, presumptive evidence,) 
 are capable of filling the place, or " standing instead " of proof, "(that is, 
 direct evidence,) where the latter cannot be had. 
 
226 RELATIVE VALUE OP DIRECT [PART I. 
 
 the direct form, (a) And it may be considered a mark of 
 superior wisdom in the whole system of legal provision on 
 the subject, that, in so common a contingency as the failure 
 of direct evidence, a substitute is provided, capable of ade- 
 quately filling its place; so that justice is not left, (as, in 
 the most important cases, it otherwise might be,) without 
 an instrument of action. 
 
 The true test of the sufficiency of any species of legiti- 
 mate evidence obviously is, not its quality in the abstract, 
 but its operation as actually applied; not the manner in 
 which it is made to bear upon the fact sought, but its effect 
 in proving that fact. If the result of its application is a 
 satisfying impression and conviction of truth, it is all that 
 can be required. (6) On the other hand, it is immaterial 
 what the nature of the evidence is, if it is not believed, and 
 does not bring conviction to the minds of the jury, (c) 
 
 But it is not only in the character of a substitute for direct 
 evidence, where that cannot be obtained, that circumstantial 
 evidence is available as a medium of proof. It may be, and 
 constantly is used in connection with direct evidence, and as an 
 aid to it ; being intended as a collateral means of more effectu- 
 ally developing the truth sought. •' Possession of the one," 
 observes an acute writer, " affords no reason for neglecting 
 the other." (jV) And not only is it thus collaterally used 
 as an aid, but frequently also (and more or less adversely,) 
 as a test of direct evideuce. (e) And, in both these 
 capacities, it is found to perform as important a function, as 
 
 (a) See Best on Pres. § 190. 
 
 {b) See the argument on the trial of Capt. Green and his crew, 14 Howell's 
 State Trials, 1233. See also the argument of the Solicitor General, on the trial 
 of John Barbot, 18 Id. 1301. 
 
 (c) Theory of Pres. Proof, 23. 
 
 ((f) 3 Benth. Jud. Evid. 248. 
 
 (c) See the remarks of the presiding judge, in his charge to tlie jury, in the 
 case of The People v. Bodine, 4 N. T. Legal Observer, 90, 91. And seeyost, 
 iu this chapter. 
 
CHAP, v.] AND CIBCUMSTAXTIAL EVIDENCE. 227 
 
 where it is primarily employed to establish the principal 
 fact, and is solely relied on for that purpose. 
 
 To pursue the comparison between direct and circum- 
 stantial evidence as means of judicial proof, — each of them 
 has been said to possess its characteristic excellencies or 
 virtues ; (a) or, in another form of expression, to be at- 
 tended with peculiar advantages, balanced by corresponding 
 disadvantages, and consequent dangers. Thus, it is said by 
 Mr. Best, that " when the proof is direct, as, for instance, 
 consisting of the positive testimony of one or two witnesses, 
 the matters proved are more proximate to the point at issue, 
 or, to speak more correctly, are identical with the physical 
 facts of it, and leave but two chances of error, namely, 
 those arising from mistake or mendacity on the part of the 
 witnesses : while in every case of mere presumptive evidence, 
 however long or apparently complete the chain, there is a 
 third, — namely, that the inference from the facts proved 
 ever so clearly, may be fallacious. ***** On the other 
 hand, a chain of presumptive evidence has some very de- 
 cided advantages over the direct testimony of a limited 
 number of witnesses." (6) Mr. Bentham, whom he pro- 
 ceeds to quote, has stated these advantages in the following 
 terms. " First, by including in its composition a portion of 
 circumstantial evidence, the aggregate mass on either side 
 is, if mendacious, the more exposed to be disproved. Every 
 false allegation being liable to be disproved by any such 
 notoriously true fact as it is incompatible with ; the greater 
 the number of such distinct false facts, the more the aggre- 
 gate mass of them is exposed to be disproved ; for it is the 
 property of a mass of circumstantial evidence, in proportion 
 to the extent of it, to bring a more and more extensive as- 
 semblage of facts under the cognizance of the judge. Sec- 
 ondly, of that additional mass of facts thus apt to be brought 
 upon the carpet by circumstantial evidence, parts more or 
 
 (a) 1 Stark. Evid. 627. 529. (6) Best on Pres. §§ 193, 194. 
 
228 RELATIVE TALUE OF DIRECT [PAET I. 
 
 less considerable io number will have been brought forward 
 by so many different deposing witnesses. But, the greater 
 the number of deposing witnesses, the more seldom will it 
 happen that any such concert, and that a successful one, has 
 been produced, as is necessary to give effect to a plan of 
 mendacious testimony, in the execution of which, in the 
 character of deposing witnesses, divers individuals are con- 
 cerned." (a) 
 
 A very clear statement of the advantages and disadvan- 
 tages attending the employment of both species of evidence 
 was given by Chief Justice Shaw, in his charge to the jury 
 in the case of Commonwealth v. Webster. " The advantage 
 of positive evidence," said the learned judge, " is, that you 
 have the direct testimony of a witness to the fact to be 
 proved, who, if he speaks the truth, saw it done ; and the 
 only question is, whether he is entitled to belief. The dis- 
 advantage is, that the witness may be false and corrupt, and 
 the case may not afford the means of detecting his falsehood. 
 ***** The advantages [of circumstantial evidence] are, 
 that, as the evidence commonly comes from several witnesses 
 and different sources, a chain of circumstances is less likely 
 to be falsely prepared and arranged, and falsehood and per- 
 jury are more likely to be detected and fail of their purpose. 
 The disadvantages are, that a jury has not only to weigh 
 the evidence of facts, but to draw just conclusions from 
 them; in doing which, they may be led by prejudice or 
 partiality, or by want of due deliberation and sobriety of 
 judgment, to make hasty and false deductions ; a source of 
 error not existing in the consideration of positive evi- 
 dence." (6) 
 
 Perhaps the strongest statement of the case, to the disad- 
 vantage of circumstantial evidence in the abstract, is con- 
 tained in the following remarks of Mr. Hume : " Certainly, 
 it must be allowed, on the one side, that in any case of pure 
 
 (a) 3 Benth. Jud. 251. (a) Bemis' Report of the trial, 463, 464. 
 
CHAP. V.J AND CIRCUMSTANTIAL EVIDENCE. 229 
 
 circumstantial e\'ideace, it is always possible that the prisoner 
 may be innocent though every particular be true to which the 
 witnesses have sworn ; a thing that cannot happen where they 
 swear directly to the deed as done in their presence." Yet 
 even this statement he immediately balari'oes by the remark 
 that, " on the other side, such is the difficulty of contriving an 
 apt and coherent train of circumstances, that perjury is far 
 more easily detected in cases of this description ; and the 
 just influence of the former consideration is not utterly to 
 exclude a sort of evidence which is often irresistible to the 
 mind, and which, with respect to many crimes, is the only 
 sort of evidence that can ordinarily be obtained ; but to 
 recommend to jurymen the propriety of caution and reserve, 
 in which, indeed, they are seldom wanting, as to the suffici- 
 ency of the presumptions of guilt, on which they are to con- 
 demn." (a) 
 
 But, in truth, these two kinds of evidence ought not, in a 
 general view of their merits, to be contrasted or set in oppo- 
 sition to each other. (6) " In the abstract," observes Mr. 
 Starkie, " and in the absence of all conflict and opposition 
 between them, the two modes of evidence do not in strict- 
 ness, admit of comparison ; for- the force and efficacy of 
 each may, according to circumstances, be carried to an in- 
 definite and unlimited extent, and be productive of the 
 highest degree of probability, amounting to the highest 
 degree of moral certainty." (c) If the object of comparison 
 were to determine the question which of the two should be 
 exclusively adopted, as a medium of proof ; there would be 
 greater reason in insisting upon' the supposed superior merits 
 
 (a) Hume's Commentaries, Trial for Crimes, vol. 2, chap. 15, p. 237 ; cited 
 in the note to the report of the trial of James Stewart, 19 Howell's State Trials, 
 73, 74. 
 
 (A) Wills. Circ. Evid. 30. 
 
 (c) 1 Stark. Evid. 526. 
 
230 RELATIVE VALUE OF DIRECT [PART I. 
 
 of the one or the other. But as long as it is admitted that 
 both must continue to be em2)loyed as instruments of judicial 
 investigation, the only legitimate and rational object of com- 
 parison is to bring out more prominently the respective 
 excellencies and imperfections, or advantages and disadvan- 
 tages of each, with the view of more effectually and safely 
 regulating their application in practice, {a) 
 
 According to the opinion of a writer just quoted, the two 
 species are not proper subjects of comparison, unless when 
 in actual opposition to, and conflict with each other. And 
 they are never found to be in conflict, while in the natural 
 sphere of their employment, namely, in the cause of truth : 
 the attainment of truth being the avowed object of all evi- 
 
 (o) In view of what has been considered an unreasonable estimate of the 
 Talue of circumstantial evidence, complaint has sometimes been made of un- 
 fairness in the statement of cases, as the foundation for a comparison between 
 the two kinds of evidence. It has been said that " extreme cases, — the 
 strongest ones of circumstantial, and the weakest of positive evidence, — have 
 been selected for the illustration and support of a general position." Will,a, 
 Giro. Evid. 28. The following remarks, taken from a note to the report_of the 
 trial of Jamen Stewart, {19 Howell's State Trials, 74,) are worthy of attention 
 in connection with this point, although their tendency obviously is towards 
 the adverse view of circumstantial evidence, already considered. " In con- 
 sidering the merits of the two sorts,, it seems not to be a legitimate procedure, 
 to state on the one hand a very strong or a very weak case, without stating on 
 the other, a case, as nearly as may be, of correspondent strength or weakness. 
 When it is said, ' witnesses to the fact may be mistaken, may falsify, may err 
 through inadvertence,' &c., it should be recollected that all this is not confined 
 to witnesses of direct facts, but extends also to the witnesses of circumstantial 
 facts ; when it is said that circumstances cannot lie, it should be recollected 
 that the relators of circumstances can lie, and that circumstances themselves 
 may deceive ; when it is said that the concert of a number of persons to impose 
 on a court of justice a tissue of manifold falsehoods is improbable of con- 
 trivance, difficult of execution and easy of detection, it should he recollected 
 that circumstantial evidence contains not always either numerous circumstan- 
 ces, or circumstances which are attested by numerous witnesses ; when it is 
 said that circumstances trifling in themselves may by concurrence superinduce 
 decided conviction, it should be recollected that the more trifling in itself is 
 any circumstance, the greater is the probability that it was inaccurately ob. 
 served, and Bas been erroneously remembei-ed." 
 
•CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 231 
 
 dence. In their essential nature, they are so far from being 
 rival or hostile instrumentalities, that they are often found 
 to partake mutually and intimately of each other's peculiar 
 qualities ; and to be sometimes actually resolvable, the one 
 into the other. Thus, circumstantial evidence, as we have 
 seen, is nothing but direct evidence indirectly applied, (a) 
 Direct evidence, on the other hand, when closely analyzed, 
 is found to possess the inferential quality. (6) And direct 
 e\'idence sometimes becomes converted into circumstantial, in 
 the very act of its delivery, (c) Again, they are in practice 
 constantly found to occur in the closest connection ; indeed, 
 they are seldom wholly dissevered, — especially so as to ex- 
 clude the indirect species. It is very rare, as has been 
 often remarked, that any body of evidence presented to the 
 mind as the basis of a judgment is, on examination, found 
 to consist wholly of direct, without any admixture of cir- 
 cumstantial evidence, (c?) Finally, as thus associated, they 
 are constantly found to be mutually consistent, and to co- 
 operate toward the attainment of their common object, with 
 the greatest harmony. That, indeed, may be pronounced 
 the most perfect body of evidence, in which strong direct 
 testimony is sustained throughout, by numerous and accord- 
 ing circumstances, (e) 
 
 It is when in actual conflict, in particular cases, that the 
 two species may properly be viewed in contrast ; and the op- 
 position, thus seen to exist between them, may be made the 
 subject, not only of theoretical consideration, but of practical 
 use. They are always found to come into this kind of con- 
 flict, when one of them is diverted from the cause of truth, 
 
 (a) See ante, p. 6. 
 
 (A) See ante, p. 210. 
 
 (c) See 3 Benth. Jud. Evid. 8, 9. Id. 249, 250. 
 
 (d) Id. 7. 
 
 («) The proof of divine revelation has been considered by Bishop Butler , 
 to -depend, in an important degree, upon this union of direct and circumstantial 
 evidence, in one body. Analogy^ part 2, chap. 7. 
 
232 RELATIVE VALUE OP DIRECT [PART I. 
 
 to the support of error, falsehood or fraud. It is in such 
 cases, or where such a state of things is suspected, that cir- 
 cumstantial evidence is found to perform one of its most 
 valuable functions, — that of testing the reliability, or de- 
 monstrating the falsity of the most positive testimony. For 
 example, a ■written instrument is produced in court, on a 
 trial, and proved by ■witnesses in the amplest manner ; and 
 nothing appears on its face to rebut the presumption that it 
 is a genuine instrument. But, on a close and minute exami- 
 nation, a ■water-mark is seen in the paper, bearing a date 
 some years posterior to the date of the instrument, ■which at 
 once proclaims it to be a forgery, (a) Again, it constantly 
 happens on trials, that the most positive testimony to the 
 fact of the commission of a crime charged, is effectually re- 
 butted or destroyed by the circumstantial evidence of an alibi. 
 But, supposing the fraud to be in circumstantial evidence 
 itself, as "where evidence of an alibi is fraudulently made up 
 by a concert of witnesses, justice is not left without an ade- 
 quate test of the fraud, which, in this instance, is furnished 
 by the same kind of evidence. (6) 
 
 The two great sources of danger to be apprehended, in 
 relying upon evidence of any kind, are obviously those al- 
 ready adverted to, — error and fraud in the medium of evi- 
 dence itself. To honest error in gi^vdng testimony, arising 
 from corresponding error in original observation, all wit- 
 nesses are liable, whether positively swearing to the very 
 fact sought to be proved, or to one or more other facts from 
 
 (a) So, the employment of a paper with a ■vvroiig stamp has sometimes 
 afforded the means of detecting a forgery, by bringing to bear, in Mr. Bentkam's 
 language, " against the body of authenticating evidence a mass of de-authen- 
 ticating evidence not to be resisted." 3 Jud. Evid. 252, note. See another 
 illustration given in the charge of the presiding judge, in the case of TAe 
 People v. Bodine, i N. Y. Legal Observer, 90, In regard to dated water- 
 marks in paper, u, caution is, however, to be observed, arising from the fact 
 that issues of paper have sometimes taken place, bearing the water-mark of 
 the year succeeding its distribution. Wills, Giro. Evid. 29. 
 
 (i) See 2 Evans' Pothier on Oblig. 281, (Phil. ed. 1853.) 3 Phill. Evid. 
 (Cowen & Hill's notes,) Note 288. 3 Benth. Jud. Evid. 251. 
 
CHAP, v.] AND CIECUMSTANTUL EVIDENCE. 233 
 
 which the former is to be deduced. Circumstantial evidence 
 has been considered to be more liable to error, in consequence 
 of the fact testified to, being often of a trivial and ordinary 
 character, and therefore liable to be more inaccurately 
 (because less attentively) observed, and less faithfully re- 
 membered, (a) But this is to be taken subject to the con- 
 sideration that there is always a coolness on the part of one 
 who observes a fact or occurrence of an ordinary kind, or 
 only collaterally of a criminal aspect, more favorable to 
 accuracy of observation than the excitement naturally affect- 
 ing the' mind of one who sees a crime actually committed ; 
 especially a crime of an atrocious cast, or accompanied by 
 great personal violence. 
 
 Another source of danger to be apprehended from the 
 employment of any kind of evidence, is the wilful corrup-. 
 tion of the medium through which the evidence is presented, 
 arising- from actual and premeditated design to deceive the 
 tribunal, under a show of truth ; — in other words, the fraudu- 
 lent /aSrica^iow of evidence. So. far as the fabrication is 
 the act of the witness, — namely, the statement of that to be 
 a fact which he knows is not so, — both species of evidence 
 are equally liable to it. The difference consists in the 
 greater difficulty of inventiug a sufficient number of signifi- 
 cant circumstances, having a proper consistency and connec- 
 tion with each other, and of having them sworn to by an 
 adequate number of witnesses, without presenting points on 
 which their statements may be compared with each other and 
 bo so brought in contact with the truth as to lead to the 
 exposure of the fraud. (6) To fraudulent fabrication, on 
 the part of the criminal himself, — constituting what has 
 been termed "forgery of real evidence," circumstantial evi- 
 dence is exclusively liable, (c) But, in the opinion of an 
 
 (a) Note to the trial of James Stewart, 19 Howell's State Trials, 73, 74. 
 Wills, Circ. Evid. 32. 
 
 (6) See 1 Stark. Evid. 528. Wills, Ciro. Ev. 217. 3 Benth. Jud. Ev. 251. 
 (c) See ante, p. 131. 
 
234 RELATIVE VALUE OF DIRECT [PART I. 
 
 acute "writer, " it is only here and there, Ijy accident, that 
 real evidence is capable of being fabricated, or, by altera- 
 tion, adapted to a deceptitious purpose ; whereas, there is 
 no case in which it may not happen to man, in the character 
 of a deponent, to stain his deposition by mendacity,' if he 
 sees what to him forms an adequate inducement, and is con-. 
 tent to run the risk." (a) 
 
 But it may, and sometimes does happen that both species 
 of evidence are diverted from their natural function and 
 operation of indicating truth, and employed in the support 
 of falsehood and fraud. Thus, both may be actually fabri- 
 cated by human art, and so skilfully blended into one body, 
 as to present an appearance of harmony, the. effect of which 
 it may be difficult for the mind to resist. But the most 
 -dangerous species of all fabricated evidence is that which is 
 produced, in part, by the corruption or perversion of the 
 truth itself; as ■where facts, genuine in themselves," (being 
 actual unfabricated realities or occurrences,) but extraneous 
 to the criminal transaction, as it took place, and withal of a 
 suspicious aspect when viewed in connection with it, have 
 been taken advantage of by the contriver, and interwoven 
 with, and a,pparently supported throughout by false direct 
 testimony. The most unfortunate cases of erroneous convic- 
 tion have been based upon evidence of this character. (6) 
 The results in cases of this kind, however, have been attribu- 
 table, at least, as much to the influence of the direct as of 
 the circumstantial portion of the evidence ; and, of course, 
 furnish no especial ground of objection to the use of the 
 latter. 
 
 On a final review of the two opinions of the merits of cir- 
 cumstantial evidence, which have been considered in the 
 
 (a) 3-Bentli. Jud. Evid. 250. 
 
 (b) Best on Pres. § 191, note (s). See the case of Thomas Harris, Theory 
 of Pres. Proof, Appendix, case 3. 
 
CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 235 
 
 present chapter, it will be seen that truth occupies the posi- 
 tion of a mean between both. The character of the two 
 species of evidence, in behalf of which they have respectively- 
 been advocated, may be summed up in the single remark, 
 that while both, as merely human instruments, are con- 
 fessedly and unavoidably fallible, both, as instruments of 
 justice, arc nevertheless indispensable. 
 
 Looking at circumstantial evidence in its leading character 
 of a substitute for direct, we at once perceive the test of the 
 probative force which it should possess in any given case 
 where it is solely employed and relied on ; — it should, at 
 least, be equal to that of the evidence for which it is substi- 
 tuted, (a) This degree of force it is admitted to be, in 
 itself, capable of attaining ; (6) and there is no necessity 
 for raising or rating it, in general, higher. It is true that, 
 in many individual instances, it may be superior in proving 
 power to other individual cases of proof by direct evi- 
 dence, (c) A chain of circumstances, each proved by eye 
 or ear-witnesses, each capable of being contradicted or dis- 
 proved by the party on whom they are brought to operate, 
 all submitted to the plain sense of a jury of intelligent men, 
 is often more to be relied upon than the direct and positive 
 assertions of a witness who may not be intelligent, or who 
 may be dishonest, (d) But a judgment based upon circum- 
 stantial evidence cannot, in any case, be more satisfactory, 
 
 (a) "In no case," observes Mr. Starkie, "ought the force of circum- 
 stantial evidence, where it is adequate to conviction, to be inferior to that 
 which is derived from the testimony of_a single witness, the lowest degree of 
 direct evidence." 1 Stark. Evid. 514. 
 
 (A) See the observations of Parke, B. in Rex v. Tawell, Aylesbury Spring 
 Assizes, 1845 ; reported in Wills Circ. Evid. 198, and quoted Id. 161. Butler's 
 Analogy, part 2, chap. 7. 
 
 (c) Wills, Circ. Evid. 29, and cases cited ibid. 1 Greenl. Evid. § 13 a. 
 
 (d) Thacher, 3. in Commonweallh v. Francis, Thachcr's Crim. Cases, 240, 
 246. See also the observations of Gibson C. J. in CommonieealOi v. Barman, 
 6 Am. Law Journal, 123. 4 Barr's K. 272. 
 
236 EELATIVB VALUE OP DIRECT [PAET I, 
 
 than when the same result is produced by direct evidence 
 free from suspicion of bias or mistake, (a) 
 
 Of the adverse view of circumstantial evidence, it must, 
 however, be said that, though unreasonable and untenable in 
 the length to which it has been carried, it has not been 
 without a most salutary effect upon the actual course of 
 judicial investigation in criminal cases. The admitted lia- 
 bility of the mind to reason inaccurately from combinations 
 of facts, and — more than this — the existence even of a 
 single authenticated case in which an innocent person has 
 actually been condemned and executed upon evidence con- 
 sisting of a body of genuine and concurring facts, indicating 
 with apparently irresistible force, the conclusion of his 
 guilt, — have taught, in language not to be misunderstood or 
 forgotten, the necessity of unusual caution and vigilance on 
 the part of tribunals to which such evidence may come to be 
 presented. Nearly two centuries ago, and while the law of 
 this branch of evidence was yet in its infancy, these con- 
 siderations commended themselves to the humane aud saga- 
 cious mind of Sir Matthew Hale. " In some cases," said 
 that eminent judge, " presumptive evidences go far to prove 
 a person guilty, though there be no express proof of the fact 
 to be committed by him ; but then it must be ver/j warily 
 pressed, for it is better five guilty persons should escape 
 unpunished, than one innocent person should die." (6) The 
 same lesson of warning has been studiously inculcated by 
 every wi'iter of authority, on criminal evidence, and in 
 many judicial opinions down to the present day. (c) In- 
 deed, the whole object of the modern law of circumstantial 
 
 (a) Willa, Circ. Evid. 29. Seo Id. 30, -SI. 
 
 (A) 2 Hale's P. C. 289. 
 
 (c) See among others, Hume's Comm. Trial for Crimes, voi. 2, oh. 15, p. 
 237- 1 Stark. Evid. 480. 1 Phill. Evid. 440. Best on Pres. § 290. Rosooe's 
 Crim. Evid. 14. 2 Evans' Pothier on Obi. 289. 292. Sionj, J. in United 
 Stales V. Gibert, 2 Sumner, 28. Shaw, C. J. in CommonweaUh v. Webster, 
 Bemis' Keport, 464. 
 
CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 237 
 
 evidence in criminal cases may be said to be — so to direct 
 the application of facts shown in evidence, to the principal 
 fact sought to be proved, as to prevent, by all possible means, 
 the recurrence of any such disastrous and melancholy results 
 as are said to have happened in earlier and less enlightened 
 periods. 
 
 The peculiar defect which, in an abstract point of view, 
 must be admitted to exist in circumstantial evidence of the 
 presumptive kind, has been stated with equal clearness and 
 brevity by the Scotch writer Hume, already quoted: — "it is 
 always possible that the prisoner may be innocent, though 
 every particular be true, to which the witnesses have sworn ; 
 a thing that cannot happen where they swear directly to the 
 deed, as done in their own presence." (a) Any system of 
 legal rules or provisions aimiag to supply this defect, or to 
 diminish the hazards growing out of it in practice, should 
 therefore embrace the following requisitions : — first, the pre- 
 sentation of a body of facts, sufficiently numerous and 
 weighty, and comprising such an accordant mass of moral 
 and physical coincidences, and of precedent, concomitant 
 and subsequent circumstances, as to raise, by their joint and 
 concurrent tendency, a reasonable presumption of guilt ; 
 secondly, the application, to the presumption thus raised, of 
 so rigid and thorough a test, or series of tests,..as to reduce 
 the abstract possibility of innocence to the level of those 
 possibilities to which direct evidence itself must always be 
 taken to be subject ; and finally, an invariable requirement 
 that the accused shall be deemed and pronounced not guilty 
 of the crime charged, in every case where the desired 
 degree of certainty, on the part of the jury, cannot finally 
 be attained. All these requisitions are found to be pre- 
 scribed and insisted upon, by the modern rules regulating 
 the application of circumstantial evidence in criminal cases, 
 as .liiey have already been explained, and as they will be 
 
 (o) See ante, p. 228, 229. 
 
2S8 RELATIVE VALUE OP DIRECT [PART I. 
 
 further illustrated in the present work; and, in framing 
 these rules, every thing appears to have been done, that 
 sagacity and humanity, jointly acting under the light of 
 experience, could be expected to accomplish, or that anj 
 system of merely human means would, in its nature, admit. 
 
 But the attainment of truth, the great object of all judicial 
 investigation, depends upon something more than the theo 
 retical excellence of any system of rules, which may be 
 devised for the purpose. It depends, in a most important 
 degree, upon the character of the tribimal itself, with which 
 the application of such rules finally and necessarily rests. 
 Circumstantial evidence is, beyond all doubt, a most valuable 
 and effective instrument of justice ; but it is sometimes one 
 of great delicacy, demanding a corresponding degree of 
 care and skill on the part of those who may be entrusted 
 with the use of it. It is from the want of this care and 
 skill, more than from any defect inherent in the instrument 
 itself, that occasional injustice has been wrought by it. This 
 leads us, finally, to take some notice of the qualifications 
 which it may be considered desirable or necessary that a 
 body of jurors, called to deal with and interpret a mass of 
 circumstantial evidence, should, at least in theory, possess. 
 
 It has been considered a mark of superior wisdom in the 
 common law, that, in criminal cases, it always entrusts the 
 judicial function, so far as dealing with facts is concerned, 
 solely to the hands of a temporary body of investigators, 
 selected casually and summoned for the occasion, and not 
 to a single permanent judge, or standing tribunal of persons 
 who have made the law their professional 'study or occupa- 
 tion, (a) And the reason of this opinion has been con- 
 sidered as embodied in the observation of the Marquis 
 Beccaria, that, in criminal investigations, " the conclusion 
 of an unteclmical mind, judging by common sense, is safer 
 
 (a) See Best on Pres. § 195, note {I). 
 
CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 239 
 
 than that of a learned one, judging by opinion." (a) By 
 such an arrangement, the unfavorable influence of a strict 
 adherence to rule and system, (which sometimes leads to 
 artificial views of actual transactions,) is effectually avoid- 
 ed; and the minds of the investigators are left free to con- 
 sider the facts presented by individual cases, in a natural 
 light, and to extract the desired truth from them by a 
 natural process. But it does not follow that because the 
 minds of the investigators should be free from technical and 
 artificial influences, they may not possess every natural 
 faculty in a high state of excellence, or that the possession 
 of a superior order of mental qualifications may not be 
 desirable, and, in some cases, indispensable to the attain- 
 ment of true conclusions. What is called " common sense " 
 or " plain and ordinary sense," (b) is confessedly and 
 emphatically the quality or faculty of mind which is always 
 called into exercise, in the process of presumption from 
 facts, (c) whether natural or judicial ; and it is, doubtless, 
 adequate to the attainment of the object sought, in all cases 
 where the facts are comparatively few, or easily understood, 
 and the process applied to them is short and simple. The 
 same may be said of the faculty o^ judgment, (d) an ordi- 
 nary measure of which may be all that, in many or most 
 cases, can be required. But it sometimes happens, even in 
 investigations not of a judicial character, that facts are pre- 
 sented in such numbers, variety, and peculiar relations and 
 combinations', that it requires, in the words of Sir W. D. 
 Evans, " great judgment and discretion," (e) and, in the 
 language of Bishop Butler, " the truest judgment," (/) to 
 
 {a) Id., citing Beccaria on Crimes, s. 7. In the American translation 
 of Beccaria, (Pliil. ed. 1819, cli. 14.) tlie passage is given in otlier and much 
 less appropriate language. 
 
 (A) 1 Stark. £vid. 24. Beccaria on Crimes, ch. 14. 
 
 (e) See ante, pp. 12, 24, 59. 
 
 (d) See arde, pp. 23, 80. 
 
 (e) 2 Evans' Pothier on ObL 292. 
 < f > AjjsJop'. Tiart 2, ch. 7. 
 
240 RELATIVE VALUE OP DIRECT [PAET I. 
 
 determine with exactness their quality and force, as a body 
 of evidence, and to deduce from them the single conclusion 
 desired. On trials for high crimes, juries are sometimes 
 called to consider and act upon evidence presenting the 
 results of the most elaborate scientiiic research ; and even 
 where this is not the case, there are processes, more or less 
 numerous and intricate, to be gone through, before the case 
 is ready for the effectual application of the faculty of judg- 
 ment. And the difficulties arising from these and similar 
 causes, are heightened by the further and peculiar consider- 
 ation, that the action of juries is often wilfully embarrassed 
 and impeded by efforts, on the part of the accused, to avoid 
 or prevent the development of the truth, and every endeavor 
 made to throw the judgment off its poise, by appeals to the 
 feelings. 
 
 Oases, therefore, may be easily imagined, and doubtless 
 do sometimes occur, in which qualifications and powerS such 
 as the following, would be called into the fullest exercise : — 
 a fund of general information, derived from experience and 
 observation ; and embracing, in particular, a knowledge of 
 the human character, and of the principles and influences 
 governing human conduct :' (a) a capacity of taking into 
 the mind a large and miscellaneous collection of facts, with 
 a corresponding power of memory to retain them : a power 
 of analysis, by which such a mass of facts may be separated 
 into its component elements, and a power of abstraction, by 
 which each separate element may be allowed its proper 
 share of consideration : the^ faculty of judgment, in a high 
 state of excellence, involving the power of comparing facts 
 with each other, with the general standards furnished by 
 experience, and with the hypothesis sought to be ultimately 
 established ; so as to secure the observance and estimation 
 of their individual significance and force, their mutual rola- 
 
 (a) See 1 Stark. Evid. 25-30 ; and Id. 24, 26. note. 
 
CHAP. V.l AND CIECUMSTANTIAL EVIDENCE. 241 
 
 tions, and their separate and united bearing upon the prin- 
 cipal object in view ; and involving, also, the power of de- 
 tecting discrepancies and contrasts, as well as of observing 
 coincidences, analogies and resemblances : (a) a faculty of 
 arranging and combining separate facts into a connected 
 whole, and in a natural order : a faculty of reasoning logi- 
 cally, though not technically, or of appreciating such reason- 
 ing in others : coolness and deliberation in every mental 
 process, preventing a confusion of ideas, and effectually 
 checking all tendency to hastiness of inference : firmness in 
 adhering to what is seen to be the truth, in spite of attempts 
 to move the moral sympathies : patience in submitting to the 
 labor and fatigue attending minute and protracted investiga^ 
 tion : and finally, willingness and readiness to re-consider 
 apparently satisfactory conclusions, so that their validity 
 and sufficiency may be tested in every reasonable form, and 
 to the utmost practicable degree. 
 
 But, under the system upon which jurors are actually 
 selected for the performance of their duties, these qualifi- 
 cations, however important in a general view of the subject, 
 become, to a great extent, matters of theory, and are neces- 
 sarily left to implication and inference. The law, it is true, 
 does not overlook them in its provisions ; but, in describing 
 them, it contents itself with the most general expressions ; (6) 
 gnd, even as thus described, their existence is, of necessity, 
 1 matter of reasonable presumption, on the part of the 
 selecting officers, rather than of any actual knowledge. 
 That deficiency in point of such qualifications may contribute 
 
 (a) See Theory of Pres. Proof, 48. Hampden's Lectures, quoted iu Wills, 
 Circ. Evid. 13. 
 
 (4) Thus, in New York, the statute requires that jurors shall be "of sound 
 judgment and well informed." 2Bev. Stat. [411,] § 13, subd. 5. See Mass. 
 Rev. Stat., ch. 95, sec. 4. In Pennsylvania, it describes them as " intelli- 
 gent and judicious." Dunlop's Laws, p. 553, § 85, (ed. 1853.) In Ohio, 
 they are described as " good, judicious persons." Statutes, chap. 64, § 2. 
 (ed. 1841.) 
 
242 _ RELATIVE TALUB OP DIRECT [PART T. 
 
 to the finding of erroneous verdicts, will not probably be 
 denied ; although it would be difficult, if not impossible, to 
 ascertain the character and extent of such influence in any 
 particular caSe. In practice, however, the danger arising 
 from such a cause is lessened in a material degree, by an- 
 other consideration, with the mention of which, this chapter 
 will be brought to a close. 
 
 In theory, jurors are the actual investigators of the facts 
 of the cases submitted to them. They are required by law, 
 and bound by their oaths, to examine the evidence /or themr 
 selves, in all its particulars ; to weigh its force and decide 
 upon its effect, without reference to the views presented 
 upon either side, and, indeed, without regard even to the 
 remarks of the court itself. But, as trials are actually con- 
 ducted, the investigation is more strictly before the jury, 
 than by them. By the effect of the mere course of the pro^ 
 cedure, the case is, in a certain sense and in a material 
 degree, investigated for them ; and their functions become 
 virtually resolvable into those of superintending and watch- 
 ing its progress, approving or disapproving certain proposed 
 applications or interpretations of evidence, and seeing that 
 substantial justice is done throughout. The efforts and 
 arguments of the contending parties, leading as they do, 
 repeatedly, over the same ground, and particularly the 
 charge of the presiding judge, have the constant effect of 
 marshalling the facts in a convenient order, impressing them 
 upon the memory, and presenting all the essential points 
 which are to be considered in applying them : thus furnish- 
 ing numerous and important helps to such mental operations 
 as may be required ; dispensing sometimes, with the exercise 
 of the more delicate processes ; and presenting the case in a 
 compact form which faculties of an ordinary grade may be 
 adequate to grasp, and upon which the final simple answer, 
 in the afiSrmative or negative of the issue, may be undei> 
 standingly given. 
 
CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 243 
 
 The best illustrations of the efficacy of circumstantial 
 eridence, in establishing the truth of criminal accusations, 
 are always found in cases which have actually occurred, and 
 have been made the subjects of judicial trial, especially 
 those in which the correctness of the verdict has been 
 subsequently confirmed. Among the most instructive of 
 these is the Scotch case of Rex v. Richardson, (a) to 
 which a peculiar prominence has been given by two of the 
 latest writers on circumstantial evidence, (&) and which 
 will now be subjoined as an appropriate conclusion of the 
 present general division of the subject of this work. 
 
 In the autumn of 1786, a young woman who lived with 
 her parents in rather a remote pai't of the stewartry of 
 Kirkcudbright, was one day left alone in the cottage, her 
 parents having gone out to their harvest field. On their 
 return home, a little after mid-day, 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 con- 
 curred in excluding any presumption of suicide ; while the 
 surgeons who examined the wound, were satisfied that it had 
 been inflicted by a sharp instrmnent, and by a person who 
 must have held the instrument in his left hand. On opening 
 the body, the deceased appeared to have been some months 
 gone with child ; and on examining the ground about the 
 cottage, there were discovered the footsteps, seemingly, of a 
 person who had been running- hastily from the cottage, and 
 by an indirect road, through a quag-mire or bog, in which 
 there were stepping-stones. It appeared, however, that the 
 person had, in his haste and confusion, slipped his foot, and 
 stepped into the mire, by which he must have been wet 
 nearly to the middle of the leg. The prints of the footsteps 
 were accurately measured, and an exact impression taken of 
 
 (a) Burnett's Criminal Law of Scotland, p. 524, et seq. 
 (A) Best on Pres.,§ 197. Wills, Ciro. Evid. 225. 
 
244 RELATIVE VALUE OP DIEECT [PART I. 
 
 them ; and it appeared that they -were those of a person 
 ■who must have worn shoes, the soles of which had been 
 newly-mended, and which, as is usual in that part of the 
 country, had iron knobs or nails in them. There were dis- 
 covered, also, along the track of the foot-steps, and at cer- 
 tain intervals, drops of blood ; and on a stile, or small gate- 
 way, near the cottage, and in the line of the footsteps, some 
 marks resembling those of a hand which had been bloody. 
 
 A number of persons being present at the funeral, the 
 steward-depute, with a view of obtaining some clue to the 
 murderer, called all the men together, to the number of 
 sixty. He then caused the shoes of each of them to be 
 taken off and measured ; and after going nearly through the 
 whole number, they came to the shoes of the prisoner, Wil- 
 liam Richardson, which corresponded exactly to the impres- 
 sions in dimensions, shape of the foot, form of the sole, ap- 
 parently newly^mended, and the number and position of the 
 knobs. (Up to this moment, no suspicion had fallen on any 
 one in particular.) The prisoner, on being questioned 
 where he was, on the day the deceased was murdered, 
 answered, seemingly without embarrassment, that he had 
 been all that day employed at his master's work. Some 
 other circumstances of suspicion, however, having tran- 
 spired, he was, in a few days after, taken into custody. 
 
 On his examination, he acknowledged that he was left- 
 handed ; and some scratches being observed on his cheek, 
 he said he had gotten them when puUiag niiis 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 con- 
 stantly at his master's work, at some distance from the place 
 where the deceased resided ; but it appeared 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 had called at a smith's shop, under pre- 
 tence of wanting something, which it did not appear he had 
 
CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 245 
 
 any occasion for, and that this shop was in his way to the 
 cottage of the deceased. A young girl, who was some hun- 
 dred yards from the cottage, said that, about the time the 
 murder was committed, (and which corresponded to the 
 time that the prisoner was absent from his fellow-servants,) 
 she saw a person, exactly with his dress and appearance, 
 ruiming hastily towards the cottage ; but did not see him 
 return ; though he might have gone round by a small emi- 
 nence 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, on the forenoon of 
 that day, they were employed, with the prisoner, in driving 
 their master's carta ; and when passing by a wood, which 
 they named, the prisoner said that ho must run to the 
 smith's shop, and would be back in a short time. He then 
 left his cart under their charge, and, they having waited for 
 him about half-an-hour, which one of the servants ascertained 
 by having, at the time, looked at his watch, they remarked, 
 on his return, that he had been longer absent than he said he 
 would ; to which he replied that he had 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 which they asked him where he had been. He 
 said he had stepped into a marsh, the name of which he 
 mentioned ; on which one of his fellow-servants remarked 
 that " he must have been either drunk or mad, if he had 
 stepped into that marsh," as there was a foot-path which 
 went along the side of it. It then appeared, by comparing 
 the lime he was absent with the distance of the cottage 
 from the place where he had left his fellow-servants, that he 
 might have gone there, committed the murder, and returned 
 to them. 
 
 A search was then made for the stockings he had worn 
 that day, and a pair were found concealed in the thatch of 
 the apartment where he slept, and which appeared to be 
 
246 EELATIVE VALtlE OP DIRECT [PART I. 
 
 much soiled, and to have some drops of blood on them. The 
 last he accounted for, at first, by saying that his nose had 
 been bleeding some days before ; but, it being observed that 
 he had worn other stockings on that day, he next said that 
 he had assisted at bleeding a horse, when he wore these 
 stockings ; but it was proved that he had not assisted, but 
 had stood, on that occasion at such a distance that no blood 
 could have reached him. On examining the mud or sand 
 upon the stockings, it appeared to correspond precisely with 
 that of the mire or puddle adjoining the cottag-e, and which 
 was of a pa/fticular kind, none other like it being found in 
 that neighborhood. The shoemaker was then discovered 
 who had mended his shoes a short time before ; and he 
 spoke distinctly to the shoes of the prisoner, which were 
 exhibited to him, as having been those he had mended. 
 
 It then came out that the prisoner had been acquainted 
 with the deceased, who was considered in the country as of 
 weak intellect, and had on one occasion been seen with her 
 in a wood, under circumstances that led to a suspicion that 
 he had had criminal conversation with her ; and on being 
 taunted with having such connection with one in her situa- 
 tion, he seemed much ashamed and greatly hurt. It was 
 proved farther by the person who sat next to him, while the 
 shoes were being measured, that he trembled much and 
 seemed a good deal agitated; and in the interval between 
 ,hat time and his being apprehended, had been advised to 
 fly, but his answer was, *' Where can I fly to ? " 
 
 In the prisoner's defence, evidence was brought to show 
 that, about the time of the murder, a boat's crew from Ire- 
 land had landed on that part of the coast, near to the dwell- 
 ing of the deceased ; and it was said that some of that crew 
 might have committed the murder ; though their motives for 
 doing so it was difficult to explain, it not being alleged that 
 robbery was their purpose, or that any thing was missed firem, 
 the cottages in the neighborhood. 
 
CHAP, v.] AND CIRCUMSTANTIAL EVIDENCE. 2-47 
 
 On this evidence the prisoner was convicted and executed. 
 Before his death, he confessed that he was the murderer, 
 and said that it was to hide his shame that he committed 
 the deed, knowing that the girl was with child by him. He 
 mentioned, also, to the clergyman who attended him, where 
 the knife would be found, with which he had perpetrated the 
 murder. It was found, accordingly, in the place he de- 
 scribed, (under a stone in the wall,) with marks of blood 
 upon it. 
 
PART II. 
 
 CIBCUMSTANTIAL EVIDENCE, CONSIDERED WITH KEPEEENCE TO 
 ITS MATERIALS OR ELEMENTS ; THEIR USE AND APPLICATION 
 AS PROOF; AND THE Rin.ES OR PRINCIPLES BT WHICH SUCH 
 APPLICATION IS GOVERNED. 
 
 What has been said in the preceding general division 
 will serve to convey a sufficient preliminary idea of the 
 nature, operation and value of circumstantial evidence, as a 
 medium of judicial proof in criminal cases. 
 
 It is now proposed to treat of this species of evidence at 
 large, and in detail ; and this may be most conveniently 
 done by considering, in the first place, the sources from 
 which the evidence is drawn, and the materials or elements 
 of which it is composed ; and, in the next place, the manner 
 in which these materials are used and applied to the pur- 
 poses of proof. This arrangement seems to suggest the 
 following threefold division of the subject. 
 
 I. Facts or circumstances, considered as the elements or 
 materials of evidence ; including a view of their sources 
 and varieties, and of their probative force, individually 
 
 II. Facts or circumstances, as constituting bodies of evi- 
 dence ; including a notice of the principles upon which 
 they are applied in practice, and the processes involved in 
 such application. 
 
 III. The rules regulating the presentation and application 
 of circumstantial evidence, as a means of judicial proof, 
 specially considered and illustrated. 
 
CHAPTER I. 
 
 FACTS OR CIRCUMSTANCES, CONSIDERED AS THE ELEMENTS OR 
 MATERIALS OF EVIDENCE; INCLUDING A VIEW OP THEIR 
 SOURCES AND VARIETIES, AND OP THEIR PROBATIVE FORCE, 
 INDIVIDUALLY. 
 
 The materials or elements of which circumstantial evi- 
 • dence is composed, are, as has already been shown, facts or 
 circumstances of various kinds, directly testified to by wit- 
 nesses under whose observation they haVe fallen, (a). 
 
 It has sometimes been supposed that these facts or cir- 
 cumstances are not, in their nature, susceptible of any defi- 
 nite classification ; (&) and that, from thdr infinite number 
 and variety, they do not admit of being enumerated, (c) 
 How far the latter opinion may be correct, will, perhaps, 
 appear in the sequel of this work. It seems Clear, however, 
 that a classification of some kind is essential to any satis- 
 factory treatment of the subject ; and systems of arrange- 
 ment, more or less exact, have accordingly been adopted by 
 all the best English writers who have undertaken to illus- 
 trate it. 
 
 Thus, circumstantial evidence, as affirmatively applied to 
 the purpose of inculpating an accused party, has been by 
 some writers, considered under the following heads : (rf) 
 (1) Real evidence, (e) or evidence from things ; (2) Evi- 
 
 (a) See ante, p. 2, 121. 
 
 (6) Burke's Works, vol. 2, p. 623. 
 
 (c) Wills, Circ. Evid. 35. 
 
 (d) Th's is the arrangement adopted by Mr. Best. Best on Pres. | 217. 
 
 (e) This is an expression of Mr. Eentham's, which, with many others. 
 
CHAP. I.] CIRCUMSTANTIAL EVIDENCE. 251 
 
 dence derived from the antecedent conduct or position of 
 the accused ; (3) Evidence derived from the subsequent con- 
 duct of the accused ; (4) Confessorial evidence : (a) and, 
 under each of these heads, the infirmative or exculpatory 
 facts and hypotheses, respectively applicable to them, have 
 also heen treated of. Others have adopted the following 
 arrangement : (hi) (V) Inculpatory moral indications ; 
 
 (2) I Extrinsic and mechanical inculpatory indications ; 
 
 (3) Exculpatory presumptions and evidence. 
 
 But the subject seems susceptible of a clearer arrange- 
 ment under the following divisions and sub-divisions, viz. 
 I. Criminative or inculpatory evidence, as derived, 
 
 1. From physical or external objects or appearances ; 
 
 2. From the conduct or position of the accused himself ; 
 
 1. Before the commission of the supposed crime, 
 
 2. At or about the time of its commission, 
 
 3. Afterwards. 
 
 II. Exculpatory evidence or considerations, as derived, 
 
 1. From the inculpatory evidence adduced ; 
 
 2. From new and distiqpt evidence. 
 
 As this arrangement corresponds not only with the natural 
 order of the subject, but with the actual course of judicial 
 investigation, it will be followed in the present work, as 
 closely as possible. 
 
 ha3 been adopted by Mr. Best. " By real evidence," says the former, " I 
 understand all evidence of which any object belonging to the class of things, 
 is the source; persons also included, in respect of such properties as belong to 
 them in common with things." 3 Benth. Jud. Evid. 26. 
 
 (a) Another of Mr. Bentham's epithets, adopted by Mr. Best. 3 Jud. 
 Evid. 100. Best on Pres. § 217. Mr. Wills employs the better term " con- 
 fessional." Cire. Evid. 60. 
 
 (4) This is Mr. Wills' arrangement of the subject. Circ. Evid, 37> 135. 
 
252 CIRCUMSTANTIAL EVIDENCE. [PAET 11. 
 
 SECTION I. 
 Criminative or Inculpatory circumstantial evidence. 
 
 This species of evidence may be considered as derived 
 from two principal sources, — the conduct of the party ac- 
 cused ; and external objects, with their appearances, as indi- 
 cative of such conduct. The latter are sometimes termed 
 " physical facts," (a) and sometimes " extrinsic and me- 
 chanical indications," (6) as distinguished from the former, 
 to wliich the appellation of " moral " is usually applied. 
 They are the visible or sensible marks or traces of human 
 agency ; and their office, tendency and effect, are, first, to 
 establish the commission of a crime; and next, to indicate, 
 trace out and discover the criminal. Their peculiar value, 
 in these respects, consists in the circumstance that they are 
 usually produced or created, and left for observation, with- 
 out intention, and sometimes without consciousness, on the 
 part of those whose action they accompany or follow. They 
 are the evidences which, by a bind of natural force, escape 
 to the notice of observers, through the veil of secrecy which 
 th3 criminal commonly casts about him ; and frequently, in 
 spite of the utmost precautions he may have adopted. And 
 his own estimate of their importance may be inferred from 
 the attempts constantly made to disguise, destroy or falsify 
 them, whenever left in his power. 
 
 As the great mass of these physical or mechanical facts 
 emanate necessarily from human agency, they cannot be con- 
 sidered wholly apart from the idea of such agency. To a 
 certain extent, however, and for certain purposes, they may, 
 as a class of facts, be made the subjects of distinct enumer- 
 
 (o) This is the denomination given to them by Mr. Sentham. 8 Jud. 
 Evid. 11, 22, 51. See ante, p. 130. 
 
 (6) These are the terms employed by Mr. Wills. Giro. Evid. 90. 
 
."HAP. I.] PHYSICAL FACTS 253 
 
 ation and enquiry : and hence a distinei he&'i is assigned to 
 them in all the best works on circumstantial evidence, (a) 
 In regard to their order, it may be observed that, although, 
 as elements of any actual criminal transaction, they are pos- 
 terior, in point of time, to many of the facts denominated 
 " moral," they are generally the first which present them- 
 selves to observation as the materials of evidence, especially 
 in connection with the corpus delicti. On this account, they 
 have been selected as the subject of the section which im- 
 mediately follows. (6). 
 
 SECTION II. 
 Physical facts or circumstances. 
 
 Physical or mechanical facts may be conveniently classified 
 under the following heads. 
 
 1. The subject of the offence. As, in murder, the person 
 killed, or mortally injured, or the remains of such per- 
 son : (c) — in arson, the building burned, or its remains : — 
 in rape and robbery, the person assaulted or violated : — in 
 robbery and larceny, the thing stolen : — in burglary, the 
 building broken into : — ^in forgery, the money or instrument 
 fabricated ; and the like. 
 
 2. The appearances of such subjef't. £j., in murder, the 
 position, of the body, as left by the criminal, or as concealed 
 
 (a) Best on Pres. §§ 217, 218. 3 Benth. Jad. Evid. 26—34. Wills, 
 Circ. Ev. 90. 
 
 (b) Mr. Wills has adopted a different arrangement. 
 
 (c) Eugene Jlram's case. Wills Giro. Evid. 68. Drayne's case, 5 London 
 Legal Observer, 123. Riembauer's case. 3 Id. 242, 277. Rex v. Greenacre, 
 Central Criminal Court, April, 1837 ; Wills, Circ. Evid. 171. See Id. 166. 
 Commonwealtk v. Webster, Bemis' Keport, 63, 64. 
 
254 PHYSICAL FACTS. [PABT H. 
 
 by burial, immersion in water, or otherwise ; (a) wounds 
 and marks of violence visible upon it ; (&) the position, 
 direction and number of the wounds, and their particular 
 appearances ; (c) foreign substances, attached or adhering 
 to the body ; (rf) marks of violence visible upon the 
 dress ; (e) mutilation, dismemberment and destruction of 
 the body, or portions of it; (/) outward appearances 
 indicative of poison ; (g-) detection of poison in tho 
 body ; (A) — in rape and robbery, marks of violence, stains 
 of blood upon the person or clothing : — in arson, the appear- 
 ances of a fire kindled by design : — ^in burglary and robbery, 
 marks of violence upon windows, doors, walls, and the like. 
 3. The instruments of the offence. As, in murder, the 
 weapon or instrument of death, — the gun, pistol, knife, 
 dagger, razor, hatchet, axe, club or stone ; (i) the poison 
 
 (a) The People v. Johnson, New-York Oyer and Terminer, 1824, 2 
 Wheeler's Grim. Ca3. 361, 872. The People v. Robinson, N. Y. Oyer and 
 Terminer, June, 1836. The People v. Btehan, Suffolk (N. Y.) Oyer and 
 Terminer, October, 1854. The Slate v. Cicely, 13 Smedes & Marsh.iH, 208. 
 Drayne's case, 5 Lond. Leg. Obs. 123. The State v. Carawan, Superior 
 Court of Beaufort County, N. Carolina, Fall term, 1858; Pamphlet Report, 32, 
 34. Rex y. Standsfield, 11 State Trials, 1371, 1407. The People v. Colt, 
 N. Y. Oyer and Terminer, January, 1842. 
 
 (6) See the cases in the last note. 
 
 (c) Commonviealth v. Spring, Phil. Crim. Court, March, 1853. 7%e State 
 T. Carawan, Pamphlet Report, 82, 38, 36, 37. 
 
 (d) Mrs Jlrden's case, Burke's Trials, connected with the Upper Classes, 
 1. The People v. Johnson, 2 Wheeler's Cr. Gas. 361. 
 
 (c) The State v. McCann, 13 Smedes & Marshall, 478. The State v. 
 Carawan, Pamphlet Report, 41. 
 
 (/) Rex V. Cook, Leicester Summer Assizes, 1834; Best on Pres. § 204. 
 Rex T. Grecnocrc, Central Criminal Court, April, 1837; Wills, Giro. Evid. 171. 
 Case in Central Criminal Court, May, 1842 ; Id. 165, 166. Commonwealth 
 V. Webster, Bemis's Report, 39, 50, 60, C2, 78, 91. 
 
 (g) Rex V. Donellan, Warwick Spring Assizes, 1781; Qurney's Report 
 Gottfried's case, 4 Loud. Leg. Obs. 90. 
 
 (A) Rex V. Burdock, 1835; Best on Pres. § 196. 77ie People \. Green, 
 Rensselaer (N. Y.) Oyer and Terminer, July, 1845, Pamphlet Report, 4 — 6. 
 
 (0 The People v. How, Allegany Oyer and Terminer, Feb. 1S24. 2 
 
CHAP. I.] PHYSICAL FACTS. 255 
 
 and its vehicle ; (a) the cord or handkerchief for strangu- 
 lation ; (6) the explosive machine ; (c) — ^in rape and rob- 
 bery, the stupefying liquor or drug : — ^in arson, the com- 
 bustibles, matches, lights, and inflammable substances : (c?) 
 ia burglary, the keys, picks, crows, saws, chisels and other 
 burglars' tools: in forgery and counterfeiting, the dies, 
 presses, coining tools, chemical agents, and the like. 
 
 4. The appearances of such instruments : — such as signs 
 of a fire-arm having been recently discharged; (e) stains 
 of blood upon a knife, sword, or hatchet ; ( / ) curvature of 
 a sword-blade ; (§•) indentations or fractures of a club ; 
 fragments of an exploded machine ; (/t) combustible sub- 
 
 Wheeler's Crim. Cas. 412, 417, 419. Commonweallh v. Fuller, Lawrence- 
 burg (Indiana.) Circnit Court, March, 1820. Id. 223, 224. Rex t. Richard- 
 son, ante, p. 243, 247. The State v. Cicely, 13 Smedes & Marshall 203. 
 The People t. Beehav, Suffolk Oyer & Terminer, Oct. 1854. 
 
 (a) Rex T. Blandy, 18 State Trials, 1117, 1140. Rex v. JVairn and 
 Ogilvie, 19 Id. 1235, 1273, 1289, 1292. Anna Schonleben's case, 3 Lond. 
 Leg. Observer, 41, 56. Gesche Margarelhe Gottfried's case, 4 Id. 89; 101. 
 Tlie People v. Eesler, Schoharie (N. T.) Oyer and Terminer, Sept. 1827; 3 
 Wheeler's Crim. Cas. 18, 23. The People v. Green, Rensselaer (N. T.) Oyer 
 & Terminer, July 1845; Pamphlet Report, 6, 7. The People v. TVilliams, 
 New York Oyer & Terminer, May, 1854. Commonwealth v. Mina, Bucks 
 (Penn.) Oyer & Terminer, April 1832 ; Celebrated Trials, (Phil. 1835) 402. 
 See Co.n. v. Chapman, Id. 327. 
 
 (6) Ber V. Harrison, 12 State Trials, 833, 849, 850. 
 
 (e) The State t. Arrison, Cincinnati Criminal Court, Deo. 1854. Rex v 
 Mounlford, 1 Moody's Cr. Cas. 441. 
 
 (ri) Rex V. Hill, 20 State Trials, 1317, 1329, 1331. The People v. 
 Peverelly, New York General Sessions, Nov. 1854. 
 
 (c) Rex V. Stewart, 19 State Trials, 1, 137, 138. Rex v. Barbot, 18 IJ. 
 1280, 1281. Rex v Thurtell and Hunt, Celebrated Trials, (Phil. 1835,) 8. 
 
 (/) Rex -v. Richardson, ante, f. 247. Case in Central Criminal Court, 
 May, 1842; Wills Circ. Evid. 166. The Peoples. Colt, New-York Oyer & 
 Terminer, Jan. 1842. 
 
 {g) AbercromUe's case, Deo. 1717; cited on the trial of James Stewart, 19 
 State Trials, 74, 77, note. The People v. Graham, New-York Oyer and 
 Terminer, Oct. 1854. 
 
 (h) The State y. Arrison, Cincinnati Crim. Court, Dee. 1854. 
 
256 PHYSICAL FACTS. [PART II. 
 
 stances strewed about and saturated with an inflammable 
 liquid, (a). 
 
 5. The place of the offence, or scene of the crime : — as 
 the building, yard, street, road, field, thicket or wood, (&) 
 vehicle or ship, (c) where the victim of the murderous or 
 violent assault is found, or to which he or she is decoyed or 
 forcibly carried ; the chamber where the poison is ad- 
 ministered, or into which the explosive machine is con- 
 veyed ; (d)') the apartment where the coin is counterfeited ; 
 and the like. 
 
 6. The place of the offence, considered as the instrument 
 or means of its commission : — as the pond, pit, well or 
 stream where the body is drowned ; the rock or precipice 
 over which it has been pushed or thrown ; and the like. 
 
 7. The appearances of the place or scene of the crime, or 
 of neighboring bodies or places. As, in murder, the bloody 
 floor, bed, chair, path or road ; (e) spots or stains of blood 
 on the walls, doors, &c. of a house ; or on well-curbs, gates, 
 
 (a) Rex T. Hill, 20 State Trials, 1317, 1329. The People y. Peverelly, 
 N. Y. Gen. Sessions, Nov. 1854. 
 
 (4) The People v. How, 2 Wheeler's Crim. Cas. 412, 418. The People v. 
 Beehan, Suffolk Oyer & Terminer, Oot. 1854. Baihsheba Spooner's case, 2 
 Chandler's Am. Crim. Trials, 3, 13, 14. Rex v. Harrison, 12 State Trials, 
 883, 848. Rex t. Stewart, 19 State Trials, 1, 92, 95. The State v. McCann, 
 13 Smedes & Marshall, 473, 478. The State v. Carawan, Pamphlet Report, 
 37, 41. Rex v Thornton, Warwick Autumn Assizes, 1817; Celebrated Trials, 
 (Phil. 1835,) 97. 
 
 (c) Rex T. Harrison, 12 State Trials, 833, 849. Rex v. Goodere, 17 
 Id. 1003. 
 
 (rf) The People v. Green, Rensselaer (N. Y.) Oyer & Term. July, 1845, 
 Pamphlet Report, 18. . The State *. Arrison, Cincinnati Crim. (^ourt, 
 Dec. 1854. 
 
 (e) Case of JWary JVbrfcoH and others, 14 State Trials, 1324. Riemhauer's 
 case, 3 Lond. Leg. Observer, 242, 277. Regina v. Coarvoisier, Burke's 
 Trials connected with the Aristocracy, 461, 464. The State v. Cicely, 18 
 Sniedes & Marshall, 203. The People v. Colt, N. Y. Oyer & Terminer, Jan. 
 1842. The People v. Beehan, Suffolk, (N. Y ) 0. & T. Oot. 1854. 
 
CHAP. I.] PHYSICAL PACTS. 257 
 
 stiles, or fences ; (a) or on trees, grass, snow or the ground 
 itself; (i) especially when concealed or attempted to be 
 concealed from view ; (c) marks of instruments of violence, 
 as indentations, discolorations or perforations made by a 
 ball from a fire-arm, (d') or the stroke of a heavy imple- 
 ment ; (e) marks made by the explosion of a machine ; (/) 
 marks of struggles, or resistance to violence ; (g-) marks of 
 footsteps at the place, or leading to or from it ; (A) marks 
 or impressions of certain parts of the offender's body, as of 
 the knee, or hand, bloody finger-marks, &c ; (i) marks 
 made by dragging a body into a place of concealment ; (7 ) 
 ■ lights burning on premises at unusual hours ; (Jc) lights 
 suddenly extinguished. (J) In arson, — ^traces of smoke or 
 flame. In burglary, — marks of burglars' instruments, and 
 the like. 
 
 (a) Jd. ibid. Commonwealth v. Spring, Phil. Crim. Court, March, 1853. 
 Sex T. Richardson, ante, p. 244. Bulhsheba Spooner's case, 2 Chandler's 
 Crim. Triala, 3, 14. 
 
 (A) Rex V. Thornton, Warwick Autumn Assizes, 1817. Wills Circ. Evid. 
 141. Rex T. Richardson, ante, p. 244. Rex t. Johnson and Fare, 1833; 
 5 Lond. Leg. Observer, 254, 257. 
 
 (c) Rex V. Thurtell and Hunt, Celebrated Trials, (Phil. 1835,) 7. 
 
 (d) The People v. How, 2 Wheeler's Cr. Cas. 412, 418. The Slate v. 
 McCann, 13 Smedes & Marshall, 473, 477. 
 
 (c) Commonviealth v. Spring, Phil. Crim. Court, March, 1853. 
 
 (/) The State v. Arrison, Cincinnati Crim. Court, Dec. 1854. 
 
 (g-) Rex V. Brindley, Warwick Spring Assizes, 1816, Wills, Circ. Evid. 100. 
 Rex T. Johnson and Fare, 5 Lond. Leg. Observer, 257. 
 
 (A) Mrs. Arden's case; Burke's Trials, (Upper Classes,) 1. Rex t. 
 Slandsfield, 11 State Trials, 1371, 1407. Rex v. Thornton, Celebrated 
 Trials, (Phil. 1835,) 100, 101. Rex v. Richardson, ante, p. 243. The State 
 V. Cicely, 13 Smedes & Marshall, 203, 204. Rex v. Beards ; Stafford Sum- 
 mer Assizes, 1844, Wills, Circ. Evid. 101. Rex v. Smith, Varnhan, and 
 Timms; Norfolk Spring Assizes, 1837; Id. 237. 
 
 (s) Rex V. Brindley, Wills, Circ. Evid. 101. JIfary Jforkott's case, 14 
 State Trials, 1324. 
 
 a ) The State v. J^cCann, 13 Smedes & MarshaU, 478. 
 
 (fc) The People v. Johnson, 2 Wheeler's Cr. Cas. 375. 
 
 (/) Drayne's case, 5 Lond. Leg. Obs. 125 
 
258 PHYSICAL FACTS. [PART 11. 
 
 8. Sounds heard at the scene of crime, or in its vicinity : — 
 such as cries of distress ; (a) reports of fire-arms ; (6) 
 sounds of an explosion, of bodies falling, of footsteps, of a 
 scuffle, and of voices ; (c) alarms given by animals ; (d') the 
 sound of wheels, or sleigh-bells, or of the trampling of a 
 horse ; (e) noises made by bursting in a door; (/) sounds 
 heard from locked-up premises, such as the clashing of steel, 
 the shivering of glass, the moving of articles about, the 
 tearing of cloths, the rubbing of a floor, the running of 
 water, the sawing of boards, hammering, and the like ; (g) 
 — total silence immediately following unusual or alarming 
 sounds. Qi) 
 
 9. Smells of smoke or burning substances ; (i) the odor 
 of poisonous substances ; (_;' ) the odor of inflammable 
 liquids prepared for arson, (&) and the like. 
 
 10. Impressions on the sense of touch; as the heat of a 
 
 (a) Rex V. Beards, Wills, Giro. Evid. 101. Drayne's case, 5 Lond. Leg. 
 Observer, 123, 125. Rex v. Thurlell and Hunt, Celebrated Trials, 6, 10. 
 The People v. BeehM, Suffolk 0. & T. Oct. 1854. 
 
 (b) The State y. McCamt,ubi supra. JTic ySiaie t. Carauian, PampUet 
 Report, 44. 
 
 (c) Tlie State v. Arrison, Cincinnati Crim. Court, Dec. 1854. Drayne's 
 case, 5 Lond. Leg. Observer, 124. Rex v. Standsfield, 11 State Trials, 1401. 
 Rex V. TTiurtell snd Hunt, Celebrated Trials, 6. Rex v. Bishop, Williams 
 ^ May, 2 Lond. Leg. Obs. (monthly,) 39, 46. The People v. Colt, N. Y. 
 Oyer & Terminer, Jan. 1842. The People v. Beehan, ub. sup. 
 
 {d) Id. ibid. The State v. McCann, 18 Sm. & Marsh. 480. 
 
 (e) The People v. How, 2 Wheeler's Crim. Caa. 412, 417. The State v. 
 McCann, 13 Smedes & Marshall, 478, 480. 
 
 (/) Rixy. Smith, Fornftam and Timms, Norfolk Spring Assizes, 1837; 
 Wills, Giro. Evid. 237, 238. 
 
 (ff) Rex \. Heath and Crowder, 1831; Wills, Giro. Evid. 97, 98. The 
 People V. Colt, N. Y. Oyer & Terminer, Jan. 1842. Commonwealth v. Web- 
 ster, Bemis' Report, 106, 112. 
 
 (,h) The People v. Colt, ubi supra. 
 
 (i) Rex V. Hitl, 20 State Trials, 1317, 1331. Case in Central Criminal 
 Court, May, 1842; Wills, Circ. Evid. 166, 167. 
 
 0' ) Rex V. Donellan, Celebrated Trials, (Phil. 1835,) 123. 
 
 (k) The People v. Peverelly, N. Y. Gen. Sessions, Nov. 1854. 
 
CHAP. I.J PHYSICAL- FACTS. 259 
 
 wall, indicating an unusual fire ; (a) the heat or coldness of 
 ashes in a stove, (6) and the like. 
 
 11. Impressions on the sense of taste ; as of a poison to 
 which the tongue is applied ; (c) of a garment saturated 
 with salt water ; (rf) and the like. 
 
 12. Detached bodies found at the scene of crime, or in its 
 vicinity ; as articles of dress, or portions of them ; (e) 
 patches for the charge of a rifle ; (/) a ball extracted from 
 the wood-work of a house, or found at the foot of a tree ; (g-) 
 the ramrod of a pistol ; (A) grains of wheat scattered 
 about ; {i) and the like. 
 
 13. Symptoms of poison ; as contortions of the body, 
 spasms, vomiting, swelling, discoloration, complaint of burn- 
 ing and pricking sensations. (/ } 
 
 14. Peculiarities dbout the person of the accused ; — such 
 as wounds, scratches, bruises ; {k) stains of blood upon the 
 
 (a) Commonwealth v. Webster, Bemis' Report, 112. 
 
 (b) The People v. Bodine, 4 N. Y. Legal Observer, (March, 1846,) 92. 
 
 (c) The People v. Green, Rensselaer Oyer & Terminer, July, 1845; 
 Pamphlet Report, 29. 
 
 (rf) Rex v. Barbot, 18 State Trials, 1229, 1279. 
 
 (c) Riembauer's case, 3 Lond. Leg. Observer, 242, 243. Case at Warwick 
 Spring Assizes, 1818; Wills. Giro. Evid. 95. Case in Central Criminal Court, 
 May, 1842; Id. 166. The People v. Johnson, 2 Wheeler's Crim. Cas. 361, 
 376. The People v. Robinson, N. Y. Oyer and Terminer, June, 1836, The 
 People T. Beehan, ubi supra. 
 
 (/ ) The People v. How, 2 Wheeler's Crim. Cas. 412, 419. 
 
 (g) Id. ibid. The State v. McCann, 13 Smedes & Marshall, 471, 482. 
 
 (A) Rex V. Patch, Wills, Giro. Evid. 230, 232. 
 
 (i) Rex V. Brindley, Id. 100. 
 
 (j ) Rex V. Blandy, 18 State Trials, 1117, 1137. Rex v. JVaiVn and 
 Ogilvie, 19 Id. 1235, 1277. Rex t. Burdock, Best on Pres. § 196. The 
 People V. Kesler, 3 Wheeler's Crim. Cas. 18, 19. The People v. Green, 
 Pamphlet Report, 7, 8. 
 
 f/c) Rex V. Richardson, ante, p. 244. Rex v. Thurtell and Hunt, Cele- 
 brated Trials, (Phil. 1835,) 5, 7. Rex v. Dawtry, York Spring Assizes, 
 1841; Wills, Circ. Evid. 58. Rex v. Bolam, 1839; 18 Lond. Leg. Ob- 
 server, 337. 
 
260 PHYSICAL FACTS. [PART II. 
 
 person or clothing ; (a) rents, incisions and other injuries to 
 clothing ; (6) disorder or wetness of the dress ; (c) stains 
 of earth, or other substances ; (rf) natural marks, such as 
 the want of an eye, finger or front-tooth ; the being left- 
 handed, or carrying the head on one side ; (e) peculiarities 
 of size, shape, gait and voice ; (/) appearances as of some- 
 thing concealed under the dress ; (g) and the like. 
 
 15. Peculiarities about objects in the possession of the 
 accused ; as the sweating and smoking of a horse in his 
 stable, horse-hair and lint adhering to a newly^discharged . 
 rifle. (A) 
 
 16. Materials of the subject-matter of the offence, or 
 capable of being converted into instruments of the offence, 
 including the means of their production. As, in murder, lead 
 for casting bullets, bullet-moulds, leaves from which a poison 
 could be distilled, utensils for distilling ; (i) — ^in arson, 
 materials for making inflammable substances : ( _; ) — in' for 
 gery and counterfeiting, metal for coining, bank-note paper, 
 bank-note plates engraved, or in process of being engraved, 
 
 (a) Rex V. Richardson, ante, p. 246. Rexy. Smith, Varnham & Timrr.s, 
 Wills, Giro. Evid. 237, 240. Rathsheba Spooner's case, 2 Chandler's Am. 
 Crim. Trials, 3, 15. The State v. Cicely, 13 Sme. & Mavsh. 205. Common- 
 wealth V. Spring, Phil. Grim. Court, March, 1853. The People v. Beehan, 
 ub. sup. 
 
 (b) Rex V. Dawtry, ub. sup. Rex v. Bolam, ub. sup. 
 
 (c) Rex V. Barbol, 18 State Trials, 1229, 1266. Rex v. Richardson, ante, 
 p. 245. 
 
 (d) Rex -v. Richardson, ante, -g. '05, 2i&. Bcj; v. Patcft, Wills, Giro. Evid. 
 230. 
 
 (e) Rex V. Richardson, ante, p. 244, Regina v. Rush, Burke's Trials, 
 (Upper Classes,) 488. 
 
 (/) Rex V. Harrison, 12 State Trials, 833, 850, 861. Rex v. Barbot, 18 
 H. 1229, 1275, 1276. 
 
 (g-) The People t. How, 2 Wheeler's Crim. Cases, 417. Rex t. Beards, 
 Stafford Summer Assizes, 1844, Wills, Giro. Evid. 101. 
 
 (ft) The People v. How, 2 Wheeler's Cr. Gas. 418, 419. 
 
 (i) Rexv. Donellan, Gurney's Report, 1781; Celebrated Trials, (Phil. 
 1835,) 147, 148. See 3 Bentham's Jud. Evid. 232, 233. 
 
 (> ) Bex V. Hill, 20 State Trials, 1317, 1336. 
 
CHAP. I.] PHYSICAL PACTS. 261 
 
 metallic or paper money in process of being fabricated ; and 
 the like. 
 
 17. Receptacles enclosing or having enclosed the subject, 
 the instrument, or the fruits of the offence. As, in murder, 
 the clothes of the person killed ; (a) the box or chest in 
 which the body or its remains are concealed ; (6) the box 
 for holding an explosive machine ; (c) the di-awer, case or 
 trunk, in which pistols are found, or have been kept ; phials 
 or papers containing or having contained poison ; {d) — in 
 arson, the box or case for holding combustibles or secreting 
 a candle ; (e) barrels containing inflammable liquids ; (/ ) 
 — in larceny or robbery, the closet, drawer, trunk, package 
 or case, containing or having contained the articles stolen ; 
 the floor or wall beneath or behind which they have been 
 concealed, (g-) and the like. 
 
 18. The fruils of the offence. As, in murder, the goods, 
 money, papers, clothing or other valuables, taken at the 
 time, (A) or the property realized afterwards ; (i) — in 
 forgery, the profit obtained, and the like. 
 
 19. T\i(i fruits of the offence, considered as indicia of the 
 presence of the offender : as, in murder, accompanied by 
 
 (a) Rex V. Bishop, Williams If May^, 2 Lond. Legal Observer (monthly,) 
 39, 81. The People v. Johnson, 2 Wheeler's Crim. Cases. 361, 376. 
 
 (ft) The People v. Colt, New- York Oyer & Terminer, Jan. 1842. Com- 
 monwealth T. Webster, Bemis' Report, 39. 
 
 (c) The State v. Arrisnn, Cincinnati Criminal Court, Deo. 1854. 
 
 (</) Rex V. Donellan, Celebrated Trials, (Phil. 1835,) 123. Rex v. Blundy 
 1.8 State Trials. 1149, 1154. The People v. Green ; Pamphlet Report, 
 13, 32. 
 
 (e) Rex T. Hill, 20 State Trials, 1229. 
 
 (/) The People v. Peverelly, N. Y. Gen. Sessions, Not. 18-54. 
 
 (g) Regina v. Courvoisier, Burke's Trials, connected with the Aristocracy, 
 466, 467. 
 
 (A) Id. ibid. The People v. Johnson, 2 Wheeler's Crim. Cases. 380. The 
 State T. Robinson, Middlesex (N. J.) Oyer & Terminer, March, 1841. 
 
 (t) Rex V. Patch, Surrey Spring Assizes, 1806; Wills, Circ. Evid. 232. 
 Rex T. Burdock, Best on Pres. § 196. 
 
262 CORPUS DELICTI. [PART II. 
 
 robbery, the articles stolen, and carried about from place to 
 place, sold or offered for sale ; (a) and the like. 
 
 All the foregoing are so many signs, appearances or 
 tokens of human 'agifency, which, when presented by compe- 
 tent evidence, hecomQ facts, from which a conclusion of guilt, 
 or the contrary, is to be inferred. Some of them go merely 
 to show a corpus delicti, or to answer what is always the 
 iirst inquiry, — whether a crime has been committed. (6) 
 Others go to indicate the particular perpetrator, or to prove 
 that the party who is arraigned for trial, was concerned in 
 the crime, as principal or accessory. 
 
 A corpus delicti is shown by such facts as indicate a dis- 
 tinct criminal human agency ; or, in other words, by those 
 facts which go to negative the supposition or hypothesis 
 that the appearances observed could have been the result of 
 natural causes, or of accident, or of the act of the party 
 injured or slain, or of any irresponsible agency. In cases of 
 alleged murder, the most important facts, for this purpose, 
 are the appearances presented by the body, when found ; — 
 its condition, whether buried, or otherwise concealed, 
 stripped of clothing, or otherwise, — its position and attitude, 
 — the marks of violence visible upon it ; — if wounds, their 
 nature, number and direction, — the particular appearances 
 of bodies found in the water, or suspended by the neck, and 
 the like. Sometimes, the injuries observed are of such a 
 description as to leave little or no room for doubt as to the 
 cause. In other cases, it becomes a difiBcult matter to de- 
 termine, for instance, whether certain wounds upon the head 
 have been produced by a fall, or the kick of a horse, (c) or 
 
 (a) Rex V. Smith, Varnham and Timms, Norfolk Spring Assizea, 1837. 
 ■nuis. Giro. Evid. 240, 241. Rex v. Diggles, Lancaster Spring Assizes, 1826, 
 Ji 53. Mrs. Spooner's case, 2 Chandler's Am. Crim. Trials, 15. 
 
 (i) See ante, p. 119. 
 
 (c) Rex V. Booth, Warwick Spring Assizes, 1808; Wills, Giro. Evid. 172. 
 Rtx T. downing, Salop Summer Assizes, 1822: Id. 137. 
 
CHAP. I.] PHYSICAL FACTS. 263 
 
 the blow of a club or other weapon. In such cases, the 
 opinions of medical men, based upon actual inspection and 
 examination, are necessarily sought for and relied on. In 
 ' cases of alleged poisoning, these professional examinations 
 become of peculiar importance, involving the dissection of 
 the body, to a greater or less extent, and the application of 
 chemical and other tests, for the purpose of detecting the 
 presence of poison in it. This branch of the subject will be 
 more fully considered in another place. 
 
 Other facts which go to show that a crime has been com- 
 mitted, are, in cases of murder, rape and robbery, the pres- 
 ence of foot-marks, other than those of the deceased, at the 
 scene of the crime ; marks of struggles or resistance to vio- 
 lence ; stains of blood in the vicinity ; cries of distress ; 
 sounds as of falling bodies ; the clothing of the deceased or 
 assaulted person, disordered, torn, stripped off or scattered 
 about ; pockets rifled of their contents ; and the like. 
 The indicia of the crimes of arson and burglary will not 
 require repetition. 
 
 The participation of the accused in the crime proved to 
 have been committed, is shown by those physical facts or 
 appearances which connect him with it ; affording so many 
 natural coincidences, harmonizing with the supposition of his 
 guilt. They are, in other words, the traces, marks, or 
 indications, more or less distinct and impressive, of the pres- 
 ence of a particular criminal agent ; and they may be con- 
 sidered under two principal divisions : first, traces or indica- 
 tions at the scene of the crime, derived or supposed to be 
 derived from his person ; and, secondly, traces or indica- 
 tions upon or near his person, derived or supposed to be de- 
 rived from participation in the crime. 
 
 I, Traces or indications at the scene of crime, derived, 
 or supposed to be derived from the person of 'the accused, 
 comprise impressions from physical objects and substances. 
 
264 PHYSICAL FACTS. [PABT 11. 
 
 as well as the objects and substances themselves ; and may 
 be enumerated in the following order. 
 
 1. Impressions directly from the person ; such as prints 
 in earth or snow, of the feet or shoes, and impressions of 
 other parts of the body. Of these, (especially in cases of 
 crime committed in rural districts,) .foot-prints are the most 
 common. They are among the first indications observed 
 after the discovery of a crime, and, indeed, are naturally 
 sought for, (a) as furnishing an important clue to the dis- 
 covery of the criminal, and a means of satisfactory identifi- 
 cation of his person ; much of their value consisting in the 
 circumstance that they are usually made and left, (especi- 
 ally where a crime has been committed at night,) un- 
 consciously and inadvertently ; the attention of the criminal 
 being engrossed by the perpetration of the crime itself. 
 They may be considered as of two kinds : ordinary foot- 
 prints, exhibiting no peculiar characteristics ; and impres- 
 sions of a peculiar character. The former are important, 
 first as showing the general fact that one or more persons 
 have been present ; (6) secondly, as indicating the direc- 
 tion from which they approached, or in which they left the 
 scene of crime, and their movements about it ; and, thirdly, 
 as more immediately indicating the particular perpetrator 
 by inferences which they tend to establish. 
 
 In the case of Mrs. Arden, and others, who were con- 
 victed of the murder of her husband, at Feversham, in 
 England, A. D. 1561, (c) the crime was committed in the 
 
 (a) la a case of murder which oooarred in Mississippi, in 1848, the' first re- 
 mark made by a neighbor to whom information of the transaction had been 
 given, on reaching the scene of the crime, was, " Let us look for tracks."' 
 The Slate v. Cicely, a slave, 13 Smedes & Marshall, 203. 
 
 (6) In the case of Rex v. Standsfidd, the bank of the river in which the 
 body of the deceased was found, was described by one of the witnesses, as " all 
 beaten to mash with feet." 11 Howell's State Trials, 1871, 1407. 
 
 (c) 5 London Legal Observer, 59. More fully reported in Burke's Trials 
 connected with the Upper Classes, 1 . 
 
CHAP. I.J POOT-PEmiS. 265 
 
 house of the deceased, and the dead body was carried out, 
 the same evening, through the garden, into an adjoining 
 field, where it was laid upon the ground. Snow having, in 
 the meantime, fallen, impressions of the murderers' footsteps 
 were left upon it, by which they were tracked from the body 
 to the house, where, new indications of guilt being dis- 
 covered, the crime was effectually brought home to them 
 
 In the very similar American case of Mrs. Spooner, and 
 others, who were convicted of the murder of her husband, 
 at Brookfield, Massachusetts, in 1778, (a) the crime was 
 committed just outside of the house of the deceased, and the 
 body was thrown into a well near his own door. The tracks 
 of several persons on the snow, near the spot, first led to its 
 discovery. 
 
 In the late English case of Rex v. Smith, Varnham and 
 Timms, (b) three distinct sets of impressions were dis- 
 covered on the snow around the cottage in which the murder 
 was committed, indicating the presence of three men, and 
 showing their movements about the vicinity in a very satis- 
 factory manner. 
 
 Impressions of this kind, outside of a house, may proceed 
 as well from an inmate, as from a person entering from 
 without. An instance of the former is furnished by the 
 case of Mrs. Arden, already cited ; the tracks showing that 
 the murderers returned to the house, after leaving it. In a 
 case in Mississippi, (c) where almost an entire family had 
 been murdered by a female slave, the foot-prints observed 
 established the same general fact of murder by an inmate, 
 with the additional circumstance that the murderess left the 
 house after the perpetration. In this case, the body of one 
 of the persons killed was found lying on the ground between 
 the gate of the enclosure and the house ; and leading from 
 
 (a) 2 Chandler's American Criminal Trials, 3, 18, 14. 
 
 (6) Wills, Giro. Evid. 237, 238. 
 
 (c) The State t. Cicely, a Blaye, 13 Smedes & Marshall, 292, 203, et seg. 
 
266 PHYSICAL FACTS. [PART II. 
 
 the house-door to the spot where it lay, were found two sets 
 of foot-prints, showing that the deceased had run out of the 
 house and been pursued by another person ; and from the 
 body to the gate was found but one set of tracks ; and 
 similar tracks were found in the road leading in the direc- 
 tion of a house to which the prisoner had gone immediately 
 after the murder. The character of the impressions went to 
 show the falsity of the prisoner's account that the house had 
 beeu entered by five robbers, who murdered the husband, 
 and then pursued the deceased who had run out of the 
 house with the prisoner, and killed her at the spot where 
 she was found. 
 
 On the other hand, the absence of all foot-prints, in places 
 where they would naturally be left by offenders coming from 
 without, tends to establish the same conclusion that the crime 
 was committed by an inmate. This was the fact in the case 
 of Rex V. Swan and Jefferys, (a) where a robbery was 
 simulated, to conceal a murder ; and the inference was 
 proved to be correct by the full confession made by the 
 prisoners, after conviction. (6) 
 
 Poot-prints of the ordinary kind sometimes scTve the 
 further purpose of tending to indicate the presence of some 
 pa/rticular person or persons, by establishing certain inter- 
 mediate facts, from which, or by the aid of which., such pres- 
 ence may be inferred : as where the character of the impres- 
 sions shows that they must have been made by a person in 
 the act of running ; Qc} or where two sets of impressions 
 are so clearly distinguished by difference of size, and length 
 of step, as to show that one of the persons must have been a 
 man and the other a woman, and that the latter had been 
 pursued by the former. In the important English case of 
 
 (a) 5 London Legal Observer, 425. 
 
 (b) 18 State Trials, 1193, 1196. 
 
 (c) Rex V. Richardson, ante, p. 243. 
 
CHAP. I.] FooT-PRiirrs. 267 
 
 Rex V. Thornton, very minute evidence of facts of this 
 kind was given, (a) 
 
 Sometimes, such impressions are used to establish the 
 fact of presence more directly, by means of the exact cor- 
 respondence observed to exist between them and the feet or 
 shoes of the accused, proved (which is always essential,) 
 by actual comparison, as by bringing the two objects into 
 juxta-position, and placing the shoe upon the impression. (6) 
 Where no peculiar maTks are observed, but the correspond- 
 ence thus proved is merely in point of superficial shape, 
 outline and dimensions, and those of the ordinary character, 
 it may serve to confirm a conclusion established by inde- 
 pendent evidence, but cannot be in itself safely relied on, 
 on account of the general resemblance known to exist 
 among the feet and shoes of persons of the same age and 
 sex. (c) But where certain peculiarities are observed 
 which at once distinguish the impressions from all others, 
 an exact correspondence, verified by the test of comparison, 
 becomes of the highest importance, and the value of such 
 coincidences is obviously increased with the number of the 
 peculiar marks observed. This brings us to the consider- 
 ation of the second class of foot-prints already mentioned. 
 
 The peculiarities observable in these impressions may 
 
 (a) Celebrated Trials, (Phil. 1835,) 100—102. As to Moody foot-prints, 
 see the case of Rex v. JVichohon, Id. 467, 471. The State v. Cicely, 13 
 Smedes & Marshall,' 207. 
 
 (6) The proper mode of comparison in these cases is, first, to make a new 
 impression with the shoe, close to the original one, and then to place the shoe 
 lightly on the impression itself See Rex v. Hmton, 1 Lewin's Cr. Cas. 116. 
 Rex V. Shaw, Id. ibid. Wills, Cire. Evid. 104. In the case of The State v. 
 Cicely, the prisoner was forcibly made to put her foot into the track. 
 
 (c ) The circumstance that the impressions have been made by right-and-left 
 shoes or boots, corresponding ^ith the fact that the shoes or boots of the accused 
 are of that description, has been relied on, as an important coincidence, where 
 it has been supported by others. See Rex v. Thornton, ubi supra. Rix v. 
 Beards, Wills, Circ. Evid. 102. 
 
268 PHYSICAL PACTS. [PAET II. 
 
 consist ia the simple qualities of size, shape and proportion ; 
 and where either of these is found to vary greatly from the 
 ordinary standard, it may serve to identify the person by 
 ■ whose feet the impressions were made, in a very satisfactory 
 manner. But more commonly they are found to consist in 
 certain artiiicial and mechanical additions to the sole of the 
 boot or shoe, such as patches, tips, and the insertion of nails, 
 the heads of which are left to project more or less from the 
 surface : and, in several cases on record, the correspondences 
 established, in these respects, have been so exact and perfect 
 as to leave no room for doubt as to the person indicated. 
 In Thornton'' s case, two nail^marks, observed in one set of 
 the impressions, were found, on comparison, to correspond 
 accurately with two nails in the sole of one of the prisoner's 
 shoes, (a) In Richardson's case, (6) there were more 
 peculiarities of this kind, increasing the number of coinci- 
 dences, and strengthening the proof in proportion. In the 
 case of Smith, Varnham and Timms, (c) one of the foot- 
 steps was very large and peculiarly shaped and nailed, there 
 being four nails [nail-marks,J in the centre of the heel, in a 
 line from back to front, and two on each side ; and there 
 were nails also in the waist of the heel, between the sole 
 and the heel ; and the sole was very fuU of nails. The pris- 
 oner Timms' shoes exactly corresponded with the marks : the 
 other footstep was a smaller one, and full of nails. In the 
 late English case of Rex v. Beards, (a!) in which the pris- 
 oner made a full confession of his guilt, very distinct im- 
 pressions, made by right-and-left boots, were discovered in 
 the soil near the house whore the crime was committed. 
 The right foot-prints had the mark of a tip round the heel"; 
 the impressions of the left foot had a patch fastened to the 
 
 (a) See Celebrated Trials, (PhU. 1^35,) 100—101. 
 
 (6) See ante, p. 244. 
 
 (c) Wills, Giro. Evid. 237, 238. 
 
 {d) Id. 101, 102. 
 
CHAP. I.] FOOT-PRINTS. 269 
 
 sole with nails diffei'eut in size from those on the sole itself ; 
 and, altogether, there were four different sorts of nails on 
 the patch and soles ; and, in some places, the nails were 
 missing. Suspicion having fallen on the prisoner, who wore, 
 right-and-left boots, they were carefully compared with the 
 foot-prints, and found exactly to correspond, as to the patch, 
 the tip, the number, shape, sizes and arrangement of the 
 nails. 
 
 Impressions from other parts of the body than the feet 
 sometimes answer a similarly useful purpose, in detecting 
 and identifying an offender. In the case of Rex v. Brind- 
 ley, (jsL) impressions were found in the soil, near the scene 
 of crime, which was stiff and retentive, of the knee of a 
 man who had worn breeches made of striped corduroy, and 
 patched with the same material, but the patch was not set on 
 straight ; the ribs of the patch meeting the hollows of the 
 garment into which it had been inserted ; which circumstan- 
 ces exactly corresponded with the dress of the prisoner. 
 
 Impressions made even by the teeth have sometimes fur- 
 nished important criminative evidence. Mascardus (Z») has 
 related an instance, where an enclosed ground, set with 
 fruits, was broken into by night, and several of them eaten ; 
 the rinds and fragments of some of which were found lying 
 about. On examining these, it appeared that the person 
 who ate them had lost two front teeth, which caused sus- 
 picion to fall on a man in the neighborhood, who had lost a 
 corresponding number ; and he, on being taxed with the 
 theft, confessed his guilt, (c) 
 
 ^ (fl) Wills, Circ. Evid. 100. 
 
 (6) De Probat. qusBSt. 8, n. 24. 
 
 (c) Best on Pres. § 218. In a late case of burglary at Albany, where a 
 store was robbed of goods, a number of boards upon which goods were wound, 
 were found near the canal. Upon one of these boards was an indentation, as 
 of a person who used his teeth in pulling it from between the goods, and show- 
 ing that the robbor had lost two teeth. This was the case with the individual 
 who had been arrested, and was relied on as a corroborating circumstance 
 against hira. New-Tork paper, January 31st, 1854. 
 
270 PHYSICAL FACTS. [PART II. 
 
 2. Impressions made by instruments used by the person 
 come next to be considered. These operate, in the detection 
 of the criminal, in two ways, as just observed respecting 
 • foot-prints, that is to say : — first, generally, as indicating the 
 quarter from which the offender came ; and they may have 
 this effect, though the instruments themselves are not found : 
 secondly, specially, as identifying the guilty person ; and 
 this is effected, where the instruments themselves are found, 
 by comparing them with the impressions. As an instance of 
 the former, marks of violence, such as impressions of a 
 chisel, on the outside of the doors or windows of a building, 
 indicate the general fact that the robber or murderer came 
 from without, (a). And hence the absence of such impres- 
 sions will frequently justify the conclusion that the criminal 
 was an inmate of the premises. But such an inference can- 
 not safely be made the basis of a conviction, especially in 
 capital cases, unless it be apparent that access from without 
 could not have been gained in any other way. (6) 
 
 As instances of impressions of instruments specially indi- 
 cating the offender, may be mentioned, marks of an iron 
 instrument upon the windows of a house, corresponding with 
 a chisel found in the prisoner's possession, or proved to have 
 been used by him ; (c) and marks on a board in the lodgings 
 of one of two prisoners, corresponding with the catches of 
 a vice found in the house of the other, (d) And to the 
 same head may also be referred impressions upon letters 
 
 (a) In the case of Regina v. Courvoisier, a robbery from without had beuu 
 attempted to be simulated by marks of violence upon a door; but on examina- 
 tion, it was found that the marks must have been made from within. Wills, 
 Circ. Evid. 243. 
 
 (i) Inattention to this consideration has sometimes led to the sacrifice of 
 the lives of innocent persons. See the case mentioned by Mr. Starkie (1 
 Stark. Evid. 513, note,) and referred to, ante, p. 184. 
 
 (c) Rex V. Bowman, Alison's Prino. of the Crim. Law of Scotland, 814. 
 WUls, Circ. Evid. 52. 
 
 (d) Rex V. Heath and Crowder, Alison's Prino. 318. Wills, Circ. Evid. 08 
 
CHAP. I.J MARKS AND TRACES. 271 
 
 mailed (containing fulminating powder,) corresponding with 
 a seal found' on the prisoner's person, (a) 
 
 3. Marks made by instruments held or used by the offender 
 in a peculiar manner. These often contribute material aid 
 in fixing the charge of guilt on a particular individual. 
 Thus, where, on examination of the body of a murdered 
 person^ the fatal wound appears to have been inflicted by 
 one who held the instrument' in his left-hand ; (6) or where 
 the direction taken by a pistol-ball, shows that the weapon 
 must have been discharged with the left-hand ; (c) and it 
 is proved or confessed that the accused is a left-handed 
 person ; this circumstance, though by no means conclusive 
 in itself, (d) requires only the corroboration of others to 
 render it entirely so. 
 
 4. Objects left at the scene of crime, by the supposed 
 offender, being identified as belonging to him or previously 
 seen in his possession. Of this description of traces of the 
 person, are the instruments of crime themselves ; such as 
 the pistol, (e) razor, (/) knife or hatchet used in commit- 
 ting a murder; articles of dress ; such as a hat, a glove, a 
 neck-cloth, a cloak, and the like, (g-) These fiirnish obvious 
 means of identifying the criminal. 
 
 5. Objects left at the scene of crime, corresponding with 
 
 (ff) Rex T. Palayo, WiUs, Circ. Et. 99. 
 
 (6) Rex V. Richardson, ante, p. 243. 
 
 (c) Rex T. Patch, Best on Pres. § 218, note (l), citing Beck's Med. 
 Jur. 583, 7th ed. 
 
 (rf) Mr. Best remarks that the being left-handed, or having lost front teeth 
 are not very uncommon occurrences. Best on Pres. § 218. The value of these 
 marks consists in their narrowing the range of inquiry, by excluding all per- 
 sons not possessing them. 
 
 (c) Commonweath v. Bauer and others, 2 Chandler's Am. Crim. Trials, 
 853, 354, 856. Rex v. Howe, WUls, Circ. Evid. 234—236. 
 
 (/ ) Regina v Sawyer, Maidstone Spring Assizes, 1839; Id. 113. 
 
 (g) Rex V. Simmons, Celebrated Trials, (Phil. 1835.) 57, 68. Rex v 
 Johnson and Fare, 5 Loncl. Legal Observer, 254. Le Brun's case, A. D. 1699. 
 Id. 201. The People v. Beehan, Suffolk (N. Y.) Oyer & Terminer, Oct. 1854. 
 
272 PHYSICAL FACTS. [PABT 11. 
 
 Other objects in the possession of the supposed offender. 
 Such as a bullet, extracted from the body of the deceased, 
 accurately fitting the barrel of a pistol, or a bullet-mould, 
 found on the accused ; (a) shot taken from the wound, and 
 ascertained to be of the same quality with other shot 
 found in his possession ; (6) patches and tow-wadding, 
 found near the body of the deceased, corresponding with 
 similar patches found in the prisoner's rifle-box ; (c) and 
 the like. 
 
 6. Fragments or portions of objects found at the scene of 
 the. crime, corresponding with other portions of objects, 
 found on the accused, or known to have been in his posses- 
 sion. Of this description are, — a piece of the blade of a 
 knife, found sticking in the window-frame of a house which 
 had been broken into, corresponding with a broken-bladed 
 knife found in the prisoner's pocket ; (d) — a piece of the 
 blade of a knife found in the body of a person killed, cor- 
 responding with the handle of a knife, having a small portion 
 of the blade attached, found near the spot and identified as 
 having been previously in the possession of the accused ; (e) 
 — a fragment of clothing, found near a rick burned, (/) or 
 a body killed, (§•) corresponding with other clothing of the 
 prisoner ; — a fragment of a printed paper, or of a letter, 
 
 (a) Rex V. Howe, Wills, Giro. Evid. 234. 
 
 (i) The State t. Carawan, Beaufort County, (N. 0.) Superior Court, 
 Fall Term, 1853. Pamphlet Report, 1854, pp. 36, 56. In Major Strangwayes' 
 case, the charge of the gun by which the deceased was killed, (two bullets and 
 a slug,) corresponded precisely with the charge with which the prisoner had 
 caused a carbine to be loaded, a few hours before. 5 Land. Legal Observer, 91. 
 
 (c) The People v How, 2 Wheeler's Grim. Cas. 412, 419. 
 
 (d) 1 Stark. Evid. 485, 486. Best on Pres. § 218. 
 
 (c) Case in the Supreme Court of Massachusetts, cited by Shaw, C. J. in 
 his charge to the jury, in the case of Commontoealth v. Webster, Bemis' 
 Report, 465, 466. 
 
 (/ ) Case at Warwick Spring Assizes, 1818; Wills, Ciro. Evid. 95. 
 
 (,S) In the case of Rex v. Johnson and Fare, a piece of bloody cloth, found 
 on the spot where the murder was committed, was fitted to a rent at the 
 
CHAP. I.] MARKS AND TRACES. 273 
 
 used as wadding for the charge of the fire-arm with which 
 the crime was committed, corresponding with another piece 
 fomid on the prisoner's person or premises ;' (a) — a portion 
 of a sheet of paper on which a letter has been written, cor- 
 responding with another portion found in the prisoner's 
 desk ; (6) arid the like. 
 
 The manner in which circumstances of the foregoing de- 
 scription are used in evidence, to show the participation of 
 the accused party in the crime charged, is, as already men- 
 tioned, by establishing a connection between such party and 
 the particular appearances or objects observed by the wit- 
 ness. This is effected, in many instances, by the obvious 
 and familiar process of direct comparison. The feet or 
 shoes of the party are brought into actual contact with the 
 peculiar foot-marks ; the bullet is applied to the barrel of 
 the pistol ; the chisel, to the mark on the door ; the piece of 
 blade to the broken knife ; the fragment of clothing or 
 paper, to the corresponding fragment. If these objects are 
 found to fit each other accurately, the inference is that they 
 once were in actual contact, or formed parts of the same 
 
 bottom of a pair of trowsers, (also bloody,) belonging to one of the prisoners, 
 and pronounced to have once formed a part of them. The opinions of a 
 tailor and clothier were taken in this case. 5 London Legal Observer, 254. 
 257. 
 
 (a) 1 Stark. Evid. 486. Best on Pres. § 218. 3 Benth. Jud. Evid. 256. 
 Shaw, C. J. in Commonwealth v. Webster, Bemis' Report, 466. Rex v. 
 Courtnage and Mossingham ; Wills, Circ. Evid. 129. And as to correspond- 
 ences of this kind, existing between different portions of newspapers, see a case 
 mentioned in the New-York Herald of December 15, 1854, quoting the Alex- 
 andria (La.) Democrat. See also the case of Commonwealth v. Francis, 
 Thacher's Criminal Cases, 240. 
 
 (i) Rex V. Looker, Wills, Circ. Evid. 139, 140. A correspondence of this 
 kind, in which, however, the connection was much more indirectly shown, was 
 relied on in the case of The State v. Avery, before the Supreme Court of 
 Rhode Island, May, 1833. See the testimony of Harvey Harnden, Iram 
 Smith and Jeremiah Howland, given at the trial, (seventh day.) 
 
274 PHYSICAL FACTS. [PART II. 
 
 whole ; and by this meajis, the accused or suspected person 
 is brought into direct and effectual connection with the scene 
 or ihe subject of the crime. The principle hero involved is 
 that of adaptation of objects, or parts of objects, by the 
 senses of sight and touch, requiring, in some cases, the most 
 nice and accurate adjustment, and even calling in the aid of 
 optical glasses, (a) Hence, in order to render the process 
 reliable, this comparison should be made while the impres- 
 sions are recent, or as soon as the objects or fragments are 
 discovered, and before any change, whether accidental or 
 intentional, takes' place. In other cases, there is a similar 
 process of bringing one object into actual contact with an- 
 other, and of direct consequent comparison ; as where a 
 ball or shot taken from a wound is compared with other 
 balls or shot found in the party's possession ; (6) but such 
 comparison is made, not with the view of establishing any 
 adaptation, and consequent previous connection of the two 
 objects, but of showing such a similarity as may suffice to 
 indicate the quarter from which the object came, (c) In 
 other cases there is no physical comparison possible, but the 
 process is nevertheless carried on mentally, and with equal 
 effect : as where it is shown that the fatal wound was inflict- 
 ed with a knife held in the left-hand, and it is at the same 
 time shown that the accused is a left-handed person : (jT) or 
 where it is shown that the deceased was killed by a fire-arm 
 loaded with two balls and a slug, and it is at the same time 
 
 («) See The Slate v. Avery; testimony of Harvey Harnden. 
 
 (b) The State v. Carawan, Beaufort Co. (N. C.) Superior Court, Fall 
 Term, 1853; Pamphlet Report, 1854, pp. 36, 56. 
 
 (c) So, where slugs, taken from the body of a person who has been shot, 
 ore found to resemble other slugs, taken from the body of another person, who 
 has been shot immediately afterwards ; the inference is that both persons were 
 shot by the same individual, or by such individual, acting in concert with 
 others. Regina v. Rush, cited in Taylor's Medical Jurisprudence, 271 ; (Phil. 
 
 'ed. 1853.) 
 
 \(l.) Rex T. Richardson, ante, p. 244. 
 
CHAP. I.] MARKS AND TRACES. 275 
 
 shown that, shortly before the killing, a carbine was loaded 
 for the accused with precisely the same description of 
 charge, and fired, (a) There are other cases, again, in 
 which the process employed is not so much a comparison of 
 any kind, as a direct tracing out of the physical fact to its 
 source, either -by indications apparent on its face, as where 
 foot-prints, not in themselves peculiar, leading from a dead 
 body to a certain house, point out the inmates of that house 
 as the murderers ; (&) or by extrinsic proof ; as where a 
 weapon or article of clothing, found near the body is proved 
 to belong to the accused, (c) 
 
 II. Traces, marks or indications on the person or premises 
 of the accused, derived or supposed to be derived from the 
 scene or subject of the crime, embrace the following appear- 
 ances and objects. 
 
 1. Wounds or marks of violence of a peculiar kind ; that is, 
 inflicted by the assaulted person in self-defence, or in the 
 course of resistance, either with a particular instrument, or in 
 a particular manner : as where, in a case of robbery, the pro- 
 secutor, when attacked, struck the robber on the face with a 
 key ; and a mark of a key, with corresponding wards, was 
 visible on the face of the prisoner : (c?) or where the person 
 assaulted made several cuts at the robber with a clasp-knife^ 
 J _ 
 
 (a) Major Strangwayes' case, 5 Lond. Leg. Observer, 90, 91. 
 
 (6) Mrs. Arden's case-, Burke's Trials, connected with the Upper Classes, 
 1. So, where the appearajice of a wound shows that the jire-arm by which 
 it was made, must have been held close to the head or body; or where the 
 direction of the wound or marks left by the ball on other objects, show that 
 the ball must have entered in front, or from behind, or at the side, or from a 
 higher or lower point; the relative position of the party firing Is satisfactorily 
 indicated. Case in 19 London Legal Observer, 310, 311. The State v. 
 McCann, 13 Smedes & Marshall, 463, 482, 494. The State \. Carawa/n, 
 Pamphlet Report, 1854, pp. 32, 36. 
 
 (c) Commorawco?(ftv.fl«ucr, 2 Chandler's Am. Crlm. Trials, 356. Rex \. 
 Johnson and Fare, 5 Lond. Leg. Observer, 254, 257. 
 
 (rf) Case cited in Best on Presumption, § 218. 
 
276 PHYSICAL FACTS. [PABT 11. 
 
 and corresponding cuts were found in the clothing and on the 
 person of the accused (a). 
 
 2. Stains of particular substances, visible on the clothing. 
 These often serve to indicate the presence of the accused at 
 the scene of crime, to trace his movements there, and to 
 trace him from it, as effectually as foot-prints of a peculiar 
 kind. Thus, in the case of Rex v. Richardson, (&) the 
 stockings of the accused, which had been hidden by him, 
 were found to be soiled with mud, which, on examination, 
 appeared to correspond precisely with the soil of a bog or 
 puddle adjoining the cottage where the murder was com- 
 mitted, and which was of a very particular kind, none other 
 of the same kind being found in that neighborhood. In the 
 case of Rex v. Patch, (c), the feet of a pair of stockings, 
 proved to be the prisoner's, were found plastered over with 
 a peculiar kind of soil found on a wharf, in front of the 
 house in which the deceased was shot. In this case, the 
 circumstance was necessary only to show the movements of 
 the accused, (who boarded in the same house with the de- 
 ceased,) in leaving the house just before the shot, and re- 
 turning immediately after. 
 
 To this head may also be referred those cases where the 
 clothing of the accused is found to be impregnated with a 
 fluid substance made use of and remaining at the scene of 
 the crime, which has left no visible stain, but is at once per- 
 ceptible to the sense of smell, (d') Even the sense of taste 
 has been resorted to, for the purpose of establishing the 
 same general fact. Thus, in the case of Rex v. Barbot, (e) 
 a waistcoat of the accused, when taken out of his trunk, 
 
 (a) Rex T. Dawtry, York Spring Assizes, 1811; Wills, Giro. Evid. 58. 
 
 (b) See ante, p. 276. 
 
 (c) wills, Ciro. Evid. 230. 
 
 {d) See the case of The People t. Peverelly, New-York General Sessions, 
 November, 1854. In this case, a new trial was granted, 1855. 
 (e) 18 State Trials, 1229. 
 
CHAP. I.] PHYSICAL FACTS. 277 
 
 was found, by the application of the tongue, to be impreg- 
 nated with salt, showing that the wearer of it had been wet 
 with salt-water ; and thereby serving to prove a fact which 
 it was material to establish ; namely, that the accused had 
 gone to the island (over sea,) where the murder was com- 
 mitted, during a stormy night. 
 
 The process by which these traces on the person are 
 made use of, to connect the accused with the particular 
 grime charged, is, as in the preceding description of appear- 
 ances, one of comparison ; made, in some cases, by actual 
 physical application or juxtaposition, — as by applying the 
 key to the mark supposed to be made by it on the face, or 
 by directly comparing the mud, sand or soil on the clothing, 
 with the mud of the bog or the soil of the wharf from which 
 the stain is thought to have been derived : — and in other 
 cases, conducted mentally, without any actual physical con- 
 tact ; as by comparing the cuts and wounds on the clothing 
 or person, with the particular act of cutting as described; 
 the saltness of the garment with the known action of sea- 
 water: the inference being that the object viewed came 
 from the source indicated, or that the appearance or state 
 of the object viewed, was produced by the act or cause 
 assigned. 
 
 3. Objects found on the person or premises of the ac- 
 cused, and shown to have been taken from the scene or sub- 
 ject of the crime ; such as a watch, (a) keys, (6) and 
 similar small articles, (c) 
 
 4. The fruits of the crime ; such as money, or papers 
 found in the prisoner's possession, (d) and shown to have 
 
 (a) The State v. Robinson, Middlesex (N. J.) Oyer & Terminer, March, 
 1841; Pamphlet Report, p. 16. The People v. Colt, New-York Oyer & Ter- 
 miner, January, 1812. 
 
 (i) Rex T. Smith, Varnham and Timms, Wills, Cire. Evid. 240. 
 
 (c) Hill's case, 16 Lend. Legal Observer, 369. 
 
 {il) The State v, JJoiijison, Pamphlet Report, 14, 15. Comrnonwealth v. 
 Webiier, Bemis' Report, 148—151. 
 
278 PHYSICAL FACTS. [PAET II. 
 
 belonged to the person upon wliom the crime has been com- 
 mitted. And finally, 
 
 5. The subject of the crime itself, discovered on the 
 premises of the accused ; such as the body of the murdered 
 person found buried under his house, or dismembered and 
 concealed in a box or other private depository, (a) 
 
 In the two species of facts last mentioned, we arrive at 
 the most convincing physical materials that can possibly be 
 made use of in evidence, to connect a person accused with a 
 crime committed. Intermediate facts and inferences are, in 
 such cases, dispensed with ; the mind is no longer occupied 
 with searching for mere traces of the crime or criminal, and 
 connecting them by a chain of subordinate circumstances ; 
 but the two great objects of inquiry are themselves brought 
 visibly at once together ; and, unless the accused can satis- 
 factorily show the agency of another person in producing 
 this connection, the evidence will be decisive. But this 
 branch of the subject will be more fully illustrated under a 
 future head. 
 
 The object and effect of the various physical facts which 
 have been enumerated under the last two general heads, 
 when presented in evidence, are to fix the guilt of the crime 
 charged on the particular person accused, where the perpe- 
 trator was not seen in the act, either by the injured party, or 
 another. The accused is thus identified as the criminal, by 
 the effect of the inferences which the facts authorize. But 
 the term " identification " is more commonly used to express 
 that species of proof which is peculiar to cases where time 
 or opportunity has been given for a view (however tran- 
 sient,) of the offender, while in the criminal act : evidence 
 being offered to establish the fact that the party on trial, 
 and the offender seen in the act, were one and the same per- 
 
 (a) The State v. JSoBs7iso«, Pamphlet Report, 8 — 11. Commo7iwealth v. 
 Webster, Berais' Report, 117, 120. 
 
CHAP. I.] PHYSICAL PACTS. 279 
 
 son ; and the witness swearing that he was the same. Some- 
 times, such testimony is founded on impressions derived from 
 the general appearance of the criminal agent, and the 
 general resemblance of the accused to him, without present- 
 ing the particular reasons of the witness' belief. In such 
 cases, it falls properly under the head of direct evidence. 
 In other instances, it is based on certain observed peculi- 
 arities of the dress or person of the criminal, which are 
 .specially testified to by the witness, and found to correspond 
 with similar peculiarities of the accused. In these cases, it 
 strictly belongs to the department of circumstantial evidence. 
 Considered as such, it often constitutes a very trust-worthy 
 species of proof; the particulars pointed out as grounds of 
 belief, serving as so many tests for the detection of error, in 
 the general "conclusion of the witness. The whole subject 
 of identification will be more fully considered in another 
 place. 
 
 The present section being devoted to the consideration 
 of criminative or inculpatory circumstantial evidence, the 
 various physical facts which have been enumerated, have 
 been considered solely as sources or materials of criminative 
 evidence. The favorable constructions or infirmative hypo- 
 theses which they may admit, and the various exculpatory 
 circumstances by which their effect may be qualified, will 
 receive particular attention under a future head. 
 
280 MORAL CIRCUMSTANCES. ' [PART II. 
 
 SECTION III. 
 
 Moral Circumstances. — Precedent Circumstances. 
 
 The next division of criminative or inculpatory circum- 
 stantial evidence comprises such, as is derived from the relor 
 iions, position and conduct of the accused party himself ; 
 presenting what have been termed (in contra-distinction to 
 the physical circumstances considered in the last section,) 
 the moral indications of crime. These may be conveniently 
 considered under the three subdivisions of precedent, con- 
 comitant and subsequent circumstances, (a). 
 
 Precedent Circumstances. 
 
 In tracing the connection between a crime and the person 
 suspected or accused of it, as indicated by his previous con- 
 duct and position, the circumstances to be inquired into 
 naturally occur in the following order. 
 
 First, his character, as generally disposing or inclining 
 him to the offence. 
 
 Secondly, the particulars of his external situation and 
 relation, as more immediately instigating him to its commis- 
 sion ; or, in other words, as presenting motives to the 
 offence ; including, also, the contemplation of the necessary 
 means of committing it. 
 
 Thirdly, language indicative of existing disposition, or 
 design : comprising remote allusions to the act in contem- 
 plation ; expressions of animosity against the subject of it ; 
 and actual declarations of intention, or utterance of threats 
 to commit it : — all showing the impression of a motive, and 
 the existence of a purpose, more or less distinctly formed 
 or entertained. 
 
 - ^ 
 
 (a) Buller, J. in Rex v, DoneUan, Gurney'g Report, 1781. 
 
CHAP. I.j PRECEDENT CIRCUMSTANCES, 281 
 
 Fourthly, preparations for committing the offence : show- 
 ing the motive in its fullest operation, and a purpose fixed 
 and matured. 
 
 Fifthly, opportunities and facilities, including the actual 
 possession of the means for committing the crime ; serving 
 often to impart additional strength to motives. 
 
 Lastly, actual attempts, stopping short only of full and 
 effectual perpetration. 
 
 But, as the law does not allow general character to be 
 adduced, in the first instance, in evidence, as a criminative 
 circumstance, (a) judicial investigation must commence 
 from a lower point in the series above indicated ; and can- 
 not go farther back than those circumstances which tend to 
 show a motive on the part of the accused. The following 
 wiU therefore be the order in which the subject of precedent 
 circumstances will be considered, namely : (1) motives ; 
 (2) means as contemplated ; (3) verbal intimations of the 
 act contemplated; (4) expressions of ill-will; (5) de- 
 clarations of intention; (6) threats; (7) preparations, 
 including the acquisition of means ; (8) opportunities and 
 facilities, including the possession of means ; (9) attempts. 
 
 SECTION IV. 
 
 Motives to the commission of crime. 
 
 In looking at the motives which instigate human conduct, 
 we ascend to the very origin of crime. Considered in a 
 general point of view, a field of infinite extent is here 
 opened, abounding in numerous and subtle questions. But 
 
 (a) Best on Pres. §§ 151, 155. 1 Phill. & Amos, Evid. 488, 491. Lord 
 Kenyan, in King v. Francis, 3 Esp. 117. 
 
 I 
 
282 PRECEDENT CIRCUMSTANCES. [PAHT II. 
 
 within the narrower limits prescribed by legal rules and 
 reasoning, the subject assumes a simpler character, and may 
 be very fully considered -without indulging in loose or 
 general speculation. 
 
 A motive, it may be observed, unlike the physical facts 
 considered under the last division, is incapable of being 
 directly presented to a tribunal, by evidence of any kind 
 except the actual confession of the individual whose conduct 
 is under investigation. It is not a physical but a psycho- 
 logical fact, (fl), arrived at indirectly, by inference from 
 facts directly proved. Where the consideration of it 
 becomes necessary, it is, in short, an auxiliary or interme- 
 diate principal fact, proved by deduction from minor facts or 
 circumstances, just as the leading ultimate principij.1 fact of 
 guilt is established. 
 
 An evil motive, it is said, constitutes in law, as in morals, 
 the essence of guilt (6). It is, indeed, the manifest source 
 and spring of all criminal action. Hence the existence and 
 quality of motives frequently become important considera- 
 tions in investigating crime, (c) The effect of particular 
 motives upon human conduct," observes a learned writer, 
 " is a matter of every man's observation and experi- 
 ence, to a greater or less extent ; and in proportion to his 
 attention, means of observation and acuteness, every one 
 becomes a judge of the human character, and can conjecture, 
 
 (a) 1 Benth. Jud. Evid. 45. 3 Id. 3, 5. Best on Pres. § 13. 
 
 (A) Wills, Giro". Evid. 38. 
 
 (c) " A mischievous event, " observes Mr. Benthain, " being supposed to 
 have been produced, and Titius suspected of having been concerned in the 
 production of it. What could have been his moiivel is a question, the perti- 
 nency of which will never be matter of dispute." 3 Jud. Evid. 183. And 
 as to the importance of inquiring for motives, on trials for crimas, see the 
 observations of Harris, 3. in charging the jury, in the case of The People y. 
 Henrietta Robinson, Rensselaer Oyer & Terminer, May, 1851. 1 Parker's 
 Crim. Keports, 649, 655. See also the observations of Sarailo, J. in charging 
 the jury, in the case of The People v. Lake, Duchess Oyer & Terminer, Sep- 
 tember, 1858. 1 Parker's Cr. R. 502, 539. 
 
CHAP. I.] MOTIYES TO CEIME. 283 
 
 on the one hand, what would be the effect and influence of 
 motives upon any individual, under particular circumstan- 
 ces ; and, on the other hand, is able to presume and infer the 
 motives by which an agent was actuated, from the particular 
 course of conduct which he adopted. Upon this ground it 
 is, that evidence is daily adduced, in courts of justice, of 
 the particular motives by which a parly was influenced, in 
 order that the jury may infer what his conduct was, under 
 those cii'cumstances ; and, on the other hand, juries are as 
 frequently called upon to infer what a man's motives and 
 intentions have been, from his conduct and his acts." (a). 
 
 Before proceeding farther with the consideration of this 
 particular subject, it will be proper to devote some attention 
 to the essential meaning of the term " motive " itself, as 
 distinguished from some others with which it is apt to be 
 confounded. 
 
 A motive is, strictly, what its etymology indicates, — that 
 which moves or influences the mind. It is an emotion, 
 passion or desire, (in the case of crime, always an unlawful 
 one,) which impels to action. It is a desire or emotion 
 awakened by the perception or contemplation of some 
 external object or end to be attained by action. This ulti- 
 mate object is, in fact, the cause or spring of the motive 
 itself; and has sometimes been called the exterior or 
 external motive, as distinguished from the desire or passion 
 it produces, which is termed the interior or internal mo- 
 tive. (6). It is, in other words, the inducement, or that 
 which leads or tempts the mind to indulge the criminal 
 desire. The close connection of these three terms becomes, 
 on examination, sufficiently apparent, as well as the dis- 
 tin'ction, in sense, between an object and a motive. The 
 term " inducement " seems, in a great degree, to express 
 the sense of both the others. 
 
 (a) 1 Stark. Efid. 28, 29. 
 (6) 3 Benth. Jud. Evid. 183. 
 
284 PRECEDENT CIECUMSTANCES. [PABT II. 
 
 The terms "purpose," "intention" and "design," are 
 all expressive of mental action in a more advanced stage. 
 As the contemplation of an unlawful object begets in the 
 mind a criminal motive, so the continued presence or influ- 
 ence of such a motive leads, in turn, to the formation of a 
 purpose. From entertaining, perhaps feebly and at inter- 
 vals, the mere vague and general desire, the mind, in this 
 step, proceeds to the active exercise pf volition, resulting in 
 distinct determination. It now wills and resolves to do 
 whatever may be necessary to gain the object desired, and 
 hence arises the formation of whatever plans may be neces- 
 sary to secure its accomplishment. The terms " intent " 
 and " design " are expressive of mental action at its most 
 advanced point, or as it actually accompanies the outward 
 corporal act which has been determined on. {a) Intent 
 and design show the presence of loill in the act which con- 
 summates the guilty purpose, in the murderous blow given, 
 or poisonous draught administered. Intent or design is 
 always essential to give a corporal act its criminal qual- 
 ity. (6) An act is said to be unintentional or undesigned, 
 when it is involuntary or accidental ; and the circumstances 
 which accompany it often serve to reveal and explain the 
 intent, (c) But the motive lies more remote, and is reached 
 with greater difliculty. 
 
 Tracing upward or backward the whole mental process 
 which has just been described, it may be said that the 
 corporal act and the mental intent, both constituting one 
 complete action, flow from a previously formed settled pur- 
 
 (a) The Latin words properly expressive of intent and design are tlie same 
 withi those -which signify mind itself, — mens, animus. 
 
 (6) Acius'non facit reum nisi mens sit Tea. 3 Inst. 107, 
 (c) Intent is, in other words, the exercise of intelligent will; the mind 
 heing fully aware of the nature and consequences of the act which is about to 
 be done; and, with such knowledge, and with full liberty of action, willing 
 and electing to do it. The use of the word " meaning," as a synonyme of 
 intent, confirms this explanation. 
 
CHAP. I.] MOTIVES TO CRIME. 285 
 
 pose ; that such purpose is generated by the operation of a 
 previous motive ; and that such motive is awakened by the 
 particular object perceived or contemplated. This object is 
 presented to the mind, either by mere accident, or by the 
 influence of the circumstances and relations in which the 
 guilty actor has been placed. And in these last, we reach 
 the ultimate source of all, beyond which no human action, 
 as it comes to be subjected to judicial investigation, is 
 capable of being followed. 
 
 The motives to the commission of crime may be reduced 
 under two principal heads : — the desire of unlawful gain, 
 and the gratification of unlawful passion, (a) Both these 
 are, indeed, essentially attributable to one common ultimate 
 cause, — the operation of the principle of selfishness, or the 
 desire to gratify one's own cupidity, hatred, or wanton will, 
 without the least regard to the rights, the comforts or the 
 lives of others. 
 
 The motive of gain, in the stricter sense of the term, 
 may be excited by two different classes of objects ; first, by 
 something visible and tangible, which the party meditating 
 crime desires to possess ; and, secondly, by some substantial 
 benefit which is expected to accrue as the result of the con- 
 templated act. The first of these, — the mere desire of 
 plunder, — ^is the ruling motive in the ordinary crimes, of 
 robbery, burglary, larceny and forgery. Sometimes, it con- 
 stitutes the impulse, or incentive to murder itself: the 
 party whose property is the object of desire, being killed, 
 in order to render its acquisition more speedy and certain. 
 The burglar and highway-robber often murder with this 
 view ; (6) although, sometimes, the taking of life is not 
 
 (a) Mr. Wills mentions, as a distinct species of motive, — the desire of pre- 
 serving reputation, either that of general character, or the conventional repu- 
 tation of sex or profession. Wills, Circ. Evid. 38. But this seems to belong, 
 essentially, to the first of the two heads mentioned in the text. 
 
 (6) See Rex v. Howe, Wills, Circ. Evid. 234. The People v. Wood, 
 Greene (N. T.) Oyer & Terminer, November, 1853. 
 
286 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 resorted to, unless as a means of overcoming resistance, or 
 silencing an attempt to alarm. Another object of murder, 
 as an auxiliary to the crimes just mentioned, is to provide 
 the means of escape, and to avoid the chances of immediate 
 detection. The act, in these cases, is perpetrated, not from 
 any particular animosity against the victim, who is fre- 
 quently an entire stranger, but solely to remove an obstacle 
 in the murderer's way. Crimes are thus made auxiliary to 
 each other ; arson, for instance, being constantly perpetrated 
 to conceal murder, or to conceal or favor the commission of 
 robbery or theft. In a few cases of uncommon atrocity, 
 murder has been committed solely for the sake of pecuniary 
 gain, unqualified by any other motive, and unassociated with 
 any other crime. In the case of Rex v. Bishop, Williams 
 and May ; (a) an Italian boy was killed for the sake of his 
 body, which, shortly after the murder, was sold to the demon- 
 strator of anatomy at King's College, for nine guineas. (6) 
 The force of the gainful motive to crime, when awakened 
 by the sight or the idea of some coveted material object 
 within apparent reach, is often so great and urgent, as to 
 overcome all considerations of possible or even probable 
 danger of injury or loss, to be encountered in the attempt 
 to gratify it. Thieves and burglars, in particular, constantly 
 expose themselves to the risk of losing life or limb, in en- 
 deavoring to possess themselves of objects, sometimes, of 
 the most trivial value, (c) 
 
 (a) Tried at the Old Bailey, December, 1831. 2 London Legal Observer, 
 (Monthly,) 39,41. 
 
 (4) In this case, it was proved that the boy's teeth had been dug out of his 
 head in a most barbarous manner, and sold to a dentist for twelve shillings. 
 Id. 44. See also the more atrocious Scotch case of Rex v. Burke and 
 McDougal, A. D. 1828; where several persons had been systematically mur- 
 dered for the purpose of making sale of their bodies. Celebrated Trials, 
 (Phil. 1835,) 424. 
 
 (c) A fact very strongly illustrative of this propensity, is mentioned by 
 Mr. Wheeler, in the preface to the first volume of his " Criminal Cases." 
 During the prevalence of the yellow fever in the city of New- York, in the year 
 
CHAP. I.] MOTIVFS TO CHIME. 287 
 
 Another form in which murder is committed for the sake 
 of immediate gain, is where the property of a person has 
 been, by the force of circumstances, brought under the 
 control or within the reach of another ; and nothing but 
 the life of such person prevents its passing entirely into the 
 other's hands. If, by the force of the same circumstances, 
 or by actual contrivance or artifice, the person also is 
 brought within reach, a motive of great force is presented, 
 to attempt the removal of the obstacle by criminal means. 
 In the case of Rex v. Burdock, (a) an elderly lady, pos- 
 sessed of some property, had gone to live with the pris- 
 oner, who kept a lodging-house. Being taken imwell, and 
 attended by the prisoner, the cupidity of the latter was 
 excited so strongly, as to induce her to administer poison in 
 some gruel which she prevailed on her lodger to take, and 
 which resulted in death. The change which was observed 
 soon after, in the prisoner's life and habits, showed that the 
 deatli had been to her a lucrative event ; and, on the evi- 
 dence of this and other cogent circumstances, she was con- 
 victed and executed. In the case of Rex v. Patch, {b') the 
 prisoner, who boarded with his employer, had been enabled, 
 from his relations to the latter, to obtain, to a considerable 
 extent, the control of his business, and was endeavoring to 
 secure it permanently, by a course of fraud. His plans 
 being in danger of frustration by the vigilance of his em- 
 ployer, he was tempted to put the latter out of the way, 
 which he did by shooting him, one evening, as he sat in his 
 
 1822, vast quantities of property in tlie lower part; of the city, were left un- 
 protected; the opinion prevailing throughout all classes, that that part of the 
 city was infectious. To such a height had this opinion risen, that the owners 
 of property refused to expose themselves to the danger of going to it; yet ex- 
 tensive and continued robberies took place in the district, in which was not 
 only exhibited a contempt of death, but a wanton ajid useless destruction of 
 valuables that could not be carried away. 1 Whoeler's Crim. Cas. Pref p. 12. 
 (1823.) 
 
 (a) Tried at Bristol, AprU, 1835. Best en Pres § 196. 
 
 (A) Surrey Spring Assizes, 1806; Wills, Giro. Evid. 230. 
 
288 PRECEPENT CIRCUMSTANCES [PART 11. 
 
 parlor. The crime, in this case, seems to have been induced 
 by the double motive of the desire of gain, and the fear of 
 Vjif^tection. 
 
 In the late New Jersey case of The State v. Peter Robin- 
 son, (a) the deceased was a creditor of the prisoner, and 
 held a bond and mortgage on his house, together with a 
 policy of insurance on the premises, and also a promissory 
 note made by the prisoner. The latter was in straitened 
 circumstances, and the prospect of his being able to pay off 
 the mortgage was so faint, that, according to his own state- 
 ment, it was currently said, the creditor would eventually 
 have his house. In this state of things, he seems to have 
 conceived the idea of taking his creditor's life, under cir- 
 cumstances which should, at the same time, place him in pos- 
 session of all the papers ; hoping, by this means, to destroy 
 all evidence of the debt. The requisite opportunity for 
 committing the crime was obtained by decoying the creditor 
 to his house, (then unfinished and occupied by no one but 
 himself,) under the pretence of a settlement. The body 
 was carefully concealed under the front basement floor of 
 the house ; but the display foolishly made by the prisoner of 
 the fruits of his crime, (which consisted not only of the 
 coveted papers, but of a watch and a considerable sum of 
 money,) and the sudden visible change in his circumstances, 
 led to an investigation which resulted in fixing the guilt of 
 the murder upon him, in the most conclusive manner. 
 
 The other class of objects, which have power to excite, by 
 a more indirect influence, the motive of mere gain, consists 
 of those which present some substantial benefit, in the shape 
 of advancement in life, promotion in business, or succession 
 to property, as the result of the offence contemplated. A 
 person believes that, on the death of another, he will, by 
 the force of circumstances, obtain possession of his property 
 
 (o) Middlesex (N. J.) Oyer & Terminer, March, 1841, Pamphlet Report, 
 p. 15. 
 
CHAP. I.J MOTIVES TO CEIME. 289 
 
 or business, or some portion of it ; or he positively knows 
 that, on the event of such death, he will, by law, succeed to 
 his estate, or obtain some considerable benefit from it. Such 
 death, to a party so circumstanced, is, obviously, a lucrative 
 event, which, to a mind unrestrained by moral principle,' 
 becomes, in time, from the effect of constant contemplation, 
 a desirable, and ultimately a desired event. At this stage, 
 a strong motive is presented ,to hasten such event by means 
 within the party's power, and this has led to some of the 
 most flagitious cases of murder on record, (a) In the 
 much discussed case of Rex v. Donellan, Qi), it was a fact 
 relied on, as indicative of a motive, that, on the death of 
 Sir Theodosius Boug-hton (the person alleged to have been 
 poisoned,) before arriving at age, a considerable estate 
 would have descended to the prisoner's wife. In the case 
 of Rex V. Blandy, (c) the commission of the crime seems 
 to have been instigated by a similar hope of realizing 
 a large sum of money, in the event of the death of the 
 prisoner's father ; although it was apparent that other 
 motives had an auxiliary, if not a paramount influence. In 
 the American case of Commonwealth v. Hauer and others (d), 
 the murder of two persons, brothers, was attempted, and 
 that of one accomplished, with a view to the benefit which 
 would, in case of their death, accrue to an only sister, the 
 wife of one of the prisoners. But in this case, also, the 
 commission of the crime seems to have been instigated, in a 
 considerable degree, by the passion of revenge. 
 
 In some cases, the motive of gain may present itself to 
 the mind, as an inducement to the crime of murder, in the 
 negative form of the avoidance of a supposed loss. The 
 
 (o) See the German case of Gesche Margarethe Gottfried, 4 London 
 Legal Observer, 101. 
 
 (A) Gurney's Report, 1781. Celebrated Trials, (Phil. 1835.) Ill, 321. 
 
 (c) 18 State Trials, 1117, 1154. 
 
 (d) 2 Chandler's American Criminal Trials, 354, 355. 
 
290 PRECEDENT CIRCUMSTANCES. [PABT II. 
 
 disposition to save expenditure is often as strong, in some 
 natures, as the desire of positive acquisition. Hence, where 
 a person stands in such a relation to another, as to be 
 obliged, against his inclination, to assume the maintenance 
 of the latter during life, a motive of equal strength witli 
 any that have been enumerated, is obviously presented, to 
 shorten the period of expenditure, by criminal means. 
 
 It remains to consider, in the next place, that class of 
 motives which have for their end the gratification of unlaw- 
 ful passion. These constitute a most fruitful source of 
 crime, especially of the atrocious offences of murder, may- 
 hem, rape and arson : and the motives are found to assume 
 various shapes, according to the character and disposition 
 of the criminal, and the circumstances of the case. In 
 murder, the moving cause sometimes is hatred of a person 
 who stands in the way of unlawful gratification, or an un- 
 controlled desire to remove an object once loved, but which 
 has come to be viewed with dislike and detestation. An 
 adulterous wife, at the instigation, or with the aid of her 
 paramour, (a) is induced to destroy her husband. (&) A 
 husband, who has formed a connection with another wo- 
 man, (c) or who has been compelled to marry, or to support 
 the wife whom he has abandoned, (rf) is tempted to rid him- 
 self of what he feels to be an incumbrance, (e) A daughter, 
 finding her father's wishes an obstacle in the way of union 
 
 (a) Mrs. Arden's case, 5 London Legal Observer, 59, Mrs. Spooner's 
 case, 2 Chandler's Am. Crim. Trials, 3. Rex y. JVairn and Ogilvie, 19 
 State Trials, 1235. 
 
 (i) In G. M. Gottfried's case, the murderess seems to have acted upon the 
 unaided suggestions of her own mind. 4 Lond. Leg. Obs. 89. 90. 
 
 (c) John Adam's case, 11 Lond. Leg. Observer, 415. 
 
 (d) The People v. Kesler, 8 Wheeler's Crim. Cases, 18, 88. The People V. 
 Williams, New-York Oyer & Terminer, May, 1854. 
 
 (c) The People v. Green, Rensselaer Oyer & Ttrminer, July, 1845; 
 Pamphlet Report. 
 
CHAP. I.J MOTIVES TO CRIME. 291 
 
 ■with her lover, is led on to perpetrate the crime of parri- 
 cide, (a) A. seducer seeks, in this way, to shake off the 
 annoyance of his victim, (b) or to rid himself of the 
 reproach of his associates, (c) Sometimes, the motive is 
 resentment or revenge for some injury, fancied or real. A 
 favor has been withheld ; (rf) an expected advantage inter- 
 cepted ; (e) a supposed right interfered with ; a peti- 
 tion disregarded ; (/) a profligate son has been disinherit- 
 ed ; (g-) a lover discarded in favor of another ; (A) an un- 
 worthy servant discharged, (i) or reprimanded or thwarted 
 in some object ; ( j ) a debtor has been harshly accosted, (A;) 
 or sharply proceeded against, by his creditor ; (/) a cause 
 has been lost by the decision of a judge, (m) In such cases^ 
 although no real or legal right has been invaded, the 
 offended party chooses to consider himself aggrieved ; and, 
 in failure of other redress, or disdaining such redress, where 
 it may have been provided, deliberately constitutes himself 
 his own avenger. The same motive often operates, and to 
 the same end, where the supposed injury has been done to a 
 friend or relative. 
 
 In most of the cases which have just been mentioned, the 
 
 \ 
 
 (a) Rex V. Blandy, 18 State Trials, 1117. 
 
 {b) Riembauer's case, 3 London Legal Observer, 242. 
 
 (c) Rex V. Richardson, Burnett's Crim. Law, p. 524 et seq. Ante, p. 243. 
 
 (d) Rex V. Harrison, 12 State Trials, 833. 
 
 (e) Major Strangwayes' case, 5 Lond. Leg. Observer, 91. 
 
 (/) Rex V. Bellingham, Celebrated Trials, (Phil. 1835,) 481. 
 
 (g) Rex V. Standsfield, 11 State Trials, 1371. 
 
 (A) Commonwealth v. Fuller, Lawrenoeburg, (Indiana,) Circuit Court, 
 March, 1820. 2 Wheeler's Crim. Cases, 223. 
 
 (i) The People v. Beehan, Suffolk (N. Y.) Oyer & Terminer, October, 1854. 
 
 (y ) Regina v. Courvoisier, Burke's Trials, (Aristocracy,) 461, 462, 463. 
 Rex V. Simmons, Celebrated Trials, 57. The People v. Beehan, ubi supra. 
 
 (k) Commonwealth v. Webster, Bemis's Report, 565, 566. 
 
 {I) Regina v. Rush, Burke's Trials, (Upper Classes,) 458. The People v, 
 How, 2 Wheeler's Crim. Oeaes, 412. 
 
 (m) John CMslie's case, 9 Lond. Leg. Observer, 186. 
 
292 ^ PRECEDENT CIRCUMSTANCES. [PART II. 
 
 criminal motive is found to act upon the mind with compara- 
 tive slowness ; or rather, the purpose matured under its influ- 
 ence is cherished for a length of time, and only put in execu- 
 tion when a desired opportunity has been met with. The 
 impulse which would lead to immediate action is resisted or 
 avoided, as tending to hazard the accomplishment of the 
 object in view. Hence the crime, perpetrated under such 
 an influence, is popularly said to be committed " in cold 
 blood." 
 
 There is another class of cases of homicide in which the 
 act may be traced to the same essentially revengeful motive, 
 though from the rapidity with which it impels the mind to 
 its gratification, unchecked even by the most obvious con- 
 siderations of interest, the affinity is not always observed or 
 regarded. The motive here is the mere impulsive desire to 
 strike, without the least regard to consequences, at what- 
 ever thwarts the humor, offends the feelings, or opposes the 
 action of the criminal. It is marked by a seeming deter- 
 mination to gratify the utmost extremity of passion, though 
 at the instant and obvious cost of another's life. There is 
 equal malignity of temper in this, as in the last description 
 of cases ; the only difference being that it rules the mind for 
 a shorter period. The intensity with which the object of 
 passion is hated is, indeed, for the moment, greater ; it is 
 actually absorbing, wholly excluding all other considera- 
 tions. The motive, under this modification, has led to 
 the commission of some of the most appalling crimes on 
 record. 
 
 The common origin of both the classes of motives which 
 have just been considered, — desire of unlawful gain, and 
 gratification of unlawful passion, — in essential selfishness 
 of heart, has already been alluded to. In one point of view, 
 indeed, they actually have qualities in common. The mur- 
 derer or ravisher, who seeks the gratification of his passion, 
 finds in such gratification, a gain ; and, on the other hand, 
 
CHAP. I.] MOTIVES TO CRIME. 293 
 
 tlie robber, whose ruling iaducement is cupidity, is always 
 influenced by a general malignily of purpose, wMcb carries 
 him through the act, with the most reckless disregard of its 
 consequences to others. But, so far as the idea of gain 
 involves' those of the actual acquisition of any coveted 
 object of value, or any substantial outward benefit, the two 
 classes of motives are often in strong and perfect antagonism. 
 The assassin who kills out of the mere desire of revenge , 
 absolutely scorns the idea of plunder ; and has often been 
 known to leave untouched the gold he knew his victim had 
 about him. And even where it is clear that no benefit 
 whatever is to be realized from the criminal act, but, 
 on the contrary, much loss and evil hazarded, the same 
 revengeful impulse is nevertheless obeyed to its fullest 
 extent. The power of this motive is indeed so over- 
 whelming, as to neutralize the influence of all restraining 
 motives, to swallow up the most obvious considerations of 
 self-interest, and to render powerless even the great natural 
 instinct of self-preservation. The sanguinary purpose being 
 accomplished, the perpetrator is often so regardless of his 
 own safety, as 'to make no attempt to escape ; nay, will 
 sometimes voluntarily surrender himself to justice, and, not 
 unfrequently, is found to avow the deed, and glory in it. 
 Or, anticipating the action of the law, he deliberately takes 
 his own life, with the same weapon which he has used upon 
 his victim. 
 
 Hence the fallacy of that course of reasoning by which, 
 in cases of great enormity, the efi"ect of motive, as a circum- 
 stance to prove crime, is sought to be avoided by bringing it 
 to the test of mere gain, in the absolute sense of the term. 
 In the face of a combination of facts, indicating, or capable 
 of indicating the true motive of a murder, for instance, it 
 has sometimes been argued that the act supposed to have 
 been contemplated by the accused, could have resulted and 
 did in fact -esult in no real benefit to himself; that the 
 
294 PHECEDENT CIRCUMSTANCES. [PART H. 
 
 supposed ulterior object of it could never be effectually 
 attained ; that, on the other hand, the risk of detection was 
 great, and the consequence of detection sure to be the for- 
 feiture of life and character by an ignominious punishment. 
 But it is abundantly proved by constant observation that it is 
 of the nature of crime to overlook consequences, if not to 
 scorn them, where the desired object presents itself within 
 apparent reach, (a) If the criminal ever really looks to the 
 future with anything like apprehension, it usually is to see 
 in it only a contingency which may not be encountered, or, 
 if encountered, may be avoided by the aid of some fortunate 
 and hoped for occurrence. In short, if consequences were 
 uniformly regarded in their true light and allowed their true 
 weight, crime would cease to be committed. 
 
 There is another class of offences — ^those of wanton, un- 
 provoked injury to the person, or wanton destruction of 
 property, where the individual or the owner is not known to 
 the perpetrator, — in which the motive is peculiar. There 
 is here no cupidity satisfied, for there is no material object, 
 in any sense acquired ; nor can the act be considered one 
 of revenge, for that arises out of the conduct of some known 
 party. But the motive is, nevertheless, a compound of both 
 the gainful and the malignant impulse ; springing out of the 
 depths of a radically wicked nature, which indulges in out- 
 rage for its own sake, and in such indulgence finds a gain. 
 
 In what has thus far been said, the mind has been sup- 
 posed to be tempted or impelled to crime by the influence 
 of some single motive ; and such influence is often, in fact, 
 the adequate cause of the greatest offences. But it not 
 infrequently happens that several motives are ascertained 
 
 (a) It has already been remarked, (onfe, p. 286,) that where the motive to a 
 criminal act is the mere desire of getting possession of some coveted material 
 object, the teuptation presented by the immediate prospect of such possession, 
 often outweighs any consideration of possible or probable hazard, even of the 
 loss of life itself, to be encountered in the criminal attempt. 
 
CHAP. I.] MOTIVES TO CRIME. 295 
 
 to have been at work, embracing the two leading varieties 
 of gain and revenge, which have been mentioned. Thus, in 
 the case of Rez v. Blandy, (a) the motive of the prisoner, 
 in poisoning her father, (so far as it can be extracted from 
 the circumstances, for all criminal motive and even criminal 
 intent were strenuously disclaimed,) appears to have been, 
 partly to hasten an event on the happening of which a con- 
 siderable property was expected, and partly to get rid of an 
 obstacle to the gratification of passion. In the case of 
 Rex V. Patch, (6) one motive appears to have been, to get 
 possession, more effectually, of the business of the de- 
 ceased. But the immediate, mosf urgent, and probably the 
 ruling motive, was, to prevent the imminent detection of the 
 prisoner' is fraudulent contrivances for the purpose. In the 
 case of Regina v. Courvoisier, (c) the leading or original 
 motive of the prisoner was plunder, sharpened, however, 
 into more immediate activity, by hatred of a master who 
 had reprimanded and threatened to discharge him. In the 
 late case of Regina v. Rush, (<£)' the motives were, first, 
 the influence of a feeling of bitter animosity, which had 
 been openly expressed ; but, more immediately, a desire to 
 render available certain forgeries which the prisoner had 
 previously committed, (e) So, where a murder has been 
 the joint act of several, — some planning or directing, and 
 others actually committing it, for a stipulated sum, — the 
 former may be actuated exclusively by the passions of 
 
 (n) 18 State Trials, 1117. 
 
 (6) Wills, Circ. Evid. 230. 
 
 (c) Id. 241. See Burke's Trials, connected with the Aristocracy, 461. 
 
 (rf) Burke's Trials, connected with the Upper Classes, 467, 469. Id 
 491-493. 
 
 (e) See also the case of Commonwealth v.flouer,and others, 2 Chandler's 
 Am. Crim. Trials, 353. And see the late case of The People v. Hendrickson, 
 Albany Oyer & Terminer, July, 1853. S. C. on error and appeal, 1 Parker's 
 Crim. Eeports, 396, 415, 416. 422. 
 
293 PRECEDENT CIRCUMSTANCES. [PART 11. 
 
 hatred and revenge, while the latter^are influenced solely by 
 the expectation of the promised reward, (a) 
 
 From the foregoing view of the nature and varieties of 
 criminal motives, and the manner in which they influence 
 the mind and impel it to action, it will be seen that they 
 occupy a very prominent position among circumstances, con 
 sidered as the elements or materials of evidence ; con- 
 stituting, in truth, the acknowledged source and spring of 
 all criminal conduct. But as they cannot be made to ap- 
 pear, when not voluntarily divulged, in any other way than 
 by the indirect, circuitous and often difficult process of 
 inference from other circumstances, it becomes important to 
 determine with accuracy in what cases it may be considered 
 material or necessary to institute any formal inquiry intc 
 them. (6) 
 
 For this purpose, it seems sufficient to recur to the essen- 
 tial character of judicial investigation itself, which is always 
 thoroughly practical, and deals, as it is called to deal, only 
 with outward visible acts, and not with inward mental 
 emotions and processes. Motives are made use of, like 
 other evidentiary circumstances, not for their own sake, or 
 from any views of speculative curiosity, but simply as 
 means of arriving at the knowledge of an ultimate fact. 
 They are resorted to, as elements of evidence, not from any 
 supposed necessity of accounting for, or explaining the 
 reason of a criminal act which has been clearly proved and 
 fixed upon the accused, however strange or inexplicable 
 such act may in itself appear ; but from the important aid 
 they always render in completing the proof of the commis- 
 
 (d) See the celebrated oases of Mrs. Arden, in England, (5 Lend. Legal 
 Observer, 69,) and Mrs. Spooner, in Massachusetts, (2 Chandler's Am. 
 Grim. Trials, 3.) 
 
 (i) As to the necessity or importance of inquiring into the motives of n 
 criminal act, see the observations of Barculo, J. in charging the jury, in the 
 ovsi! of The People v. LaJce, 1 Parker's Crim. Reports, 639. 
 
CHAP. I.] MOTIVES TO CRIME. 297 
 
 sioa of such act by the party charged, ia cases where it 
 might otherwise be thought to remaiu ia doubt. With 
 motives, in any speculative or psychological sense, neither 
 the law, nor the tribunal which administers the law, has any 
 proper concern. The outward acts of men are all that they pro- 
 fess, or are called upon to regulate, or to punish, (a) Even 
 that form or condition of mental action, known as intent or 
 design, which is so closely connected with the act as to 
 accompany its perpetration, and is essential to give it its 
 criminal character, is never formally inquired into, where 
 the commission of the act, in its full legal import, is placed 
 beyond doubt. It is, indeed, true that an evil design is 
 necessary to constitute a crime ; or, in the language of the 
 maxim, actus non facit reum, nisi mens sit rea. (6) But 
 it is equally true that, in cases like those just mentioned, 
 the nature of the action is, j)er se, indicative of guilty in- 
 tention, — res ipsa in se dolum habet. In other words, the 
 law infers the intent from the act itself, — animus ex quali- 
 tate facti prcesumitur. (c) The old maxim has here a very 
 literal application, — acta exteriora indicant interiora se- 
 creta. (d) Where a man in his senses, deliberately plunges 
 a knife into the breast of another, or strikes with a weapon 
 which, he knows, must kill, the law does not stop to inquire 
 into the intent, but justly infers it from the act itself, which 
 shows, upon its face, a will or design to take life, (e) 
 Much less does it attempt to go farther back in the inquiry, 
 by seeking for the motive which may have originally prompt- 
 ed the act proved. In short, in cases of this decided de- 
 scription, the rule or presumption of law is unhesitatingly 
 
 (o) Wills, Circ. Evid. 40. 
 
 (6) 3 Inst. 117. 
 
 (c) Wills, Circ. Evid. 43. 1 Stark. Evid. 31. 
 
 id) 8 Co. 290, 291. 
 
 (c) 1 Greeal Evid. § 14. See the observations of Harris, J. in his charge 
 to the jury, in the case of Tke People v. Robinson, 1 Parker's Grim. Cases, 
 649, 655. 
 
298 PBECEDENT CIRCUMSTANCES. [PART II. 
 
 applied, — that every sane man is presumed to know, (and 
 knowing, to intend) the natural and probable consequences 
 of his own voluntary acts, (a) And that motives may be 
 inferred from conduct, as well as conduct from motives, is a 
 familiar principle in the law of presumptive evidence. (6) 
 
 There are cases, however, in which intent is made a neces- 
 sary ingredient of crime, as expressly designated or defined 
 by law, constituting, indeed, the essence of the crime itself; 
 and in which, consequently, such intent must be made to 
 appear by evidence, in addition to the proof of the external 
 visible act itself, which it is required to qualify, (c) As- 
 saults with intent to kill, to maim, to ravish, to rob, are 
 offences of this description. The crime of larceny falls 
 under the same division, it being expressly defined to be the 
 taking of the goods of another, with a felonious intent, or 
 with an intent to steal, (c?) In certain cases of homicide, 
 also, the intent of the accused is allowed to be taken into 
 consideration, in determining the legal quality of the act 
 proved. In some of these cases, indeed, the tribunal is not 
 only authorized and required to look into the intent with 
 which the act was committed, but to go still farther back, 
 and inquire into the motive which prompted it. Thus, in 
 the case of a homicide committed in a sudden quarrel, the 
 law always inquires into the fact and degree of provocation 
 given, such provocation being, in truth, the source of the 
 motive which impelled the act. Supposing the actual 
 motive to have been of the most urgent kind, namely, the 
 impulse of self-preservation, the fatal blow being struck, 
 and designedly struck, in protection of the party's life, 
 placed, for the moment, in imminent and otherwise unavoid- 
 
 (a) See ante, p. 47. 
 
 (6) 1 Stark. Evid. 29—31. 
 
 (c) Jd. 30. See The People v. Cochrane, 1 Wheeler's Crim. Cases, 81, 85, 
 and note. 
 
 (d) See Koseoe's Crim. Evid. 585 — 587, where the definitions are more fully 
 given. The People v. Maxwell, 1 Wheeler's Crim. Cases, 163, 166 — 169. In 
 
CHAP. I.] MOTIVES TO CRIME. 299 
 
 able peril ; the law looks upon this favorably, and will allow 
 it to prevail in excuse, or even in justification of the act 
 proved, (a) Supposing again, the motive to have been the 
 mere impulse of retaliation, (which, in some natures, is 
 almost as instinctive as the one just mentioned ;)^the law 
 regards this with far less of favor. Within certain limits, 
 as where the retaliatory act is proportioned in any degree 
 to the act which provokes it, it will be taken into account, 
 as an infirmity of nature, in the light of palliation or excuse. 
 But beyond these, as where the blow is struck with utter 
 carelessness of its disproportion to the provocation given, 
 and utter recklessness of its obvious consequences, the 
 motive assumes the quality of mere impulsive revenge, for 
 which the law makes no allowance. (6) 
 
 Assuming it, then, to be material or important, (as it 
 often is in cases of proof by circumstantial evidence, (c) 
 that a motive for the criminal act charged upon the accused, 
 should be sought for and inquired into, the next subject far 
 consideration is the manner in which such motive is arrived 
 at, or made to appear in evidence. 
 
 A motive, considered as a mental impulse, apart from all 
 connection with outward things, is, of course, in its nature 
 incapable of being precisely investigated, or made apparent 
 to human view. Originating wholly within the breast of 
 
 the offences of reeeiving stolen goods, and attempting to pass counterfeit 
 money, the intent is also a material ingredient. Rosooe's Grim. Evid. 875. 
 The People v. Teal, 1 Wheeler's Cr. Cas. 199. The People 7. Johnson, 1 
 Parker's Crim. Reports, 564. The People v. Gardner, 1 Wheeler's Cr. Cas. 
 23. As to the intent in burglary and robbery, see Rose. Crim. Evid. 365, 895. 
 
 (o) For the law on this subject, see Wharton's Law of Homicide, 211, 
 et seq. 
 
 (J) For the law on this subject, see 1 Russell on Crimes, 513, et seq. Id. 580, 
 ei seq. Wharton's Law of Homicide, 168, et seq. 
 
 (c) See the observations of Parker, Circuit Judge, inThe People v. Green, 
 (1 Parker's Crim Reports, 32,) and of Barculo, J. in The People v. Lake, 
 Id. 539. 
 
300 PRECEDENT CIECUMSTANCES. [PAET II.. 
 
 liim who entertains it, it is always cherished in secret, and, 
 unless voluntarily divulged, cannot be penetrated by any 
 human power. But observation of the general course of 
 human conduct, as influenced by natural passions, frequently 
 furnishes the means of assigning motives to actions, with 
 more or less of accuracy according to the case, and with 
 sufficient certainty for the purposes of practical justice. A 
 certain course of conduct having been, in repeated instances, 
 observed to follow from the operation of a known motive, 
 it is a natural and reasonable process, where similar conduct 
 occurs anew for consideration, to assign to it the same or a 
 similar motive. Or rather, by a reversed process, (which 
 is the usual one,) where circumstances indicative of a mo 
 tive, and competent to have created it, are found to have 
 existed, the inference is, that the motive was actually ex- 
 cited, and being excited did actually influence and deter- 
 mine the mind in its action, (a) 
 
 A motive being always (as we have seen (&)) called into 
 existence by the influence or attraction of some external 
 object, whether a material substance, or a mere subject of 
 thought, can be effectively reached only by inquiring after 
 such objects, (c) And the course of inquiry differs, accord- 
 ing to the distinction just indicated. If the external object 
 be a material substance, capable of exciting the desire to 
 possess it, such as money, plate, jewelry, and the like, the 
 first inquiry is, whether such object has actually been pre- 
 sented to the mind through the sense, — whether the party 
 suspected of the theft, robbery or murder, has actually seen 
 the gold or the jewel which has been taken. Sometimes, 
 the object of cupidity is presented by mere accident, without 
 any previous knowledge of its existence, or any attempt to 
 get it within reach. The common case of a person, in- 
 
 (o) See 1 Stark. Eyid. 27—31. Id, 24, note. 
 
 (A) Ante,-p. 283. 
 
 (c) See 3 Benth. Jud. Evid. 184— 18G. 
 
CHAP. I.] MOTIVES TO CRIME. 301 
 
 advertently or ostentatiously showing the contents of his 
 purse or pocket-book, in the company of strangers, is a 
 familiar illustration of this fact. In other cases, the pay- 
 ment of money may have been accidentally witnessed by the 
 person whose cupidity is thereby called into action. In 
 other cases, again, the object of desire may have actually 
 been placed in his hands, by its owner. In the case of 
 Moses Drayne, who was tried for murder in 1663, (a) a 
 traveller stopped at an inn in Chelmsford, on his way to Lon- 
 don, and previously to his retiring for the night, delivered 
 his cloak-bag to the inn-keeper, telling him there was in it 
 near six hundred pounds, and writings of considerable value. 
 He was never seen alive afterwards, and reports were raised 
 that he had gone abroad. About eight years after, (the inn 
 having passed into other hands,) a skeleton was found buried 
 in the back-yard, with obvious marks of a violent death ; 
 which, on investigation of the circumstances, was satisfac- 
 torily proved to be the remains of the missing traveller. 
 The former landlord and his wife were arrested, but died 
 previous to the assizes. The ostlgr, who was accessory to 
 the muider, was afterwards tried and convicted. Here the 
 large sum, so suddenly brought within reach, was an object 
 confessedly adequate to excite the motive of unlawful gain, 
 and doubtless did actually excite and stimulate it to the 
 formation of the murderous design. There are other cases 
 in which a sight of the coveted object is obtained by means 
 expressly taken with that view. 
 
 If, then, it can be proved by direct evidence, that the 
 object of desire, under whatever circumstances, was actually 
 presented to the senses of the suspected or accused party, 
 the source of an adequate motive will be established in the 
 most satisfactory manner. Supposing, however, proof of 
 ihis character to be impracticable, the next inquiry will be, 
 
 (a) 5 London Legal Observer, 123 — 125. 
 
802 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 •was the position or situation of the suspected party such that 
 the object might have been presented to his view. If it 
 cannot be shown that the robber saw, or must have seen the 
 gold, was he where he might have seen it ? If proof be 
 made to this point, the same conclusion, as to the presence 
 of the object, will be reached by the indirect course of infer- 
 ence ; and it will be more or less conclusive, according to 
 the circumstances proved. If it can be shown that a person 
 was in the same room where a quantity of money lay openly 
 exposed, the probability being that he must have seen it, 
 such will be the inference drawn, although it may be rebutted 
 by circumstances shown in defence ; such as that his sight 
 was defective, or his presence momentary. 
 
 But however desirable such proof may be, it is by 
 no means essential that the material object itself should be 
 actually presented to the senses of the suspected person. 
 The mere belief that such an object does exist at a certain 
 place, or may be found in the possession of a certain indi- 
 vidual, whether derived from the party's own reasoning, or 
 from the actual information or report of others, will place 
 the idea in the mind, with a force capable of arousing the 
 motive as effectually as any exhibition to the sense. In 
 many instances, this belief amounts to actual knowledge ; 
 and here we discover the source of the motive which leads 
 to the robbery of banks, bankers, and other persons, known, 
 from the nature of their business, to be in the constant 
 receipt and possession of money. In other cases, it amounts 
 to expectation, of a greater or less degree of strength, accord- 
 ing to the case. An old woman, practising the art of a for- 
 . tune-teller, and living in a solitary spot, is reputed to be 
 possessed of certain articles of silver, and moftey. Such 
 mere report or information will present inducements to rob- 
 bery, and to murder as a means of accomplishing it. (a) A 
 
 (a) Rex V. Smith, Varnham and Timms, Stafford Spring Assizes, 181S; 
 Wills, Giro. Evid. 237, 
 
CHAP. I.] MOTIVES TO CRIME. 303 
 
 farmer, returning from a market or fair, is supposed, from 
 that single circumstance, to have money about him, and is 
 waylaid, shot and robbed on the road, (a) A pedlar is 
 assassinated on the highway, with a similar view. (6) In 
 short, we here discover the grand source of nearly all the 
 robberies, burglaries and thefts, which are committed, to- 
 gether with the murders perpetrated in aid or concealment 
 of them, — the expectation of immediate material gain. 
 
 Another leading source of motives to crime, especially of 
 those of the darker shades, is to be found in the peculiar 
 circumstances of individuals, and the relations (natural or 
 legal,) which they bear to each other. Supposing the rela- 
 tions existing between- two individuals to be such, that, on 
 the death of one, the other will immediately succeed by law 
 to his estate, or experience some considerable pecuniary 
 benefit ; — the lucrative event in prospect, capable as it is of 
 being accelerated by unlawful means, and constituting a 
 prominent object for contemplation, is, doubtless, competent, 
 under certain circumstances, of awakening the gainful motive 
 to murder, (c) Supposing, again, that a particular relation, 
 such. as marriage, has been contracted with the expectation 
 of realizing a considerable interest from the property of the 
 wife's father, and that this expectation has afterwards been 
 materially disappointed by the comparatively trifling amount 
 given to the wife by will, and even the acquisition of this 
 deferred to a future day ; — ^the circumstances present ele- 
 ments capable of exciting either the motive of resentment 
 or that of avarice, or possibly both in conjunction : the 
 former being subject to be aroused by the disappointment 
 sustained ; and the latter to be awakened by the considera- ' 
 tion that should the amount be realized through the wife, it 
 would not, in case she lived, compensate for the intermedi- 
 
 (o) Rex v. Bowl, WUls. Giro. Ev. 234. 
 
 (i) The People v. Wood, Greene (N. T ) Oyer & Terminer, November, 1853. 
 
 (c) Rex V. Donellan, Gumey's Report, 1781. 
 
304 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 ate burden of her maintenance, (o) So, where the result 
 of a contract is, that, in the event of the destruction of 
 certain property by fire, a certain sum of money is to be 
 paid by one of the parties to the other, the contemplation of 
 this event may serve to excite the motive to arson, especir 
 ally if the event have been made decidedly lucrative 'to the 
 insured, in consequence of his own fraudulent acts or repre- 
 sentations. (6) So, where the relations existing between 
 t^^^o persons show the existence of a feeling of animosity on 
 the part of one of them against the other, especially where 
 it has been exhibited in the outward conduct of the former, 
 and its effect manifested in the fears expressed by the latter, 
 on the score of his personal safety ; an adequate source of the 
 revengeful motive to crime will often be indicated with great 
 clearness, (c) And, in all these cases, considerable latitude 
 is allowed in presenting evidence with the view of showing 
 that the motive assigned did, in fact, exist, (d) 
 
 But, in tracing out a motive by the process just described, 
 another element besides an t)bject or a relation capable of 
 exciting it, is usually to be taken into view. The power of 
 such an object to awaken a criminal inclination or impulse, 
 depends obviously, not only upon the quality of the object 
 itself, but also upon the character of the mind to which it is 
 presented or addressed. This is exemplified by daily ob- 
 servation of human conduct. In some persons, the habitual 
 sight and handling of large sums of money excite no unlaw- 
 
 (a) The People v. Hendrickeon, Albany Oyer & Terminer, July, 1853. 
 S. C. on appeal, in the Court of Appeals, January and March Terms, 1854. 
 See the opinion of Parker, J. 1 Parker's Crim. Reports, 416, 422, 423. 
 
 (J) Fern's case, Surrey Assizes, 1803. 3 Benth. Jud. Evid. 188. 
 
 (c) The SMe v. Carawan, Pamphlet Report. 42, 46, Mrs. Spooner's 
 case, 2 Chandler's Am. Crim. Trials, 19—21. 
 
 {d) See the opinion of Parker, J. in the Court of Appeals, in the case of 
 Ilendrickson v. The People, 1 Parker's Crim. Reports, 416, 423. It was held 
 in this case, that the will of the fether of the deceased was properly admitted 
 in evidence, as bearing on the question of motive, and tending to show the 
 existence of the motive assigned. 
 
CHAP. I.] MOTITKS TO CRIME. 305 
 
 ful inclination whatever ; in others, the accidental view or 
 temporary possession of a trifling sum, begets an inordinate 
 desire, ending in a determination to appropriate it. In some, 
 the certain prospect of succeeding to a million, on the death 
 of another, awakens not even a wish that such death might 
 be unlawfully hastened ; in others, the mere expectation of 
 realizing an inconsiderable benefit in such an event, leads to 
 the formation of a settled purpose to accelerate it. In both 
 these descriptions of cases, the object presented is of pre- 
 cisely the same general character, and it is presented in the 
 same relative point of view ; yet, in the former, it utterly 
 fails to influence the mind even transiently, and as an ab- 
 stract idea ; in the latter, it takes full possession of it, and 
 impels it to immediate action. The cause of this marked 
 difference is the simple circumstance that, in the one descrip- 
 tion of cases, the mind is fortified against evil influences 
 and impressions, by the force of correct moral principles 
 and habits ; in the other, it has either been left without 
 such restraints, or has actually and voluntarily renounced 
 their control. All this is matter of familiar observation, in 
 the common affairs of life. 
 
 In judicial investigations of crime, the dependence of 
 motive upon moral character is recognized, and has often 
 been declared. On the trial of an important criminal case in 
 this state, (a) the presiding judge expressed himself, in his 
 charge to the jury, as follows. " It is claimed generally, 
 that the motive is inadequate ; that it is not sufficient to 
 induce to the commission of murder. But all this must 
 depend on the peculiar circumstances of each case, and the 
 
 (o) The People v. Green, before Parker, Circuit Judge, Kensselaer Oyer 
 & Terminer, July, 1845. Pamphlet Report, p. 46. S. C. 1 Parker's Crim. 
 EeportB, 11, 32. See also the opinion of the same judge in the Court of Ap- 
 peals, in the case of Hendrickson t. The People, March Term, 1854. 1 
 Parker's Crim. Rep. 416, 42.S. And see the observations of the Lord Advo- 
 cate, on the trial of James Siewtiri, 19 Howell's State Trials, 179. 
 
306 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 peculiar character of the accused. There is no motive 
 ■which, to the mind of an honest man, can be adequate to 
 the commission of crime ; and just in proportion as the 
 mind is debased and immoral, to that extent the motive 
 may be less which induces the criminal act. Hence there 
 can be no one rule for all cases, as regards adequacy of 
 motive. It must depend on the moral character of the per- 
 son accused, in each case. The worse it is, the less the 
 motive which will tempt to the commission of crime." (a) 
 
 In reference to the influence of the motive of gain, in 
 particular, the following remarks of an acute writer on evi- 
 dence may be here introduced. " In the natural course of 
 things, where there is any property, every child has some- 
 thing to gain by the death of a parent. But, upon the death 
 of a father, no one is ever led by any such consideration, to 
 look to an act of parricide, in the first instance, as the most 
 probable cause of the death." (ft) The reason of this is 
 that the natural relation existing between the parties fur- 
 nishes, of itself, a general presumption of character, which 
 repels, in advance, any such suspicion. But this presump- 
 tion may be so far met and overcome by express evidence of 
 character in particular cases, as not only to suggest the con- 
 sideration of the motive just adverted to, but to give it ma- 
 terial weight and prominence. In the case of an unprin- 
 cipled daughter, for instance, like Mary Blandy, there would 
 be no hesitation in assigning to evidence of such a motive, 
 its full share of influence in establishing a conclusion of guilt. 
 
 Hence it is always considered important to present the 
 moral character of an arraigned prisoner in a favorable 
 light before the court and jury, by evidence adduced ex- 
 pressly for the purpose, in order to disprove the existence 
 
 (n) The particular subject of the adequacy of motives will be more fully 
 considerod in the sequel. 
 
 (6) 3 Benth. Jud. Evid. 187, 188. 
 
CHAP. I.] MOTIYK TO CRIME. 307 
 
 of a criminal motive, or to rebut evidence of it. The 
 counteracting influence of character is also sometimes in- 
 ferred and insisted on, by way of argument, (where no evi- 
 dence is offered,) from the elevated social position or well- 
 known mental attainments of the party accused. More will 
 be said on this subject hereafter. 
 
 But with all the lights which outward and ascertainable 
 circumstances are competent to throw upon researches into 
 the motives to crime, there is frequently great difficulty 
 experienced in arriving at a conclusion as to the real motive 
 to the particular offence under investigation. This arises, 
 as already intimated, from the nature of the subject itself ; 
 the mental operations which it involves being wholly in- 
 accessible to actual inspection. The attending circumstan- 
 ces under which an object capable of exciting a motive is 
 presented for contemplation, and the peculiarities of mental 
 constitution itself, have, no doubt, in some cases, consider- 
 able influence in creating a motive to action, or in modifying 
 its operation. These qualifying influences are often so sub- 
 tile and remote, as to elude all observation. Hence it may 
 .happen that circumstances which apparently present power- 
 ful motives to action, may never, in fact, have operated as 
 such, (a) And, on the other hand, the real motive may 
 have grown out of circumstances apparently inadequate, 
 and so trifling as to have been quite overlooked in the in- 
 vestigation. 
 
 Difficulties of a similar kind may also be encountered in 
 cases which present what has been termed an election of 
 motives ; or, in other words, where an action is of such a 
 character, that it may be equally well accounted for by the 
 supposition of different motives, — the one being of a less 
 criminal complexion than the other. A wound, it has been 
 said, may have been. malignantly inflicted, either with the in- 
 
 (a) Wills, Ciro.Evid.39. 
 
808 PEECBDENT CIRCUMSTANCES. [PART 11. 
 
 tention of killing, or of doing some injury short of death, (a) 
 The question in these cases, however, is more properly one 
 of intent or design, than of motive in the strict sense of the 
 latter term. (&) But, adopting either signification, such a 
 question can properly arise only in cases where there is 
 equal probability of the one or the other supposition being 
 true. The mere possibility, that the act may have been the 
 result of a less criminal motive than the one which the ac- 
 companying circumstances reasonably indicate, would hardly 
 be sufficient to raise such a doubt as to give the accused the 
 final benefit of it. This would open the door to endless 
 conjectures, and convert the simple course of judicial investi- 
 gation into a labyrinth of metaphysical subtleties and idle 
 casuistry. In fact, it is upon this very ground of electing 
 the motive or intent, or repudiating the one imputed, that 
 criminals constantly entrench themselves, in the most reso- 
 lute and persistent denials of guilt. The commission of the 
 criminal act being placed by the evidence beyond a doubt, 
 the prisoner falls back upon his motives and intents. He 
 retires into that invisible region, — the precincts of his own 
 mind, — ^where he knows he cannot be efi'ectually pursued.. 
 He chooses to say what was his motive or intent in doing as 
 he did, or possibly he disclaims the existence of any motive. 
 True, it is proved that he fired a loaded pistol or carbine at 
 the head or body of the deceased, while in a defenceless 
 state, and killed him on the spot. But he chooses to say 
 that he intended only to frighten him, (c) of to inflict a 
 
 (a) Wills, Giro. Evid. 41. 
 
 (6) See ante, p. 283. Some of the illustrations which follow, refer, it will 
 be seen, rather to the intent, than the motive of the act inquired into. 
 
 (c) This was the excuse offered in the case of Major Strangwayes, in the 
 face of proof of bitter animosity, and actual threats against life; and al- 
 though the murderous weapon was loaded with; two bullets and a slug, and so 
 accurately aimed through a window partly shaded, that both the bullets struck 
 the deceased in the head and instantly killed him. Burke's Trials, conueoted 
 with the Upper Classes, 27. 
 
CHAP. I.] MOTIVES TO CRIME. 309 
 
 ■.light flesh -wound, by way of punishment, (a) And who, 
 '.16 may think, can positively show that he did not so intend. 
 Nay, he sometimes goes the length of repudiating any 
 criminal motive whatever ; insisting that there was every 
 inducement in the case to do the reverse of what he did. (&) 
 In the celebrated case of Mary Blandy, the prisoner had 
 caused the death of her father by a course of poison ad- 
 ministered by herself, at various times, and had witnessed, 
 without compunction, the alarming symptoms' and acute 
 sufferings produced by it. When arraigned for the murder, 
 her defence was that she did not intend to take her father's 
 life ; and in this defence she persisted at the place of execu- 
 tion, (c) 
 
 Judicial investigation is relieved from the subtleties in- 
 volved in these mere assumptions of possible motives and 
 intents, where acts are apparent, by that sound and most 
 salutary rule of law already referred to, and which the 
 safety of society requires should on all occasions be vigor- 
 ously upheld ; — ^namely, that every accountable human being 
 is presumed and bound to know the natural consequences of 
 his own voluntary acts. Where a man strikes at the head 
 of another with a weapon which, in its nature, must produce 
 death, and which accordingly does produce it, (the act not 
 being done from any urgency of self-preservation,) he will 
 not be permitted to say that he did not mean to kill, or that 
 he did not suppose that the blow would kill. Death, under 
 such circumstances, is the natural, (not to say, the inevitable) 
 consequence of the stroke ; and with knowledge of this fact 
 
 (a) See the trial of Earl Ferrers, A. D. 1760; 19 State Trials, 919. 
 
 (i) See tbe case of Rex\. JVicholson; Celebrated Trials, (Phil. 1835.) 467, 
 473, 474. See also the case of Tke People v. Hoare, New-York Oyer & Ter- 
 miner, November, 1853. 
 
 (c) This, too, was in the face of proof of expressions indicating the most 
 unnatural hatred of a parent whose affection for her, even while suffering from 
 the poison, amounted to weakness ; and of other expressions showing that his 
 death within a limited period was contemplated. See 18 State Trials, 1148, 
 1161, 1154, 1161. 
 
810 PKECEDENT CIECUMSXANCBS. [PART 11. 
 
 the law itself expressly charges the party, and will not allow 
 him to say what he did or did not suppose, in regard to the 
 result. Again, where a man kills another by firing at his 
 head with a gun known to be loaded with ball, or by ad- 
 ministering a known poison in sufficient quantity to produce 
 death ; he will not be tolerated in alleging that he did not 
 think the shot or the poison would kill ; or that he relied 
 upon some undefined possibility that the weapon might miss 
 fire, or tho natural and ordinary efi'ect of the poison be 
 repelled by the constitution of the deceased. This would 
 be allowing human life to be sported with, upon mere specu- 
 lation. Indeed, supposing that at the time when a person 
 administers poison to another, he actually does not know its 
 nature or operation, or administers it for some supposed 
 innocent purpose ; if its virulent effects are at once per- 
 ceptible in the alarming sickness and violent suffering which 
 it produces, such result being sufficient to put him on inquiry 
 as to the nature of the substance, the law will charge him with 
 requisite knowledge ; and, if he persists in administering it, 
 will hold him criminally responsible for the result. And, 
 even if the substance were sent by another person, (except 
 perhaps, in the single case of a medicinal prescription, hon- 
 estly intended,) if there were any thing in its appearance, 
 calculated to excite suspicion, such as its close resemblance, 
 in color, odor or other property, to any common known 
 poison, it would be his obvious duty to test its qualities 
 before administering it, or to administer it in quantities so 
 small as to obviate the hazard of fatal consequences. 
 
 Upon grounds of this kind, in addition to the more posi- 
 tive evidence of a criminal motive, the conviction in the 
 case of Mary Blandy may be thoroughly sustained and 
 justified. In that case, the poison, which proved to be 
 arsenic, had been sent to the prisoner by her lover, with the 
 assurance (as she stated,) that it was a harmless substance, 
 and that the effect of administering it would be to overcome 
 
CHAP. I.J MOTIVES TO CEIME. 311 
 
 her father's hostility to their union ; — ^in other words, that it 
 was intended as a mere love-powder, and that she believed 
 it to be such, and administered it with a corresponding view. 
 That she could have believed this tale, seems scarcely pos- 
 sible, considering the education she is said to have possessed. 
 But supposing the fact to have been as she asserted it, the 
 result of the first administration of the powder was sufficient 
 to have put any right-minded person, — to say nothing of a 
 daughter, — upon instant inquiry into its character. Instead 
 of this, she continued to administer it from time to time, its 
 effects becoming more and more obvious and virulent, until 
 death was the result. 
 
 Important light is often thrown on investigations of the 
 motives which may have led to a crime, or of the particular 
 intent with which the criminal act may have been commit- 
 ted, by the conduct of the accused himself on other occasions. 
 Thus, where, upon a charge of maliciously shooting, it was ques- 
 tionable whether the act had proceeded from accident or de- 
 sign ; the circumstance that the prisoner had intentionally shot 
 at the same person, about a quarter of an hour before, was 
 allowed to be shown in evidence, in order to establish the 
 motive, (a) So, upon the trial of a man for the murder of. 
 a woman, by administering to her prussic acid in porter, evi- 
 dence was admitted that the deceased had been taken ill, 
 several months before, after partaking of porter with the 
 prisoner : the court saying, that, although this was no direct 
 proof of an attempt to poison, the evidence nevertheless, 
 was admissible, because any thing tending to show an- 
 tipathy in the party accused against the deceased, was ad- 
 missible, (b) On the same principle, as has already been 
 observed, where a person has been charged with passing 
 counterfeit money, knowing it to be such, the circumstance 
 that the accused had, shortly before, passed or attempted to 
 
 (fl) Rex T. Voke, Buss. & R. Cr. Cas. 653, [531.] 
 
 (4) Regina v. Tawell, Aylesbury Spring .issizes.lSlo; Wills, Circ. Evid. 44. 
 
312 PRECEDENT CIRCUMSTANCES. [PAET II. 
 
 pass other counterfeit money, ■will be allowed to be shown in 
 evidence, in order to establish the requisite guilty knowledge 
 or intent, (a) 
 
 Supposing, however, that there are no difficulties in the 
 way of investigations of the kind just considered ; and that 
 there are particular circumstances, capable of being shown 
 in evidence, which appear to present a motive to the criminal 
 act charged, the next subject for consideration is the weight 
 and value which are to be attached to such evidence. 
 
 This will generally be found to depend upon the connec- 
 tion existing between these facts, and others of a criminative 
 character belonging to the same body of evidence. Taken 
 by themselves, they would be allowed no great weight, but, 
 as corroborative elements in a mass of circumstantial evi- 
 dence, they may be decisive. Looking, for instance, at the 
 motive of pecuniary gain, the mere fact that a person stands 
 in such a relation to another as that he would gain a mate- 
 rial advantage by his death, however clearly it may be 
 shown, is not in itself sufficient to charge him with having 
 been the cause of such death, where it ensues, and is found 
 to have been the result of unlawful means. (6) But, as 
 -tending to confirm the conclusions derived from other facts 
 of a criminative character, the existence of such a gainful 
 motive becomes of great importance. So, in a case where a 
 person has been charged, under circumstances of great sus- 
 picion, with having set fire to his own shop, warehouse, or 
 dwelling, the fact that he had, shortly before, insured it to 
 an amount greatly exceeding its value, is a material, if not 
 a decisive circumstance against him. (c) The importance of 
 evidence of character, in connection with that of motive, 
 has already been adverted to. 
 
 The existence of a motive has been considered by most 
 
 (ffl) See ante, p. 167. 
 
 ih) Best on Pres. § 33. 
 
 (c) Ferji's case, Surrey Assizes, 1803. 3 Benth. Jud. Evid. 188. 
 
CHAP. I.] MOTIVES TO CRIME. 313 
 
 writers oa circumstantial evidence, to be not so properly a 
 criminative circumstance, as one removing the improbability 
 of the individual's having done an act the effect of which 
 would be to subject him to punishment, (a) In other words, 
 its proper office is held to be, to create a counterpoise to the 
 inducement to abstain from crime, which is supposed to be 
 the general or natural effect of contemplating the penalty 
 annexed to its commission. (6) But this idea, however 
 correct in the abstract, does not affect the propriety of 
 regarding motives, as elements of judicial evidence, in a 
 strictly and positively criminative point of view. In one 
 sense, the effect of all judicial evidence is to counterpoise 
 and weigh down the anterior presumption of innocence, with 
 which the juror enters, and is required by law to enter, upon 
 the duty of investigation. But this does not affect the posi- 
 tively criminative character of the evidence itself. So, 
 motives may justly claim to rank at the head of positively 
 criminative circumstances. In them, the very sources of 
 crime are laid open to view ; and, in developing them by 
 evidence, the first step (in the natural order of inquiry,) 
 is taken in the process of criminating the party who is 
 arraigned for trial. Hence the pains constantly taken by 
 advocates for the prosecution, to present, in the first instance, 
 and as a part of the case to be proved, evidence from which 
 the jury may infer the existence and operation of a criminal 
 motive on the part of the prisoner. 
 
 What has thus far been said may suffice to show how a 
 ■ motive to a crime charged may be affirmatively made to ap- 
 pear from circumstances in evidence, with a view to crimin- 
 ate a particular individual accused of its commission. But 
 the subject cannot be dismissed without some reference to 
 the course which may be, and constantly is adopted, in the 
 
 (o) Id. 188, 184. Best on Pres. § 232. Wills, Giro. Evid. 40. 
 (6) The subject of conflicting motives, with their eveutual results, will be 
 considered on a subsequent page. 
 
314 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 way of defence, on behalf of the accused, founded on the 
 alleged nonexistence of any motive to the particular crime 
 charged, or the insufficiency of the particular motive as- 
 signed, to have led to it. The present section will therefore 
 be closed with a brief view of the course of defensive argu- 
 ment, so far as it is drawn from the sources just mentioned, 
 together with some notice of its soundness or sufficiency, and 
 the extent to which it serves to qualify the views which 
 have already been presented. 
 
 As the prosecutor, in the arrangement and presentation 
 of his evidence, endeavours to satisfy the tribunal that the 
 criminal act charged was actually committed by the prisoner, 
 by showing, among other circumstances, that there was a 
 motive for its commission ; so the advocate for the accused, 
 on his part, seeks not only to disprove the fact itself, but 
 also the existence of any motive as its cause. Indeed he 
 often addresses himself specially to the latter object, and, 
 through it, endeavours, virtually, if not in form, to accom- 
 plish the former ; the argument employed being, in sub- 
 stance, this, — that, as acts flow from motives as their 
 sources, and every act must have its motive, the non-exist- 
 ence of the motive involves that of the act itself; the rela- 
 tion relied upon being that of cause and effect. 
 
 To consider the course of defensive argument as to mo- 
 tive, more particularly, it will be found to assume various 
 shapes, according to the nature and degree of proof made 
 out on the part of the prosecution. If no evidence of a 
 motive to the crime charged have been affirmatively pre- 
 sented, this failure of proof is relied on for the accused : 
 and, in cases where the fact of guilt itself is, upon all the 
 circumstances, doubtful, it is usually relied on with success ; 
 the absence of all evidence of an inducing cause to guilt 
 always affording, in such cases, a strong presumption of 
 innocence. But if there be no room for doubt of guilt, upon 
 all the circumstances shown, (as where the evidence is of 
 
CHAP. I.] MOTIVES TO CRIME. 315 
 
 the certain kind,) it will avail nothing for the defence that 
 no motive appears, or has been affirmatively shown by the 
 evidence adduced. As the law will allow the inference of 
 intent from the quality of the act itself, where its commission 
 is manifest ; (a) so, from an intentional act satisfactorily 
 proved, it will allow the inference of a motive : intent 
 implying nothing more than a certain state of mind or will, 
 as motive implies a certain state of feeling or disposition, 
 anterior to the former and operating as its cause. Indeed, 
 in cases of this manifest description, the very existence of 
 the relation cf motive to act, as of cause to effect, upon which 
 the accused attempts to rely, becomes an argument against 
 him. For, admitting, as a general truth, that every act 
 must have its motive, it is an obviously necessary inference 
 (independently of any conclusions of law,) that the act proved 
 in the particular case did have its motive. It is enough, 
 therefore, to assume that the apparent act had a correspond- 
 ing motive. To go further, and single out the particular 
 motive which was the actual inducing cause, as it would be 
 manifestly impracticable, is never necessary. (6) 
 
 In cases of extraordinary atrocity, where the commission 
 of the crime has been clearly proved, the assumed absence 
 of any motive is sometimes relied on, in behalf of the pris- 
 oner, for the purpose of showing that he was not, at the 
 time, in the possession of his reason, and therefore not a 
 responsible agent. On this point, it has been well remarked 
 by the presiding judge, in charging the jury, in a recent 
 criminal case in this state, (c) that " if a case should arise 
 where it was absolutely certain that there was no motive 
 whatever for the commission of the crime, it would undoubt- 
 
 (a) See ante, p. 297. 
 
 (6) See the obserTations of Parker, Circuit Judge, in charging the jury 
 in the case of The People t. Green, Rensselaer Oyer & Terminer, July, 1845. 
 1 Parker's Crim. Reports, 32. 
 
 (c) Barculo, J. in The People v. Lake, Duchess Oyer & Terminer, Sep- 
 tember, 1853. 1 Parker's Crim. Eep. 539, 540. 
 
316 PRECEDENT CIRCUMSTANCES. [PART 11. 
 
 edly tend to show insanity, for insane persons are the only 
 ones that act mthout motives. But who can say there is no 
 motive ? "Who can fathom the mind of the accused, and 
 ascertain that there is no hidden desire of vengeance, no 
 envy or avaricious passion to be gratified ? " 
 
 The argument, indeed, is sometimes pressed to the length 
 of holding that there could have been no motive in the case ; 
 reliance being placed on the intrinsic improbability that any 
 human being, possessed of reason, could have been influenced 
 by any imaginable motive to commit the act. So far as an 
 argument of this kind is employed in aid of evidence intend- 
 ed to establish imbecility or unsoundness of mind, it may be 
 entitled to consideration. But, any further than this, it 
 seems to be a purely speculative attempt to sound the depths 
 of human depravity, and to assign arbitrary limits beyond 
 which desire and passion are to be held incapable of seducing 
 or impelling human nature. 
 
 Thus much as to the course of 'defence, where no particular 
 motive to the crime charged is made out, or in any way 
 indicated by affirmative evidence. Supposing, in the next 
 place, that the existence and possible influence of a motive 
 are shown, its intrinsic quality or impulsive power is next 
 assailed, and the argument relied on is, that the supposed or 
 assigned motive could not have been, in point of fact, ade- 
 quate to the inducement of the particular act. 
 
 This question of the adequacy or inadequacy oT motives 
 to the production of their assumed results, opens an extremely 
 wide field of inquiry ; co-extensive, indeed, with that of the 
 influence of external objects upon the emotions of the mind. 
 Speculation might here be indulged without limit ; but as 
 speculation would be foreign to the professed object of the 
 present work, the question just stated will be considered 
 only so far as it is capable of being illustrated and deter- 
 mined by facts derived from actual cases, and considerations 
 drawn from known rules of law. 
 
CHAP. I.] MOTIVES TO CBIME. 317 
 
 The first ground of the argument against the adequacy of 
 an assigned motive to have induced the commission of a 
 crime charged, is the supposed disproportion intrinsically 
 existing between them. So aggravated an offence, it is 
 urged, could not have been committed for so insignificant a 
 gain, or upon so trifling a provocation. But it has already 
 been shown (a) that in order to estimate with any correct- 
 ness, the inducing power of a motive to crime, or the want 
 of such power, the moral quality of the mind to which it is 
 addressed must always be taken into view. It is this quality 
 indeed, which gives operative power to the motive itself, and 
 often calls it into existence. " There is no motive," it has 
 been well said, (6) " which, to the mind of an honest man, 
 can be adequate to the commission of crime ; and just in 
 proportion as the mind is debased and immoral, to that 
 extent the motive may be less which induces the criminal 
 act. Hence there can be no one rule for all cases, as 
 regards adequacy of motive. It must depend on the moral 
 character of the person accused, in each case." In a very 
 recent criminal case in this state, the presiding judge re- 
 marked as follows, (c) " There is no rule of law which 
 determines what is an adequate motive, even where it is 
 necessary to show one. One man will kill another to obtain 
 a thousand dollars ; another may do the same for a tenth, or 
 even a hundredth part of that sum. In each case, it is ade- 
 quate, in One sense, for the mind on which it operates. But 
 in truth, and in another sense, no amount is fairly adequate 
 to induce a reasonable man to take the life of another ; 
 nothing will induce a reasonable man to commit murder." 
 
 But, turning from argument to facts, the evidence recorded 
 
 (a) Ante, p. 305. 
 
 (i) Parker, Circuit Judge, to the jury, in The People t. Green, Rensse- 
 laer Oyer & Terminer, July, 1845. 1 Parker's Crim. Reports, 32. 
 
 (c) Barculo, J. to the jury, in TTie People v. Lake, Duchess Oyer & Ter- 
 miner, September, 1853. 1 Parker's Crim. Kep. 540. 
 
818 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 in numerous actual trials serves incontestibly to show by 
 how trifling and apparently wholly Inadequate motives or 
 causes, men have been led to the commission of the most 
 appalling crimes. The mere expectation of obtaining a few 
 pounds for a dead human body, as an anatomical subject, was 
 sufficient to induce Burke and his associates to murder no 
 less than sixteen persons. A few words of reprimand led 
 Courvoisier to cut his master's throat, as he lay asleep in his 
 bed. In regard to the motives of hatred and revenge, in 
 particular, the following observations of the Lord Advocate 
 on the trial of James Stewart, in 1752, are very appropri- 
 ate, (a) " Nothing is more certain than that violent of- 
 fence may be taken, where no just or even plausible cause 
 for it hath been given : and, from the first murder recorded 
 in sacred history, down to this now in question, often hath 
 it happened that wicked men have hated their brothers 
 without a cause, that is, without a reasonable or just cause ; 
 although there was always an occasion or a motive, such as 
 it was, for that hatred being conceived." 
 
 Another ground of the argument against the adequacy of 
 assigned motives, in particular cases, consists in what may 
 be called the antagonism or conflict of motives, or the 
 assumed existence of restraining motives operating in an 
 opposite direction. The principal sources of these are 
 three ; — the penalties imposed by the law upon crime ; the 
 force of the natural affections ; and the influence of 'the pecu- 
 liar character and circumstances of individuals. 
 
 The penalties which the law, for the protection of society, 
 imposes upon crime (and which have been called its " tute- 
 lary sanctions," (&)) are intended, by the loss and suffering 
 which they hold out as its consequences, to deter men from 
 its commission. These penalties operate, in the most accu- 
 
 (ffi) 19 Howell's State Trials, 179. 
 (A) 8 Benth. Jud. Evid. 184. 
 
CHAP. I.] MOTIVES TO CRIME. 319 
 
 rate sense, as motives to restrain (a) the mass of mankind, 
 who are inaccessible to higher considerations, from giving 
 the reins to criminal desire. The influence of these restrain- 
 ing motives is, by the form of argument in question, set off 
 against that of the motives which seduce or impel, and the 
 effect claimed is either wholly to neutralize and destroy it, 
 or to reduce the resulting influence to that point where its 
 inadequacy becomes apparent. 
 
 Of this argument, no less than of the preceding, it may 
 he said, that it is encountered by actual facts ; with this 
 difference, that such facts are of daily occurrence. Not- 
 withstanding the severity of the penalties provided by law, 
 it is notorious that the commission of crime continues to go 
 on. The restraint contemplated is not effectual to the extent 
 intended and desired. A majority, perhaps, of what may 
 be termed the criminally disposed portion of the community 
 are kept in check by the effect of fear, or the natural desire 
 of avoiding threatened loss or suffering. But a number, 
 sufficiently large to give full employment to criminal tribu- 
 nals, are still found, to whom the restraints of law interpose 
 no effectual barrier to the gi-atification of criminal desire. 
 In the minds of such persons, especially those who act from 
 habit rather than impulse, there is doubtless, a frequent 
 balancing of the two classes of motives against each other, — 
 those which deter against those which induce ; the loss 
 threatened against the gain promised ; — and if these were 
 the only influences regarded, the preponderance probably 
 would oftener lie on the side of restraint and consequent 
 inaction. But, unfortunately for society, this otherwise 
 probable result is, in fact, constantly weakened and over- 
 thrown by the presentation of a third class of motives, — 
 those, namely, which involve the chances of escape or immu- 
 nity from punishment. It will be sufficient to enumerate the 
 
 (o) Hence they have been called by Mr. Sentham, " tutelary motives." 
 8 Benth. Jud. Evid. 185. 
 
320 PRECEDENT CIRCUMSTANCES. [PART 11. 
 
 sources of these last mentioned motiTes, as they lie along 
 the whole course of criminal justice, to show what a force 
 they are capable of exerting in aid of the criminal inclina- 
 tions by which men are so often swayed. 
 
 There is, first, the possibility of avoiding the discovery 
 of the crime altogether, by the destruction, either of the 
 subject itself, or of the evidence necessary to present it for 
 the action of the law. Next, in the event of discovery, is 
 the possibility or chance of escape from the pursuit of justice. 
 Next, supposing apprehension to take place, is the possibility 
 that the proof presented may fail to support the accusation. 
 Next, supposing the charge affirmatively proved, is the pos- 
 sibility of rebutting it by counter-evidence. The next 
 chance, supposing no effectual defence made out, is, in the 
 discretion or possible sympathies of the jury, or the exercise 
 of judicial mercy. And, last of all, is the possibility, ex- 
 pectation, or hope of escaping the extremity of punishment, 
 through the interposition of executive clemency, (a) 
 
 But the influence of the class of motives, last named, and 
 which may, in many instances, be regarded as the final or 
 determining impulses to action, is to be discovered chiefly in 
 those cases where self-interest is the great ruling motive of 
 conduct, and in those minds which are less resolved and 
 unyielding in their criminal purposes. The overwhelming 
 power of the revengeful impulse, where it has obtained full 
 mastery of the mind, has already been adverted to. In 
 these cases, the chances of escape from threatened punish- 
 ment, are rarely so much as transiently regarded, much 
 less, accurately weighed. Even the apparent certainty of 
 encountering therfuU penalty which the restraining motive,, 
 
 (a) It has already been remarked, that the possibility and even probability 
 of encountering great bodily harm and even death itself, in the commission of 
 a criminal act, often prove insufficient to counterbalance the force and urgency 
 of the gainful motive, where the mind has become strongly impressed by it. 
 The criminal, in these cases, ddiberately takes the risk. 
 
CHAP. I.] MOTIVES TO CRIME. 321 
 
 in itself considered, presents, fails often to afi'ect the purpose 
 which has been formed. There may be, at times, a balanc- 
 ing between the foi'ce which urges on, and that which holds 
 back ; and, at such moments, as the criminal will often after- 
 wards confess, the resolution may be actually shaken. But, 
 in the extreme cases now in view, these states of possible 
 indecision have long been surmounted and passed, and the 
 mind has finally settled down into the fearful determination 
 to consummate its purpose, at whatever cost. All regard 
 for self is thenceforth voluntarily abandoned, life and all its 
 intorosts deliberately sacrificed, and even the hopes of an 
 hereafter renounced without remorse. Thus, the restraining 
 motives of interest are seen to fail in their intended effect, 
 even where they may have been once actually regarded and 
 entertained. Where the revengeful impulse is of the sudden 
 kind, and sweeps the mind passively onward, they are con- 
 fessedly powerless to the last degree ; not being, even for 
 an instant, present to the thought. 
 
 Another class of restraining motives, for which a con- 
 trolling influence is often claimed in behalf of parties ac- 
 cused of crime, and particularly of murder, consists of 
 those which arise from the influence of the natural affections. 
 The peculiar personal relations existing between parties, 
 especially the domestic relations of husband and wife, and- 
 parent and child, and those existing between brothers and 
 sisters, are frequently relied on, in argument, as constituting 
 restraining motives of the very strongest kind ; and some- 
 times, indeed, as forbidding even the supposition that the 
 crime charged could have been committed. In the abstract, 
 and in a general point of view, the power of the natural 
 affections may well be relied on, to almost any conceivable 
 e;xtent. It is a natural presumption, and, indeed, a pre 
 sumption of law, that these affections are the consequences 
 and attendants of the relations in question ; that men are 
 influenced by them, and that they act according to their 
 
322 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 dictates, and not in violation of them, (a) But it is never- 
 theless true, that, in particular cases, too numerous, un- 
 happily, for the credit of humanity, these affections have 
 been found to interpose no sort of bar to the gratification of 
 either the gainful or revengeful impulse to murder ; or, to 
 speak with more precision, that the affections presumed from 
 the relations of the parties have not, in fact, existed. Cases 
 of parricide, of fratricide, of the murder of children by 
 their parents, of husbands by their wives, and of wives by 
 their husbands, have continually stained the pages of crimi- 
 nal records down to the present day. (6) One case of pre- 
 eminent atrocity may be particularized ; where the criminal, 
 in order to remove all obstacles to her union with a person 
 for whom she had conceived a passion, poisoned, success- 
 ively, her husband, father, mother, brother, and three young 
 children ; and on the refusal of such person to marry her, 
 poisoned him also, (c) 
 
 The restraining motives hitherto taken into view, have 
 been either of the grosser description, which speak directly 
 to the sense of fear, and are applicable to the mass of minds 
 
 (a) Domat's Civil Law, book 3, tit. 6, sect. 4, art. 7. See the opinion of 
 Harris, J. in the cose of Hendrickson v. Tlie People, 1 Parker's Crim. Re- 
 ports, 406, 415. 
 
 (A) The following statistics of crime committed during a single year (1854) 
 in the United States, has been given in a New-York paper : — 
 
 Wives killed by their husbands 36 
 
 Husbands by their wives ....... 6 
 
 Children by their parents 21 
 
 Parents by their children 3 
 
 Brothers by brothers 6 
 
 [New York Herald, Jan. 10, 1855. 
 (c) Case of Gesche Margarethe Gottfried, at Bremen, 1828. 4 Lond. 
 Legal Observer, 89, 101. In the late case of The People v. Lake, (1 
 Parker's Crim. Rep. 539,) Barculo, J. in charging the jury, mentioned the 
 case of a man tried before him in Brooklyn, (N. Y.) who stabbed, at the same 
 time, his wife, mother, and sister, killing the two former on the spot. The 
 argument that insariity is to be presumed in such cases, is well treated by the 
 learned judge last named. Id. 588, 539. 
 
CHAP. I.] MOTIVES TO CRIME. 323 
 
 criminally disposed ; or such as are derived from the influ- 
 ence of moral affections common to men under all circum- 
 stances. The last class of these motives which remains to 
 be considered, includes those which are supposed to have 
 their sources in peculiarities of individual character, or in 
 those circumstances which distinguish one man or class of 
 men from another. Among these, moral character, mental 
 endowments, and social position are pre-eminent. 
 
 By moral character is here meant the possession, habitual 
 practice and outward exhibition of those principles and that 
 disposition which, united, serve most effectually to guard the 
 mind influenced by them, from the seductions of the gainful 
 motive to crime, on the one hand, and the impulses of the 
 passionate or revengeful motive, on the other. Sometimes, 
 these qualities are relied on singly, as showing the existence 
 of a restraining motive of sufficient power to overcome the 
 force of that assumed to be the peculiar inducement to the 
 particular crime charged. Thus, on a charge of theft, a 
 known character of unimpeached honesty; on a charge of 
 riotous assault, a fcnown disposition of uniform gentie7iess, 
 severally serve to raise the suppositions of improbability 
 most appropriate to the defence in each case. But the 
 union of both is requisite to present that completeness of 
 moral constitution, which serves to give to the argument 
 derived from character its fullest possible force, and to adapt 
 it to accusations of all descriptions, including the most 
 heinous. On a charge of murder, disposition (which may, 
 for this purpose, be allowed to include physical temperament,) 
 may be made to operate strongly in aid of principle, as 
 showing the improbability that the accused could have jdelded 
 to the influence of the motive imputed to him. 
 
 Mental endowments and attainments constitute another 
 source of those peculiar motives which are claimed to ex- 
 ercise over the subject of them, an influence more than ordi- 
 narily adequate to restrain from the commission of crime : 
 
824 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 and, so far, competent to show the probable inadequacy of 
 the opposite or impelling motive assigned. Of these it may 
 ioe said, that, apart from all reference to moral qualities, 
 they would hardly serve to guard the mind, on all occasions, 
 from evil seductions and impulses, especially as they have 
 been, not infrequently, found to exist in combination with 
 utter destitution of moral principle. But, with this qualiii- 
 cation, there is much, in the intrinsically elevating and 
 ennobling tendencies of mental culture, to entitle it to pecu- 
 liar consideration, as a source and means of defence against 
 the influences which lead to crime. Especially is this the 
 case, where the degree of culture attained considerably 
 exceeds the ordinary standard. Refinement of tastes serves 
 to place the mind, at once, above the influence of those 
 sordid impulses which are involved in the gainful motive. 
 Discipline of faculties enables it to cope, most successfully, 
 with the stimulating power of passion ; while mere extent 
 of knowledge continually presents a host of reasons why the 
 practice of virtue should be the constant aim of life. Be- 
 sides, it is well known that ignorance sometimes lays perilous 
 snares for innocence, which intelligence effectually avoids. 
 In fine, the outward associations to which mental culture 
 naturally leads, — the society of the wise, the good and the 
 learned, into which it always procures admission for its pos- 
 sessor, and the varied connections growing out of it on 
 every side, — serve to give double force to the restraining 
 influences which have been enumerated. 
 
 Lastly, station or position in society presents another and 
 very obvious source of restraining motives, growing out of 
 peculiar circumstances. The influence of this circumstance 
 has been supposed to be derived chiefly from the opulence 
 which is considered to be habitually associated with it, and 
 which places its possessor above the temptations to ' that 
 class of crimes, which are prompted by the desire of unlaw- 
 ful gain, especially where the object of the supposed desire 
 
CHAP. I.] MOTIVES TO CRIME. 325 
 
 is of inconsiderable yalue. (a) But this, certainly, is taking 
 the narrowest possible view of such influence. It would, at 
 least, be equally accurate to resolve it into a sentiment of 
 aversion to any act involving, as its legal consequences, 
 obvious dishonor and disgrace. In this, indeed, seems to 
 reside its essential power, considered apart from other cir- 
 cumstances. 
 
 Where social or professional position is combined with 
 corresponding moral and mental qualifications, its range of 
 influence is proportionately enlarged ; and, where the degrees 
 of excellence are high, they undoubtedly present a combina- 
 tion of circumstances which may well be regarded as incom- 
 patible with the supposition of unlawful indulgence of any 
 kind. 
 
 Such are the sources of those motives which, by the form 
 of defensive argument last noticed, are claimed to exert, or 
 to be capable of exerting a peculiar counteractive influence, 
 in resisting the force of the impelling or seducing motives 
 to crime ; and, so far, rendering them presumably inadequate 
 to the production of their more ordinary effects ; thus, on 
 the whole, serving to demonstrate the improbability of the 
 supposition of guilt or delinquency in the particular indi- 
 vidual accused. But however strong the argument in this 
 form may, in the abstract, be, it is always subject to the same 
 practical consideration which has been applied to the other 
 forms, already noticed ; namely, that restraining motives of 
 •the class in question, and of almost the highest supposable 
 degree of power, have, in point of fact, proved wholly in- 
 adequate to resist the allurements of unlawful desire, or the 
 cogency of malignant passion. The records of the criminal 
 
 (tt) Evidence of station has been considered by Mr. Bentham to be peculi- 
 arly adapted to render improbable charges of petty theft. " In any of the 
 civilized nations of Europe," he asks, " what evidence wpuld be sufficient to 
 convict a prince of the blood, or a minister of state, of having picked a man's 
 pocket of a dirty handkerchief, in a street, or in going into a play-house ? " 3 
 Jud. Evid. 210. 
 
326 PRECEDENT CIRCITMSTANCES. [PART II. 
 
 courts of all nations present melancholy examples, in which 
 high social and professional position, great mental attain- 
 ments, and even apparently pure moral character, have ut- 
 terly failed as safeguards against the most revolting crimes. 
 How frequently persons of station have abandoned them- 
 selves to murderous impulses, is shown by such cases as 
 those of the poisoners of Sir Thomas Overbury, (a) Earl 
 Ferrers, (Jy) Major Strangwayes, (c) Captain Goodere, (d) 
 and others, in England ; and by some appalling examples of 
 recent date, in the United States. That the same circum- 
 stance has not availed to deter from the commission of gain- 
 ful crimes of a high grade, is proved by such cases as that 
 of Dr. Dodd, an English clergyman of high standing, who 
 was convicted of forgery in 1777, and underwent the extreme 
 penalty of the law. (e) The failure of mental attainments 
 to hold successfully in check the murderous propensity, is 
 signally instanced in the celebrated case of Eugene Aram. 
 But the worst is yet to be stated ; — the insufficiency, namely, 
 of even seemingly high moral and religious character, to 
 subdue unlawful inclination, in some of its most odious forms. 
 Instances are not wanting, where individuals, outwardly 
 belonging, and (at least outwardly) doing credit to that 
 
 (a) 2 Howell'3 State Trials, 911, ei seq. 
 (A) 19 Id. 885. 
 
 (c) 5 London Legal Observer, 90. 
 
 (d) 17 State Trials, 1003. 
 
 (c) Burke's Celebrated Trials, connected with the Aristocracy, 369. A 
 Tery painful case of crime recently committed in England, by a clergyman 
 and author, may be here mentioned. Dr. John Allen Giles, curate of Bramp- 
 ton, was tried before Lord Campbell, at Oxford Assizes, on the 6th March, 
 1855, for feloniously making a false entry of marriage in his parish registry. 
 The accused was of great scholastic abilities, having been a double first-class man 
 at Oxford, at the age of nineteen, and afterwards head-master of the city of 
 London School. He was the author of many works, his labors having resulted 
 in the publication of as many as one hundred and twenty volumes, and he had 
 a high character given him by clergymen and publishers. But the case being 
 clearly made out against him, he was convicted and sentenced to a year's im- 
 prisonment. English paper, quoted by the New York Albion, April 7th, 1865i 
 
CHAP. I.] MOTIVES TO CRIME. 327 
 
 sacred profession, the whole aim and tendency of whose 
 principles and duties are to purify the heart and life, and to 
 wage an incessant warfare with the slightest promptings of 
 einful desire, have not only yielded to the impulses of the 
 most malignant passions, but have actually run a course of 
 crime not often paralleled. The assassination of Miss Reay 
 by the Rev. Mr. Hackman, in 1779, (a) and the shocking 
 career of the German priest Riembauer, (6) occur as promi- 
 nent examples among others. Happily for the cause of 
 virtue, the character, in most of these cases, was apparent 
 and assumed, rather than real and vital ; the life belied 
 the profession ; .the source of guilt was not.in the principles, 
 but in the traitorous abandonment of them. For, of all the 
 sources of restraining motives, ordinary or peculiar, which 
 have been mentioned, none can compare, in fullness and 
 certainty of effect, with those derived from correct moral 
 principles, heartily embraced, and unswervingly adhered to. 
 What has just been said will serve to show how far the 
 influence of a criminal motive may be considered to depend 
 upon the peculiar character, (moral or intellectual) of the 
 person subjected to it. Indeed, in order to estimate with 
 correctness, the force of a motive in some instances, even 
 the habils and tastes of the individual should be taken into 
 view. The following may be given as an example, A 
 person of wealth and standing is accused of having com- 
 mitted a theft of an article apparently (and perhaps, in the 
 opinion of most persons, really,) of very trifling value. In 
 defence, the gross inadequacy of the assigned motive is set 
 up and relied on. Supposing the charge satisfactorily 
 proved, the mind is still at a loss to conceive in what the 
 peculiar force of the gainful motive could, in this instance, 
 have resided. But the moment the fact comes to be known, 
 
 (fl) Burke's Trials connected with the Aristocracy, 393. 
 (6) 3 London Legal Observer, 242, 277. See also the recent case of the 
 Rev. G. W. Carawan, in North Carolina. 
 
328 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 that the delinquent was a virtuoso, a collector, an antiqua- 
 rian, — actuated by all the ardor peculiar to that description 
 of persons, — and that the article taken was one which com- 
 mended itself to his peculiar tastes ; the nature of the 
 mental action is at once appreciated, and the adequacy of 
 the motive becomes evident, (a) 
 
 On the whole, it may be observed respecting the argument 
 against the influence of an assigned motive, from its appa- • 
 rent inadequacy, that it becomes most appropriate and 
 effective in cases where, upon all the circumstances shown in 
 evidence, the ultimate fact of guilt remains a matter of 
 doubt. The character and circumstances, of the accused 
 frequently serve to strengthen, in a most material degree, 
 that general presumption of innocence which the law itself 
 always raises and upholds in his favor, until that stage of 
 investigation when proof is said to be complete ; and, to 
 overcome it, a proportionately greater amount and cogency 
 of evidence are always necessary. But where the evidence 
 is full, and the fact of guilt manifest beyond a reasonable 
 doubt, it is certain that neither character, nor station, nor 
 any other similar circumstance, can be allowed to alter or 
 affect the conclusion. (&) 
 
 (a) See the illustration given by Mr. Bentham, in his peculiar manner, 3 
 Jud. Evid. 189. The tendency of certain mental pursuits, when indulged in 
 to excess, to cloud the moral perceptions, was shown in the recent case of Dr. 
 Oilee, mentioned in a preceding note. The accused urged before the court, in 
 extenuation of his offence, that his devotion to his studies had rendered him 
 unfit for the common affairs of life ; to which circumstance he attributed the 
 errors he had committed in connection with the transaction in question. 
 
 (6) See the remarks of the Recorder of Bristol, in charging the jury, on 
 the trial of Samuel Goodere and others; 17 State Trials, 1078. See also the 
 remarks of Parker, Circuit Judge, to the jury, in The People v. Green ; 
 Pamphlet Report, 47. The value of character evidence will be further con 
 sidered hereafter. 
 
CHAP. I.] MEANS OP CRIME. 329 
 
 SECTION V. 
 
 Means of committing crime, as a subject of contemplation 
 in connection with motives. 
 
 The natural effect of a criminal motive, once excited in 
 tte mind, and voluntarily and complacently entertained, is 
 the formation of a purpose of corresponding character ; that 
 is, a determination to adopt such a course of conduct as 
 shall realize, in fact, the gratification of the passion or 
 desire in which the motive consists. But this formation of 
 a criminal purpose is always subject to the consideration 
 that it is possible to be carried into effect. Willingness to 
 do the act, if possible, expresses the state of the mind, at 
 thi£ stage of unlawful affection and influence. If it appear 
 wholly impracticable, the incipient purpose is either at once 
 abandoned, or deferred to some future occasion ; and, sup- 
 posing the influence of the mere motive to continue, the 
 mind contents itself with simply cherishing the unlawful 
 emotion, which thus frequently settles into what may be 
 called habitual disposition. If, oh the other hand, the object 
 seem reasonably possible or attainable, the next inquiry is 
 addressed to the particular means and facilities within reach, 
 which can be made instrumental for its accomplishment. 
 Hence, next to motives to crime, the subject of means 
 properly occurs for consideration. The close connection 
 between the two subjects is obvious. Indeed, means have, 
 by some writers, been actually classed under the head of 
 motives. " The belief,'' observes Mr. Bentham, " of the 
 existence of whatever means are regarded as necessary to 
 the production of the effect in question, being a condition 
 precedent to the endeavour ; means may in this case be 
 considered as coming under the denomination of motives; 
 
830 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 power being as necessary an article as desire, in the assem- 
 blage of productive causes." (a) Means, it is true, partake 
 of the character of motives, so far as inducing power is 
 concerned ; but they differ in the essential particular of 
 being addressed to the reasoning- faculties, and have no 
 quality of mere emotion, which is of the essence of motives. 
 The ascertainment of the existence of adequate means, 
 involves processes of investigation and calculation more or 
 less distinctly exercised ; and it is by the coolness and de- 
 liberation of these processes, that the impetuosity of a 
 motive is often held in check, and sometimes finally extin- 
 guished. Once ascertained to exist, however, they become 
 powerful auxiliaries to motives. By holding out the pros- 
 pect of actual gratification, they wonderfully increase their 
 seductiveness and force ; and hence they may, with pro- 
 priety, be enumerated in the general mass of inducing con- 
 siderations, which determine the mind in its subsequent steps 
 of willing and resolving which are the elements of purpose. 
 
 Sometimes, pains are taken to ascertain the existence and 
 nature of means, by actual previous inquiry or examination. 
 Sometimes, the conclusion as to means is made up from 
 previous knowledge, or from 'a general estimate of proba- 
 bilities. And sometimes, the purpose is matured without 
 any reference to means, other than as possible contingencies, 
 to be taken advantage of, as they may occur. 
 
 The subject of means is closely connected with those of 
 preparations, opportunities and facilities for the commission 
 of crime, as will appear under those respective heads. 
 
 (a) 3 Jud. Evid. 189. 
 
CHAP. I.] VERBAL INTIMATIONS. 331 
 
 SECTION YI. 
 Verbal intimations of future criminal action. 
 
 Motives, with the means that serve to shape and stimu- 
 late them, as they have just been considered, constitute the 
 essential sources of criminal action ; and may be regarded 
 as the first link in the chain of precedent circumstances 
 which connect a crime with its perpetrator. They form 
 the basis upon which mental action, as regulated by will, 
 assumes that precise and determinate character which is 
 best described by the word " purpose." (a) 
 
 In the natural course of crime, a purpose contemplated 
 in the light of the means supposed to be adapted to its ac- 
 complishment, soon becomes, if persisted in, matured and 
 developed into a definite plan of conduct, embracing all the 
 particulars requisite to the attainment of the ultimate end in 
 view ; and it is in this sense of plan or systematic contri- 
 vance, that the word " design " seems to have its most 
 appropriate application. (&) Up to this point, the criminal 
 action is exclusively mental or internal. But, in order to 
 carry the purpose and plan into efi^ect, external or corporal 
 action next becomes necessary. The means supposed to be 
 available are to be actually sought after, brought within 
 reach, examined to test their efficacy, arranged in suitable 
 combinations, and finally used as immediate physical or 
 mechanical instruments of the intended offence. In other 
 words, the requisite preparations are to be made ; and these 
 preparations, taken in the broadest import of the term, may 
 be considered as constituting the next general division of 
 those circumstances which are precedent to the commission 
 of crime. 
 
 (a) See ante, p. 284. 
 (b> See ibid. 
 
332 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 These proceedings may be, and sometimes are,, conducted 
 througliout with all that secrecy which has been elsewhere 
 remarked as almost a peculiar characteristic of crime. The 
 most skilfully contrived and deeply laid plans of evil are 
 usually of this description. The motive, purpose and plan, 
 are studiously kept within the mind where they originar 
 ted ; the preparations are carried on under an impenetrable 
 veil ; and no intimation of the intended act is given until 
 the blow is finally struck. But it sometimes happens that 
 indications, more or less distinct, of the act in contempla- 
 tion, (carefully presented, however, in the general character 
 of an event,") are suffered to escape to the world without, 
 and thus become the subjects of precedent circumstantial 
 evidence. These it is now proposed to consider. 
 
 The indications just mentioned, it may be observed, are 
 almost exclusively confined to the higher degrees of crime, 
 such as murder and arson ; and they consist of verbal ex- 
 pressions referring, with more or less directness, to the indi- 
 vidual whose injury is contemplated, and the event that is 
 to befall him. In these expressions, slight as they may 
 appear, the criminal takes a very material step forward in 
 his career ; — material, both as to its consummation by him- 
 self, and its future detection and punishment by the law. 
 Speech may be said, in this respect, to occupy the middle 
 ground between thought and action, connecting both ; 
 giving outward shape to the former, and throwing important 
 light upon the latter. The maxim. Index animi sermo, (a) 
 here literally applies. So long as the criminal confines him- 
 self to thought, and conceals his motive, purpose and plan 
 within his own breast, he leaves nothing for evidence, in any 
 direct form, to attach itself upon. His motives, as has been 
 shown, can be reached only indirectly, through the medium 
 of inferences, and by a process of probable reasoning. But 
 when he ventures to speak, he steps out at once from the 
 
 la) Broom's Maxims, 268. 
 
CHAP. I.] VERBAL INTIMATIONS. 333 
 
 obscurity in which he had been concealed, and whatever 
 disguises he may employ, presents himself directly and 
 effectually, as a subject of notice and of evidence. 
 
 The verbal expressions under consideration are found to 
 assume different shapes, according as they are the offspring 
 of cold-blooded craft, or more violent and hasty malignity. 
 In the former case, they are sometimes managed with great 
 art ; they are thrown out voluntarily and purposely, it is 
 true, but in so obscure and intangible a form, as to amount to 
 nothing more than mere general intimations. They are, in 
 fact, parts of a system of preparation, but of the most pre- 
 liminary kind ; intended to explore the way for more direct 
 action in future. The criminal ventures no farther than to 
 hint at or obscurely allude to the act he has in contempla- 
 tion. He proceeds warily, throwing out feelers, as it were, 
 in advance, partly to sound the temper of those among 
 whom he trusts himself ; and partly, to give an air of proba- 
 bility to the approaching event, and yet to disconnect him- 
 self from all apparent agency in producing it. Thus, a man, 
 meditating the murder of his wife, was heard to say, — " my 
 wife is a queer body ; I should not be at all surprised if she 
 were to take herself off, some fine morning." (a) Here, 
 even the event itself is not directly mentioned ; departure 
 or disappearance is all that is spoken of ; and even that 
 attributed to a cause which, to a stranger, might appear 
 abundantly sufficient to account for it, — oddness or peculi- 
 arity of habits or character. In other cases, the intimations 
 are given out in the form of reports, bearing indirectly upon 
 the object in view, and intended to prepare the minds of 
 friends and neighbors for the event. Thus, in a case where 
 the death of a young man of fortune was resolved on, reports 
 were put in circulation, that his health was rendered despe- 
 rate by his own imprudence, which was daily accumu- 
 
 (a) Best on Pres. § 233. 
 
834 PBECEDENT CIRCCTMSTANCES. [PAET 11. 
 
 lating causes upon causes to accelerate his end. (a) Here 
 the fact of death was distinctly, although indirectly, inti- 
 mated ; and to give it greater probability, it was attributed 
 to a cause which, if true, would be recognized by most per- 
 sons as, in the natural course of things, a sufficient one. In 
 other cases, again, the approaching fate of the intended 
 victim is mentioned in express terms, but placed on a ground 
 professedly intended to repel the idea of any human agency, — 
 to wit, supernatural indications. In one case, where mur- 
 der by poisoning was contemplated, it was declared that 
 omens of a peculiar kind had been observed ; music had 
 been heard in the house, which, it was said, presaged the 
 party's death within a twelve-month. (6) In another case, 
 where three murders were in contemplation, the criminal 
 told the mother of one of the victims, that she had had her 
 fortune read ; and that, within six weeks, three funerals 
 would go from her door, namely, that of her husband, her 
 son, and the child of the person whom she was then address- 
 ing, (c) 
 
 Care is generally taken, in uttering these intimations, to 
 adapt them to the ideas and intelligence of those to whom 
 they are addressed, or upon whom they are intended to make 
 an impression. Thus, omens, auguries and predictions are 
 relied on, among those whose habits and limited intelligence 
 induce them to place confidence in such sources of know- 
 ledge. But, notwithstanding the art which may be employed, 
 they frequently fail of their intended effect, from the mere 
 want of the " art to conceal " it. Their essential clumsiness 
 
 (a) Rex T. Donellan, Gurney's Report, 1781; cited in Best on Pres. § 234. 
 3 Benth. Jud. E^id. 66. 
 
 (6) Rex V. Blandy, 18 State Trials, 1117, 1U8, 1153. 
 
 (c) Case of Susannah Holroyd, Lancaster Assizes, 1816; Best on Pres. 
 § 234. In the Gorman case of Oesche Margarethe Gottfried, where a woman 
 had poisoned her whole family, she had previously gone to a fortune-teller, 
 who predicted that her whole family would die before her. 4 Lond. Legal 
 Observer, 89, 90. 
 
CHAP. 1,] VERBAL INTIMATIONS. 335 
 
 is sometimes manifest, (as in the last instance aoove given ;) 
 and the result of their utterance is the very reverse of that 
 intended; namely, to fix attention upon the party utter- 
 ing them, and thus to establish between him and the 
 event alluded to, the very connection he seeks to avoid. 
 Hence, when the event comes to happen, the expression 
 anticipating it is at once remembered. There is what the 
 civilians would call damnum pradiclum et malum secutum, — 
 a very pregnant and reasonable ground of suspicion. On 
 this account, expressions of this kind often become impor- 
 tant, as elements of circumstantial evidence, constituting 
 a material link in the chain of precedent circumstances, 
 tending to fix a crime charged, upon the party accused of its 
 commission. 
 
 SECTION vn. 
 
 Expressions of Ulrwill. 
 
 In the verbal indications of intended crime, mentioned in 
 the last section, care is usually taken to suppress all signs of 
 interest or feeling that might reveal the malignant dispo- 
 sition really entertained. This is done, with the double 
 motive of avoiding any risk of danger to the criminal him- 
 self, and the additional risk of alarming his intended victim. 
 And so far is this attention to outward demeanour sometimes 
 carried, that not only is every kind of intimation suppressed, 
 and resentment itself wholly dissembled, but positive regard 
 ■and even affection is counterfeited, as a means of striking a 
 sui-er blow, (a) 
 
 (a) In the case of Rex v. Goodere, the priaoner, having determined to 
 murder his own brother, with whom he had been on unfriendly terms, and 
 
336 PRECEDENT CIRCUMSTANCES. [PAET II. 
 
 In many cases, however, where the feeling of hatred is 
 strong, and the revengeful impulse ardent and active, all 
 considerations of prudence are overborne and cast aside. 
 The expressions which escape the lips partake of the state 
 of mind and heart from which they proceed, and no pains 
 are taken to conceal or qualify them. In these, therefore, 
 the criminal takes another, and (so far as evidence is con- 
 cerned) a still more important step onwards in his career. 
 His motive, which before could only be conjectured, or, at 
 best, inferred by a process of reasoning, stands now directly 
 revealed. His heart is, as it were, laid open to view, show- 
 ing enmity or desire of revenge to be the source and spring 
 of his whole conduct. 
 
 These expressions of ill-will assume a variety of forms, 
 according to the character and strength of the feeling which 
 prompts them. Sometimes, they are uttered in terms of 
 intense though respectful complaint ; attempts being, at the 
 same time, made to arouse resentment on the part of the 
 persons addressed, against the subject of them, (a) At 
 other times, they are expressed in the undisguised form of 
 opprobrious epithets, charging some injurious act. (6) Some- 
 desiring to get possession of iiis person, contrived, under the pretext of wishing 
 a reconciliation, to obtain an interview with him, at a friend's house. On 
 meeting his brother, upon this occasion, he' carried his pretence of affection so 
 far as to kiss him heartily, and afterwards drank his health. 17 State Trials, 
 1020. In the case of The People v. Kesler, the prisoner, after having de- 
 serted his wife for upwards of five years, returned to her with offers of recon- 
 ciliation, and by that means obtained the opportunity of administering to her 
 the poison which caused her death. S Wheeler's Crim. Cases, 18, 65. In- the 
 recent case of The People v. Williams, (New York Oyer & Terminer, May, 
 1854,) the circumstances were very similar. 
 
 (a) See the trial of James Stewart, 19 Howell's State Trials, 1, 125. Trial 
 of John Barbol, 18 Id. 1229, 1250. 
 
 (4) See Henry Harrison's case, 12 Id. 841 — 843. In the case of The 
 People V. How, the prisoner had called the deceased " a cursed villain, and 
 the greatest enemy he had." 2 Wheeler's Crim. Cases, 415. In the late 
 English case of Regina v. Rush, the prisoner had not only called the deceased 
 (who was Recorder of Norwich,) "a fellow," and " a villain," and saying 
 
CHAP. I.] EXPEESSIONS OP ILL-WILL. 337 
 
 times, the hatred felt is actually expressed in terms, extend- 
 ing occasionally to others in the same connection, (a) In 
 other cases, the death of the party is directly or indirectly 
 desired ; (b) in others, a mllingness is expressed to take a 
 part in his death ; (c) and in others, again, a strong desire 
 to inflict, at whatever cost, some dangerous injury, (d) In 
 many of those cases in which the death of a person is dis- 
 tinctly desired, it is placed on the footing of an act of retri- 
 bution, (e) the criminal striving to hide the enormity of 
 his intended offence under a color of justice. In one pre- 
 eminently atrocious case of parricide, the malignant passion 
 burst all bounds, and disclosed itself in a torrent of impre- 
 cations and curses almost too violent for belief. (/) 
 
 that he ha4 no right to the property in his possession, but actually repeated 
 the expressions in writing, and used them in a printed pamphlet. Burke's 
 Trials, (Upper Classes,) 463, 464, 515. In the late case of The State v. 
 Carawan, the prisoner had called the deceased a scouudrel, and charged him 
 with seducing his wife. Pamphlet Report, 46, 47, 48. 
 
 (a) In Philip StatidsfieM's case, the prisoner had said, " he had hated his 
 father these six or seven years." 11 State Trials, 1397. In James Stewart's 
 case, one of the accused parties had said " he hated all the name of Camp- 
 bell." 19 Id. 100. 
 
 (A) In the case of Katharine JVairn and P. Ogilvie, the wife had said of her 
 hnsband, that " she lived a most unhappy life with him, and that she wished 
 him dead; or, if that could not be, she wished herself dead." 19 State Trials, 
 1290. In the American case of Bathsheba Spooner and others, it was proved 
 that Mrs. Spooner had said "she wished Mr. Spooner was out of the way; 
 she could not live with him; " that " she wished ' old Bogus ' was in heaven," 
 &c. 2 Chandler's Am. Crim. Trials, 20, 25. And see the case of Mrs. 
 Chapman; Commonwealth v. Chapman, Celebrated Trials, (Phil. 1835,) 332. 
 
 (c) See the trial of James Stewart, 19 State Trials, 122. 
 
 {d) In the same case, the prisoner had been heard to say that " he would 
 be vrilling to spend a shot upon Glenure, [the deceased,] though he went upon 
 his knees to his window, to fire it." 19 State Trials, 147. 
 
 (e) " He deserves to have his throat out." Harrison's case, 12 State 
 Trials, 841, 842. " He deserves shooting, and shooting would be too good for 
 him." The State v. Carawan, Pamphlet Report, 48. Sometimes, as an act 
 of necessity. The People v. How, 2 Wheeler's Crim. Cases, 414. " A man 
 might make me kill him." The State v. Carawan, Pamphlet Report, 46. 
 
 (/) Trial of Philip Standsfield, 11 State Trials; 1396, 1397. In another 
 
338 PRECEDENT CIRCUMSTANCES. [PART n. 
 
 SECTION VIII. 
 Declarations of criminal intention. 
 
 The next form in wMch language becomes an index of 
 intended criminal action, is in the more positive one of de- 
 clarations of intention. As expressions of ill-will tend to 
 betray motive, so declarations of intention serve expressly 
 to reveal purpose, (a) They are thus one stage farther 
 advanced towards the act in view ; and, in this respect, pre- 
 sent still more important materials for evidence of the cir- 
 cumstantial kind. 
 
 It is seldom, however, that persons are found to indulge 
 their malignant impulses so far as thus voluntarily to divulge 
 their criminal purposes ; putting, by this means, their in- 
 tended victims on their guard, while they compromise, in a 
 greater or less degree, their own safety. In some crimes, it 
 may be said never to take place, being utterly inconsistent 
 with that secrecy which is essential to success. The bur- 
 glar, robber, forger and thief, never thus advertise their in- 
 tended proceedings in advance. But in cases of contem- 
 plated murder, the feeling of animosity sometimes becomes 
 so intense, and the mind so restless and impatient of delay, 
 that the avowal of purpose escapes the lips, sometimes, in 
 unguarded moments, and, more rarely, from express design. 
 
 In some cases, the declaration is made in a conditional 
 form. (6) In others, it is made absolutely, but in a form 
 
 case of parricide, the grossest epithets of abuse had been applied to the de- 
 ceased. Trial of Mary Blandy, 18 Id. 1148, 1151, 1154. And see the late 
 American case of Adeline Phelps, Law Reporter, May 1854. 
 
 (a) As to the distinction between these terms, see ante, p. 283. 
 
 (b) " If he don't do as he has agreed, I will kill him." The People v. 
 How, 2 Wheeler's Crim. Cases, 412. 
 
CHAP. I.] DECLARATIONS OP INTENTION. 339 
 
 expressive of a purpose not fully matured, (a) In others, 
 again, it is expressed generally, designating no particular 
 person by name. (6) More rarely, it is made in tlie most 
 explicit and decided terms. In a case where a woman was 
 tried for murdering her husband by poison, it was proved 
 that she had previously expressed her dissatisfaction with 
 him, and said, " if she had a dose she would give it to him ;" 
 and that she had further said " she was resolved to poison 
 her husband," and told the witness how she intended to 
 procure the poison, (c) 
 
 It is possible, and, doubtless, sometimes the fact, that very 
 distinct expressions of intended action may be used, and 
 made no secret of, and yet no definite purpose of crime have 
 actually been formed. Malignity of heart may outstrip the 
 mature action of the will, in which purpose originates. In 
 the intensity of his desire to injure, the criminal may 
 say that he means to do the act which, nevertheless, he has 
 not fully resolved on. There is often a satisfaction in hurl- 
 ing forth these verbal missiles of animosity, with all the force 
 and point that language can impart to them. In this view, 
 declarations of intention may amount to nothing more than 
 intenser forms of the expressions noticed in the last section, 
 deriving their precision, possibly, from some passing idea 
 presented to the mind at the moment of utterance. 
 
 But, in the majority of cases, it is probable that these 
 declarations do truly indicate an injurious and evil purpose, 
 either actually formed, or on the point of being formed in the 
 mind from which they proceed. Their tendency, if not tlieir 
 effect, always is to show settled ill-will, which the person 
 uttering them is prepared, on a' fitting occasion, and with 
 proper meaus, to carry ioto act. And it is in this that their 
 peculiar value, as elements of circumstantial evidence,resides. 
 
 (a) " I have a great notion to kill him." The State v. Arrison, Cincin- 
 nati Grim. Court, December, 1854. 
 
 (A) Rex T. Barbot, 18 State Trials, 1251. 
 
 (c) Trial of X. J^airn and P Og^ilvU, 19 Id. 1272, 1273. 
 
340 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 SECTION IX. 
 Threats to injwe or destroy.- 
 
 Closely allied to declarations of intention, are positive 
 threats to do the injury intended. These are, in fact, a 
 more violent and determined species of declaration, dictated 
 by a still higher degree of passion, and usually uttered in 
 moments of uncontrolled excitement. In their language, 
 as the exponent of criminal action, desire and purpose 
 assume their strongest forms. 
 
 A similar variety is observable in threats, as in the de- 
 clarations last noticed. Sometimes, they are expressed with 
 studied vagueness, alluding obscurely to some undefined 
 evil in store for the object of them, (a) A very common 
 form of threat, where a person has conceived himself ag- 
 grieved, is that he " will be even with " the other, at some 
 future day. Sometimes it is, more explicitly, that he " will 
 have his revenge ; " (6) or, more savagely, that he " will 
 have the blood" of the other, (c) Sometimes, — that he. 
 " will certainly be the death of him." (c^) Occasionally, it 
 is uttered in an indirect form, the malicious purpose being 
 implied rather than expressed ; as where the threatener 
 says he " wants nothing more than to meet the other at a 
 convenient place." (e) In some cases, the particular mode 
 of injury or destruction is specified, either in ordinary or 
 
 conventional language ; (/) and threats of this kind are 
 
 — • — ' — ■ — — - — ■ 1 — 
 
 (a) " He will never die in his Bed." Harrison's case, 12 State Trials, 843. 
 (6) The People v. How, 2 Wheeler's Crim. Oases, 415. 
 
 (c) Harrison's case, 12 State Trials, 841, 846. 
 
 (d) Major Strangwayes' case, Burke's Cel. Trials connected with the Upper 
 Classes, 22. 
 
 (c) Trial of James Stewart, 19 State Trials, 101. " Let me alone, I'll 
 manage him." Harriwn's case, 12 State Trials, 842. 
 
 (/ ) In Philip Slandsfield' s case, the prisoner threatened to cut his father's 
 throat. 11 State Triala, 1399. In Jnmes Stewart's case, one of the threats 
 
CHAP. I.] THREATS. 341 
 
 often of peculiar importance, as indicating the means most 
 likely to be employed in carrying them into effect. A threat 
 to shoot, for instance, is often made good literally, (a) 
 
 Threats are sometimes distinguished from mere declara- 
 tions of intention, (with which, in other respects, they are 
 identified,) in this respect, — that they are designed to make 
 an unpleasant or painful impression upon the person against 
 whom they are directed ; (6) and, with this view, they are 
 intended to come to his notice ; the latter object being 
 directly attained, by addressing them to the person himself, 
 and indirectly, by uttering them before others, who, it is 
 supposed, will communicate them to him. (c) They are, 
 indeed, often intended to create apprehension of the act 
 threatened, and to give pain by the alarm and terror which 
 they may produce, and sometimes this may be all that is 
 intended. (<;?) But the malignity that can deliberately 
 threaten the greatest of all evils to another, is not usually 
 content with the gratification that mere words can afford, 
 even where they have actually produced the effect desired. 
 It is true that the tendency of such declarations, (and, in- 
 deed, of all declarations of intention carelessly uttered,) is to 
 obstruct and frustrate their own accomplishment. " By 
 threateniug a man," observes Mr. Bentham, " you put him 
 upon his guard, and force him to have recourse to such means 
 of protection, as the force of the law, or any extra-judicial 
 powers which he may have at command, may be capable of 
 
 uttered was, to " make black cocks of those who would turn out the tenants," 
 this expression being considered, in the Scotch Highlands, equivalent to shoot- 
 ing. 
 
 (a) See The People t. How, 2 Wheeler's Crim. Cases, 414. The State v. 
 Carawan, Pamphlet Report, 48. In the case of Bathsheba Spooner and others, 
 one of the murderers had threatened to put the deceased " in the well " for 
 two coppers. And he was actually killed by being thrown into the well after 
 having been knocked down. 2 Chandler's Crim. Trials, 3, 14, 19. 
 
 (A) 8 Benth. Jud. Evid. 70, 77. 
 
 (c) Id. 71. 
 
 id) Id. 78, 
 
342 PRECEDENT CIECUMSTANCES. [PART II. 
 
 affording to him." (a) But then, it is equally true, that 
 threats are often disregarded and despised ; it is only the 
 more timid dispositions that are influenced by them ; and, in 
 most minds, there is an unwillingness, even if fear be felt, to 
 manifest it by any outward acts or precautionary proceed- 
 ings. To this contempt of the mere language of an enemy, 
 and the exposure of person which has followed, have many 
 courageous persons notoriously owed their deaths. And it 
 may be that the threatener, in these cases, has counted, in 
 advance, upon this very circumstance. Besides, it is ad- 
 mitted by the author above quoted, that, " by the testimony 
 of experience, criminal threats are but too often, sooner or 
 later, realized. To the intention of producing the terror, 
 and nothing but the terror, succeeds, under favor of some 
 special opportunity, or under the spur of some fresh provo- 
 cation, the intention of producing the mischief; and (in 
 pursuance of that intention,) the mischievous act." (b) In- 
 deed, the mere fact that the threatener's expressions have 
 been defied, (his attempts to produce pain being thus openly 
 proved impotent,) may serve to give new edge to a malig- 
 nant temper, to settle at once a previously vacillating pur- 
 pose, and to produce a firm determination that the victim 
 (now doubly hated as an open foe,) shall feel in act, what, 
 in words, he despised. 
 
 (a) 3 Jud. Evid. 78. 
 (6) Id. 78, 79. 
 
CHAP. I.J PREPARATIONS FOR CRIME. 343 
 
 SECTION X. 
 Preparations for crime; including the acquisition of means. 
 
 Next, in order, to verbal indications of intended crime, 
 and constituting the next link in the chain of precedent 
 circumstances, already mentioned as serving to connect a 
 crime with its author, are the actual preparations for its 
 commission. 
 
 In a general sense, some of the verbal expressions, noticed 
 in the preceding sections, may be regarded in the light of 
 preparations bearing on the particular act in contempla 
 tion. (a) But the preparations now to be considered, and 
 which are properly so designated, consist of corporal acts 
 and mechanical processes, constituting subjects of evidence 
 altogether distinct from the preceding. 
 
 This class of precedent circumstances exhibits a new ad- 
 vance, and a still more material one than any yet noticed, 
 towards the consummation of a criminal design. The party 
 no longer merely feels, meditates, resolves, utters his feeling 
 or purpose in words, as has been described, — but proceeds 
 to act. His attitude now is that of one who has definitely 
 conceived his object, arranged his plan, and fully determined 
 on its accomplishment. The coolness and deliberation 
 which always accompany and characterize acts of prepara- 
 tion for crime, indicate the depth at which the malignant 
 disposition has taken hold of the moral nature, converting 
 the mental and even the physical powers into mere instru- 
 ments of its exercise. A bad motive may be only transiently 
 
 (a) Mr. Beniham, classes preparations, declarations of intention, and 
 threats, under one head. 3 Beuth. Jud. Evid. 62, book 5, chap. 4. " De- 
 clarations of intention," he observes, " are expressions of intention purposely 
 conveyed by vfords ; by preparations, purposely or not, the intention is ex- 
 prussed by acts." Id. 70. 
 
344 PRECEDENT CIRCUMSTANCES. [PAKT II. 
 
 cherislied, and even a palpably maligaant expression may- 
 plead exasperation of temper in its excuse ; but the man 
 who coolly sits down to plan the death or injury of another, 
 and to arrange, with the art sometimes required, the details 
 of its accomplishment, acts always from a determined will, 
 instigated by a radically wicked heart. 
 
 Hence, actual preparations for crime always afford one of 
 the most important classes of precedent circumstances capable 
 of being judicially presented in evidence. Their value is 
 especially great in cases of homicide, where they constantly 
 serve to determine, beyond doubt, the questions which are 
 so often raised at trials, and by which juries are so materially 
 perplexed, as to the existence of previous malicious design, 
 on the part of the accused. Their value consists, also, in 
 another important particular, namely, the superior facility 
 and accuracy with which they are capable of being reported 
 in evidence. Motives, as we have seen, not being objects 
 of sense, can be reached only indirectly, through the medium 
 of otter circumstances ; words and expressions may be 
 indistinctly heard, or, if heard, quite misunderstood ; but 
 acts of preparation address themselves to the most observant 
 and accurate of the senses, — they speak to the eye as well as 
 the ear, and leave more faithful impressions upon those who 
 witness them, with less consequent liability to error in the 
 testimony given. 
 
 An important element among circumstances indicative of 
 crime, consists of the means necessary for, or adapted to its 
 effectual perpetration. These means, as has been already 
 observed, (a) are sometimes contemplated by criminals at 
 an earlier stage, even before the formation of a distinct pur- 
 pose. But it is when the time for action arrives, that they 
 become the objects of especial attention ; and hence the 
 processes of seeking out, collecting, examining, adapting 
 and arranging them, with a specific object, always form a 
 
 (a) .Mnte, Section V. 
 
CHAP. I.] PBEPARATIOBrS FOR CRIME. 345 
 
 most important constituent in criminal preparations. Among 
 these means, or instruments, (as they may otherwise be 
 termed,) are physical objects and substances, and mechanical 
 aids and devices of various kinds, known to be adapted or 
 purposely contrived for attaining the end in view ; such 
 objects and instruments belonging to that peculiar class of 
 circumstances which have already been considered under the 
 head of physical facts, (a). 
 
 Preparations for crime cover a very extensive field. Be- 
 ginning at a point considerably in advance, they are often 
 brought down to the very moment previous to the intended 
 act ; (6) and sometimes, in effect, go beyond it ; referring 
 to acts to be done afterwai-ds. (c) They are usually divided 
 into two principal kinds ; first, those which are directed 
 towards the immediate accomplishment of the criminal de- 
 sign ; and, secondly, those of an auxiliary character, intended 
 to prevent discovery or suspicion of the preceding, (d) 
 
 I. Direct or principal preparations. 
 
 Among the direct preparations for the commission of 
 crime, may be enumerated the following. 
 
 1. The contriving and fashioning, or the procurement of 
 the fashioning of instruments or means of mischief or de- 
 
 (a) See ante. Section n. 
 
 (A) See instances of preparations at both these stages, in the case of Rex v. 
 Patch; WUls, Giro. Evid. 230. 
 
 (c) In the case of Rex t. Thuriell and Hunt, the murder was so delibe- 
 rately planned, that the principal criminal, before setting out to commit it, 
 proTided himself with a sack and cord to receive and hold the body of the man 
 he had determined to kill. Celebrated Trials, 5. (Phil. 1835.) In the case of 
 John Adam, preparations were made, before the crime was committed, for 
 leaving the country afterwards, by drawing money from a bank, &c. 11 
 London Legal Observer, 415 — 417. 
 
 (d) These divisions have sometimes been carried farther. See 3 Benth.. 
 Jud. Evid. 64. Best on Pres. § 233. 
 
346 PRECEDENT CIRCUMSTANCES. [PART II, 
 
 struction, or the obtaining them by purchase, borrowing and 
 even theft : such as explosive machines, fire-arms, knives, 
 hatchets, and poisonous substances, for, taking life ; com- 
 bustible substances and inflammable materials for burning ; 
 picklock keys and other tools for entering buildings ; coin- 
 ing instruments for counterfeiting ; and dark lanterns, lad- 
 ders, disguises, &c., to facilitate the use of such means. 
 
 In some instances, much time is spent, and much ingenuity 
 exercised in contriving and fashioning these instruments of 
 crime. In a celebrated case of arson, committed in the 
 Eoyal Dock-yard at Portsmouth, in 1777, the incendiary 
 commenced his preparations by procuring a wooden box to 
 be made for holding combustibles, and a tin case or canister, 
 to be attached to the box, for receiving and concealing a 
 candle. He next busied himself for some tinie, in making a 
 composition for a slow match, by grinding charcoal very 
 fine, mixing it with gunpowder, and spreading the mix^re, 
 in a moist state, upon paper, (a) In a late atrocious case 
 of murder in Ohio, the instrument of death was very elabo- 
 rately contrived. First, an explosive engine or machine 
 was obtained, made apparently of a piece of iron gas-pipe 
 or tube, with the ends closed, and containing powder and 
 slugs. Next, as a means of concealing this, and trans- 
 mitting it to its destination, a wooden box was procured to 
 be made, according to a certain pattern, with the lid so con- 
 trived that the effort used in opening it, would set in motion 
 the machinery for discharging the tube. After the box was 
 made, it appears to have been too small to receive the 
 machine, as it was taken back to be enlarged, by cutting out 
 parts of the ends and lid. (6) 
 
 An invariable characteristic of these preparations for crime 
 is secrecy, or withdrawal from human observation, either 
 
 (a) Trial of James Hill, alias, John the Painter, 20 Howell's State Trials, 
 1317. 
 
 (A) The State t. Arrison, Cincinnati Grim. Court, December, 1854. 
 
CHAP. I.] PBEPABATIONS FOR CRIME. 347 
 
 absolutely and entirely, or to such an extent as is considered 
 equivalent. Where the criminal creates or prepares the 
 instrument exclusively with his own hands, the means of 
 ensuring secrecy are always in his power. Being under no 
 necessity of communicating with others, he shuts himself up 
 to his work in some private apartment. He may thus pre- 
 pare a poisonous liquid by distillation, unobserved, (a) 
 Where he is compelled to call in the aid of others, as in 
 mechanical contrivances like those just mentioned, he en- 
 deavors to disarm any suspicion that may arise from the 
 singular character of the work ordered to be done, by de- 
 claring it to be intended for some very particular, but harm- 
 less purpose ; (6) or sometimes takes the bolder course of 
 treating all expressions of suspicion as idle, and refusing to 
 give any explanation whatever, (c) And his conduct, in 
 either case, often furnishes important evidence towards his 
 detection. 
 
 Where an instrument of death is obtained by borrowing 
 from another, it is often under similar pretexts of harmless 
 uses. In the case of Major Strangwayes, the prisoner obtain- 
 ed a carbine from a friend who borrowed it for him, and had 
 it loaded, alleging that he wanted it to kill a deer. Qt) And 
 even where it is procured by purchase, similar excuses are 
 often made, (e) especially where the article is a poison, and 
 familiarly known as such. Thus, where arsenic, in particu- 
 
 (a) See the case of Rex v. Donellan, Gumey's Report, 1781. 
 
 (A) In one case, the prisoner had taken a small-sword to a cutler, and di- 
 rected it to be ground as sharp as a, carving-knife; saying that he wanted it 
 " for the use of a carving-knife." Rex v. Carder, Celebrated Trials, 221, 
 (Phil. 1835.) 
 
 (c) The State v. Arrison, Cincinnati Crim. Court, December, 1854. 
 
 (d) 5 London Legal Observer, 91. 
 
 (c) Other devices are sometimes resorted to, for the purpose of concealment. 
 In the case of The People v. Peverelly, where a quantity of turpentine and 
 camphene was purchased, as a means of arson, the biU for the articles was 
 ordered to be made out in a false name. New- York General Sessions, Novem- 
 ber, 1854. 
 
348 PEBCEDENT CIRCUMSTANCES. [PART n. 
 
 lar, is procured, it is almost invariably under the pretext of 
 being used to kill rats and other noxious animals, (a) A 
 strong instance of the secrecy observed in procuring and 
 transmitting this particular agent of destruction, occur- 
 red in a celebrated Scotch case, where a woman and her 
 paramour were convicted of murdering her husband by 
 poison, which was obtained by the male prisoner and sent to 
 the other. In the first place, an appointment was made with 
 a surgeon, who dealt in drugs, to visit the prisoner at a vint- 
 ner's ; and when there, the surgeon was taken aside pri- 
 vately, and asked if he had laudanum and arsenic, (the 
 latter being represented to be wanted to destroy some dogs.) 
 The surgeon, finding he had both, put up a small quantity of 
 each and took them to the prisoner, the next day, at the 
 same place. There, the same privacy was observed again, 
 the prisoner receiving the articles in a private room. In 
 the next place, the articles were delivered to a trusty person, 
 found to be going directly to the other prisoner, with an 
 injunction to deliver them to no one but her, and to give 
 them into her own hand ; and the double precaution was 
 observed, of sealing the packet with both wax and wafer. 
 Lastly, the messenger, on his arrival at the house, was taken 
 
 (a) See the case of JVairn and Ogilvie, cited infra. Case of Gesche Mar- 
 garethe Gottfried, 4 Lond. Legal Observer, 89. Rex v. Burdock, Best on 
 Pres. § 196. The People v. Green, Eensselaer Oyer & Terminer, July, 1845. 
 Pamphlet Report, p. 28. In the case of Commonwealth v. Mina, the pris- 
 oner first inquired at a drug store, for arsenical soap, for the preparation of 
 birds. On being told that they had none, but might prepare it, he replied that 
 was useless, but if they had the powder, that would answer; and he then pur- 
 chased a quantity of the latter. Celebrated Trials^ 338; (Phil. 1835.) The 
 pretext here was utterly false, but the art employed was apparent ; the pris- 
 oner avoiding the inquiry for arsenic, in the first instance. A very similar 
 kind of art was employed in the case of The People v. Green. While con- 
 versing in a store, with the proprietors, the prisoner contrived to turn the 
 conversation to the subject of arsenic, as a. means of destroying vermin, by 
 protending to see a rat or mouse on a shelf. The question was then casually 
 and carelessly asked, how much it would take to kill a person. Pamphlet 
 Keport, p. 24. The poison was ultimately obtained in a clandestine way. 
 
CHAP. I.] PEEPAEATIONS POE CEIME. 349 
 
 by the female prisoner to a room up stairs, where he de- 
 livered to her the articles, which she immediately placed in 
 a drawer, (a) 
 
 Sometimes, where poison is thus sent from one person to 
 another, it is disguised under a false name. In the case 
 of Mary Blandy, where arsenic was employed, it was put 
 into a paper, and labelled, " Powder to clean Scotch peb- 
 bles." (6) 
 
 There are other cases, again, where the criminal dares 
 not trust himself even to the exposure involved in pur- 
 chasing or borrowing the article determined on, but gets 
 possession of it by surreptitious means. Fire-arms and 
 poison are often procured iia this way. (c) 
 
 The secrecy just alluded to, is not only observed in pro- 
 curing the means of mischief, but in keeping them concealed 
 until the preparations are fully matured, or untU an oppor- 
 tunity occurs for their use ; and this is particularly the case 
 where the means are themselves not of an ordinary kind. 
 But, with all the precautions taken, it sometimes happens 
 that they become the subjects of notice by others, cither 
 accidentally, 'or upon search. The effect of such discovered 
 
 (a) Trial of K. JVairn and P. Ogilvie, 19 State Trials, 1292, 1289. la 
 Gesi:he M. Gottfried's case, the prisoner obtained poison by the following art- 
 fal contrivance. She knew that her mother had some arsenic, which she kept 
 for poisoning mice. She accordingly went to her, and saying that she was 
 troubled with mice in her house, asked if she knew of any means of destroy- 
 ing them, pretending that she knew nothing of poison. Her mother put some 
 arsenic on bread, and placed it in the room said to be infested with the mice, 
 warning her daughter at the same time, to keep the apartment locked, for fear 
 of mischief to the children. A day or two after this, Gesche went into the 
 room, and took away the poison, which she scratched from the bread, as if the 
 mice had taken it. She afterwards told her mother thai the mice had taken 
 it, and asked hey for more, which was given her; and in this way she pos- 
 sessed herself of a sufficient quantity for the purpose she had in view. 4 
 Lend. Legal Observer, 90. 
 
 (i) 18 State Trials, 1136, 1149, 1157. 
 
 (c) See Burbot's case, 18 State Trials, 1261, 1262, The People v. How, 2 
 Wheeler's Crim. Cases, 419. The People v. Green, ubi supra. 
 
350 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 possession will be more particularly considered under a sub- 
 sequent head, (a) 
 
 2. Another class of direct preparations for crime includes 
 those of a more advanced character ; such as actual trials of 
 the selected means, to test their sufficiency, or the skill of 
 the party in using them. Practising with pistols, at a mark, 
 is a familiar instance. (&) To the same head may be re- 
 ferred the procurement of disguises for the person, consulta- 
 tion with confederates, as to the time and manner of making 
 the intended attempt, (c) making the party's will (d) and 
 the like. 
 
 .3. Last among the direct preparations for crime, are 
 those which are immediately precedent to the act, extend- 
 ing nearly or quite to the time of its commission. Lurking 
 around the scene of crime, taking notice of localities and 
 objects, (e) adopting precautions to prevent the discovery 
 of approach ; and keeping the criminal purpose steady by 
 the use of artificial stimulants, (/) may be classed under 
 this head. An instance of extremely elaborate preparations 
 for arson, reaching almost to the moment of applying the 
 fire, was afi'orded in a late case in New York. The parties 
 were arrested about midnight, in their own store ; and 
 the appearances presented by the interior of the building 
 showed that they had bestowed much time and industry in 
 applying and arranging the materials of destruction, and 
 were just on the eve of putting them into active operation. 
 On entering the store, the floors, in several of the stories, 
 
 (a) See post. Section XI. 
 
 (b) See Barbot's case, 18 State Trials, 1261. Commonwealth v. Fuller, 2 
 Wheeler's Crim. Cases, 223. 
 
 (c) Mrs. Arden's case, 5 Lond. Legal Observer, 59. Mrs. Spooner's case, 
 2 Chandler's Am. Crim. Trials, 38—41. 
 
 (rf) Barbot's case, 18 State Trials, 1258, 1266. 
 (e) Rex T. Smith, Varnham and Timms ; Wills, Giro. Evid. 239. 
 (/ ) See Mrs. Spooner's case, 2 Chandler's Am. Crim. Trials, 41. Regina 
 V. Rush, Burke's Trials, connected with the Upper Classes, 494. 
 
CHAP. I.] PREPARATIONS FOR CRIME. 351 
 
 were found strewed or heaped with loose cotton taken from 
 bales in the building ; the crevices of the door and windows 
 were carefully stuffed with it ; and a number of bales were 
 brought together into situations most likely to expose them 
 to th-e action of the fire, and to communicate the flames with 
 the greatest rapidity through the whole building. Inflam- 
 mable liquids, proved to be spirits of turpentine and cam- 
 phene, were found to have been poured over and among the 
 cotton, in various places, and in some so profusely as to satu- 
 rate it. Other combustibles were also made use of, and 
 pieces of candle were provided and arranged for the immedi- 
 ate application of the fire, (a) 
 
 n. Auxiliary preparations. 
 
 Among auxiliary preparations for crime, the following 
 may be mentioned. 
 
 1. The removal of obstacles out of the way ; such as per- 
 sons who might prevent the act, or, at least, render it haz- 
 ardous by witnessing its perpetration. In Earl Ferrers'' case, 
 a female living with the prisoner was sent out to walk with 
 the children, and directed to be absent for two hours and 
 upwards. (6) In Mrs. ArdevUs case, the servants were sent 
 away to town, during the time the murder was commit- 
 ted, (c) In Moses Drayne's case, a similar precaution was 
 observed, (d) 
 
 2. Acts intended to avert suspicion of an evil purpose. 
 Preparations of this description are sometimes made con- 
 siderably in advance of the intended crime. An elaborate 
 instance of this occurred in the case of Richard Patch, who 
 
 (o) T%e People v. Peverelly, New-Tork General Sessions, November, 1854. 
 
 (6) 19 State Trials, 904. 
 
 (c) 5 London Leg. Observer, 59. 
 
 (d) /d. 123. 
 
352 PRECEDENT CISCUMSTANCBS. [PART II. 
 
 was executed in 1806, for the murder of his employer, (a) 
 " The prisoner and the deceased lived in the same house, 
 and the latter -was, one evening, shot, while sitting in his 
 parlour, by a pistol from an unseen hand. A strong and 
 well connected chain of circumstantial evidence fixed Patch 
 as the murderer ; in the course of which, it appeared that, a 
 few evenings before that on which the murder was committed 
 and while the deceased was away from home, a loaded gun 
 or pistol had been discharged into the same room. (6) This 
 shot the prisoner represented, at the time, as fired at him ; 
 but there were strong grounds for believing that it must 
 have been done by himself, in order to avert suspicion, and 
 induce the deceased and his servants to suppose that assas- 
 sins were prowling about the building." (c) 
 
 The peculiar art of this proceeding consisted in the cir- 
 cumstance that the shot was fired in the absence of the de- 
 ceased ; such absence being, of course, known to the pris- 
 oner ; which, (so far as exterior appearances and first im- 
 pressions would go,) tended, at once, to negative any suppo- 
 sition that it could have come from his hand. 
 
 An equally artful species of preparation, referable to 
 this head, consists of proceedings intended actually to create, 
 in advance, evidence of an exculpatory character. A re- 
 markable instance of this occurred in the case of Major 
 Strangwayes, who was tried for the murder of his brother- 
 in-law, in 1657. In this case, the prisoner confessed that 
 the night the murder was committed, he left a person at his 
 lodgings, to personate him, whom he took care to introduce 
 about seven in the evening, while the people of the house 
 ■ were employed in their necessary affairs,- and not at leisure 
 to take any notice of his actions. This friend, he said, 
 
 (a) Wills, Giro. Evid. 230. 
 
 (6) According to tlie statement of Mr. WilU, it was fired into a different 
 room. Giro. Ev. 231, 232. 
 (c) Best on Pres. § 234. 
 
C^iP. I.] PREPARATIONS FOR CRIME. 353 
 
 ■walked about the chamber, so as to be heard of all the 
 family, which occasioned them to give a wrong deposition, 
 concerning his being at home, when he was examined before 
 the magistrate. He added that after the act was committed, 
 he returned to his lodging, found means to discharge his 
 friend, then hastened to bed, and lay there till he was appre- 
 hended at three in the morning, (a) 
 
 This was a singular instance of a deliberate contrivance or 
 attempt to create alibi evidence, in advance of a crime, 
 through the medium of wrong impressions intentionally pro- 
 duced upon unsuspecting persons. But evidence of this 
 kind has sometimes been provided by more direct and seem- 
 ingly more effectual means. In the American case of John 
 Haver and others, where several persons were concerned in a 
 most atrocious murder, it appears to have been a part of the 
 plot for each of the prisoners to sleep, on the night of the 
 murder, with some one who could testify to an alibi. Hauer 
 had requested a man to sleep in his house, and in the room 
 with him, during that night. Another of the parties went 
 several miles from the place of the murder to sleep, and 
 two others went to a tavern, some miles distant, and went to 
 bed together. (6) 
 
 The common expedient of disguising criminal prepara- 
 tions, by mixing them up with acts and substances of 
 a notoriously harmless character, is also referable to the 
 present head. A person, having procured a still, with the 
 view of preparing a poisonous vegetable extract, disarms 
 suspicion by first employing himself frequently and openly, 
 in distilling roses, (c) Another who has procured arsenic, 
 provides himself, at the same time, with other substances, 
 
 (a) Bnrke's Trials connected with the Upper Classes, 20, 24. 
 (4) 2 Chandler's Am. Grim. Trials, 353, 366. 
 
 (c) Rex V. Donellan, Gurnej's Eeport, 1781; Celebrated Trials, 147. 
 (PhU. 1835.) 
 
354 PRECEDENT CIRCUMSTANCES. [PART ^1. 
 
 resembling it in appearance ; such as soda, c^eam of tartar, 
 and the like, (a) Indeed, so far is this desire of averting 
 suspicion carried, that criminals have been known to expose 
 themselves, in a partial degree, to the operation of the de- 
 structive agent which they had prepared ; or, where this 
 was not hazarded, to say and pretend they had done so. (&) 
 
 SECTION XI. 
 
 Opportunilies and facilities for the commission of crime, 
 including the possession of means. 
 
 The next link in the chain of precedent circumstances 
 serving to connect a crime with its perpetrator, is that of 
 opportunity for its commission. It is this circumstance, and 
 this only, which brings the criminal into that actual contact 
 with the person or property aimed at, which is necessary to 
 the perpetration of every crime ; and it thus forms a posi- 
 tively essential element of guilty agency, in every case. 
 "Want of opportunity is want of power. Hence, it is al- 
 ways a conclusive answer to a criminal charge, no matter 
 how strongly it may be supported by other evidence, that 
 the accused had, in fact, no opportunity to commit it : and in 
 this consists the force of alibi evidence. Where, on the 
 other hand, it is shown, in addition to other circumstances, 
 that the accused had an opportunity to do the act, it h&- 
 comes a positively criminative circumstance against him, of 
 greater power in proportion to the completeness or frequency 
 of the opportunity proved. 
 
 Opportunity has been more precisely considered as a sort 
 
 (o) The People t. Green, Rensselaer Oyer & Termiaer, July, 1845; Pam- 
 phlet Report, 11, U, 20, 37. 
 
 (6) Rex V. Blandy, 18 State Trials, 1145. 
 
CHAP. I.J 0PP0IITUNITIE3 FOH CRIME. 355 
 
 of modification of means. " By opportunity," observes an 
 acute writer on tliis branch of evidence, " seems to be under- 
 stood an assemblage of such articles in the composition of 
 the aggregate mass of means, as possess not a permanent, 
 but only a transient existence." (a) But it may happen, 
 as will be shown presently, that opportunities may be so 
 frequently and continuously repeated, as to possess a con- 
 siderable character of permanence. 
 
 Opportunities may be conveniently considered under three 
 divisions: first, such as are presented by mere accident; 
 secondly, such as grow out of existing relations and fore- 
 known circumstances ; and, thirdly, such as are created by 
 the act of the criminal himself. 
 
 1. The efi'ectual character of an opportunity depends, 
 obviously, upon the fact that the person to whom it is pre- 
 sented is prepared to embrace it. Hence, the proper order in 
 which it comes up for consideration, in a chain of evidence, 
 is after preparations, and as the closing precedent circum- 
 stance introducing the act itself. If an opportunity occurs, 
 before the criminal is finally prepared for it, it is, for the 
 most part, the same as though it had not occurred at all. 
 Hence, mere accident is never a sufficient basis of oppor- 
 tunity, unless in those cases where the party is always on 
 the watch, and ready to act on the instant. 
 
 But in those cases where no preparation, or next to none, 
 is required, as in cases of theft, where mere unobserved 
 proximity to the article desired (such article being of a 
 portable kind,) is all the preparation needed, an accidental 
 opportunity may be as efi'ectual as one that has been 
 waited for or actually contrived. In these cases, it may 
 be said that, as soon as the criminal purpose is formed, 
 the party is ready to take advantage of any opportunity that 
 may off'er. Indeed, it is possible that there may have been 
 no precedent action of any kind, even mental ; and the same 
 
 (a) 3 Benth. JuJ. Evid. 189. 
 
856 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 circumstance which presents an opportunity, may be that 
 which first excites a motive, and leads to the formation of a 
 purpose. Thus, the sight of an open coffer, with its con- 
 tents lying in view and within reach, may awaken the first 
 idea of theft, only the moment previous to the felonious 
 abstraction of the money ; the criminal purpose being formed 
 and executed almost in the same instant. 
 
 2. The next class of opportunities consists of those which 
 arise from the existing relations of the parties ; the most 
 prominent of which are those of guest and host, of lodger 
 and fellow-lodger, of master and servant, and particularly 
 the various domestic relations. These constantly serve to 
 bring about that close proximity of persons and property 
 which is of the essence of all opportunity. The position of 
 a traveller, at an inn, places his person and property entirely 
 within the reach of his landlord, and, indeed, often leaves 
 them, during the most unprotected moments, altogether at 
 his mercy. The condition of the guest is always one of 
 trust and confidence, and, in the season of rest, peculiar 
 helplessness ; that of the host, on the other hand, is one 
 of activity, vigilance and power, arising from the general 
 knowledge and control he has of the house, and all its in- 
 mates and transactions, his own constant and ready means 
 of access to all parts of it at all times, and his facilities for 
 cutting off access to it from without. These circumstances 
 present opportunities and facilities for the crimes of robbery 
 and murder, on the part of. unprincipled landlords, which 
 have been taken advantage of in many recorded instances, 
 especially in secluded districts, and during unsettled 
 times, (a) The great motive to crime, in these cases, is 
 
 (ffi) See, among others, the celebrated case of Jonathan Bradford, Trho was 
 executed »t Oxford, for the murder of Mr. Hayes in 1736. Bradford kept an 
 inn in Oxfordshire, on the London road to Oxford, at which Mr. ffayes had 
 put up on the night he was murdered. Theory of Presumptive Proof, Ap- 
 pendix, case 7. See also the earlier case of Moses Drayne at Chelmsford. 5 
 
CHAP. I.J OPPORTUNITIES FOB CRIME. 357 
 
 « 
 
 the expectation of plunder, which is often awakened or 
 stimulated by the ostentation or imprudence of the traveller 
 himself, (a) 
 
 The close proximity of one person to another, as lodgers 
 in the same house of entertainment, presents obvious oppor- 
 tunities for crime, growing out of the temporary relation 
 thus created. Thefts upon fellow-lodgers are too common 
 a class of offences at the present day to require further 
 notice. A similar proximity to attractive articles of prop- 
 erty is sometimes obtained by workmen, who, from the 
 nature of their employments, gain ready access to the in- 
 terior of houses, rooms and more private apartments. 
 
 Where the relation between the parties, instead of being 
 temporary, like those just noticed, is permanent, — as between 
 master and servant, or between persons constantly inhabit- 
 ing the same house, opportunities for crime become multi- 
 plied ; and judicial records show how constantly they are em- 
 braced. Thefts and robberies by domestics are of notori- 
 ously frequent occurrence. Peculiar opportunities and facili- 
 ties, even for the commission of higher crimes, are found to 
 exist where the servant occupies a place of especial confi- 
 dence, being admitted to his master's presence at all hours, 
 and constantly entrusted with the care of his valuables, and 
 almost with the charge of his person . It was this confi- 
 dential relation that gave opportunity to Courvoisier to com- 
 mit his atrocious murder of Lord William Russell, in 
 1840. (b^ 
 
 Where the relation between the parties is of a still more 
 intimate character, as between members of the same family, 
 and particularly between husband and wife, opportunities 
 
 Lond. Legal Observer, 123. Most of the murders committed by Burke and 
 Hare in 1828, were committed on the persons of lodgers. Celebrated Trials, 
 436—438. (Phil. 1835 ) See also the case of Rex t. Burdock, Best on 
 Pres. § 196. 
 
 (o) See the cases of Jonathan Bradford and Moses Drayne, above cited. 
 
 (A) Burke's Trials, connected with the Aristocracy, 461. 
 
358 PRECEDENT CIRCUJIBTANCES. [PART II. 
 
 for the commission of crimes of the highest grade become 
 indefinitely multiplied. They are, in fact, of hourly occur- 
 rence. There exist, in the relation last mentioned, all the 
 elements to constitute the most perfect opportunity that can 
 be desired — milimited access to the person, and complete 
 seclusion during hours when that person is in its most de- 
 fenceless state. 
 
 Where such intimate relations exist, they afiford, especi- 
 ally on the part of the female, peculiar facilities for the 
 employment of poison, as an instrument of death. From 
 the nature of their household occupations, females are con- 
 stantly busied in processes, connected with the preparation 
 and service of food, and in offices of attendance upon sick- 
 ness, which enable them to execute criminal designs in this 
 insidious form, with the greatest effect, and the least pos- 
 sible risk of suspicion, (a) The most notorious poisoners 
 on record have been females. (6) 
 
 Another class of opportunities, or rather facilities for the 
 commission of crime, referable to the present head, are 
 those derived from pre-existing and fore-known circumstan- 
 ces. Road-side murders are often committed upon oppor- 
 tunities thus acquired. Having ascertained that the intend- 
 ed victim will pass along a particular road, at a certain hour, 
 the murderer preiriously secretes himself, with a loaded fire- 
 arm, at a particular spot, and awaits his coming, (c) 
 Poisoners constantly avail themselves of the known or 
 observed ill-health of those upon whom they intend to prac- 
 tice, because the poison may then be more securely mingled 
 with articles intended for their exclusive use. Slight and 
 
 (a) See the oases of Katharine JVairn, (19 State Trials, 1235,) and of 
 Mary Blandy, (18 Id. 1117.) 
 
 (6) See the German case of Anna Schonhben, in 1808. 3 Lond. Legal Ob- 
 server, 41 , 56. And see the later a,nd more atrocious case of Gesche Marga- 
 rethe Gottfried, in 1828. 4 Id. 39, 101. 
 
 (c) Trial of James Stewart, 19 State Trials, 1, 93. The State v. Cajawan, 
 Superior Court of Law, Beaufort County, N. Carolina, Fall Term, 1853. 
 
CHAP. I.] OPPOETUNITIES FOR CRIME. 359 
 
 occasional attacks of sickness are often found sufficient for 
 this purpose, (a) But a confirmed state of ill-health, especi- 
 ally where the symptoms and effects of the natural malady 
 resemble, or are undistinguishable from those of the intended 
 poison, presents that peculiar combination of circumstances 
 most favorable to the administration of the destructive 
 agent, with the least hazard of awakening suspicion, as its 
 operation may then be more securely attributed to natural 
 causes. Hence it is a circumstance frequently and strenu- 
 ously relied on for the defence, in trials for murder by this 
 means, that the health of the deceased was bad, or that he 
 was subject to attacks of a violent character. (Z») 
 
 3. The last class of opportunities for the commission of 
 crime, which remains to be considered, includes those which 
 are created by the contrivance of the criminal himself. So 
 far, indeed, are they made the subjects of his voluntary and 
 even industrious action, that they may not improperly be 
 ranked under the preceding general head of preparations. 
 
 Where a crime is meditated against the person, such as 
 murder, robbery or rape, the desired opportunity is often 
 created by decoying the victim within reach, for which pur- 
 pose various stratagems have been practiced. In Captain 
 Harrison's case, (c) it was gained by getting the deceased, 
 who was a physician, into a hackney-coach, at night, under 
 the pretext of taking him to see a patient ; in Cunningham'' s 
 case, (d) by decoying into the chamber of the murderer's 
 wife ; in John Adam's case, (e) by inducing the deceased 
 
 (n) The People v. Green, Eensselaer Oyer & Terminer, July, 1815. Com- 
 monwealthY. Chapman, Celebrated Trials, 327, 402. (Phil. 1835.) 
 
 (6) Case of IT. JVuirn and P. Ogilvie, 19 State Trials, 1246 — 1248. Td. 
 1310—1312. Bex Y. JDonellan, Gamej'a Uefort.llSl. The contrivance of 
 opportunities for the effectual administration of poison, will be more fully con- 
 sidered under the head of " Concomitant circumstances," post. Section XI£I. 
 
 (c) 12 State Trials, 833. Burke's Trials, connected with the Upper 
 Classes, 57. 
 
 (d) 5 London Legal Observer, 42. 
 
 (e) 11 Id. 4.15. 
 
360 PRECEDENT CIECUMSTANCES. [PART II. 
 
 to take a journey through an unfrequented district ; in the 
 New Jersey case of Peter Robinson, (a) by making au 
 appointment with a creditor to call at the debtor's house, 
 and to bring with him all the evidences of his debt, under a 
 promise of a settlement. Sometimes violence has been used 
 to complete the effects of fraud. In Captain Goodere's 
 case, (6) the deceased having been gotten into his murder- 
 er's hands by a stratagem, was forcibly dragged off through 
 the streets of Bristol, conveyed on board a vessel, and there 
 strangled. In other cases, the victim has been reduced to a 
 state of helplessness or insensibility, by being made to par- 
 take freely of intoxicating liquors. Several of the persons 
 
 (a) Middlesex (N. J.) Oyer & Terminer, March, 1841. See also the case 
 of Commonwealth t. Webster- 
 
 (A) 17 State Trials, 1003. Burke's Trials, connected with the Aristocracy, 
 123. This murder, called at the time " the Bristol Fratricide," is one of the 
 most daring and dreadful crimes on record. The prisoner, who was a captain 
 in the Royal Navy, and an officer of considerable reputation, had been for a 
 long time, on ill terms with his brother. Sir John Dinely Goodere, which led 
 him to form the design of taking his life. In order to get possession of the 
 person of the latter, the prisoner preteaded to desire a reconciliation, and 
 through the instrumentality of others, a meeting between the brothers was 
 brought about at the house of a friend, in Bristol, on the 18th January, 1741. 
 Soon after Sir John left the house on this occasion, he was attacked by a gang 
 of sailors, who had been brought ashore and kept in readiness for the purpose, 
 who seized him, and began to drag him through the streets ; the prisoner being 
 with them, and encouraging them. It being in open day, (about half past 
 three o'clock in the afternoon,) the resistance made by Sir John, and his cries 
 for help, attracted the notice of several persons, who followed and inquired 
 what was the matter; but they were got rid of, by being told that it was a 
 man who had committed a murder on board the Ruby, (which was the prison- 
 er's ship,) and that they were taking him back to the vessel. By this means, 
 they succeeded in getting their victim into the Ruby's barge, which had been 
 made ready for the purpose, by the prisoner's direction; and he was then 
 conveyed on board the vessel, (being now represented as a madman, in order 
 to explain his conduct,) looked up in the purser's cabin, and there strangled 
 to death, the same night, by two hired ruffians, the prisoner himself standing 
 sentinel at the door 
 
CHAP. I.] OPPORTUNITIES FOB CRIME. 361 
 
 murdered by Burke and his associates, ia 1828, were 
 smothered wl>ile in such a condition, (a) 
 
 Where the parties reside in the same house, opportunities 
 are often rendered complete by other artifices. In Patch's 
 case, (&) the murderer, under the pretence of a short 
 absence from the house, in the evening, contrived, just before 
 the offence was committed, to leave open all the doors com- 
 municating with the yard ; and having, while out, divested 
 himself of his shoes, was thus enabled to return unperceived 
 and unsuspected, and to get near enough to fire the fatal 
 shot into the parlour where the deceased was sitting, with 
 the greatest effect. In Donellan's case, (c) the requisite 
 opportunity of introducing the poison into the medicine 
 which the deceased was in the habit of taking, was obtained 
 by inducing the deceased to place the medicine, which he 
 had previously kept in a private room, in a situation where 
 access could easily be had to it. 
 
 But the most remarkable case of an opportunity for the 
 commission of murder, deliberately planned and secured by 
 a series of artful contrivances, is that of the poisoning of 
 Sir Thomas Overbury, in the Tower of London, in the year 
 1633. (d) The death of Sir Thomas having been deter- 
 mined on by the earl and countess of Somerset, whose 
 mortal enmity he had incurred, and the particular instru- 
 ment of destruction having been selected, his person was 
 got possession of, by the following deeply-laid stratagem. 
 He was first recommended to the King, by the person who, 
 under the garb of friendship, was seeking his life, as a 
 proper person to be appointed ambassador to Russia. Hav- 
 
 (o) Celebrated Trials, 436—438. (Phil. 1835.) See also the case of John- 
 son and Fare, 5 Lond. Legal Observer, 254. 
 
 (A) Wills, Cire. Evid. 230, 232. 
 
 (e) Rex T. Donellan, Gumey's Report, 1781. Celebrated Trials, 122, 
 (Phil. 1835.) See 3 Benth. Jud. Evid. 66. 
 
 (rf) 2 State Trials, 911, et seq. 
 
362 PRECEDENT CIRCUMSTANCES. [PART II. 
 
 ing signified his willingness to accept the appointment, he 
 •was next persuaded by the same person to expose himself to 
 the king's displeasure, by renouncing it. For this, as was 
 foreseen, he was committed to the Tower. _ Measures were 
 then taken, to have a new lieutenant of the Tower appointed, 
 together with a new keeper. Having, by this means, sur- 
 rounded the victim with persons wholly devoted to their 
 interests, and having cut ofif all communication between him 
 and the world without, his murderers proceeded to accom- 
 plish their design by a series of slow poisons, administered 
 for such a length of time, in so many varieties of forms, and 
 with such unrelenting steadiness of purpose, as to have fully 
 earned for the case and the trials which grew out of it, the 
 emphatic designation bestowed on them by Lord Coke, of 
 " the great Oyer- of poisoning." (a) 
 
 In order to render opportunities for crime efficacious, pos- 
 session of adequate physical means for its commission is, of 
 course, always essential! These means, as a subject of con- 
 templation in connection with motives, have already been 
 briefly dwelt on. (6) They have been further alluded to, 
 as objects of acquisition, under the head oi preparations, (c) 
 They will now be finally considered as subjects of actual 
 possession, ready for use, and kept in store, until the desired 
 opportunity is found to present itself. 
 
 The possession of physical instruments or means of crime, 
 under circumstances of suspicion, is always an important 
 fact in judicial investigations of its cause. Its importance, 
 however, depends, in a considerable degree, upon the char- 
 acter of the instruments themselves, and of the person pos- 
 sessing them. Some instrumints are of such a kind as to 
 indicate a criminal object on their pice, being designedly con- 
 Co) 2 St. Trials, 929. In this case there were seven distinct trials for mur- 
 der, in all of which, except one, the accused were found guilty. Id,. 911 — 1022. 
 (6) See ante. Section IV. 
 (c) See ante. Section X. 
 
CHAP. I.] OPPORTUNITHS FOE CPJME. 363 
 
 structed for an unlawful purpose, and incapable of any other 
 than an unlawful use. Of this description are secret explo- 
 sive machines, burglars' tools, and implements for counterfeit- 
 ing and coining money ; (a) which no honest or well-dis- 
 posed person can be supposed to have any motive for pos- 
 sessing. Secret implements of assault and mischief, and 
 dangerous weapons expressly proscribed by law, (6) appear 
 to come under the same head. The finding of these in the 
 possession of an accused person, unless such possession is 
 shown to have been the result of accident, or the intentional 
 act of another, is always a strong circumstance to show 
 guilt. Poison is an instrument of mischief peculiarly sus- 
 ceptible of an unlawful use, though not so exclusively or 
 uniformly, as the instruments just mentioned ; it being 
 frequently employed in families, for the destruction of noxious 
 animals and other household purposes. The mere posses- 
 sion of poison, therefore, in the absence of other criminative 
 circumstances, is a fact of small importance. Where, how- 
 ever, it is found to have been so procured and left, or to be 
 so prepared and disposed, as to raise a presumption that it 
 was intended to be taken by, or administered to a human 
 being, it assumes a very different and far more important 
 character. Fire-arms, knives and other deadly weapons 
 indicate their intended uses still less conclusively than 
 poison, being constantly kept in the possession of the best 
 disposed persons, and admitting of many innocent and law- 
 ful applications. 
 
 The inference deducible from the possession of the means 
 of crime depends also, in a material degree, upon the char- 
 acter, station, and even sex of the person with whom they 
 
 (a) The possession of a die, or other instruments for coining money, with 
 an intent to coin such money, is a misdemeanor at common law. Murphy's 
 case, 4 Rogers' City Hall Recorder, 42. Dorset's case, 5 Id. 77. And see the 
 English statute, 2 William IV., o. 34, s. 10. Rosooe's Crim. Evid. 400. 
 
 (A) The keeping or carrying of slung-shot was made a distinct indictable 
 offence in New York, by Act of April 7, 1849. Session Laws, 1849, p. 403. 
 
364 PRECEDENT CIRCUMSTANCES. [P-*-^^ "• 
 
 are found. Thus, the possession, by a locksmith, of imple- 
 ments for picking or opening locks, and of moulds for making 
 keys, being in the ordinary course of his calling, would not 
 even awaken suspicion of any unlawful purpose. The same 
 would be the case with poisonous materials found on the 
 person or premises of a physician, druggist or chemist, who 
 deal frequently or habitually in such substances, (a) So, 
 the mere possession of counterfeit notes or coin may, in the 
 case of most persons, be an innocent or indifferent circum- 
 stance ; any person being liable to receive an occasional 
 spurious note or coin, in the course of dealing with others : 
 while, in other cases, as where the possessor is proved to be 
 of bad character, or is found in close connection with known 
 counterfeiters, or utterers of counterfeit money, it may 
 amount, in itself, to a positive statutory offence ; the intent 
 to pass the money being inferred from the attending circum- 
 stances. (6) So, the possession by a female, of a loaded 
 pistol or razor, might be a circamstance of a highly crimi- 
 native tendency, (c) 
 
 Another circumstance tending to throw light on the object 
 with which instruments of mischief are procured or kept, is 
 the exhibition of any desire or attempt to conceal them. In 
 Mary Blandy's case, the poison was disguised under a false 
 name, (if) In James Hill's case, the incendiary contri- 
 vances were covered up in various ways, the prisoner fre- 
 quently changing his lodgings, (e) In other cases, fire-arms 
 have been found hidden in haystacks and other by-places. (/) 
 Implements for counterfeiting and counterfeit money are al- 
 ways concealed by those who keep * them for use, with the 
 
 (a) See Wills, Giro. Evid. 46. 
 
 (6) The People v. Gardner, 1 Wheeler's Grim. Coses, 23. See 2 New 
 York Revised Statutes, [674] 858, 859, §§ 36—38. (4tli ed.) 
 
 (e) The finding of a smith's vice in the possession of a woman, would be a 
 suspicious circumstance. Rex v. Heath and Crowder, Wills, Giro. Ev. 98. 
 
 (d) See ante, p. 349. 
 
 (c) 20 State Trials, 1317. 
 
 (/ ) Rex V. Howe, Wills, Circ. Evid. 234. 
 
CHAP. I.J POSSKSSION OP MEANS. 365 
 
 greatest care. Tliis concealment, however, is not peculiar 
 to preparations for crime, but also takes place (and perhaps 
 more uniformly,) after the offence has been committed ; as 
 will be fully considered under a future head, (a) 
 
 The possession of the means of crime becomes a more 
 forcible indication of a guilty purpose, if false reasons are 
 assigned to account for it ; as, in the case of possessing 
 poison, that it was procured to destroy vermin. (&) This 
 common pretext, together with others, has been already 
 adverted to. 
 
 SECTION XII. 
 Attempts to commit crime. 
 
 The last link in the chain of precedent circumstances 
 which have been mentioned as tending to connect a crime 
 with its perpetrator, consists of actual attempts to commit 
 it. These leave no room for doubt as to the motive or pur- 
 pose of the party by whom they are made. They stop short 
 only of the actual perpetration of the crime itself, and, in 
 some cases, constitute in themselves a species of criminal 
 offence, though of a grade inferior to that of the offence 
 intended, (c) 
 
 Attempts are also important circumstances, where a 
 subsequent fatal or injurious act has been committed by the 
 same person, to determine its legal character. Thus, on a 
 
 (a) See post. Section XVII. and Section XVIII. 
 (J) Wnis, Circ. Evid. 46. 
 
 (e) See Wharton's Am. Grim. Law, book 6, c. 15, p. 871. (ed. 1855.) 2 
 New Toik Revised Statutes, [698,1 881, § 3. (4th ed.) 
 
S66 PRECEDENT CIRCUMSTANCES. [PART 11. 
 
 charge of maliciously shooting another, where it was ques- 
 tionable whether the act proceeded from accident or de- 
 sign, the fact that the accused had intentionally shot at 
 the same person, a short time before, goes strongly to show 
 that the shooting in the second instance was intentional, (a) 
 This branch of the subject has already been considered under 
 the previous head of motives. (&) 
 
 The criminative force of evidence of attempts becomes 
 vastly increased, where they appear to have been often re- 
 peated by the same person, either in the same or a different 
 form. In Mrs. ArdetCs case, (c) an attempt was first made 
 to destroy the deceased by poison, which his wife administer- 
 ed to him in some milk, and from the effects of which he 
 had a very narrow escape. Several other attempts were 
 then made by the aid of a hired desperado, before the crimi- 
 nal purpose was accomplished. In the case of Common- 
 wealth V. Hauer, {d) attempts appear to have been made 
 to poison and to hang, before the final assault with pistol 
 and axes. 
 
 In concluding the present division of the subject, it may 
 be observed generally, that the several precedent circum- 
 stances which have just been considered, taken in the order 
 in which they have been arranged, serve to illustrate, with 
 much force, the entire progress of criminal affection, from 
 the moment it first obtains a lodgment in the mind, to that 
 of conceiving a distinct criminal purpose, and carrying such 
 purpose into full efiect. Where they are all shown to co- 
 exist, in any particular case, they furnish the most complete 
 basis of preliminary evidence that can be made out against 
 an accused party. But they are not all of equal weight or 
 
 (a) Rex V. Voke, Russ. & R. Cr. C. 653. 
 (A) See ante, p. 811. 
 
 (c) 5 liondon Legal Observer, 59. 
 
 (d) 2 Chandler's Am. Criminal Trials, 353, 365. 
 
CHAP. I.] ATTEMPTS AT CRIME, 367 
 
 importance. Motive, means and opportunity, (either actually 
 shown or effectually inferred,) are the only circumstances 
 in the series, which may be pronounced essential as elements 
 of criminatiTC evidence. The others may or may not co- 
 exist with them. A crime may be satisfactorily proved, and 
 yet no previous declaration, preparation or attempt, by the 
 accused, be shown. Indeed, there are few cases in practice 
 in which all these circumstances are found to occur together. 
 They are met with, in combinations varying constantly, ac- 
 cording to the case and the crime. In murder and arson, 
 the combination is most apt to be complete ; yet, in some 
 murders, there is no verbal expression of animosity, or de- 
 claration of intention whatever ; in others, no preparation, 
 or only that of the most hasty kind. In burglary, robbery, 
 forgery and theft, verbal indications of purpose are never 
 met with. 
 
368 CONCOMITANT CIRCUMSTANCES. [PART II. 
 
 SECTION XIII. 
 Concomitant Circumstances. 
 
 The next division of circumstances, to be considered in 
 treating of that kind of circumstantial evidence which is 
 derived from the conduct and relations of the accused 
 party, as serving to connect hini with a crime committed, 
 comprises those which actually accompany its commission. 
 These are, usually, of a much more important and decisive 
 character in establishing special criminal agency, than those 
 which have just been considered, under the distinctive 
 title of precedent circumstances, inasmuch as they, for 
 the most part, constitute portions of the res gesta, or trans- 
 action itself. And this division may, without impropriety, 
 be extended so far as to include not only those circumstan- 
 ces which are strictly contemporaneous with the criminal 
 act, but those also, which immediately precede and follow it. 
 
 The great leading circumstance of this class, the one 
 which first occurs for consideration, and the one of which 
 evidence is always specially sought, is that of presence, on 
 the part of the accused, at the scene of crime, or company 
 or juxta-position with the subject of it, at the time of its 
 commission ; or, at least, of proximity or vicinity of the 
 accused to the scene or subject of the crime,' about suqh 
 time, (a) This circumstance, in connection with others, 
 and sometimes with the aid of a very few others, is con- 
 stantly employed as a means of establishing, by a necessary 
 
 (o) Proximity, in point of time and space, to the scene or subject of a crime, 
 has been classed by Mr. Starkie, among physical or mechanical coincidences; 
 and, 60 far as persons are considered as material objects, the classification is 
 undoubtedly correct. 1 Stark. Eyid. 484, 485. But, as a circumstance indi- 
 cative of conduct, in which character it possesses great prominence, it belongs 
 to the class of facts or circumstances designated, in the present work, by the 
 term "moral." 
 
CHAP. I.] PROXIMITY AND VICINITY. 369 
 
 or a reasonable inference, the presumption of his agency or 
 participation in the criminal act. 
 
 In the crime of murder, which occurs first for consider- 
 ation, this important fact of presence or vicinity is deduced 
 from a variety of circumstances, constituting presumptions 
 of various degrees of force, according to the case. The 
 strongest form of presumption against a person accused of 
 this offence, arises from circumstances which, while they 
 show his presence at the scene of crime, at the time of its 
 commission, exclude, at the same time, the supposition of the 
 presence of any other person ; leading, in fact, rather to a 
 necessary conclusion than to a presumption, in the proper 
 sense. The force of the evidence, in these cases, consists in 
 the concurrence or coincidence of the three leading circum- 
 stances of person, time and place. The closer these are 
 brought to the subject of the crime, the stronger their effect 
 to demonstrate the presence of the accused, and to show 
 such presence to have been exclusive. 
 
 Proximity, on the part of the accused, as thus presented 
 for consideration, may be, in itself, of various degrees, from 
 mere vicinity, up to actual juxta-position or contact. It 
 may also be of various kinds, such as proximity- to the per- 
 son of the deceased, or to the scene of the crime, or to both ; 
 and it may exist at different stages ; as before the commis- 
 sion of the crime, or afterwards, or both before and after. 
 And the effect of this circumstance is the same, whether it 
 grows out of the immediate act of the accused, or out of 
 that of the deceased himself; as where the accused is not 
 seen at all, but is known to occupy premises which the de- 
 ceased is observed to approach or enter. 
 
 The strongest form in which this circumstance can be 
 presented, and the one which requires the least reasoning to 
 give it effect, is undoubtedly that of the juxta-position of the 
 persons of the accused and deceased, proved, by actual 
 observation, to have existed both immediately before and 
 
370 CONCOMITANT CIRCUMSTANCES. [PAET II. 
 
 imraodiately after the crime is perpetrated. These show 
 presence at the moment of actual perpetration, -with the 
 greatest effect possible, short of direct evidence ; and they 
 may be so connected by the circumstances of time and 
 place, as to have the full exclusive operation just mentioned. 
 For example, — :two persons are seen alive- together in a 
 room having but one means of entrance or exit ; and an 
 alarming sound or outcry is heard, and the room is immedi- 
 ately entered ; and one of the persons is found dead or 
 dying from a mortal wound or stroke, and the other stand- 
 ing near him ; and no other person is seen. Here, the imme- 
 diate entry, in connection with the physical character of the 
 place, would demonstrate the impossibility of the presence of 
 any third person ; and, assuming a corpus delicti, or that it 
 is, in fact, a case of murder, the perpetrator would be as 
 clearly indicated by the mere force of the circumstances, as 
 if he had been seen to inflict the wound ; the case being one 
 of circumstantial evidence of the certain kind. The cir- 
 cumstance of lime is here of the utmost importance ; for if 
 the room were not entered immediately, but only after an 
 interval suf&cient to allow the escape of another person, the 
 exclusive cha,racter and effect of the circumstances would be 
 destroyed. This may be illustrated by the well-known 'case 
 of Jonathan Bradford, (a) in which the person who com- 
 mitted the murder found means to escape from the chamber 
 of the deceased, only the instant before Bradford entered it. 
 The character of the place, also, is essential to the exclu- 
 sive effect just mentioned. If it were a house, with distinct 
 entrances, and the usual variety of apaxtments, admitting 
 of at least the temporary concealment of a person, the mere 
 facts that two persons were seen alive in it, just before the 
 murder, and that, upon entering, one of them was found 
 dead, from a mortal wound, would not, of themselves, author- 
 ize the inference that the other had killed him ; even though 
 
 (a) Theory of Presumptive Proof, Appendix, case 7. 
 
CHAP. I.] PROXIMITY AND VICINITY. 371 
 
 no otlier persoa was found in the house, and though the front 
 entrance had been carefully watched, up to the time of entry, 
 and no one had been seen to go in. (a) 
 
 Lord Cokeys example of a violent presumption is of a 
 house in which a man is run through with a sword and dies, 
 and another is seen coming out of it with a bloody sword ; 
 and no other person was at the time in the house. (&) The 
 particular circumstances, indicative of this last fact, are not 
 stated ; but the fact itself is assumed in its broadest foitn, 
 and it undoubtedly constitutes the foundatiou of the pre- 
 sumption spoken of. Where this fact is clearly 7?roi;erf, it is 
 not indeed, necessary that the persons of the accused and 
 deceased should be actually seen together, either before or 
 after the commission of the crime. If they were in different 
 parts of the same house, it would be sufficient ; or even if 
 
 (a) Want of attention to these considerations resulted in tlie conviction and 
 execution of an innocent person, in a case which is said to have happened at 
 Dublin, more thin a century ago. It was not really a case of murder, but of 
 accidental, though most singular death. The person 4ho witnessed it, and 
 who had been admitted into the house by a back entrance, had tried to staunch 
 the fatal wound; but finding this ineffectual, and hearing the sound of ap- 
 proaching fi)ot3teps, and being fearful of the consequences of being found 
 alone 'with the dead and bleeding body, concealed himself in the house, behind 
 the front door; and as soon as a crowd of persons had collected, on hearing 
 the alarm, mingled with them . By this means he succeeded in escaping into 
 the street, unobserved, and hurrying immediately to the quay, got on board 
 an American vessel, and left the country in a few hours. On searching the 
 house, no one was found but the occupant, a surgeon of high standing and 
 blameless character. But the death appearing to have been produced by a 
 surgical instrument found near the body; and a bloody shirt marked with the 
 surgeon's initials having been found concealed in the coal-hole; and a female 
 who lived in the opposite house having declared that she had watched the 
 house all that day, and that no one left or entered It that day but himself ; 
 these circumstances, together with the surgeon's agitation on seeing the body , 
 were made the feundation of a charge of murder against him. The facts 
 were proved on the trial, and no defence being offered but a, simple denial of 
 guilt, the accused was convicted and executed. See an article in the New York 
 Mbion, October 28th, 1854. 
 
 (6) Co. Litt. 6 b. See ante, p. 61. 
 
372 CONCOMITANT CIRCUMSTANCES. [PAET II, 
 
 the accused were only seen entering the house just before, 
 and coming out of it immediately after ; or only in the act 
 of coming out, as in Lord Cokeys example. 
 
 It is seldom, however, that cases occur, presenting merely 
 these leading circumstances of personal proximity, time and 
 place. On the contrary, they are almost uniformly associ- 
 ated with other minor circumstances, immediately precedent 
 or subsequent, or both, which have the double effect of 
 proving a corpus delicti, and fixing the guilt of it upon the 
 particular party whose exclusive presence is shown. As 
 where a person is seen going into the apartment of another, 
 with a loaded pistol ; and, soon after, a shot is heard from 
 within ; and the apartment is immediately entered, and the 
 occupant is found dead or dying from a mortal wound ; and 
 the other person is seen standing near, with a discharged 
 pistol ; and the wound is conclusively shown to have been 
 inflicted with a pistol in the hands of some other person 
 than the deceased ; and no third person is found in the 
 apartment, (a) 
 
 The next form of personal juxta.-position, from which a 
 presumption of guilt may be deduced against an accused 
 party, is where it is observed to exist only after, and not 
 before the commission of the crime. As where a man is 
 found in a house, or in the open air, recently dead or 
 dying from a mortal wound ; and another is seen standing 
 
 (o.) In a case tried in Indiana in 1820, the facts were similar, but still more 
 conclusive. The prisoner, having loaded a pair of pistols, and placed one in 
 each pocket of an overcoat, which he had put on for the purpose of concealing 
 , them, followed the deceased to hia office-door, waited until the latter unlocked 
 the door and entered, and then went in after him. In less than a minute, a 
 pistol-shot was heard, and, the room being immediately entered, the deceased 
 was found on the floor dying, and the prisoner standing beside him; the room 
 being filled with smoke and the smell of powder. The pistols were found 
 lying on the counter; one discharged of its contents, the other still loaded. 
 The prisoner, on being interrogated, acknowledged his guilt, and said he 
 gloried in the deed. Commonwealth v. Fuller, Lawrenceburg (Indiana) 
 Circuit Court, March, 1820. 2 Wheeler's Criminal Cases. 223, 
 
CHAP. I.J PBOXIMITT AND VICINITY. 378 
 
 by him, or stooping over him, or busied about him, or even 
 just leaving him. If the circumstances of time and placo 
 concur (as they may,) in excluding the presence of any 
 other person, the result would be the same as in the pre- 
 ceding description of cases ; a previous juxta-position being 
 necessarily inferred. Lord Cokeys example is of a person 
 escaping from a house in which another is found dead by 
 violence ; and yet it assumes an exclusive presence. Brad- 
 ford's case was one of subsequent actual juxta-position of 
 persons, belonging strictly to the division now under con- 
 sideration. He was found at the side of the bed on which 
 the murdered man lay, stooping over him. But in these 
 cases, there are usually accompanying circumstances, afford- 
 ing coincidences and leading to inferences which serve, in a 
 greater or less degree, to strengthen the presumption of 
 guilt. Lord Coke's example represents the escaping party 
 as having a bloody sword; the person in the house having 
 been slain with such a weapon. Bradford s case presented 
 the accused in the very attitude described by the ancient 
 English law, — standing over a dead man, with a bloody 
 knife, {sv/per mortuum cum cuUello sanguinolento,) (a) his 
 
 (n)' The ancient rule, as to the effect of a man's being found in this situation, 
 and of being found alone in the same house with a dead person, has already 
 been considered. {See ante, p. 62, note (d)). With all the severity of this 
 rule, the great force of the circumstances from which it was deduced, has 
 been attested by the common experience and practice of mankind in all ages. 
 There seems to be a sort of instinctive dread, from which the innocent are not 
 always exempt, of being found alone, especially in a house, with the body of a 
 person just dead by violence, or even presenting the appearances of such a 
 death. Guilty persons constantly evince this feeling, by either ilying pre- 
 cipitately from the spot, or, where this is impossible, by hiding or removing 
 the body itself. Indeed, so decisive is this circumstance felt to be, that rather 
 than suffer the body to remain on the premises of the murderer, the latter will 
 sometimes adopt the hazardous expedient of carrying it out into the open 
 street or field, where detection of the crime is sure to take place, and connec- 
 tion with the criminal almost equally sure to be established. (See the cases 
 of Mrs. Arden, 5 Lond. Leg. Observer, 59; and of The People v. Johnson, 2 
 Wheeler's Crim. Cases, 361.) Even the innocent have been known to consult 
 
374 CONCOMITANT CIRCUMSTANCES. [PAST II, 
 
 hands also being bloody ; and these facts doubtless had a 
 controlling influence in bringing about his conviction; al- 
 though the fundamental criminative fact of an exclusive 
 presence was not shown, and did not, in truth, exist. 
 
 There is an important class of cases which may be re- 
 ferred to this head, where a degree of proximity, approach- 
 ing or. amounting to juxta-position, has been observed after 
 death, but which, as observed, is not personal but local, 
 justifying, however, and sometimes requiring the inference 
 of its having been personal ; as where the body of the de- 
 ceased, or its remains, have been found on premises inhabited 
 or occupied by the accused, or proved to have been upon 
 such premises shortly after the commission of the crime. 
 These cases are, in the abstract, liable to the general infirma- 
 tive supposition that the body or remains may have been 
 purposely placed in this situation by a third person, — the 
 real perpetrator of the crime, — with the view of fixing 
 suspicion on the occupant of the premises. But they may 
 be attended by circumstances which effectually negative this 
 supposition, by excluding the presence and agency of any 
 other person than the accused ; as where the body or re- 
 mains are found in a part of the premises to which the ac- 
 cused alone had access. In Robinson's case, (a) the body 
 of the deceased was found buried under the basement floor 
 of the prisoner's own house. In Webster^s case, (6) por- 
 tions of the remains were actually found under the prisoner's 
 private lock and key. In CoWs case, (c) the box enclosing 
 
 their own safety by similar methods, and sometimes with the most deplorable 
 consequences to others. (See the case in the note, anJe, p. 371.) The true 
 mode of escaping the dreaded imputation, where it is, in fact, unfounded, was 
 indicated by the old law, — instantly raising the " hue and cry; " equivalent, 
 in modern practice, to giving the alarm, or making the fact publicly known. 
 
 (a) The State v. Robinson, Middlesex (N. J.) Oyer & Terminer, March, 
 1841. Pamphlet Report, 8, et seq. 
 
 (4) Commonwealth v. Webster, Bemis' Report, 117, 118, 120, 145, 157. 
 
 (c) The People v. Colt, New York Oyer & Terminer, January, 1842; testi- 
 mony of Richard Barton. 
 
CHAP. I.J PROXIMITY AND VICINITY. 375 
 
 the body was not found on the premises of the accused ; but 
 it was directly traced there, and proved, beyond doubt, to 
 have been there for some hours. Indeed, the accused him- 
 self had it taken out and placed upon a cart, and superintend- 
 ed, in person, its transmission to the vessel on board of 
 which it was found ; thus establishing, by necessary infer- 
 ence, the fact of a personal justa-position of the very 
 strongest kind. Cases of this kind also involve the neces- 
 sity of a proximity on the part of the deceased, while living, 
 to the premises -which were the scene of crime ; and fre- 
 quently such proximity becomes the subject of actual observ- 
 ation and evidence. In all the cases last referred to, the 
 deceased, when last seen alive, was seen in the act of ap- 
 proaching or entering the premises of the accused, and was 
 never seen to come out again. This circumstance is often 
 of the greatest importance, first, as tending to supply any 
 deficiency of proof of the identity of the body, where the 
 head or face has been destroyed or mutilated ; and, sec- 
 ondly, as aiding to rebut the infirmative supposition that the 
 deceased was killed by some other person. 
 
 The next form of actual juxta-position of the persons of 
 an accused and deceased individual, from which a presump- 
 tion of guilt may be deduced, is that which has been observed 
 to exist only previous to the commission of the crime ; as 
 where the body of a murdered person is found in a building, 
 or in the open air, and no one is or has been seen near it ; 
 but, some time before the body is found, or the crime ascer- 
 tained to have been committed, the deceased was seen in 
 company with the accused, and not far from the spot. The 
 criminative effect of these circumstances is dependent, as in 
 the cases before considered, upon those of time and place ; 
 or, in other words, upon the distance from the point where 
 the parties "were observed, to tliat where the body is found, 
 and the length of time which may have intervened. These 
 intervals may be so short as to render the supposition of the 
 
376 CONCOMITANT CIECUMSTANCES. [PART II. 
 
 intervening presence of a third person extremely improb- 
 able ; but it is seldom that they have the positively exclv^ 
 sive effect noticed in the preceding classes of cases. The 
 circumstance of previous personal juxta-position is, however, 
 always an important one in itself, as furnishing a starting 
 point of investigation, and a means of arriving at the 
 knowledge of other circumstances. Hence, where a person 
 has been found dead by violence, and no one near the body, 
 or has suddenly and unaccountably disappeared, the first 
 inquiry which naturally suggests itself, and the one which, 
 in fact, is always made, is — " In whose company was he last 
 seen alive ? " In Corder's case, (a) the deceased was last 
 seen walking with the accused towards a barn, under the 
 floor of which the dead body of the former was afterwards 
 found buried. In Johnson's case, (6) the deceased was 
 last seen alive in company with the prisoner, at the door of 
 the latter's house, within which abundant physical evidences 
 of the murder were discovered. In the celebrated case of 
 Spencer Cowper, (c) much stress was laid on this circum- 
 stance to criminate the accused. He was visiting the de- 
 ceased at her mother's house, and the two were seen in 
 company, in a lower room, until a late hour. The maid of 
 the house having gone up stairs, heard the front-door shut 
 to, and, on coming down, found that they had both gone out. 
 The deceased did not return home that night, and, the next 
 morning, her body was found in a stream not far from the 
 house, with appearances which were thought to indicate a 
 violent death from the hands of another. But the doubts 
 which arose on this point, together with the high standing 
 of the accused, operated to produce a verdict of acquittal. 
 
 (a) Rex V. Corder, Celebrated Trials, 215. (Phil. 1835.) 
 (6) The People v. Johnson, New York Oyer & Terminer, March, 1824; 2 
 Wheeler's Crim. Cases, 374, 375. la Eugene Aram's case, the prisoner and 
 one Houseman were the persons last seen with the deceased, 
 (c) 13 Howell's State Trials, 1105, 1112, 1113. 
 
CHAP. I.J PEOXIMITT AND VICINITY. 377 
 
 In TliorntorCs case, (a) the prisoner and the deceased were 
 seen walking together, at a very late hour of the night on 
 ■which the latter came to her death ; and they were proved, 
 hy the physical evidence of foot-prints, to have been in the 
 same field with the pit in which the dead body was found, 
 and in the immediate vicinity of such pit. But the evidence 
 as to the important circumstance of time, failed to give to 
 the facts their full criminative effect ; and upon this ground, 
 together with a doubt as to the corpus delicti, the accused 
 was acquitted. (6) 
 
 We come next to that description of cases in which no 
 actual juxta-position of persons has been observed, either 
 before or after the commission of the crime, but only prox- 
 imity to the scene of crime, of various degrees of closeness ; 
 and this proximity may be either on the part of the subject 
 of tLe crime, or of the supposed perpetrator. Where a 
 homicide has been committed on premises occupied by the 
 accused, which the deceased had been induced to visit, the 
 proximity requiring most attention is that of the deceased to 
 such premises ; proximity on the part of the accused being 
 either necessarily or reasonably inferable from the fact of 
 occupancy itself. The importance of this fact, in connec- 
 tion with that of finding the body or remains of the de- 
 ceased on such premises, has already been considered. 
 
 But the species of proximity which it most frequently 
 becomes necessary to investigate, particularly in accusations 
 of murder, is that of the accused to the scene of the crime ; 
 whether it were the house of the deceased himself, or of 
 some third person, or in the open air ; and whether before 
 or after the commission of the crime, or both ; and this may 
 
 (o) Rex T. Thornton, Celebrated Trials, 97. 
 
 (4) For other oases in which the deceased was last seen alive in company 
 with the accused; see Bell's case, 1 London Legal Observer, (Monthly,) 318. 
 Johnson and Fare's case, 5 Lond. Leg. Observer, 254. John Adam's case, H 
 Id. 41.5. 
 
378 CONCOMITANT CIRCUMSTANCES. [PART II. 
 
 be of very various degrees. In BarboVs case, (a) the 
 prisoner was not observed on bis way to the scene of the 
 crime, — the time being a late hour of the night ; but he was 
 seen, the next morning, returning from the spot in a canoe : 
 and was satisfactorily traced all the way to his home. In 
 Stewart's case, (6) the accused was seen in the neighbor- 
 hood of a ferry over which the deceased was expected to 
 pass, inquiring of the ferry-man, if he had passed. Soon 
 after the deceased had come across the ferry, he was shot 
 and killed by some person concealed in a wood through which 
 the road lay ; and, a few hours afterwards, at night-fall, the 
 accused was seen and spoken with, on a hill just above the 
 spot. In Harrison's case, (c) the prisoner had been seen, 
 at a late hour of the night, in a hackney-coach in which 
 the deceased was soon after found strangled. In Richard- 
 son's case, QT) the prisoner was seen by a person not far 
 from the house, in which the deceased was, on the same 
 morning found murdered, running towards it. In Howe's 
 case, (e) the prisoner had been seen on the road leading to 
 the spot where the murder was committed, and not far from 
 it, about the time of its commission ; and, about an hour 
 after, was seen going in great haste from the spot, in a 
 different direction. In Carawan's case, (/) the prisoner 
 was seen to leave his house, soon after the appearance of 
 the deceased on the road leading by it, and to go across ^a 
 field in the rear of his premises, to a point where a range 
 of woods began, which included the spot where the body of 
 the deceased was afterwards found. The report of a gun 
 
 (a) Rexy. Barbot, 18 State Trials, 1271—1276. 
 
 (i) Rex V. Stewart, 19 Id. 93, 108, 109. The principal criminal in this 
 case escaped , and was not tried. 
 
 (c) Rex V. Harrison, 12 State Trials, 849, 850. 
 
 (i) See ante, p. 245. 
 
 (c) Rex V. Howe, Wills, Giro. Evid. 236. 
 
 (/) The State v. Carawan, Superior Court, Beaufort County, (N. C.) 
 Fall Term, 1853; Pamphlet Report, 44, 51, 52. 
 
CHAP. I,] PEOXIMITT AND VICINITY. 379 
 
 ■was heard, not long after, and the prisoner subsequently re- 
 turned to his house. In McCamCs case, (a) the prisoner 
 was seen taking the same road with the deceased, who was 
 riding home, and keeping in his rear, until near dark, when 
 he left the road. A pistol-shot was heard soon after ; and, 
 the next day, the body of the deceased was found in a clump 
 of bushes, not far from a private road leading from the 
 public road on which both the parties had been seen. In 
 both these cases, as well as in the later case of Wood, the 
 proximity observed was to the person of the deceased, as 
 well as to the scene of the crime. In Wood^s case, (6) 
 the deceased was seen on the road, resting against a fence, 
 and the prisoner about forty yards off, approaching him. 
 
 The next and last description of cases remaining to be 
 considered under the present general head, embraces those 
 in which such care has been taken by the criminal to avoid 
 observation, that he has not been seen, either at or near the 
 scene of the crime, or going towards it, or going from it, but 
 his proximity, and indeed his presence are inferred from his 
 movements at other points, before and after the crime was 
 committed ; as where, on the same night with the commis- 
 sion of a murder, the accused was known to have absented 
 himself from his house or lodgings ; — the interval of his 
 absence corresponding with the time at or during which the 
 crime is known to have been perpetrated. In Rush's 
 case, (c) the prisoner left his house in the evening, not 
 long before the deceased who lived in the neighborhood, was 
 shot, and returned at about nine o'clock. The facts stood 
 in a similar relation in the late American cases of The 
 People V. How, QT) and Commonwealth v. Spring, (e) An 
 
 (a) The Slate v. McCann, 13 Smedes & Marsh. 476, 477, 478. 
 
 (A) The People v. Wood, Greene (N. Y.) Oyer & Terminer, Nov. 1853. 
 
 (c) Regina y. Rush, Burke's Trials, connected with the Upper Classes, 495. 
 
 (d) 2 Wheeler's Crim. Cases, 412. 
 
 (c) Philadelphia Crim. Court, March, 1858. 
 
380 CONCOMITANT CIECUMSTANCES. [PAET 11 
 
 interval of absence even by day, from the party's place 
 of business, or place of work in the open air, where it cor- 
 responds with the time of the commission of a crime in the 
 vicinity, will justify a similar inference as to his probable 
 participation in it. In Richardson^ s case, (a) where the 
 murder was perpetrated in open day, the time of its com- 
 mission was found to correspond accurately with the inter- 
 val during which the accused had been absent from his 
 fellow-workmen on the same forenoon. And, where the time 
 of the perpetration is ascertained with any precision, the 
 shorter the interval of absence is, provided it admits of the 
 possibility of the accused being concerned in the act, the 
 greater its force as a ground of inference against him. In 
 the case last mentioned, it was narrowed down to the short 
 space of half-an-hour. 
 
 The weight and force of facts like these, when considered 
 by themselves, consist merely in the coincidences and cor- 
 respondences of time which they present ; rendering the 
 fact of presence probable in various degrees, but possessing 
 no exclusive efficacy, like that adverted to under previous 
 heads. To give them any degree of probative force, they 
 must be considered in connexion with other contemporane- 
 ous facts ; and, indeed, the classes of cases previously 
 noticed, where an actual proximity to person or place has 
 been the subject of observation, often require to be strength- 
 ened from these sources, and, with such an accession, be- 
 come, through the process of inference, convincing, in a 
 very strong degree. A false excuse given as a reason for 
 the coincident absence, serves to impart to the latter circum- 
 stance a criminative aspect which it otherwise would not pos- 
 sess, (i) But the two leading circumstances most relied on 
 for this corroborative effect, are those of haste and secrecy, 
 on the part of the accused, at the times noticed. In Barbofs 
 
 (a) Ante, p. 245. 
 
 (6) Thus, in Richardson's case, the reason given by the accused for leaving 
 his companions, was that he wanted something at a smith's shop, which stood 
 
CHAP. I.J PROXIMITY AND VICINITT. 381 
 
 case (a) the prisoner clandestinely left the house at which 
 he was staying, at a late hour ; and, about midnight, a 
 horse was brought to a public house at some distance, where 
 he stopped, the next morning on his return, and rode home. 
 In Stewart's case, (ft) one of the accused parties, when 
 seen before the criminal act, appeared to be avoiding observ- 
 ation, as his manner in interrogaUng a ferry-man strongly 
 showed, (c) His conduct afterwards, in remaining out of 
 doors, in solitary places, even at night, not venturing into 
 houses, even to converse with their inmates, but calling them 
 out, and conversing under the cover of darkness, was of a 
 corresponding character. In Richardson'' s case, (^d) the 
 prisoner took a different course in leaving the house where 
 the crime was committed, from that by which he approached 
 it, and by that means contrived to escape unseen ; but the 
 prints left by his feet revealed his movements with the 
 greatest distinctness, showing also the very important fact 
 that he had run from the house, as well as towards it. In 
 Carawan's case, (e) the prisoner not only took a circuitous 
 course, in leaving his house, in order to avoid being seen 
 with a gun, but gave the gun to his wife, who followed him, 
 to carry ; but her precautious to conceal it under her 
 apron were not suf&cient to prevent its being seen. In 
 McCann's case, (/) soon after the report of the gun was 
 heard, a horse was heard by one witness, galloping from 
 
 at some distance; although it did not appear that he had any occasion to go 
 there. See unte, p. 244. 
 
 (o) 18 State Trials, 1259, 1269. 
 
 (6) 19 Id. 108—111. 
 
 (c) The ferryman testified that, as he was sitting near the ferry of Ballach- 
 elish, with another person, the accused came behind them and hoasted, 
 [coughed,] and upon deponent's looking about, desired him to come to him, 
 which the deponent did, and the accused enquired of him, if Glenure had 
 crossed the ferry. Id. 108. 
 
 (d) See ante, pp. 243, 245. 
 
 (c) The State T. Carawan, Pamphlet Report, 51, 52. 
 
 (/) The State v. McCann, 13 Smedes & Marshall, 478, 480. 
 
382 CONCOMITANT CIRCUMSTANCES. [PART II. 
 
 that direction towards the prisoner's residence ; and, it being 
 moonlight, both horse and rider were indistinctly seen by 
 another. In How's case, (a) the prisoner was observed 
 by those who saw him just before the murder, with some- 
 thing resembling a stick concealed under his great coat; 
 his manner also appearing strange. About midnight, a man 
 of the prisoner's size passed one of the witnesses, on horse- 
 back, going in a direction towards the house of the deceased ; 
 and, about half-an-hour afterwards, a man passed back, 
 riding with such speed, that the witness supposed he was 
 going for a physician. On going, soon after, to the prisoner's 
 stables, one of his horses was found wet and smoking, as if 
 lately ridden ; and a short rifle was found in the house, with 
 a horse-hair under a piece of the mounting. In Rush's 
 case, (&) the prisoner had left his house by a back way, 
 and on his return exhibited such an appearance of paleness 
 and agitation, as to draw from the woman with whom he 
 lived, the emphatic exclamation, " For God's sake, what 
 have you done ? " 
 
 Evidence of the leading circumstance of proximity or 
 presence, which has just been considered, when presented 
 by the testimony of eye-witnesses, obviously involves that of 
 the identity of the person seen, with the accused or deceased, 
 as the case may be. Where such person is known to the 
 observer, or his face has been distinctly seen long enough to 
 impress the memory, such identification is made by the wit- 
 ness swearing positively that he was the man. In other 
 cases, it is proved by evidence of circumstances from which 
 the identity may be inferred ; such aa stature, size, dross, 
 voice, manner and the like. In Harrison's case, (c) the 
 accused was identified by the peculiarity of his voice ; in 
 
 {a) The People v. How, 2 Wheeler's Crim. Cases, 417—419. 
 
 (6) Begina v. Rush, Burke's Trials, oouneoted with the Upper Classes, 
 495, 496. 
 
 (c) 12 State Trials, 833, 850, 861. See also the case of Charles White, 
 17 Id. 1084. 
 
CHAP. I.] PEOXIMITT AND TTCIiriTT. 383 
 
 Rush's case, (a) by the circumstance of carrying his head 
 on one side. In Burbot's- oaae, (6) the prisoner was identi- 
 fied by his diminutive size and peculiar dress, and he was 
 traced by these very noticeable circumstances, on his return 
 from the scene of the crime, in the most satisfactory manner. 
 In the American case of Ephraim K. Avery, (c) much evi- 
 dence was offered to show that a person resembling the ac- 
 cused, in stature and dress, was seen in the neighborhood 
 of the stack-yard in which the deceased was found hung to 
 a staise, on the evening during which the occurrence took 
 place. 
 
 This circumstance of proximity, a,nd that of presence as 
 inferred from it, may also be made out by that class of facts 
 called physical, which have already been considered ; as by 
 foot-prints of a peculiar kind, found in the vicinity of the 
 scene of the crime, and proved by comparison to have been 
 made by the feet of the accused, (d) And this kind of 
 proof is sometimes more accurate, reliable and decisive 
 than that by eye-witnesses, especially where the party was 
 seen under circumstances not adniitting of accurate observ- 
 ation. Correspondences between destructive weapons or 
 instruments, seen in the hands of the accused before or 
 about the time of the commission of the crime, with those 
 found upon or near the body of the deceased, or with the 
 appearances of such body, may also be classed under this 
 head : such as the correspondence between the bloody 
 sword, in the hands of the person mentioned by Lord Coke, 
 as escaping from a house, with the recent wound made by 
 
 (a) Regina v. Rush, Burke's Trials, 488. 
 (6) 18 State Trials, 1271—1277. 
 
 (c) The State v. Avery, before the Supreme Court of Rhode-Island, 
 May, 1833. In this case, the accused, after a trial of unprecedented length, 
 was acquitted. Bat the case itself is a most instructive one, as exhibiting a 
 great variety of circumstantial evidence, laboriously collected and very skil 
 fiilly combined. 
 
 (d) ilex V. Richardson, ante, p. 244. 
 
384 CONCOMITANT CIRCUMSTANCES. [PAET Ir. 
 
 such an instrument on the person found within-; (a) — the 
 correspondence between a peculiar kind of charge, (two 
 bullets and a slug,) taken from the body of the murdered 
 person, with the same description of charge known to have 
 been put into a gun previously borrowed by the accused ; (i) 
 the latter species of evidence operating to establish actual 
 identity. The whole subject of identification will be con- 
 sidered under a separate head hereafter. 
 
 In the class of cases last mentioned, where the accused 
 has not been seen at or near the scene of the crime, or ap- 
 proaching it, or leaving it, and no physical evidences of his 
 presence are discovered ; but that circumstance has only 
 been inferred from his previous and subsequent movements ; 
 it is always an essential condition to the soundness of such 
 inference, that the circumstances of time and space, covered 
 by such interval, should be carefully taken into view, and 
 found to be entirely consistent with ity and with each other. 
 If it clearly appear that the place where the crime was 
 committed was so distant from the residence of the suspected 
 person, or from the point at which he was last seen, previous 
 to its commission, that it could not be reached by him in 
 time for its commission ; or, supposing it possible for him to 
 have reached it, if there was not time enough during the 
 interval of absence proved, for him to have visited the spot, 
 committed the crime, and returned to his residence, or 
 reached the point where he subsequently appeared to view, 
 the value of the evidence is at once destroyed. This was 
 . the principal ground on which the acquittal of the prisoner 
 in Thornlon's case (c) was rested, and has been justified ; 
 
 (a) Co. Litt. 6 b. Ante, p. 61. 
 
 (4) Major Strangwayes' ease, 5 Load. Legal Observer, 90. In Carder's 
 case, the prisoner was seen with a loaded pistol, while in company with the de- 
 ceased, on the lasfday she was seen alive. Celebrated Trials, 218. (Phil. 1835.) 
 
 (c) Rex T. Thornton, Warwick Autumn Assizes, 1817. See Wills, Clrc 
 Evid. 142—144. 
 
CHAP. I.] PROXIMITT AND VICINTTT. 385 
 
 although some of the accompanying facts were of a highly 
 criminative character and tendency. 
 
 It most commonly happens, however, that the circumstan- 
 ces of time and place do not indicate a conclusion favorable 
 to the accused, in this palpable and summary form, but only 
 raise the question whether it were possible for the accused 
 to have traversed the space supposed, during the interval of 
 time shown. This question was formally raised in Cowper's 
 case, (a) It came also under consideration in the case of 
 The State v. Avery. (6) And it was made the subject of 
 special and earnest argument in the recent case of The State 
 V. Carawan. (c) 
 
 The determination of questions of this character depends 
 upon a variety of accompanying circumstances, which will 
 now be briefly noticed. In the first place, it obviously and 
 essentially depends upon the rapidity with which the ac- 
 cused was seen or known to have been moving at the time ; 
 or his facilities for rapid motion ; as whether he was walking 
 or running, whether he was mounted, or on foot. In Rich- 
 ardson's case, (rf) the interval during which the prisoner 
 had been absent from his companions, on the morning of the 
 murder, was a short one of only half-an-hour, so short, 
 indeed, that it at first escaped their recollection ; but it was 
 proved that he had run both in going towards, and in return- 
 ing from the house in which the murdered person was found ; 
 and this .fact served to render the supposition of his presence 
 a reasonable and probable one. In How's case, (e) the 
 prisoner rode a horse, which, on his return home, he urged 
 
 (a) 13 State Trials, 1177, 1178. 
 
 (6) Supreme Court of Rhode Island, May, 1833. 
 
 (c) Pamphlet Keport of Trial, 81—84. 
 
 (d) jlnte, p. 243, 245. 
 
 (e) The People t. ffoto, 2 Wheeler's Grim. Cases, 417. 
 
385 CONCOMITANT CIRCUMSTANCES. [PAKT II. 
 
 to its utmost speed. In ilfc Caww's case, (a) the accused 
 was mounted, and shown to have rode at a gallop from the 
 spot where the shot was heard in the night, and the body 
 found the next day. 
 
 Another important circumstance to be considered in deter- 
 mining questions of this kind, is the character of the ground 
 requiring to be traversed during the interval of time assumed. 
 If, instead of being plain and open, it were impeded by 
 natural obstacles, such as woods, thickets and the like, ren- 
 dering rapidity of movement less practicable, an expenditure 
 of more time would, of course, be called for. (ft) But the 
 effect of this circumstance, again, would depend, in a mate- 
 rial degree, upon the acquaintance of the party with the 
 ground traversed, and upon his physical powers of contend- 
 ing with the obstacles he might encounter. 
 
 In the late North Carolina case of The State v. Caraivan, 
 the guilt of the prisoner came to turn upon a question of the 
 kind which has been mentioned ; and the question itself was 
 thoroughly considered, under the different aspects just indi- 
 cated. The prisoner had been seen to leave his house, soon 
 after the deceased passed it on the road, and to go across the 
 fields in the rear of his premises, to a point of woods, run- 
 ning for the most pnrt in the same general direction with 
 the road, followed by his wife, the latter carrying a gun. 
 The hypothesis, on the part of the state, was that the pris- 
 oner took this circuitous course in order to avoid observation, 
 and that having, by this means, reached a point on the road, 
 in advance of the deceased, he concealed himself near the 
 road-side, and, as the deceased passed, shot him. To rebut 
 this view of the case, it was contended, on the part of the 
 prisoner, that the ground which the prisoner would be 
 obliged to traverse, in order to reach the point assumed, by 
 
 (a) The State v. McCann, 18 Smedes & Marshall, 476, 478, 
 (6) It would depend, also, upon the seasou of the movement, as whether it 
 were by day or by night, and the state of the weather at the time. 
 
CHAP. I.] PROXIillTT AND VICINITY. 387 
 
 the nearest course, abounded in natural obstacles of the 
 most serious kind ; such as a low growth of pine trees, 
 thick under-brush, briars, and the like, (o) It appeared, 
 however, that a person acquainted with the localities might 
 avoid these impediments, by taking advantage of paths lead- 
 ing through or around them; and that, by adopting this 
 course, it would take no longer to reach the point assumed, 
 by going through the woods, than by going by the road 
 itself. (6) It was further shown that the accused was a 
 hunter and woodsman, that he had always been in the habit 
 of shooting about his plantation a great deal, and very much 
 accustomed to travelling in the woods with a gun. (f) And 
 it further appeared from the evidence, that the deceased, in 
 passing along the road, just before the murder, travelled at 
 a moderate pace, stopping from time to time, to converse 
 with persons whom he saw near the road-side, (d) 
 
 Whether it were possible for a party against whom sus- 
 picious or criminative circumstances are shown, to have been 
 present at the scene of the crime, or in its immediate vicinity, 
 at the time of its commission, is not always left to be in- 
 ferred from the facts themselves. Very often, the defence 
 is distinctly set up that he was actually elsewhere at the 
 time, and so, could not possibly have been present. This 
 peculiar defence will be more fully considered hereafter, 
 under the head of exculpatory circumstances and consider- 
 ations. 
 
 The great characteristic of the class of circumstances now 
 under consideration, — ^those, namely, which accompany the 
 commission of crime, — is the peculiar secrecy with which 
 
 (o) The state v. Carawan, Superior Court of Law, Beaufort County, 
 North CaroUna, Fall Term, 1853 Pamphlet Report, 37, 41. 
 (ft) Id. 44, 45, 46, 50. 
 
 (c) /(/. 43, 44. 
 
 (d) Id. 44, 51. 
 
388 CONCOMITANT CIRCUMSTANCES. [PART II. 
 
 they are invested, and wMch constantly operates to impair, 
 in a material degree, their otherwise conclusively probative 
 effect. Secrecy is, indeed, the peculiar characteristic of 
 criminal action in all its stages, including those of prepara- 
 tion and subsequent conduct. But it is while engaged in 
 the actual perpetration, or advancing towards it, that the 
 necessity of unusual precaution is experienced, and it is at 
 this stage that the most strenuous efforts are made to exclude 
 all human observation ; and the contrivances for this purpose 
 are often arranged with consummate art. Hence it so often 
 happens that the deadly assault itself, and its effects upon 
 the victim are seen only in the physical signs of them 
 which ai'e discovered afterwards. Some of these, it is true, 
 escape to the world and are perceived, almost at the very 
 moment of their production, by other senses than that of 
 sight. A shriek or a groan, which violence itself may have 
 failed to suppress, or the sound of a heavy fall or mortal 
 struggle in an adjoining room, serve to betray the murderer 
 in the midst of his bloody work ; (as) and the utterance of 
 his very name by the victim, in his extremity, is sometimes 
 found to furnish decisive evidence of identity. (6) But the 
 great mass of these physical circumstances, which are often 
 of the highest importance, as indicative of guilt, though 
 originating at this stage, do not become the subjects of 
 observation and evidence until subsequently. As the most 
 material of these have already been mentioned with some 
 minuteness, in a previous part of this work, further reference 
 to them will be unnecessary. 
 
 The contrivances usually resorted to, for the purpose of 
 concealing the fact of presence, which is felt by the criminal 
 to be so dangerous and decisive against him, are, in addition 
 to rapidity or stealthiness of movement, the taking advan- 
 
 (a) See the trial of Captain Goodere and M. Mahony, 17 State Trials, 
 1040, 1044, 1047, 1050. Trial of Charles White, Id. 1082, 1084. 
 (6) The People v. Beehan, Suffolk (N. Y.) Oyer & Terminer, October, 1854. 
 
CHAP. I.] PROXIMITT AND VICINITT. 389 
 
 tage of opportunities afforded by the absence of any ob- 
 servers, or by the obscurity of night ; the employment of 
 disguises of the person ; and the more desperate expedient 
 of getting rid of observation by the perpetration of an ad- 
 ditional crime. But there are some crimes of peculiar 
 atrocity, in which the perpetrator contrives to separate his 
 person wholly from the injurious act, by selecting or con- 
 triving some implement of destruction, which shall do its 
 work without his immediate agency ; or, by a refinement of 
 malice, shall derive its active energy against the intended 
 victim, from his own unconscious act ; as where an explosive 
 machine is conveyed to the party's premises, (a) or a letter 
 containing fulminating powder is transmitted to him ; {by 
 or where poison is insidiously conveyed into some tempting 
 or apparently innoxious article of food or drink, and placed 
 in his way ; or where a person whose life is sought, is de- 
 coyed or ignorantly led into a snare set for him, under cir- 
 cumstances suggesting the supposition of accident as the 
 most probable cause of death. 
 
 There is one offence, however, in which, though of the 
 greatest enormity, this avoidance of hunian observation by 
 the actual seclusion of the perpetrator himself, during the 
 criminal act, is not always practised ; reliance being placed 
 on the subtile character and inherent activity of the de- 
 structive agent employed, — namely, murder by poisoning-, 
 especially in those cases where some relation exists between 
 the parties, which brings them intimately and permanently 
 together, (c) The circumstances of most hazard, in these 
 cases, occur in the preliminary stage of preparation. The 
 procurement of the poison, and its actual introduction into 
 
 (a) The State v. Arrison, Cincinnati Crim. Court, Dec. 1854. See also R. 
 y. Mountford, 1 Moody's C. C. 441. 
 
 (b) Rex T. Palayo, Wills, Giro. Evid. 99. 
 
 (c) See further as to these relations, post in this section. 
 
390 CONCOMITANT CIRCUMSTANCES. [PAET II. 
 
 tlie particular vehicle selected, are usually carried on in 
 secret, or under some disguise, (a) After these objects are 
 secured, observation is no longer shunned, but rather sought 
 as a means of avoiding suspicion. Hence it may happen 
 that the whole murderous process of extinguishing life may 
 be actually carried on before witnesses ; the murderer relying 
 on the false impressions which the circumstances observed 
 are so apt to convey, or upon his own statements and ex 
 planations in relation to them, and sometimes on the absolute 
 unimpressiveness of the circumstances themselves. The 
 actual assault upon the person, involved in the administration 
 of the poison, appears under the form, either of an indif- 
 ferent act, or an of&ce of courtesy or affection, or even a 
 praiseworthy act of sympathizing attendance upon suffer- 
 ing. (6) The effects, as shown by the symptoms and dis- 
 tress of the victim, are, in many instances, securely attributed 
 to the natural causes of illness or infirmity, (c) The ex- 
 clusion of medical aid for a period long enough to ensure a 
 fatal result, is effected under the common pretext of its 
 being unnecessary. (tZ) And, finally, the exclusion of the 
 friendly visits of those who would be inclined to look upon 
 all these circumstances with suspicious eyes ; and be hence 
 enabled to detect the crime, at least in the last stages of its 
 consummation ; is effected on the ground of peculiar regard 
 for the repose of the sick, and a desire to relieve from need- 
 less though well-meant annoyance, (e) 
 
 (a) But in the case of Sex v. Burdock, the prisoner put thepoison into the 
 gruel of the deceased before the witness' eyes, telling her, however, that it 
 ■was done in order to ease the deceased from pain . Best on Pres. § 1 96. 
 
 (b) Rex V. Burdock, ubi supra. The People v. Henrietta Robinson, 
 Rensselaer Oyer & Terminer, Hay, 1854. 1 Parker's Crim. Reports, 649,651. 
 
 (c) Case of Gesche Margarethe Gottfried, 4 Lond. Legal Observer, 89, 90. 
 The People v. Kesler, 3 Wheeler's Crim. Cases, 19. 
 
 (d) Trial of Katharine JVairn and P. Ogilvie, 19 State Trials, 1201. The 
 People T. Kesler, 3 Wheeler's C. C. 20, 21. Commonwealth t. Chapman, 
 Celebrated Trials, 840. (Phil. 1835.) 
 
 (e) Trial of K JVairn and P. Ogiloie, 19 State Trials, 1284. 
 
CHAP. I.] PROXIMITY, VICINITY, ETC. 391 
 
 As this species of murder constitutes, in some respects, a 
 distinct class of crime, it may be well to devote a moment's 
 attention to the principal circumstances which are found to 
 accompany its perpetration, as they are illustrated by some 
 of the most prominent cases on record. 
 
 A leading circumstance by which this oGFence is pre-emi- 
 nently distinguished, is the period of time over which the 
 criminal act, or rather action, is designedly suffered to ex- 
 tend itself. Where other destructive agencies are employed, 
 tlie criminal's great object is to strike the'blow by one single, 
 short and sometimes momentary act, the danger of prolong- 
 ing his personal presence at the scene of crime, being felt to 
 be imminent. And, in some instances of poisoning, a similar 
 rapidity of movement is practised ; the substance made use 
 of having power, (from its quality or quantity,) to kill 
 almost as instantaneously as a thrust or shot in the heart or 
 brain, (a) But the poisoner more commonly . finds it his 
 safest policy, to destroy by degrees, or by repeated adminis- 
 trations. In some instances, the foundations of life have 
 been sapped by a process so slow as to be next to imper- 
 ceptible ; admitting of the assigr^ment of almost any other 
 agency, as its cause, than the true one. In the great case 
 of the murderers of Sir Tliomas Overbury, (b~) the poisons 
 selected were of the most subtile and insidious character 
 that the science of the time could discover or contrive ; (c) 
 and the process was, in itself, so slow, that the murderers 
 finally became alarmed lest their efforts should be foiled by 
 the resisting powers of nature herself ; and it was therefore 
 brought to a speedy close by more active agencies, and even 
 manual violence. In Mary Blandy^s case (c?) also, the de- 
 
 (a) Prussic acid was employed in the case o{ Regina v. Tawell, (Wills, Circ. 
 Evid. 198;) laurel water, in' the case of Rex v. Donellan, Gumey's Report, 
 1781. 
 
 ib) 2 Howell's State Trials, 911—1022. 
 
 (c) Id. 941, 947. 
 
 (rf) 18 Id. 1154, 1155, 1160. 
 
392 CONCOMITANT CIRCUMSTANCES. [PABT 11. 
 
 ceased appears to have been subjected to a course of poison- 
 ing, under the effect of which he lingered until hurried out 
 of existence by doses of increased potency. 
 
 The great characteristics of this crime, are the coolness 
 and deliberation with which it is usually perpetrated ; and 
 the art, — sometimes amounting to positive skill — with which 
 the means employed are adapted to the end in view. Some- 
 times, indeed, the force of the reveogeful motive is so urgent 
 as to blind the actor to all prudential considerations ; and 
 in his eagerness to destroy the single life aimed at, he need- 
 lessly involves the lives of many others : as where a whole 
 family is poisoned by food prepared for the destruction of a 
 single obnoxious member. But, in the majority of cases, 
 the criminal proceeds warily, with a careful eye to his own 
 safety ; proportioning and adapting his conduct to circum- 
 stances ; calculating consequences in advance ; awaiting 
 their occurrence ; watching their appearances as they pre- 
 sent themselves ; and accommodating his further action to 
 the character of such appearances. Two leading objects 
 are almost constantly kept in view. One is, to find or to 
 place the intended subject of the crime under such circum- 
 stances, that the operation of the poison may be confined to 
 him or her alone : the allowance of any wider range tending 
 to increase the chances of alarm and detection. The pecu- 
 liar situation which, more than any other, presents a combi- 
 nation of circumstances most favorable to the attainment of 
 this object, is that which has already been adverted to,- -ill- 
 health. Such a condition offers peculiar facilities and oppor- 
 tunities for getting full possession of both the vehicles, by 
 one or other of which, the poison must be administered, — 
 food and medicine ; while it furnishes obvious pretexts for 
 injunctions (which might otherwise appear suspicious,) to 
 other persons who may be in attendance, not to partake of, 
 or even touch the food which has been prepared for the sick 
 
CHAE, I.] PROXIMITY AND VICINITY. 393 
 
 person's use. (o) The condition of the sick, too, being one 
 generally of dependence, and sometimes of utter helplessness, 
 afifords in itself many facilities for the consummation of the 
 criminal purpose. And, in fine, the operation of the poison 
 is so artfully assimilated to, and interwoven with the effects 
 of disease or medicine, as to render it extremely difficult to 
 distinguish the one from the other ; and, in this way, even 
 professional acuteness, when brought to bear upon the case, 
 in ante mortem examinations, or in the expression of 
 opinions upon such examinations by others, is sometimes 
 effectually confounded and deceived. 
 
 Another object, diligently contemplated in this class of 
 crimes, is, to place the poisoner in such a relation to the sub- 
 ject, as may bring the former into the closest, most constant, 
 and if necessary, exclusive contact with the latter. In Anna 
 Scfionleben^s case, (6) the situation of nurse, which the 
 murderess contrived to obtain in three families successively, 
 gave her all the opportunities she desired for practicing her 
 nefarious arts with the most complete success ; and she 
 managed even to gain credit and reputation from the seem- 
 ing assiduity with which she discharged her duties, while 
 actually poisoning two persons. In the second of these 
 cases, she had administered all the medicines with her own 
 hand, (c) In the case of the poisoners of Sir Thomas 
 Overbury, already referred to, a leading object, from the 
 beginning, was to get exclusive control of the victim's per- 
 
 (a) See Rex v. Burdock, Best on Pres. § 196. In Mary Blandy's case 
 the prisoner, about six weeks before her father's death, cautioned one of the 
 servants against eating any of her father's water-gruel, " for," said she, " I 
 am told, water-gruel hurts me, and it may hurt you." And yet, afterwards, 
 and about a week before his death, she told the same person, that she had been 
 in the pantry, stirring her father's water-gruel, and eating the oat-meal out of 
 the bottom of it. 18 State Trials, 1145, 1146. The last statement was un- 
 doubtedly false, as the pretended oat-meal was arsenic. 
 
 (A) 3 London Legal Observer, 41. 
 
 (c) /./. 42. 
 
394 CONCOMITANT CIRCUMSTANCES. [PART II. 
 
 son. How this was effected, has been described under a 
 previous head. 
 
 But it is the relations of domestic life which appear to 
 afford opportunities the most favorable to the attainment of 
 the object last mentioned, as well as to the accomplishment 
 of the criminal purpose, in general. In these, the murderer 
 gains a great preliminary advantage, in disarming what is 
 always his greatest enemy, and the intended victim's best 
 defence, — suspicion; while the parties are brought into 
 precisely the kind of contact desired. Hence we find these' 
 relations constantly made use of, to consummate the most 
 atrocious purposes, by those in whom the impulses of affec- 
 tion have either been entirely extinguished, or turned into 
 positive hatred, or made subservient to the sordid appetite 
 for gain. Parents have been poisoned by their children, (a) 
 and children by their parents. (6) But, of all the relations 
 just mentioned, that which seems to afford the widest range 
 of unlawful motive, on the one hand, and of opportunity 
 for gratification on the other, is the relation of husband and 
 ivife. Hence, in a large proportion of the worst cases of 
 poisoning on record, the perpetrator and the, subject of the 
 crime are found to have stood in this relation, (c) 
 
 A brief notice of a few of these cases will serve to throw 
 at least a partial light upon some of the most important cir- 
 cumstances by which the perpetration of this atrocious crime 
 
 (a) Mary Blandy's case, 18 State Trials, 1117. See also the case of Ade- 
 line Phelps, before the Supreme Court of Massachusetts, December, 1853, in 
 which, however, the prisoner was acquitted on the ground of insanity. Law 
 Keporter, May,- 1854. See also the trial of the Lalouettes, in the department 
 of Yonne, in France, March, 1854, appended to the report of the foregoing. 
 Law Reporter, p. 25. 
 
 (6) G. M. GoUfried's case, 4 London Legal Observer, 89. 
 
 (c) Case of JVairn and Ogilvie, 19 State Trials, 1235. GoUfried's case, 
 ubi supra. The People v. Kesler, 3 Wheeler's Crim. Cases, 18. The People 
 V. Green, Rensselaer Oyer & Terminer, July, 1845. The Peoples. Hendrick 
 son, Albany Oyer & Terminer, July, 1853. The People v. Williams, New 
 York Oyer & Terminer, May, 1854. 
 
CHAP. I.] PROXIMITT, VICINITY, ETC. 395 
 
 has been found to be accompanied. In the Scotch case of 
 Nairn and Ogilvie, (a) where the wife had openly trans- 
 ferred her affections to another, and the husband was found 
 to be an incumbrance, no great secret appears to have been 
 made of the criminal purpose entertained ; and yet, after 
 the crime was finally determined on, much caution and 
 reserve were practiced in its actual perpetration. Great art 
 and secrecy were observed in obtaining the poison ; secrecy 
 was observed during the material act of mixture ; some skill 
 was shown in rendering the vehicle efficacious ; and advan- 
 tage was taken throughout, of the impaired health of. the 
 husband, to account for, or to aid in accounting for symptoms 
 which otherwise might have excited suspicion. In the Ger- 
 man case of Gottfried, (6) also, the ill health of the hus- 
 band was a paramount inducement and aid to the criminal 
 action determined on, although more reluctance was shown 
 in the actual perpetration. 
 
 In the New York case of The People v. Kesler, (c) the 
 wife had become suddenly unwell, while in the husband's com- 
 pany at a public house ; and the husband thereupon assumed 
 the exclusive administration to her of such medicines, (or sub- 
 stances represented to be medicines,) as he thought proper ; 
 declining, to a great extent, the proffered aid and attendance 
 of others ; and, though urged to send for a physician, de- 
 laying to do so until the Case was hopeless. In this instance, 
 the wife had been subject to hysterics and fits ; and all the 
 symptoms consequent upon the administration of the poison, 
 and which had attracted the notice of persons in attendance, 
 were confidently attributed by the husband to this cause. 
 
 In the later case of The People v. Cfreen, Qd) where 
 arsenic was satisfactorily detected in the body of the de- 
 
 (a) 19 State Trials, 1235. 
 
 (i) 4 London Legal Observer, 89. 
 
 (e) 3 Wheeler's Criminal Cases, 18. 
 
 (d) Rensselaer Oyer & Terminer, July, 1845. 
 
396 CONCOMITANT CIRCUMSTANCES. [PART 11. 
 
 ceased, and in substances of which she had partaken, the 
 husband proceeded more boldly. The wife having become 
 suddenly and violently sick, after taking some medicine from 
 his hands, no objection was made to the calling in of phy- 
 sicians, or to their prescribing in the case. But the pre- 
 scriptions were little regarded by the husband, who took 
 upon himself to administer certain while powders, and con- 
 tinued to administer them during her whole illness ; mixing 
 them not only in the medicines left by the physician, but in 
 various articles of food, and sometimes in drinks prepared 
 entirely by himself. Attendance upon the sick was also 
 freely permitted, but this proved to be no check upon the 
 execution of the criminal purpose. On one occasion, indeed, 
 the temporary absence of the attendant was taken advantage 
 of ; and on another, he was seen to turn his back to his wife, 
 while dusting into her drink some powder from a paper he 
 took from his pocket ; but, for the most part, he made no 
 secret of mixing the powder, and when observed and remon- 
 strated with, for so doing, represented it to be either one of 
 the medicines allowed, or some well-known harmless article 
 of a similar appearance, such as cream of tartar, soda, and 
 even flour. Some of these substances had actually been 
 kept in the sick room, others were kept in the house ; and 
 under this convenient disguise of a similar appearance, the 
 administration of the poison was securely accomplished, (a) 
 In the more recent case of The People v. Williams, (6) 
 which resembled the foregoing in several of its circumstan- 
 ces, advantage was taken by the husband, of the temporary 
 
 (n) White substances, resembling arsenic in outward appearance, but con- 
 stantly used as food, suoh as salt and sugar, have frequently been employed to 
 disguise that poison. In Anna Schonleben's case, arsenic had been conveyed 
 into the salt-box, and salt-barrel. 3 London Legal Observer, 42. In the 
 late case of The People v. Henrietta Robinson, white powdered sugar was 
 used as the vehicle. Rensselaer Oyer & Terminer, May, 1854. See 1 
 Parker's Crim. Reports, 651. 
 
 (6) New York Oyer & Terminer, Miiy, 1854. In this case, a new trial was 
 granted. 
 
CHAP. I.J PEOXIMITT, VICINITY, ETC. 397 
 
 absence of the attendant, to meddle with an article of food 
 which she had provided, and of which he soon after pre- 
 vailed upon his wife to partake, to the last spoonful, not- 
 withstanding her reluctance, and her objection to its peculiar 
 taste, (a) 
 
 Among circumstances observed to have been attendant on 
 the crime of poisoning, may be mentioned the following : — 
 taking food, drink, or medicine into another or private room 
 or closet, before administering it to the invalid ; (i>) giving 
 false names to substances observed to be mixed with such 
 articles, (c) and giving false reasons for mixing them ; (jT) 
 washing the hands with unusual care after such act, and 
 cautioning an observer not to tell the sick person what had 
 been done ; (e) and indifference or heartlessness of manner 
 and conduct, while the sick person is in the agonies of 
 death. (/) 
 
 In the crime of arson, which next occurs for considera- 
 tion, great pains are usually taken by the criminal to avoid 
 subjecting to observation the important fact of his presence 
 at or near the scene of the crime, about the time of its com- 
 mission ; and there exist peculiar inducements to such a 
 course of conduct. It is a well-known characteristic of this 
 offence, that the slightest appearance indicative of its per- 
 petration soon attracts public attention to the spot, and if 
 
 (a) For other cases of wife-murder, by similar means, see I'he People « . 
 Grunzig, New York Oyer & Terminer, November, 1851. 1 Parker's Crim. 
 Reports, 299. The People y. Hendrickson, Albany Oyer & Terminer, July, 
 1853. 
 
 (i) Case of JVairn and Ogilvie, 19 State Trials, 1287, 1307. Rex v. 
 Burdock, Best on Pres. § 196. Commonwealth t. Chapman, Celebrated Trials, 
 835. (Phil. 1835.) 
 
 (c) The People v. Green, Rensselaer Oyer & Terminer, July, 1815. 
 Pamphlet Report, 21, 25. 
 
 (d) Rex v. Burdock, ubi supra. 
 
 (e) Id. ibid. 
 (/) Id. ibid. 
 
398 CONCOMITANT CIRCUMSTANCES. [PART U. 
 
 the perpetrator be found there or in its immediate vicinity, 
 the danger of detection is proportionately great. There 
 being no such thing as concealment of the subject of the 
 crime, (like hiding the body of a slain person,) where it 
 has been successfully operated on, the only alternative left 
 the perpetrator, is to conceal himself. Facilities for doing 
 this are afforded by the intrinsic nature of the crime, which, 
 so far as amount of human agency is concerned, ordinarily 
 consists almost entirely in preparation. Hours are often 
 spent in arranging the combustible materials, and connecting 
 them with inflammable substances ; but the application of 
 the fire is strictly momentary, and before it is made effectual 
 in any outward appearance, the criminal may contrive to 
 separate his person from the scene of the offence, by an 
 interval of time or space long enough to confound or frus- 
 trate all inquiry. 
 
 It sometimes happens that a person meditating arson, is 
 discovered at the scene of the crime, in the midst of his 
 preparations, and these so complete, as seemingly to await 
 only the application of the flame, (a) But, more commonly, 
 the most proximate circumstances indicative of criminal 
 action, which it is possible to present, are those of the in- 
 cendiary's entry upon and exit from the premises fired ; and 
 here, the same two concomitant circumstances occur for con- 
 sideration which were noticed as qualities of action, under 
 a previous head ; namely, steallhiness and hastiness of 
 movement. In approaching and entering the premises, the 
 incendiary's movements are usually indirect and compara- 
 tively slow. A season of darkness is often selected, and 
 under its cover he lurks noiselessly around the spot, awaiting 
 the opportunity to enter unobserved. But, in leaving the 
 
 (a) See the case of The People v Peverelly, ante, p. 351. The great peculi- 
 arity of this crime, namely, its adaptation to the destruction of the evidence 
 of its commission, (a leading object of criminal agency,) has been remarked 
 upon. Alison's Principles of the Crim. Law of Scotland, 444. Roscoe'S 
 Grim. Evid. 276. 
 
CHAP. I.] PROXIMITY, VICINITY, ETC. 399 
 
 premises, after applying the flame, his movements are more 
 apt to be rapid and even hurried. The paramount thought 
 now is, to escape before the fire breaks out to view, xippre- 
 hensions are doubtless often felt that this breaking out may- 
 be sooner than has been provided for ; and, under the influ- 
 ence of these ideas, the criminal's movements sometimes 
 become accelerated into the most precipitate flight. In the 
 case of James Hill, who was tried at Winchester, in 1777, 
 for setting fire to the rope-house in the Royal Dock-yard at 
 Portsmouth, (a) thb prisoner was seen, shortly before the 
 fire broke out, hurrying in a direction from the spot, getting 
 into a cart to expedite his movements, urging the driver to 
 increased speed, by the offer of money ; and finally, when 
 the vehicle stopped, jumping out of it and running away. 
 
 In cases of arson by the occupants of the premises fired, 
 the concomitant circumstances assume a diff'erent shape. 
 The acts of entry and exit excite little or no attention, unless' 
 they occur at very unusual hours. Actual presence on the 
 premises is, of course, nothing but what is looked for ; and 
 this sometimes affords opportunity for preparations of the 
 most elaborate kind. In such cases, however, the secresy 
 and seclusion necessary for carrying them on, in connection 
 with the time spent in the process, are circumstances often 
 of a criminative tendency ; and the fact of the occupant 
 being seen to leave the building clandestinely, or without 
 giving any alarm, just before the fire breaks out, always and 
 naturally gives rise to inferences unfavorable to innocence. 
 
 In burglary and robbery, it is always an important cir- 
 cumstance that the accused was seen lurking or loitering 
 about the premises, or coming out of them at unseasonable 
 hours or where they have been known to be locked up. In 
 larceny, the same facts are material. The most proximate 
 circumstance, indicative of this crime, short of direct evi- 
 
 (a) 20 Howell'3 Stafe Trials, 1317, 13M. 
 
400 CONCOMITANT CIRCUMSTANCES. [PART 11, 
 
 dence of its perpetration, is where the accused has been 
 seen with the article in his hand, which is afterwards missed, 
 and found in his possession. The physical evidence afforded 
 by foot-prints, and correspondences between objects found 
 at the scene of the crime, and others found in the possession 
 of the accused, is always important to show the fact of pres- 
 ence, in all the offences just mentioned. 
 
 In charges of passing counterfeit money, a strong con- 
 comitant circumstance against the accused is his paying 
 away the bill in question without calling for the change due 
 on the purchase, (a) Other circumstances of the same 
 character are, — passing a comparatively large bill for a 
 small quantity of liquor not drunk, and immediately leaving 
 the store; returning, a short time after, with a similar bill, at- 
 tempting the same practice, and, on being charged, fleeing 
 into the woods, and not accounting for the possession of the 
 bills ; (6) or when asked for his name and place of resi- 
 dence, giving a false name and address, (c) 
 
 (u) Rhodes' case, 1 City Hall Recorder, 1, 2. 
 (6) Helm's case, Id. 46, 47. 
 
 (c) Whiley's case. 2 Leach, 983. 1 New Rep. 92, S. C. Roscoe's Grim. 
 Evid. 90. 
 
CHAP. I.] SUBSEQUENT CIRCUMSTANCES. 401 
 
 SECTION XIV. 
 
 Subsequent Circumstances. 
 
 The next division of that class of criminative facts or 
 circumstances to which the distinctive appellation of moral 
 has been given, comprises those which follow the perpetra- 
 tion of the offence. These constitute a more numerous 
 division than either of those which have been designated as 
 precedent or concomitant; comprehending the very impor- 
 tant facts of the destruction, suppression and eloign raent (a) 
 of evidence of the act, — the fabrication of evidence, in 
 order to avert suspicion, — possession of articles of crimina- 
 tive evidence, including the fruits of crime, and the subject 
 of the crime itself, — and conduct and language before and 
 on arrest, and afterwards, including the leading circumstan- 
 ces of flight, demeanor, and denials or admissions of guilt. 
 Interwoven with these, and necessarily dependent upon 
 them, is the large class of physical facts which are, now, 
 for the first time, brought to light ; being either casually 
 presented to the notice of observers, or discovered upon 
 express search for the purpose. 
 
 (a) Eloignment is the getting a thing or person out of the way, or removing 
 it to a distance, so as to be out of reach; (from Fr, eloigner, L. Lat. elongare, 
 to remove to a distance. Ion gum iter.) It was formerly a. common return to 
 writs of replevin, and writs de homine replegiando, that the goods or person 
 named in the writ had been eloigned. 3 Bl. Com. 129, 148. F. N. B. 68, 69, 
 74. Mr. Sentham has observed that the words eloign and eloignment are 
 wanted, in current or ordinary language. 3 Jud. Evid. 166, note. 
 
402 SUBSEQUENT CIRCUMSTANCES. [PABT 11. 
 
 SECTION XV. 
 Destruction, Suppression, and Eloignment of Evidence. 
 
 It is apparent, from the confessions of criminals, as well 
 as other evidence in numerous recorded cases, that the first 
 consideration -which ordinarily occurs to the mind of a per- 
 son who has perpetrated a crime, is to conceal the fact, or 
 to prevent its discovery. This seems to be so far a natural 
 Impulse, that, (in cases of homicide, in particular,) it may 
 occasionally be yielded to, by those who are not actually 
 guilty, to the extent imputed, involving them in conduct of 
 a character most fatal to themselves. Cases of this kind, 
 however, are of rare occurrence; for, doubtless, it is the 
 nature of guilt and not of innocence, to seek concealment. 
 Occasionally, a murderer, elated with a sort of fiendish 
 satisfaction, will voluntarily discover or avow his act, and 
 glory in it. But these are exceptions to the general and 
 ordinary course of criminal conduct. The assassin, no less 
 than the burglar, robber, ravisher, forger or thief, instinct- 
 ively avoids every thing which may, even indirectly, lead to 
 his detection and punishment, (a) 
 
 Among the most common expedients resorted to for the 
 purpose of hiding a. crime, are. — ^the destruction or conceal- 
 ment of the subject of the crime itself; such as the con- 
 cealment of a dead body, by interment, or otherwise ; the 
 removal of it to a distant spot, without burial ; the mutila- 
 tion or destruction of it, where concealment of the entire 
 body is impracticable ; concealment or destruction of the 
 clothing of the body, or other articles upon it, by which the 
 crime might be traced out ; — concealment or destruction of 
 the instrument of the crime ; — removal of the physical 
 marks and traces of the crime ; — concealment of the scent 
 
 (a) See further, on this subject, post, Section XXII. 
 
CHAP. I.] DESTRUCTION OP EVIDENCE. 403 
 
 of the crime, and of the criminal himself, while engaged in 
 such work of concealment or destruction ; — destruction of 
 the scene, the subject and the evidence of the crime, by one 
 single act of arson ; — concealment of the fruits of the 
 crime ; — getting witnesses out of the way, and the like. 
 
 The bodies of murdered persons are frequently concealed 
 by the natural method of interment. Where death has been 
 accomplished by poison, and the impression has been effectu- 
 ally made that it is merely the result of natural illness, the 
 process of interment is left to take its ordinary course ; al- 
 though there is always more or less anxiety that it should 
 take place without delay, as it obviously diminishes the 
 chances of any further examination of the body. Some- 
 times, the criminal is betrayed by this feeling into an undue 
 and manifest haste, which is always a suspicious circum- 
 stance, especially if the interment be made studiously pri- 
 vate, (a) In the case of Rex v. Donnall, (6) Mr. Justice 
 Abbott told the jury that the conduct of the prisoner, — ^his 
 eagerness in causing the body to be put into a shell, and 
 afterwards to be speedily interred, and put out of sight, — ^was 
 a circumstance most material for their consideration. 
 
 Where interment has thus taken place, in the natural way, 
 under false impressions of the cause of the death, it is, of 
 course, for the interest of the criminal, .that the body should 
 be left to decay as quickly as possible, as an effectual means 
 
 (a) See the case of the murderers of Sir Thomas Overbury, 2 State Trials, 
 918. In the case of Rex v. Burdock., where the deceased died, with symp- 
 toms of poisoning, in about two hours after taking some gruel from the pris- 
 oner, no medical assistance was procured, nor were her relations made ac- 
 quainted with her death by the prisoner, who caused her to be privately 
 buried; telling the undertaker that an old lady had died in her house, who 
 had no friends, and that she (the prisoner) must bury her; as the things 
 belonging to her were worth little or nothing. Best on Pres. § 196. See also 
 Hitzig, Neue Pitaval, referred to in Wharton's Am. Crim. Law, 338, (ed. 1855.) 
 
 (6) Fraaer's Report, 170. WUls, Circ Evid. 76, 188. 
 
404 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 of destroying any evidence which it might otherwise, on 
 examination, afford against him. Hence, in cases where, 
 from any suspicious circumstances, disinterment has been 
 determined on, with a view to medical examination, various 
 expedients have been adopted, to delay or retard the process 
 or to render it otherwise ineffectual. The celebrated En- 
 glish case of Rex v. Donellan presents some instructive 
 facts on this point. In that case, the guardian of the de- 
 ceased had written to the accused, who was his brother-in- 
 law, directing him to have the body (which had not then 
 been interred) immediately opened by competent physicians, 
 assigning as a reason, that poison had been suspected as the 
 cause of the death. Having received an assenting answer, 
 a second letter was written to the accused, in more general 
 terms. When the physicians came to open the body, this 
 second letter was shown to them, but the first was entirely 
 suppressed. On seeing the state of the body, and inquiring 
 of the accused, for what purpose it was to be opened, and 
 learning from him that it was only " for the satisfaction of 
 the family," and no intimation of any suspicion of poison 
 being made by him, or appearing from the letter shown, the 
 physicians concluded that, at so late a period, it would be 
 of no use, and they therefore omitted it altogether. The 
 body was then interred, and a letter written by the accused 
 to the guardian of the deceased, giving him to understand 
 that the opening had taken place. As soon as the latter 
 found that this was not the fact, he sent peremptory direc- 
 tions to have it effected immediately. The body was then 
 disinterred, and finally opened and examined; but, ly this 
 time, decomposition had advanced so far that the operation 
 was performed under all the disadvantages which might 
 have been foreseen, and which probably were actually 
 counted upon, as means of thwarting it entirely, (o) 
 In other cases of murder, where no advantage is possible 
 
 (a) Gurney's Report, 1781. Celebrated Trials, (Phil. 1835,) 131, 132, 139. 
 150, 152. In the strictures on the proceedings in this case, contained in " The 
 
CHAP. I.J DESTRUCTION OF EVIDENCE. 405 
 
 to be taken of any such false impressions of the cause of 
 death as have been described, the concealment of the body- 
 by interment is necessarily left to be accomplished by the 
 criminal's own hands ; and this is done, of course, "with 
 every possible circumstance of secrecy. In thinly peopled 
 districts, remote and solitary spots and late hours of the 
 night are selected for this purpose ; and, where time permits, 
 the work is done with great care and deliberation, so that 
 no trace of the act shall be visible even to a practiced eye 
 searching expressly for it. In a late appalling case which 
 occurred in North Carolina, the spot selected was a low, 
 open place, in an almost impenetrable thicket of small pines 
 and tangled underwood, bushes and briars ; the ground 
 being covered with an elastic moss, which would take no 
 impression from the feet. This moss was first carefully re- 
 moved, and a shallow hole dug just large enough to hold the 
 body. The body was then pressed in, the grave filled up 
 even with the surrounding earth, and pressed down, and the 
 moss carefully laid back upon it; and finally, the earth 
 which had been dug out, carried laboriously away to some 
 distance. This was done with such extreme care, and such 
 pains were taken to avoid leaving any traces, such as broken 
 or displaced bushes, which might indicate a passage through 
 the surrounding thicket, that the spot came near being 
 entirely overlooked, although a diligent search was pur- 
 posely made for it, by persons acquainted with the locality 
 and its usual appearances ; and, but for a few small and 
 peculiarly shaped lumps of earth, and two disturbed laurel 
 poles which caught the eye of the searchers, just as they 
 were about leaving it, would not have been discovered, (a) 
 
 Theory of Presumptive Proof," great stress is laid on the fact that no ade- 
 quate traces of poison were found in the body; but no sort of notice is taken 
 of the facts proved against the accused, and summarily stated in the text, 
 going to show contrivance on his part to bring about this very result. Theory 
 of Pres. Proof, 31, et seq. 
 
 (ffi) The State v. Carawan, Superior Court of Law, Beaufort County, N. 
 Carolina, Fall Term, 1853. Pamphlet Report, 34, 35. It was further shown 
 
406 SUBSEQUENT CIBCUMSTANCES. [PART 11. 
 
 In other cases, as where there is danger of immediate or 
 speedy discovery, or where the criminal becomes alarmed 
 while at his work, the interment is hastily and imperfectly 
 effected, (a) Sometimes, all burial is dispensed with, and 
 the body flung into a pit, well, (6), pond (c) or stream, with 
 or without precautions to hide it from view, according to 
 circumstances. 
 
 Where a murder has been committed on the premises of 
 the criminal himself, the reasons for concealment are peculi- 
 arly urgent, while the difficulties of effecting it are propor- 
 tionately great. The murderer cannot, as in other cases, 
 leave the body and escape, for such an act would afford evi- 
 dence of the strongest kind against him. To retain it 
 unburied, would necessarily lead to speedy detection. It 
 must be put out of sight ; and, as the danger attending the 
 carrying it away, for the purpose of concealment, would be 
 great, there is no alternative but to conceal it on the premi- 
 ses. Sometimes, circumstances favor the accomplishment 
 of the object, by burial of the entire body. In the New 
 Jersey case of The Stale v. Robinson, (rf) the prisoner had 
 killed his creditor in his own house ; but it happened that 
 no other person was at the time in the building, the build- 
 ing itself was unfinished, and, it being a season of public 
 religious service, (e) the premises could be closed without 
 exciting suspicion. Advantage was taken of these circum 
 
 in this case, that, two days after the deceased disappeared, the prisoner was 
 seen going from his house, with a hoe, towards the woods, it being a rainy 
 day, and was absent some hours. Id. 51, 52. 
 
 (a) John Adam's case, 11 London Legal Observer, 415. 
 
 (A) Mrs. Spooner's case, 2 Chandler's Am. Crim. Trials, 8. 
 
 (c) Rex T. Thurtell and Hunt, Celebrated Trials, (Phil. 1835,) 5. In this 
 case, the body was carried to a pond on the premises of one of the accomplices, 
 and being put into a sack, with some stones, was sunl^ in the water. It was 
 afterwards talten out and sunlc in another pond at some distance, by similar 
 means. Id. 7. 11, 12. 
 
 (d) Middlesex (N. J.) Oyer & Terminer, March, 1841. 
 (c) It was on Thanksgiving day, December 3d, 1840. 
 
CHAP. I.] DESTRUCTION OF EVIDENCE. 407 
 
 stances, to bury the murdered man, with cousiderable care, 
 under the front basement floor of the hous.e, where the body 
 was soon after found, (a) In other cases, no such facilities 
 exist. The body, in its entire state, cannot be hidden on 
 the premises. This has sometimes led to the desperate and 
 revolting expedient of dismembering it, for the purpose of 
 more easy disposal, or with a view to the ultimate destruc- 
 tion of it by fire.. In a late case in England, where a coach- 
 man was tried for the murder of a young woman who passed 
 as his wife, the body had been mutilated, parts of it were 
 found concealed in a stable, and attempts had been made to 
 consume it by fire, the remains of a skull, and other bones 
 being found among the ashes of a grate on the premises. (6) 
 In another case, where a man murdered a creditor who 
 came to ask him for his debt, tlie same expedient of burning 
 was resorted to, but the criminal was betrayed by the odor 
 arising from the process ; (c) which circumstance also con- 
 tributed to the discovery of the crime in the preceding case. 
 In the late Massachusetts case of Commonwealth v. Web- 
 ster, the body was dismembered, and, to some extent, de- 
 stroyed by fire, and there were circumstances in the case 
 which served to aid this mode of concealment. (</) But 
 the continued fire vfhich the accused was obliged to keep 
 up, in order to accomplish the destruction intended, had the 
 
 (a) See the ease of Rex t. Corder, where the body was buried under the 
 floor of n. barn, and remained undiscovered for nearly a year. Celebrated 
 Trials, 218, 222, 224, (Phil. 1835.) 
 
 (4) Case at Putney, Central Criminal Court, May, 1842; Wills, Cire. Evid 
 166. In the case of Sex v. Greenacre, before the same court, April, 1837, 
 the action of fire was not resorted to, but the dissevered portions were scattered 
 about in various places, where they were found at diiferent times; — the trunk 
 in the Edgeware Road, the head in the Regent's Canal, and the legs in an osier- 
 bed at Camberwell. Wills, C<irc. Evid. 171. 
 
 (c) Sex V. Cook, Leicester Summer Assizes, 1834. Best on Pres. § 204, 
 note. 
 
 (d) The prisoner's acquaintance with anatomy, the character of the premi- 
 ses, and the fact that an apartment in the same building was actually used as 
 a diesectino; room. 
 
408 SUBSEQUENT CIRCUMSTANCES. [PABT H. 
 
 effect of heating the wall of the premises, to such a degree 
 as to attract observation to the spot, to confirm other cir- 
 cumstances of suspicion, and finally, to induce a search ; 
 and the peculiar character of the receptacles in which, upon 
 investigation, the undestroyed remains were found, served at 
 once to connect him with the crime in the most convincing 
 manner. 
 
 Finally, there are cases where the nature of the premises 
 on which the crime is committed, does not admit the possi- 
 bility of concealing the body upon them, either in an entire 
 or dismembered state, but the criminal is left to the single 
 expedient of taking or sending it away. Where the crime 
 has been committed in a closely-populated neighborhood, 
 and especially in a city, the danger of exposure, attending 
 such a removal, is palpable, and various contrivances have 
 been resorted to, in order to avoid it. In the New York 
 case of The People v. Colt, (a) the body of the slain man 
 was forcibly crammed into a packing-box which happened 
 to be in the room where the crime was committed, the box 
 nailed up, directed to a person at St. Louis, to the care of a 
 firm at New Orleans, put on a cart, and sent on board a 
 vessel bound for the latter place ; a receipt being taken for 
 it, in the usual form of shipped merchandize. In other 
 cases, the body is removed from the premises under the 
 cover of darkness. In the case of The People v. John- 
 son, (6) the murderer first made an attempt to hide the 
 body in a hole in the cellar of his own house. But, finding 
 this impracticable, he resorted to the desperate expedient 
 of taking it out into the street, and leaving it on the pave- 
 ment, where it was discovered the next morning, with the 
 ropes by which it had been carried to the spot, still attached 
 to it. 
 
 The clothing worn by the person slain presents another 
 
 (a) New York Oyer & Terminer. January, 1842; Testimony of Richard 
 Sarton, Godfrey, J. P. Elwdl, W. S. Coffin, and A. Milliken. 
 
 (b) 2 Wheeler's Criminal Casea, 372, 376, 381. 
 
CHAP, I.J DESTRUCTION OP EVIDENCE. 409 
 
 object, which the criminal fiads it important or necessary to 
 conceal, as well as the body itself. Where the body is 
 buried with the clothing on it, the same act suffices for the 
 concealment of both, (a) But such portions as have been 
 removed are hidden by throwing into receptacles not likely 
 to be examined, (&) or actually destroyed ^y fire, (c) In 
 one case, the clothes and hat of the murdered person were 
 disgujsed by dyeing them another color, (d) Articles taken 
 from the pockets are thrown away or burnt, (e) unless of 
 considerable value, in which case they are more commonly 
 secreted for the criminal's benefit. (/) 
 
 The next object of- concealment or destruction, as an evi- 
 dence of crime, in cases of homicide, after that of the dead 
 body and its clothing, is the instrument with which the crime 
 was committed, bearing, as it frequently does, manifest marks 
 of its fatal use. The bloody knife or dagger, hatchet or club, 
 is sometimes hastily thrown into a temporary hiding-place, (g-) 
 sometimes carefully concealed at a distance from the scene ;(A) 
 and sometimes wholly or partly destroyed by fire, (i) or 
 water, (j ) The paper containing the remains of the poi- 
 
 (a) Rex T. Corder, Celebrated Trials, 218, 222, (Phil. 1835.) The 
 State V. Robinson, Middlesex (N. J.) Oyer & Terminer, March, 1841; Pam- 
 phlet Report, 8, 9, 11. The State t. Carawan, Beaufort (N. C.) Superior 
 Court, Fall Term, 1853. Pamphlet Report, 34, 35. In the case of Bishop, 
 Williams and May, only the clothing was buried, the body haying be«i dis- 
 posed of. 2 London Legal Observer, (Monthly) 46. 
 
 (6) The People v. Johnson, 2 Wheeler's Crim. Cases, 376. The People v. 
 Colt, New York Oyer & Terminer, January, 1842. 
 
 (c) Commonwealth v. Webster, Bemis' Report, 566. 
 
 (d) Srayne's case, 4 Lend. Legal Observer, 124, 125. 
 
 (e) Rex T. Thurtell and Hunt, Celebrated Trials, 7. The People v. Colt, 
 «Ai supra. Commonwealth v. Webster, Bemis' Report, 566. 
 
 (/ ) Id. 568. 
 
 (g) The People v. Graham, New York Oyer & Terminer, October, 1864. 
 
 (A) Rex V. Richardson, ante, p. 247. 
 
 (i) CommonweaWi v. Webster, Bemis' Report, 567, 568. 
 
 (/ ) The People v. Johnson, 2 Wheeler's Crim. Cases, 3S1. 
 
410 SUBSEQUENT CIRCUMSTANCES. [PART II, 
 
 son used, is thrown into the fire, from which it has some- 
 times been snatched, to serve as a most important element 
 of evidence, (o) Phials containing the residue of a poison- 
 ous liquid are rinsed out, or thrown away. (6) The instru- 
 ments employed by burglars and counterfeiters, it is hardly 
 necessary to ad(L are always concealed with peculiar care. 
 The destruction of the evidence of a murder by acts like 
 those just mentioned, is usually accomplished by the criminal 
 or his associates, in secret, or with some degree of privacy. 
 In some cases, however, it is done openly, but under various 
 pretexts answering the same general end. The remains of 
 a poisonous liquid, for instance, are got rid of, under the 
 pretence of being a nauseous mixture, offensive to the sense, 
 and therefore requiring removal. Donellan's case may here 
 be again referred to, for some very instructive facts. The 
 deceased had become suddenly and violently ill, after taking 
 a harmless draught prescribed by a physician, for a trifling 
 ailment, and in a few minutes died. There being great 
 reason to suspect poison, it was of course, of the utmost 
 importance to any satisfactory conclusion on this point, that 
 the remains of the draught and the phial or phials contain- 
 ing it, should be preserved undisturbed, until an examination 
 of them could be made by competent persons. This was 
 effectually prevented by the obtrusive and determined con- 
 duct of the prisoner, as the following statement may illus- 
 trate. On coming into the room where the deceased lay, 
 and being told what had happened, he inquired for the 
 physic-bottle ; and on its being pointed out to him by the 
 mother of the deceased, he poured some water out of the 
 water-bottle, which was near, into the phial, shook it and 
 then emptied it into some dirty water, which was in a wash' 
 hand basin. Upon this, the mother of the deceased re- 
 
 (a) Rex V. Blandy, 18 State Trials, 1149, 1154. The People v. SelUck, 
 1 Wheeler's Grim. Cases, 269. ' 
 
 (A) See Donellan's case, referred to, infra. 
 
CHAP. I.} DESTRUCTION OP EVIDENCE. 411 
 
 marked, " you should not meddle witli the bottle ; " upon 
 which the prisoner snatched up another bottle which stood 
 near, poured water into that also, shook it, and then put his 
 finger to it and tasted it. The mother of the deceased 
 again asked, what he was about, and said he ought not to 
 meddle with the bottles ; on which he replied that he did it 
 to taste it, though he had not tasted the first bottle. Not 
 content with this degree of interference, the prisoner next 
 ordered the servant to take away the basin and the bottles, 
 and put the bottles into her hands for that purpose. She 
 put them down again, on being directed by the mother of 
 the deceased, to do so ; but subsequently removed them, on 
 the peremptory order of the prisoner. Here was grossly 
 obtrusive conduct, persisted in, in spite of repeated remon- 
 strances ; and its effect was to remove every vestige of any 
 poisonous ingredient which the phials might have con- 
 tained, (a) 
 
 In another case of supposed poisoning, there was a still 
 more unwarrantable, though less open intermeddling, on 
 the part of the accused, with the evidences of the fact ; 
 a process of medical examination having been actually 
 entered on. The contents of the stomach of the deceased 
 had been removed and placed in a jug, for examination. 
 These were clandestinely thrown by the prisoner into a 
 vessel containing a large quantity of water. (6) 
 
 But supposing, in a case of murder, the body of the slain 
 
 (a) Rex V. Donellan, Gurney's Report, 1781. Celebrated Trials, 123, 124, 
 125, (Phil. 1835.) Notwithstanding the criticism which has been bestowed on 
 the course and result of the trial in this celebrated case, the case itself abounds, 
 perhaps more than any similar one on record, in circumstances of a crimina- 
 tive aspect, bearing in one direction, and from which, taken in connection, it 
 seems impossible to draw any other reasonable conclusion than that of guilt. 
 See 3 Benth. Jud. Evid. 65, 232. Wills, Circ. Evid. 196. Best on Pres. § 208. 
 
 (i) Rex V. Donnall, Launcostou Spring Assizes, 1817; Frazer's Report, 
 p. 171. Wills, Circ. Evid^ 71. 
 
■112 SUBSEQUENT CIECUMSTANCES. [PART II. 
 
 and the instrument of death effectually hidden from view, 
 the attention of the criminal is usually next occupied with 
 removing or concealing any traces or indications of the 
 crime, which may become the subjects of observation ; and 
 his expedients for this purpose come next to be considered. 
 These traces consist of a variety of visible objects and 
 appearances ; such as blood on the ground where the 
 deceased has fallen ; blood on the floor, walls, windows, or 
 doors of the apartment where he was slain ; blood on the 
 instrument of death, (where it has not been destroyed;) 
 blood on the clothes and person of the slayer ; articles of 
 clothing belonging to the latter, by which he may be traced 
 and identified ; and other articles more remotely connected 
 with the commission of the crime. 
 
 In the case of Thurtell and Hunt, (jol) the blood which 
 had flowed from the body on the ground, was attempted to 
 be covered with branches and leaves. In Carawanh case, 
 it was said that the murderer scraped it up with his handa 
 from the road, and, casting it into a ditch, threw some pieces 
 of juniper wood upon it. (6) In Riembauer's case, (c) 
 where the crime was committed in a house, stains of blood 
 on a floor, which had become dry, were removed by planing 
 them out, and throwing the chips into a stove. In Robiiv- 
 sort's case, (c?) the stains were concealed, partly, by planing 
 
 (a) Celebrated Trials, (PhU. 1835,) 7. 
 
 (6) This was according to the statement of the prisoner's slave, whom his 
 master compelled to assist him in burying the body. The statement, however, 
 was not admitted in evidence. Pamphlet Report, 118. 
 
 (c) 3 Lend. Legal Observer, 242, 243. 
 
 (d) The State v. Peter Robinson, Middlesex (N. J.) Oyer & Terminer, 
 March, 1841 ; Pamphlet Report, 9, 11. The casing of the back room door had 
 been planed down to from four to six inches from the floor, and the part not 
 planed, painted over with yellow paint. That this planing had been done after 
 the casings were put up, appeared from the fact that the shavings were broken 
 off ragged, at the point where the motion of the plane was stopped by the floor. 
 A part of the floor of the back room, near the door, and covering about three 
 feet square, together with the floor of the entire entry from oc3 end to the 
 
CHAP. I.J DESTRUCTION OF EVIDBXCE. 413 
 
 out, aud partly by painting over. In CoWs case, (a) 
 where there was great effusion of blood upon the floor, the 
 prisoner spent several hours of the night in soaking it up 
 with cloths, and in washing the floor. 
 
 Spots of blood on the instrument used, where it has not 
 been destroyed or thrown away, arc, sometimes disguised 
 by covering with another substance. In CoWs case, the 
 handle of a hatchet was inked over for this purpose. (6) 
 
 Stains of blood on the person of the criminal are, of 
 course, removed by washing, (c) Stains on the dress are 
 removed by washing, (d) rubbing, scraping, (e) or even 
 cutting out, and other means. Where these methods cannot 
 be adopted, or where they fail, or the effusion is large, the 
 clothing itself is removed and hidden, (/) and sometimes 
 destroyed by fire, (g-) 
 
 Articles of clothing, worn by the criminal, about the time 
 of the commission of the offence, and which might serve to 
 identify him, are carefully concealed from view. It was 
 
 other, the stairs leading down to the basement under which the body was 
 found, and the wall at the side, were painted the same yellow color. That this 
 had been done to conceal something, appeared from the fact that, on the 
 painted portion of the floor of the back room, there were dark spots that still 
 showed through the paint. And when the door-casing was taken off, it showed 
 where a red fluid had run under it, and soaked or drawn up into the wood. 
 This red stain was spoken of, by two of the witnesses on the trial, as blood, as 
 also were several dried red spots on the wall near the back room door, and 
 about a foot from the floor. But, by a strange oversight, instead of having 
 these spots subjected to proper examination and analysis, the witness was al- 
 lowed to rub them off himself, and the door-casing was thrown into a wood- 
 house, where it was afterwards destroyed. Pamphlet Report, 9, 11. See what 
 is said on this subject, ante, p. 140. 
 
 (a) TTie People v. Colt, New York Oyer & Terminer, January, 1842, 
 
 (6) Id. Testimony of Dr. Chilton. 
 
 (c) Commonwealth v. Spring, Philadelphia Criminal Court, March, 1853. 
 
 (d) Rex T. Smith, Varnham, and Timms ; Wills, Circ. Evid. 240. 
 
 (e) Rex V. Beards ; Wills, Circ. Evid. 102. 
 (/) Rex V. Richardson, ante, p. 245. 
 
 (g) Mrs. Spooner's case, 2 Chandler's Am. Crim. Trials, 22. 
 
414 SUBSEQUENT CIRCUMSTANCES. [PART 11. 
 
 considered an important circumstance in the case of Rex v. 
 Howe, (a) that a fawn-skin waistcoat, corresponding with 
 one worn by him, on the evening of the murder, near the 
 scene of the crime, was found in a box of articles belonging 
 to him, which had been clandestinely removed, under a 
 feigned name, and secreted in another place. 
 
 Lastly, articles which may serve to throw light on the 
 character of the means employed to perpetrate the offence, 
 become the subjects of endeavours at concealment by the 
 criminal. It was a circumstance relied on in DonellarCs 
 case, (p) that a still, which had been used by the prisoner, 
 before the death of the deceased, for distilling roses, was, 
 shortly after that event, filled by him with wet lime, (which 
 he said he used to kill fleas,) and directed to be cleaned ; 
 and, when cleaned, was further directed to be put into an 
 oven, to dry. On the supposition that the still had been 
 used for distilling laurel-water, which, it was claimed, had 
 been administered to the deceased, here were very effectual 
 precautions for obliterating every vestige of a criminal use, 
 which might otherwise have been discoverable by the senses. 
 
 A necessary incident to niost of the processes of conceal- 
 ment or destruction which have been mentioned, is the con- 
 cealment of the person of the criminal himself, while engaged 
 about them ; and this is sometimes effected by means which, 
 while they ensure the desired secrecy, at the moment, often 
 serve to attract the very observation they are intended to 
 shut out, and ultimately rank among the most important 
 criminative circumstances of the case. Where a homicide 
 is committed on the premises of the slayer, the first pre- 
 caution is to secure the doors, so as to prevent all entrance 
 from without ; and where the processes of concealment, de- 
 struction or obliteration, deemed necessary, occupy a great 
 
 (a) Wills, Giro. Evid. 235. 
 
 (A) Celebrated Trials, 129, 147, 148. CPliU. 1835.) 
 
CHAP. I.J DESTRUCTION OF EVIDENCE. 415 
 
 length of time, the premises are sometimes kept closed so 
 long as to attract attention, and lead to persevering efforts 
 to ascertain the cause. This is particularly the case -where 
 the locking up of the premises is an unusual circumstance, 
 and where its effect is to shut out a particular person who 
 has been in the daily habit of entering the apartments, for 
 the performance of certain duties. In the case of Moses 
 Drayne, (a) the door of the room where the murdered 
 guest had lodged, was kept locked for eight or nine weeks 
 after his disappearance, and the house-servant was not per- 
 mitted to enter it during all that time. In Peter Robinson's 
 case, (6) the premises occupied by the prisoner were found 
 to be closed for some time on the morning of the disappear- 
 ance of the deceased, so that his own brother was unable to 
 enter. In CoWs case, (c) the door of the room from which 
 very peculiar and alarming sounds were suddenly heard 
 by the occupant of the adjoining room, was found to be 
 closed, (d) immediately after, and it was kept closed for 
 several hours ; perfect stillness prevailing on the inside, and 
 no notice being taken of repeated knockings on the door, 
 by the person on the outside. In Webster's case, (e) the 
 doors of the apartments in the Medical College occupied by 
 the prisoner, and which the janitor was in the habit of 
 entering freely with his own keys, were, on the afternoon of 
 the disappearance of the deceased, suddenly made fast, by 
 bolting on the inside ; and they were kept in this unusual 
 
 (a) 5 London Legal Observer, 123. 
 
 (A) The State v. Robinson, Middlesex (N. J.) Oyer & Terminer, March, 
 1841. Pamphlet Report, 17, 19. The closed appearance of the house, and 
 particularly the circumstance that the side lights of the front door were 
 boarded up, were observed and considered strange by a neighbor who was 
 passing at the time. Id. 20. 
 
 (c) The People v. Colt, New York Oyer & Terminer, January, 1842; testi- 
 mony of A. H. Wheeler. 
 
 {d) According to the prisoner's own confession, the door was locked, but 
 the witness does not seem to have tried it, to ascertain the fact. 
 
 (e) Commonweallh v. Webster, Bemis' Report, 103—107, 109—113, 
 
4X6 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 state for several days, the janitor being wholly excluded and 
 prevented from the performance of his ordinary duties in 
 them. It adds to the criminative aspect of facts like these, 
 if the movements of a person are, at the same time, heard or 
 seen within the locked apartment. This was the fact in 
 both the cases last cited, (a) 
 
 Instead of the several expedients which have just been 
 mentioned, and which involve a variety of acts and pro- 
 cesses, (some of great labor,) performed at different times, 
 upon detached subjects, the criminal occasionally adopts the 
 bolder course of destroying all the evidence, unconnected 
 with his own person, in one mass, and by a single act ; to 
 wit, by the superadded crime of arson. In how many cases 
 this expedient may have been actually resorted to, and with 
 success, it is, of course, impossible to say ; it being a peculi- 
 arity of this offence, when thoroughly effectual, to destroy 
 
 (u) In Colt's case, the prisoner, in addition to locking the room-door 
 took the precaution of dropping the slide or cover over the key-hole, on the 
 inside; but the persevering efforts of the person who was listening on the out- 
 side, removed this obstacle; and he was thus enabled to obtain a view of a 
 portion of the interior of the room, through the key-hole. The principal object 
 which then attracted his notice was a person in a bent position, a« if stooping, 
 in his shirt-sleeves, with his shoulders gently moving, in which position he re. 
 mained for about ten minutes: during the latter part of which time he got up, 
 took something off, or put something on a table, and returned to the same po- 
 sition. Testimony of Asa H. Wheeler. 
 
 In Webster's case, the janitor made several ineffectual attempts, (by looking 
 through the key-hole, and cutting a hole in the door,) to see what was going 
 on in the laboratory in which the accused had locked himself. He finally suc- 
 ceeded, by lying down with the side of his face to the floor, in looking under 
 the door ; and by that means had a view of the person of the accused as high 
 up as his knees, and saw him carrying a coal-hod towards the furnace where 
 several of the bones of the deceased were afterwards found. Bemis' Re- 
 port, 112. 
 
 In Peter Robinson's case, a witness testified that, on the forenoon of the day 
 on which the deceased disappeared, he endeavored to enter the prisoner's hovise 
 by the front and back doors, and knocked for admittance; but no notice was 
 taken of this, although, in going along by the side of the house, he heard a 
 noise inside, like persons moving about. Pamphlet Report, lU. 
 
CHAP. I.] DESTRUCTION OF EVIDENCE. 417 
 
 all evidence even of its own commission, (a) But that it 
 often occurs to the mind in desperate cases, has been clearlj 
 shown. In CoWs case, (6) according to the prisoner's 
 own confession, it was one of the first means of concealment 
 which suggested itself. In Peter Robinson's case, (c) the 
 prisoner went so far as actually to propose to his own 
 brother, to set fire to the house, under the floor of which it 
 afterwards appeared, the murdered man was buried. In 
 Richard P. Robinson's case, {d) the bed on which the 
 murdered female lay, was set fire to, and the body itself 
 partly burned. 
 
 Another object of concealment, on which especial atten- 
 tion is bestowed, in the crimes of robbery and theft, consists 
 of the fruits of crime themselves. These are removed as 
 quickly as possible, and hidden at a distance from the scene 
 of the crime, (e) sometimes kept concealed upon the crimi- 
 nal's person, (/) and, sometimes secreted on the premises 
 where the crime has been perpetrated, (g-'). Other pre- 
 cautions adopted in these cases, and coming strictly under 
 the head of the destruction of evidence, consist of the re- 
 moval of marks or names from stolen articles, such as plate 
 and clothing, with the view of rendering their identification 
 by the owner difficult or impossible ; and this, in the case 
 of plate, is often carried the further length of breaking up 
 the articles, or melting them down into one undistinguish- 
 able mass. (A) 
 
 (o) Alison's Principles of the Grim. Law of Scotland, 444; cited in Roscoc's 
 Crim. Evid. 276. 
 
 (6) JTie People v. Colt, New York Oyer & Terminer, January, 1842. 
 
 (c) The State v. Robinson, Middlesex (N. J.) Oyer & Terminer, Pamphlet 
 Report, 17. 
 
 (rf) The People v. Robinson, New York Oyer & Terminer, June, 1836 
 
 (c) The People v. Johnson, 2 Wheeler's Crim. Cases, 377. 
 
 (/) Rex V. Smith, Varnham and Timms, Wills, Circ. Evid. 239, 240. 
 
 (g) Regina v. Courvoisier, Id. 242. The Stale v. Robinson, Pamphlet 
 Beport, 32. 
 
 (A) Rex V. Smith, Varnham and Timms, WiUs, Circ. Evid. 240. 
 
418 SUBSEQUENT CIRCUMSTANCES. [PABT U 
 
 The subjects of destruction or concealment which have 
 thus far been considered, consist of inanimate objects, and 
 physical substances and appearances, which, the criminal 
 apprehends, may, in future, be converted into materials of 
 evidence against him. But there is another class of subjects 
 often of still greater importance than these, over which, 
 however, his power is usually far more limited ; namely, 
 persons who have been, whether intentionally or otherwise, 
 the observers of his conduct, either in preparing for, com- 
 mitting, or concealing the crime, or who have observed some 
 important physical fact connected with it : and whose testi- 
 mony, as judicial witnesses, he apprehends may be material, 
 or feels may be decisive in fixing the crime upon him. 
 Great pains are sometimes taken to get such witnesses out 
 of the way, either by actually eloigning them, or sending 
 theni away, where they are under the criminal's direction ; 
 or by inducing them to remove to a distance, so as to bo out 
 of the reach of judicial process ; and, in these cases, the 
 effect of bribes is often freely tried. Attempts of this kind 
 are also sometimes made after the apprehension of the crimi- 
 nal and before his trial. In Carawan's case (a) two letters 
 written in the prisoner's hand, were found on the floor of the 
 dungeon in which he was confined, imploring the parties to 
 whom they were addressed, to spare no means to get the 
 principal witness against him (his own nephew) to leave, 
 and giving directions how to raise one thousand dollars for 
 the purpose, if necessary. In other cases, the criminal is 
 content, or forced to be content with enjoining, or requesting, 
 or endeavoring to prevail on the witness to conceal and not 
 to tell what he or she had seen. In the case of Rex v. 
 Burdock, (6) a case presenting a most extraordinary in- 
 stance of blindness or carelessness on the part of the crimi- 
 nal, to the obvious effects of her own acts and words, the 
 witness, a servant, was cautioned, on leaving her house, 
 
 {«) The State v. Carawan, Pamphlet E«port, 68, 64. 
 (6) Beat on Prcaumptions, § 296. 
 
CHAP. I.J DESTRUCTION OP EVIDENCE. 419 
 
 after the death of the deceased, not to tell any thing of the 
 deceased, or that she had lived with her, or that she had 
 ever seen the prisoner pnt any thing into her gruel, as people 
 might think it curious, (a) Sometimes such requests are 
 made in advance of any observation by the witness. In the 
 Scotch case of Nairn and Ogilvie, (6) the female prisoner 
 made the extraordinary request of the surgeon who had been 
 sent for, to attend her husband, but who did not arrive till 
 shortly after his death, that whatever he might think he dis- 
 covered to be the cause of such death, he would conceal it 
 from the world. 
 
 The presumption arising from any of these acts of de- 
 struction, suppression or eloignment of evidence, where they 
 have been fastened upon the accused by Satisfactory proof, 
 is always unfavorable, (c) Assuming that an act of this 
 kind was done with a motive, the logical inference is that it 
 was done in order to get rid of something which would 
 otherwise prejudice the actor. Hence, the conclusion is 
 warranted, that the subject of action, if presented in evi- 
 dence, would, in fact, operate against him. The principle 
 of this presumption is a general one, applicable in civil as 
 well as criminal cases ; and is embodied in the well-known 
 maxim. Omnia prcemmuntur contra spoliatorem. (d) It 
 must be borne in mind, however, that the getting rid of evi- 
 dence, or of the sources, materials or instruments of evidence 
 by any of the methods which have just been considered, is 
 not, in itself, and necessarily, incompatible with the inno- 
 cence of the party who is proved to have resorted to such 
 expedients, as wiU be more fully shown under a future head. 
 
 (a) See also the case of Rex v. Smith, Varnham and Timms, Wills, Circ. 
 Evid. 240. 
 
 (6) 19 State Trials, 1294. 
 
 (c) 1 Stark. Evid. 490. 
 
 ((2) As to the constniction of this maxim, and the limits to its application, 
 see Best on Pres. §| 145, 148, 149. 
 
420 SUBSEQUENT CIRCUMSTANCES, [PART 11. 
 
 SECTION XVI. 
 Fabrication or Forgery of Evidence. 
 
 Another device resorted to by the perpetrators of crimes, 
 with a view to escape detection and its consequences, is the 
 positive fabrication of evidence, or rather, of the sources, 
 materials or instruments from or through which evidence 
 may, in future, be derived or conveyed. This fabrication is 
 effected in two principal ways : iirst, indirectly, by intention- 
 ally producing on the senses of observers, impressions which 
 shall, without fault on their part, lead to wrong ideas and 
 conclusions, and thus, from the earliest stages, divert sus- 
 picion and inquiry to other objects and into other channels ; 
 or, in the event of actual discovery and consequent trial, 
 aid, in the form of testimony, in disproving the criminal 
 charge : — secondly, directly, by prevailing upon individuals 
 who, it is supposed or feared, may be called on for informa- 
 tion or testimony, to mis-state one or more of the facts of 
 the case ; or even to state, as facts, what they theniselves 
 know to be absolute falsehoods. 
 
 In regard to the first of these, it may be further observed, 
 that the sources of wrong impressions are two-fold ; namely, 
 physical appearances and objects, produced or arranged by 
 the criminal's own act ; and conduct on his part, independent 
 of such appearances and objects. These will now be con- 
 sidered in their order. 
 
 I. The employment of physical objects and appearances, 
 for the purpose of deceiving or mis-leading the senses or 
 conclusions of observers, has been otherwise termed forgery 
 of real evidence, (a) This has been divided, by some 
 writers, into two leading descriptions : that which has been 
 
 (o) 3 Benth. Jud. Evid. 49. Best on Pres. § 220, et seq. 
 
CHAP. I.] FACRICATIOy OP EriDENCE. 421 
 
 committed with a view of self-exculpation ; and that which 
 has been committed maliciously, or with the specific inten- 
 tion of injuring some particular known individual, (a) This 
 division, which has a sole reference to the motive of the act, 
 will come under consideration in connection with the follow- 
 ing divisions, which embrace the various forms of the fabri- 
 cative process itself. 
 
 1. In the first form of fabrication which may be mentioned, 
 the object and endeavor of the criminal are, to give such an 
 appearance to the subject or scene of the crime, or both, as 
 shall produce an impression that no crime at all has been com- 
 mitted, or that there has been no human agency in the case 
 /distinct from the act of the subject himself. Thus, where a 
 person has been murdered, the body, limbs, and clothing 
 are sometimes so arranged, and the instrument of death so 
 placed, as to lead an observer to suppose that it was a case 
 of suicide. In a case at Liege, in 1764, (6) where a citizen 
 of that place had been killed by shooting in the head, the 
 assassins laid a discharged pistol close to the body, in 
 order to produce an impression that he had shot himself. In 
 the case of Green, Berry, and Hill, who were tried in 1679, 
 for the murder of Sir Edmundbunj Godfrey, (c) the mur- 
 der had been committed in Somerset-House,' by strangling 
 with a handkerchief; but, in order to give it an appearance 
 of suicide, the body, after having been kept some days, was 
 carried out at night into the fields, run through with the de- 
 ceased's own sword, and thrown into a ditch, his stick 
 and gloves being laid upon the bank. In the case of Mary 
 Norkott and others, (c?) similar attempts were- made to give 
 to a murder the outward appearance of suicide. 
 
 (a) Id. §§ 221 — 223. Another division mentioned by Mr. Best, includes 
 those cases whore the forgery has been committed under the influence of both 
 these motives in combination. Id. § 224. 
 
 (A) Theory of Presumptive Prooi, Appendix, case 2, 
 
 (c) 7 State Trials, 159, 173. 
 
 (i) 14 State Trials, 1324. 
 
422 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 Another device sometimes resorted to, is to arrange the 
 circumstances and appearances of death in such a manner 
 as to convey the impression of its having been the result of 
 accident ; as by falling into a well, (o) being kicked by a 
 horse, and the like. 
 
 Fabrications of this kind usually require, for their suc- 
 cessful accomplishment, a degree of deliberation and cool- 
 ness, as well as of skill, information, memory and fore 
 thought, on the part of their authors, which is rarely pos- 
 sessed or exhibited. Hence it happens that they are con- 
 stantly accompanied by circumstances and appearances, 
 which, either at once and upon their face, betray the fraud, 
 or lead to the same conclusion by an indirect but not. less 
 convincing process. Thus, in the case at Liege, above men- 
 tioned, the assassins entirely overlooked the very material 
 circumstance and consideration that the barrel of the pistol 
 which they laid by the side of the murdered man, was of 
 smaller bore than the one with which he had been shot, and 
 that, if the bullet used should be found, and applied to the 
 muzzle, the result would be to show conclusively that such 
 pistol could not have been used to produce the wound. And 
 it was, in fact, by this very process of comparison, that the 
 fraud was detected. In the case of Sir Edmundbury God- 
 frey, the sword of the deceased had been driven so far 
 through his body, that the point of it projected from his 
 back, the distance of two hand-breadths ; and yet, when it 
 was drawn out, no blood followed, and there was no appear- 
 ance of blood either on the body or in the ditch where it 
 lay. And, besides this, it was found that no part of the 
 clothing had been perforated, {b) In the case of Mary 
 Norkott and others, the deceased was found lying in a com- 
 posed manner in her bed, with her throat cut. But her 
 
 (a) Mrs. Spooner's case, 2 Chandler's Am. Crim. Trials, 3, 13, 14. 
 (6) 7 State Trials, 184, 185. Marks of violence were also observed on the 
 breast of the deceased, and his neck was broken. 
 
CHAP. I.] FABRICATION OP ETIDEXCE. 423 
 
 neck was found to be broken, there was no blood in the bed, 
 but blood was found under the bed, and a very great quan- 
 tity on the floor, a bloody knife was found sticking in the 
 floor, a good distance from the bed, with the point towards 
 the bed, and, finally, there was the print of a thumb and 
 four fingers of a left hand, (a) 
 
 Sometimes, this fabrication of evidence by the criminal is 
 to a very limited extent, being resorted to with the view of 
 removing the suspicious aspect of some single criminative 
 circumstance, by assigning it to some natural cause. In an 
 American case which has been already several times re- 
 ferred to, (&) the prisoner endeavored to avoid the efl"ect of 
 blood stains observed on her clothing, by opening an old 
 wound on her finger, and causing the blood to flow from it. 
 
 2. In the next form of fabrication which comes to be con- 
 sidered, there is no effort made to disguise the general fact 
 of a crime having been committed, but the whole aim of the 
 fabricator is to divert suspicion from himself to other un- 
 known persons. Thus, where a person has been murdered 
 by an inmate of the same house, attempts have sometimes 
 been made to give it the appearance of having been perpe- 
 trated by robbers entering from without, and the particular 
 appearances of robbery itself have been very industriously 
 counterfeited. In the late English case of Regina v. Cour- 
 voisier, (c) the simulation of a robbeiy by house-breakers, 
 and of murder by the robbers, was quite elaborately con- 
 trived. In the first place, marks of violence were made 
 upon the door of a pantry, leading to a back area, to indi- 
 cate where an entrance had been forced. Drawers were 
 pulled out, and a variety of articles of clothing, plate, and 
 valuables were scattered about, in different parts of the 
 
 (o) 14 state Trials, 1326. 
 
 (A) Tke State v. Cicely, a slave, 13 Smedes & Mai-shall, 205. 
 (c) Burke's Trials, connected with the Aristocracy, 4C1. Wills, Cire. Evid. 
 211. 
 
424 SUBSEQUE^fT CIRCUMSTANCES. [PART II, 
 
 house, and some were bundled up, as if in readiness to be 
 carried off. Finally, certain articles around the bed on 
 which the murdered man lay, were so arranged as to create 
 the impi-ession that' he had been killed while reading, A 
 book was found on the floor, his spectacles lay upon it, and 
 there was a candlestick about four or five feet from the bed, 
 with the candle burned to the socket, (a) 
 
 But in this, as in the preceding description of cases, the 
 most ingenious frauds frequently carry with them the means 
 of their detection. In the case of Courvoisier, just cited, 
 the marks on the door appeared, on examination, to have 
 been made from the inside. The awkward manner in which 
 the articles were disposed and scattered about, showed that 
 it was not done by a professed thief. And the candle was 
 found to be placed in such a situation, that it would not have 
 afforded sufficient light to enable the deceased, in the posi- 
 tion in which his body was found, to read a single word by 
 it. (6) 
 
 3. In the next form of fabrication which occurs for con- 
 sideration, the criminal more directly attempts to inculpate 
 a particular individual, not from any actual malice against 
 such individual, (who may be an entire stranger,) but solely 
 as the most effectual means in his power, of exculpating 
 himself. The fabrication in these cases is a simple process, 
 consisting, usually, of a single act, suggested on the emer- 
 gency of the moment ; and is accomplished by leaving with 
 the person, or on the premises of the selected individual, 
 
 (a) As further instances of this species of fiibrioation, may be mentioned 
 those oases of robbery and murder , 'where the criminal inflicts slight wounds 
 upon his own person, in order to confirm his own statement of an attacl^ made 
 upon him by others. This was contended to have been the fact in the singular 
 case of Archibald Bolam, an actuary of the Savings Bank ijt Newcastle, Eng- 
 land, who was tried in 1839, for the murder of one Millie, a, clerk in the 
 bank. 18 London Legal Observer, 337. 
 
 {b) Burke's Trials connected with the Aristocracy, 466, 466. Wills, Cira 
 Evid. 242, 243. 
 
CHAP I.] FABRICATION OP EVIDENCE. 425 
 
 some article or object of criminative evidence, such as the 
 instrument or fruits of the crime, or even the subject of the 
 crime itself. A fabrication of this kind was effectually 
 practiced, at the expense of the life of an innocent indi- 
 vidual, in the case of a horse-thief mentioned by Lord Hale, 
 and given on a former page of the present work, (a) This 
 case has been paralleled in its circumstances, though not in 
 its tragic consequences, by another, which happened in Eng- 
 land as late as the year 1827. Two oxen had been stolen ; 
 and the thief, while driving them away, finding himself pur- 
 sued, and meeting a person on the road, made a bargain with 
 him to drive the animals for him, to London, and then fled. 
 The person having the oxen in charge, being apprehended, 
 was tried for the crime, convicted, and narrowly escaped 
 transportation for life. (&) 
 
 In the case of John Jennings, who was executed at Hull, 
 in the year 1742, a fabrication of this kind was practiced 
 with a fatal result to the individual who was the subject of 
 it. One Brunell who kept the Bell Inn, where Jennings 
 was employed as a waiter, had robbed a gentleman on the 
 road, about two miles from his inn, late in the evening, of a 
 purse containing twenty guineas. It happened that the per- 
 son robbed stopped at the inn that night, and, having gone 
 into the kitchen to give directions for his supper, related to 
 several persons present, what had befallen him ; adding that 
 every guinea in the purse he was robbed of had been par- 
 ticularly marked, and that, by that means, the robber would, 
 most probably, be detected. Brunell had just before paid 
 away one of the guineas ; and, on hearing this statement, 
 became so impressed with the certainty of his detection, 
 that, in order to save himself, he resolved to sacrifice Jen- 
 nings. He accordingly went to the room where the waiter 
 lay asleep, and conveyed into one of his pockets the purso 
 
 (a) Aitte, p. 212, note (a). 
 
 (i) Rex V. GUI, Wills. Giro. Eyid. 54, -55. 
 
426 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 with the nineteen marked guineas. He then communicated 
 to the traveller his suspicions that the waiter was the man 
 who had robbed him, basing them upon a false statement of 
 facts ; and concluded with proposing a search of the man's 
 person, as a means of verifying such suspicions. The trav- 
 eller assenting to this, they both went up to the room where 
 Jennings slept, and searched his clothing. The result was, 
 that the purse was found in one of the pockets, and the 
 money identified by the traveller as that of which he had 
 been robbed ; and upon evidence of these facts, confirmed 
 by the perjured statement of the landlord, Jennings was 
 convicted and executed, (a) 
 
 (ff.) Theory of Presumptive Proof, Appendix, case 1. In an old case which 
 occurred near Dublin, in the year 1681, the facts were these. Two persons, 
 strangers to one another, put up at an inn, one of them having a considerable 
 amount of money. After they were in bed and asleep, the inn-keeper tooli the 
 sword of the person who had the least money, killed the other, and put back 
 the sword into the scabbard, all bloody. The person whose sword was made 
 use of, rose in the morning early, called for his horse, and prosecuted his jour- 
 ney. As soon ae he was gone, the inn-keeper went into the room where the 
 murdered person lay, and, with a seeming amazement cried out, that one of 
 his guests was murdered; and, upon search, found that his money was gone. 
 Every one suspected the person who had just left the inn; upon which, 
 he was pursued and overtaken, and, the inn-keeper drawing his sword, it was 
 found bloody; which was considered as aSFording so strong u presumption of 
 guilt, that, being tried for his life, he was found guilty. But, upon some cir- 
 cumstances being shown in his favor, the judge, having some scruples, obtained 
 a reprieve; and, in the interval, the inn-keeper confessed the crime, by which 
 the innocent man's life was saved. Case reported in Brackenridge's Law Mis- 
 cellanies, p. 507, as eKtracted from Malcome's Miscellaneous Anecdotes, pub- 
 lished A. D. 1811\ A similar case is mentioned in the London Legal Observer 
 for August 20th, 1836, as having occurred at Norwich, England, in 1684, 
 where the person, whose sword was thus fraudulently used, was, at the time, 
 iu a senseless state, arising from intoxication ; and which resulted in his actual 
 execution. 12 London Legal Observer, 328. 
 
 As a singular instance of the use of the subject of a crime in fabricating evi- 
 dence, the Scotch case of Sawney Cunningham, (A. D. 1635,) may be re- 
 ferred to. In this case, the deceased had been decoyed into the murderer's 
 house, and having been dispatched there, his body was carried out at night to 
 his own residence, and there placed in a sitting posture. It was discovered in 
 
CHAP. I.] FABRICATION OP EVIDENCE. 427 
 
 4. The last form of fabrication of evidence, by means of 
 physical objects, remaining to be considered, embraces those 
 cases in which a person, having a particular malice against 
 some known individual, and having committed a crime, 
 either for his own gain or gratification, or, possibly, with the 
 sole view of injuring such individual, proceeds to fabricate 
 certain physical facts and appearances, which shall, on their 
 face, connect the latter with the crime so closely, as to lead 
 to his arrest and trial, on suspicion of having committed it. 
 This has been distinguished as malicious forgery of real 
 evidence, (a) Stealing an article, conveying it into an- 
 other's possession, and contriving that it shall be found there 
 by the owner, is perhaps the simplest form of this malicious 
 fraud. Committing a murder with the knife of another, and 
 having his shoes on, (for the purpose of making foot-prints,) 
 and then returning the articles into his possession, with the 
 view of their being found there, and used as evidence 
 against him, is a more aggravated form of the same class of 
 fabrication. A bad case of this kind is given in the ap- 
 pendix to the " Theory of Presumptive Proof." (6) A 
 woman having resolved to take the lives of her father and 
 brother, accomplished her purpose by the following means. 
 Her father having gone from the house to a hovel, to milk a 
 cow, and there being snow on the ground, she followed him 
 
 this posture, by a friend of the deceased, who was staying with him; but he, 
 fearing to be thought the murderer, and suspecting the cause of his death, 
 carried the body back to Cunningham's house door, where he set it down. The 
 door being soon after opened by Cunningham'' s wife, the body fell into the 
 house. But Cunningham , nothing daunted by this circumstance, took up the 
 body again, with the design of carrying it to the river and throwing it in. On 
 his way, he was induced to change his purpose, and finally, by an artful con- 
 trivance, succeeded in conveying the corpse into the possession of some thieves, 
 where it was found ; and the thieves, being tried for the murder, were exe- 
 cuted. 5 London Legal Observer, 42. Celebrated Trials, 297. <Phil. 1835.) 
 
 (a) BestonPres. § 223. 
 
 (6) Case 10. It should be observed that this case is altogether anonymous, 
 and contains not a single particular of name, time, or place. 
 
428 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 with a hammer belonging to her brother, and with her 
 brother's shoes on, killed him by beating out his brains, and 
 then returned to the house, and deposited the hammer in 
 the corner of a private drawer. She then gave information 
 to the neighbors, who proceeded to make a search. The 
 foot-prints on the snow were compared with the brother's 
 shoes, and found to correspond ; and his hammer was dis- 
 covered in the drawer, with spots of blood, and other evi- 
 dences of its use upon it. On evidence of these physical 
 facts, together with the woman's fabricated statement of the 
 case, the brother was convicted of having murdered the 
 father, and suffered death. 
 
 Under this head may also be classed the case reported in 
 the Causes Celebres, where the assassin, having got possession 
 of a knife and cravat belonging to the servant of the woman 
 he intended to murder, and also of some of his hair, com- 
 mitted the crime with the knife, which he left bloody, near 
 the body ; and then placed in one hand of the corpse, the 
 cravat, and in the other the hair ; thus giving an appear- 
 ance of their having been torn from the person of the serv- 
 ant, in the mortal struggle, (a) 
 
 II. But the fabrication of evidence, or of the materials or 
 sources of evidence, is not, by any means, confined to mere 
 physical objects and appearances. By his own language 
 and conduct, the criminal often strives to produce impres- 
 sions upon observers, calculated either to prevent the forma- 
 tion of any suspicions of his guilt, or to remove them, if 
 formed ; or, at least, to diminish their force. In many re- 
 corded instances, his whole conduct, from the moment after 
 the offence has been committed, to the time of his arrest, 
 
 (o) 5 Causes C^febres, 438; given, in the original French, by Mr, Benlham, 
 (3 Jud. Evid. 255,) and translated by Mr. Best. Best on Pres. § 210. 
 
CHAP. I.J FABSICATION OP EVIDENCE. 429 
 
 and sometimes later, has beeu a tissue of dissimulation, 
 mendacity, and fraud. 
 
 The following examples of this species of fabrication, to 
 which the distinctive appellation of " moral " may be given, 
 will serve to show the varieties of artifice to which a mind 
 conscious of guilt, will resort, in order to escape its appre- 
 hended consequences. 
 
 1. Counterfeiting alarm, and running from the scene of 
 crime in pretended terror. In the case of Swan and 
 Jefferys, (a) immediately after the murder was committed, 
 the female prisoner ran out of the house, in her night- 
 clothes, to a neighbor's, crying for help, and screaming 
 " murder ! fire ! thieves ! " The house was examined, but 
 there appeared no marks of any person having been in it, 
 except those belonging to the family, and no traces were found 
 on the outside, of any person having quitted it, the dew on 
 the grass being quite undisturbed. 
 
 2. Making inquiries after the deceased, and expressing 
 surprise at his absence. In Mrs. Arden's case, (6) the 
 female prisoner,- after having actually taken part in the mur- 
 der of her husband, and helped to carry his body out of the 
 house, sent her servants out to search for their master, 
 directing them to go to places which he mostly frequented. 
 In the very similar Ametican case of Mrs. Spooner, (c) 
 the same expedient was resorted to by the female prisoner, 
 although she knew that her husband had just been murdered, 
 and that his body was then lying in the well near her own 
 door. In the cases of Colt {d) and Webster, (e) inquiries 
 were made by the prisoners, after the deceased, with all the 
 
 (rt) Rex V. Su)an and Jefferys, 18 State Trials, 1193. 5 Loud. Legal 
 Obs. 425. 
 
 {h, 5 London Legal Observer, 59. 
 
 (c) 2 Chandler's American Crim. Trials, 3. 
 
 (d) The People t. CoZi.New York Oyer & Terminer, January, 1842; testi- 
 mony of Hugh MoTitthan. 
 
 (c) Commonwealth v. Webster, Bemis' Report, 106, 115. 
 
430 SUBSEQUENT CIECUMSTANCES. [PART II. 
 
 air of persons who knew nothing of the crime which had 
 been perpetrated. 
 
 3. Pretending- violent sorrow for the death or disappear- 
 ance of the person murdered. In the case of Mrs. Ar- 
 den, (a), just cited, when the servants who had been sent 
 out to inquire for the husband, returned without any tidings, 
 the female prisoner began to exclaim and weep, which 
 brought in some of her neighbors, who found her very- 
 sorrowful, and lamenting her case, because she could not 
 find out what had become of her husband. And this kind 
 of conduct is sometimes exhibited by criminals of the other 
 sex. In Philip Standsfield' s ease, (i>) the prisoner cried 
 and lamented when his father's body was found ; but within 
 an hour after it was brought frojn the water, he got the 
 buckles out of the shoes of the deceased and put them in 
 his own, having previously taken gold and money out of his 
 father's pockets. 
 
 4. Expressing an opinion, in cases of the sudden dis- 
 appearance of a person, that he had gone away. Some- 
 times, such opinions are expressed in language conveying an 
 imputation upon character. In Peter Robinson's case, (c) 
 the prisoner stated, as his belief, that the missing person, 
 who was then lying dead under his own basement floor, had 
 " run away." In Carawan^s case, (rf) the prisoner, speak- 
 ing of the deceased, told a witness he thought he had " cut 
 out." 
 
 5. Spreading reports that a murdered and missing person 
 had gone to a distance, or had been seen in various places, 
 remote from the scene of the crime, and, in some instances, 
 
 (o) 5 Lond. Legal Observer, 60. 
 
 (A) 11 State Trials, 1398. 
 
 (c) The State v. Robinson, Middlesex (N. J.) Oyer & Terminer, March, 
 1841 . Pamphlet Report, 12. 
 
 (rf) The State v. Carawan, Beaufort, (N, C ) Superior Court, Fall Term, 
 1863. Pamphlet Keport, 56. 
 
CHAP. I.] FABRICATION OP EVIDENCE. 431 
 
 near it. In Drayne's case, (a), where a traveller had been 
 robbed and murdered at an inn, and his body buried in the 
 back yard ; a report was, soon after, spread, that he was 
 gone to Amsterdam ; next, that he was at Cork ; and, 
 finally, that he was at Barbadoes ; leading his wife to make 
 diligent search for him at all these places. In this way, 
 suspicion was, for several years, effectually diverted from 
 the scene of crime, and the real criminals. 
 
 6. Writing letters, with a similar view to prevent or mis- 
 load inquiry. (6) Of this species of fabrication, there are 
 two varieties, — ^letters written by the ' criminal, in his own 
 ordinary hand, and over his own signature ; and letters 
 written by him, in disguised hands, and with fictitious signa- 
 tures, or without signatures. 
 
 Of the first of these species of fabrication, the English 
 case of William Corder (c) furnishes an apt illustration. 
 The prisoner had agreed to marry a young woman living at 
 Polstead, with whom he had been intimate, and left her 
 parents' house with her, one day, stating that he was going 
 to Ipswich, to marry her the next day. Eeturning without 
 her, he said he had left her at Ipswich. To subsequent in- 
 quiries made by her parents, who became uneasy at hearing 
 nothing from their daughter, he said she was living at Yar- 
 mouth. On leaving Polstead, he said he was going to Yar- 
 mouth, to take her with him, and be married immediately. 
 Sometime after, he wrote a letter to her father, from London, 
 stating that he had married his daughter, and that they had 
 taken lodgings at Newport, in the Isle of Wight, and giving 
 a variety of minute particulars about her ; saying, among 
 other things, that she had previously written to her father, 
 and expressing astonishment that the letter had not been 
 
 (a) 5 London Legal Observer, 123. 
 
 (A) The letters themselves, when written, belong to the class of physical 
 £icts. 
 
 (e) Celebrated Trials of all Countries, 219. (Phil. 1835.) 
 
432 SUBSEQUENT CIRCUM9TAXCES. [PABT II. 
 
 ans)vcred. (a) All these were pure fabrications ; the fact 
 being, that the prisoner had murdered the missing female 
 on the same day on which he left her parents' house with 
 her, and had buried her body under the floor of a barn, not 
 far distant. 
 
 Of fabrication, by writing anonymous letters, in disguised 
 hands, the case of Commonvjealth v. Webster (&) furnishes 
 a signal example. In this case, three letters were written, 
 — two of them over fictitious signatures, the third, without 
 signature, — and sent, on different days, through the Post- 
 ofiBce, addressed to the City Marshal of Boston, about the 
 time when searches were being made for the missing Dr. 
 
 Parkmm- In the first of these, signed " M. , Capt. of 
 
 the Darts," it was very briefly but positively said, that the 
 Doctor would be found " murdered on Brooklyn Heights." 
 The next letter, signed " Givis," recommended that cellar 
 floors and out-houses should be more closely examined. It 
 suggested, also, that the body had probably been " cut up," 
 put into a bag with heavy weights, and sunk in some part 
 of the harbor or river ; and recommended that cannon should 
 be fired, to cause it to rise to the surface ; also, that the 
 cellars of the liouses in East Cambridge should be examined. 
 The last and most singular of the three letters was without 
 signature, written on a mere scrap of paper, and bore the 
 appearance of being scrawled with a stick or brush dipped 
 in ink. (c) It purported to be written by one who had 
 been an unwilling witness of the transaction, or some part 
 of it ; and communicated the fact (as all the witness dared 
 to say,) that Dr. Parkman was taken on board "the ship 
 
 (a) There was another letter subsequently written by the prisoner to ths 
 fother, and a previous one to another individual, in which the same course of 
 false and fraudulent statement was maintained, and carried out in some of tho 
 minutest particulars. Celebrated Trials, 219, 220. 
 
 (b) Bemis' Report, 210, 211. 
 
 (c) The instrument supposed to have been used, and called "a cotton pen,' 
 was produced in court, and proved to have been seen in the laboratory of the 
 accused. Bemis' Report, 173. 
 
CHAP. I.] FABRICATION OP EVIDENCE. 433 
 
 Herculan " ; and that one of the men gave the writer the 
 doctor's watch, but he was afraid to keep it, and threw it 
 into the water, on the right side of the road to the long 
 bridge to Boston, (a) There was strong evidence to show 
 that all these letters were written by the prisoner himself, 
 and, indeed, in his confession, he admitted that he wrote the 
 last ; although he knew that the missing person had been 
 killed by himself, and that his dismembered remains were 
 then hidden on his own premises. 
 
 7. Spreading reports as to the movements of the suspected 
 party, in order to prevent pursuit, or confound and defeat in- 
 quiry. These often and designedly find their way into public 
 prints, and sometimes present serious obstacles to the coarse of 
 justice. In the French case of M. D'Ang-lade, (ft) who 
 suffered for a robbery committed in Paris, by others, in 1687, 
 one of the real criminals had caused a paragraph to be in- 
 serted in a newspaper, that the guilty parties had been exe- 
 cuted for some other crime, at Orleans ; hoping, by this 
 means, to stop any further inquiry. 
 
 8. Spreading reports as to the cause or manner of the 
 death of the deceased party. This expedient has been re- 
 sorted to, in some cases of poisoning. In the celebrated 
 case of the murderers of Sir Thomas Overbury, (c) the 
 body of the deceased being found covered with eruptions 
 produced by the extraordinary poisons administered, it was 
 reported that he had died of a foul disorder. In DonellarHs 
 case, (d) the death of the deceased was attempted to be 
 
 (a) A fee- simile of this singular production, which the accused after 
 solemnly denying, admitted he wrote himself, (Bemis' Rep. 453, 571,) may 
 be found in Bemis' Report of the trial, between pages 210 and 211. The let- 
 ter itself ran thus: " Dr. Parkman was took on Bord the ship herculan and 
 this is al I dare to say or I shal be kiled Est Cambrge one of the men give me 
 his watch but I was feard to keep it and thowd it in the water rightside the 
 road to the long brige to Boston." 
 
 (6) 5 London Legal Observer 231, 234. 
 
 (c) 2 State Trials, 918. 
 
 (d) Gurney's Report., 1781. Celebrated Trials, 148 (Pliil. 1835.) 
 
434 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 accounted for, in the same way. In the case of Commortr' 
 wealth V. Webster, (a) the accused took particular pains to 
 give currency to a report that a woman had seen a large 
 bundle put into a cab, that she had taken the number of the 
 cab, and that they had found the cab covered with blood. 
 
 III. The last species of fabrication of evidence remaining 
 to be considered, is that which is addressed directly to the 
 great medium of all evidence, — the testimony of witnesses. 
 Instead of fabricating facts and appearances, and trusting 
 to impressions which they may make upon observers, who 
 may, in the character of judicial witnesses, report them, in 
 future, to the investigating tribunal, the criminal, in carrying 
 out this species of fraud, confers immediately with the ob- 
 server (and intended witness) himself : endeavoring, some- 
 times, merely to weaken, distort, or destroy true impressions 
 which have been formed, (i) or to deepen wrong but honest 
 impressions where they may exist ; but sometimes proceed- 
 ing the bolder length of attempting to corrupt the integrity 
 of the witness, and to prevail on him to state and make 
 oath to, as facts, what both the criminal and witness know 
 to be absolute falsehoods. A few recorded instances of 
 conduct of this description, involving attempts to commit 
 the offence of subornation of perjury, (c) will now be 
 noticed. 
 
 In the Scotch case of Nairn and Ogilvie, the female pris- 
 oner having heard that the sheriff was coming to the house 
 of the deceased, to make a preliminary examination of wit- 
 nesses in the case, endeavored to induce one of the servants 
 of the deceased to say, among other things, that she had 
 
 (a) Bemis' Report, 116, 187. Another version was, that a mesmerized 
 woman had named the number of the cab which took Dr. Parkman off, and 
 that the cab had been found with spots of blood on it. Id. 185, 187. 
 
 (6) See Commonwealth v. Webster, Bemis' Report, 188, 189. 
 
 (c) 3 Benth. Jud. Evid. 167. 2 Russell on Crimea, 596. Wharton's Am. 
 Crim. Law, 763, (ed. 1855.) 
 
CHAP. I.] PABKICATIOS OF EVIDENCE. 435 
 
 drunk some of the tea which the prisoner mixed in a bowl 
 for the deceased, before the latter tasted it, and that she 
 likewise drank off what the deceased left of it, and that she 
 was in the closet with the prisoner when she mixed the tea, 
 (such statements beibg wholly false :) adding, as an induce- 
 ment, that if she would say as thus directed, the prisoner 
 would stand by her and no harm should come to her, that 
 the witness should go with her wherever she went, and 
 while she had a half-penny, she should have the half of 
 it. (a) In Riembatier's case, the criminal attempted to 
 suborn witnesses to prove a confession of the murder by an- 
 other person. (6) 
 
 Evidence, or rather testimony, fabricated in this way, is 
 frequently intended as a means of proving an alibi on the 
 part of the criminal. In the late English case of Regina v. 
 Rush, (c) the criminal, on returning to his house, after an 
 absence of more than an hour, on the night when the de- 
 ceased persons were shot, said to the woman who lived with 
 liim, — " If any inquiries should be made, you say that I was 
 not out more than ten minutes." In Carawwris case, (rf), 
 it was testified by a nephew of the prisoner, who had seen 
 him leave his house the day the deceased was shot, that his 
 uncle offered to give him a negro, if he would say that he 
 was at home all that day. 
 
 The fabrication or corruption of evidence has been very 
 justly considered as creating, against the party who has had 
 recourse to such a practice, a presumption even stronger 
 than the destruction or suppression of it.(e) The detection 
 
 (o) 19 State Trials, 1284, 1285. These requests were concurred in by the 
 male prisoner, then present. Id. ibid. And see another attempt of a similar 
 kind, previously. Id. 1283. 
 
 (6) 3 Jiond. Legal Observer, 278. , 
 
 (c) Burke's Trials, connected with the Upper Classes, 473. 
 
 (rf) The State v. Carawan, Beaufort County, (N. C.) Superior Court, Fall 
 Term, 1853. Pamphlet Report, 52, 53. 
 
 (e) See 2 Stark. Evid. 490, 491. 
 
436 SUBSEQUENT CIHCUMSTANCBS. [PABT II. 
 
 of the forgery of real evidence is generally a strong circttni' 
 stance against, an accused individual ; althougli standing 
 alone, it cannot safely be considered as conclusive, owing, to 
 the fact that innocent persons have occasionally been be- 
 trayed into the weakness of resorting ttf it. (a) But the de- 
 tection of a deliberate attempt to corrupt the integrity of a 
 witness (constituting as it does, a substantive offence, in 
 itself,) (6) is a circumstance which seems to be of force 
 enough to exclude the application of almost any infirmative 
 supposition whatever. 
 
 SECTION XVII. 
 
 Possession of articles of Criminative Evidence. 
 
 The effectual perpetration of a crime, in most cases, (c) 
 necessarily brings the perpetrator into immediate personal 
 contact or connection with certain physical objects ; such as 
 the subject of the crime and its appendages,, the instrument 
 with which it is committed, and the fruits of it. It also 
 frequently subjects his own person, and the instrument which 
 may have been employed, to impressions of a certain kind, 
 which criminal action naturally produces ; such as stains of 
 blood, and the like. When, therefore, after a crime has 
 been committed, objects or articles of this description, oi 
 bearing indications of a criminal use, are found in the pos 
 session of a particular individual, especially if he have been 
 suspected on other grounds, it becomes, on its face, a cir 
 
 (fl) Best on Pres. §§ 149, 220. 2 Stark. Evid. 491. * 
 
 (ft) 2 Russell on Crimes, 596. Wharton's Am. Crim. Law, 763. 
 (c) The exceptions have been mentioned under a preYious head. See ante 
 p. 389. 
 
CHAP. I.] POSSESSION OF CRIMINATIVE ARTICLES. 437 
 
 cumstancQ of a criminative tendency against Mm, and often 
 proves decisive in establishiDg a conviction of his guilt. 
 The subsequent connection, thus produced, harmonizes so 
 well with the contemporaneous connection above adverted 
 to, as to justify the belief, (in the absence of any satisfactory 
 appearances to the contrary,) of its having actually grown 
 out of it. And, indeed, so cogent is its effect, on the plain- 
 'est principles of presumptive reasoning, that, the fact of 
 finding the objects in such situations being adequately 
 proved, it very frequently throws upon the individual desig- 
 nated the full burden of explaining how they came to be 
 there. In short, an innocent possession, in such cases, can 
 be made out only upon one of three suppositions : — either 
 that the articles in question have been placed in such situa- 
 tions by the real criminal, or by some third person, without 
 the knowledge or consent of the individual practiced upon, 
 and for the purpose of averting suspicion from himself, or 
 maliciously attaching it to the other; or that they have 
 come into such situations by accident, and without any 
 human or responsible agency ; or, if they have been know- 
 ingly and voluntarily acquired by the individual in whose pos- 
 session they are found, that such acquisition has been in entire 
 ignorance of their previous criminal uses and associations. 
 
 Taking the crime of murder, as being the most abundant 
 in evidences of this description, the following criminative 
 objects may be particularized : — the instruments of the 
 crime ; (a) articles of clothing belonging to the deceased, 
 and worn by him ; (6) small articles carried about the per- 
 son of the deceased, such as a watch, (c) a purse, (a!) a 
 
 (a) Rex T. ThuTiell and Hunt, Celebrated Trials, 7, (Phil. 1835.) 
 (A) JJrayne's case, 5 Lond. Legal Observer, 124. Mrs. Spooner's case, 2 
 Chandler's Am. Crim. Trials, 15, 16. 
 
 (c) Id. ibid. The People v. Colt, New York Oyer & Terminer, January, 
 1842. rfte SJofe T. iJoAwison, Middlesex (N. J.) Oyer & "^ ■"'•^. 
 1641. 
 
 (d) The State v. Cicely, 13 Smedes & Marshall, 
 
438 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 locket, (a) money, (&) keys,.(c) papers (^d) and the like ; 
 larger articles carried in close proximity to the person, such 
 as a carpet-bag, (e) an umbrella, (/) and the like ; the 
 subject of the crime, or body of the deceased itself; (g-) 
 the remains of the body ; (A) and the material fruits of the 
 crime, (i) Other offences present a much narrower range 
 of criminative objects ; some being confined, for the most 
 part, to the instruments ; others to the instruments and,fruit# 
 of the crime, in conjunction ; and others, again, almost ex- 
 clusively to the fruits. In arson, the finding of incendiary 
 contrivances, and combustible or inflammable materials and 
 substances, in the possession of the accused, at the time of 
 his arrest, is always an important circumstance, (j ) And 
 60, in burglary, is the finding of burglars' tools, (A;) and, in 
 forgery and counterfeiting, the finding of implements and 
 materials for counterfeiting, (^) in similar situations. And 
 the articles and objects, thus found, are often allowed to be 
 
 («) Regina v. Couriioisier, Burke's Trials connected with the Aristocracy, 
 467. 
 
 (6) The State t. Robinson, Middlesex, (N. J.) Oyer & Terminer, March, 
 1841. 
 
 (c) Rex T. Smith, Varnham and Timms, Wills, Giro. Evid. 240. 
 
 (d) The State v. Robinson, ubi supra. Commonwealth v. Webster, Bemis' 
 Report, 149. 
 
 (c) Rex V. Thurtell and Hunt, Celebrated Trials, 11. 
 
 (/ ) Riembauer's case, 3 Lond. Legal Observer, 243. 
 
 (g) The State t. Robinson, ubi supra. 
 
 (A) Commonwealth t. Webster, Bemis' Eeport, 117, 118. 
 
 (i) See the next section. 
 
 (j) In the English case of James Hill, there were found upon the person 
 of the prisoner, when apprehended, among other articles, a snuff-box with tin- 
 der, a small powder-horn with gunpowder, a large nail piercer, a striking tin- 
 der-box primed, two bundles of matches dipped in brimstone, and a phial half 
 full of spirits of turpentine. 20 State Trials, 1345. 
 
 (fr) See Commonwealth v. Williams, 2 Gushing, 582. 
 
 {I) The State v. Jlntonio, 2 Const, R. 776, 784, 791, 792, 797. 3 Phil 
 Evid. (Cowen & Hill's notes. Van Cott's ed.) 629. As to the effect of finding 
 counterfeit money in the possession of an accused party, see The People t 
 Gardner, 1 Wheeler's Crim. Cases, 23. 3 Phill. Evid. (Cowen & Hill's notes. 
 Van Cott's ed.) 454. Wharton's Am. Crim. Law, 292, 293. (ed. 1855.) 
 
CHAP. 1.1 POSSESSION OF CRIMINATIVE AETIOLES. 439 
 
 brought into court, and exhibited to the jury, as part of the 
 evidence in the case, (a) 
 
 But, in estimating the criminative effect or tendency of 
 the fact of possession of objects like these, the character of 
 such possession itself must always be taken into view ; and 
 this leads to the inquiry what circumstances may be consid- 
 ered as constituting a sufficient possession in such cases. 
 
 The two states or situations which may be said to repre- 
 sent and comprise the general fact of possession, in its 
 fullest extent, are, the being found on the premises, and the 
 being found on the person of the individual charged as the 
 possessor. 
 
 In estimating the effect of finding an article of crimina- 
 tive evidence upon the premises of a particular party, the 
 character and extent of such premises always require to be 
 considered ; for, upon these circumstances depend the close- 
 ness and force of the connection in which, as already ob- 
 served, the criminative effect itself consists. Where such 
 premises are easily accessible from without, and especially 
 when they are of considerable extent, the mere fact of find- 
 ing upon them a material object or article of even the 
 highest criminative efficacy, — such as the dead body of 
 a person, with obvious marks of a violent end, — would 
 not, necessarily and of itself, have the effect of putting 
 the occupant of the premises upon a defensive explana- 
 tion how such body came to be there ; especially if it were 
 found at a spot remote from the party's residence, rarely in 
 actual use, or for any other reason rarely visited. (6) It is 
 
 (a) In the late case of Commonwealth v. Williams, a number of burglars' 
 tools found in the prisoner's possession at the time of his arrest, consisting of 
 shotted colts, skeleton keys, key-bits, an instrument called a safe-borer, and a 
 Bcrew-wrench, were allowed to be exhibited together to the jury on the trial, 
 although only some of them appeared to be adapted to the commission of the 
 particular offence charged. 2 Cashing, -582. 
 
 (6 ) Such, for instance, as the locality in which the body of the deceased was 
 concealed by burial, in the case of The State v. Carawan. ^nte, p. 405. 
 
440 SUB3EQITENT CinCUlISTANCIS. [PART 11. 
 
 obviously possible, and by no means improbable, that a mur- 
 der might be committed on the grounds of another, and with 
 an instrument taken from his premises, and the evidences of 
 the crime left on the spot, without the knowledge of the 
 occupant, and for days and weeks before any discovery by 
 him. 
 
 The case would be materially different, if the body of a 
 murdered person were found upon premises less accessible 
 from without, and, presumably, in the daily use of the occu- 
 pant and subject to his constant supervision, such as the en- 
 closed yard of a city tenement ; for the circumstances, in 
 such a case, would tend to raise a presumption, in the first 
 instance, that the object could not have come upon the 
 premises, without the knowledge or sanction of the occupant 
 himself, (a) The more contracted the limits of the locality 
 become, the more permanently proximate to tlie person of 
 the occupant, and the more constantly in his presumed use, 
 the stronger would this inference in itself become ; as if the 
 body should be actually found in the party's house, and par- 
 ticularly, if found buried under it. (&) By such a grada- 
 tion, we finally reach that class of localities, which are 
 proved to be in the constant and exclusive occupancy of 
 one particular individual, and from which all other per- 
 sons are, by his own act, intentionally and permanently shut 
 out ; as where the dead body of a missing person, or por- 
 tions of it, are found in a strictly private receptacle, and 
 actually under the lock and key of the occupant, (c) In 
 such a case, the burden of explaining how the object 
 came to be where it was found, would undoubtedly bo 
 thrown upon the occupant, with its fullest possible force. 
 
 (ffl) See the remarks of Mr. Greaves, in reference to the fact of finding 
 stolen goods in another's possession. 2 Russell on Crimes, 124; Greaves' 
 note (g)j 
 
 (A) See the case of Tlie State v. Robinson, Middlesex (N. J.) Oyer & 
 Terminer, March, 1841. 
 
 (c) See the case of Commonwealth v. Webster, Supreme Court of Massa- 
 chusetts, March, 1850. 
 
CHAP. I.] POSSESSION OP CBIMINATITE ARTICLES. 441 
 
 In proportion, then, as the quality of strict exdusiveness 
 becomes attached to the occupancy of premises, is the fact 
 of finding upon them objects of the description already enume- 
 rated, invested with a criminative force against the pos- 
 sessor or occupant, (a) The practicability of bringing 
 and leaving articles of the highest degree of criminative 
 power, upon premises of large extent and easy access, with- 
 out even the knowledge of the occupant, has already been 
 shown. A similar state of things may exist where the 
 limits of the premises are comparatively small, and access 
 to them comparatively difficult, such as a city tenement of 
 the ordinary kind ; it being obviously possible, even under 
 such circumstances, for articles, in themselves of a very 
 criminative quality, to be introduced and secreted upon the 
 premises, (as by a domestic, or the confederate or visitor of 
 a domestic,) without any knowledge, or even suspicion, on 
 the part of the occupant. This, however, would naturally 
 depend, in a material degree, upon the bulk and quantify of 
 the articles themselves, as well as the attending circumstan- 
 ces. Some descriptions of burglars' tools, and implements 
 for counterfeiting, and even packages of counterfeit money, 
 might be clandestinely introduced into a house, by agency of 
 the kind just mentioned, with the greatest ease. 
 
 The fact of finding an article of criminative evidence 
 upon the person of a particular individual, constitutes, on its 
 face, the closest physical connection with crime that can 
 possibly be established against him ; and it is accordingly 
 constantly relied on in criminal practice, as one of the surest 
 grounds of conviction. In general, the possession in these 
 cases is, in its nature, and of necessity, exclusive. There 
 are, however, exceptions, which should never be overlooked ; 
 it being possible, as has been occasionally proved, that there 
 
 (n) As to the importaoce of the quality of exdusiveness in the possession 
 of stolen property, see the next section. 
 
442 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 may be possession -without consciousness or knowledge of 
 tlie fact. A natural and very adequate test for ascertaining 
 whether this consciousness exists or not, is often afforded by 
 the same circumstances which were mentioned under the 
 last head, — the bulk and qucvntity of the article found. It 
 is possible that an object of small size and little weight, such 
 as a coin of which a murdered person has been robbed, may 
 be conveyed into the pocket of an entirely innocent indi- 
 vidual, and remain there some time, without his being aware 
 of its presence. And that even a considerable quantity of 
 coin may be introduced into the clothing, while detached 
 from the owner's person, during sleep ; (a) or an article 
 worn by him converted into an instrument of crime, during 
 the same state, or during the insensibility of intoxication, (6) 
 has been shown in cases of actual occurrence. But where 
 the pocket of a man's coat, while in actual wear upon his 
 person, is found stuffed with a parcel of visible bulk, (con- 
 sisting of articles belonging to a person recently murder- 
 ed ;) (c) or where a bulky parcel is found concealed under 
 his outer garment, (d) the defence that he was not aware 
 of the presence of such articles would, of course, be exclud- 
 ed. The same remark would apply where the article is con- 
 nected with the individual in such a manner as necessarily 
 to imply voluntary and intentional action on his part ; as 
 where an article of clothing, or a watch or locket, belonging 
 to another, is found actually v)orn upon his person. 
 
 In cases of the apparent possession of articles of crimi- 
 native evidence, the fact that such possession is a concealed 
 one, is important, though not always conclusive or uniform 
 
 (o) See the case of JbAn Jennings, Theory of Presumptive Proof, Appendix, 
 case, 1. 
 
 {b) See the cases mentioned in the note, ante, p. 426. 
 
 (c) See the case of Rex v. Smith, Varnham and Timms, Wills, Giro. Evid, 
 240. 
 
 (d) See the case of Bex v. Beards, Wills, Giro. Evid. 102. 
 
CHAP. I.] POSSESSION OP CRIMINATIVE ARTICLES. 443 
 
 in its effect, (a) Where the body of a murdered person 
 has been found on a remote part of another's land, the cir- 
 cumstance that it was concealed, ■wholly or in part, by 
 bimal, would not ordinarily add to its criminative effect 
 against such person, (b) But the case would be very dif- 
 ferent if the body were found buried under the floor of the 
 party's house. So, where a watch, identified as having 
 belonged to a murdered person, is found carefully wrapped 
 up and secreted in another's trunk, (it being in a state fit 
 for use,) the fact of concealment undoubtedly adds to the 
 effect of the general fact of possession, (c) It is a natural 
 badge of guilt, harmonizing with the results of general ob- 
 servation. A person who had innocently acquired posses- 
 sion of such an article, (as by purchase, e^en supposing it 
 derived from a criminal source,) having no inducement to 
 secrete it, would naturally wear it openly upon his person. 
 But it by no means necessarily follows, vice versa, that the 
 open possession and use of such an article is always indi- 
 cative of innocence, (d) 
 
 The fact, that the possession charged is a recent one, is 
 also important, especially where the object or article itself is 
 of such a description as to pass easily and rapidly from one 
 person to another, (e) It would make a material difference 
 whether a garment, for instance, which had belonged to a 
 murdered person, and was found on the person of another, 
 was so found the day after the crime, or a year afterwards. 
 
 (u) As to the importance of the fact of concealment of stolen property, see 
 the next section. 
 
 (6) See ante, p. 439. 
 
 (c) So, where a counterfeit bill is found concealed in the cuff of the prison- 
 er's coat, on his arrest. Stewart's case, 2 City Hall Recorder, 87. 
 
 {d) See Rex v. Thurtell and Huni. Celebrated Trials, 6, (PhU. 1835.) 
 Mrs. Spooner's case, 2 Chandler's Am. Crim Trials, 15. The State t. Robin- 
 ton, MiddXesex (N.J.) Oyer & Terminer, March, 1841; Pamphlet Report, 
 16, 19. 
 
 (c) As to the importance of this quality in the case of the possession of 
 stolen property, see the next section 
 
444 SUBSEQUENT CIRCUMSTANCES. [PABT U. 
 
 So, wtere an individual has been seen to leave a building, 
 which shortly after is found to be on fire, and he is immedi- 
 ately apprehended, and searched, and a variety of incendi- 
 ary contrivances, instruments and materials are found upon 
 his person, the fact would have a strongly criminative effect 
 against him ; whereas, the finding of the same articles in 
 the same situation, uppn his arrest a month or two after- 
 wards, would (however indicative of general disposition and 
 habits,) have no weight at all in the particular case. On 
 the other hand, in a case like that of Moses Drayne, (a) a 
 lapse even of several years between the disappearance of an 
 individual, and the finding of his remains on the premises 
 of another, would not, in the least degree, diminish the 
 criminative effect of the fact itself.' 
 
 The effect of the possession of such articles as have been 
 enumerated in this section, is, for the most part, the same, 
 whether the articles themselves are actually found in the 
 party's possession, at the time of his arrest, or proved to 
 have been in his possession shortly after the commission of 
 the crime, but subsequently transferred to others. (&)( 
 Change of possession of an article obtained by criminal 
 means, is constantly resorted to, as a substitute for its de- 
 struction or concealment, especially where it is found or 
 believed to be of considerable value. Watches, for instance, 
 are frequently disposed of to silversmiths and others, either 
 in the way of sale or exchange ; and the testimony of such 
 persons, as to the transaction, is always of great importance 
 in establishing charges of guilt. The false statements, also, 
 which are almost uniformly resorted to, in these cases, as 
 means of accomplishing and at the same time concealing the 
 
 (a) 5 London Legal Observer, 123. 
 
 (A) The advantage, in the former case, is that the articles may be preserved 
 and produced on the trial, for the inspection of the jury, and identified in their 
 presence. • But even where possession has been changed, articles are frequently 
 successfully traced out, recovered, produced in court, and identified, with the 
 same effect. 
 
CHAP. I.] POSSESSION OP CBIMINATIYE ARTICLES. 445 
 
 transfer, are strong corroborative circumstances against the 
 accused, (a) 
 
 To pursue the subject of this sec^on into any further de- 
 tails, would involve considerations belonging to the head of 
 exculpatory evidence, to which a distinct place, in the. 
 arrangement of the present work, has already been assigned. 
 But there is one of the objects of criminative evidence 
 already enumerated, — the /r«i!s of crime, — to the posses- 
 sion of which such peculiar importance is attached, as a 
 means of indicating the perpetrator of certain oifences, as to 
 entitle it to a separate consideration, which will accordingly 
 be given it in the following section. 
 
 SECTION XVIII. 
 
 Recent Possession of the Fruits of Orime. 
 
 Among articles of criminative evidence, considered as 
 subjects of possession, the fruits of crime, — that is, the ma- 
 terial objects of more or less value, acquired by means and 
 in consequence of its commission, — occupy a very important 
 place.. These occur most frequently for consideration in 
 the crimes of larceny and robbery ; constituting, in fact, the 
 subject-matter of the oflFence itself. (6) The connection 
 which these articles establish between the party possessing 
 
 (ffl) In tKe case of TAc Slate v. Robinson, the watch of the deceased was 
 taken by the crimmal to a silversmith's, in Newark, N. J. and exchanged for 
 another. On being asked at the time, how he came by the watch, he falsely 
 represented that he had bought it at auction in New York; and when further 
 asked for his name, to put into the watch, he gave a false name. Pamphlet 
 Report, 16. Ahd see the case otRex v. Howe, Wills, Circ. Evid. 236. 
 
 (A) 3 Benth. Jud. Evid. 31. 
 
 38 
 
446 SUBfflEQCTESrr CmCUMSTAiTCES. [PAET n. 
 
 them and the crime committed, is, on its face, peculiarly 
 direct, and accordant with the natural and known course of 
 criminal conduct. Hence it has become a rule of evidence, 
 that the possession of property which has been recently 
 stolen, raises such a presumption of guilt against the pos- 
 sessor, as to throw on him the burden of showing how he 
 came by it, or that he came honestly by it ; and, in the event 
 of his failing to do so, to warrant the final inference or con- 
 clusive presumption of his being the real offender, (a) The 
 presumption arising from the possession of the property, in 
 such cases, furnishes, indeed, the most common and simple 
 instance of the application and effect of presumptive evi- 
 dence, in the whole range of criminal law. (6) The pre- 
 sumption itself is strictly a natural one, (c) although, from 
 its being fully recognized by the law, it has sometimes been 
 regarded as a presumption of law. (d) " Its foundation," 
 as aji able writer has justly observed, " is the obvious con- 
 sideration that, if the possession has been lawfully acquired, 
 the pariy would be able, at least shortly after its acquisition, 
 to give an account of the manner in which such possession 
 was obtained." (e) It is reasonable, also, that he to whom 
 alone the physical evidence of the case distinctly points, 
 should, if in fact free from any guilty connection with it, 
 
 (a) Bfst on Prea § 228. Wills, Giro. Evid. 47. 2 East's P. C. 656. 1 
 Stark. Evid. 488. 2 Id. 840. 3 Id. 1246. 1 Phill. Evid. 447. 3 H. (Cowen 
 & Hill's notes. Van Cott's ed.) 477. Rosooe's Crim. Evid. 18. 1 Greenl. 
 Evid. § 34, p. 44, and the authorities cited in note(l) ibid. 2 Russell on 
 Crimes, 123. Pennsylvania v. Myers, AddLson, 320. State v. Jenkins, 2 
 Tyler, ( Vt. ) 377. State v. Brewster, 7 Vermont, 122. State v. Weston , 9 Conn. 
 527,529. ITAe Pco;?Je V. P)-cs(on, 1 Wheeler's Crim. Cases, 41 . Johnson,!. 
 in Davis v. The People, 1 Parker's Crim. Rep. 447, 450^ State v. Merrick, 
 19 Maine, (1 Appleton,) 398. Hughes v. The State, 8 Humphrey, 75. And 
 see the note to Cochin's case, 2 Lewin's Cr. Cas. 235. 
 
 (4) Rosooe's Crim. Evid. 18. 
 
 (c) S Stark. Evid. 1245. Best on Pres. § 35. Wills, Circ. Evid. 47. 
 
 (d) Best on Pres. § 37, note (/ ). See ante, p. 67, note (6). And see the 
 language of the court, in The State v. Williams, 9 Iredell's Law, 140. 
 
 (e) WiUs, Circ. Evid. 47. See 2 Stark. Evid. 840. 
 
CHAP. I.j POSSESSION OP THE PKUITS OP CRIME. 447 
 
 contribute, and willingly, all the knowledge lie has, in order 
 to throw light on the transaction, and aid in detecting the 
 real offender. Hence, in the language of the writer just 
 quoted, " his unwillingness or inability to afford such expla- 
 nation is justly regarded as amounting to strong self-con- 
 demnatory evidence." (a) 
 
 But, as was shown in the preceding section, it is not every 
 kind of possession, which is sufficient to put the party on 
 his defence ; but, in order to raise the requisite presumption 
 against him, it must be shown to be both recent and exclusive. 
 
 1. The possession must be recent. (6) If immediately 
 following the commission of the crime, or on the same day 
 with its commission, the presumption occurs in the strongest 
 form, (c) But if an interval elapse between the loss and 
 the finding, the presumption becomes weakened ; (d) as it 
 lets in the possibility and consequent supposition that the 
 property, during such interval, may have been disposed of 
 by the thief, and innocently acquired by the possessor ; or 
 may even have passed through several hands before reaching 
 the latter, (e) It obviously tends also, to increase the dif- 
 ficulty, on the part of the possessor, of explaining how he 
 came by it, and to render the identity of the property itself 
 more or less doubtful. (/) After the lapse of a consider- 
 able time, before a possession is shown in the accused, if no 
 other unfavorable circumstance appear against him, the pre- 
 
 (c) Wilis, Circ. Evid. 47, 48. 
 
 (6) Best on Pres. § 228. Wills, Ciro. Evid. 48. The Slate v. Floyd, 16 
 Missouri, 349. The StaU v. Wolff, Id. 168. 
 
 (c) " If a horse be stolen from A," says Hale, " and, the same day, B. be 
 found upon him, it is a strong presumption that B. stole him." 2 Hale's P. 
 C. 289. Tet, he £idds that he remembered a case before a very learned and 
 wary judge, in which an innocent person, found in such a situation, was exe- 
 cuted for a theft committed by another. See ante, p. 212. 
 
 {d) Wills, Circ. Evid. 48. Rex v. Cockin, 2 Lewin'sCr. Cas. 235. 
 
 (e) 2 Stark. Evid. 810. 
 
 (/ ) 2 East's P. C. 656. See the note to Cochin's case, 2 Lewin's Cr. Cas. 
 235. 
 
448 SUBSEQUENT CIRCUMSTANCES. [PABT II. 
 
 sumption of guilt will not be raised, (a) But what shall 
 be considered a recent possession, cannot be absolutely de- 
 termined by any. rule, but must depend not only upon the 
 mere lapse of time, but upon the nature of the articles 
 stolen, and the considerations whether they are of a de- 
 scription likely to pass rapidly from hand to hand,, or such 
 as the party might, from his situation in life, or the nature 
 of his vocation, become innocently possessed of. (6) " A 
 poor man, for instance," observes Mr. Be&t, " might fairly 
 be called on to account for the possession of articles of plate, 
 jewels, or rare and curious books, after a much longer 
 lapse of time than if the property found on him consisted of 
 clothes, articles of food, or tools proper for his station or 
 trade, &c." (c) In the earliest reported English case on 
 this subject, (c?) Bayley, J. directed an acquittal, because 
 the only evidence against the prisoner was that the stolen 
 goods were not found in his possession, until a lapse of six- 
 teen months from the time of the loss. In the case of Rex 
 V. Cruttenden, (e) where a shovel which had been stolen 
 was found, six months after the theft, in the house of the 
 prisoner, who was not then at home, Chirney, B. held that, 
 on this evidence alone, the prisoner ought not to be called 
 on for his defence. And in the case of Rex v. Adams, (/), 
 where the prisoner was indicted for stealing a saw and a 
 mattock, and the whole evidence was that they were found 
 in his possession, three months after they were missed, 
 Parke, B. directed an acquittal. On the other hand, in the 
 case of Rex v. Dewhirst, (g") where seventy sheep were 
 
 (o) Anon. 2 Carr. & P. 459. The State t. Williams, 9 Iredell's Law, 140. 
 (A) Beat on Pres. § 228. 2 Kuasell on Crimes, 124. Rex T. Partridge, 7 
 Carr. & P. 551. 
 
 (c) Best on Prea. ubi supra. 
 
 (d) Anon. 2 Carr. & P. 459. 
 
 (e) Kent Spring Assizes, 6 Vict. MS. 6 Jurist, 26T. Best on Pres. § 228. 
 ;/ ) 3 Carr. & P. 600. 
 
 {g) 2 Stark. Evid 614; (3d. ed) cited in Best on Pres. § 228. 
 
CHAP. I.] POSSESSION OP THE FRUITS OF CRIME. 449 
 
 put on a eommon, on the 18th of June, but not missed till 
 November, and the prisoner was proved to have been in pos- 
 session of four of them in October, and of nineteen more on 
 the 23d. November, Bayley, J. allowed evidence of the 
 possession in both cases to be given. And in the case of 
 Rex Y. Partridge, (a) where the prisoner was indicted for 
 stealing two ends of woollen cloth (that is, pieces of cloth 
 consisting of about twenty yards each,) in an unfinished 
 state, which, at the expiration oi two months after they were 
 missed, were found in his possession, on its being objected 
 that too long a time had elapsed, Patleson, J. overruled the 
 objection, and the prisoner was convicted. In the most 
 recent English case on the subject, the prisoner was indicted 
 for stealing three sheets, and the only evidence against him 
 was that they were found on his bed three calendar months 
 after the theft. On this, it was objected by his counsel, on 
 the authority of Rex v. Adams, that the prisoner ought not 
 to be called on for his defence ; but Wightman, J. said that 
 it seemed to him impossible to lay down any definite rule as 
 to the precise time which was too great to call on a prisoner 
 to give an accouut of the possession of stolen property ; and 
 that, although the evidence in the actual case was very 
 slight, it must be left to the jury to consider what weight 
 they would attach to it. The prisoner was acquitted. (Z>) 
 
 In a case in North Carolina, the facts that a horse was 
 stolen on the 10th and found on the 16th of the same month, 
 at sixty miles distance from the place of taking, in the pris- 
 oner's possession, were held to raise the requisite presump- 
 tion against him. (c) And in a case in South Carolina, an 
 interval of two months was held not to rebut the presump- 
 tion of guilt, (rf) But, in a recent case in Iowa, the fact 
 
 (a) 7 Carr. & P.y551. 
 
 (6) Regina v. Hewlett, Salop Spring Assizes, 1843; 2 Russell on Crimes, 
 (by Greaves,) 728. See Best on Pres § 228, where all the cases are cited, 
 (c) Stote V. jSrfflTas, 1 Haywood, 46.3. Ace. S/ote v. i^/oi/rf, 15 Missouri, 349. 
 (rf) State T. Bennet, 2 Const. R. 692. (.3 Brevard, 511.) 
 38* 
 
450 SUBSEQUENT CIRCUMSTANCES. [PAUT II. 
 
 that a portion of the chattels stolen were found upon the 
 premises of the accused eighteen months after they were 
 stolen, unaccompanied by other suspicious circumstances, 
 was held not to be prima facie evidence that the accused 
 was guilty of the larceny, (a) 
 
 Where a considerable interval has elapsed between the 
 loss and the finding of the property, other circumstances, in 
 addition to the fact of possession, must be shown, in order 
 to raise the requisite presumption against the possessor, (i) 
 Among these are, proximity on his part to the time and 
 place of the taking ; his conduct or language after the lar- 
 ceny ; and his secreting the property in order to avoid dis- 
 covery. These will be more fully considered in the sequel. 
 
 In order to render evidence of the possession of stolen 
 property admissible, it is not necessary that the discovery 
 should take place before the apprehension of the prisoner, (c) 
 
 2. The pos'session must be exclusive, (d) A finding of 
 stolen property in the prisoner's house or apartment, is 
 equally competent in evidence against him, as a finding upon 
 his person, (e) But the house or room must be proved to 
 be in his exclusive occupation. If the property were found 
 in a locked-up room or box of which he kept the key, it 
 would be a fair ground for calling on him for his defence. 
 But if it were only found lying in a house or room in whicli 
 he lived jointly with others equally capable of having com- 
 mitted the theft, it is clear that no definite presumption of 
 
 (a) Warren v. The State, 1 Iowa, (Greene,) 106. 
 
 (6) 3 PhilL Evid. (Cowen & Hill's notes. Van Cott'sed.) 480. 
 
 (c) Anon, cited by Lord Ellenborougli, in Watson's case, 2 Stark. N. P. 
 1 39. It was said by Abbot, 3 . in this case, that an assize had scarcely ever 
 occurred, where it did not happen that part of the evidence against a prisoner 
 consisted of proof that tlie stolen property was foond in his house, after hLi 
 apprehension. 
 
 (d) Best on Pres. § 229. Johnson, J. in Davis v. The People, 1 Parker's 
 Crim. R. 447, 451. 
 
 (c) 1 PhUl. Evid. 447. 3 Id. 480, (Cowen & HiU's notes, Van Colt's ed.) 
 
CHAP. I.] POSSESSION OF XHB FRUITS OP CRIME. 451 
 
 his guilt could be made, (a) Where parties stand in the 
 relation of husband and wife, however, possession by the 
 wife, on the husband's premises, is considered as that of the 
 husband. (6) If stolen goods are found in a place where 
 the prisoner has been seen, or near where he has been seen, 
 it will sometimes serve to raise a presumption of guilt 
 against him. (c) 
 
 There is no doubt that the mere fact of possession of 
 stolen property, which has been satisfactorily identified, if 
 both recent and exclusive, is, in itself, sufficient to raise a 
 presumption strong enough, if unrebutted, to warrant the 
 conviction of the possessor, (^d) But such presumption may 
 be materially strengthened by accompanying circumstances, 
 the most prominent of which will now be considered. 
 
 1. Proximity of the person of the accused to the place 
 from which the property was stolen, about the time of the 
 larceny, is a strong corroborative circumstance of the con- 
 comitant class, (e) 
 
 2. The concealment of the stolen property is a strong cir- 
 
 (a) Best on Pres. § 229. 2 Stark. Evid. 840, note (z). Eoscoe's Grim. 
 Evid. 19. Johnson, J, in Davis v. The Peojie, 1 Parker's Grim. K. 451, 452. 
 It is, however, remarked by Mr. Greaves, in regard to evidence of a finding of 
 goods in a house wliere there are other inmates, that " learned judges have 
 generally considered such evidence as sufficient to call upon the occupier of 
 the house to account for the possession; on the ground that the house being in 
 his,occupation, the property was found in his possession ; and there seems good 
 reason for this course, because, as master of the house, he must be presumed to 
 have the control over it, and to permit nothing to come into it without his 
 sanction; at the same time, it is for the jury, under all the circumstances, to , 
 say whether the master stole the property or any of the other inmates of the 
 house." Greaves' note {g) to 2 Russell on Crimes, 124. As to the efiFoct of 
 finding goods in an open shop, (as a blacksmith's shop,) see Lamb's case, in 
 Saratoga County, New York, 3 Phill. Evid. 481, (Cowen & Hill's note.?. Van 
 Cott's ed.) 
 
 (A) Regina v. Mansfield, 1 Carr. & M. 142. Wills, Giro. Evid. 50. 
 
 (c) Lord Ellenborough, in Rex v. Watson, 2 Stark. N. P. 139. See Re- 
 gina v. Beards, Stafford Summer Assizes, 1844, Wills, Circ. Evid. 103. 
 
 (d) Best on Pres. § 228. But see Id. 280. 
 
 (e) 2 East's P. G. 655. 1 Phill. Evid. 447. 
 
452 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 curastance against the possessor, (a) Under this head may 
 be classed acts intended to destroy the identity of the prop- 
 erty ; such as the erasure of marks or names upon it ; 
 changing the form, as by breaking up, or melting down 
 plate ; (6) changing the color, as by dyeing an article of 
 clothing ; (c) and the like. 
 
 3. The conduct and language of the accused, after the 
 larceny, is another material circumstance. (jT) Among 
 facts of this kind may be enumerated, his unwillingness to 
 meet the charge against him, (e) his denial of the fact of 
 possession, where it is subsequently proved, his refusing to 
 give any account of the possession, (/) his making false or 
 improbable or inconsistent statements in endeavoring to ac- 
 count for the possession, (g-) and his having sold or offered 
 to sell the property especially at an inferior price. (K) 
 
 The coincidence, in number and kind, of the articles stolen 
 with those found in the possession of the accused, increases 
 also the probability of guilt ; the possession of one, out of a 
 large number stolen, being more easily attributable to acci- 
 dent or forgery, than the possession of aU. (i) 
 
 But, in order to give to the fact of possession its full 
 criminative effect, in raising a presumption of guilt against 
 the possessor, it is always indispensable that the property 
 
 (a) 2 East's P. C. 657. 1 Phill. Evid. 447. The People v. Swiih, 1 
 Wheeler'3 Critn. Cases, 131. 
 
 (6) Rex V. Smilh, Varnham §• Timms, Wills, Circ. Evid. 239, 240. 
 
 (c) Vrayne's case, 5 London Legal Observer,' 123. 
 
 (d) 2 East's P. C. 656. 
 
 (e) 2 Stark. Evid. 811. 
 
 (/) Commonwealth v. Millard, 1 Mass. 6. Johnson, J. in Davis v. TAe 
 People, 1 Parker's Grim. R. 447, 451, 452. 
 
 (ff) 2 Stark. Evid. 841. Rex v. Diggles, Wills, Circ. Evid. 53. State v. 
 Adams, 1 Haywood, 464. Riley's case, 1 City Hall Recorder, 23. Arm 
 stead's case, Id. 174. Johnson, J. in Davis v. The People, ubi supra. 
 
 (A) Rex V. Diggles, ubi supra. Rex v. Howe, Wills, Giro. Evid. 236. 
 Rex V. Smith, Varnham and Timms, li. 240. Pennsylvania v. Mijem, 
 Addison, 320, 321. Annsiead's case. 1 City Hall Recorder, 174. 
 
 (i) Best on Pres § 228. Wills, Circ. Evid. 50. 
 
CHAP. I.] POSSESSIOX OP THE FRUITS OF CRIME. 453 
 
 itself be satisfactorily identified, in regard to which, the 
 following observations will, for the present, suffice, (a) 
 
 Where all that can be proved concerning property found in 
 the possession of a supposed thief, is that it is of the same 
 kind as that which has been lost, this will not, in general, be 
 deemed sufficient evidence of its having been feloniously 
 obtained, and some proof of identity will be required. But 
 where the fact is very recent, and the property consists of 
 articles the identity of which is, from their nature, not 
 capable of strict proof, the conclusion may be drawn that 
 the propei'ty, being of the same kind, is, in fact, the same ; 
 vmless the prisoner can prove the contrary. (&) Thus, if a 
 man be found coming out of another's barn, and, upon his 
 being searched, corn [or grain] be found upon him, of the 
 same kind as that in the barn, the fact is pregnant evidence 
 of guilt ; (c) and cases have frequently occurred where 
 persons employed in carrying sugar or other articles from 
 ships and wharves, have been convicted of larceny upon evi- 
 dence that they were detected with property of the same 
 kind upon them, recently upon coming from such places ; 
 although the identity of the property, as belonging to such 
 and such persons, could no otherwise be proved. (<i) 
 
 Identity may be directly proved either by mai-ks, or by 
 the witness' confident general knowledge of the particular 
 goods, (e) A witness may safely be relied on, as to his 
 acquaintance with a specific article of familiar use, (as his 
 own clothes^') though he can give no reason why he knows 
 them to be the same, or though he give, as he often may, a 
 false or absurd reason for his knowledge. (/) 
 
 («) The subject of identification will be particularly considered in the next 
 chapter. 
 
 (A) 2 East's P. C. 657, c. 16, § 93. 2 Stark. Erid. 841. 
 
 (c) 2 East's P. C. ubi supra. 
 
 (d) 2 Eussell on Crimes, 125. Rex v. McKechnie and Tolmie, Alison'3 
 Prino. 322. Wills, Circ. Evid. 55, 108. 
 
 (c) 3 PhUl. Evid. (Cowen & Hill's notes. Van Cott's ed.) note 293, p. 481. 
 (/) 2 Evans' Pothier on Obligation, 213, 214, (PhU. 1853.) 
 
454 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 In order to raise the requisite presumption of guilt, it is 
 not necessary that the lohole of the stolen property should 
 be found in the party's possession. The jury may infer the 
 stealing of the whole from the possession of a part, (a) 
 The probability of guilt, however, is increased in proportion 
 as the number found is large and coincident with the number 
 stolen. (6) 
 
 The effect of the presumption of guilt, arising from the 
 fact of the possession of stolen property, where it has been 
 duly raised against the possessor, by proof of such facts as 
 have been enumerated, is (as already observed,) to throw 
 upon him the burden of accounting for such possession ; or, 
 in other words, of explaining how the property came to be 
 where it was found. The particular grounds of these excul- 
 patory explanations belong to the head of exculpatory evi- 
 dence, and, as such, will be fully considered in another 
 place. A few general remarks, only, will be added, under 
 the present head. 
 
 The mere statement of the party charged, though unsup- 
 ported by evidence, may, under certain circumstances, have 
 the effect of materially weakening the force of. the presump- 
 tion, as it stands against him ; and, sometimes, to such a 
 degree as to throw the burden of proof back upon the 
 prosecutor, (c) As if the statement be probable or natural 
 in itself, and maintained, without material variation, on dif- 
 ferent occasions ; and the character, station and connections 
 of the party are such as to suggest no reason for doubting 
 its truth, and no unfavorable circumstances are shown, (rf) 
 Indeed, it has been laid down in some cases, that, where the 
 bare fact of possession is all that is proved against the ac- 
 
 (a) Slate v. Jenkins, 1 Tyler, 377, 379. Collins' case, 4 City HaU Re- 
 corder, 139. And see Commonweallh v. Millard, 1 Mass. 6. 
 
 (6) Best on Pres'. § 228. Greaves' note {ff) to 2 Russell on Crimes, 121. 
 
 (c) 1 Stark. E\id. 512, 513. Wills, Giro. Evid. 48. Regina v. Smilh,2 
 C. & K. 207, quoted ibid. 
 
 (d) See the note to Cochin's case, 2 Lewin's 0. 0. 285, 237. 
 
CHAP. I.] POSSESSION OP THE FRUITS OP CRIUE. 455 
 
 cused, mere evidence of good character on his part will 
 suffice as a defence, (a) If, on the other hand, the state- 
 ment offered in explanation of the fact of possession, be un - 
 reasonable or improbable, on the face of it, the accused will 
 be held to the actual proof of its truth, in order to throw 
 off the presumption. (Z») And if the statement be obviously 
 false or impossible on its face, or if various statements are 
 made which are manifestly and materially inconsistent with 
 each other, the presumption, instead of being weakened, will 
 be only the more firmly fixed upon him. (c) 
 
 The fact of the possession of stolen property is often a 
 material circumstance in the proof of other crimes. In the 
 „ase of Rex v. Diggles, (d) it had great weight in convict- 
 ing the accused of the murder of two persons. In the case 
 of Rex v. Rickmans, (e) it had a similar effect in convict- 
 ing the accused of arson. In regard to its effect in proving 
 ^ie crime of burglary, there have been the following de- 
 cisions. In the case of Comma nivealth v. Millard, (/) 
 where the indictment was for shop-breaking and stealing 
 goods, and a part of the goods stolen was found in the pos- 
 session of the prisoner, Sedgwick, J. in his charge to the 
 jury, stated the rule to be, that the proof of the possession 
 was presumptive evidence, not only that he stole the whole 
 of the articles taken from the shop, but also, of his breaking 
 and entering, as alleged in the indictment. In that case, 
 however, the prisoner refused to give any account of how 
 he came by the goods. In the case of T/ie People v. 
 
 (a) 3 PhiU. Evid. (Cowen & Hill's notes. Van Cott's ed.) note 293, p. 482. 
 See TTie People v. Turrell, 1 Wheeler's Crim. Cases, 34. The People v. Pres- 
 ton, Id. 41. Weston, C. J. in Slate v. Merrick, 19 Maine, (1 Appleton,) 
 398, 401. 
 
 (6) Wills, Giro. Evid. 48. 
 
 (c) Id. 53. 
 
 ((Z) Id. ibid. 
 
 (c) 2 East's P. C. 1035. 
 
 (/ ) 1 Mass 6 ApproTed in 3 Phill. Evid. (Cowen & HiU's notes, Vau 
 Cott's ei\.) note, 307, p. 596. Commented on, by Jnhnson, J. in Dmis v. TKe 
 People, 1 Parker's Crim. E. 447, 450, 451. 
 
456 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 Frazier, (a) which was an indictment for burglary and 
 larceny, it was held by the Recorder, that possession of the 
 goods was presumptive evidence of the larceny, but not of 
 the burglary. In the recent case of Davis v. The Peo- 
 ple, (6) the question came before the Supreme Court of 
 New York, on a writ of error, and the rule was laid down 
 in the following terms : — that, where a burglary is connected 
 with a larceny, mere possession of the stolen goods, without 
 any other evidence of guilt, is not to be regarded as pre- 
 sumptive evidence of the burglary. But where goods have 
 been feloniously taken by means of a burglary, and they are 
 immediately or soon thereafter, found in the actual and ex- 
 clusive possession of a person who gives a false account, oi- 
 refuses to give any account of the manner in which he came 
 to the possession, proof of such possession and guilty con- 
 duct is presumptive evidence, not only that he stole the 
 goods, but that he made use of the means by which accesLi 
 to them was obtained. 
 
 The recent possession of stolen property may sometimes 
 be referable, not to the crime of theft, but to another, 
 though kindred offence, — that of having received the pro- 
 perty with a guilty knowledge of its having been stolen, (c) 
 And, in the opinion of an able writer, there can be little 
 doubt that persons have frequently been convicted and pun- 
 ished for the former offence, whose guilt consisted in the 
 latter: a consequence which he attributes to the circum- 
 stance that real evidence, (or evidence derived from physi- 
 cal facts,) while truly indicative of guilt in general, may be 
 fallacious as to the species and quality of the crime. (jT) In 
 order to avoid the chances of such mistakes, (e) it was 
 suggested by the same writer, that counts for larceny should 
 
 (u) 2 Wheeler's Crim. Cas. 35. Commented on by Johnson, J. ubi supra. 
 
 (b) 1 Parker'8 Orim. Rep. 447, 451. 
 
 (c) Wills, Ciro. Evid. 55. 
 (rf) Best on Pres. § 227. 
 
 (e) See, on this point, the remarks of Mr. Wilh^ Cire. Evid. 55. 
 
CHAP. I.] SUDDEN CHANGE OF LIFE. 457 
 
 be joined with counts for receiving the goods, in the same 
 indictment ; (a) and this practice has since become estab- 
 lished both in England and in the United States. (6) 
 
 SECTION XIX. 
 
 Sudden change of Life or Circumstances. 
 
 In the last section, the effect of the recent possession of 
 the fruits of crime was considered so far as such possession 
 was a visible one, capable of direct proof, and confirmed by 
 actual identification of the objects found in possession. 
 But such possession may also sometimes be inferred from 
 observed circumstances. In most cases, the fruits of crime 
 themselves are so well concealed from view by the perpe- 
 trator, as to furnish no immediate evidence against him. 
 There is nothing visible in his possession, which can be 
 directly traced to or connected with the offence. But they 
 sometimes betray themselves by their consequences, as by a 
 sudden and material change in life or circumstances, indi- 
 cating, beyond question, the recent receipt of money or pro- 
 perty from some quarter. Where a person, previously known 
 to be poor, is found, shortly after a robbery, larceny (c) or 
 "murder, in the possession of considerable wealth, it is al- 
 ways a circumstance of suspicion ; and, when corroborated 
 
 (a) Best on Pres. § 227, note (g-). 
 
 (6) See Wharton's American Criminal Law, 205, 206, (ed. 1855,) and the 
 Oiises cited in the notes, ibid. 
 
 (c) On an indictment for stealing banli-bills, proof that the prisoner was 
 destitute of money before the kjoeny, was allowed, among other circumstan- 
 ces, to be submitted to the jury. Commonwealth v. Montgomery, 11 Metoalf, 
 
 tu. 
 
 39 
 
458 SUBSEQUENT CIRCUMSTANCES. [PART. II. 
 
 by others, of material weight in connecting the crime with 
 its perpetrator. It is^ generally, one of the earliest indica- 
 tory circumstances that are discovered, and, in several 
 recorded cases, has had the effect of first attracting attention 
 in the right direction, and affording the first available clue 
 to the discovery of the offender. 
 
 In the case of Moses Drayne, (a) A. D. 1654, where a 
 traveller had been murdered at an inn, for a sum of money 
 wliich he had with him, and had deposited with the inn- 
 keeper for safe keeping, it appeared in evidence that the 
 ostler of the inn, who was at the time worth nothing of 
 his own, shortly after the murder, lent sixty pounds to a 
 woman who kept an inn in the same town. It appeared, 
 also, that the circumstances of the inn-keeper himself had 
 suddenly improved. For, before the murder he was so poor 
 that his landlord would not trust him for a quarter's reilt, 
 but would make him pay every six weeks ; and he could not 
 be trusted for malt, but was forced to pay for one barrel 
 under another. But shortly after, he bought a ruined malt- 
 house, and new-built it ; and usually laid out forty pounds 
 in a day to buy barley. There was also observed, upon a 
 sudden, a great change in his daughters' condition, both as 
 to their clothes and otherwise ; and if there was but a hood 
 bought for one of the daughters, there was a piece of gold 
 changed ; and they were observed to have gold in great 
 plenty. 
 
 In the French case of M. D'Anfflade, (b) A. D. 1687, it 
 was proved that both the real criminals had suddenly, from a. 
 state of the lowest indigence, appeared to be in afiluent cir- 
 cumstances ; dressing in expensive clothing, and showing 
 large sums of money ; and that one of them had purchased 
 an estate for which he had paid between nine and ten thou- 
 sand livres. 
 
 («) 5 London Legal Observer, 123, 124, 125 
 (6) Id. 231. 233. 
 
CHAP, I.J CONDUCT, ETC. AFTER CRIME. 459 
 
 In the English case of Rex v. Burdock, (a) a similar 
 change in the prisoner's habits and mode of life was the 
 circumstance which first led to suspicion and the subsequent 
 discovery of the crime. And in the late New Jersey case 
 of Peter Robinson, (6) the same circumstance was instru- 
 mental in leading to a similar result. 
 
 It is to be observed, however, that this circumstance al- 
 ways requires to be corroborated by others ; and, standing 
 alone, is not considered a sufficient ground for putting a 
 party on his defence, (c) It presents, in itself, merely a 
 coincidence which, however natural or reasonable it may 
 appear on the supposition of the guilt of the party indi- 
 cated, is nevertheless capable of more or less satisfactory 
 solution and explanation, on suppositions entirely consistent 
 with his innocence, (d) 
 
 SECTION XX. 
 
 Conduct, Demeanor and Language after the commission 
 of a Crime. 
 
 The principal criminative circumstances usually classed 
 under this head, are, the alarm and confusion of a suspected 
 person in prospect of his discovery ; his concealment and 
 
 (a) BestonPres. § 196. 
 
 (A) The State v. Robinson, Middlesex, (N. J.) Oyer & Terminer, March, 
 1841. Pamphlet Report, 11, 12, 18, 19, 22. 
 
 (c) Beat on Pres. § 238. Id § 33. 
 
 (d) So, in the ciTil law, where a guardian who originally had no estate of 
 his own, became opulent during the continuance of his guardianship, this fact, 
 standing alone, wa.s deemed insufficient to raise even a prima facie case of dis- 
 honesty against him. Voet ad Pand. lib. 22, tit. 3, n. 14. Cod. 5, 51, 10. 
 Best on Pres. § 33. 
 
460 SUBSEQUENT CinCU.MSTANCES. [PART II. 
 
 flight ; his agitation and other conduct on arrest ; his silence 
 under accusation ; his giving false, evasive or inconsistent 
 replies to inquiries made of him ; his unsatisfactory expla- 
 nations of suspicious appearances; and his statements of a 
 confessional character, whether judicial or otherwise. 
 
 But before proceeding to the consideration of these, it 
 will be proper to take notice of some minor miscellaneous 
 circumstances of conduct and language, usually of prior 
 occurrence, and sometimes found to be of considerable im- 
 portance as indicia of previous special criminal agency. 
 
 1. Giving' various, false and inconsistent accounts of the 
 cause of the death of a deceased person. In Donellan's 
 case, the accused represented to some persons, that the de- 
 ceased had died of a cold occasioned by wetting his feet, (a) 
 although, in fact, his feet had not been wet ; (6) to others, 
 that the cause of death was the rupture of a blood-ves- 
 sel ; (c) and to others, that it was a venereal complaint, (d) 
 He finally admitted that the real cause was poison, but laid 
 the guilt of administering it upon others, including in the 
 charge the deceased himself and his own mother, (e) In 
 the recent case of Regina v. Tawell, the prisoner falsely 
 alleged that the deceased had poisoned herself. (/) 
 
 2. Giving improbable or contradictory accounts of the 
 manner of the death, where the accused claims to have wit- 
 nessed it. In the case of The . State v. Cicely, (g-) the 
 prisoner at one time said that the murder was committed by 
 five robbers, and that she was awake when they entered the 
 house, and saw them enter. At another time, she said she 
 was asleep, and did not see them enter. 
 
 (a) Rex 1. Donellan, Gurney's Report, 1781. Celebrated Trials, 126. 
 (Phil. 1835.) 
 (6) Id. 146. 
 
 (c) Id. 129. 
 
 (d) Id. 148. 
 
 (e) Id. 149. 
 
 (/) Aylesbury Spring Assizes, 1845; Wills, Giro. Ev. 198,290. 
 (ff) 13 Smedes & Marshall, 206, 216. 
 
CHAP. I.] CONDUCT, ETC. AFTER CRIME. 461 
 
 3. Objecting to have a dead body examined, in order to 
 ascertain the cause of death. It is not uncommoa, in cases 
 of supposed poisoning, that great repugnance is manifested 
 by the suspected parties, to having the body submitted to 
 anatomical examination. " The expression of such repug- 
 nance," observes an able vrriter, " is a fact to be taken into 
 consideration, like all other facts, but it by no means follows 
 that it is to be considered as a mark of conscious guilt. It 
 is well known that many persons have a great prejudice 
 against the anatomical examination of their near connec- 
 tions : much, therefore, depends upon the situation in life, 
 of the parties, and whether they have been nearly re- 
 lated." (a) The mere fact of relationship, however, does 
 not necessarily serve to destroy the criminative tendency of 
 such objections. (6) And it has been shown, by cases like 
 Donellan^s, that a person may express all willingness to 
 have such examination take place, and yet, at the same 
 time, be engaged in measures to prevent it, or to delay it 
 long enough to frustrate its object, (c) 
 
 4. Refusing to look at the body of a murdered person, (rf) 
 Observation has shown that there is often a great repug- 
 nance, on the part of murderers, to look upon the bodies of 
 their victims, (e) In Mrs. Spooner's case, (/) where the 
 female criminal had procured the murder of her husband, 
 and the concealment of his body in the well, she could not 
 
 (o) Wills, Circ. Evid. 75. 
 
 (A) In Philip Stand sfield's case, the criminal not only objected to having 
 his father's body examined, but persisted in having it interred at once. 11 
 State Trials, 1402. In this case, the deceased had been strangled, and then 
 thrown into the water. 
 
 (c) Sex v.-Donellan, Celebrated Trials, 151, (Phil. 1835.) Ante, p. 404. 
 
 (d) This was a circumstance relied on in the case of James Stewart, al- 
 though it was explained by the accused. 19 State Trials, 156. 
 
 («) As to touching the corpse, see post. p. 478. 
 
 (/) 2 Chandler's American Crim. Trials, 13. So, in the case of JVairn 
 and Ogilvie, the female criminal refused to look at her husband in his last 
 moments, and even to go into the room where he lay. 19 State Trials, 1284. 
 
 39* 
 
462 SUBSEQUENT CIRCUIISTANCES. [PART II. 
 
 be persuaded to look at it for a long time, (a) In some 
 cases, this feeling has been carried to the length of refusing 
 to remain in the same house with the body. In Peter Rob- 
 inson's case, (6) where the deceased had been secretly 
 killed in the prisoner's own house, and buried under the 
 basement floor, the prisoner did not sleep in the house a 
 single night after the deceased disappeared : and said he 
 would not sleep nor live there, unless some one moved in 
 there with him. The reason he gave for this repugnance 
 was, that his children had died there suddenly, (e) 
 
 5. Saying of a person who had suddenly disappeared, 
 that he would never be seen again, or would never give 
 trouble again, or expressions of equivalent import, (rf) In 
 Carder's case, (e) the accused said of a female whom he 
 had murdered, and who had had illegitimate children, that 
 " she would have no more children." In a late English 
 case in the Central Criminal Court, similar expressions 
 were made use of. (/) 
 
 Among circumstances of conduct and language, occurring 
 during the progress of actual investigation, may be enume- 
 rated the following. 
 
 6. Confusion manifested at a simple inquiry. In Drayne's 
 case, (g-) the wife of a person who had suddenly disappear- 
 ed, and had long been missing, having, in the course of her 
 inquiries after him, found the ostler of the inn at which he 
 
 (a) After the coroner's inquest had been taken, however, she, at the par- 
 ticular request of a witness, went to the body, and put her hand on his fore- 
 head, and said, " poor little man." 2 Chandler's Trials, 14. 
 
 (4) The State v. Robinson, Middlesex (N. J.) Oyer & Terminer, March, 
 1841. Pamphlet Report, 17. 
 
 (c) Id. ibid. 
 
 {d) In Carawan's case, an expression of this kind had been used by the 
 criminal, before the commission of the crime. The Slate v. Carawun, Pam- 
 phlet Report, 50, 65. 
 
 (c) Rex V. Corder, Celebrated Trials, 218, (Phil. 1835.) 
 
 (/) Case in Central Criminal Court, May, 1842; Wills, Circ. Evid. 166, 167 
 
 (g) 5 London Legal Observer, 123, 124. 
 
CHAP. I.] CONDUCT, ETC. AFTER CRIME. 463 
 
 had put up, the night before his disappearance, asked hiin 
 to describe the clothes of the person who left his horse with 
 him on that occasion. The ostler having done so, she asked 
 him what hat he wore. He replied, " a black one." 
 " Nay," said she, " my husband's was a grey one." At 
 which words, he changed color several times, and never 
 looked up in her face afterwards. The ostler had, in fact, 
 taken the hat of the murdered man, and had it dyed from 
 grey to black. 
 
 7. Casual observations leading to important results. In 
 the case of Eugene Aram, who was tried in the year 1759, 
 for the murder of Daniel Clark thirteen years before, an 
 apparently slight circumstance in the conduct of Houseman, 
 his accomplice, led to Aram's conviction and execution. A 
 skeleton, thought to be Clark's, had been accidentally dis- 
 interred near Knaresborough, and it having been determined 
 to hold a coroner's inquest over it. Houseman was sum- 
 moned to attend the inquest. The symptoms of uneasiness 
 which he betrayed on this occasion, attracted attention, and 
 having taken up one of the bones, at the request of the 
 coroner, he, in his confusion, dropped the unguarded ex- 
 pression, — •' This is no more Daniel Clark's bone than it 
 is mine." (o) Prom this it was reasonably concluded, that 
 if he was so certain that the bones before him were not 
 those of Clark, he could give some account of him ; and he 
 was accordingly pressed with the observation. After various 
 evasive accounts, he made, at length, a fuU confession of the 
 crime ; and, upon search, pursuant to his statement, the 
 skeleton of Clark was found in St. Robert's cave, buried 
 precisely as he had described it. (b) 
 
 (ffl) It 13 worthy of remark, that an expression almost identical with this, 
 escaped from the lips of the prisoner in the case of Commonwealth v; Webster, 
 after he had been brought in view of the remains of the deceased : — ' ' That is 
 no more Dr. Parkman's body than it is mine." Bemis' Keport, 194. The 
 difference was that in Houseman's case, the expression was founded in truth; 
 jut in Webster's it was thoroughly false. 
 
 (6) See the case, as referred to by Mr. Wills, Giro. Evid. 68. 
 
464 SUBSEQUENT CIRCUilSTANCES. [PART 11. 
 
 8. Leading inquiry away from certain localities. In the 
 case of Commonwealth v. Webster, (ji) in tlie course of a 
 search made by the police officers through the premises occu- 
 pied by the accused, they came to the door of a private 
 privy ; and on one of them inquiring what place it was, and 
 being told, the accused, who was in the company, immedi- 
 ately went and unbolted a door on the opposite side of the 
 laboratory, and leading from it to a front store-room, and 
 said, — " Gentlemen, here is another room ; " and then they 
 all passed out. Portions of the remains of the body of 
 which the of&cers were in search, were at that moment lying 
 in the privy-vault. 
 
 9. Objecting to particular modes of search, Or to search 
 in particular places. In Peter Robinson's case, (i) on its 
 being proposed to have the front basement floor of the pris- 
 oner's house taken up, for the purpose of looking under it, 
 the prisoner strongly objected, alleging the very absurd 
 reason that, if the floor should be taken up, the house would 
 fall down. The body of the person sought for was then 
 lying buried under that floor. 
 
 10. Resisting examination of the person, or the use of 
 the person, to verify physical facts. In Cicely's case, (c) 
 on an attempt being made to compare the prisoner's feet 
 with certain foot-prints observed near the house where the 
 murder had been committed, she resisted, and had to be 
 compelled by force to put her feet into the tracks , 
 
 (a) Bemia' Report, 110. 
 
 (6) The State v. Robinson, Pamphlet Report, 14, 23. 
 
 (.c) The State v. Cicely, a slave, 13 Smedes & Marshall, 205, 208. 
 
CHAP. I.] ALAKM IN VIEW OP DISCOTBET. 465 
 
 SECTION XXI. 
 Alarm and Confusion in view of Discovery. 
 
 That the legal consequences of crime, — ^the loss of char- 
 acter, liberty and life, attached to its commission, — are 
 rarely contemplated in their true light before-hand, has been 
 remarked under a former head. It is after the criminal act, 
 (especially if of a high grade) has been done, and when 
 the author of it (if perchance touched with a feeling of 
 penitence) finds that it cannot possibly be undone, and that 
 his connection with the facts of the transaction is irrevoca- 
 bly fixed, that the impending consequences flash upon his 
 mind with all their force. They are now not contemplated 
 as ulterior and remote contingencies and possibilities, but 
 seen close at hand, with no seducing or absorbing objects to 
 intercept the view; and, thus seen, they have power to 
 agitate the natures of most men thoroughly, and to occupy 
 their thoughts exclusively. To avoid these consequences, 
 by the concealment of either the crime, or the criminal, if 
 not of both, is now a sort of natural impulse, which, observ- 
 ation shows, is almost universally obeyed. The almost 
 incredible amount of labor sometimes laid out in attempts 
 to conceal a crime, by 'destroying not only all the physical 
 evidences of the offence itself, but also every link which 
 can possibly connect it with the individual perpetrator, and 
 the various expedients resorted to, in order to render such 
 labor effectual, have already been dwelt upon. 
 
 But even in cases where, apparently, the most effectual 
 precautions for concealment have been taken, the idea of 
 discovery may be said to haunt the mind, and the fear of 
 discovery not unfrequently to agitate it, in spite of all de- 
 termination to assume an exterior of calmness or indiffer- 
 ence. Hence, where a case of suspected crime has become 
 
466 SUBSEQUENT CIRCUMSTANCES. [PABT II. 
 
 the subject of judicial investigation, and the general fact of 
 the commission of a crime has been ascertained, and parti- 
 cularly where vigorous measures have been set on foot to 
 trace out the individual perpetrator ; the idea — now con- 
 verted into the prospect — of discovery, and that becoming a 
 more and more probable event, as fact after fact is brought 
 to light, naturally, and almost necessarily, fills the mind 
 with alarm ; particularly where the criminal finds his own 
 person drawn within the sphere of the investigation. Emo- 
 tion and agitation exhibited under such circumstances, espe- 
 cially where no charge of guilt has yet been made or insinu- 
 ated, are regarded, and justly, among the most convincing 
 evidences of criminal agency that can bo submitted to a 
 human tribunal. 
 
 The Scotch case of Rex v. Richardson, (a) already 
 given at length at the close of the first part of this work, (6) 
 may be here referred to, as furnishing an apt illustration of 
 the remarks just made. In that case, a series of foot-prints 
 having been observed on the ground, leading from the cot- 
 tage in which the murder had been committed, the natural 
 and very obvious test of comparison suggested itself, and an 
 opportunity was soon found of applying it with effect. Sus- 
 picion had not, at the time, rested on any particular indi- 
 vidual as the murderer, but while the shoes of Richardson, 
 among those of a number of other persons attending the 
 funeral of the deceased, were in process of being measured, 
 it was observed by the person who sat next to him, that he 
 trembled much and seemed a good deal agitated. The 
 result of the measurement and comparison was, that his 
 shoes wore found to correspond with the impressions in 
 every respect, including the minutest peculiarities. Here 
 was a moral coincidence, immediately and thoroughly sus- 
 tained by a physical one ; the two harmonizing completely, 
 
 (a) Burnett's Grim. Law of Scotland, p. 524, et leq, 
 (6) ^nte', pp. 243—247. 
 
CHAP. I.] ALARM IN VIEW OP DISCOVERY. 467 
 
 as well as according with numerous other circumstances in 
 that highly instructive case, in their criminative effect upon 
 the accused, (a) 
 
 It is true, nevertheless, that criminals do not uniformly 
 betray alarm or uneasiness in view of the possibility or even 
 the probability of discovery, but often maintain an exterior 
 of calmness, which is sometimes persevered in under still 
 more trying circumstances. (6) This may arise from supe- 
 rior strength of nerve, or greater power of self-command, 
 as well as from the conviction that to exhibit emotion at 
 this stage would stimulate inquiry, and tend to precipitate 
 the fact of discovery itself, and thus bring about the very 
 result dreaded. And yet, again, it will happen that, in the 
 struggle to counterfeit an indifferenee not really felt, the 
 part is over-acted, and the manner becomes visibly forced 
 and unnatural ; while, at times, in spite of the utmost 
 vigilance, an occasional symptom of uneasiness will escape, 
 and become the subject of remark and remembrance to others. 
 The great American case of Commonwealth v. Webster is 
 full of the most painfully instructive facts on this subject, (c) 
 
 Again, there is a class of cases, (though comparatively a 
 very limited one,) in which the criminal, instead of avoiding 
 with an instinctive aversion, all appearances and associations 
 tending to connect his own person with a crime known or 
 believed to have been committed, adopts the singular and 
 audacious policy of openly assuming such connection, and 
 proclaiming it with his own lips ; qualifying it, however, so 
 far by his manner, as to induce those who may hear him to 
 attribute it to idle bravado or peculiarity of character, and 
 to disregard it accordingly. This may be illustrated by the 
 New Jersey case of Peter Robinson. Some days after the 
 
 (o) The behaviour of Houseman^ while attending an inquest over remaina 
 which were not (as he knew,) those of the murdered Clark, may also be re- 
 ferred to. See ante, p. 463. 
 
 (A) See posi. Section XXVin. 
 
 (c) See Bemis' Report of the trial, pp. 167, 168, 177. 
 
468 SUBSEQUENT CIECUJISTANCES. [PART 11, 
 
 disappearance of Mr. Suydam, the deceased, (whose body 
 was afterwards found under the basement floor of Robinson's 
 house,) the prisoner showed a gold watch to a friend whom 
 he met (afterwards a witness in the cause,) and told him 
 " it was Mr. Suydam's watch ; " that " it took him to knock 
 Mr. Suydam over, and he had some of Mr. Suydam's 
 clothes on then." (a) These remarks presented a strange 
 mixture of truth and falsehood ; for the watch was not Mr. 
 S.'s, but one obtained from a watchmaker, in exchange for 
 it. It appeared that Robinson was in the habit of making 
 singular and foolish or nonsensical remarks in his general 
 conversation ; and he doubtless relied upon that circum- 
 stance to produce upon the witness the impression he de- 
 sired ; and such impression was, in fact, produced. For the 
 witness swore on the trial, that, from the prisoner's manner, 
 he thought that what he said was all in jest. But this was 
 not all. For, only two days before the body of the missing 
 man was found under the front basement-floor of Robinson's 
 house, he remarked to a carpenter, (also a witness in the 
 cause,) who found him, with a hoe, dragging the earth in 
 the back basement, as if he had been getting out sand for 
 the masons,: — "here's where I was going to poke Suydam 
 under ; " adding that he had not time to do it. (as) The 
 witness testified that " he said all this as a joke ; he was 
 looking at me and laughing." (6) The cool audacity of 
 such conduct, on the very verge of discovery, is perhaps 
 without a parallel on record. 
 
 (a) Pamphlet Report, 18. 
 (i) Id. 22. 
 (c) U. 23. 
 
CHAP. I.] CONCEALMENT AND FLIGHT. 469 
 
 SECTION XXII. 
 Cancealment and Flight. 
 
 Perhaps no propositioa is more easily deducible from the 
 constitution of human nature and the structure of the human 
 mind, or more constantly confii-med by observation of crimi- 
 nal conduct, and even of culpable conduct in daily life, than 
 this, — that delinquency and guilt naturally shun investiga- 
 tion and seek concealment. The almost instinctive impulse 
 which leads the perpetrator of a crime to destroy or other- 
 wise get rid of evidence •which would convict him of its 
 commission, has ali-eady been alluded to. "Where it becomes 
 impossible to conceal a crime by expedients of this descrip- 
 tion, the criminal consults his safety by concealing himself; 
 and where no facilities for such concealment are found, 
 resorts to actual ^?g-A<. 
 
 Concealment and flight, as observation constantly shows, 
 are, in themselves, closely connected circumstances ; the one 
 aiding the other, and serving as a means of rendering it 
 more effectual, in attaining the common end of both. The 
 criminal flies from the scene of crime, to reach a place of 
 concealment, even if near at hand ; and he often conceals 
 himself temporarily, and sometimes, in one hiding-place 
 after another, with a view to a further or final and effectual 
 flight, beyond the reach of justice and the danger of pursuit^ 
 
 But, as it was shown in the last section, that guilty per- 
 sons do not always betray emotion or uneasiness at the idea 
 or prospect of discovery, so it is equally true that guilty 
 persons do not always, and uniformly, hide themselves or 
 fly, even where these would seem to be the only means left 
 of escaping the legal consequences of their conduct, and 
 Buch means are entirely within reach. In cases where the 
 evidence of the crime is known to be merely of the presump- 
 40 
 
470 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 iive kind, this may arise from a conviction that it is the better 
 policy for the criminal to remain and show himself to view, 
 and thus trust to the supposed or hoped insufficiency of the 
 evidence, as it is, than to adopt a course which, while it al- 
 ways adds, and sometimes materially, to the force of such 
 evidence, is, if unsuccessful, almost sure to result to his dis- 
 advantage. Hence the determination, sometimes taken, to 
 assume the exterior of innocence, by remaining within the 
 view and reach of justice. And accordingly we find these 
 very facts, — that the accused did so remain, and did not fly 
 when he might have fled, — often made use of in argument, 
 before a jury, as a proof of innocence, (a) 
 
 But the omission, neglect or refusal, on the part of a 
 criminal, to hide or fly, may also arise from moral causes, 
 unconnected with any process of reasoning whatever. Thus, 
 it may arise from that sort of infatuation which sometimes 
 induces one who has actually and effectually escaped, to 
 return to the scene of the crime, or its vicinity, and place 
 himself within the grasp of justice. It may arise, also, 
 from the very imbecility of despair. (6) And it may, 
 finally, arise from the mere effect of sated passion. In 
 some of the worst cases of murder, and usually such as are 
 committed most openly, the criminal has not only refused to 
 fly, but has awaited the approach of the officers of justice, 
 and suffered himself to be arrested, without resistance. This 
 conduct is, doubtless, often caused by a conviction of the 
 hopelessness of any attempt at escape. But, in many cases, 
 it appears to be referable to no other cause than a sort of 
 disdain to adopt any measures of self-protection, and a will- 
 ingness, if not a positive determination, to surrender life as 
 the price of the revenge which has been accomplished. 
 
 (a) It has been decided, however, that it is not competent for an accused 
 party to show that, though he had opportunities of escape, he did not avail 
 himself of them. The People v. Rathbun, 21 Wendell, 509, 518, 519. 
 
 (6) This was exemplified in the case of Richardson. When urged to fly, 
 before his apprehension, his only answer was, " where can I fly to ! " See 
 ante, p. 246. 
 
CHAP. I.j CONCEALMENT AND FLIGHT. 471 
 
 Bat cases like these are manifest exceptions to what may \ 
 be called the general rule, course or habit of criminal con- 
 duct. If it be true that some criminals do not conceal them- 
 eelves or fly, it is equally true that the vast majority do. 
 It is sufficient to refer to daily observation and the police 
 reports in the daily prints, for confirmation of this familiar 
 fact. In some recent American cases of murder, it has been 
 a prominent circumstance, (a) In Carawan's case, the ex- 
 pression made use of by the criminal, after the body of the 
 deceased was found, and just before his flight, simply but 
 forcibly describes the sum of the natural workings and 
 promptings of the guilty mind : — " Boys, they have found 
 Lassiter, (the deceased,) and I have got to go away or else 
 I shall be hung." (6) Beehan^s case (c) was one of in- 
 stant, precipitate and continued flight, accompanied by con- 
 cealment in one hiding-place after another, until the criminal 
 was hunted down and captured by his pursuers. (<£) Some- 
 times this concealment of the person is practiced to a limited 
 extent. In Cicely's case (e) the criminal did not fly from 
 the vicinity of the murder, but went the same night and 
 gave infoimation of it to a neighbor, as of a murder com- 
 mitted by other persons ; but she lingered outside of the 
 neighbor's house sometime before she came to it, and when 
 she entered the house, she stopped near the door; and 
 when asked to come near the fire where others were stand- 
 ing, she did not advance to the light, but retreated to a 
 dark corner of the room, out of sight. 
 
 (a) Among those which have been most frequently cited in the preceding 
 pages, Thz State v. McCann, The State v. Carawan, The Slate v. Arrison, 
 and The People v. Beehan, may be particularized. 
 
 (6) The State v. Carawan, Pamphlet Report, 52. 
 
 (c) The People v. Beehan, Suffolk (N. Y.) Oyer & Terminer, October, 1854. 
 
 (d) After having been pursued, upwards of two days, by a, large number 
 of the neighboring inhabitants, he was found hidden in a swamp about half a 
 mile northeast of Hermitage depot, in the town of Southold, L. I., his head 
 lying partly in the water, and apparently worn out with fatigue. 
 
 (£) The State v. Cicely, a slave, 13 Smedes & Marshall, 208, 218. 
 
472 SUBSEQUENT CIRCUMSTANCES. [PABT II. 
 
 In minor crimes, Tariation from this general rule or habit 
 of criminal conduct is of still more rare occurrence. The 
 incendiary, the burglar, robber and thief, uniformly fly, or 
 at least attempt to fly from the scene of crime to places of 
 concealment. So natural is this course, and so constantly is 
 it looked for and counted on, that any possible exception to 
 it would undoubtedly be set down as an evidence of mental 
 imbecility. The incendiary, burglar or thief, who should 
 linger on the premises where he had committed his crime, 
 or even in their vicinity, so as to afford an opportunity of 
 capture, would be classed with the incendiary, burglar or 
 thief who should attempt to set fire to, or enter, or steal 
 from premises, in open day, and in full view of the occu- 
 pants or others. Such conduct, in either case, would be 
 interpreted into a desire or pre-determination to be appre- 
 hended, or into a natural inability to perceive and under- 
 stand the common relation of cause and effect. Conceal- 
 ment and flight may, in short, be considered as parts of that 
 grand policy of secrecy which has already been described 
 as the natural characteristic of all criminal action, from its 
 earliest stages to its latest consummations, (a) 
 
 So impressed was the old common law with considerations 
 of this kind, that it laid down the rule, which passed into a 
 maxim, — that flight from justice was equivalent to confession 
 of guilt; Fatetur facitms qui judicium fugit. (b) But this 
 maxim, (like some others,) (c) was undoubtedly expressed 
 in too general and sweeping terms. It was defective in not 
 taking notice of, and providing for certain important excep- 
 tions, having as clear a ground of truth as the maxim itself. 
 Eor, as we have seen that guilty persons do not, in all cases, 
 conceal themselves or fly ; so it is equally true that persons 
 sometimes do betake themselves to these expedients, who 
 
 (o) Ante, pp. 68, 116, 124. 
 
 (6) 5 Co. 109 b', Foxley's case. 11 Co. 60 b, Dr. Foster's case. 
 
 (c) See Best on Pres. § 61, note (A). 
 
CHAP. I.] CONCEALMENT AND PLIGHT. 473 
 
 are not, in fact, guilty persons ; or, in other words, that all 
 who hide themselves or fly are not necessarily and invari- 
 ably guilty. 
 
 In the modern law of evidence, due attention has been 
 given to these considerations and the exceptions established 
 by them ; and, rare as they may in fact be, such prominence 
 and weight are allowed to them, as to take from the circum- 
 stance of flight, in particular, the conclusive effect formerly 
 attached to it, and to leave it merely its natural presumptive 
 character, as an evidence of criminal agency. In the words 
 of an able writer, who has already been repeatedly quoted 
 in the present work, it " seems now nearly reduced to its 
 true place in the administration of the criminal law, namely, 
 that of a circumstance, — a fact, which it is always of im- 
 portance to take into consideration, and, combined with 
 others, may afford strong evidence of guilt ; but which, like 
 any other piece of presumptive evidence, it is equally absurd / 
 and dangerous to invest with infallibility." (a) ^^ 
 
 (a) Best on Pres. § 248. This remark must be taken as true of every cir- 
 cumstance that can become an element of presumptive evidence; and it is to 
 be understood (to save repetition of the remark in each case,) as applying to 
 every one of the circumstances which have thus far been considered, as well as 
 to those which remain to be treated of. Not one of them, including even 
 those of the strongest criminative aspect; — neither destruction nor fabrication 
 of evidence, possession of a criminative article, possession of the fruits of 
 crime, fear, flight, or even confession itself, — standing alone, is to be consid- 
 ered conclusive evidence of guilt; although combination with other circum- 
 stances (and, sometimes, with a very few others,) will often make it so. And 
 the reason of this is to be found in the existence of those exceptions to the 
 general habit of criminal conduct, which have been mentioned In the text. In- 
 nocent persons h^e been known, in some cases, to destroy and even to fabri- 
 cate evidence; in others, to be in possession of highly criminative articles, and 
 even of the fruits of crime; and in others, to betray agitation in prospect of a 
 criminal charge, to hide, to fly, and even (though far more rarely,) to confess 
 guilt. In order, therefore, to avoid a result fatal to innocence, while applying 
 what must be admitted to be the general rule of guilt, the modern law of 
 presumptive evidence requires that every one of these possible exceptions (rare 
 as its actual occurrence may be, ) shall be carefully taken into view. And thus 
 
474 SUBSEQUENT CIRCUMSTANCES. [PART 11. 
 
 It may be further remarked, that the importance of flight, 
 as a criminative circumstance, depends materially upon the 
 time when it takes place, and also upon the attending cir- 
 cumstances. Flight before accusation, or before any extra- 
 neous occurrences (such as great public excitement against 
 the particular individual,) have operated to produce alarm 
 or perturbation of mind, and thus to constitute a new motive 
 of conduct, is more apt to be an exclusive consequence and 
 product of conscious guilt, than flight afterwards. So, the 
 circumstances which are sometimes found to accompany the 
 act of flight, — such as disguising the person, obliterating 
 the name from articles of clothing, &c. and assuming and 
 passing under a feigned rtame,(a) — are important as impart- 
 ing to it the character of an intentional act, as distinguished 
 from a merely coincident and fortuitous occurrence. 
 
 SECTION XXIIl. 
 
 Conduct and Language on Arrest. Fear as expressed 
 by Deportment. 
 
 Supposing the concealment or flight of the party appre- 
 hending arrest, to be either impracticable or ineffectual, and 
 that he finally falls into the hands of the law, his conduct 
 in this situation is another circumstance which often fur- 
 nishes important criminative evidence againsttim. 
 
 the whole object of judicial inquiry, as conducted by the light of such evidence, 
 is reduced to this: — to see, and to be satisfactorily convinced that the case 
 under investigation docs not fall within any of the exceptions. 
 
 (a) See, among other oases. Rex v. Heath and Crowder, (Wills, Giro. Evid. 
 98;) Rex v. Howe, (Id. 235;) The State v Carawan, (Pamphlet Report, 
 122;) The State v. .arrison, Cincinnati Grim. Court, Deo. 1854. 
 
CHAP. I.] CONDUCT ON ARREST, PEAR, ETC. 475 
 
 Attempts to escape and to resist being taken by the offi- 
 cers of justice, are expedients daily resorted to by criminals 
 caught in the very act. (a) If these are seen to be hope- 
 less, attempts are often made, at the last moment, to conceal 
 or destroy criminative articles about the person. The thief 
 throws away his plunder; the counterfeiter, his spurioas 
 money ; (6) the latter sometimes even attempting to get 
 rid of it by swallowing, (c) In some cases, a murderer 
 will attempt to put an end to all further inquiry, by delibe- 
 rately destroying himself, (d) 
 
 Denial of his name by the arrested party, and denial of 
 all knowledge of the crime, or of the subject of it, are fre- 
 quently made and persisted in by persons whose guilt is 
 afterwards clearly manifested, (e) Sometimes the manner 
 is bold and actually defiant. In the case of Mrs. Arden, (/) 
 although she had procured and aided in the murder of her 
 husband, and had repeatedly plunged a knife into his dead 
 body, her language, on being arrested and charged with the 
 crime was, — " I would have you to know that I am no 
 such woman." Qg) But soon after, on being confronted 
 with the bloody evidences of the crime found on her premises, 
 she confessed her guilt. 
 
 (o) The People y. Quackenboss, 1 Wheeler's Crim. Gas. 91. See Coe's case, 
 1 City Hall Recorder, 141. 
 
 (A) Tke People v. Pomeroy, 2 Wheeler's Grim. Gas. 159. In this case, as 
 the officers seized the prisoner, they saw him, by the light of the moon, drop 
 from his hand a paper which he attempted to tread upon, and which was found 
 to contain four counterfeit bills. 
 
 (c) The People t. Haggerty, 1 Wheeler's C. C. 195. Galbrant's case, 1 
 City Hall Recorder, 109. 
 
 ((/) See, among other cases, Regina v. Coarvoisier , People t. Beehan, Com- 
 monwealth V. Webster. In The State v. Carawan, the attempt, though at a 
 later stage, was successful. 
 
 (c) Rex T. Corrfcr, Celebrated Trials, 221. The State \. McCann, 13 
 Smedes & Marshall, 481. 
 
 (/ ) 5 London Legal Observer, 59, 60. 
 
 (g) In Major Strangwayes' case, also, the bearing of the accused was .bold 
 and undaunted. Id. 91. 
 
476 SUBSEQUENT CIRCUMSTANCES. [PAET II. 
 
 It happens also, sometimes, that the criminal, at this 
 stage, attempts to exonerate himself by directly or in- 
 directly accusing another person, (a) 
 
 The passive deportment of accused persons, on being 
 arrested as criminals, exhibits itself in a variety of forms : 
 there being, in some instances, little or no emotion mani- 
 fested ; while, in others, it is considerable ; and, occasion- 
 ally, extreme. 
 
 Among the outward and visible marks of emotion or agita- 
 tion, may be enumerated the following : — blushing, paleness, 
 averting or casting down the eyes, trembling, fainting, 
 sweating, weeping, sighing, distortion of countenance, sob- 
 bing, starting, pacing, exclamation, hesitation, stammering 
 and faltering of the voice. (A) 
 
 It is to be observed of these physical appearances, that 
 they are the symptoms of other passions besides that of 
 fear ; and that they (or some of them) are also found to mani- 
 fest themselves at earlier stages, and in less trying situa- 
 tions, (c) But what is, at present, proposed in particular, 
 is to consider them in connection with the fact of arrest, and 
 in their character of evidences of the emotion of fear ; that is, 
 of fear of the legal consequences of the act committed, which 
 the fact of arrest shows to be now closely impending, (d) 
 
 The mere expression of agitation on being arrested 
 on a charge of crime, especially in the less violent forms 
 of blushing and paleness, is, in itself, a circumstance of 
 little or no criminative weight. It is an impulse of nature, 
 consequent upon extreme surprise, to which the innocent 
 
 (a) Rex V. Donellan, Celebrated Trials, 149. Commonviealth v. Webster, 
 Bemia' Report, 179. 
 
 (A) This is nearly the enumeration of Mr. Bentham. See 3 Jud. Evid. 
 153, note. 
 
 (c) See ante, p. 463. 
 
 (rf) Mr. Bentham traces the connection between the physical appearances 
 and the fact of crime, by a formal series of links and inferences. 3 Jud. 
 Eyid. 153—155 
 
CHAP. I.] CONDUCT ON ARREST, PEAR, ETC. 477 
 
 may yield as well as the guilty. Nay, it may happen 
 that the more innocent the party, the greater the shock 
 occasioned by such a proceeding. Indignant astonish- 
 ment at the bare mention of a charge of guilt, is an 
 emotion sufiBciently powerful to send the blood to the coun- 
 tenance, or withdraw it in paleness. In more sensitive 
 and excitable natures, the meie idea of arrest and the pub- 
 licity consequent upon judicial inquiry, (though on a per- 
 fectly groundless accusation,) will suffice to produce, at 
 least for a time, the additional symptoms of trembling, 
 faltering and confusion. On the other hand, the most 
 hardened offenders are frequently those who are seen to 
 betray the least agitation or even disquietude, under the 
 exciting circumstances of an arrest. 
 
 But where the agitation is violent in the extreme, so as 
 literally to overwhelm and prostrate the accused, and main- 
 tains its mastery over him for a length of time, whatever 
 allowances may be made for peculiar sensitiveness of tem- 
 perament, or state of health, or natural weakness of the 
 faculty of self-control, it seems to be more difficult to recon- 
 cile these appearances with the fact of innocence ; at least, 
 if by innocence be understood, not only the absence, of all 
 guilty participation in the transaction alleged, but the ab- 
 sence, also, of all knowledge of it. The case of Common- 
 wealth V. Webster may be here referred to, as exhibiting on 
 the part of the accused, a degree of utter prostration on 
 arrest, which has rarely been paralleled, (a) 
 
 (a) On being left for a time, at the jail, by the officers, the accused paced the 
 floor and wrung his hands ; then sat down and had a spasm, as If in a fit. On 
 the officers taking hold of him, to commit him to the lock-up, it was found that 
 he could not stand, but had to be supported and led along. The spasms or con' 
 Tulsions continued after he had been laid in his berth. Bemis' Report, 179, 
 192. On being taien to the Medical College, his agitation continued. When 
 in the laboratory, he called for water, bat could not drink it when handed to 
 him. A witness describing his conduct, said " He seemed like a mad creature. 
 When the water was put towards him, he would snap at it with his teeth, and 
 push it away with great violence without drinking, a£ if it were offensive to him." 
 
478 SUBSEQUENT CIRCUMSTANCES. [PART 11. 
 
 Under the present head, it may be proper to take notice 
 of the effect produced on an individual, charged with the 
 crime of murder, by the sight, and especially the touch of 
 the body of the deceased. 
 
 It will be suflScient to pass lightly over the old supersti- 
 tious belief, that, by a mysterious sympathy of nature, the 
 body of a murdered person, though dead for some consider- 
 able time, would bleed at the touch of the murderer. The 
 idea seems to have been, at an early period, turned to prac- 
 tical account, by making use of the ceremony of touching 
 the corpse, as a test or means of detecting the murderer 
 when unknown, and singling him out from the number of 
 those by whom it was required to be performed. There are 
 some cases on record, in which bleeding and other extra- 
 ordinary appearances of the dead body, on being touched by 
 a suspected party, have been testified to, as actual occur- 
 rences, by persons of character and standing, representing 
 themselves as eye-witnesses of the phenomena, (a) 
 
 Id. 60. When led close up to the remains of the body of the deceased, he, in the 
 words of another witness, "appeared to be very much agitated; sweat very 
 badly ,and the tears and sweat ran down his cheeks as fast as they could drop." 
 Id. 120, 121. The perspiration was so excessive as to wet through his clothing. 
 /(/.193. 
 
 The prisoner, in his confession, afterwards stated that, on finding himself 
 arrested, he determined to destroy himself; and, before leaving the carriage, 
 when it stopped at the jail-door, took a pill of strychnine from his pocket and 
 swallowed it. Bemis' Report, 571. How far some of the more violent symp- 
 toms which have just been described, were referable to the action of this poi- 
 son, it would be impossible to say. It was his own opinion, that the state of 
 his nervous system probably defeated its action partially. Id. ibid. 
 
 (a) In the case of the JVbrkoUs and others, which was an appeal of murder 
 brought by the child of the deceased, in the 4th year of Charles I, after the 
 acquittal of the accused on an indictment and trial, it was testified by " an an- 
 cient and grave person, minister to the parish where the fact was commited," 
 that, the body being taken up out of the grave, thirty days after the party's 
 death, and lying on the grass, and the four defendants being present, they 
 were required, each of them, to touch the dead body. Upon the touch of the 
 first, the brow of the dead, which before was of a livid color, began to have a 
 dew or gentle sweat arise on it, which increased by degrees, till the sweat ran 
 down in drops on the face ; the brow turned to a lively and fresh color, and the 
 
CHAP. I.] TOUCHING THE CORPSE. 479 
 
 Out of this ceremony probably grew the modern practice 
 of requiring an individual, arrested on suspicion of murder, 
 to touch the body or take the hand of the corpse. This, 
 too, was, as it still is, used in the way of a test, but with 
 an object very different from that of the ancient proceed- 
 ing ; namely, in order to observe its effect, not on 
 the body, but on the accused himself : the agitation pro- 
 duced and manifested in consequence of touching, or even 
 looking at the corpse, or the refusal to touch or look at it, 
 being considered as affording important indications of guilt. 
 In some of the cases which have been referred to, in the 
 present work, this practice was resorted to, but with ,results 
 so different, as to show how little it was to be depended on, 
 as a means of developing truth. An instance of its use 
 occurred in New York, as late as 1824 ; and, in Scotland, 
 no longer ago than 1835. The cases will be found in the 
 subjoined note, (a) 
 
 deceased opened one of ber eyes, and shut it again ; and this opening the eye 
 was done three several times ; she likewise thrust out the ring or marriage- 
 finger three times, and pulled it in again; and the finger dropped blood from 
 it on the grass. Upon being asked by the Chief Justice, (Sir JVicholas Hyde) 
 Tfho saw this besides himself, the witness referred to another person present, 
 minister of the next parish adjacent to his own ; who, being sworn in the case, 
 confirmed the testimony in every point ; and the first witness then added that 
 he himself dipped his finger in the blood which came from the dead body, to 
 examine it, and he swore he believed itwas blood. 1-1 State Trials, 1324, 1326. 
 In Philip Standsfield's case, which occurred in 1688, although no formal 
 ceremonial was performed, the same result of bleeding at the touch of the ac- 
 cused was proved by evidence in the case. One of the surgeons by whom the 
 body had been examined and opened, testified that, after the body had been 
 sewed up, and clean linen put on, he desired that the friends of the deceased 
 might lift it into the coffin; and that the accused, having come and lifted up 
 the head, let it fall upon the table suddenly, and retired back quickly, rub- 
 bing his hands on his breast and crying " God ! God ! " or some such 
 words; that the deponent, being astonished thereat, looked to the corpse, and 
 BS the accused took away his hand from it, saw it darting out blood through 
 the linen, from the left side of the neck which he had touched. 11 State 
 Trials, 1402, 1403.| See also Id. 1409. 
 
 (o) In the case of Major Strangwayes, in 1657, the prisoner, on being 
 commanded to take the deceased by the hand and touch his wounds, before 
 
489 SUBSEQUENT CIRCUMSTANCES. [PABT II. 
 
 SECTION XXIV. 
 Silence under Aeemation. 
 
 We proceed, in the next place, to consider the conduct 
 of a person suspected of or charged with a crime, on being 
 either directly accused of its commission ; or interrogated 
 as to that fact, or as to some of the attending circumstan- 
 ces ; or upon mere observation being made in his presence, 
 in reference to the subject : such conduct taking, for the 
 most part, the general shapes of answering- and refusing to 
 answer interrogation ; or, as it has been termed by some 
 writers, " responsion " and " non-responsion." (a) 
 
 The interrogation itself, which is intended to elicit this 
 conduct, is of two descriptions : — that which proceeds from 
 
 the coroner's inquest, did so, without betraying any emotion that could be 
 ascribed to a sense of guilt. 5 Lond. Legal Observer, 90. See also Stewart 
 Abercrombie's case, in 1718, mentioned in Burnett's Treatise on the Criminal 
 Law of Scotland, p. 529. In the Scotch case of John Adam, in 1835, the ac- 
 cused, on being desired by the procurator-fiscal, to take the hand of the de- 
 ceased, (who was his wife,) and say whether he had ever held it before, did so 
 with scarcely a symptom of agitation, while denying all knowledge of the per- 
 son. 11 Id. 415. 
 
 In Mrs. Spooner's case, at Brookfield, Mass. in 1788, the accused for a time 
 refused even to look at the body, but finally, on being requested,, laid her hand 
 on the forehead, and said "poor little man." The report does not mention 
 that she seemed otherwise affected. 2 Chandler's Am. Crim. Trials, 13, 14. 
 
 In the comparatively recent case of The People v. Johnson, at New York, 
 March, 1824, the prisoner was taken out of his cell to the hospital, by Mr. 
 Hays the high constable, and was required to touch the dead body of the mur- 
 dered man Murray. He did so, and the act affected him so powerfully,, that 
 he was brought to the police office in great perturbation of mind, and con- 
 fessed the murder. 2 Wheeler's Criminal Cases, 378. It was afterwards ob- 
 jected, at the trial, in behalf of the prisoner, that the confession obtained under 
 these circumstances was not admissible in evidence. But the court overruled 
 the objection, without expressing any opinion adverse to the practice. Id. ibid. 
 
 (a) These terms are of the coinage of Mr. Sentham, but they have been 
 freely used, and without objection, by Mr. Best. 3 Benth. Jud. Evid. 81. 
 Best on Pres. §§ 239—248. 
 
CHAP. I.] SILENCE UNDER ACCUSATION. 481 
 
 the court before which the party is formally arraigned for 
 trial, or from the magistrate before whom he is preliminarily 
 taken, on his arrest, which is termed judicial interroga- 
 tion : (a) and that which comes from private individuals, 
 which is termed extrchjudicial ; the latter species often 
 reaching back to a point considerably anterior to the party's 
 arrest. 
 
 The conduct of the individual, thus interrogated, assumes 
 one or more of the following varieties of forms. He either 
 maintains a total silence, or refuses, in terms, to answer any 
 questions ; or, if he answers, answers evasively or imper- 
 fectly ; or gives an answer which is either seen or known or 
 subsequently proved to be wholly false ; or which may rea- 
 sonably be regarded as false, on account of its inconsistency 
 with known facts, or with other statements made by him, 
 or on account of its great intrinsic improbability. The first 
 of these varieties of conduct will form the subject of the 
 present section. 
 
 The limits of strictly judicial interrogation (&) being, 
 (under the common law system of procedure,) very nar- 
 row, (c) the effect of silence under such interrogation has 
 been considered as, on the whole, not more criminative than 
 that of non-response to interrogation out of court, (li) 
 Cases, however, may be easily imagined, in which a refusal 
 to answer, on judicial interrogation, would be allowed to be 
 regarded with far less favor than similar conduct towards 
 a private individual, having no authority to interrogate. 
 
 (a) It might be more accurate to call interrogation which proceeds from the 
 court, strictly judicial; and that which proceeds from a magistrate, qtiaei 
 judicial. See infra, and the next note. 
 
 (6) That is, interrogation by the court which sits to try the prisoner. 
 
 (c) Instead of the elaborate and protracted interrogation of the accused, 
 which constitutes a principal portion of most criminal trials on the continent 
 of Europe, the only questions allowed to be put to him are, to desire him to 
 plead guilty or not guilty; and, if the latter, to call on him for his defence, 
 after the evidence for the prosecution is closed. Best on Pres. § 240. 
 
 (d) Best on Pres. ubi supra. 
 
482 SUBSEQUENT CIRCUMSTANCES. [PABT 11. 
 
 Such silence might be so far coupled with a stubborn, con- 
 temptuous, defiant manner, as to reveal its source in a tem- 
 per and spirit at variance with all true ideas of the de- 
 meanor of innocence, (a) But conduct of this kind is, 
 under the practice of our courts, rarely fully exemplified ; 
 the accused being, in most cases, under the salutary control 
 of his own counsel, whose answers in his behalf are always 
 accepted. 
 
 As to absolute silence under the interrogation of a magis- 
 trate, or the equivalent course, on the part of the accused, 
 of saying that he declines to answer any questions, it is 
 clear that no presumption of guilt can be held to arise from 
 such conduct ; (Z/) it being a privilege often allowed the 
 accused by express provision of law. In some states, it has 
 been provided by statute, that, at the commencement of the 
 examination, the prisoner shall be informed by the magis- 
 trate, that he is at liberty to refuse to answer any question 
 that may be put to him. (c ) This brings us to the consider- 
 ation of the effect of silence under extra-judicial interroga- 
 tion or remark. 
 
 "Where a statement is made either directly to a person, or 
 within his hearing, that he was concerned in the commission of 
 an alleged crime, to which he returns no reply, " the natural 
 inference," observes an able writer, " is that the imputation 
 is well founded, or he would have repelled it." (c?) So 
 where he is distinctly asked if he was not concerned in the 
 transaction, or openly accused of having been so concern- 
 ed, (e) or called upon to explain certain strange or sus- 
 picious appearances connected with his person or con- 
 
 (a) The evidence afforded by the demeanor of the accused, during trial, 
 ■will be more particularly considered under a future head. 
 
 (A) Beat on Pres. § 242. Rex v. Appleby, 3 Stark. E. 83, cited ibid. 
 
 (c) 2 New York Revised Statutes, 708, § 15; [592, § 16, 2d ed.] 
 
 (d) Best on Pres. § 241. 
 
 (e) See The Stale v. Robinson, Middlesex (N. J.) Oyer & Terminer, 
 March, 1841. Pamphlet Report, 12. 
 
CHAP. I.] SILENCE UNDER ACCUSATION. 483 
 
 duct ; (a) silence on his part, especially if obviously volun- 
 tary (6) and persisted in, (c) is a circumstance authorizing 
 similar unfavorable interpretations. That voluntary silence, 
 especially under circumstances reasonably demanding re- 
 mark of some kind, amounts to admission, is a principle 
 every day recognized and acted upon, not only in legal pro 
 ceedings, (ti) but in ordinary life, (e) An innocent person, 
 aware of this familiar principle, would naturally, out of 
 mere regard for self-preservation and a desire of avoiding 
 prejudicial consequences, do all in Ms power to escape its ap- 
 plication. And, independently of this consideration, it may 
 be said to be the nature of innocence, to be impatient of a 
 charge of guilt, whenever seriously made and distinctly 
 understood ; to repel it with earnestness ; to exclaim against 
 it, and to challenge instant investigation. 
 
 Hence the rule that whatever is said to a prisoner, or in 
 his presence, except when before a magistrate, is admissible 
 in evidence ; and it makes no difference that what was said 
 was said by a person who cannot be called as a witness, such 
 as the prisoner's wife. (/) 
 
 But it is always to be borne in mind that the criminative 
 cfffect of the circumstance of silence (or implied admission) 
 under extra-judicial interrogation or remark, like that of 
 
 (o) Id. ibid. 
 
 (b) As to this quality, see infra. 
 
 (c) A mere momentary or brief silence, being often attributable to the 
 effect of extreme surprise, might, of course, be consistent with entire inno 
 cence. See the lines quoted in Best on Pres. § 250. 
 
 (d) Qui tacet consentire videtur. Jenk. Cent. 32, case 64. Id. 68, case 30. 
 Id. 226, case 87. 1 Story's Eq. Jur. §§ 385, 388, 389. Brit this maxim, as 
 Professor Greenkaf observes, " is to be applied with careful discrimination." 
 1 Greenl. Evid. § 199. And see the cases cited ibid. 
 
 (c) " Silence is tantamount to confession," is an observation, observes Mr. 
 Eentham, " which, whether it may happen or not to have been yet received in 
 any collection of proverbs, is repeated and acted upon, with not less confidence 
 and certainty, with not less safety, than the most familiar of the sayings which 
 have been thus distinguished." 3 Benth. Jud. Evid. 86. 
 
 {/ ) 2 Kussell on Crimes, 866. Rex v. Smithies, 5 Carr. & P. 332. 
 
484 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 confession or positive admission, in a similar case, depends 
 upon the consideration that it is the result of free and vol- 
 untary action on the part of the accused. In a recent case 
 in Massachusetts, (a) it was held that the fact that a person 
 who had just been arrested on a charge of theft, and was in 
 the actual custody of the officers, made no reply to a direct 
 accusation by the person claiming to have been robbed, could 
 not be made use of in evidence against the prisoner. The 
 facts of the case were these. Two watchmen took K. into 
 custody, and carried him to a watcli-houso ; and one of them 
 there said that K. had been robbing a man. R. soon came in 
 and pointed to K. and said, " that man has stolen my money." 
 "While one of the watchmen was proceeding to lock up K. 
 B. saw K. put something on a shelf in the watch-house, and 
 B. thereupon took from the shelf a bag of money, and R. 
 said it was his bag, and that it was all the money he had. 
 K. was within hearing of all that was said, after he was 
 carried to the watch-house, and maxle no reply to any part 
 of it. The court, (Shaw, C. J.) held that the declaration 
 of the party robbed, to which tlio accused made no reply, 
 could not be used as competent evidence of his admission, 
 either of the fact of stealing, or that the bag and monay 
 were the property of the party alleged to be robbed. The 
 court dwelt on the situation of tlie accused, as being in the 
 custody of persons having official authority, who were just 
 putting him into confinement; and said that the statement 
 made to the officers by the party claiming to have been robbed 
 if not strictly an official complaint to officers of the law, was 
 a proceeding very similar to it ; and that the accused might 
 well suppose that he had no right to say anything until regu- 
 larly called upon to answer. (6) 
 
 The general doctrine on this subject, as laid down by the 
 learned chief justice, on this occasion, is comprised in the 
 
 (a) Cojnmonwealth v. Kenney, 12 Metcalf, 235. 
 (6) Id. 238. 
 
CHAP. I.] SILENCE UNDER ACCnSATION. 48& 
 
 following extract from his opinion, (a) " In some cases, 
 [where a declaration in regard to facts affecting a party's 
 rights is made in his hearing,] and he makes no reply, it 
 may be a tacit admission of the facts. But this depends on 
 two facts ; first, whether he hears and understands the 
 statement, and comprehends its bearing ; and secondly, 
 whether the truth of the facts embraced in the statement is 
 within his own knowledge or not ; whether he is in such a 
 situation that he is at liberty to make any reply ; and 
 whether the statement is made under such circumstances, 
 and by such persons, as naturally to call for a reply, if he 
 did not intend to admit it. If made in the course of any 
 judicial heainng, he could not interfere and denj the state- 
 ment ; it would be to charge the witness with perjury, and 
 alike inconsistent with decorum and the rules of law. (&) 
 So, if the matter is of something not within his know- 
 ledge ; (c) if the statement is made by a stranger whom he 
 is not called on to notice ; or if he is restrained by fear, by 
 doubts of his rights ; by a belief that his security will bo 
 best promoted by his silence : then no inference of assent 
 can be drawn from that silence." (d^ 
 
 (a) Id. 237. 
 
 (6) See 1 Phill. ETid. 400. 
 
 (c) Where the truth or falsehood of a material fact is known to a party to 
 whom the fact is asserted to exist, his omission to deny its existence is pre- 
 sumptive evidence of its truth. When not known, his silence furnishes no 
 evidence against him. Robinson v. Blen, 20 Maine, 109. See 1 Greenl. 
 Evid. § 199, and the coses cited, ibid. 
 
 (rf) Where a person accused of the crime of homicide remains silent, the jury 
 may infer his guilt or innocence, according to circumstances. State t. Swink, 
 2 Dev. & Batt. 9. 
 
486 SUBSEQUENT CIRCUMSTANCES. [P^RT II. 
 
 SECTION XXV. 
 Evasive and Incomplete Response. 
 
 In the next class of supposed eases which occurs for con- 
 sideration, the party interrogated, or in whose presence and 
 hearing a statement is made, intended to criminate him, 
 instead of maintaining a total silence, or refusing in terms 
 to answer at all, takes the course of responding, but only in 
 a certain way, and to a certain extent. In other words, he 
 either answers evasively or only in part. 
 
 Evasive response to interrogation is often attributable to 
 quite a different motive from that which prompts entire 
 silence or refusal to answer; and it places the accused him- 
 self in a correspondingly different position. Silence, or 
 a total refusal to answer or notice an extra-judicial interrog- 
 atory or remark, may proceed from a determination not to 
 recognize the right or authority of the party interrogating or 
 remarking, to examine, or question or expect a reply, in the 
 case. But any such ground of objection is waived when the 
 accused consents to answer at all. (a) Again, total silence 
 on the occasion of any kind of interrogation or statement, 
 may proceed from mere unreasoning stubbornness, or natural 
 stupidity. But in answering evasively, more or less of 
 thought and art is necessarily called for and exercised. 
 The latter course, moreover, undoubtedly amounts to an ad- 
 mission that appearances are against the accused, and call 
 for an answer of some kind or other. In its character of 
 a criminative circumstance, therefore, evasive response 
 
 (a) " The declaration," observes Professor Greenleaf, " may be imperti- 
 nent and beat rebuked by silence; but, if it receives a reply, the reply is evi- 
 dence." 1 Greenl. Evid. § 199. And see the observations of Shaw, C. J. la 
 Commonwealth v. Kenney, 12 Metoalf, 235, 237. 
 
CHAP I.] EVASIVE RESPONSE. 487 
 
 is ordinarily of greater weight and force than simple si- 
 lence, (a) 
 
 Of evasive response to a direct charge of being concerned 
 in a murder, the case of The State v. Peter Robinson (6) 
 furnishes a good illustration. An acquaintance of Robin- 
 son's having had his suspicions awakened by the fact that 
 the latter had in . his possession a bond and mortgage which 
 he had previously executed to his creditor, Mr. Sui/dam, 
 who had then recently and suddenly disappeared, directly 
 charged him, one day, with being implicated in Suydam's 
 murder. " His countenance," said this individual, after- 
 wards a witness on the trial, " changed very considerably, 
 and, after stuttering and stammering for some time, .he said, 
 " Do people suspect me of murdering him? " 
 
 In the nest form of response which may be considered 
 
 (a) In the case of Rex v. Smithies, (5 Carr. & P. 332,) the rule was fully 
 recognized by the court, that whatever is said to a prisoner on the subject 
 matter of the charge against him, to which he makes no direct answer, is re- 
 ceivable as evidence of an implied admission, on his part. 
 
 Some remarks of Mr. Bentham on the subject of evasive response, though 
 applicable, for the most part, to evasion of formal interrogation of thejudicial 
 kind, may be here subjoined, as contributing to illustrate the general subject 
 of the present section. " Evasive responsion is responsion in words and ap- 
 pearances, non-responsion in effect; it may be termed virtual non-responsion. 
 • * * * It is tantamount to silence, or rather, in the case of evasion, (if there 
 be any difference,) the inference is stronger. Silence may be ascribed to 
 stupidity ; evasion is the work of art, — the natural resource of self-condem- 
 ning consciousness." 3 Jud. Evid. 95. The great object of this expedient, 
 stccording to the same writer, is to produce the desired effect of silence, with- 
 out producing the effect which is undesired: and the means employed to ac- 
 complish this object is indistivctness of statement. Id. 96. " Evasion," in 
 his opinion, " is a sort of middle course between non-responsion, false excul- 
 pative responsion, and confessorial responsion. Compelled to say something, 
 on pain of the consequence which cannot fail to attach upon his virtual re- 
 fusal to say any thing, a man keeps saying what amounts to nothing; partly 
 in the hope that the imposition may pass undetected, and the insignificant 
 discourse be accepted, as if it were significant; partly to give himself time to 
 consider into which of the two other paths, — confessorial truth or exculpative 
 falsehood — he shall betake himself," Id. 96, 97. 
 
 (6) Pamphlet Eeport, 12. 
 
4SS SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 under the preseut head, the party interrogated or charged, 
 answers promptly, directly and distinctly, but bnly to a cer- 
 tain extent ; that is, he denies his guilt, and that possibly in 
 the strongest terms, and perhaps repeatedly, with many as- 
 severations of innocence ; but, on being required to give 
 some evidence of his innocence, or to explain certain sus- 
 picious or criminative appearances or circumstances brought 
 forward in his presence, and upon which the general accu- 
 sation of guilt itself often materially rests, either remains, 
 as to them, wholly silent, or gives an evasive and unsatis- 
 factory answer, (a) The eifect of this species of conduct 
 is not very different from that of total silence itself; the 
 tacit admission that the charge is, in appearance at least, 
 well founded, serving to neutralize the express denial that it 
 is, in fact, true. The exculpatory or infirmative considera- 
 tions applicable to this circumstance, will be presented here- 
 after, under the proper head. 
 
 SECTION XXVI. 
 
 False Response or Explanation. 
 
 It remains to consider that class of cases, in which a 
 party who has denied a charge of guilt, on being interro- 
 gated as to any particular circumstances connected with the 
 transaction, or desired to explain certain suspicious appear- 
 ances, instead of refusing or evading reply or explanation, 
 replies without objection or hesitation, and in a direct man 
 ner, and sometimes with apparent fullness ; but, in so doing, 
 in fact replies /flise/j/. 
 
 (a) The State v. Robinson, Pamphlet Report, 12. 
 
CHAP. I.J FALSE EESPONSE OR EXPLANATION. 489 
 
 The falsity of the response, which is the material consider- 
 ation in these* cases, is ascertainable in various ways, and in 
 various degrees of completeness. 
 
 First ; it is very satisfactorily established by meeting and 
 contradicting the statement or explanation by express proof. 
 Thus, in Howe's case, (a) the prisoner, on being examined 
 before the magistrate, stated that he was at Stourbridge, 
 (near which the crime was committed,) on the 18th of De- 
 cember, (the day of the murder,) but that he was not out 
 of it, from the time of his arrival there, at one o'clock in 
 the afternoon, until half-past seven o'clock on the following 
 morning ; that; in the afternoon of that day, he went to look 
 about the town for lodgings, and ultimately went to his lodg- 
 ings about six o'clock in the evening. But it was proved by 
 several witnesses, that he had been seen by them, between 
 four and five in the afternoon of the day in question, on the 
 road leading from Stourbridge toward and not far from the 
 spot where the murder was committed. About half-past 
 five, the prisoner was seen going in great haste, in the direc- 
 tion from the spot where the deceased had been shot, towards 
 Stourbridge. He afterwards called at two public-houses at 
 Stourbridge, — at the first of these, about six o'clock, and at 
 the other, about nine o'clock the same evening ; at both of 
 which places, the robbery and attack were the subjects of 
 conversation, in which the prisoner joined. By means of 
 this proof, it was satisfactorily shown that the account which 
 the prisoner had given of himself was a tissue of falsehoods. 
 
 Secondly ; the falsity of the response or explanation of 
 an accused party is sometimes made apparent by being 
 shown to be inconsistent with other facts. In Richardson's 
 case, (6) the accused accounted for spots of blood appear- 
 ing on his stockings, by saying that he had assisted at bleed- 
 ing a horse, when he wore them. But it was proved that 
 
 (a) Rex V. Howe, StafiFord Spring Assizes, 1813; Wills, Circ. Evid. 234, 236. 
 (4) See ante, p. 216. 
 
490 SUBSEQUENT CIRCUMSTANCES. [PABT II. 
 
 he had not actually assisted, although present, on that oc- 
 casion, but had stood at such a distance that no blood could 
 have reached him. In the case of State v. Adams, (a) 
 where the prisoner was found in possession of a stolen horse, 
 his story was, that he had purchased the horse at a place 
 named. But the facts showed that he could not have had 
 time to have done that, and reached the place where the 
 horse was found with him. 
 
 Thirdly ; the falsity of the response or explanation of the 
 accused is frequently shown by its inconsistency with other 
 statements made by himself; or, where there are two or 
 more associated in the offence, by the inconsistency of the 
 account given by one with that given by another. (6) In 
 Patch's case, (c) the prisoner, on his examination before the 
 coroner, made several inconsistent statements as to his pecu- 
 niary 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 ownership of a pair of 
 stockings which were found rolled up in his sleeping room, 
 the soiled condition of which constituted a strong circum- 
 stance against him. In Riley'' s case, (rf) there was great 
 inconsistency of statement ; the prisoner first saying she was 
 a widow, and then that she had a husband ; first saying that 
 the property found in her possession was hers, and that she 
 had purchased it in Philadelphia, and then that it was 
 brought to her house by a man who was in embarrassed cir- 
 cumstances, to conceal it from his creditors. In Peter Rob- 
 inson's case, (e) the accused, when asked where he got the 
 money with which he had taken up a bond and mortgagOj 
 which he had in his possession, and claimed to have paid 
 
 (a) 1 Haywood's (N. C.) E. 464. 
 
 (6) See Reynolds' case, 2 City Hall Recorder, 47. 
 
 (c) Rex V. Patch, Surrey Spring Assizes, 1806; Wills, Giro. Evid. 230, 283 
 
 (d) 1 City Hall Recorder, 23. 
 
 (e) Pamphlet Report, 12, 14. 
 
CHAP. I.] FALSE RESPONSE OR EXPLANATION. 491 
 
 off, said at first, that he had it out at interest, and after- 
 wards that he had had it by him eighteen months. 
 
 " False answers," in the words of an acute writer, " are, 
 naturally enough, interspersed more or less with self-contra- 
 dictory ones. The case is no otherwise varied by the inter- 
 mixture than by this, viz. that, in the case of self-contradic- 
 tion, the falsehood is more palpable and incontestible." (a) 
 And the effect of manifest self-contradiction, (like that ex- 
 hibited by a witness on examination,) is generally to impair, 
 ■ and sometimes to destroy the credibility even of other ac- 
 companying statements. (6) 
 
 Lastly ; the falsity of statements or explanations made by 
 accused parties, under examination or interrogation, is often 
 made more or less apparent by their intrinsic improbability. 
 This is particularly exemplified in cases where causes are 
 attempted to be assigned for an obviously violent death, or 
 where the accused undertakes to relate the particulars of the 
 death, as it occurred in his presence. In Greenacre's 
 case, (c) where accident va.s the cause of death assigned, 
 the prisoner's statement, as made after his arrest, was inge- 
 nious and plausible, being to the following effect : — that, 
 while the deceased was in his house, one evening, they had 
 an altercation ; and that, during the conversation, the de- 
 ceased was moving backwards and forwards in her chair, 
 which was on the balance ; that he put his foot to the chair, 
 ■when she fell back with great violence against a block of 
 wood ; and that, finding life extinct, he made up his mind, 
 in the alarm of the moment, to conceal her death and get rid 
 
 {a) 3 Benth. Jud. Evid. 94, 95. 
 
 (ft) One of the most singular instances on record, of statements deliberately 
 made by a prisoner on his examination at different times, before a magistrate, 
 contradicting each other, in almost every particular, occurred in the compara- 
 tively late Scotch case of John Adam, in 1835. See 11 London Legal Observer, 
 415, 416. 
 
 (c) Rexr. Greenacre, Central Criminal Court, April, 1837; Wills, Giro. 
 Evid. 17L 
 
492 StBSEQUENT CIECUMSTANCBS. [PART II, 
 
 of her remains : wMch he effected by dismembering the 
 body, and scattering the parts about in different places, (a) 
 In TaweU's case, (6) where suicide was the cause of death 
 assigned by the prisoner, the account of the occurrence 
 given by him, while in custody during the coroner's inquest, 
 was as follows : — that the deceased had been teasing him 
 for money, and threatened to destroy herself if he did not 
 send her some ; that, on the evening in question, they had 
 an altercation, in the course of which he had told her he 
 would not allow her any more money ; that she then asked 
 him for some porter, which she went for and procured from 
 a neighboring tavern ; that she poured something into it 
 from a small phial, and drank of it, and then began to throw 
 herself about ; and that he left, thinking her illness feigned, 
 or else would have called some one. 
 
 Another cause frequently assigned to account for a mani- 
 festly violent death, is the felonious act of another person. 
 In some cases, a murderer has been known to content him 
 self with thus barely attributing the crime to another, with- 
 out giving any particulars of information in support of the 
 charge ; while, in other cases, more or less of detail is ven- 
 tured on. Thus, in Rush's case, (c) the prisoner attributed 
 the murders to other persons, but gave no definite names, 
 nor any clue to such persons, and not one of such persons 
 was found. In Patch's case, (<i) the prisoner went farther, 
 and suggested the influence of malicious feeling in two per- 
 sons with whom the deceased had been on ill terms ; but (in 
 addition to the conclusive fact that they were at a distance 
 
 (a) It was clearly shown, from an anatomical examination, that the death 
 could not have happened in this accidental manner, 
 
 (i) Regina v. Tawell, Aylesbury Spring Assizes, 1845; Wills, Circ. Evid. 
 198, 200. 
 
 (c) Regina v. Rush, Burke's Trials connected with the Upper Classes, 458, 
 515. See also, the late case of The People v. Beehan, Suffolk (N. Y.) Oyer 
 & Terminer, October, 1854. 
 
 (d) Eexw. Patch, Wills, Circ. Evid. 280, 233. 
 
CHAP, I.] FALSE RESPONSE OE EXPLANATION. 493 
 
 from the scene of crime, at the time of its commission,) it 
 ■was shown that they had no motive for doing any such in- 
 jury. In Riembauer's case, (a) the accused not only stated 
 that the crime had been committed by a female whom he 
 named, as she herself admitted to him, but undertook to ex- 
 plain how it was done : saying that, on entering his own 
 apartment, one day, after a considerable absence, he found 
 the deceased dead on the floor ; and, that, overcome by the 
 entreaties of the female to whom he attributed the death, 
 and her mother, he consented to conceal the crime by inter- 
 ment of the body. In Robinson's case, (6) the accused 
 took a similar course, not only charging the commission of 
 the crime upon another individual, whom ho designated, but 
 undertaking to show how it was committed ; saying, that the 
 person indicated came to his house on the same day on which 
 the deceased visited it ; that he killed the deceased, during 
 his own temporary absence from the room, and then com 
 pelled him, by threats, to assist in carrying the body down 
 stairs, to the basement, where it was buried. The gross im- 
 probability of this story rendered its falsity so apparent, that 
 no serious attempt appears to have been made even to sub- 
 ject the party implicated, to interrogation respecting it. 
 
 Under this head may also be classed those cases where 
 persons found in possession of stolen property, and charged 
 with the theft, attempt to exculpate themselves by saying 
 that they found it, (c) or that they received it from another 
 person ; but give no names, nor any particulars by which the 
 truth of the statement may be proved. 
 
 False explanations, not only of the leading facts of a 
 transaction, but of minor, collateral and auxiliary facts, 
 may often be detected by the same test of improbability. 
 
 (o) 3 London Legal Observer, 277. 
 
 (b) The State v. Robinson, Pao^hlet Report, 2i, 25, 26. 
 
 (c) 2 East's P. C. 663. 
 
494: SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 Thus, in Peter Robinson's case, (a) the accused accounted 
 for the possession of the mortgage and other papers, of 
 which he made no secret, by saying that they had been 
 given him by his creditor, Mr. Suydam, on receiving the 
 amount of his debt, which he paid him, one evening at Buy- 
 dam's own house, where he went by appointment for the' 
 purpose. He said, however, that Suydam had given him no 
 receipt for the money, and none was found upon the bond or 
 mortgage. Upon being then asked to explain how it hap- 
 pened that a person so well acquainted with the forms of 
 business as Mr. Suydam, had not endorsed the usual receipt, 
 he said — " he was in such a hurry he did not think of 
 it." (6) 
 
 False response to interrogation whether judicial or extra- 
 judicial, is called by a learned writer, " a criminative fact 
 infinitely stronger " than either of the two varieties of con- 
 duct which have been considered, viz. silence, and evasive 
 or incomplete reply ; (c) and it is often found, in practice, 
 to bear with decisive weight against a prisoner. It is a 
 most complete waiver, in particular, of all objections derived 
 from supposed want of right, or authority, or competency, in 
 the interrogator. The remark or question even of a child, 
 which might safely be passed by without any notice, if re- 
 Co) The state v. Peter Robinson, Pamphlet Report, 13, 15, 22. 
 (6) Id. 15. It is remarkable that, in the case of Commonwealth v. Web- 
 ster, where a similar payment of a mortgage debt was alleged by the accused, 
 a similar representation of the conduct of the deceased was made by him, in 
 his account of the transaction ; only, the " hurry," in this case, was described 
 to be much greater, and, indeed, quite extraordinary. The statement of the 
 accused was, that he counted the money down to the deceased, on his lecture- 
 room table; that the deceased " grabbed up the money, without counting it, 
 and ran up, as fast as he could," two steps at a time, the steps upon which 
 the seats are elevated in the lecture-room ; and said that he would go immedi 
 ately to Cambridge and discharge the mortgage. Bemis' Report, 106, 127, 
 168, 176. 
 (c) Beet on Prea § 243. 
 
CHAP. I.] INDIRECT COXPESSIOJTAL EVIDENCE. 495 
 
 sponded to falsely, gives to such false response the quality 
 and force of evidence, (a) 
 
 SECTION XXYII. 
 Indirect Confessional Evidence. 
 
 Full confessions of guilt, by an accused party, are in the 
 nature of direct evidence, (&) and therefore do not properly 
 fall within the scope of the pi'esent work. A brief notice, 
 however, of the character of these statements, and their 
 effect as proof, will not be out of place, (c) 
 
 Confessions of this kind, when deliberately and volun- 
 tarily made, are justly regarded as constituting the highest 
 and most satisfactory species of evidence that can be pre- 
 sented before a tribunal, (c?) They combine the statement 
 
 (a) "In justification of simple silence," observes Mr. Bentham, " thede 
 fence [of incompetency on the part of the interrogator] might be pertinent, if 
 not convincing; to false responsion the application of it could scarce extend. 
 Of the claim it had to notice, you yourself [that is, the accused,] have borne 
 sufficient testimony; so far from grudging the trouble of a true answer, you 
 bestowed upon it the greater trouble of a lie." 3 Jud. Evid. 94. 
 
 (6) 3 Benth. Jud. Evid. 9, 108. Best on Pres. § 253. Wills, Giro. Evid, 
 60. According to Mr. Starkie, a full confession, though one of the surest 
 proo6 of guilt, is only presumptive evidence of that fact; resting upon the 
 presumption that no innocent man would sacrifice his life, liberty, or even his 
 reputation, by a declaration of that which was untrue. 1 Stark. Evid. 32. 
 And see 1 Phill. Evid. 397. 1 Greenl. Evid. § 215. But it seems to be in no 
 other sense presumptive, than all direct evidence, which, as has been shown, 
 rests upon the analogous general presumption that the witness who delivers it 
 speaks the truth. See ante, p. 7. 
 
 (f ) The -subject is treated at considerable length by Mr. Bentham, and also 
 by Mr. Best, and Mr. Wills. 
 
 (</) 1 Gilb. Evid. 123. 1 Stark. Evid. 32. 1 Phill. Evid. 397. 1 Greenl. 
 Evid. § 215, and authorities cited ibid. Wills, Ciro. Evid. 60. 2 Russell on 
 
406 SUBSEQUENT CIECUMSTANCES. [PART II. 
 
 of the physical facts which form the basis of the charge, 
 (and which is substantially the deposition of a witness to 
 those facts,) with that other most important species of evi- 
 dence which can never be directly reached and brought to 
 view by any other means ; namely, that which presents the 
 motives and intents which instigated and directed the crimi- 
 nal act ; and these avowed by the party who, of all others, 
 ■ has the strongest interest to conceal them, (a) " They are 
 received in evidence," observes Mr. Phillipps, " on the same 
 principle upon which admissions in civil suits are received, 
 namely, the presumption that a person will not make an un- 
 true statement against his own interest. In criminal cases 
 a confession carries with it a greater probability of truth 
 than an admission in civil cases, the consequence being more 
 serious and penal ; habemus optimum testem confitentem 
 reum." (&) Their value, in the words of Professor Green- 
 leaf, depends " on the presumption that a rational being will 
 not make admissions prejudicial to his interest and safety, 
 unless when urged by the promptings of truth and conscience. 
 Such confessions, so made by a prisoner, to any person, at 
 any moment of time, and at any place, subsequent to the 
 perpetration of the crime, and previous to his examination 
 before the magistrate, are at common law, received in evi- 
 dence, as among proofs of guilt." (c) 
 
 Confessions are divided into two classes, namely, judicial 
 and extra-judicial. (jT) Judicial confessions are those which 
 
 Crimes, 821. Grose, J- in iamJe's case, 2 Leach C. Cas. 554, [626, 629,] 
 Warickshall's case, 1 Leaoh C. C. 263, [298.] JVoU, J. in Tke Corporation of 
 Columbia v. Harrison, 2 Rep. Const. Court, 215. For the cautions to be ob- 
 served in receiving confessions, including the infirmative considerations appli- 
 cable to them, see 1 Greenl. Evid. § 211 1 Phill. Evid. 397. 2 Russell on 
 Crimes, 824, note. 
 
 (a) Beat on Pres. § 253. 3 Benth. Jud. Evid. 107. 
 
 (6) 1 PhUl. Evid. 397. 
 
 (c) 1 Greenl. Evid. § 215. 
 
 {d) 1 Greenl. Evid. § 216. Best on Pres. § 253. 1 Pothier on Obligation, 
 part 4, c. 3, sect. 1. 
 
CHAP. I.] INDIRECT CONFESSIONAL EVIDENCE. 497 
 
 are made before a magistrate, or in court, in the due course 
 of legal proceedings ; such as the preliminary examinations 
 taken in writing by the magistrate, pursuant to statutes, and 
 the plea of " guilty " made in open court to an indict- 
 ment, (a) Extra-judicial confessions are those which are 
 made by the party elsewhere than before a magistrate, or in 
 court ; this term embracing not only explicit and express 
 confessions of crime, but all those admissions of the accused, 
 from which guilt may be implied. (&) 
 
 According to Professor Greenleaf, judicial confessions of 
 guilt are " sufficient to found a conviction, even if to be 
 followed by a sentence of death, they being deliberately 
 made, under the deepest solemnities, with the advice of coun- 
 sel and the protecting caution and oversight of the judge. 
 Such was the rule of the Roman law ; — Confessos in jure, 
 projudicatis haberi placet ; and it may be deemed a rule of 
 universal jurisprudence." (c) Mr. Best, however, is of the 
 opinion that, " if the confession appear incredible, especi- 
 ally if there are no traces to be found of a corpus delicti, 
 or it is manifest that the prisoner has some collateral object 
 in view, to induce him to make a false one, the judge ought 
 not to receive it." (d) 
 
 As to the force and effect of extrajudicial confessions, the 
 rule does not seem to be clearly laid down in the English 
 books ; or rather, it seems to have been laid down, on dif- 
 ferent occasions, in very different forms, namely : — first, that 
 a full confession by an accused person, that he had commit- 
 ted a crime, without proof of any circumstance tending to 
 corroborate it, and without independent proof of a corpus 
 delicti, (or the general fact that a crime had been commit- 
 
 (o) 1 Greenl. Evid. § 216. 
 (6) Id. ibid. 
 
 (c) Id. ibid., citing Cod. lib. 7, tit. 59; 1 Poth, on Obi. pt. iv. oli. 3, § 1, 
 num. 798; Van Leeuwen's Comm. B. 5, ch. 21, § 2; Maseard. De Probat. vol. 
 1, ooncl. 344. 
 
 (d) Be3t on Pres. § 254. 
 
498 SUBSEQUENT CIECUIISTANCES. [PAET II. 
 
 ted,) was sufficient to warrant his conviction ; (a)-^se(j- 
 ondly, that such confession, uncorroborated, provided there 
 was independent proof of a corpus delicti, was sufficient for 
 the same purpose ; (&) — and thirdly, that such confession, 
 even where there was proof of a corpus delicti, was insuffi- 
 cient, without some corroborative evidence of its truth, (c) 
 The second of these three states the rule as it has received 
 the approval of Mr. Best (cT) and Mr. Wills ; (e) the 
 former declaring it to be " completely settled that, at least 
 where there is proof aliunde of a corpus delicti, a full and 
 free confession of the accused is sufficient, without any con- 
 firmation whatever, to warrant a conviction." (/) 
 
 " In the United States," observes Professor Greenleaf, 
 " the prisoner's confession, when the corpus delicti is not 
 otherwise proved, has been held insufficient for his convic- 
 
 (o) Mr. Best thinks that the oases of Rex v. Faulkner and Bond, (Russ. & 
 R. C. C. 481,) and Rex v. Tippet, [Id. 509,) go the full length of establishing 
 the rule in these terms; the confession being considered as serving as proof 
 both of the corpus delicti and of the criminal agency of the accused. Best on 
 Pres. § 257, p. 332; referring also to Rex v. Whce}ing, 1 Leach C. C. 287, u., 
 and Rex v. Read, hi. This appears also to have been the opinion of Mr. 
 Phillipps. 1 Phill. Evid. 400, 401; where Rex v. Eldridge, (R. & H. C. C. 
 441,) is also cited. See also 2 Russell on Crimes, 825, where the same cases 
 are referred to. But, in a, note to the last authority, in which the cases are 
 examined, it is said, that " it does not appear that it has ever been expressly 
 decided that the mere confession of a prisoner alone, and without any other 
 evidence, is sufi&cient to warrant a conviction." 2 Russ. on Cr. 825, (Phil.ed. 
 1853,) note (6). And in Greenleaf on Evidence, § 217, where the cases are re- 
 viewed, it is said that " in each of the English cases usually cited in &vor of 
 the sufiBcienoy of this evidence, there was some corroborating circumstance." 
 The confusion seems to have arisen from a want of proper precision in the 
 language employed in laying down the rule. 
 
 (A) Rex V. Lambe, 2 Leach, C. C. 552. Rex v. Warickshall, 1 Id. 111. 
 Rex T. Wheeling, Id. 287, n. Rex v. Read, Id. ibid. 
 
 (c) Heath, J. in Rex v. Fisher, 1 Leach C. C. 286. But in Mr. Best's 
 opinion, " it is utterly impossible to support this ruling." Best on Pres. § 257, 
 p. 330. 
 
 (d) Best on Pres. ubi supra. 
 
 (e) Wills, Circ. Evid. 61. 
 
 (/ ) Best on Pres. ubi supra. And the rule is stated in the same terms, in 
 Wharton's Am. Crim. Law, 313, (ed. 1855.) 
 
CHAP. I.] INDIRECT CONFESSIONAL EVIDENCE. 499 
 
 tion ; and this opinion certainly best accords with the hu- 
 manity of the criminal code, and with the great degree of 
 caution applied in receiving and weighing the evidence of 
 confessions in other cases ; and it seems countenanced by 
 approved writers on this branch of the law." (a) From 
 this it might be inferred that a confession, with proof of a 
 corpus delicti, was sufficient for a conviction ; and in some 
 cases the rule is so laid down. (6) But in others, addi- 
 tional corroborating circumstances appear to be required, (c) 
 A cardinal rule on the subject of confessions, is, that 
 the confession when made to a person having authority, 
 such as a magistrate or officer, in order to be admissible, 
 must be purely free and voluntary, (d) If it appear that 
 any inducement has been held out, tending to extort a con- 
 fession, either by intimidation or promise of favor, it cannot 
 be received, (e) But if the inducement be held out by a 
 person whose interference is altogether officious, the confes- 
 sional statement will be receivable. (/) So, where the in- 
 ducement is not of any temporal kind, as where the confes 
 sion is made on the admonition of a clergyman, (g) 
 
 (ffi) 1 GreenLEvid. §217. 
 
 (A) The People T. Hennessey, 15 Wendell, 147. The People v, Badgley, 
 16 Wendell, 53. State v. Guild, 5 Halsted, 185. In The People v. Hen- 
 nessey, the rule, as stated in the reporter's abstract, seems to require not only 
 proof of a carpus delicti, but of corroborating oiroumstances in addition. But 
 the language of Chief Justice Savage, by whom the opinion of the court was 
 delivered, clearly confines it to the former. See 15 Wendell, 153 — 155, where 
 the English cases are reviewed. 
 
 (c) See State v. Long, 1 Haywood, 455; quoted in 3 Phill. Evid. (Cowen 
 & Hill's notes. Van Cott's ed.) Note 250, p. 416; and in Wharton's Am. Grim. 
 Law, 313, (ed. 1855.) The last named author says of State v. Guild, {5 
 Halst. 185,) that " it stands alone in its character and result." 
 
 ((f) 2 Stark. Evid. 48, 49. 1 Phill. Evid. 401. 1 Greenl. Evid. § 219. 2 
 Kussell on Crimes, 826. Wharton's Am. Grim. Law, 316. Best on Pres. § 256. 
 
 (e) Wharton's Am. Crim. Law, 316, and the cases cited ibid, note 7. And 
 see 3 Phill. Evid. (Cowen & Hill's notes, Van Cott's ed.) Notes 254—264, pp. 
 423—433. See also Hawkins v. The State, 7 Missouri, 190. Couley v. 
 The State, 12 Id. 462. Robinson v. The State, Id. 592. 
 
 (/) Rex T. Taylor, 8 Carr. & P. 733; cited in Best on Pres. § 253. 
 
 {g) Rex V. Gilham, R. & M. C. C 186. 2 Russell on Crimes, 848—854 
 
500 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 But the self-criminative statements whicli properly fall 
 under the denomination of presumptive evidence, are those 
 which do not amount to direct or full confessions of guilt, 
 but only authorize inferences more or less unfavorable to the 
 innocence of the party making them. Sometimes, these 
 statements occur in the form of responses to questions asked, 
 sometimes they come from the party without question, and 
 sometimes they occur in the form of questions asked by 
 him. 
 
 In the last two descriptions of cases, they often possess a 
 peculiar force and value, from the circumstance of their be- 
 ing not only purely voluntary and unsolicited, but uttered, 
 also, without premeditation ; and, on this account, they are 
 free from the application and effect of many infirmative sup- 
 positions to which confessions of the direct kind are subject. 
 It is true, that in most instances, they go merely to establish 
 some collateral or intermediate fact, but they do so with the 
 greatest possible force ; and often point the way to inquiries 
 which finally develope the whole truth of a transaction. 
 A person making a direct and formal confession, does so 
 upon reflection and consideration, and with a previously 
 formed intention to criminate himself, whether the confes- 
 sion be true or false ; and this deliberation, though tending 
 to give greater weight to the confession, if true, affords 
 opportunity, also, for the exercise of greater art and inge- 
 nuity, (in the invention of particulars and the skilful combi- 
 nation of them into a narrative,) if false. The language in 
 which he speaks, he uses designedly, with a full knowledge 
 and anticipation of its meaning and effect, and a full deter- 
 mination that it shall be understood as he uses it. But in 
 the case of expressions which are only indirectly confes- 
 sional, the intention of the party is just the reverse. Ho 
 not only desires, but intends and endeavors to conceal his 
 guilt ; and abstains, as far as the state of his mind will- al- 
 low,frora any acts or words which may, even indirectly, betray 
 
CHAP. I.] INDIRECT CONFESSIONAL EVIDENCE. 501 
 
 the consciousEess he inwardly feels. But in one of those 
 unguarded moments which sometimes occur, in spite of all 
 that art and resolution can accomplish, and in which the 
 truth is, by a sort of natural tendency, sure to be spoken, (a) 
 he drops an expression, of the full force and ultimate effect 
 of which he is not, at the time, aware ; but which cannot, by 
 any artifice, be recalled or unsaid. 
 
 An instance of a self-inculpative expression uttered under 
 circumstances like these, occurred in the language used by 
 Houseman, the accomplice of Eugene Aram, while handling 
 one of the bones of a human skeleton which had been disin- 
 terred near Knaresborough, and which has already been- 
 made the subject of remark under a former head. (6) 
 
 A signal instance of an expression, more directly crimina- 
 tive in its bearing, escaping from an accused party in the 
 form of an interrogation, occurred in the case of Common- 
 wealth V. Webster, (c) When the accused arrived at the 
 jail, in care- of the officers who had arrested him, upon being 
 told that he was in custody for the murder of Dr. Parkman, 
 he asked if they had found Dr. Parkman. The officer ad- 
 dressed declined to answer any questions ; but the accused 
 continued to speak, saying — " You might tell me something 
 about it."—" Where did they find him ? "— " Did they find 
 the whole of the body ? " It was very reasonably inferred 
 from the last question, as was strongly urged on the trial, (^d) 
 that it could have been prompted by nothing but a guilty 
 knowledge that the body of Dr. Parkman did not exist as a 
 whole, but only in severed fragments. The dismembered 
 condition of the body was one of the most secret facts of the 
 case, and could not possibly have been known by any person 
 who was not acquainted with the whole transaction. The 
 accused would never have given utterance to this pregnant 
 
 (a) Wills, Circ. Evid. 68. 
 (4) See ante, p. 463. 
 
 (c) Bemis' Report, 178. 
 
 (d) /</. 443. 
 
502 SUBSEQUENT CIRCUMSTANCES. [PART II. 
 
 inquiry, had he been entirely on his guard against erery- 
 thing wearing the complexion of confession ; but it was 
 wrung from him, so to speak, in a moment of agony, when 
 the dissembling power of the will, so long and so successful- 
 ly exerted, was forced to give way to the natural utterance 
 of the conscience and the heart. 
 
 Under the head of indirect confessions, are sometimes 
 classed tha acts of concealment, disguise, flight, and many 
 other indications of mental emotion, (a) which have already 
 received a distinct consideration. 
 
 SECTION XXVIII. 
 Demeanour during Trial. 
 
 The last division of circumstances which may be considered 
 as presenting grounds or materials of criminative evidence 
 against an accused party, embraces those which are exhibit- 
 ed in the conduct and demeanour of such party when actually 
 upon his trial. 
 
 These circumstances have not been formally noticed by 
 any of the writers on evidence who have been most freely 
 quoted in the course of the present work ; although they 
 belong to that species of evidence the superior excellence of 
 which is admitted to consist in the fact that it is presented 
 directly to the senses of the tribunal, without any medium 
 of testimony whatever. (6) And, although the examination 
 of the accused himself, by a course of verbal interrogation, 
 forms no part of the commoh law mode of procedure on 
 trials for crimes ; there seems no reason why his conduct and 
 
 (a) Wills, Ciro. Evid. 70. 
 
 (6) 3 Benth. Jiid. Evid. 249. Best oa Pres. § 191 . Ante, p. 214. 
 
CHAP. I.J DEMEANOUR DURING TRIAL. 503 
 
 language, upon and after his arraignment, and while in the 
 open view of his judges, should not be as legitimate a sub- 
 ject of observation and consideration as that of a witness on 
 the stand. Much stress is laid, and deservedly, by the best 
 writers on evidence, upon the manner and deportment of a 
 witness, while delivering his testimony before the jury ; (a) 
 and it is for the very purpose of affording an opportunity to 
 observe the particulars of such manner and deportment, with 
 the view of deducing from them conclusions favorable, or 
 otherwise, to his sincerity, that the witness is made to come 
 personally and testify orally before the tribunal. So the 
 prisoner and the jury are brought face to face, that they may 
 " look upon " each other, not from any views of idle curi- 
 osity, nor solely with reference to mere completeness of 
 identification ; but that each may have the benefit of that 
 natural kind of evidence which is afforded by the personal 
 appearance and unrestricted observation of the other. 
 
 The demeanour of a person on trial for an alleged crime 
 may be considered as necessarily exhibiting one of two 
 general appearances or manifestations, namely, — the pres- 
 ence or the absence of visible emotion. But as the peculi- 
 arities of conduct, referable to the one or the other of these 
 divisions, are found to vary constantly, according to the 
 character of the individual who may become the subject of 
 observation, and as they are, in themselves, confessedly 
 liable to be produced by causes unconnected with any actual 
 sense of guilt, they do not, within certain limits, furnish 
 adequate materials for extracting any general rule of infer- 
 ence, of much practical value to a tribunal. The following 
 particulars, however, may be worthy of some attention. 
 
 The first thing which may be supposed desirable to be as- 
 certained in these cases, is, whether the outward demeanour, 
 which is the subject of observation, is, in fact, a faithful 
 reflection and representation of the actual internal state ; — 
 
 (a) 1 Stark. EtIcI. 457—459, 
 
504 SUBSEQUENT CIRCUMSTANCES. [PAET II. 
 
 ■whether the party is behaving naturally, or the reverse ; 
 ■whether he is acting a part, or exhibiting himself in his own 
 genuine character. It is certain that manner is often as- 
 sumed, by the innocent as -well as the guilty ; though from 
 different motives, as -well as in different degrees. The most 
 innocent -will struggle to maintain composure under the 
 terribly exciting circumstances of a public and outwardly 
 degrading exhibition of himself, from a commendable sense 
 of self-respect. The guilty will counterfeit calmness from a 
 belief (which seems to be current in the vulgar mind,) that 
 the manifestation of any degree of emotion is, so far, an ad- 
 mission of guilt ; and, in order to avoid any tendency in 
 this direction, the manner is sometimes pushed so far in the 
 opposite, as to assume the aspect of unnatural gaiety or 
 callous indifference. 
 
 Emotion, on the other hand, especially in any extreme 
 degree, is much more rarely, if ever, counterfeited or as- 
 sumed on these occasions. If exhibited at all, it is almost 
 sure to be a genuine manifestation. And that it should be 
 exhibited, and visibly, in some degree, is what is looked for as 
 a natural consequence of the position of the accused, even by 
 those who may be confirmed in the belief of the entire 
 falsity of the charge against him. But the emotion, which 
 may be thus felt and evinced by an innocent person, is, 
 nevertheless, (as just observed,) usually restrained within 
 decorous limits, as well from a sense of self-respect, as from 
 the inward and self-sustaining power admitted to belong to 
 a consciousness of innocence. 
 
 Supposing it clearly ascertained that the manner is as- 
 sumed, and that the calmness exhibited, or attempted to be 
 exhibited, is not in fact felt, it does not necessarily amount 
 to an unfavourable circumstance against the accused, where 
 there is nothing in the manner itself of an offensive or 
 grossly unnatural character. But where it takes the coarse, 
 forced and obtrusive shapes sometimes assumed by parties 
 
CHAP. I.j DEMEANOUR DURING TRIAL. 505 
 
 accused of the highest crimes, it may well be considered as 
 affording grounds for unfavorable inferences. Supposing, on 
 the other hand, the demeanour to be a true representation 
 of the state of the mind, there is usually not much difficulty 
 in distinguishing between the respectful composure which 
 may be supposed to be characteristic of innocence, and the 
 gross, reckless, and sometimes brutal bearing of guilt. 
 
 If any thing, approaching the character of a general 
 proposition, were to be laid down as a result of actual ob- 
 servation upon this subject, it would seem to be this ; — that 
 restrained emotion, under the circumstances of a public trial, 
 is the natural and usual attitude and deportment of inno- 
 cence ; while the evidences of guilt are to be sought near 
 the two extremes of overpowering agitation and total callous- 
 ness. So constantly, however, is demeanour liable to be af- 
 fected by peculiarities of character and temperament, not 
 necessarily connected with moral delinquency, that even 
 such a rule as this would be found to be subject to more or 
 less exception in its application. 
 
 But, beyond the limits which have hitherto been kept in 
 view, the demeanour of a prisoner on trial may, with far less 
 reservation, be admitted into the number of those circum- 
 stances which go to make up, in the •whole, a satisfactory 
 impression of his guilt. Thus, an openly audacious, defiant, 
 and insolent bearing towards the court itself, exhibited 
 either in stubborn refusal to comply with the ordinary 
 solemnities of the trial, or in indecent interruptions of the 
 proceedings, or in disrespectful remarks addressed to the 
 court or jury, or in denunciations and threats uttered against 
 the witnesses or counsel for the prosecution, will scarcely 
 admit of any other than an unfavorable interpretation. It 
 exhibits the natural action of a depraved and reckless mind, 
 exasperated at being held in the grasp of justice, and deter- 
 mined to offer every sort of impediment to the progress of 
 investigation and the development of truth. The truly inno- 
 
506 SUBSEQUENT CIRCUMSTANCES. [PAET U. 
 
 cent, however keen may be his sense of wrong and oppres- 
 sion, in view of the humiliating position which he is forced to 
 occupy before his fellow men, is never found to array him- 
 self in this open and insolent hostility to the course of justice, 
 in the very seat of judgment. 
 
 But it is to be further observed, that, whatever be the 
 inclination of the mind from which these unfavorable mani- 
 festations are found to proceed, they are usually kept under 
 restraint while in the presence of the court, and until the 
 •great pending question is settled .by the rendition of the 
 verdict. This brings us to consider certain instances of de- 
 meanour out of court, and after verdict, when these restraints 
 are removed, which, though not capable of being presented 
 in any form of judicial evidence, enter, nevertheless^ like 
 confessions at the place of execution, into the general mass 
 of facts which serve to confirm any intelligent observer in 
 the opinion of the guilt of the accused. With one or two 
 of the worst of these examples, the catalogue of criminative 
 circumstances, which has so long occupied our attention, will 
 now be finally brought to a close. 
 
 Rushes case (a) may be selectCid as an instance of out- 
 rageous behaviour, on the part of an arraigned prisoner, 
 reaching to the length of absolute ferocity. During the 
 night after the evidence for the crown was concluded, the 
 prisoner's conduct was violent and ferocious in the extreme. 
 He vowed revenge against the witnesses who had given evi- 
 dence against him ; and such were his threats and conduct, 
 that it was feared he might lay violent hands on his own 
 life, or attack any one within reach, if the means were 
 placed in his power. So that, on his being brought into 
 court, the next day, extraordinary precautions were taken 
 to remove any objects that might be converted into means of 
 mischief, (a) 
 
 (a) Regina v. Rush ; reported in Burke'3 Celebrated Trials, connected with 
 
 the Upper Classes, 458—520, under the title of " The Stanfield Hall murders." 
 
 (1/ ) The reporters were actually requested by the governor of the gaol, to 
 
CHAP. I.] DEMEANOUR DORING TRIAL. 507 
 
 Bat even this case, prominent as it stands in its kind, falls 
 far short of exhibiting the full length to which the ferocious 
 passions of revenge and despair are capable of urging the 
 aiind over which they have obtained the mastery. There 
 was no excess actually committed by the prisoner, before 
 the court. For an example of the extreme class, where the 
 sanctities of the court-room were openly defied and profaned, 
 in one attempted and another actual murder, in the very 
 presence of the judge and jury, we must refer, in conclu- 
 sion, to an American case of a date as recent as 1853 ; — 
 the North Carolina case of the State v. Carawan. (a) 
 In this case, there appears to have been no previous exhi- 
 bition of physical excitement and violence ; no angry utter- 
 ance of denunciations or threats ; nor any visible indication 
 of a malignant design : but the criminal cherished his terrible 
 purpose in secrecy and silence, until the moment after the 
 verdict of guilty was recorded ; when, suddenly drawing a 
 pistol from his bosom, he fired at one of the leading counsel 
 for the prosecution, (though, happily without effect,) and 
 then drawing another, blew out his own brains, in the pris- 
 oner's box ; the sheriff vainly attempting to stay his hand. (&) 
 
 keep their pen-knives out of the prisoner's reach. And the rows of small iron 
 spikes, at the rear of the dock, and across the narrow passage between it and 
 the body of the court, were covered over with stout pieces of wood fastened 
 down over the points, so as to render the spikes useless in any attempts which 
 the prisoner might make on himself or others. Burke's Trials, 501. 
 
 (o) Superior Court of Law of Beaufort County, North Carolina, Fall Term 
 1853. 
 
 (6) This most extraordinary scene is graphically described in the following 
 extract from the pamphlet report of the trial. 
 
 " The clerk entered the verdict, and then said to the jury; ' Gentlemen of 
 the jury, hearken to your verdict, as the court has recorded it. You say that 
 George Washington Carawan is guilty of the felony and murder whereof he 
 stands indicted. So say you all.' 
 
 While the clerk was reading the verdict to the jury, the prisoner, who still 
 looked calm, was observed, with great deliberation, to unbutton his vest, and 
 open his shirt-bosom; but his countenance betraying no evil purpose, the 
 movement excited no suspicion. 
 
 His Honor, turning to the jury, remarked; ' Gentlemen of the jury, you are 
 
508 EXCULPATOBY EVIDENCE. [PART H. 
 
 SECTION XXIX. 
 
 Exculpatory Circumslantial Evidence, and its materials; 
 including- the Infirmative Circumstances and considera- 
 tions applicable to Criminative Evidence. 
 
 "We have, thus far, considered the principal facts or cir- 
 cumstances which are found to occur in criminal cases, and 
 may be used in evidence for the purpose of establishing 
 charges of guilt. In other words, we have endeavored to 
 present the elements or materials of circumstantial evidence, 
 as it may be employed in behalf of the prosecution, on a 
 criminal trial. 
 
 We are next to consider that division of facts or circum 
 stances which may be used as materials of exculpatory evi- 
 dence ; or that kind of evidence of which an accused party 
 
 disoliarged.' Then, turning from the jury to the bar, he said; ' The court will 
 take a recess of one hour.' 
 
 At this moment, the prisoner drew a single-barrelled, self-oooking pistol from 
 his bosom, rose from his seat in a half-standing posture, leaned forward, 
 thrusting his arm between the heads of Messrs. Bryan and Saiterihwaite, 
 took deliberate aim at Mr. Warren, (who, with Mr. Solicitor StevcTisott, was 
 standing six feet in front of him,) and fired. The ball struck just above the 
 heart, and passing through the lappel of his coat and cutting the cloth on the 
 breast, struck the padding and fell to the floor. 
 
 The prisoner dropped this pistol, and instantly taking another, applied it to 
 his temple. Mr. Joseph J. Hinton, deputy-sheriff, observing the movement, 
 seized his arm, and pulled it down to the railing of the box, but could get it 
 no further. During this struggle, the prisoner , with great coolness, leaned his 
 head against the muzzle of the pistol and fired ; the ball entering the right side 
 of the skull, considerably behind and somewhat above the ear, and traversing 
 the brain until it lodged just over the left eye. The prisoner dropped on his 
 seat in the prisoner's box, with his right arm hanging over the railing, and his 
 head fallen upon his bosom, bleeding profasely. 
 
 His Honor left the bench, and the jury their seats, every thing being in the 
 wildest confusion." Pamphlet Report, 115. 
 
CHAP. I.] EXCULPATORY FACTS PROVED. 509 
 
 is always entitled to avail himself, by way of defence against 
 a criminal charge. 
 
 These facts or circumstances will be found, on examina- 
 tion, to be of two principal kinds : first, facts or circumstan- 
 ces actually proved; and, secondly, facts or circumstances 
 not proved nor requiring to be proved, but such as may be 
 supposed to have existed ; being in the nature of reason- 
 able probabilities or possibilities, to the benefit of which, 
 under certain conditions of the criminative facts, an accused 
 is always entitled. 
 
 SECTION XXX. 
 Exculpatory Facts or circumstances, actually Proved. 
 
 Exculpatory facts of this class may be made to appear, 
 either from evidence expressly adduced on the part of the 
 defence, for the purpose ; or from the evidence adduced on 
 the part of the prosecution, either as it stands delivered by 
 the witnesses on that side, or as it is qualified by their cross- 
 examination. In regard to their efi'ect as evidence, they 
 may be divided into three principal classes : first, such as go 
 to show the insufficiency of the evidence to prove the crimi- 
 native facts alleged and relied on ; secondly, such as go to 
 disprove or overthrow the criminative facts proved ; and, 
 thirdly, such as go to avoid the effect of the criminative 
 facts proved, by explanations consistent with the truth of 
 their existence. 
 
 I. Exculpatory Facts, going- to show the insuflSciency of 
 the criminative evidence adduced. 
 
 An accused party is always at liberty to take the prelimi- 
 nary and fundamental ground, that the facts relied on by the 
 
510 EXCULPATORY FACTS LEADING [PABT II. 
 
 prosecutor, and contended to have been proved by his wit- 
 nesses, have not, in reality, been made to appear ; the suffi- 
 ciency of the medium of the evidence being the point on 
 which it is assailed. Thus, if he can show, to the satisfac- 
 tion of the jury, from a course of cross-examination or other- 
 wise, that the'witness' means and opportunities of knowing 
 the facts to which he has testified, were, in reality imper- 
 fect ; or that his impressions of such facts were in them- 
 selves indistinct; or that his general capacity of accurate 
 observation and remembrance was and is limited or defec- 
 tive ; (a) it will afford a ground for the inference that the 
 witness may have been mistaken, or was probably mistaken, 
 in his impressions of the facts, as he has represented them. 
 Accordingly, where a witness has testified that he saw an 
 object, or heard a sound, about the time and near the place 
 at which the supposed crime was committed ; or that he 
 heard the accused himself utter certain expressions, (such 
 as declarations of intention or threats, before a crime, or 
 confessional statements after it ;) or that he saw him in a 
 certain situation, about the time of its commission ; the 
 accused may show either that the witness' sense of sight or 
 hearing was, in itself, defective ; or that the attending cir- 
 cumstances were such that he could not have seen or heard 
 distinctly and accurately, (ft) Where 'the identity of the 
 accused comes in question, such exculpatory evidence is of 
 the greatest importance. So, he may assail, not only the 
 ability, but the integrity of the witness, with the same gene- 
 ral view. Both these courses are constantly pursued, in 
 cases of direct as well as circumstantial evidence. 
 
 II. Exculpatory Facts, going to disprove or overthrow 
 the criminative facts proved. 
 
 Supposing the criminative facts alleged and claimed to be 
 proved, unassailable on any of the preliminary grounds just 
 
 (a) See 1 Stark. Evid. 459—461. 
 (6) See yd. 460— 463. 
 
CHAP. I.] TO NECESSARY INPEREXCES. 511 
 
 mentioned, the accused may relieve himself from their effect 
 as evidence, by proving one or more facts or circumstances 
 of an opposite character or leading to opposite results. 
 And the facts or circumstances which may be used for this 
 purpose, may be subdivided into two classes : those which 
 lead to necessary inferences ; and those which lead to prob- 
 able inferences. 
 
 1. Exculpatory facts, leading to necessary inferences. 
 
 If, in answer to a criminal charge, whether supported by 
 direct or circumstantial evidence, the accused can affirma- 
 tively show but a single circumstance leading to the neces- 
 sary inference that the crime charged could not possibly 
 have been committed by him, it will be sufficient to over- 
 throw the whole accusation, however clearly it may have 
 otherwise been established. A strong case of this kind is 
 mentioned by Sir Matthew Hale, as having occurred on a 
 trial before himself, in the county of Sussex. A man, de- 
 scribed in the learned judge's own words as " an ancient 
 wealthy man of about sixty-three years old," was indicted 
 for a rape which was fully sworn against him by a young 
 girl, of fourteen years old, and a concurrent testimony of 
 her mother and father, and some other relations. The de- 
 fence set up by the accused was, that a bodily infirmity to 
 which he had been subject for upwards of seven years, 
 rendered the commission of the crime by him a physical 
 impossibility : and, upon a private examination of his per- 
 son by the jury, they were so satisfied of the truth of the 
 defence, that they at once acquitted him. (a) • 
 
 Alibi Evidence. 
 
 Again, if the accused can make it appear, that, at the 
 very time when the crime charged is alleged to have been 
 committed, (it being of a nature to require his personal 
 
 (a) 1 Hale's P. C. o. 58. p. 635. 
 
612 EXCULPATORY FACTS. [PART IT. 
 
 presence,) he was in another place, a result of the same 
 kind will be estal)lished : founded on the obvious impossi- 
 bility that the same person could have been in two different 
 places at the same time. This species of defence, familiarly 
 known as an alibi, is so constantly resorted to, on trials for 
 crimes, as to call for a somewhat extended notice under the 
 present head. 
 
 A leading rule in the application of this description of 
 evidence, is, that the time relied on, and in which the value 
 of the evidence essentially consists, must correspond closely 
 with the time at or during which the offence is proved to have 
 been committed. Where such time has been fixed to a par- 
 ticular day, hour and minute, if the accused can show that, 
 at that same particular hour and minute, he was elsewhere, 
 the consequence is clear, without the help of any process of 
 reasoning. The fact of his presence at the scene of crime 
 is incredible on its face, and incredible in toto ; (a) and 
 hence the conclusion is strictly unavoidable and necessary, 
 that he could not possibly have committed the offence 
 charged. 
 
 But the proof, on the part of the prosecution, is rarely 
 made, or capable of being made, to this degree of exactness. 
 A space between two consecutive hours is the nearest ap- 
 proach to it that is ordinarily practicable ; and sometimes, 
 all that can be proved is that the crime was committed, or 
 must have been committed, during a space of time embracing 
 several hours : as, during a night or part of a night, or 
 during a forenoon. In such cases, the alibi evidence relied 
 on, in order to be effectual, must be applied to and cover the 
 whole of such period. (6) A good illustration of this posi- 
 tion is presented in Richardson' s case, (c) It was satisfac* 
 torily proved, in that case, that the crime had been com- 
 
 (a) 3 iSenth. Jud. Evid. 375. 
 (A) Wills, Giro. Evid. 188. 
 (c) AuU, p. 244, 246. 
 
CHAP. I.] ALIBI EVIDENCE. 513 
 
 mitted during the forenoon of the day specified. To meet 
 this, the prisoner adduced evidence to show that, during that 
 same forenoon, he was engaged at work, with his fellow- 
 servants, at some distance from the cottage which was the 
 scene of the crime. Here was a seemingly entire corres- 
 pondence between the two facts," in the important particular 
 of time ; bringing the facts themselves in direct opposition 
 to each other. But, on a closer scrutiny of all the circum- 
 stances, it was found that the accused had not been in com- 
 pany with his fellow-workmen, during the whole of the fore- 
 noon in question ; but that there was an interval of about 
 half an hour, during which ho had absented himself from 
 them. This apparently short interval served to destroy the 
 effect of the whole evidence. For it was satisfactorily 
 shown that it wa.s long enough to have admitted of his 
 going to the cottage, committing the crime and returning to 
 his companions ; and this was subsequently proved to have 
 been the actual fact, by the prisoner's own confession. So, 
 in a case where an arson had been committed at night, the 
 prisoners offered to prove that they were in bed at twelve 
 o'clock, and were found in bed the next morning. But, it 
 appearing that the distance to the scene of crime was only 
 two miles, so that they might have risen, committed the 
 deed and returned to bed, the defence was disregarded, (a) 
 In other words, the accused, in such cases, must account for 
 himself during the whole of the period to which the evidence 
 is applied. If there be an interval unaccounted for, and it 
 is found that he might have committed the crime during that 
 interval, the evidence is deprived of the whole quality in 
 which its characteristic efiBcacy consists, and consequently 
 goes for nothing. 
 
 Where the time proved as that of the commission of the 
 crime, and that shown by the alibi evidence, are not identi- 
 cal, but only proximate to each other, the inference dedu- 
 
 (a) Rex V. Fraur, Alison's Princ. 625. WiUs, Giro. Evid. 133. 
 
514 EXCULPATOKY PACTS. [PART II. 
 
 cible from a view of both periods in connection, is not al- 
 ways one of necessity and certainty, rendering the fact of 
 the party's presence at the scene of crime, incredible under 
 any circumstances, or incredible in toto ; but often one of 
 improbability, more or less strong, rendering the fact of 
 presence incredible in degree only, and according to circum- 
 stances, (a) The evidence on both sides, taken together, 
 does not represent the party as having been in both places 
 at once, but only as having been, at the one time, in the one 
 place, and, at the other time in the other. And the ques- 
 tion to be considered is, whether the degree of rapidity with 
 which he is required to have passed from one place to the 
 other, be credible under all the circumstances of the case. (6) 
 
 The two circumstances, the aid of which is indispensable 
 in determining this question, — whether it were actually and 
 physically impossible, and therefore at once incredible, that 
 the party was, or could have been, at both places, consecu- 
 tively, — are, the distance between the two places, and the 
 rapidity with which the party could have moved from one to 
 the other, (c) The interval between the two periods of 
 time may be so short, and the distance in space compara- 
 tively so long, as to render the inference of impossibility 
 as necessary a one, and as immediately perceptible, as if 
 the two periods had been identical. In other cases, the 
 facts merely raise a question of more or less easy solution. 
 Sometimes, this question is one of such nicety, as to require 
 so minute a circumstance as a difference in time-pieces, to 
 be carefully taken into view. (cZ) 
 
 " The credibility of an alibi" observes a learned writer, 
 
 (o) 3 Benth. Jud. Bvid. 375. 
 
 (6) Id. Ibid. 
 
 (c) See what was said under the head of concomitant circumstances, ante, 
 pp. 384—387. 
 
 (rf) See Cowper's case. (13 State Trials, 1113, 1114;) Thornton's case, 
 (Celebrated Trials, 99, 102;) the State v. Avery, before the Supreme Court 
 of Rhode Island, May, 1833. 
 
CHAP. I.] ALIBI EVIDENCE. 615 
 
 " is greatly strengthened, if it be set up at the moment 
 when the accusation is first made, and consistently main- 
 tained throughout the subsequent proceedings. On the 
 other hand, it is a material circumstance to lessen the weight 
 of a defence of this kind, if it be not resorted to, until some 
 time after the charge has been made ; or if, having been 
 once resorted to, a different and inconsistent defence is 
 afterwards set up." (a) 
 
 But the defence of an alibi, though in itself most reason- 
 able and just, it being sometimes the only defence which an 
 innocent person can make against an unfounded charge, (i) 
 is liable to an objection, the truth and force of which. have 
 been exemplified in so many actual instances, as to occasion 
 it to be viewed with peculiar suspicion and distrust. This 
 objection consists in its great liability to abuse, growing out 
 of the ease with which it may be fabricated and sustained 
 by false testimony, and the difficulty with which such fraud 
 and perjury are detected, (c) 
 
 There are two principal ways in which the fabrication of 
 this species of defence is found to be effected. First, it is 
 effected by collitsion and concert between the accused, or 
 some one acting in his behalf, and one or more individuals, 
 who, " for the sake of hire, or an unrighteous friend- 
 ship," (<£) profess themselves willing and ready to testify to 
 the necessary fact, though actually false, and known to be 
 so ; and who accordingly venture upon the course of direct 
 and wilful perjury, (e) Secondly, it is effected by inducing 
 
 (o) Wills, Cms. Erid. 183. 
 
 (6) Foster's Crown Law, p. 368. 
 
 (c) See the observations of Cowen, J. in The People T. Rathbun, 21 Wen- 
 deU, 509, 519. 
 
 (d) 3 Benth. Jud. Evid. 379. 
 
 (c) A case is reported, where a gentleman was robbed, and swore positively 
 to the prisoner, who, nevertheless, was acquitted; the completest alibi being 
 proved. About a year afterwards, the prisoner confessed to the prosecutor 
 that he had committed the robbery, and that the alibi was concerted. Londoa 
 Med Oaiette, vol. viii., p. 86. Wharton's Am. Crim. Lair, 333. 
 
516 EXCULPATORY FACTS. [PiET II. 
 
 a person Trho is found to have honestly and innocently 
 received an erroneous impression, to state such impression 
 as a fact, in the character of a witness under oath. The 
 former of these courses will require no explanation; the 
 latter may be made the subject of a few additional remarks. 
 
 The falsity of an impression which may have been inno- 
 cently produced on the mind of an individual professing his 
 willingness to testify to the fact of an alibi on the part of 
 the accused, or actually brought forward for that purpose, 
 may regard one or more of the three essential particulars 
 of which the evidence always consists : namely, the person 
 of the accused ; the time, or duration of the time, of his 
 alleged presence at the place designated ; and the place 
 itself. 
 
 First ; the proposed witness may be mistaken as to the 
 individual whom he alleges he saw (a) at the time and 
 place in question, being misled by resemblances which often 
 deceive an observer, or by the insufficiency of the light under 
 which, or the shortness of the interval during which the 
 observation was made. (6) But this source of error would, 
 
 (a) The impression that a particular accused individual was present at a 
 particular place and time, is sometimes merely an inferenet from observed 
 facts, and not the result of actual view of his person. An erroneous impres- 
 sion created in this indirect way, was taken advantage of by the accused, in 
 the case of Major Strangwayes, A. D. 1657; a case the more remarkable, as 
 the defence of a false alibi, through means of this kind, had been fixed upon 
 iby the accused, before the commission of the crime; and was actually fabri- 
 cated by himself, in advance, by laying a train of circumstances on purpose 
 to produce the false impression desired. The artifice used has already been 
 alluded to. He prevailed upon a friend, whom he introduced clandestinely 
 into his chamber, to personate him, during his absence, by walking about the 
 room, so as to be heard of all the family; thereby inducing them to suppose 
 that he himself was actually present in the apartment. And the contrivance 
 was so far successful, that they testified to such presence, as a fact, before the 
 magistrate. 5 London Legal Observer, 90, 92. 
 
 (A) As to the liability to mistake, in matters of personal identity, see the 
 subject of identification, post. The identity of the individual, supposed to 
 have been the accused, who was sworn to have been seen near the scene of the 
 crimej shortly before the time of its commission, and also previously, going m 
 
CHAP. I.] ALIBI EVIDENCE. 517 
 
 of course, be excluded in cases where the accused was well 
 known to the observer, and in his actual company, especially 
 for a considerable period. 
 
 Secondly, the witness may be mistaken as to the fundsr' 
 mental particular of time; and this perhaps presents the 
 most frequent and fruitful source of erroneous impressions. 
 It has already been mentioned, (a) as a result of general 
 observation, that men neither note nor measure time with 
 much precision, in connection with any occurrence they may 
 incidentally witness, particularly where it does not concern 
 their own affairs, even where the occurrence itself is ob- 
 served with some minuteness. The impossibility, to most 
 persons, of doing this without the aid of a time-piece, will be 
 conceded. But, supposing the particular hour and minute 
 of the day or night, at which the witness saw the accused 
 at a place designated, accurately stated and (what is of 
 equal importance,) correctly remembered, it may happen, 
 especially after a considerable lapse of time, that the day 
 itself may come to be mistaken for another, as by being 
 confounded with the day immediately preceding or follow- 
 ing ; a circumstance which often happens in the recollection 
 of ordinary events, (i) This assignment of the occurrence 
 of events, true in themselves, to a wrong- day, has been men- 
 tioned as an expedient sometimes resorted to, for giving 
 effect to a defence of alibi which has been wholly fabri- 
 cated, (c) ^ 
 
 Mistakes as to the place where the accused was seen, or 
 •is supposed to have been seen, are much more rare ; though 
 easily possible, under peculiar circumstances. — ^ 
 
 In consequence of this liability to perversion, mistake and 
 
 a, direction towards it, became a very important point in the case of The Stale 
 v. Avery, and was made the subject of much testimony on both sides. 
 
 (a) Ante, p. 102. 
 
 (ft) In common life, it often happens that the hour of a day when an occur- 
 rence took place, is more accurately remembered than the day itselC 
 
 (c) Wills, Cire. Evid. 83. 
 
618 EXCULPATORY PACTS. [PART 11. 
 
 abuse, it has come to be generally conceded that alibi evi- 
 dence is to bo received with uncommon caution, {a) It is, 
 indeed, hardly questionable, that a defence which, where it 
 is allowed to prevail, is so summary and overwhelming in its 
 effect, — operating, by means of a single fact, sometimes 
 sworn to by a single witness, to destroy the effect of a 
 combination of facts, testified to by a number of witnesses, 
 and constituting (but for such alibi,') a reasonably con- 
 vincing body of evidence, — should be required to be estab- 
 lished in the clearest manner, and by witnesses of unexcep- 
 tionable character. In cases where it is founded in honest 
 mistake, such mistake may sometimes be detected and shown 
 by a judicious course of cross-examination ; and an important 
 point to be always ascertained is, whether the witness' 
 statement, as to the person, time or place sworn to, be de- 
 rived from positive knowledge of the fact, (as by having 
 observed, at the time, the particular day and hour, in its 
 immediate connection with the person seen, and by having 
 retained it continuously in memory, afterwards ;) or be only 
 the result of comparison with other circumstances, and of 
 inference from them, by means of remembrances subsequently 
 called up. (&) But where the defence has been fabricated, 
 in the worst sense, or with an express fraudulent intsnt, and 
 resolutely maintained by a skilful concert among several, 
 
 (a) Foster's Crown Law, 368. 2 MaoNally's Evid. 467. 
 
 (h) The rlay of an alibi is often stated by a witness, in this way of com- 
 parison and inference. In the English case of Hawkins and Simpson, who 
 were indicted for robbing the mail on the 16th of April, 1722, Hawkins, in his " 
 defence set up an alibi ; to prove which, he called one Fuller, who deposed 
 that Hawkins came to his house on Sunday the 16th of April, and lay there 
 that night, and did not go out until the next morning. (The robbery was 
 committed about two o'clock on the morning of the 16th.) Being asked by 
 the court, how he came to remember that it was the 16th of April, the witness 
 referred to a receipt, (which was produced in court,) which he had given 
 Hawkins at his house on the 10th of April, and said that he very well remem- 
 bered tl"i.at Hawkins lay at his house the Sunday night following. The pris- 
 oners, however, were convicted and executed. Theory of Presumptive Proof, 
 Appendix, Case 9. 
 
CHAP. I.J ALIBI EVIDENCE, 519 
 
 there is rarely any adequate means of exposing its real 
 character. Direct impeachment of the veracity of the wit- 
 aesses, though seldom practicable, is the only effectual ex- 
 pedient that can be resorted to ; (a) and, in some recorded 
 'iascs, it has been employed with effect. (6) There are 
 leveral instances, however, in which alibi evidence, though 
 riven in the most positive terms, has been wholly disregarded 
 ■yy the jury, in the exercise of their right to disbelieve the 
 witness, even where his character has not been formally 
 impeached, (c) The propriety of rigorously sifting this 
 species of evidence has been well illustrated by Mr. Ben- 
 t/iam ; and there is much truth in his observation that the 
 escaping by evidence of this kind, when unsifted and un- 
 examined, never fails to leave a stain on a man's character, 
 which a thorough discussion would effectually wash out. (rf) 
 " An unsuccessful attempt to establish an alibi," observes 
 Mr. Wills, " is always a circumstance of great weight 
 against a prisoner, because the resort to that kind of de- 
 fence implies an admission of the truth and relevancy of 
 the facts alleged, and the correctness of the inference 
 drawn from them, if they remain uncontradicted." (e) 
 
 (a) Inquiry into the characters of the witnesses, is the great remedy re- 
 commended by Mr. Bentham for the abuses which he considers inseparable 
 from the allowance of alibi evidence. 3 Jad. Evid. 376 — 379. See his sug- 
 gestions of various methods of obtaining opportunities for making such in- 
 quiries. Id. ib. 
 
 (6) See Harmon's oaje, (12 State Trials, 833, 855, 856,861,862, 863,) in 
 which two of the principal witnesses, who swore positively to the fact of an 
 alibi, were proved to be keepers of a house of ill-fame, and another to have 
 been convicted of cheating and forgery. 
 
 (c) See the case of Bishop, Williams, and May, 2 London Legal Observer, 
 (Monthly,) 81. In Coleman's case, in which the prisoner was convicted and 
 executed, but his innocence subsequently established, an alibi was proved, but 
 the evidence was not credited by the jury. 5 London Legal Observer, 830. 
 
 ((f) 3 Benth. Jud. Evid. 379. A prominent American case, in which an 
 alibi was made a, principal ground of defence, and in which the prisoner was 
 acquitted, was that of The People v. Richard P. Robinson, tried at the New 
 Fork Oyer and Terminer, June, 1 836. 
 
 (£) Wills, Cire. Evid. 83. 
 
520 EXCULPATORY FACTS. [PART II. 
 
 The subject-matter of the defence of an alibi is most 
 commonly the person of the accused. Bat it may also be 
 the person of the individual upon whom the crime has been 
 committed, (a) as of the deceased, in a case of homicide or 
 murder. A marked instance of the use of alibi evidence, 
 in the latter and more unusual form, occurred in the case of 
 Commonwealth v. Webster ; (6) which may also be referred 
 to, as a case of alibi evidence, supported by the testimony 
 of several witnesses, and yet founded in entire though 
 honest mistake. 
 
 2. Exculpatory facts, leading to probable inferences. 
 
 In the next place, an accused party may take advantage 
 of all such facts, (either proved by his own witnesses, or 
 appearing or extracted from the testimony of the prosecu- 
 tor's witnesses,) as, though not leading to the necessary 
 inferences demanded by circumstances of the class just men- 
 tioned, induce presumptions of greater or less strength, in 
 behalf of the defence, tending to repel, or neutralize, or at 
 least to weaken the' force of the presumptions derived from 
 the evidence for the prosecution. The basis of the pre- 
 sumption in this, as in the preceding class of facts, is the 
 inconsistenci/ of the exculpatory with tlie inculpatory facts 
 proved ; not a total and certain or manifest inconsistency, 
 commanding assent to its truth, but a partial and probable 
 inconsistency, commending itself to the judgment, as a 
 matter to be carefully weighed and considered. 
 
 Under this head, the following further sub-divisions of 
 exculpatory facts may be made : — particular physical facts ; 
 particular facts of conduct ; and the general fact of conduct, 
 
 (a) See 3 Benth. Jud. Evid. 370. And it may take a still wider range, 
 comprehending persons in gener:il, and even things. Id. ibid. 
 
 (b) Bemis' Report, 262, 267, 269, 271, 272, 273. See the observation of 
 Chief Justice Shaw, as to the application of tlie term alibi, in this instanoa. 
 Id. 475. 
 
CHAP. I.] EXCULPATORY FACTS. 521 
 
 as a habit or quality of the accused, or, in other words, his 
 moral character. 
 
 (V) Particular physical facts. 
 
 A single physical fact, affirmatively proved, may serve to 
 destroy, or at least to weaken the force of an otherwise 
 convincing body of criminative evidence. In a case in Eng- 
 land, where a man was tried for murder, by shooting, nnder 
 very suspicious circumstances, the presumption against him 
 was greatly weakened, if not entirely destroyed by the cir- 
 cumstance that six shots, extracted from the brain of tlie 
 deceased, all corresponded in weight with the shot known as 
 No. 3 ; while the shot in the prisoner's bag contained a mix- 
 ture of No. 2. and 3 ; and the charge in the gun was found 
 to contain the same mixture, (a) 
 
 And it may be observed, in general, that whenever physi- 
 cal coincidences are relied on for the prosecution, it is im- 
 portant that they should be closely examined, and rigidly 
 verified ; as they may turn out to be apparent merely, and 
 not real. 
 
 . (2) Particular facts of conduct, (b) 
 
 There are a few prominent circumstances, which so con- 
 stantly exhibit themselves as natural qualities of criminal 
 conduct, that where they do not appear in evidence, or 
 where their opposites are proved to have existed, they serve 
 to establish a moral inconsistency with the criminative facts 
 proved, leading to presumptions of greater or less strength 
 in favor of the accused. Under this head, may be enume- 
 rated the following : — acts serving to indicate a motive or 
 inducing cause to the commission of the crime charged ; 
 
 (o) Rex V. fVhiitall, Liverpool Spring Assizes, 1839. Wills, Circ. Evid. 
 130. 
 
 (6) These are, in many respects, identical with what were termed, on a, 
 previous page, moral circumstances. 
 
522 EXCULPATORY FACTS. [PAKT II. 
 
 secrecy of movement, while preparing to commit the crime, 
 or during the act of commission ; avoidance of mischief or 
 danger to the criminal's own person ; concealment or flight 
 after the commission of the crime ; and emotion on being 
 arrested, or charged with having committed it. If the cir- 
 cumstances show the existence of a strong motive to deter 
 from the commission of the crime ; or if it can be proved 
 that the accused did not avoid observation, when seen near 
 the scene of the crime ; or actually suffered in his own per- 
 son from what was considered the criminal act ; or did not 
 conceal his own person, or the physical objects or appear- 
 ances which are regarded as evidences of the crime ; or did 
 not fly from the scene of the crime.; (a) or did not, when 
 overtaken and interrogated or accused, betray any emotion 
 that could be referred to a guilty motive or consciousness : — 
 all these facts serve to establish conclusions more or less 
 inconsistent with the supposition of his guilt, according to 
 the case. (6) Thus, if, on a trial for arson with intent to 
 defraud an insurance office, it be proved, on the part of the 
 prisoner, that he had goods on the premises burned, worth 
 more than the amount of his insurance, such proof will be 
 evidence of a strong counteracting motive ; it being obvi- 
 ously for his interest that the property should not be de- 
 stroyed, (c) So, where a person, accused of murdering 
 another, is shown to have had a direct interest in the con 
 tinuance of the life of the deceased, a similar counteracting 
 motive will be indicated, (rf) So, if, on an indictment for 
 murder by poisoning, it is proved that the prisoner herself 
 had partaken of the poisoned food, and had become ill, in 
 consequence, it furnishes a ground of favorable presumption 
 
 (a) But see the deoUion in Tkt People v, Raihbun, 21 Wendell, 509. 
 
 (b) But they are, neTertheloss, to be always taken subject to the well ascer 
 tained general fact of the intrinsic inconsistency of criminal conduct with 
 itself. More will be said on this subject hereafter. 
 
 (c) i?ei V. Bi'ngftam, Horsham Spring Assizes, 1811 ; Wi;l9, CircEnd 125. 
 (rf) Rex v. Downing, Salop Summer Assizes, 1822; Wills, Giro. Evid. 137, 
 
 138 
 
CHAP. I.] FACTS OP CONDUCT. 523 
 
 in her behalf, (a) So, in a case, already cited, (i) where 
 one of two travellers who had put up at an inn, was mur- 
 dered by stabbing during the night, and robbed of his 
 money ; and the other, having left the inn early the next 
 inorning, and being from that circumstance suspected, was 
 pursued and overtaken, and his sword, on being drawn, was 
 found bloody ; the innocence of his countenance and be- 
 haviour, when he was apprehended, — ^his not deviating from 
 the direct road to the place which he, over night, described 
 himself to be travelling to, — and the money taken not being 
 found about him : — all these were so many exculpatory cir- 
 cumstances, tending to weaken the presumptions derived 
 from the criminative ones. And they were fully confirmed 
 as true, by the subsequent confession of the inn-keeper, that 
 he himself was the real murderer, (c) 
 
 In cases of charges of passing counterfeit money, the facts 
 of receiving the bills as good, in the regular course of busi- 
 ness, (d) and passing the note to an acquaintance, and 
 giving a true statement of the prisoner's business, (e) have 
 been considered as favorable to the prisoner. In charges 
 of knowingly receiving stolen goods, the following circum- 
 stances have been recognized as favorable to the prisoner : — 
 going, in the day-time, to a store but a few doors from the 
 store which had been robbed, and leaving the goods there, 
 for sale ; saying that he had more of the same kind of 
 goods ; saying that he would be present at an auction sale 
 of the goods ; leaving the original marks on most of the 
 goods ; and on being arrested, aiding in the arrest of the 
 thief, who, on examination, refused to answer. (/) And 
 
 (a) Regina v. Hawkins, Stafford Summer Assizes, 1839; Wills, 125. 
 
 (6) Ante, p 126, note. 
 
 (c) Braokeuridge's Law Miscellanies, 507. 
 
 {d) The People-!. 0' Bryan, 1 Wheeler's Crim. Cases, 21. 
 
 (c) The People v. Quackenboss, 1 Wheeler's Crim Cases, 91,93. But, in 
 this case, the criminative facts were very strong; and the prisoner escaped on 
 a defect in the indictment. Iil. 93, 94. 
 
 (/ ) The People v. Cochrane, 1 Wheeler's Crim. Cases, 81, 84. 
 
524 EXCDLPATOBY PACTS. [PAUT 11. 
 
 the following may be added : — part of the goods being found 
 in the prisoner's store, open to the view of those who called 
 in ; a number of letters, written with a pen on the bottom 
 of a dressing-box, (by which the owner was enabled to 
 identify it,) being suffered to remain ; with good character 
 as to honesty, (a) 
 
 But an accused party is not always confined to facts de- 
 rived from his own conduct, or illustrative of his own con- 
 duct or motives, but may sometimes avail himself of facts 
 of conduct on the part of the party claiming to have been 
 injured. Thus, in cases of alleged rape, if it appear that 
 the female concealed the injury for any considerable time 
 after she had opportunity to complain ; or if, in the words 
 of Sir Matthew Hale, " the place where the fact was sup- 
 posed to be committed, were near to inhabitants, or com- 
 mon recourse or passage of passengers, and she made no 
 outcry when the fact was supposed to be done, when and 
 where it is probable she might be heard by others ; these 
 and the like circumstances carry a strong presumption that 
 her testimony is false or feigned." (Jb) 
 
 (3.) General or habitual /aci of conduct, constituting moral 
 character. 
 
 An accused party is not only allowed to avail himself of 
 the inferences deducible from particular facts of conduct, 
 connected with the case under investigation, but is entitled 
 to prove the general or habitual tenor or quality of his cou- 
 duct, so far as it may be applicable to the particular case ; 
 or, in other words, to prove the possession of such a moral 
 character, as to raise a presumption in his behalf, to meet 
 the general affirmative presumption of his guilt. 
 
 (a) The People v. Teal, 1 Wheeler's Crim. Cases, 109, 201. But in this 
 case, the criminative facts were so strong that the prisoner was found 
 guilty. 
 
 (A) 1 Hale's P. C. oh. 58, p. 633. 
 
CHAP. I.] CHARACTER EVIDENCE. 525 
 
 " Character evidence," according to Mr. Benlham, " has 
 this in common with alibi evidence ; that it is, with the 
 utmost facility and clearness, distinguishable from every 
 other species of evidence." (a) The frequency with which 
 it is resorted to, as a means of defence against criminal 
 charges of all kinds, from the highest to the lowest, entitles 
 it to receive a somewhat particular notice, under the present 
 head. 
 
 The term " character " itself, it may be observed, is here 
 taken in a limited sense. By the character of an individual, 
 with the further designation of good or bad, is ordinarily 
 understood an assemblage of various moral qualities, which 
 are observed and known to be habitually manifested by him, 
 in his intercourse with others, and which stamp him, as it 
 were, with a particular designation or distinctive mark, (6) 
 exhibiting all that he is, morally. It has also the sense of 
 reputation, into which, as we shall presently see, character, 
 in the language of evidence, is constantly resolvable. 
 
 In extraordinary cases, as where the crime charged is of 
 an atrocious description, and the moral character of the 
 accused of a high grade in every respect, it may be advis- 
 able or necessary to present it in- this degree of fullness ; 
 especially where the object is to show that no motive to the 
 commission of the crime could possibly have existed ; the 
 possession of each moral quality shown, and especially of all 
 combined, serving to raise a general presumption of inno- 
 cence in respect to criminal charges of every kind. And 
 sometimes a still wider range may be taken, embracing the 
 circumstances of mental endowments or attainments, and 
 station, or social and professional position, in the general 
 mass of considerations tending to create a presumption of 
 innocence, (c) 
 
 (o) 3 Jud. Evid. 202. 
 
 (6) This is the radical meaning of the word. 
 
 (c) See ante, pp. 323—325. 
 
626 EXCULPATORY FACTS. [PART II. 
 
 But character, as it is allowed to be set up in the defen- 
 sive way already mentioned, is rarely exhibited, or required 
 to be exhibited, in any such breadth and fullness as this. 
 In most cases, it is resolvable into some particular moral 
 quality, the possession of which, as a general fact, is known 
 from observation, to lead to courses of conduct, the oppo- 
 sites of that involved in the particular crime charged ; and 
 the possession of -which, in the particular case, as shown by 
 habitual outward conduct, is therefore put forward as most 
 likely to render the truth of such a charge improbable : — for 
 example, honesty, to meet a charge of theft : chastity, to 
 meet a charge of rape ; and gentleness, to meet a charge of 
 violent or riotous assault. In this limited sense of the term 
 " character," (a) such an adaptation of the evidence to the 
 case, is, indeed, indispensable. On a charge of theft, it 
 would be obviously irrelevant and absurd to adduce evidence 
 of a humane disposition, with the view of relying upon it to 
 rebut the charge. And the rules of evidence are in strict 
 accordance with this view. (6) 
 
 The true foundation of these qualities undoubtedly con- 
 sists in the presence and habitual operation of virtuous 
 principles, which are voluntarily entertained, and observed 
 
 (a) Character, considered as a ground of defence in the law of evidence, is 
 constantly designated by the term " general," as distinguished from " par- 
 ticular." "The inquiry must be made with reference to the general char- 
 acter of the prisoner, for it is general character alone which can afford any 
 testofgeneral conduct," &o. 2 Russell on Crimes, 784. 1 Phill. Evid. 469, 
 470. 2 Stark. Ev. 366. Particular acts of conduct are not, ordinarily, al- 
 lowed to be given in evidence. Id. ib. Wharton's Am. Crira Law, 293, (ed. 
 1855.) But in another sense, it is not general, but particular character, as 
 explained in the text, and it is so expressly designated. " In such case, the 
 character sought to be proved mxist not be general, but such as would make it 
 unlikely that the defendant would be guilty of the particular crime with which 
 he is charged." Wharton's Am. Crim. Law, 294. 
 
 (6) Roscoe's Crim. Evid. 97,98 2 Russell on Crimes, 784. 1 Greenl. 
 Evid. § 54. Wharton's Am. Crim. Law, 294, 382. Douglass v. Tousey, 2 
 Wendell. 352. 
 
CHAP. I.J CHARACTER EVIDENCE. 527 
 
 as binding rules of life. But they depend also, in a con- 
 siderable degree, (like much of what is termed character, in 
 the broader sense,) upon physical and moral temperament. 
 They are, in other words, dispositions (o) or tendencies by 
 ■which the mind is inclined or swayed, with more or less of 
 permanence, in certain directions, in preference to others. 
 
 But character, thus reduced and narrowed to the limits 
 and dimensions of single moral qualities, is found to undergo 
 another modification, and a still more important oae, in pass- 
 ing through the medium of judicial evidence, or in becoming 
 evidence to a jury. It is the particular moral quality, not 
 necessarily as it absolutely exists, but as it appears, or has 
 appeared to exist. It is the exterior of life, which the 
 party habitually wears, or has worn, in his intercourse with 
 others ; as il becomes, or has become, a subject of observa- 
 tion, inference and ultimate opinion, on their part. It is 
 the grade or point at which he stands, in their estimation, 
 in that particular respect. It is, in short, his reputation (b) 
 among them, of possessing the quality in question. " Char- 
 acter for honesty," " character for chastity," are expressions 
 constantly employed in the examination of witnesses on 
 ci'iminal trials ; signifying the reputation of possessing, in a 
 greater or less degree, the particular quality indicated. 
 
 With this explanation of the meaning of the term, we 
 proceed to consider the principle involved in the application 
 and use of evidence derived from this source, or in what its 
 efficacy distinctly consists. 
 
 Supposing a " character " made out, on the part of the 
 
 (ff) " Character" is used by Mr. Benthar/l, in the sense of " disposition," 
 or rather, of " reputation for disposition." See his obseryations, 3 Jud. Evid. 
 190—192. 
 
 (&) Character and reputation are the same. Duncan, 3. in Kimmel v. 
 Kimmel, 3 Serg. & Rawle, 337. Character is a term convertible with com- 
 mon report. Gibson, J. Id. ib. " General character is the estimation in 
 which a person is held in the community where he has resided." Marcy, J. 
 in Douglass v. Tousey, 2 Wendell, 352, 354. 
 
628 EXCULPATORY FACTS. [PAET II. 
 
 accused, in the most satisfactory form, — that is, by the testi- 
 mouy of a competent number of witnesses, themselves of 
 known and unimpeachable characters, — the general fact, 
 thus established, is made use of as a ground for the infer- 
 ence of another general fact ; namely, the improbability 
 that an individual, bearing such a character, (say, for hones- 
 ty,) could have become guilty of the particular crime charg- 
 ed, (say theft.) The reasoning is presumptive throughout, 
 and may be considered as consisting of the following suc- 
 cessive inferences. First, the outward deportment which 
 has been observed to exhibit itself with so' little variation as 
 to have given rise to a reputation, could not have been 
 merely fortuitous or occasional, in its occurrence or exhi- 
 bition, but must be referred to the operation of some perma- 
 nent, internal, determining cause ; be that cause a moral 
 principle, or a natural disposition or habit, having the force 
 of a principle. Secondly, a moving and controlling power, 
 like this, once established in the mind or moral nature, and 
 the existence and action of which are proved by the fruits 
 of outward conduct, continues to exist, and to operate, and, 
 of course, to exhibit itself in similar fruits of conduct. In 
 other words, the man who has acted honestly, in ninety-nine 
 cases, so far as the observation and opinion of those ac- 
 quainted with him are concerned, will not, in the hundredth 
 case, abandon the course he has so long pursued, and become 
 dishonest ; or, supposing the hundredth case to be the one 
 under investigation, did not in fact, abandon such course for 
 its opposite, (a) The presumption, in this form, is nothing 
 more than the simple one of continuance, already described 
 as one of the most general presumptions in existence. (6) 
 It is a presumption both of fact and law, that persons as 
 
 (a) *' It is general chavaoter alone which can afford any test of general con- 
 duct, or raise a presumption that the person whii had maintained a fair repu- 
 tation, down to a certain period, would not then begin to act a dishonest, un- 
 worthy part." 1 Phill. Evid. 469, 470. 
 
 (A) See ante, p. 21. 
 
CHAP. I.] CHARACTEa EVIDENCE. 629 
 
 ■well as things continue in the state in which they have once 
 been shown to exist, until the contrary is established by 
 evidence, (a) And this presumption, agaiuj in its applica- 
 tion to the present subject, is strongly aided by another pre- 
 sumption, or rather, rule of presumption, — that criminal 
 conduct of any kind is not to be presumed. (&) 
 
 It is in this way, and by such a course of reasoning, that 
 eiddence of character is made use of to aid in showing the 
 absence of a criminal motive, or to prove the inadequacy of 
 a particular criminal motive assigned ; as has been already 
 illustrated under the head of " motives to crime." 
 
 But, like the conclusions arrived at by courses of pre- 
 sumptive reasoning in general, the inferences deducible 
 from evidence of character are by no means infallible, but, 
 on the contrary, liable to more or less of error. The great 
 practical difficulty, subject to be encountered in the appli- 
 cation of this species of evidence, consists in the funda- 
 mental fact that the reputation for the possession of the 
 particular quality in question, is necessarily drawn from the 
 exterior conduct alone. And it is by no means uniformly 
 true that this exterior is the product and result of the in- 
 ternal causes assigned, upon the existence of which its 
 value obviously entirely depends. It is not less true of 
 psychological than of physical facts, that appearances are 
 often fallacious. Cases have occurred and continue to occur 
 in this country as well as abroad, in which crimes of the 
 highest grade have, beyond the possibility of doubt, been 
 proved against individuals, who, down to the very moment 
 of their discovery, have borne, even among those best ac- 
 quainted with them, not only good but irreproachable char- 
 acters. Men, whose reputation for uprightness in dealing 
 has been almost proverbial, have suddenly appeared as 
 
 (a) Best on Pres. chap. 6, § 136. 2 Evans' Pothier on Obi. 284. 1 Stark. 
 Evid. 36. 
 
 (A) Best on Pres. §§ 58—60. 
 
530 EXCULPATORY FACTS. [PART II. 
 
 forgers on the most extensive scale, (o) Men, with char- 
 acters for mildness and gentleness, and even the habitual 
 observance of religious duties, have appeared as the perpe- 
 trators of atrocious murders. (6) These instances of the 
 apparently sudden ruin of the whole moral character, which 
 have sometimes astounded entire communities, and arc other- 
 wise so inexplicable, become easy of explanation on the 
 assumption that what appeared to be the character, and was 
 so " reputed," was in fact a mere exterior, without any 
 real internal foundation. The ruin has not been sudden, 
 but the reverse. The real character, where it has ever been 
 good, has, for some time, been secretly corrupted, and would 
 have discovered itself sooner, had the proper occasion sooner 
 occurred. 
 
 The presumption, then, which is raised by evidence of 
 character, and which is resolvable into the belief that a man 
 who has habitually borne a good character, has acted, or 
 continued to act, in conformity with it, is a presumption, in 
 the true conditional sense of that' species of conclusion ; 
 that is, it stands good until the contrary is proved, (donee 
 probetur in contrarium.') Where the facts of the particular 
 case furnish this proof to the contrary, the presumption is, of 
 course, destroyed. And so, where the process is reversed, 
 and the proof of criminal conduct is made in the first in- 
 stance, without reference to character, (which is the actual 
 
 (a) In the caae of Fauntleroy, who was executed in England, for forgery, 
 in 1824, no less than sixteen witnesses, who had known the accused for 
 periods ranging from ten to twenty-seven years, bore testimony to his possess • 
 ing "the highest character for integrity;" "as high a character as man 
 could possess;" "a most excellent character," &o. Sex v. Fauntleroy, 
 Celebrated Trials, 19, 29. (Phil. 1835.) 
 
 (6) In the case of Captain Goodere, who was convicted of deliberate parri- 
 cide, in England, in 1741, the prisoner brought forward several witnesses to 
 testify to his good character, one of whom said that the prisoner constantly 
 attended his church twice a day, Sundays, and would be there, at prayers, al 
 most every day Rex v. Goodere and others, 17 State Trials, 1003, 1062 
 See, also, the cases mentioned, ante, pp. 320, 827. 
 
CHAR. 1.] CHARACTER EVIDENCE. 531 
 
 course of proceeding in judicial investigations ;) if such 
 proof be satisfactory and convincing in itself, the presump- 
 tion deducible from evidence of character cannot avail to 
 overthrow it. 
 
 Hence the rule, as practically laid down by the courts, 
 that character evidence is of no force or value except in 
 doubtful cases. If the case hangs in even balance, char- 
 acter should make it preponderate in favor of the accused. 
 But if the evidence of guilt be complete and convincing, 
 testimony of previous good character cannot and ought not 
 to avail, (a) This rule, however, is not to be construed to 
 exclude the admission and due consideration of evidence of 
 character, even in clear cases. (6) 
 
 (a) LotA Ellenborougk, in Rex v. Davison, SI State Trials, 217 ; and in 
 Sex T. Wiiigh, Id. 1122. Story, J. in United States v. Freeman, i Mason, 
 510. Parsons, C. J. in Commonwealth v. Hardy, 2 Mass. 817. Shaw, C. J. 
 in Commonwealth v. Webster, Bemis' Report, 495. Savage, C. J. in The 
 People V. Vane, 12 Wendell, 78, 82. Freeland's case, 1 City Hall Recorder, 
 82, 83. The People v. Zirby, 1 Wheeler's Crim. Cases, 64. The State ». 
 Wells, 1 Coxe, 424. The Stater. Ford, 3 Strobhart, 517. 2 Stark. Evid. 
 365. WiUs, Cire. Evid. 181. 3 PhiU. Evid. (Cowen & HiU's notes. Van 
 Cott'3 ed.) Note 318, pp. 623, 624. 
 
 (6) See the remarks of Sir William Russell, in 2 Russell on Crimes, 785, 
 and of Mr. Serjeant Talfourd, as quoted in Wharton's Am. Crim. Law, 296, 
 297, (ed. 1855,) citing Dicken. Quar. Sess. 6th ed. 563. The learned Serjeant 
 dissents considerably from the views and language of the courts, as given in the 
 text; pronouncing the division of cases into clear and doubtful, independently 
 of evidence of character, to be " a sophism;" and maintaining that the force 
 of character, as an ingredient in the evidence, may be to " render that doubt- 
 ful, which would otherwise be clear." He admits, indeed, that " there may 
 certainly be cases so made out, that no character can make them doubtful; " 
 but adds, that " there may be others, in which evidence given against a per- 
 son, without character, would amount to conviction, in which a high character 
 would produce a reasonable doubt; nay, in which character will actually out- 
 weigh evidence which might otherwise appear conclusive." Uut this counter- 
 Yailing efficacy of evidence of character against strong and otherwise convin- 
 cing evidence of guilt, seems to be confined, for the most part, to oases of 
 larceny, (State v. Ford, 3 Strobhart, 517; Shaw, C. J. in Commonwealth v. 
 Webster, Bemis' Report, 495, 496,) which are peculiar in their kind, ajid in 
 which the accused often possesses no other means of defence than such as evi- 
 
532 EXCULPATORY FACTS. [PART II 
 
 What has been previously said of alibi evidence is, to a 
 considerable extent, true of evidence of character. Thus, 
 where character is relied on, as an exclusive defence, or in 
 the hope and expectation of its countervailing and neutral- 
 izing the effect of a strong body of criminative evidence, it 
 is reasonable to require that it should be made out in the 
 
 dence of character affords. Thus, the presumption of guilt, arising from the 
 mere fact of the possession of stolen goods, is often allowed to be borne down 
 by proof of character alone. See the reporter's note to Cockin's case, 2 
 Lewiu's C. Caa. 23-5, 237. And see 3 Phill. Evid. (Cowen & Hill's notes,) 
 Note 29.J, p. 482. But, even in these cases, if the proof of guilt be made quite 
 conolusire, by evidence of acts on the part of the accused, corroborating the 
 physical fact of possession of the goods, evidence of character will rarely avail. 
 The true doctrine on the subject of character evidence, was stated with much 
 discrimination and clearness by Chief Justice Shaw, in his charge to the jury 
 in the case of Commonwealths, Webster. "There are cases of circum- 
 stantial evidence," observed the learned judge, " where the testimony ad- 
 duced for and against a prisoner is nearly balanced, in which a good character 
 would be very important to a man's defence. A stranger, for instance, may 
 be placed under circumstances, tending to render him suspected of larceny or 
 other lesser crime. He may show, that, notwithstanding these suspicious cir- 
 cumstance), he is esteemed to be of perfectly good character for honesty in the 
 community where he is known ; and that nay be sufficient to exonerate him . 
 But 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 upon 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 in- 
 stance of accusations of a lower grade. Against facts strongly proved, good 
 character cannot avail. It is therefore in smaller offences, in such as relate to 
 actions of daily and common life, as when one is charged with pilfering and 
 stealing, that evidence of a high character for honesty would satisfy a jury 
 that he would not be likely to yield to such a temptation. In such case, where 
 the evidence is doubtful, proof of character may be given with good effect 
 But stiU, even with regard to the higher crimes, testimony of good ohni'acter, 
 though of less avail, is competent evidence to the jury, and a species of evi- 
 dence which the accused has a right to offer. But it behooves one charged 
 with an atrocious crime, like this of murder, to prove a high character, and by 
 strong evidence, to make it counterbalance a strong amount of proof on the 
 part of the prosecution." Bemis' Report, 495, 496. 
 
CHAP. I.] CHARACTER EVIDENCE. 533 
 
 clearest and most satisfactory manner, (a) There should 
 be no doubt in the minds of the witnesses, nor any conflict 
 in their opinions as expressed. And, in order to give the 
 testimony convincing effect, it is equally true, (as in cases 
 of alibi evidence,) that the character of the witnesses 
 themselves should be free from objection. (6) In practice, 
 however, much strictness is not always observed on this 
 point, although it would seem to be the more necessary from 
 the fact that it is not the usual practice to cross-examine the 
 witnesses, (c) 
 
 Although it is not permitted to introduce evidence of bad 
 character, on the part of the prosecution, in the first in- 
 stance, even for the purpose of showing a particular dispo- 
 sition or tendency to tlie commission of the act charged ; 
 yet, when the prisoner has once voluntarily offered his 
 character as a distinct subject of examination, and has actu- 
 ally put it in issue, by adducing evidence in relation to it, 
 the prosecutor may then call witnesses to impeach his char- 
 acter, in order to rebut and counteract such evidence, (d) 
 
 An accused party may defend himself, not only by proving 
 his own good character, which may be done in all criminal 
 cases, but also, in certain cases, by adducing evidence un- 
 favorable to the character of the complaining party, or the 
 party alleged to have been the subject of the crime and 
 injury charged. Thus, in cases of alleged rape, inquiries 
 
 (a) Shaw, C. J. in Commonwealth v. Webster, Bemis' Report, 495. 
 
 (6) Mr. Bentkam seems to have considered this to be a point particularly 
 TTorthy of attention in the admission of this species of evidence. In his 
 opinion, no evidence of character, good or bad, ought to be admitted, without 
 power to the judge, (if he thinks fit,) to allow of time for inquiry into the 
 character of the character-givers themselves; and for the same reason as in 
 case of alibi evidence. 3 Jud. Evid. 200. 
 
 (c) Roscoe's Crim. Evid. 98. Alderaon, B. in Hodgkits' case, 7 Carr. & P. 
 298 
 
 (rf) Commonwealths. Hardy, 2 'iliass.ZXT. Shaw, G. J, in Commonwealth 
 v. Webster, Bemis' Report, 496. Roscoe's Crim. Evid. 98. Wharton's im. 
 Crim. Law, 294. 
 
534 EXCULPATORY FACTS [PART II 
 
 into the general character of the complaining party, for 
 want of chastity arc always allowable, and evidence of such 
 want of character is frequently adduced and relied on. (a) 
 But in cases of homicide, the rule is that the character of 
 the deceased can never be made a mattef of controversy, 
 except when involved in the res gestce. The accused may 
 prove that he was acting in self-defence, or he may exhibit 
 whatever provocations were given to him, by the deceased, 
 but he cannot set up general reputation as a defence. (6) 
 
 III. Exculpatory facts going to avoid or explain the crimi- 
 native facts proved. 
 
 The function and tendency of the classes of exculpatory 
 facts or circumstances hitherto considered, are to destroy 
 the effect of the criminative facts proved ; or, more properly, 
 to destroy, or virtually to expunge from the case, the facts 
 themselves, by showing their total or partial inconsistency 
 with the criminative facts proved. But the accused may, in 
 certain cases, adopt another course. Where the criminative 
 facts proved cannot, in themselves, be disproved or varied, 
 he is at liberty to prove one or more of a class of facts, the 
 tendency of which is to explain the former, or to show them 
 (unfavorable as they appear, on their face,) to be, in point 
 of reality, entirely consistent with the fact of his innocence. 
 The effect of that large and important class of criminative 
 indicia, known as " physical facts," may be avoided in this 
 way, the only way, indeed, in which their effect can ordi- 
 narily be resisted. The process employed in these cases, is 
 the reverse of that employed in the classes of cases which 
 were previously considered ; being a process of harmonizing 
 one evidentiary fact with another derived from an opposite 
 view or side of the case, and of harmonizing both with the 
 hypothesis of innocence. 
 
 (a) Koscoe's Crim. Evid. 96, 97. 
 
 {b) Wharton's Am. Crim. Law, 295, 296, and the cases cited ibid. 
 
CHAP. J.] AND CIRCUMSTANCES. 535 
 
 Tims, supposing it .prored, in a case of murder, that 
 recent stains were found on the dress of the accused, which, 
 on a chemical examination, were ascertained to be stains of 
 blood; if the accused can prove that they were occasioned 
 by his having -been recently bled ; (a) or by having bled, 
 slaughtered or cut up an animal ; (&) or by having accident- 
 ally or unconsciously come in contact with some bleeding 
 body ; (c) the force of the fact will be avoided, and its 
 criminative effect escaped. So, where the dress of a person 
 shows evident marks of portions of the material having been 
 r3moved by cutting out, giving rise to the criminative pre- 
 sumption that they were cut out to remove stains which 
 were otherwise ineffaceable ; it will be a sufficient excul 
 pation for him to show that the pieces were cut out for an 
 innocent purpose specified, (rf) So, in those cases of ap- 
 parently irresistible proof, where the accused has been con- 
 nected with the crime by the most minute and complete 
 physical coincidences, — such as the exact print of his shoes 
 observed near the body of the murdered person, and his 
 knife obviously employed to commit the crime ; or where 
 the fruits of the crime are found on his person ; — it is com- 
 petent for him to escape the effect of the presumptions 
 against him arising from these sources, by proving that the 
 materials of all this evidence have actually been forged by 
 another. 
 
 (a) Shaw's case, Theory of Presumptive Proof, Appendix, case 8. 
 
 (b) This was attempted to be shown in Pryor's case, (Best on Pres. § 226, 
 note (rf,)) but proved not to have been the fact. It was also attempted to be 
 bhown in the caSe of Johnson and Fare, (5 Lend. Leg. Observer, 254,) but 
 the proof was not regarded. 
 
 (c) Case quoted from Chambers' Edinburgh Jour, for March 11, 1837; Best 
 anPrcs. §219. note (o). 
 
 id) Rex T Filler, Warwick Summer Assizes, 1834; Wills, Ciro. Evid. 128, 
 
536 INFIEMATITE CONSIDERATIONS, [PART II. 
 
 SECTION XXXI. 
 
 Exculpatory Facts or Circumstances, nol necessarily proved, 
 being the Infirmative Considerations applicable to the crim- 
 inative facts proved. 
 
 The distinctive character of this class of facts has already- 
 been considered in the first or introductory part of the pres- 
 ent work, (a) They are facts, the mere consideration of 
 which, as probable, or even as possible, in the particular 
 case, tends to render the truth of the principal fact which 
 is proposed to be proved, improbable, in a greater or less 
 degree, by weakening or rendering infirm, the probative force 
 of the particular evidentiary criminative facts in connection 
 with which they are considered. In other words, they are 
 favorable interpretations of the particular criminative facts, 
 of which they may, more or less reasonably, admit. 
 
 The occasion and propriety of resorting to these *' dispro- 
 babilizing" facts, (as an acute, though eccentric writer has 
 styled them, (6)) as a ground and means of defence, arise 
 from the consideration which has already been dwelt upon, — 
 that no single criminative fact, of however strong an aspect 
 in itself, as long as it stands alone, and unsupported by 
 others, is to be regarded as conclusive evidence of the guilt 
 of im accused party, especially in a capital case. And the 
 reason of this is, that such single unsupported ftict may in 
 many instances, be accounted for, on other suppositions than 
 that of guilty agency in the party to whom it apparently 
 points ; it is found to admit of a favorable as well as an un- 
 favorable interpretation, and sometimes of more favorable 
 interpretations than one. For instance, the naked fact of 
 finding an article which has been stolen from one person, in 
 
 (a) Jhte, p. 153. 
 
 (6) 3 Benth. Jud, Evid. 13, 14. 
 
CHAP. I.] OB SUPPOSABLE FACTS. 537 
 
 the possession of another, (without reference to tlie time of 
 the finding, or the manner of the possession, or the conduct 
 of the possessor,) constitutes, on its face, a most direct, and 
 apparently, a perfect connection between the crime proved 
 and the individual designated as its perpetrator ; the physi- 
 cal fact of possession being the link or medium of connec- 
 tion. But this criminative fact, or indicium of guilt, on 
 being examined, is found to admit of several interpretations, 
 all more or less favorable to the accused, and all more or 
 less consistent with the supposition of his innocence. Thus, 
 the article in question may have come into his possession by 
 finding, or by innocent purchase from the real thief, or by 
 the intentional act of the latter, or by mere accident, or 
 otherwise, (a) All these are so many exculpatory facts or 
 considerations, or infirmative suppositions or supposable facts, 
 which, (so long as they exist as probabilities, or do not as- 
 sume the character of actual improbabilities,) without any 
 prpof being made of them, tend to produce in the mind of 
 the judicial investigator, or juror, that state of reasonable 
 uncertainty, as to the truth of the principal fact in issue, 
 which should always turn the scale in favor of the ac- 
 cused. (6) 
 
 It is th« particular condition, then, of the criminative 
 facts proved, especially in point of number, which renders 
 this mode of defence, — by supposition, without proof, — ad- 
 missible. The lowest number possible (being the case 
 before supposed, where only a single fact is proved,) lets in 
 the largest number of infirmative suppositions. "With each 
 additional relevant fact proved, these inlets are, one after 
 
 (a) See further, post, in this section, p. 561. 
 
 (A) The great foundation of these suppositions, and the essential source of 
 their power, is the same with the foundation of the whole principle of pre- 
 sumption, in its largest sense and application; namely, experience. The con- 
 ditions of fact supposed are allowed to be considered, not so much because 
 thej- are, in the abstract or in the nature of things, possible, as because they 
 all have, at one time or other, been themselves verified as actual facts. 
 
538 INPIRMATITE CONSIDERATIONS, [PART II. 
 
 another, closed ; and when the case for the prosecutor has 
 come to consist of a large number of consistent facts, woven 
 by real connections into that peculiar combination called " a 
 chain " of evidence, the infirmative considerations become 
 exclude'd altogether. They cannot avail against a convin- 
 cing body of proved facts, (a) Nor can they be made use 
 of indirectly, by resolving or breaking up this body into its 
 constituent elements or facts, and applying to each, sepa- 
 rately considered, the infirmative suppositions which would 
 be applicable to it and would be competent to weaken or 
 destroy its probative force, if it stood actually alone. This, 
 as already shown, would be assailing the vital principle of 
 all circumstantial proof. 
 
 These exculpatory 'facts or infirmative considerations, of 
 which it is now proposed to treat, may be presented with 
 most clearness and effect, by arranging them under the 
 heads of the several criminative facts, or classes of facts, 
 (already considered,) to which they are respectively appli- 
 cable. 
 
 I. Physical facts or circumstances. 
 
 As to the physical facts, appearances and objects sup- 
 posed to indicate the general fact of the commission of a 
 crime, or corpus delicti, they may be attributable to occur- 
 rences and causes having no criminal character whatever. 
 Wounds on the body of a deceased person, and considered 
 to have been the cause of his death, may have been pro- 
 duced by some casually, such as a fall, or the kick of a 
 horse, (&) or the accidental discharge of a fire-arm. Poison 
 
 (a) The process of testing the whole body of facts proved, by applyinj; to 
 them one or more opposite or rival hypotheses, rests on a different basis, and is 
 not only always allowable, but actually requisite to the attainment of the de- 
 sired conclusion. See ante, pp. 182 — 192. 
 
 (A) Rex T. Booth, Warwick Spring Assizes 1808: Wills, Giro. Evid. 172, 
 173. Rex\. Downing, Salop Summer Assizes, 1822; Id. 137, 139. 
 
CHAP. I.] OR SUPPOSABLE PACTS. 539 
 
 found in the stomach of the deceased, may have been taken 
 by mistake. Or, whatever may be the apparent or sup- 
 posable means of the death, it may have been a case of 
 voluntary suicide. And the error may extend further back 
 than this. The subject of the supposed crime may be 
 "wholly mis-apprehended. What are taken for the bones of 
 a human being, may turn out to be the bones of an ani- 
 mal, (o) This whole subject will be more particularly con- 
 sidered under the head of proof of a corpus delicti. 
 
 Physical facts, as employed to connect an accused party 
 with a crime proved, or considered as proved, may be re- 
 solved into three kinds : — criminative objects or articles 
 found in his possession ; criminative appearances on his 
 person, supposed to be derived from the scene or subject of 
 the crime ; and criminative appearances at the scene of 
 crime, supposed to be derived from his person. 
 
 The exculpatory considerations applicable to these facts, 
 are brought forward in the shape of possible causes or rea- 
 sons assigned for their existence ; and these also seem to bo 
 divisible into three kinds: accident, innocent conduct of 
 the accused, and conduct of the real criminal or some third 
 person. The following exhibit the principal instances of 
 their application. 
 
 1. Criminative objects or articles found in possession. 
 
 First. The fact of the possession of a stolen article, or an 
 article alleged to have been stolen, admits of the following 
 suppositions, as its possible causes. 
 
 It may have been conveyed to the place where it was 
 found, by some irresponsible agency, such as the act of a 
 child, or even of an animal. (6) 
 
 (a) 27ie Stale v. Booms, Supreme Court of Vermont, Bennington County; 
 September Term, 1819. 1 Greenl. Evid. § 2U, note. 
 (6) 3 Benth. Jud. Evid. 49. 
 
540 INPIRMATIVE CONSIDERAMONS, [PART II. 
 
 It may have been honestly found by its possessor, (ct) 
 
 It may have been purchased, borrowed, or received as a 
 gift or deposit, from the thief himself, in ignorance of his 
 character : or it may have been purchased, borrowed, or 
 received from a person who purchased or received it from 
 the thief. (6) 
 
 It may have been taken from the owner, while in a state 
 of intoxication, with the view of keeping it for him, and 
 returning it on his becoming sober, (c) 
 
 It may have been taken from a person suspected of having 
 stolen it, and kept with the view of seeking out the true 
 owner, or bringing the thief to justice, (rf) 
 
 It may have been deposited with the possessor, without his 
 knowledge or consciousness, by the thief himself, in order 
 to avert suspicion from himself, or from a malicious design 
 to injure the possessor, (e) 
 
 It may have been deposited with the possessor, by the 
 owner himself, (it not being a case of theft at all,) from a 
 similar malicious motive. (/) 
 
 These suppositions will be further considered under an- 
 other head, (g-) 
 
 Secondly. The fact of the possession of a criminative 
 article, such as the instrument with which a crime has been 
 committed, or an article known to have belonged to the 
 subject of the crime, or the subject of the crime itself, — 
 may admit of similar suppositions, that is to say : 
 
 It may have been thrown away or dropped by the real 
 criminal, and innocently picked up by the possessor ; tliere 
 
 (a) 2 East's P. C. 663. 
 (i) 2 Stark. Evid. 840. 2 Hale's P. C. 289. 
 (c) Best on Pres. § 226. 
 (rf) Id. ibid. 
 (c) II. §§ 222, 223. 
 
 (/) Lamb's case, Saratoga County, New York; 3 Phill. Evid. (Cowen & 
 HiU's notes, Van Cott's ed.) Note 293, p. 481. 
 {,g) See " Possession of the fruits of crime," poit. 
 
CHAP. I.J OR SUPPOSABLE PACTS. 541 
 
 being nothing in its mere appearance indicative of its crim- 
 inal use. (a) 
 
 It may have been purchased, or borrowed, or received as 
 a gift or deposit, from the real criminal, in ignorance of the 
 character both of the article and the person. (6) 
 
 It may have been deposited on the premises of the pos- 
 sessor, -without his knowledge, by the criminal himself, in 
 order to get rid of it or conceal it. (c) 
 
 It may have been deposited on such premises, or even 
 attached to the person of the possessor, without his know- 
 ledge, by the criminal, from a malicious design to criminate 
 the other, (rf) 
 
 It may have been deposited on the premises of the pos- 
 sessor, by a third person, equally innocent as himself, with 
 the mere view of getting rid of it, and escaping its supposed 
 or known criminative effect, (e) 
 
 These suppositions, also, will be again adverted to. (/) 
 
 2. Criminative appearances on the person. 
 
 First. Appearances of blood on the person or clothing 
 admit of the following suppositions, in the way of explana- 
 tion : 
 
 It may not be blood at all, but a stain produced by a 
 liquid or substance of similar color, (g-) But supposing it 
 ascertained to be blood, 
 
 It may have been occasioned by an accidental bleeding 
 from the nose, &c. or a wound on the person. (Ji) 
 
 (a) Best on Pres. § 218, p. 297 
 
 (6) Supra, p. 540. 
 
 (c) Ante, pp. 439—441. 
 
 {d) Best on Pres. § 223. 
 
 (e) 3 Beuth. Jud. Evid. 36. Best on Pres. § 222, p. 301. 
 
 (/) See ;)osf " Possession of articles of criminative eyidenoe." 
 
 {g) Ante, p. 137. 
 
 (ft) Quinotil. lib. 6, c. 9. Best on Pres. § 225, p. 803. 
 
C42 INPIRMATIVE CONSIDERATIONS (_PAET 11. 
 
 It may have been occasioned by unconscious contact with 
 another person having a bleeding wound, (a) 
 
 It may have been occasioned by having come in contact 
 with a bleeding body in the dark. (6) 
 
 It may have been produced by a surgical operation, as by 
 the party's having been recently bled, or having recently 
 bled himself, (c) 
 
 It may not be human blood, but that of an animal, trans- 
 ferred to the person on the occasion of his having slaughtered 
 it, in the way of his calling, or otherwise ; (^d) or in conse- 
 quence of his having handled, it in any way, or come in con- 
 tact with it or within reach of blood issuing from it. (e) 
 
 Secondly. Marks, as of cuts, scratches, wounds or bruises 
 on the face or person, may have been produced by a fall, or 
 the kick or scratch of an animal, (/) or contact with sharp 
 substances of various kinds,, (g") 
 
 3. Criminative appearances at the scene of the crime. 
 First. Prints of the shoes of the accused, discovered in 
 
 (a) In a case where part of the evidence against a man charged with mur- 
 der, consisted in his night-clothes having been found stained with blood, — a 
 fact which he declared his inability to account for, it was afterwards discoTered 
 to have been occasioned by his bed-fellow having a bleeding wound, of which 
 the prisoner was not aware. Chambers' Edinb. Journal, March 11, 1837. 
 Best on Pres. § 219, note (o) . 
 
 (6) See the last note. And see Brailford's case, Theory of Presumptive 
 Proof, Appendix, case 7, pp. 89, 93. 
 
 (c) Shaw's case; Theory of Presumptive Proof, Appendix, case 8, p. 96. 
 
 {d) Pryor's case; Best on Pres. § 226, note (rf). Johnson and Fare's 
 case, 5 Lend. Leg. Observer, 254. 
 
 (c) Richardson's case, ante, p. 246. Beards' case, Stafford Summer As 
 sizes, 1844; Wills, Circ. Evid. 101, 103. In this case, the fact was shown. 
 
 (/) Rex v. Downing, Salop Summer Assizes, 1822; Wills, Giro. Evid. 137, 
 139. In the case of Berry, the murderer of Madam Mazel, in 1699, (ond 
 for whose crime Le Brun innocently suffered,) the criminal accounted for 
 scratches and wounds on his hands, by saying that they were made by a cat 
 which he had attempted to kill. 5 Lond. Legal Observer, 202. 
 
 (g) In Richardson's ca.se, the prisoner accounted for scratches observed on 
 his fece, by saying that he had gotten them when pulling nuts in a wood, a 
 few days before. Ante, p. 244. 
 
CHAP, I.] OR SUPPOSABLE PACTS. 543 
 
 moist earth or iu snow, about the spot, or leading to or 
 from it, admit of the following suppositions. 
 
 The impressions may not have been made by the accused 
 at all, but by another person wearing his shoes, (a) 
 
 If actually made by the accused himself, it may hare 
 been in the course of going to the spot, to render assistance. 
 If, however, it were a clear case of murder, and no other 
 foot-prints were seen, this supposition would be excluded. 
 
 Secondly. Bloody tracks of no definite shape, but serving 
 to show the presence of another person besides the deceased, 
 and the direction of his movements, may have been un- 
 consciously caused by an innocent individual, while in the 
 act of endeavoring to render assistance in the case. (6) 
 
 Thirdly. A« to impressions from other parts of the person — 
 XAooAy finger-marks may have been produced in the manner 
 last mentioned. Impressions from the knee may have been 
 made in the act of kneeling by the body, to see if life was 
 really extinct, or for the purpose of more adequately render- 
 ing assistance to the sufferer, (c) 
 
 II. Facts of conduct, or moral circumstances. 
 The exculpatory or infirmative considerations to which 
 
 (a) Anonymous case, Theory of Pros. Proof, Appendix, ease 10, 
 (//) In a French case, cited in Taylor's Medical Jurisprudence, the follow- 
 ing facts appeared. A young man was found dead in his bed, with three 
 wounds on the front of his neck. The physician who was first called to see 
 him, had unknowingly stepped in the blood with which the floor was covered, 
 and had then walked into an adjoining room, passing and re- passing several 
 times. He had thus left a number of bloody foot-prints on the floor. No 
 notice of this was taken at the time ; but on the following day, when the ex- 
 amination was resumed, the circumstance of the foot-prints was particularly 
 attended to, and excited a suspicion that the young man had been murdered. 
 The suspected person was arrested, and would have undergone a trial on the 
 charge of murder, had not M. Marc been called in to examine all the particu- 
 lars of the case. A similar circumstance occurred in the case "of Eliza Grim- 
 wood, who was murdered at Lambeth, in June, 1838. Taylor's Med. Jurispr. 
 201, 202. (Phil. ed. 1853.) 
 (c) Best on Pres. § 218. 
 
544 INPIRMATITE CONSIDERATIONS [PART II. 
 
 facts of this class may be considered to be subject, are, for 
 the most part, applied to them in the same general way as 
 to facts of the physical class, last mentioned ; that is, they 
 are applied in the shape of possible, (and more or less pro- 
 bable) reasons assignable for their existence, or supposed 
 existence, in the particular case under investigation. 
 
 1. Motives to Crime. 
 
 The exculpatory considerations, or rather, circumstances, 
 applicable to motives to crime, more commonly take the 
 shape of facts proved or contended to be' proved, author- 
 izing favorable inferences, than of suppositions explaining 
 proved facts. Hence they, for the most part, belong to the 
 class of circumstances, already considered, in which the 
 accused either relies upon the evidence adduced by himself, 
 or upon the absence or insufliciency of the prosecutor's evi- 
 dence,.to establish the total absence of a motive, or to show 
 the inadequacy of the particular motive assigned. It will 
 not be necessary, therefore, to dwell longer on this head, (a) 
 
 2. Verbal intimations of intended criminal action. 
 
 The principal infirmative supposition applicable to circum- 
 stances of this class, is the common one which is more or 
 less reasonably applicable to every statement or observation 
 made by an accused party, and alleged to have been heard 
 by another ; namely, the possibility that the statement or 
 observation may have been mis-understood by the witness, 
 or incorrectly remembered, or mis-reported by hiijn. (6) 
 
 (a) Motives being considered by Mr. Benlham as not being, properly, crimi- 
 native circumstances, " no counter-probabilities," in his opinion, seem appli- 
 cable to them, " in the character of infirmative considerations." 3 Jud. 
 Evid. 188. The whole subject of motives, including such views as are most 
 commonly presented in behalf of accused parties, has already been treated at 
 some length, under a former head. See ante. Section IV. pp. 281 — 828. 
 
 (A) See infra, "Declarations of intention." 
 
CHAP. I.J OB SUPPOSABLE PACTS. 545 
 
 In regard to predictions of approaching mischief to an 
 individual who is afterwards found murdered, it may have 
 been the fact that the accused was really speaking the con- 
 viction of his own mind, and without any criminal intention. 
 And it has been well remarked that idle prophecies of death 
 are quite as frequently the offspring of superstition, as of 
 premeditated assassination, (a) 
 
 3. Expressions of ill-^ill. 
 
 These, also, may have been mis-understood, mis-remem- 
 bered, or mis-reported by the witness. (6) 
 
 But supposing them to have been actually uttered as 
 proved, they may have been uttered on some sudden provo- 
 cation, or in the extremity of momentary passion, or during 
 a state of intoxication, (c) without any real, settled and 
 abiding feeling of malice against the subject of them. 
 
 4. Declarations of intention. 
 
 In addition to the infirmative suppositions of mis-under- 
 standing, inaccurate recollection, (d) and mis-report, the 
 following may be mentioned. 
 
 It does not necessarily follow, because a man has avowed 
 an intention to commit a crime, that such intention really 
 
 (fl) Best on Pres. § 235. 
 
 (A) See the heads immediately preceding and following this. In the Scotch 
 case of James Stewart, A. D. 1752, in which expressions of this character 
 were much relied upon, they were met by the following remarks from one of 
 the counsel for the pannel [prisoner.] " It must occur to every man, how ex- 
 tremely dangerous a proof of this kind Is : there are very few witnesses who 
 can repeat exactly the particulars of any conversation, and still fewer who 
 can recollect these particulars at any distance of time. In such cases, much 
 may depend upon the tone of voice, or gesture of the person who speaks ; and 
 the variation of a circumstance may alter the meaning of the whole expres- 
 sion." 19 State Trials, 1, 224. 
 
 (c) This was claimed to have been the fact in Stewart's case, referred to in 
 the last note. 19 State Trials, 226. 
 
 (d) Best on Pres. § 237. 
 
546 INFIRMATITE CONSIDERATIONS [PART II, 
 
 existed in his mind. The words may have been spoken in 
 mere bravado, or with the view of alarming or annoying the 
 object of them ; (o) or, like expressions of ill-will, may 
 have been uttered in a moment of passion, or state of intoxi- 
 cation, without any settled evil purpose. 
 
 The criminal intention, if actually and seriously enter- 
 tained, may have been changed or abandoned, (b) 
 
 The intention may have been not only really criminal, but 
 unchanged and persisted in, and yet the power to carry it 
 into effect may have failed ; the party having been antici- 
 pated in his purpose by the act of another, (c) 
 
 5. Threats. 
 
 The infirmative suppositions applicable to these circum- 
 stances, are the same with those just enumerated ; with the 
 addition of the following. 
 
 Threats being considered to be either uttered in the pres- 
 ence and hearing of the person threatened, or intended to 
 come to his knowledge, the sole intention may have been to 
 alarm and intimidate him. (ti) 
 
 If the accused really intended the mischief avowed and 
 threatened, it is not reasonable that he would make it known 
 to the object, and thereby naturally put him on his guard 
 against the intended act. (e) 
 
 6. Preparations for crime. 
 
 The infirmative suppositions applicable to circumstances 
 of this class, comprise the following. 
 
 The appearances supposed to be indicative of preparation, 
 and which are construed as such, may have been mis-appre- 
 
 (u) BestonPreg. § 237. 
 
 (6) 3 Benth. Jud. Evid. 74. Best on Pres. § 236 
 
 (c) Id. ibid. 3 Benth. Jud. Evid. 74, 76. 
 
 (d) Id. 77, 78. 
 (c) Id. ibid. 
 
CHAP. I.] OR SUPPOSABLE PACTS. 547 
 
 hended, ia consequence of hasty or imperfect observation, 
 and may, in fact, possess no criminal quality whatever. 
 
 The appearances indicative of preparation may have been 
 correctly observed, and may have been as reported by the 
 witness, (including, to a certain extent, the unfavorable 
 construction put upon them,) and yet may have no real con- 
 nection with the accused, having emanated from no conduct 
 on his part, but having been wholly fabricated by the real 
 criminal or some other person ; as by conveying into the 
 possession of the accused, (so as to become a subject of 
 observation,) a poison of the same description as that after- 
 wards used in committing the crime, or perhaps the identical 
 instrument used in committing it. Thus, the connection be- 
 tween the material object or substance observed, and the 
 crime committed, may be real and actual, while that between 
 the same object or substance and the party sought to be in- 
 culpated by it, is false and forged. 
 
 Again, the appearances supposed to be indicative of 
 preparation may be clearly traceable to the action of the 
 accused, and closely connected with it ; consisting of facts 
 of conduct, in addition to, or in union with physical facts or 
 material objects, and yet be devoid of any real criminal 
 quality whatever. Thus, it may be true not only that the 
 accused had the poison in his possession before the crime, 
 but that he had it knowingly, having actually procured it 
 with his own hands. And yet, even in this case, the impor- 
 tant psychological fact of intention may be wholly wanting. 
 In most instances, in order to give an act the character of a 
 preparation for another act, it is requisite that it should not 
 only precede it, in the order of time, and be adapted to it, 
 in point of quality, but that it should have that positive 
 connection with it, in fact, which the mental act of intention 
 alone can supply. The intention, in the case of poison just 
 supposed, may have been wholly innocent, the poison having 
 been really procured for the purpose of destroying noxious 
 
548 INFIEMATIVE CON^SIDERATIONS [PAHT II, 
 
 animals, (a) Where, however, the acts of preparation, or 
 the articles or instruments prepared, are such as to indicate 
 their intended objects and uses, on their face, and do not 
 reasonably admit of any other than a criminal application, 
 (as in the case of burglars' tools, counterfeiting implements, 
 secret explosive machines and incendiary contrivances,) this 
 favorable construction of the intent will, of course, be ex- 
 cluded. 
 
 Again, supposing that, in addition to the connection be- 
 tween the physical fact or object, and the fact of conduct, 
 as above, a further connection is established between both 
 and the crime committed, so far as that there was an actual 
 intention, on the part of the accused, to operate against the 
 subject of the crime, and to operate injuriously and crimi- 
 nally ; the intention, though noxious and criminal, to a cer- 
 tain extent, may have been less so than the result actually 
 proved to be. (&) Thus, the poison may have been pro- 
 cured, in ignorance of its really and uniformly fatal efficacy, 
 and may have been administered merely for the purpose of 
 sickening the individual by whom it was taken, and not 
 with any view of destroying life, (c) But this supposition 
 is, on the other hand, liable to be excluded by that well 
 known rule which charges everj sane person with knowledge 
 of the natural or probable consequences of his own volun- 
 tary acts. 
 
 Finally, supposing that in addition to all the criminative 
 connections established as above mentioned, there was, in 
 point of fact, a real and full intention to commit the crime 
 which followed ; the circumstances indicative of the sup- 
 posed preparation, are subject to the same infirmative con- 
 siderations as declarations of intention themselves ; namely, 
 
 (a) Best on Prea. § 235. 
 (4) 3 Benth. Jud. Evid. 72. 
 
 (c) This was the motive alleged in the Scotch case of Rex v. Alcorn, 1 
 Syme's Justiciary Rep. 221. Wills, Clro. Evid. 180. 
 
CHAP. I.] OE SUPPOSABLE FACTS. 549 
 
 The intention may have been changed or abandoned ; (a) 
 and, 
 
 The intention, if unchanged and persisted in, may have 
 been anticipated by the act of another. (&) 
 
 7. Opportunities and facilities for the commission of crime. 
 
 The principal infirmative supposition applicable to the 
 circumstance of opportunity to commit a crime, is analogous 
 to that general one which has been applied to most of the 
 criminative circumstances already considered, and is of an 
 equally obvious character ; namely, that, admitting it proved 
 to have existed, it does not necessarily follow that it was 
 actually taken advantage of by the party shown to have pos- 
 sessed it ; or that it was not taken advantage of by another 
 person. In order to give it this effect, where it is solely or 
 chiefly relied on, the circumstances tending to show its 
 existence must be exclusive in their operation, by demon- 
 strating that no other person had, or could have had the 
 opportunity possessed by the accused, and that, therefore, 
 by a necessary consequence, none but he could have com- 
 mitted the crime, (c) 
 
 The fact that opportunities of the most ample kind, for 
 the commission of great crimes, arising out of facilities of 
 access to persons and property, are frequently, and even 
 constantly and habitually enjoyed by individuals the most 
 unlikely, from their characters and relations, to take adva-n- 
 tage of them, and who never do take advantage of them, (c?) 
 is sufficient to show the inconclusiveness of any presumption 
 deducible from this circumstance alone. Indeed, unless the 
 exclusive character of the opportunity shown be satisfac- 
 torily established, as just mentioned, or unless it be ade- 
 
 (a) 3 Benth. Jad. Evid. 74. 
 (i) Id. ibid. Best on Pres. § 236. 
 (c) See ante, pp. 369, 370. 
 id) See ante, p. 305. 
 
550 INFIRMATIVE CONSIDEEATIONS [PART II. 
 
 quately confirmed by other independent facts, its mere 
 existence, though always essential, as a ground of inculpa- 
 tion, is far less criminative in its bearing, than many of the 
 criminative circumstances previously treated of. Its whole 
 tendency is merely to show a possibility that the act might 
 have been committed by the person supposed to be indi- 
 cated ; without any of that quality of positive probability in 
 which the essence of the force of presumptive evidence 
 resides. For example, it is much more likely that a person 
 who has gone the length of forming a criminal intention, 
 and manifesting that intention by words and acts, — and who 
 has thus given to his own voluntary conduct the most posi- 
 tively criminal quality, and in the most intimate union, of 
 which, up to that point, it admits, — ^persists . in such inten- 
 tion, and ultimately carries it into effect; than that a mere 
 external (and sometimes fortuitous) relation, itself of no 
 moral character, like this of opportunity, should, by the 
 mere force of coincidence, and consequent supposed connec- 
 tion with the person, at once lead to the same criminal 
 result. 
 
 8. Attempts to commit crime. 
 
 The circumstances belonging to this head are, by most 
 writers on presumptive evidence, classed with preparations, 
 and thereby made subject to the same infirmative con- 
 siderations, (a) It is to be observed, however, that, as 
 they are much farther advanced towards the commission of 
 the crime, stopping short only of the actual accomplishment 
 of that object, their criminative aspect and tendency are 
 ordinarily much stronger than those of mere preparations ; 
 and they are, accordingly, for the most part, much less 
 easily avoided in the defensive way of favorable construc- 
 tion or supposition. The following infirmative suppositions 
 may be mentioned. 
 
 (o') 3 Benth. Jud. Evid. 71, 72. Best on Pres. §§ 233, 234—236. 
 
CHAP. I.] OR SUPP05ABLE FACTS. 551 
 
 The act which has been construed into an attempt may 
 not, in point of fact, have been such ; that is, it may not 
 have been directed against the person or pi-operty ap- 
 parently indicated ; the observer having quite mis-appre- 
 hended it ; just as he may have misunderstood a verbal ex- 
 pression of a supposed criminative bearing. 
 
 If correctly observed, the act may have taken its sup- 
 posed criminative complexion from accident, and so have 
 been devoid of the essential criminal quality flowing from 
 intent. 
 
 If intentional, and actually directed against the person or 
 property indicated, its object may have been less noxious or 
 criminal than the result, as shown in the crime committed. 
 
 If the attempt were actually made, and with a full inten- 
 tion to perpetrate the crime which followed, such intention 
 may have been abandoned, and no further attempt afterwards 
 made ; the crime being, in fact, committed by another, (a) 
 
 9. Proximity, and other Concomitant Circumstances. 
 
 Among the infirmative considerations applicable to this 
 class of circumstances, the following are most prominent. 
 
 The supposed crime may actually be no crime at all, as 
 in the case of accidental death, or it may be a case of 
 suicide ; thus at once depriving the circumstances, however 
 forcible they may be in other respects, of all really crimi- 
 native quality against the accused, or any other person, 
 whose presence or proximity they serve to indicate. (6) 
 
 Supposing it a clear case of crime, the circumstances 
 indicative of proximity or presence may not possess that 
 quality of exclusioeness which is always requisite to fasten 
 the crime effectually upon the accused, (c) Another person 
 
 (a) See 3 Benth. Jud. Evid. 71, 72—74. 
 
 (b) See Lord Coke's example of a violent presumption, as explained by in- 
 firmative suppositions, ante, p. 184. And as to proof of a corpus delicti, see 
 post. p. 677. 
 
 (c) See ante, p. 370. 
 
552 INFIRMATIVE CONSIDERATIONS [PABT II. 
 
 may have been present. The real murderer may have left 
 the dead body, and escaped from the room or the house in 
 which it is found, only the moment before the accused 
 entered it. (a) The real incendiary may have fled from 
 the building fired, only the moment before the accused ap- 
 proached it. The presence of the accused himself, on such 
 an occasion, may be accounted for upon grounds of humane 
 and laudable intention to render assistance, or mere innocent 
 curiosity, or even mere accident. 
 
 The exclusive character of the accompanying circumstan- 
 ces, in regard to means and modes of entrance upon and 
 exit from the scene of the crime, however apparently satis- 
 factory, may not be real. The murderer may have escaped 
 from the room or house, by a door, or even a window, the 
 existence or capacity of which has been entirely over- 
 looked. (6) 
 
 Supposing the exclusive presence of one particular person 
 to be satisfactorily established, such person may not have 
 been the accused, but another person more or less closely 
 resembling him. Entire mistakes in point of personal 
 identity have been made under circumstances most favor- 
 able to accuracy of vision, as in broad day-light, (c) In 
 seasons of darkness or obscurity, which are usually the 
 chosen seasons of crime, this liability to mistake is naturally 
 increased. 
 
 The proximity observed, and from which a criminative 
 presence of the accused is inferred, may have been produced 
 by the action of the real criminal, or even of a third person 
 
 (a) See Bradford's case, Theory of Presumptive Proof, Appendix, case 7. 
 
 (6) See the case mentioned by Mr. Starkie, and referred to, ante, p. 184, 
 185. And see the case mentioned ante, p. 371, note (a). 
 
 (c) See the case of Rex v. Wood and Brown, (28 State Trials, 819,) 
 in which Sir Thomas Davenant, an eminent barrister, swore positively to the 
 persons of two men, whom he charged with robbing him in the open day-light. 
 They, however, proved an alibi, and were subsequently shown to have been 
 wholly innocent of the crime. Wills, Circ. Eviil. 31. As to the subject of 
 ilentifioation, see further, post. p. 631. 
 
CHAP. I.J OB SUPPOSABLE PACTS. 653 
 
 equally innocent with the accused, in the way of fabricating 
 evidence. As where the body of a murdered man is actu- 
 ally conveyed by the murderer, or by another, into the 
 premises of a person wholly innocent and ignorant of the 
 crime, (a) 
 
 In a case of supposed murder the circumstance that the 
 accused was the last person seen in company with the de- 
 ceased, previous to his death or disappearance ; or, in other 
 words, that the deceased when last seen alive was seen in 
 his company, does not, of itself, necessarily exclude the 
 possibility that another and unseen person may have joined 
 the deceased, after the accused left him, perpetrated the 
 crime, and effectually escaped. 
 
 The circumstances showing the presence of the accused 
 at two different points of space and periods of time, — the 
 crime having been perpetrated in the vicinity and during the 
 interval, — may also prove that he could not, by any reason- 
 able possibility, have had time to commit the crime during 
 the interval. (&) 
 
 ^ The circumstances of the accused leaving his residence 
 just before, and returning to Mjust after the perpetration of 
 a crime in the vicinity, merely show a coincidence of action, 
 without any necessary criminative effect. 
 
 Hastiness of movement towards the scene of the supposed 
 crime may have been prompted by a desire to render assist- 
 ance, on hearing alarming sounds or cries from the spot. 
 And hastiness of" movement from the spot may have been 
 dictated by a similar desire to call for more adequate 
 aid, (c) or by a fear of impending danger to the party him- 
 self. 
 
 (a) See Cunningham's case, (ante, p. 426, note,) in which there were 
 three sueoessive transfers of the dead body. 
 
 (ft) See rftornion's case, as explained by Mr. Wills, Giro. Evid. 141 — 144. 
 
 (c) See the first infirmative supposition, applied to Lord Coke's example of 
 a violent presumption, ante, p. 184. 
 
554 INFIRMATIVE CONSIDERATIONS [PAET 11. 
 
 Secrecy of movement (a) near the scene of the crime, 
 even including the disguise of the person, may be explained 
 on other suppositions than that of guilty intent. The lovers 
 of servants are apt to be stealthy in their visits, and in this 
 way are sometimes taken for thieves, (b) And secrecy and 
 disguise have sometimes been assumed and practised out of 
 mere sport, (c) 
 
 10. Destruction, suppression and eloignment of evidence. 
 
 The following infirmative suppositions may be mentioned 
 under this head. 
 
 Acts of this character proved against the accused may 
 have been dictated by a pardonable anxiety, on his part, 
 (however weak or injudicious,) to escape the supposed and 
 dreaded criminative effect of circumstances with which he 
 has been accidentally, or involuntarily and unavoidably, but 
 innocently connected. An individual who has become 
 stained with the blood of another, slain, in his immediate 
 presence, by accident or by his own hand, naturally seeks to 
 remove it from his person or clothing ; and, in so doing, 
 may be actuated, more or less, by a fear of possible pre- 
 judicial consequences to himself. A person who buys an 
 article with the name of a former owner left upon it, usually 
 seeks to remove or erase such evidence of ownership. In a 
 case of this kind, the article may have originally been 
 stolen, but purchased in entire ignorance of that fact. 
 
 Supposing a murder or suicide committed with the weapon 
 of another, which, shortly after, returns to the possession 
 of the innocent owner ; the latter, if aware of the circum- 
 stances, might be tempted to destroy or conceal it, or, at 
 least, to remove the evidences of its use, from a desire to 
 
 (o) Called, in Mr. Bentham's phraseology, clandestinity , of which he 
 makes various divisions. 3 Jud. Evid. 160 — 162. 
 (()) Id. 162, note. Best on Pres. § 252. 
 (c) Id ibid. 3 Benth. Jud. Evid. 163. 
 
CHAP. I.] OR SUPPOSABLE FACTS. 555 
 
 prevent the formation of injurious, or, at least, annoying 
 though unjust and unfounded suspicions against himself. 
 
 The criminative article or appearance sought to be de- 
 stroyed, suppressed or eloigned, may have been, in the first 
 mstance, fabricatedhy the real criminal, by placing it in the 
 possession of the innocent party, or even annexing it to his 
 person ; and the removal of it may be prompted by the 
 desire of avoiding the effect apprehended to follow from 
 the possession of such an article or appearance : the latter 
 circumstance being known to constitute one of the most 
 forcible elements of criminative evidence, (a) " In the 
 view of removing the imputation from himself," observes 
 Mr. Bentham, " a murderer has been known secretly to de- 
 posit in the apparent possession of an innocent person, the 
 blood-stained instrument or garment, or some other such 
 article, so circumstanced as to operate in the character of a 
 source of criminative real evidence." (6) If, in such a 
 case, the party practiced upon should become aware of the 
 manner in which such fabrication had been produced, there 
 would be a natural, and, perhaps, not censurable inclination, 
 on his part, leading to a determination to re -transfer the 
 articles to the place from which they came. And he would, 
 as naturally, select for such a process, a season which would 
 enable him to effect it unobserved ; as by attempting it 
 during the night. Now, if he should happen to be observed 
 in the act of re-transfer, as the author just quoted has re- 
 marked, it might be to him, instead of the murderer, that 
 the artifice of fabrication would come to be imputed, (c) 
 This consideration, however, more properly belongs to a 
 subsequent head. 
 
 This process of innocent removal or transfer might be 
 extended to the body of a dead person found on the premises 
 
 (o) See ante, p. 436. 
 (6) 3 Jud. Evid. 164. 
 (,c) Id. ibid. 
 
556 INFIKMATIVE CONSIDERATIONS [PAET II. 
 
 of another ; and actual instances of this kind are recorded 
 to have occurred, (a) But the absolute concealment (as by 
 bui'ial) or destruction of a body under such circumstances, 
 might be more difficult to reconcile with the supposition of 
 entire innocence, though it has been conceded as a strictly 
 possible fact, even in cases where the mode of destruction 
 was of the most repulsive character. (6) 
 
 The circumstances of secret movement or seclusion of the 
 party, while engaged in these acts of suppression or re- 
 moval, are only auxiliary and incidental ; and their effect is 
 necessarily avoided with the avoidance of the effect of the 
 acts themselves. Even the eloignment of a person who may 
 have witnessed an innocent act of this description, might be 
 resorted to, as a means of more perfect security. 
 
 As to the hurried and even stealthy burial of a dead 
 body, although confessedly h circumstance of suspicion, it is, 
 in itself, by no means conclusive evidence of guilt. Such 
 conduct, especially in case of the interment of a child, may 
 have been dictated by ignorance, or the desire to escape the 
 exposure of an illegitimate birth. And persons living in a 
 state of extreme poverty might be induced to inter a de- 
 ceased child with their own hands, and of course with the 
 utmost privacy, in order to avoid the expense apprehended 
 to attend a burial in the ordinary form. 
 
 The suppression of the evidence of a fact may sometimes 
 be resorted to, by an innocent person, from other motives 
 than that of self-protection ; such as regard to the good 
 name of himself, or his family, or a determination not to 
 reveal a secret which might expose him to contempt. Thus, 
 
 (a) See Cunningham's case, ante, p. 426, note. Mr. Sentham quotes the 
 story of the Little Hunchback, from the Arabian Nights' Entertainments. 3 
 Jud. Evid. 36, 164, note. 
 
 (b) Lord Chief Justice Tindal, in Rex v. Greenacre, Central Crim. Court, 
 April, 1837. In this case, his Lordship told the jury, that what they had to 
 consider was the mere general fact of concealment, without reference to the 
 particular circumstances under which it took place. 
 
CHAP. I.] OE SUPPOSABLE FACTS. 557 
 
 in an English case, where a person had been indicted for a 
 crime which he had not committed, the evidence against 
 him having been fabricated by the real criminal ; it appeared 
 that the prisoner suppressed his name, and went to trial 
 under a feigned name, out of regard to his family, (a) 
 
 11. Fabrication or forgery of evidence. 
 
 The following infirmative considerations may be mentioned 
 as applicable to circumstances of this class. 
 
 A party may be discovered to have actually fabricated 
 one or more physical facts, in order to remove unfavorable 
 appearances from his own person or premises, or in order to 
 create positive appearances in his favor ; and yet be really 
 innocent of any criminal connection with the case of which 
 such facts are claimed to form a part. An innocent person, 
 finding a criminative article, — such as a blood-stained gar- 
 ment or a bloody knife, — ^upon his premises, and naturally 
 (however injudiciously,) desiring to rid himself of it, may 
 carry his action farther than mere eloignment or removal, 
 by conveying the article upon the premises of a neighbor ; 
 thus actually fabricating evidence against the latter. (6) 
 
 This species of conduct may also have been resorted to in 
 the way of self-protective retaliation; as where a person 
 
 (o) Rex V. Gill, Sessions Papers and A. R. 1827; Wills, Circ. Evid. 54, 
 65. In this case, the prisoner was convicted and sentenced to transportation 
 for life, but was aftetwards shown to have been wholly innocent and received 
 a pardon, 
 
 (A) It has been considered possible that there might be a series of such 
 transfers from one neighbor to another, — all prompted by the same urgent 
 desire to get rid of a supposed dangerous article, in the most effectual manner ; 
 and none of the parties being, in any degree or sense, guilty of, or privy to 
 the crime which the physical fects themselves may indicate. No actual case 
 has been vouched in support of this supposition; but Mr. Bentham has re- 
 ferred to the story of the Little Hunchback, in a well known work of fiction, 
 and Mr. Best has approved the reference as a pertinent one. 3 Benth. Jud. 
 Evid, 36, 164. Best on Pres. § 222. The story itself went to show how the 
 body of a man, who had died by accident in the house of a neighbor, was 
 conveyed by him, under the apprehension of suspicion of murder, in the event 
 
558 INPIR-MATIVE CONSIDKRATIONS, [PART II. 
 
 finding a criminative article upon his premises, and knowing 
 or suspecting the source from which it came, and the motive 
 which induced its transfer, determines to re-transfer it, as 
 has already been mentioned, (a) In point of reality, thist 
 would be no fabrication at all, but simply the correction 
 of a previous fabrication, or a restoration of the facts to 
 their original connections and true appearances. Arid yet, 
 if the individual should happen to be observed in the act of 
 re-transfer, his conduct would, in that particular, wear all 
 the exterior of positive fabrication, and would, most prob- 
 ably be classed under that head. (6) 
 
 But it is possible that a strictly innocent person, under tiie 
 influence of certain inducements, may go farther than even 
 the acts just mentioned. He may not only be tempted to 
 fabricate the elementi or materials of evidence, by producing 
 appearances which may be observed by others, who may, in 
 the character of judicial witnesses, report them to the tri- 
 bunal, but, if pressed by the peculiarities of his position, 
 and seemingly reduced to extremity, he may actually go the 
 \Qugiih. oi presenting i\iQm, himself , in the {orm oi judicial 
 evidence, by way of defence against a criminal charge. A 
 prominent instance of this species of fabrication occurred in 
 
 of the corpse being found in his house, into the house of another neighbor, 
 who finding it there, and acting under the influence of a similar apprehension, 
 in like manner transmitted it to a third, who, in his turn, shifted the posses- 
 sion of the corpse to a fourth, with whom it was found by the officers of justice. 
 Id. ibid. 
 
 (a) Supra, p. 555. This was actually done in the case of 5a uiney Cunnt/i^- 
 kam, ante, p. 426, note. 
 
 (A) 3 Benth. Jud Evid. 164. The possibility of the adoption of a similar 
 species of retaliatory or defensive forgery is admitted to exist even in ci^il cases. 
 " Is there any thing impossible," inquires Mr. Best, " in the suggestion, is 
 it even unlikely, that, in many oases, the fabrication of evidence hna been re- 
 sorted to under the apprehension, perhaps the certain knowledge, that similar 
 malpractices wUI be made use of by the other side ? Suppose a man is sued 
 on a bond which he iinows to be a forgery, but he feels that it is altogether out 
 of his power to prove it so. Forge a release, or bribe a witness to prove pay- 
 ment, is a suggestion too obvious not to have been occasionally acted on." 
 Best on Pres. § 148, p. 208; citing 3 Benth. Jud. Evid. 168. 
 
CHAP. I.] OR SUPPOSABLE FACTS. 559 
 
 the well known case of the uncle . and niece, recorded by 
 Lord Coke, (a) and mentioned on a former page. (6) The 
 niece, a girl about eight or nine years old, who had been 
 brought up by her uncle, suddenly disappeared one day, 
 under circumstances which were considered so suspicious as 
 to justify the uncle's arrest. Having been committed to 
 jail, oil suspicion of murder, he " was admonished by the 
 justices of assize," says Coke, " to find out the child, and 
 thereupon bailed until the next assizes." Being unable to 
 do this, and " fearing what would fall out against him," and 
 probably having reason to apprehend the worst consequences, 
 the accused, in his extremity, i-esorted to the hazardous and 
 ill-judged expedient of taking another child, as closely re- 
 sembling his niece, both in person and years, as he could 
 find, and dressing her up to represent her ; and this false 
 child he brought to the next assizes and presented as his 
 niece. But upon view and examination the fraud was de- 
 tected ; and having by this act only strengthened the pre- 
 sumptions which previously existed against him, the uncle 
 " was indicted, found guilty, had judgment and was hanged." 
 He was, however, in point of fact, entirely innocent of the 
 crime for which he suffered ; for the niece was not dead, but 
 had only run away from him, (on occasion of being corrected 
 for some fault,) into an adjoining county, as was proved by her 
 appearing about seven or eight years after, and demanding 
 the lands which her uncle had held as her guardian. Cases 
 of this description serve to sustain the observation of a 
 learned writer, that, " even where the positive fabrication 
 of evidence is proved against a party, tribunals, whose 
 object is the ascertaining of truth, will consider the nature 
 of the case, and the temptation which might have led to 
 fabrication." (c) 
 
 (o) 3 Inst. 0. 104, p. 232. 
 (A) AnU, p. 211, note (6). 
 (c) Best on Pres. § 148, p. 208. 
 
560 INPIBMATITE CONSIDERATIONS, [PAET II. 
 
 12. Possession of articles of criminative evidence. 
 
 The priQcipal infirmative considerations applicable to cir- 
 cumstances of this description have already been summarily 
 mentioned under a previous head. The following may be 
 added. 
 
 The case may not be one of crime at all. And, in addi- 
 tion to the very possible and familiar mode of acquiring 
 temporary possession of an article belonging to another, 
 by way of loan, it is possible that a small article, such as a 
 coin, may be accidentally transferred from one person to 
 another, without the knowledge of either, in consequence 
 of closely adhering, unobserved, to another transferred 
 article, (a) In a case reported to have actually occurred, 
 in which a coin, identified as having belonged to a person 
 who had suddenly disappeared, under very suspicious cir- 
 cumstances, was found in the pocket of the suspected party, 
 who was wholly imable to explain how he came by it ; it 
 was shown that it might have been transferred by having 
 become fastened between the blades of a pocket-knife (the 
 two articles being carried in the same pocket,) which had 
 been given by the supposed deceased to the accused, in the 
 dark, for a temporary purpose. (&) 
 
 Where the supposed criminative article found in the pos- 
 session of the accused is a writing, such as a letter referring 
 to a crime already committed or proposed to be committed, 
 the infirmative supposition that it may have been clandes- 
 tinely introduced into his possession, without his knowledge, 
 has a peculiarly appropriate application, arising from the 
 unusual facilities for introducing writings into a man's pos- 
 session, without his consent or privity. The letter found 
 may have come, for example, by the post, addressed to him- 
 self; it may have come by the post, addressed to some 
 
 (a) As to the case of transfer by the agency of an animal, see the next 
 head. 
 
 (b) 16 London Legal Observer, 266. 
 
CHAP. I.j OB SUPPOSABLB PACTS. 561 
 
 inmate of his, and thus remain in his possession for any 
 length of time, without his knowledge, (a) Supposing such 
 a letter to contain some such expression as this : " On such 
 an occasion," (naming it,) " my dear friend, yiju failed 
 in your enterprise ; " an enterprise (describing it by allu- 
 sion) of theft, robbery, murder, treason : " on such a day, 
 do so and so, and you will succeed." (6) " In this way," 
 observes Mr. Bentham, " so far as possession of criminative 
 written evidence amounts to crimination, it is in the power 
 of any one man to make circumstantial evidence of crimi- 
 nality in any shape, against any other." (c) But such an 
 artifice, as Mr. Best has remarked in quoting the writer last 
 named, would be most likely to be r^orted to in countries 
 where the rules of evidence are not well understood, and 
 convictions of offences, especially of such as are of a political 
 nature, are based on slender proof. (cT) 
 
 13. Recent possession of the fruits of crime. 
 
 The infirmative considerations applicable to this circum- 
 stance have already been summarily stated under a previous 
 head, (e) They may now be repeated, with some illustra- 
 tions. 
 
 The article found in the possession of the accused, and 
 claimed to have been stolen, may not, in fact, have been 
 stolen by any person, but may have innocently come into 
 the hands of the possessor, in any of the following modes of 
 acquisition : (/) 
 
 (a) 3 Benth. Jud. Evid. 44. But if a letter addresaed to him!»lf were found 
 in his po99ession, opened, it would go to exclude the supposition of want of 
 knowledge. 
 
 (6) 3 Benth. Jud. Ev. ub. sup. 
 
 (c) Id. ibid. 
 
 (d) Best on Pres. § 223. 
 (c) Ante, p. 589. 
 
 (/) In the case of the State v. Merrick, (19 Maine, 98,) it was held that 
 even where the stolen goods are found in the possession of the accused, and 
 under his control, within a short time after tlie larceny is cominJttei, he is not 
 
562 INFIBMATITE CONSIDEBATIOXS, [PART II. 
 
 It may have been honestly found by the possessor. Mr. 
 East has remarked that this is " the most trite excuse in 
 cases of larceny, and in general, the least founded."(a) Its 
 truth is,, however, manifestly possible in every case where 
 the article in question admits of being easily lost ; the 
 difference being that the honest finder usually gives or ex- 
 presses a willingness to give particulars of information which 
 may serve to test the truth of his statement ; whQe the thief 
 avoids and suppresses them. 
 
 It may have been taken from the owner by the possessor, 
 but from an innocent and, indeed, commendable motive ; as 
 where it has been taken from the owner, while in a state of 
 intoxication, with a view of keeping it for him, and restoring 
 it on his becoming sober. A case is referred to by Mr. Best, 
 where a pedlar got drunk in a public house, and a person 
 present took possession of his pack, with the view of return- 
 ing it. (i) 
 
 It may have come into the possession of the party with 
 whom it is found, without any knowledge on his part, 
 through some irresponsible agency, such as that of a child 
 or an animal. Mr. Bentham mentions a French case, in 
 which an innocent person was accused of stealing from the 
 house of a neighbor, several pieces of gold, and, being con- 
 victed, suffered an ignominious death. But it was after- 
 wards discovered that the real thief was a magpie (a bird re- 
 markable for a propensity to pick up and hide small articles,) 
 which, without the privity of its master, had taken the 
 money at different times, piece by piece, from the ,too acces- 
 sible hoard of a neighbor, and deposited it in a place in- 
 accessible to any other than the unfortunate person who 
 suffered as for stealing it, (c) 
 
 bound to show to the reasonable satisfaction of the jury, that he became pos- 
 sessed of them otherwise than by stealing. The evidence may fall far short of 
 that, and yet create In the minds of the jury a reasonable doubt of his guilt 
 
 (a) 2 East's P. C. 663. 
 
 (6) BestouPres. § 226. 
 
 (c) 3 Benth. Jud. Evid. 49, 60 
 
CHAP. I.] OR SUPPOSABLE FACTS. 563 
 
 It may have come into the hands of the possessor by a mere 
 physical accident, as by having adhered, unperceived, to an- 
 other article honestly and intentionally transferred to him. (a) 
 
 It may have been clandestinely introduced on the premises 
 of the possessor, by the owner himself, for the express pur- 
 pose, and with the malicious design of laying the foundation 
 of a criminal charge against him. A remarkable instance 
 of this kind occurred at Moreau, Saratoga county, in this 
 state, some years ago. A blacksmith secretly deposited a 
 piece of iron in a heap of coal which lay in the coal-house 
 ' of a neighboring blacksmith, named Lamb, and then swore 
 out a search-warrant, on which he found the iron, to Lamb's 
 great astonishment; and was proceeding to convict Lamb 
 before a special session. He would probably have succeed- 
 ed, had not a boy of a Mr. Billings, who resided within a 
 lew rods of the shop, accidentally seen the prosecutor, a 
 few mornings before, passing with something into the shop 
 about daylight, and returning in an unaccountable manner. 
 This led to a suspicion that the whole affair was simulated ; 
 resulted in a thorough investigation ; and the prosecutor 
 afterwards suffered the penalty of his fraud and perjury. (6) 
 
 The article found and claimed to have been stolen, may 
 be, in fact, the possessor's own property, but so closely 
 resembling the article claimed, as to have led the claimant 
 or his witnesses to swear to its being the same. This was 
 the fact in three cases mentioned by Mr. Wills, (c) in one 
 of which, the accused, though innocent, was convicted and 
 sentenced to transportation, (d) 
 
 (a) See ante, p. 560. 
 
 (6) 3 Phill. Evid. (Cowen & Hill's notes. Van Cott's ed.) Note 293, p. 481. 
 
 (c) Anon, cited as " A. R. 1830, p. 50." Rex v. Webster, Burnett's 
 Grim. Law of Scotland, p. 558. Rex t. Carter, coram. Mr. Baron Garrow ; 
 Wills, Circ. Evid. 105—107. 
 
 (d) Rex V. Carter, ubi supra. So, in Thomas Harris' case, the money 
 whion the accused was seen to bury, was proved to have been his own. Theory 
 of Pree. Proof, Appendix, case 3. 
 
564 INFIRMATITE CONSIDERATIONS, [PART 11. 
 
 Supposing the article found, to have been originally stolen, 
 the following infirmative suppositions are applicable as 
 reasonable possibilities in the case. 
 
 It may have been purchased, borrowed or received as a 
 gift from the thief himself, in ignorance of his character, 
 and of the manner of its acquisition by him. Or it may 
 have been purchased, borrowed or received from a person 
 V. ho, ignorantly or even knowingly, purchased or received it 
 from the thief. The possibilities of this explanation accord- 
 ing with the truth of the case, are increased with the length 
 of the interval which may elapse between the time of the 
 theft and the finding, allowing of opportunities for the 
 article to pass repeatedly from hand to hand, (a) 
 
 It may have been clandestinely introduced by the real 
 thief, into the premises of the possessor, or even attached to 
 his person, without his knowledge, either for the purpose of 
 self-exculpation, or with a malicious design to injure, or 
 from the influence of both motives in combination. The 
 case of Jennings, already mentioned, was a remarkable 
 iiistance of this species of fabrication by the real criminal, 
 at the cost of an innocent man's life. (6) 
 
 It may have been innocently received by the possessor, 
 directly from the hands of the thief, and immediately after 
 the commission of the crime, in consequence of misrepre- 
 sentation and fraud; as where he has been requested by the 
 thief, (who has been pursued and is seeking the means of 
 escape,) to take charge of the article for him, for a short 
 time ; or to do something with it, for or without compen- 
 sation ; and the criminal, having by this means rid himself 
 of the encumbrance of the article, is enabled to escape. 
 The case of the horse-thief, mentioned by Lord Hale, (c) 
 
 (a) See the reasons, before given, for the rule requiring the possession of 
 stolen goods to be recent. Ante, p. 447. 
 
 (b) Ante, p. 425. See also the case of .D« Moulin, Chambers' Edinb. 
 Joum. for Oct. 28, 1837. 
 
 (c) 2 Hale's P. C. oh. 39, p. 289. 
 
CHAP. I.] OR SUPPOSABLE FACTS. 665 
 
 and the modern case of Rex v. Gill, (a) are instances of 
 the successful employment of an artifice of this kind. 
 
 It may have been introduced into the party's possession 
 by the use oi force and fraud combined. Mr. Bentham 
 supposes a case (a barely supposable one, it is true,) where 
 three men unite in a conspiracy against an innocent per- 
 son : one lays hold of both his hands ; another puts into 
 his pocket a stolen handkerchief, which the third, running 
 up, during the scuffle, finds there. (6) 
 
 It may have been taken by the possessor from a person 
 whom he himself knows or suspects to have stolen it, and 
 kept with the view of seeking out the true owner, in order 
 to restore it, or of bringing the thief to justice, (c) 
 
 It may not be a case of exclusive possession by the ac- 
 cused ; (d) as where the place in which the article has been 
 found, is proved to have been occupied or frequented by 
 other persons ; or to be, in its nature, easily accessible to 
 others. The cases of a house or room occupied by other 
 inmates (domestics, lodgers or visitors,) besides the pro- 
 prietor or principal occupant ; and of an unlocked bureau, 
 or trunk or other repository equally accessible, present in- 
 stances where this supposition would have full application. 
 In the French case of M. D'Ang-lade, this obvious consider- 
 ation was ' wholly overlooked, to the ruin of the innocent 
 accused, (e) " Nothing," observes Mr. Bentham, " can be 
 more persuasive than the circumstance of possession com- 
 monly is, when corroborated by other criminative circum- 
 stances : nothing more inconclusive, supposing it to stand 
 alone. Receptacles may be contained one within the other, 
 as in the case of a nest of boxes : the jewel in a case ; the 
 case in a box ; the box in a bureau ; the bureau in a closet ; 
 
 (a) Surrey Summer Assizes, 1827: Wills, Giro. Evid. 54. 
 (A) 3 Beuth. Jud. Evid, 39, 
 
 (c) Best on Pres. § 226. 
 
 (d) See ante, p. 450, 
 
 (e) 5 London Legal Observer, 231 
 
566 INFIRMATITE CONSIDERATIONS. [PART II. 
 
 the closet in a room ; the room in a house ; the house in a 
 field. Possession of the jewel, actual possession, may thus 
 belong to half a dozen different persons at the same time : 
 and as to antecedent possession, the number of possible suc- 
 cessive possessors is manifestly beyond all limit." (a) 
 
 Lastly, supposing the accused to be in reality not free 
 from guilt, his crime may have been a very different one 
 from that inferred from the possession of the property. 
 Thus, supposing a murder to have been committed near a 
 road, and the dead man's watch to be found, soon after, in 
 the possession of the accused, and allowing the usual infer- 
 ence to prevail, its effect is to connect him with the murder. 
 But the fact may have been that the accused, while passing 
 along after the crime had been committed, and seeing the 
 deceased whom he supposed to be intoxicated, robbed him. 
 In a case which grew out of the case of Rex v. Downing, {b} 
 this circumstance was shown to have been the actual fact. 
 So the offence actually committed may have been that of 
 having received stolen goods with a guilty knowledge of 
 their having been stolen ; and not larceny, with which the 
 accused is charged, (c) In a case cited by Mr. Wills, four 
 persons were found guilty of house-breaking, on proof of the 
 recent possession of stolen goods ; but it was afterwards as- 
 certained 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. He very 
 narrowly escaped execution, (d) 
 
 14. Sudden change of life or circumstances. 
 
 The infirmative consideration applicable to this fact is a 
 very obvious one, and will not require to be dwelt upon. A 
 
 (o) 3 Jud. Evid. 89, 40. 
 
 (b) Wills, Circ. Evid. 137, 139. 
 
 (c) Best on Pres. § 227. Wills, Circ. Evid. 55. 
 
 {d) Id. ibid, citing Rex v. Ellis, Sessions Papers and A. K. 1831. 
 
CHAP. I.J OR SUPPOSABLE FACTS. 567 
 
 sudden accession of wealth may come, and sometimes does 
 come from souices wholly unconnected with crime. An 
 unexpected succession to an estate, or an unlooked for 
 ■ legacy, has occasionally elevated an individual from a state 
 of abject poverty to positive afSuence. It has already been 
 mentioned, (a) that, by the civil law, the suddenly becoming 
 rich was not even prima facie evidence of dishonesty 
 against a guardian ; (&) " and it is now," observes Mr. Best, 
 " perfectly understood in our criminal courts, that it is not, 
 when standing alone, any ground for putting a party on his 
 defence, — however the principle may occasionally have been 
 violated by inferior tribunals." (c) The fact that the cir- 
 cumstances of a particular person have become suddenly 
 improved soon after the commission of a robbery or murder, 
 presents a mere coincidence of two events, which may in 
 reality have no connection whatever ; and it has already 
 been shown that even numerous coincidences, much closer 
 and more minute than this, do not, without other evidence, 
 afford conclusive proof of guilt, (ci) 
 
 15. Giving different and inconsistent accounts of the cause 
 of the death of a person. 
 
 In addition to the general infirmative considerations ap- 
 plicable to all oral statements of one person in the hearing 
 of another, namely, those of misunderstanding and inaccu- 
 rate remembrance on the part of the hearer and witness, (e) 
 this fact may be explained, consistently with the inno- 
 cence of the accused, on the supposition of the state- 
 ments being merely conjectural, without any claim to the 
 
 (ff) Ante^ p. 459, note (d). 
 
 (A) Cod. 5, 51, 10. Voet ad Pand. lib. 22, tit. 3, n. 14. 
 
 (c) Best on Pres. § 238, citing 2 Evans' Pothier on Obi. 345. 
 
 {d) See the supposed case of a purse and its contents, lost and found, put 
 by Mr. Starkie, (1 Stark. Evid. 497, 499, note,) and considered on a former 
 page, (ante, pp. 169, 171,) and which Mr. Best cites as illusttative of the in- 
 adequacy of this species of evidence. 
 
 (e) See ante, pp. 544, 645. 
 
588 INFIRMATIVE CONaiDERATIONS, [PART II. 
 
 character of accurate information ; or on the supposition of 
 t!ie information having been received from various persons, 
 and at different times, or obtained from mere general report. 
 
 16. Objecting to the examination of a dead body. 
 
 The infirmative supposition applicable to this fact has al- 
 ready been mentioned, (a) The objection, especially in the 
 case of a near relationship to the deceased, may arise from a 
 natural feeling of repugnance against having the body of a 
 friend subjected to anatomical examination, particularly of 
 that searching character (involving the absolute destruction 
 of portions of the body,) which is essential to the verification 
 of suspicions of poisoning. The existence of this feeling 
 has been referred to, as a known fact. (6) 
 
 17. Refusal to look at a dead body. 
 
 This circumstance, also, may be explained on the suppo- 
 sition of a natural feeling of repugnance, (which cannot be 
 pronounced uncommon in its occurrence,) against looking at 
 the body of a person who has come to a violent end ; espe- 
 cially if in a bleeding, mangled, mutilated or decaying state. 
 The circumstance next mentioned serves to explain, in a 
 great degree, the reason of this. 
 
 18. Agitation on looking at a dead body. 
 
 There are several instances on record, in which this feeling 
 has been visibly manifested in the strongest form, by persons 
 who were wholly innocent, and satisfactorily proved to have 
 been so. In the melancholy case of William Shaw, it was 
 relied on as a strong circumstance against the accused, that, 
 on coming into the room where his daughter lay, a bleeding 
 corpse, and seeing a number of persons there who had forced 
 an entrance, on hearing groans, he turned pale, trembled and 
 
 (c) Ante, p. 461. 
 
 (b) Wills, CircEvid. 75. 
 
OHAP. I.] OB SUPPOSABLE PACTS. 569 
 
 seemed ready to sink. But after his execution, it was proved 
 to have been a clear case of suicide, (a) The same circum- 
 stance occurred in the case of the Dublin surgeon, referred 
 to on a previous page. (6) Actual fainting has sometimes 
 been produced by the excessive agitation experienced on 
 such occasions, and even by the mere recollection of the 
 appearance of the body. In Bell's case, the father of the 
 deceased, on attempting to testify as to the state in which 
 he found his son's body, fainted twice in the witness box, 
 and had to be carried out of court, (c) 
 
 19. Alarm in view of discovert/. 
 
 This circumstance, although in many, and perhaps most 
 cases, reasonably indicative of guilt, is not, in its nature, 
 by any means, inconsistent with the fact of innocence. Sup- 
 posing a case in which a number of seemingly important 
 physicai facts have been fabricated, with the express view 
 of criminating a perSon ; and that he, having discovered 
 their existence himself, has no means of preventing their 
 discovery by others, or of adequately exposing the fraud ; 
 alarm, in such a position and emergency, would be a natural 
 emotion. So, a weak or ignorant person might be led to 
 over-rate the. effect of circumstances, really immaterial, but 
 seemingly tending to criminate him ; and by the exhibition of 
 needless alarm in consequence, actually create against himself 
 evidence to strengthen the force of these very circumstances. 
 
 20. Concealment and flight, (d) 
 
 These important criminative circumstances may be ex- 
 plained by the following infirmative considerations. 
 
 (a) Theory of Presumptive Proof, Appendix, case 8, p. 94. 
 
 (6) See ante, p. 371, note (a).- 
 
 (c) 1 London Legal Observer, (Monthly,) 318. In this case, the prisoner, 
 who was only fourteen years of age, was indicted for the murder of another 
 boy, and found guilty. 
 
 {d) These circumstances are considered by llr Bentham under the some- 
 
670 INFIRMATIVE CONSIDERATIONS, [PART II. 
 
 The act observed and construed into an act of concealment 
 or flight, may, in reality, possess no such character, being 
 wholly unconnected with crime of any kind. It may be one 
 of those ordinary cases of simple change of residence in the 
 same community or vicinity, or of departure from it, in pur- 
 suit of health, business or pleasure, which are constantly 
 occurring in all communities, (a) The fact that such an 
 event is observed to take place, immediately or soon after 
 the commission of a crime in the same vicinity, presents 
 merely a coincidence of events, which might be equally 
 applicable to a dozen other individuals. 
 
 But, supposing it a case of actual concealment or flig-M, 
 in the proper judicial sense, — that is, supposing it a case of 
 removal or departure, o^, (to use the most comprehensive 
 term,) of disappearance, induced or impelled by a fear of 
 the power of the law, — it may have arisen from a source 
 wholly unconnected with the particular crime charged ; 
 such as a desire to avoid the service of civil process, or the 
 inquiry into some other offence. (6) 
 
 Finally, supposing that the observed act of departure or 
 disappearance, on the part of a suspected person, was actu- 
 ally caused by a desire to avoid the charge of having com- 
 mitted the crime which has been discovered, even this cir- 
 cumstance, though proved ever so clearly, is, in itself, by no 
 means conclusive evidence of guilt, (c) Under certain 
 circumstances, the most innocent person may deem a judicial 
 trial too great a risk to encounter, (ci) The existence of a 
 strong public feeling against him, however unfounded, pre- 
 sents an urgent reason forVithdrawing out of the reach of 
 such an investigation. In several cases on record, persons 
 
 what uncouth title of " avoidance of justiciability," which Mr. Best has modi- 
 fied into " evasion of justice." 3 Benth. Jud. Evid. 170. Best on Pres. § 244. 
 (a) 3 Benth. Jud. Evid. 175—177. 
 
 (4) id. leo. 
 
 (c) Best on Pres. § 246. 
 
 (d) Id. ibid. 
 
CHAP. I.] OR SUPPOSABLE FACTS. 571 
 
 who were afterwards shown or declared to have been inno- 
 cent of a criminal charge, have endeavoured to protect 
 themselves against it, by adopting (and sometimes inju- 
 diciously,) measures of this evasive character. In Cole- 
 mavUs case, the crime which had been committed was an 
 atrocious one, and excited a strong desire for the appre- 
 hension and punishment of the perpetrators. The pris- 
 oner, having been charged, (partly in consequence of his 
 own folly,) with being concerned in the transaction, was 
 brought before a magistrate ; who, however, was so far con- 
 vinced of his innocence, that he allowed him to go at large, 
 on bail to appear at the next assizes. But the coroner's 
 inquest having, in the meantime, brought in a verdict of 
 " guilty " against him, he became alarmed at the prospect 
 of the danger attending a trial in the excited state of public 
 feeling, and fled. Being subsequently apprehended, he was 
 tried, convicted and executed. It was afterwards proved 
 that he was entirely innocent ; the crime having been com- 
 mitted by other persons, (a) The same circumstances of 
 flight to another state and concealment there, were proved 
 against the prisoner in Avery's case, which, however, re- 
 sulted in a verdict of acquittal. (6) 
 
 Disguise of the person and the assumption of a feigned 
 name, being merely auxiliary expedients adopted in order to 
 carry out the main purpose of concealment, are subject, for 
 the most part, to the same infirmative considerations. 
 
 21. Conduct and language on arrest. Fear as expressed 
 by deportment. 
 
 The physical and visible evidences or symptoms of emotion 
 
 (a) 5 London Legal Obserrer, 330, 331. It is to be observed, howeTer, 
 that the flight of the accused was not the only deceptive circumstance in the 
 case. The falsity of the verdict was chargeable, mainly, to the direct (though 
 mistaken) identification of his person, by the woman who had been the victim 
 of the injury. 
 
 (A) The State v. Avery, before the Supreme Court of Rhode Island, May, 
 1833; testimony of Harop.y Harnden. 
 
572 INFIKMATIVE COXSIDEBATIONS, [PART II. 
 
 on arrest, were enumerated on a former page, (a) The 
 force of these manifestations, as criminative circumstances, 
 depends on the correctness of the inference that the par- 
 ticular symptom observed has been produced by the emotion 
 of /ear; that is, of fear of detection, or punishment for the 
 offence charged, (i) They may be considered as subject to 
 the following infirmative considerations. 
 
 The appearance observed may not be the effect or mani- 
 festation of any mental emotion whatever, but of a purely 
 physical fact ; namely, bodily indisposition, (c) 
 
 The appearance may be the effect of mental emotion, but 
 of a different emotion from that inferred ; such as astonish- 
 ment, anger or grief. QT) 
 
 Supposing the appearance observed to be actually the 
 effect of the emotion of /ear; that emotion may be refer- 
 able to other causes than a consciousness of guilt. Thus, 
 
 It may arise from a consciousness that appearances are 
 against the party, and a consequent apprehension that he 
 may be subjected to judicial annoyance and vexation, or 
 possibly condemned as guilty, although innocent. In the 
 French case of M. D'Anglade, where a rouleau of louis d'ors, 
 claimed to be part of a larger sum of which the Count of 
 Montgomery had been robbed, was found in a trunk in the 
 attic story of a hotel occupied jointly by the count and the 
 accused, the latter was directed by the Lieutenant of Police, 
 (who had, from the first, conceived a suspicion against him,) 
 to count the money. Terrified at the imputation of guilt, 
 and the prospect of the fatal consequence which in France, 
 at that time, often followed the imputation only, his hand 
 trembled as he counted the money. He was sensible of it, 
 and said " I tremble." This natural emotion appeared in 
 the eyes of his accusers a corroboration of his guilt, and 
 was effectually used in procuring his condemnation and ruin : 
 
 (a) Ante, p. 476. 
 
 (A) BestonPres. § 249. 
 
 (c) 3 Benth. Jud. Evid. 156. 
 
 id) Best on Pres. § 250. See ante, pp. 476, 477. 
 
CHAP. I.] OE SUPPOSABLE FACTS. 673 
 
 although it was afterwards proved that the robbery had been 
 committed by the count's own almoner, with the aid of an 
 accomplice, (a) 
 
 It may arise from an apprehension that a fact which has 
 no criminal character whatever, will be publicly exposed , to 
 the injury, mortification or vexation of the party himself, or 
 some other individual connected with him by some tie of 
 sympathy. (6) 
 
 Supposing, finally, that the appearance observed is not 
 only, in truth, the effect of the emotion of /ear, but that 
 such emotion arises from a consciousness of guilt, the follow- 
 ing supposition may be applicable. 
 
 It may be a consciousness of some other crime, committed 
 either by himself, or by some other individual connected 
 with him, and on whom the inquiry may bring down sus- 
 picion or punishment, (c) 
 
 Confusion manifested on being charged with participation 
 in the commission of a crime, or questioned as to some cir- 
 cumstance connected or supposed to be connected with it 
 may arise from a feeling of mortification at the discovery of 
 a fact supposed to have been known only to the party him- 
 self. In Harris^ case, one of the principal circumstances 
 on which the accused was convicted was, his having been 
 seen to bury some gold in a stealthy manner, the same 
 morning on which the deceased was found dead, (and sup- 
 posed, though erroneously, to have been murdered) in his 
 house ; and that, on being questioned in regard to it, he 
 manifested much confusion and hesitation. The fact was 
 that the money was his own, and that, being of an avaricious 
 disposition, he had a habit of burying his money in the 
 manner which had been observed ; the exposure of which 
 habit and fact produced the emotion manifested, (d) 
 
 (a) 5 London Legal Observer, 231—231. 
 
 (4) 3 Benth. Jud. Evid. 157. Best on Pres. § 250. 
 
 (c) Id. ibid. 
 
 (d) Theory of Presumptive Proof, Appendix, case 3, pp. 75 — 77, 
 
574 INPIRMATIVE CONSIDERATIONS, [PART II 
 
 The apparently strongly criminative fact of resisting a 
 search of the person may arise from a similar feeling. 
 A story related by Mr. Benlham, as one which he had often 
 heard or read of, may be repeated in his own language, as 
 an illustration of this supposition. " An entertainment was 
 given by some great personage to a numerous and mixed 
 company : in the course of it, a trinket was displayed, the 
 value of which had, by I know not what operation of the 
 principle of association, been raised, in his imagination and 
 affections, above all ordinary estimation. On a sudden, an 
 alarm was given that the precious article was missing. ' Let 
 every man of us be searched,' said one of the company. 
 ' Yes, let every man of us be searched,' said all the rest. 
 One man alone refused : the eyes of all were instantly upon 
 him : his dress betrayed symptoms of penury : no doubt 
 remained about the thief. He entreated and obtained of 
 the master of the house a moment's audience in a private 
 room. His pockets were turned inside out, when in one of 
 them was found — not the lost trinket, but something eatable. 
 He had a wife who, for such or such a time, had gone with- 
 out food." (a) This was a secret, the public exposure of 
 which he had resisted. 
 
 22. Silence under accusation. 
 
 This circumstance is subject to the following infirmative 
 considerations. 
 
 The accused or suspected party, owing to deafness, or any 
 other cause, may not have heard the criminative question 
 asked, or observation made. (6) 
 
 (a) 3 Benth. Jud. Evid. 88, 89. According to the story, as the writer of, 
 the present work has seen it somewhere related, it further turned out that the 
 trinket had not been taken by any one, but had been put aside by the owner 
 or one of the company, in some temporary and unusual plaoe of deposit, where 
 it 'was wholly OTerlooked and forgotten, and where it was, long afterwards, 
 found, 
 
 (4) Best on Pres. § 241. Shaw, C. J. in Commonwealth t. Kenney, 12 
 Metoalf, 287. 
 
CHAP. I.] OR SUPP03ABLE PACTS. 575 
 
 If he heard it, he may not have understood it as coaveying 
 an imputation against himself, (a) 
 
 If he heard and understood it, he may not have been able 
 to reply at the moment, owing to temporary impediment of 
 utterance, or a feeling of surprise at the imputation con- 
 veyed. (6) 
 
 The subject of the statement may have been a matter not 
 within his knowledge, (c) 
 
 The statement may have been made under circumstances 
 not calling for a reply, (d) 
 
 The statement or question may have been made or put by 
 a person whom he did not feel called upon to notice, (e) 
 
 The statement may, in itself, seem reasonably to call for a 
 reply or remark of some kind, and yet the party may not 
 have felt at liberty to make it. (/) He may have been 
 conscious that, although innocent, appearances were against 
 him ; and yet have been reasonably apprehensive that if he 
 attempted or undertook to speak, he might in the confusion 
 natural in such an emergency, unintentionally drop an ex- 
 pression which would be used against him, and possibly with 
 disastrous effect. 
 
 23. Evasive and incomplete response. 
 
 The following infirmative considerations may be mentioned 
 under this head. 
 
 It may be a case where the appearance observed, and re- 
 quired to "be explained, such as blood on the clothing, al- 
 though criminative on its face, was not so in fact ; but the 
 accused having been subjected to it without his knowledge, 
 as by having come in contact with a bleeding body in the 
 
 («) Id. ibid. Best on Pres. § 241. 
 (4) See ante, p. 483, note (c). 
 
 (c) SAaia, C. J in CommoniocaKft V. JTcnnej, 12 Metoalf, 237. Robinson V. 
 £Z«n, 20 Maine, 109. 
 
 (d) Shaw, C. J. in Com nwnwealth v. £enney, uit supra. 
 {e) Id. ibid. 3 Benth. Jud. Evid. 92, 93. 
 
 (/ ) Shaw, C. J. aii sujpra. 
 
570 INFIRMATIYE CONSIDEUATIONS, [PAET II. 
 
 dark, was, although innocent, actually unable to explain its 
 existence, (a) 
 
 It may be a case where the accused, though innocent, 
 could only explain particular circumstancBS, by criminating 
 other individuals whom he was unwilling to expose, or dis- 
 closing facts which, he was anxious, if possible, to conceal. (6) 
 
 It may be a case where the accused, though not guilty of 
 the offence charged, cottld only prove himself so by showing 
 his guilt of some other offence, (c) 
 
 It may have been considered by the accused his best 
 policy not to disclose the particulars of his defence, until 
 judicially demanded of him on his trial, (d) 
 
 24. False response. 
 
 The following infirmative considerations maybe mentioned 
 under this head. 
 
 The alleged false statement may have been misunderstooa 
 or misrcported by the witness, (e) 
 
 Supposing it to have been false in fact, as reported, it 
 may be attributable to the same cause which has sometimes 
 led innocent persons to resort to false evidence in their 
 defence, as by actually fabricating facts and appearances, in 
 order to produce false impressions. (/) 
 
 25. Indirect confessional evidence. 
 
 The following infirmative considerations belong to this 
 head. 
 
 The supposed confessional statement may be, either wholly 
 or in part, a, fabrication of the deposing witness. It is re- 
 marked by Mr. Best, in regard to testimony as to statements 
 of this character, that, of all testimony, it is " the most easily 
 fabricated and the most difficult to disprove ; for, from its 
 very nature, it is seldom possible to confront and expose its 
 
 (o) Ante, p. 542. Best on Pres. § 212. (d) Best on Pres. § 242. 
 
 (b) Id. ibid. (e) Id. § 243. 
 
 {c) Id. ibid. (f) Id. ibid, gee ante, p.557. 
 
CHAP. I.] OR SUPPOSABLE PACTS. 677 
 
 falsehood by positive, or indeed, even by presumptive evi- 
 dence." (a) 
 
 The supposed confessional statement or observation may 
 have been imperfectly or inaccurately heard, and in that 
 way misunderstood, and, thus, although unintentionally, mis- 
 reported by the witness. One or two cases illustrative of 
 this possibility may be mentioned. In Coleman's case, 
 there were two different accounts given of a particular 
 expression said to have been made use of by the accused, in 
 answer to a question whether he was not one of the parties 
 concerned in the commission of a certain offence : one saying 
 that his words were, " Yes I was, and what then " ? and 
 the other, that they were, " If I was, what then ? " (6) In 
 the case of Rex v. Simons, (c) where the prisoner was 
 indicted for a capital offence, a witness was called to prove 
 that, as he was leaving the committing magistrate, he was 
 overheard to say to his wife, " Keep yourself to yourself, 
 and don't marry again." But another witness stated the 
 words to have been, " Keep yourself to yourself, and keep 
 your own counsel." The wide difference between these 
 expressions was referred to by Alderson, B. in the case, as 
 showing how little reliance ought to be placed on such evi- 
 dence, (c?) 
 
 The supposed confessional statement or expression may 
 have been actually uttered as heard and reported, but mis- 
 interpreted by having been understood to apply to the act 
 which is the subject of accusation, whereas it was uttered in 
 reference to another act. As where a man Vho has robbed 
 or beaten another, on hearing that he has since died, utters 
 an exclamation of regret at ever having had any thing to 
 do with him. (e) 
 
 (a) Best oa Pres. § 272. 
 
 {!)) See the case as reported by Mr. Wills, Giro. Evid. 68. And see infra. 
 
 (c) 6 Carr. & P. 540. 
 
 (d) Id. ibid. 
 
 (e) Best on Pres. § 272. p. 313. 
 
578 INFIBMATIVE CONSIDERATIONS, [PART II. 
 
 The supposed confessional statement or expression may 
 have been uttered as heard and reported, and not misunder- 
 stood in its application, so far as it was heard ; but has 
 been productive of a false impression, owing to the want of 
 some explanation which the speaker either neglected to give 
 or was prevented from; giving, through interruption, <fec. 
 As where a man was hoard to say, and did say, " I killed 
 A. B." but did not add, what he meant to have added, that 
 it was in self-defence; or, in case of larceny, was heard 
 to say, and did say, " I took the goods of the prosecutor," 
 but omitted to add that he did so under the belief that he 
 was justified in so doing, &c. (a) 
 
 The supposed confessional statement or expression may have 
 been uttered as heard and reported, and not misunderstood 
 from any of the causes above mentioned, and yet may have 
 produced an erroneous impression on the witness, though with- 
 out fault of any kind on his part. The expression may have 
 been uttered in jest or by way of bravado, . (6) or in the 
 rash and careless manner of intoxicated persons. Cole- 
 man's case may be again referred to, under this head. The 
 prisoner being suspected of having been concerned in a 
 brutal assault upon a woman, which resulted in her death, 
 a person deposed that he met him at a public 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 he was not one of th^ 
 parties concerned in that affair ; to which he answered, 
 according to one account, " Yes, I was, and what then ? " 
 or, according to another, " If I was, what then ? " This 
 language, in connexion with other circumstances, induced 
 the jury by whom he was tried, to convict him, and he was 
 executed. But it appeared that he was intoxicated at the 
 time of using these expressions, and that the questions were 
 
 (a) Best on Pres. § 273. 
 (A) Id. § 272. 
 
GHiP. I.] OR SUPPOSABLE PACTS. 579 
 
 put mth the view of ensnaring him. And it also appeared 
 afterwards that he was entirely innocent of the chargS. (a) 
 In connection with this subject, it may be further obsei^ved, 
 that even direct and full confessions of crime, accompanied 
 by a minute relation of particulars, have been made by per- 
 sons who were, nevertheless, entirely innocent. The case 
 of the Perry s mentioned in a previous note, (&) and the 
 Vermont case of the two Booms (c) are remarkable' 
 
 (o) Wills, Circ. Evid. 68. 
 
 (i) See ante, p. 215, note (rf). 
 
 (c) These persons were convicted, in the Supreme Court of Vermont, in 
 Bennington County, in September Term, 1819, of the murder of Russell Col- 
 vin. May 10, 1812. It appeared that Colvin, who was the brother-in-law of 
 the prisoners, was a persoa of a weak and not perfectly sound mind ; that ha 
 was considered burdensome to the family of the prisoners, who were obliged 
 to support him ; that, on the day of his disappearance, being in a distant field 
 where the prisoners were at work, a violent quarrel broke out between them ; 
 and that one of them struck him a severe blow oc the back of 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 few months afterwards. These suspicions, in process of time 
 subsided; but in 1819, one of the neighbors having repeatedly dreamed of the 
 murder, with great minuteness of circumstance, both in regard to his death 
 and the concealment of his remains, the prisoners were vehemently accused, 
 and generally believed guilty of the murder. Upon strict search, the pocket* 
 knife of Colvin and a button of his clothes, were found in an old open cellar 
 in the same field; and, in a hollow stump, not many rods from it, were dis- 
 covered two nails and a number of bones, believed to be those of a man. Upon 
 this evidence, together with a deliberate confession by the prisoners, of the 
 fact of the murder and concealment of the body in those places, they were 
 convicted and sentenced to die. On the same day, they applied to the legis- 
 lature for a commutation of the sentence of death to that of perpetual im- 
 prisonment; which, as to one of them only, was granted. The confession 
 being now withdrawn and contradicted, and a reward offered for the discovery 
 of the missing man, he was found in New Jersey, and returned home in time 
 to prevent the execution. He had fled for fear that they would kill him. The 
 bones were those of some animal. The prisoners had been advised by some mis- 
 judging friends, that, as they would certainly be convicted upon the circum- 
 stances proved, their only chance for life was by commutation of punishment; 
 and that this depended on their milking a penitential confession, and thereupon 
 obtaining a recommendation to mercy. 1 Greenl. &rid. § 214, note 2, which 
 see for further obsen'ationa and references on the subject. 
 
580 INFIKMATITE CONSIDERATIONS. [PART II. 
 
 instances of self-crimination carried to this extent. Mr. Best 
 has enumerated no less than twelve classes of motives which 
 may lead, or actually have led to false confessions, (a) 
 
 26. Demeanour during trial. 
 
 The infirmative considerations applicable to this circum- 
 stance have been mentioned in treating of it as an element 
 of criminative evidence. (6) 
 
 (a) Best on Pres. §§ 259—270. 
 (i) See ante, p. 502. 
 
CHAPTER II. 
 
 FACTS OB CIRCUMSTANCES, CONSIDERED AS CONSTITUTING BODIES 
 OF ETIDENCB ; INCLUDING A VIEW OP THE PRINCIPLES UPON 
 WHICH THEY ARE APPLIED TO THE PURPOSES OP PROOF, AND 
 THE PROCESSES INVOLVED IN SUCH APPLICATION. 
 
 In the preceding chapter, the principal criminative facts 
 or circumstances which constitute the elements or materials 
 of circumstantial evidence, have been separately enumerated 
 and classified, and their individual probative force comment- 
 ed on. The principal exculpatory circumstances, whether 
 requiring to be actually proved, or reasonably subject to be 
 supposed, which may be used to rebut or qualify the former, 
 have also been presented. It remains to explain how these 
 circumstances and considerations are practically applied to 
 the purposes of proof, or made available as proof in par- 
 ticular cases. This may be summarily described as effected 
 by connecting and combining them into bodies of evidence, — 
 a process, the course and method of which, as developing 
 the essential principles upon which it is conducted, together 
 with some other considerations, will be made the subject of 
 particular illustration in the following sections. 
 
682 PROCESS AND PRINCIPLES [PART II, 
 
 SECTION I. 
 
 The process of constructing' a body of Evidence out of 
 Circumstances, considered as developing the essential 
 Principles upon which its efficacy as proof depends. 
 
 The fundameutal principle upon which a body of circum- 
 stantial evidence is constructed and applied to the develop- 
 ment of truth, is expressively indicated, at the outset, by 
 the radical meaning of the word " circumstance " itself. It 
 is exhibited in the relation or relative position of certain 
 known facts, termed, from their inferior individual impor- 
 tance, minor facts, towards another and unknown fact, which 
 from being formally proposed as the single object of proof, 
 is termed the principal fact ; (a) such relation giving to the 
 former a certain significance and power in developing the 
 latter. This relation, being capable of being established on 
 all sides (as it were) of the principal fact, — that is, by facts 
 preceding, accompanying and following it, or rather, the 
 overt act which it embodies and represents, — the minor 
 facts themselves are represented by the expressive figure of 
 standing around, or surrounding the other ; and hence derive 
 their name of " circumstances." (6) In the process of proof, 
 the principal fact being placed in this assumed central posi- 
 tion, the circumstances are grouped around in their supposed 
 appropriate relative positions ; each being allowed its natural 
 and reasonable meaning or significance. This relative sig- 
 nificance may be expressed by the simple figure of lines of 
 indication, proceeding from each circumstance. If all these 
 lines, thus formed, are found to converge, without variation, 
 upon the point occupied by the principal fact, they at once 
 establish its existence ; it being literally indicated or pointea 
 to, as the required truth. If, however, they do not converge 
 
 (a) See ante, pp. 3, 121 and note (d) ibid, 
 {b) See ante, pp. 8, 121 and note (d) ibid. 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 583 
 
 upon any one point, or if the point upon which they converge 
 is a different one from that occupied by the principal fact, 
 or if they are found to converge as readily upon the one as 
 the other, no conclusion as to the truth of that fact can be 
 formed by the process. 
 
 In the application of circumstantial evidence to the judi- 
 cial investigation of the truth of criminal charges, the prin- 
 cipal or central fact just spoken of is the crime supposed 
 and charged to have been committed ; the truth of such 
 charge being formally proposed as the subject of trial. And 
 this fact always presents itself as compounded of two 
 others : — a crime committed by some responsible agent, — 
 and that agent, the individual judicially charged in the case, 
 or the prisoner at the bar. To both of these component 
 fac^f , the indicatory circumstances are applied in the same 
 general way. Sometimes, they present subjects of investi- 
 gation which are so far distinct, as to require being proved 
 by different sets or combinations of circumstances. In other 
 cases, they are found to be so intimately united, that the 
 same set of circumstances avails as proof of both, (a) 
 
 The proof of the general fact of a crime committed, or 
 corpus delicti, (as it is technically termed,) is sometimes a 
 short and simple process ; the circumstances being few, but 
 cogent in their indications; and the conclusion sought, mani- 
 fest and irresistible. A cry of distress is heard from a 
 building or apartment, followed, successively, by sounds as 
 of a mortal struggle and a heavy fall. The place is entered 
 as quickly as possible, and a person is found extended on 
 the floor, dying from mortal wounds visibly inflicted with a 
 sharp instrument, in such a part of the body, or in such 
 numbers or directions, as to forbid the supposition of suicide, 
 and the instrument itself is no where to be found. In other 
 cases, as of death by poisoning or strangulation, and where 
 the body is not found until sometime after death, the proof 
 
 (a) See Best on Pres. § 201, p. 270. 
 
584 PROCESS AND PRINCIPLES [PART II. 
 
 of a corpus delicti is frequently a delicate process, and ac 
 complislied with more or less of difficulty, (a) 
 
 But leaving, for the present, the particular proof of this 
 preliminary and fundamental fact, or supposing it proved, 
 and returning to the general view just taken, of minor facts 
 in their relative position as surrounding a principal fact, the 
 process of aggregating these elementary circumstances into 
 a body of evidence may be most conveniently illustrated by 
 beginning with a single circumstance, and adding to it an- 
 other ; and so proceeding gradually by a succession of 
 additions, (the infirmative considerations being presented 
 and disposed of, as they successively arise, in the course of 
 the process,) until the requisite amount of proof is consid- 
 ered as attained. 
 
 Before entering, however, into the details of this process, 
 there are some views of the general course, character and 
 object of judicial inquiry into crime, which appear to claim 
 attention. The original basis of all the investigation which 
 is undertaken, is the case or transaction, as it actually oc- 
 curred; composed, in addition to the principal act of the 
 crime itself, of a variety of circumstances, — precedent, con- 
 comitant and subsequent, — of physical facts, psychological 
 facts, and facts of conduct, — all consistent with each 
 other, (6) and all connected with each other and with the 
 criminal act, (c) in a certain order and relation. This is 
 the case or transaction, in its absolute form of reality and 
 truth. 
 
 But this transaction, having had only a transient existence, 
 has passed away, (d) Much of it, as it occurred, was 
 enveloped in obscurity purposely created by the criminal 
 agent himself. An occasional or detached constituent 
 element or circumstance may have fallen under the notice 
 
 (u) See farther on this subject, post. p. 677. 
 
 (b) 1 Stark. Evid. 20, 482. 1 Greeul. Evid. § 12. ^nie, p. 84. 
 
 (c) 1 Greenl. Evid. § 12. 
 
 (d) 1 Gilb. Evid. 2. 1 Stark. Evid. 15, 23. Ante, p. 95. 
 
CHAP. II.] OF CIRCUMSTANTIAL PROOF. 685 
 
 of a contemporaneous observer ; (a) but as a whole, in its full 
 character and extent, and in the true relation of all its parts, 
 it was unknown to any human being besides the perpetrator, 
 (supposing it the work of a single agent,) and none but ho 
 can fully represent it in a narrative of the past. It has, 
 however, left traces, more or less numerous, consisting of 
 physical objects and appearances, (some still existing in 
 specie,') and contemporaneous impressions made on the senses 
 and memories of individual observers. The great object of 
 all investigation is to collect these scattered remnants and 
 vestiges of action ; to examine and compare them ; to adjlist 
 them to each other, by means of indications which they 
 themselves immediately furnish, as well as by the aid of 
 general principles of presumptive reasoning ; to ascertain, 
 as it were, their original places and positions ; and, by this 
 means, to re-construct the case, as far as possible out of 
 them ; to recall it from the past, and to present it as a sub- 
 ject for consideration, in a state of as close approximation 
 to the form of its original occurrence as may be practi- 
 cable. (6) The more adequately this is done, the more 
 easy does the process of investigation become, and the more 
 accurate are the conclusions ultimately reached by it. 
 
 The moment a crime is discovered or suspected to have 
 been committed, this process may be said to begin ; and its 
 general course through the different instrumentalities legally 
 provided for the purpose, may be briefly noticed. In its 
 earliest stage, it often happens that it is conducted in the 
 most informal, irregular and even careless manner. The 
 physical traces of action, particularly, although then most 
 recent and abundant, and of proportionate value, are left 
 open to the indiscriminate notice, handling and disposal of 
 casual observers, (c) It is not until medical examinations 
 and coroners' inquests (when applicable to the case,) eome 
 
 (a) See onie, pp. 98, 100. 
 
 (6) See ante, p. 95. 1 Stark. Evid. 23. 
 
 (c) SeeanJe, pp. 140, 141, 142 and note (a) iJid. 
 
586 PBOCESS AND PRmCIPLES [PABT II. 
 
 to be held, that the investigation assumes any character of 
 formality or precision. The original observers of the facts 
 are then sought for, and made witnesses, and through them 
 the facts become, for the first time, converted into evidence. 
 At the next stage, the investigation is carried on with stricter 
 form. The public prosecuting officer now assumes the direc- 
 tion of the proceedings, a wider range is given to inquiry, 
 the evidence of the witnesses already known is noticed and 
 preserved, and that of others is sought for ; the case is sub- 
 mitted to the examination of a grand jury, who are attended 
 by the witnesses ; and, under their approval, a formal accu- 
 sation or indictment is drawn up and preferred against the 
 prisoner. Last of all, and at the farthest remove from the 
 case as it occurred, and subject to some disadvantages on 
 that account, (a) but combining the results of all the previ- 
 ous examinations, comes the trial itself; affording, under 
 the technical form of an issue, the widest possible range for 
 inquiry and discussion, and the freest scope for examining 
 the fac^s in every possible light, and extracting from them 
 the truth as to the guilt of the prisoner, which is now for- 
 mally proposed as the factum p7-obandum of the case. 
 
 The particular manner in which the elements of circum- 
 stantial evidence are laid before a jury, will be again ad- 
 verted to. But the development of the essential principles 
 involved in the process of proof by this means, may be more 
 adequately explained by going back to an earlier stage of 
 investigation, and supposing the facts to be presented in the 
 more gradual course of their original discovery. 
 
 Taking, then, for the subject of investigation, a case of 
 murder, the following may be supposed to present the corpus 
 delicti, as fully proved. A woman has been found at night, 
 
 ( « ) It is a familifir truth that not only the physical facts of a case, but the 
 impressions made upon the senses and memories of observers, are exposed to 
 the hazard of change and obliteration by lapse of time. The testimony of a 
 witness, as given on a trial, is sometimes found to vary materially from that 
 delivered by the same vritness before a coroner's jury. 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 587 
 
 dead in her bed, with several wounds on the head, apparently 
 infl'cted with a hatchet or similar implement, and the bed 
 it." elf partially consumed by fire. In the effort to discover 
 the perpetrator of this offence, the following series of facts 
 may be supposed to appear. On examining the premises, 
 during the night, and soon after the discovery of the crime, 
 a man's hat or cloak is found on the ground in the rear yard 
 of the house. This is a fact of the strictly physical class, 
 presenting the first trace of the particular human agency 
 sought for, and so proximate, in point of time and place, as 
 to claim to be taken into careful consideration, as a possible 
 means of throwing light on the transaction which has oc- 
 curred. The fact has not only a meaning; but, under the cir- 
 cumstances, it demands explanation and an interpretation of 
 some kind or other. The questions which immediately and 
 naturally suggest themselves, in reference to the article 
 found, are ; " How came it to be there ?" and " what does 
 it mean ?" Viewed with reference to its ordinary uses, it 
 indicates, as the reasonable cause of its existence, the pres- 
 ence of a man at the spot where it was found. But the fact 
 has a more important aspect than this. The extraordinary 
 position of the article gives to it an extraordinary character, 
 indicating, as its immediate cause, the existence of some 
 unusual occasion, and a correspondingly unusual condition 
 on the part of the supposed wearer. According to the 
 known habits of men, the article would not be thus disposed 
 of by its wearer, unless under the pressure of some strong 
 emergency, such as a desire to escape- from the spot with the 
 least delay ; — the article being either dropped by the party 
 in his haste, or intentionally thrown off to facilitate rapidity 
 of movement. In its character, therefore, the fact corres- 
 ponds with the extraordinary occurrence of the crime itself ; 
 and its ^^iyaical juxta-position to the scene of crime presents 
 another reason for associating them together. The prin- 
 cipal fact of the crime affords the only means, yet known, 
 of accounting for the minor fact just shown, and aids in giving 
 
588 PROCESS AND PRINCIPLES [PAKT II. 
 
 to it the interpretation sought, which is this : — that the 
 wearer of the hat or cloak was present at the scene of the 
 crime, on the night of its commission ; and that he escaped 
 from it in haste, and by an unusual way, in order to avoid 
 observation. But the fact thus discovered, and thus inter 
 proted, is of no value unless it serves to suggest or indicate, 
 some particular individual as the agent from whose presenca 
 and conduct it emanated. Supposing, therefore, that, upon 
 examination, the hat or cloak found is discovered to re 
 semble closely an article worn by a certain individual, and 
 is by some, confidently believed to be identical with it ; thi'- 
 fact, thus growing out of the other, serves to give it the par- 
 ticular character required ; and, by its means, the &ci). 
 effectual step is taken towards the desired object of desig- 
 nating the offender. 
 
 The fact, thus shown, and reduced from general to par 
 ticular, tends to establish a connection between the indi 
 vidual apparently designated, and the crime committed, 
 upon a principle which has already been explained as lyin^ 
 at the foundation of all presumptive reasoning as applied in 
 human conduct. Placed in its proper position of relation to 
 the general fact of crime, it begins to give it a new char- 
 acter and aspect, to draw it out into particulars, to convei*. 
 it, in a certain degree, into the compound fact already de- 
 scribed, — that the individual indicated committed the crims 
 shown ; — and to point towards this fact, as the truth of tho 
 particular case. 
 
 But the process involved in. the interpretation and coo 
 hection just described, is only one of presumption, founded 
 on probability. So far as the finding of the article in ques- 
 tion is regarded as a purely physical fact, it implies, indeed, 
 two successive presumptions or inferences : first, that the 
 article actually belonged to, or was habitually worn by the 
 individual supposed to be designated ; and next, that such 
 individual wa? the person who wore it on the night of the 
 
CHAP. II.] OF CIRCUMSTANTIAL PROOF. 589 
 
 murder. Each of these is liable to be met by what has 
 already been explained as an infirmative supposition ; or, in 
 other words, the fact proved will, in both respects, admit of 
 a construction favorable to the individual, as well as the 
 unfavorable one which has been put upon it. The article 
 may not be satisfactorily and fully identified; or, if identi- 
 fied, it does not necessarily follow that it was worn by the 
 individual on the occasion. Another person, really con- 
 nected with the crime, may, accidentally or intentionally, 
 have obtained possession of it and worn it. Wo have here, 
 on one side, what must be admitted to be, in some degree, a 
 probability of guilt, but so far balanced or qualified, on the 
 other, by a reasonable possibility of innocence, as to afi^ord 
 no sufficient ground for any definite presumption against the 
 individual seemingly indicated. 
 
 But, in the course of investigation, another fact of tho 
 same physical class, comes to light. A hatchet, with which 
 a blow competent to have inflicted the wounds observed on 
 the body, inight have been given, and itself apparently 
 stained with blood, is found (with indications of having been 
 recently thrown there) in a corner of the yard of the premi- 
 ses, and not far from the spot where the other article was 
 discovered : and this hatchet, also, is believed, or indeed 
 proved to have belonged to the same individual. This is a 
 still more important fact than the one already noticed. It 
 indicates what is always necessary to be shown against any 
 accused party, — the general fact of the possession of the 
 means of crime ; while it presents the particular description 
 of means competent to have produced the known criminal 
 effect. It aids in confirming the fact of a corpus delicti; 
 and is, in turn, shown by that to have been a constituent 
 fact in the case. But it is as an identified article that it 
 establishes a distinct connection, — the second in the series — 
 between the individual designated and the crime itself. 
 Like the circumstance of the hat or cloak, it has a meaning, 
 
590 PROCESS AND PRINCIPLES [PART Hi 
 
 and is susceptible of au interpretation ; and being like that, 
 placed in its proper relative position, it points directly 
 towards the same compound fact. Here is a convergience 
 of two facts or circumstances towards the same point ; ex- 
 hibiting the process of aggregation in its earliest stage, and 
 the principle regulating it, in its simplest elementary form. 
 
 Viewed by itself, the supposed bearing and meaning of 
 this last circumstance might be met and explained or avoided 
 by the same species of suppositions as were applied to the 
 first one ; going to show tliat the appearance observed might 
 not, or, indeed, did not proceed from the cause assigned. 
 The implement may have been mistaken for another ; 
 it may have been accidentally thrown where it was found ; 
 what has been taken for blood upon it may be nothing more 
 than rust; or, if actually the party's hatchet, possession of it 
 may have been acquired by another person. But the fact of 
 conuergent and united bearing, which now, for the first time, 
 presents itself as an element of proof, begins to show that 
 this common determinate tendency from two distinct points 
 upon another, is not accidental but must be due to the oper- 
 ation of some real, inducing cause, common to both. In 
 other words, the probabilities that the assigned bearing and 
 meaning of the two facts, in union, is the true and actual 
 one, are now perceptibly increased and strengthened ; while 
 the force of the infirmative possibilities employed to meet 
 them is diminished and weakened in the same ratio. There 
 is less room for the suppositions of accident and the act of 
 another, than before. 
 
 Still, the latter arc by no means excluded. There is room 
 for a favo.raljle construction of these two facts, even in their 
 relative convergent position. It is possible that some un- 
 known individual, (the real perpetrator,) might have got 
 possession of both the articles, . and left them where they 
 were found. So far, therefore, no sufficient ground of a 
 definite presumption of guilt can yet be considered as estab- 
 lished. 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 591 
 
 But, as the investigation proceeds, a third fact is brought 
 to light. The individual supposed to have been the owner 
 or wearer of the article or instrument found, or, at least, a 
 person strongly resembling him, and by some sworn to have 
 been the same person, is ascertained to have been actually on 
 the premises where the crime was committed, on the night 
 of its commission. This is a more important fact than 
 either of those yet discovered. Although, in one sense, a 
 physical fact, like them, it is not merely and purely such. 
 It not only emanates from human conduct, but is immedi- 
 ately and necessarily blended with it, and cannot be con- 
 sidered apart from it. It presents the particular human 
 agent sought for, not presumptively and inferentially, as the 
 other facts did, but directly and absolutely. It presents him 
 as possessing opportunity to commit the crime ; a fact always 
 necessary to be made out against every accused party. It 
 is, in short, emphatically a fact of conduct, and that of the 
 most proximate kind. 
 
 We have thus far, then, three distinct connections, or 
 lines or links of connection, indicated and traced out be- 
 tween the crime known and the individual sought to be 
 charged with it. The force of these connections may now, 
 for a moment, be dwelt upon. This consists not only in the 
 circumstance that they all point and bear in one direction, 
 but that they, at the same time, tend toward each other, and 
 run together, (so to speak ;) giving to them that convergence 
 upon one point, which has already been mentioned as being 
 itself an essential element in the force of circumstantial evi- 
 dence. This point, in the case of an original investigation 
 of the facts, where the commission of the crime is clear,, is 
 the individual suspected or sought ; and, in the case of a 
 judicial trial, on evidence of such facts, it is the principal 
 or compound fact already described, and which is formally 
 proposed for proof. Again, the facts just considered as dis- 
 covered not only tend together, in their direction ; but, 
 taken together and actually united in the mind of the ob- 
 
592 PROCESS AND PEINCIPLE3 [PART 11. 
 
 server, they are found to support each other, giving and 
 receiving strength, and thus developing a new element of 
 power. Finally, as actually united, they are found to be 
 consistent, not only with the supposition of guilty agency in 
 the particular individual indicated, but also with each other ; 
 thus possessing another quality always belonging to what 
 may be called the true facts of a case. 
 
 To return to the facts of the case, as supposed to be dis- 
 covered or proved. The facts, thus apparently united as 
 discovered, are reasonably supposed to have actually oc- 
 curred in the same connection ; and the interpretation 
 which the discoverer and observer naturally give to them is 
 this: — that the individual indicated was concerned in the 
 commission of the crime : and that, seeking to escape by a 
 back way, in order to avoid observation, he accidentally 
 dropped his hat or cloak, in his haste, or purposely threw it 
 off as an encumbrance to motion ; and that the implement 
 was disposed of in a similar way. This interpretation gives 
 to each fact a natural meaning ; and it is naturally adopted 
 by the mind as the most reasonable one in the case ; sabject, 
 however, to be modified or even wholly abandoned, in the 
 event of the discovery of facts tending in an opposite direc- 
 tion. It is at this point of the investigation, that a proba- 
 bility and consequent presumption of guilt, on the part of 
 the suspected or accused individual, may be considered as, 
 for the first time, definitely formed ; from the material ac- 
 cession of evidentiary force contributed by the fact last men- 
 tioned. Still, it is a presumption, and nothing more, or 
 rather a grade of presumption, which however satisfactory 
 to the general investigator, as a mere matter of opinion, 
 yet, as a ground of action by the judicial investigator, in 
 the way of convicting an individual formally accused, is con- 
 fessedly inconclusive and insufficient. The probability on 
 which it rests may still be met and qualified by the following 
 infirmative suppositions. First, it may be a case of mistaken 
 identity ; the individual seen, so closely resembling the ac- 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 593 
 
 cused, as to be easily taken for him. But the foi'ce of this 
 supposition is, on the other hand, weakened in a very mate- 
 rial degree by the bearing of the two other associated facta 
 previously discovered, which support the fact of identity as 
 presumed, and cannot readily be accounted for on any other 
 supposition. Next, conceding the point of identity, and that 
 the individual supposed to have been seen was actually pres- 
 ent, so long as an exclusive presence is not shown, it is pos- 
 sible that the crime might have been committed by another 
 also present. But, here, again, the associated facts of the 
 articles found present difficulties in the way of such an in- 
 firmative supposition. The fact of their connection with the 
 accused, (on the suppositions of their identity and his inno- 
 cence,) can be accounted for only on the supposition that the 
 person who actually committed the crime had these articles 
 clandestinely on the premises, having previously got posses- 
 sion of them without their owner's knowledge. But this, 
 again, and in turn, is rendered improbable by the known 
 fact of the owner's presence, (which would . serve to give 
 him an opportunity of observing the articles and detecting 
 the fraud,) and the additional presumed fact of his presence 
 at the particular spot when the articles were found. Still, 
 there is room left for the following infirmative supposition, 
 or rather hypothesis of the case, as it may, with stricter f)ro- 
 priety, be termed, from its involving the assumption of 
 several connected facts. The real criminal may have fabri- 
 cated all the physical evidence hitherto discovered ; and 
 having possessed himself of the criminative articles, and 
 finding the accused present o;i the premises, took advantage 
 of that as a circumstance to aid his plans against him ; and 
 having waited until the accused had left the house, committed 
 the crime and then threw the articles where they might seem 
 to indicate the presence of the owner in the act of secretly 
 making his escape. 
 
 But this whole hypothesis is subject to be overturned by a 
 single additional fact. For, supposing it proved that the 
 
594 PROCESS AND PRINCIPLES [PART II. 
 
 accused, towards whom all the previously discovered facts 
 uniformly pointed, was seen, on the night of the crime, leav- 
 ing the premises, or their immediate vicinity, by an unusual 
 way, as over a fence ; or in an unusual manner, as in great 
 secrecy or in great haste ; or in an unusual personal condi- 
 tion, as without a hat ; — the case would be restored to the 
 original criminative supposition that he did escape by the 
 way indicated by the position of the articles, and that ha 
 dropped or threw them where they were found ; the coinci- 
 dence in regard to the hat, if such were the article, materi- 
 ally increasing its probability, (a) At this point, the in- 
 firmative hypothesis, in order to be at all tenable, would 
 have to be varied, and might be put in the following shape : 
 that the accused, being on the premises at the very time of 
 the commission of the crime, or soon after, and learning that 
 fact, and fearing to be implicated in the transaction, fled 
 precipitately from the house by the rear way, in order to 
 escape observation, dropping the article of apparel in his 
 flight ; and that the murderer, finding that he had escaped, 
 threw the hatchet in the vicinity of the article, on purpose 
 to add to its criminative effect. Or it might be put thus ; 
 that the murderer actually assaulted his victim in the pres- 
 ence or hearing of the accused, and that, on the latter's 
 interfering, he was assaulted in turn, and compelled to 
 escape as he did, in order to save his own life. 
 
 But, in the course of investigation and discovery which 
 
 (o) In the Scotch case of Stewart Mercromlie, who was tried for the mur- 
 der of Mr. Hiiy, in 1717, the following facts nppeared in evidence. The pris- 
 oner being called by the deceased out of a room in a tavern where he was in 
 company with others, went out without his hat ; and the two afterwards went 
 out into the street, (the prisoner being still without his hat,) where a scuffle 
 ensued, in which Mercrombie ran Hay through the body with his sword, the 
 latter not having his weapon drawn. Some person in the street who witnessed 
 the souffle, saw a man without a hat stab another who wore one; and a child 
 having observed the hat which was left behind, it was shown to be Aber- 
 crombie's. The coincidence between these facts became a principal ground of 
 the prisoner's conviction. Trial of James Stewart, 19 State Trials, 75 — 77- 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 595 
 
 has been supposed, additional facts are brought to light. 
 The accused, when seeu on the premises, was observed to 
 wear a cloak similar to the one found, and appeared to have 
 something concealed under it. This favors the idea that he 
 may have thus concealed the hatchet which was found, and 
 evidently used. In the course of further inquiry, a piece of 
 string is found to have been attached to the handle of the 
 hatchet. A piece of string is now found attached to the 
 cloak, and these two pieces, on being brought together, are 
 ascertained to be of precisely the same kind, showing that 
 they were once united. This close physical coincidence 
 converts the conjecture just mentioned into a reasonable 
 presumption, amounting almost, if not quite, to a certainty. 
 Ajid the bearing of these last circumstances, taken together, 
 reveals a new and most material fact ; showing that the ac- 
 cused went to the premises, prepared for the commission of 
 the crime, and having adequate means of its commission, 
 which means were actually used ; giving a vast accession of 
 force to the facts previously mentioned, by developing the 
 existence of a distinct element of guilt ; namely, a previous 
 criminal design. The presumption of guilt has now acquired 
 such force as to satisfy, probably, the majority of mere 
 general observers, as to its truth. But the judicial investi- 
 gator, on inquiring if there were any infirmative hypotheses 
 left, might be presented with the following. Admitting the 
 accused to have been guilty in intent, he may not have been 
 guilty in act. His action may have been anticipated by an- 
 other, equally guilty in intent ; who, having by some means 
 got possession of the implement, committed the crime and 
 then left, or compelled the accused to escape, as before sup- 
 posed. With this, the stock of hypotheses favorable to the 
 accused would finally be exhausted. 
 
 The circumstances which have thus far been supposed to 
 be developed by a course of investigation, are almost exclu- 
 sively those of the concomitant class. But in very atro- 
 cious cases, especially those in which the life of the accused 
 
696 PROCESS AND PRINCIPLES [PART II. 
 
 is likely to depend on the result of the inquiry, the mind is 
 not always content with evidence of this character, but seeks 
 for confirmation of its conclusions in circumstances derived 
 from other and distinct sources. The course of presumption 
 hitherto has been a process of tracing out the causes of 
 observed appearances ; and there is generally a disposition 
 to carry this process a step further, by ascending to the ulti- 
 mate origin of the whole transaction, and inquiring what 
 could have induced or instigated the individual to whom the 
 facts point, as the cause of the crime, to have committed it ; 
 or, in other words, what motive he could have had for it. 
 Let it then be supposed that the investigation still proceeds, 
 and that facts are developed in this required direction also. 
 It is found that the individual in question had recently 
 been on ill terms with the deceased, and had been heard to 
 utter threats against her. Facts like these constitute moral 
 coincidences, operating powerfully in aid of the physical 
 ones already presented in the case ; showing not only a dis- 
 position and aptitude, but the elements of an actual intention 
 to injure the deceased. They thus converge, like all the 
 other facts yet discovered, though from a greater distance, 
 upon the compound fact which is the subject of investiga- 
 tion ; and have a peculiarly important influence in singling 
 out one individual from among several others who might 
 be supposed to have had equal opportunity and equal means 
 of committing the same crime. 
 
 In order to render the case, as thus hypothetically con- 
 structed, the more entirely convincing to the supposed in- 
 vestigator and observer, as well as to show how the 
 central fact of guilty agency may be literally surrovnded 
 with evidentiary circumstances, let it next be supposed 
 that the following subsequent circumstances are discovered. 
 Upon search being made after the suspected individual, he is 
 found to have fled. He is pursued, and with some difficulty 
 apprehended. On being questioned, he denies his name and 
 all knowledge of the deceased, or of the crime ; but on being 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 597 
 
 searched, his name is found on various articles of his cloth- 
 ing, partially erased. A letter is also found from the de- 
 ceased, requesting a meeting at the very time and place of 
 the murder. On being interrogated where ho was, on the 
 night of the crime, he makes a statement which is found to 
 be palpably false. On being committed to custody, he is 
 detected in attempting to procure the destruction of the 
 important physical evidence first discovered, and in en- 
 deavoring to prevail on a friend to have a false alibi sworn 
 to, in his behalf. 
 
 The individual bearings ofthese last mentioned facts do not 
 any longer require to be explained or dwelt on. It is 
 enough that they all tend towards and converge upon the 
 same central point or fact of guilty agency in the particular 
 individual indicated, though from an entirely opposite direc- 
 tion ; showing, beyond all reasonable question, that this 
 point or fact represents and is the actual truth, the discovery 
 of which was, from the beginning, sought to be established. 
 
 The course of illustration, thus far adopted, exhibits the 
 process of constructing a body of evidence out of elemen- 
 tary facts, in immediate connection with the collateral process 
 of extracting its meaning- by a course of presumption, — both 
 being presented in the gradually progressive character which 
 naturally belongs to them ; the presumption being applied 
 to and deduced from the facts, at each successive stage of 
 their increase, and growing up, with them, from the state of 
 mere rudiments to the strength of complete moral demonstra- 
 tion. It is in this way, too, that the infirmative considera- 
 tions which are always necessary to be taken into view, are 
 most effectually presented, and, at the same time, most 
 readily expunged from the process. In the earliest stages, 
 where the criminative facts are few and more or less isolated 
 they are found to occur in the greatest number ; presenting 
 themselves in the form of suppositions of single facts, and 
 sometimes offering a choice of several supposable facts, as 
 explanations. But as the criminative facts increase, and as 
 
598 PROCESS AND PRINCIPLES [PART II. 
 
 they draw iog-etlier, and gradually coalesce into a body, 
 these counter suppositions, in order to possess any adverse 
 efficacy, are required to be aggregated in a correspond- 
 ing manner ; taking the more elaborate form of hypotheses 
 of certain states of fact ; and becoming more and more 
 difficult of construction, and maintained with more and more 
 violence to probability, until it no longer becomes necessary 
 to advert to or seek after them. 
 
 If the judicial investigator or juror, were the actual 
 original investigator, and, as far as possible, the original 
 observer of the evidentiary facts, it is probable that his con- 
 clusion, as to the guilty agency of a particular individual, 
 would, in most cases, be made up in the same way of gradual 
 development, out of gradually accumulating materials. And, 
 indeed, in the actual mode of trial through witnesses, it is, 
 doubtless, often the case that the minds of the jury are, in a 
 greater or less degree, led to their verdict in a similar pro- 
 gressive course, (a) The theory of judicial investigation 
 however, requires that the juror should keep his mind wholly 
 free from impression, until all the facts are before him in 
 evidence; and that he should then frame his conclusion 
 from all these facts, taken tog-ether. (6) The difficulty 
 attending this mode of dealing with the elements of evi- 
 dence, (especially in important cases requiring protracted 
 investigation,) is that the facts thus surveyed in a mass and 
 at one view, are apt to confuse, distract and oppress the 
 mind by their very number and variety, especially as they 
 are only mentally contemplated, with little or no aid of the 
 bodily senses. They are, moreover, necessarily mixed up 
 with remembrances of the mere machinery of their intro- 
 duction, and the contests (often close and obstinate,) attend- 
 ing their proof ; in the course of which attempts are some- 
 times made to suppress or distort the truth, in the very act 
 
 (o) Ante, p. 107, note (a). 
 (6) Id. ibid. 
 
CHAP. II.j OP CIRCUHSTANTIAL PEOOP. 599 
 
 of its presentation. And the reservation of the use of in- 
 firmative hypotheses, as a final means of testing a presump- 
 tion or conclusion provisionally formed, is attended with 
 more or less of danger of overlooking some single hypo- 
 thesis, which, though not readily suggested, might be at the 
 same time not unreasonable in itself, and might eventually 
 prove to be the absolute truth of the case. 
 
 On the other hand, the manner in which the facts of a 
 case are presented before a jury on a trial, is attended with 
 advantages peculiar to itself. In order to construct the re- 
 quired body of evidence out of the materials or elements 
 which may be available for the purpose, with the nearest ap- 
 proach to truth, or to the actual case as it occurred, it is 
 requisite not only that all the matei'ials should be got together, 
 but that they should be arranged, as far as possible, in their 
 proper places, or in the relative positions which they occu- 
 pied, or are reasonably supposed to have occupied, in the 
 actual case ; it being, in fact, as already observed, a process 
 of re-constructing and representing, with more or less of 
 completeness and truth, the original case itself. These rela- 
 tive positions cannot always be effectually ascertained until all 
 the attainable facts have been brought together, examined and 
 compared, or adjusted temporarily (as it were) to each other, 
 BO as to develope the traces of their former actual connec- 
 tions ; much as an architect would proceed who was required 
 to reconstruct a demolished edifice, out of the same materials 
 which originally composed it, with the nearest possible ap- 
 proach to identity in every particular. This preliminary 
 process is essentially performed by the public prosecutor, 
 and the course of his proceedings in submitting its results to 
 the jury may be briefly described as follows. His investiga- 
 tions having resulted in connecting, to. his own satisfaction, 
 (as sanctioned by the action of the grand jury) the two 
 fundamental facts of a crime and a criminal, he frames out 
 of them the compound fact or proposition that the prisoner 
 at the bar committed the crime charged, (which is the es- 
 
600 PROCESS AND PRINCIPLES [PART II, 
 
 sence of the indictment as found,) and presents it formally 
 to the jury, as the factum probandam of the case. Placing 
 this in a central position, in connection with the hypothesis 
 of guilty agency, as he has extracted it from the facts, he 
 proceeds to present and prove in detail, the particular cir- 
 cumstances or indicatory facts themselves ; giving to them 
 their necessary relative positions, grouping them around the 
 assumed central point, and in this way establishing lines or 
 links of connection between it and them ; and finally com- 
 pacting and, as it were, crossing, this frame-work of evi- 
 dence, by lines connecting the facts with each other ; thus 
 realizing the common but significant figure of a net-work of 
 circumstances. Having done this in the view of the jury, 
 he calls upon them to examine for themselves the body of 
 evidence thus put together, in connexion with, and as sup 
 porting the hypothesis of guilt, as he has advanced it, and 
 the affirmative of the issue before them : insisting, virtually 
 if not in form, that the facts presented are the genuine facts 
 of the case ; that they are arranged in their true positions ; 
 and that, as naturally and reasonably interpreted, they point 
 towards, and converge upon, and effectually connect them- 
 selves with the principal fact of the guilt of the prisoner, 
 and no other : or, in other words, that they can be explained 
 and accounted for, in no other reasonable way than upon the 
 single supposition of the truth of that fact. The defence is 
 made in a corresponding course, by means of exculpatory 
 facts proved and supposed ; it being insisted that the crimi- 
 native facts presented are not the genuine facts of the case ; 
 that the positions assigned them are not the true ones ; that 
 the connections claimed to have been established do not 
 exist ; that, in their indications, they do not converge upon 
 the point or fact assumed, or upon any one common point or 
 centre, or that tliey may converge upon other points as well 
 as that occupied by the principal fact in issue ; in other 
 words, that they may be explained and accounted for, on one 
 or nioro hypotheses consistently with the innocence of the 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 601 
 
 accused, as reasonably as upon the affirmative hypothesis, or 
 more so. And, in fine, these adverse hypotheses are specifi- 
 cally placed before the jury ; thus relieving them, in most 
 cases, from the necessary duty of seeking for them them- 
 selves. 
 
 In regard to the characteristic feature of united or con- 
 vergent bearing, which has been mentioned, it may be further 
 observed, that it is often, and indeed, most commonly, found 
 to take place in two successive forms or series ; the remoter 
 and more minute circumstances converging upon certain 
 intermediate points, constituting the leading facts of the 
 case, — such as the existence and influence of a criminal 
 motive, the preparation and possession of the means of crime, 
 the possession of an opportunity to commit it, proximity to 
 or presence at the scene of crime, and conduct after its com- 
 mission; — and these again converging, in fewer numbers, 
 but with greater force, and with the same ultimate effect, 
 upon the central or principal fact which is the object of 
 proof. 
 
 The figure which has, thus far, been used in illustrating 
 the process of circumstantial proof, and which has been 
 suggested by the meaning of the word " circumstance " 
 itself, is that of a frame-work of facts, arranged in certain 
 positions of relation to the fact sought, and connected with 
 it and with each other by lines expressive, at once, of their 
 separate and united significance. Another figure more fre- 
 quently used as descriptive of the same process, or rather of 
 the body of evidence constructed by it, is that of a chain 
 connecting the two great and fundamental points of a 
 case, — the crime committed, and the individual charged 
 with its commission, — the links of such chain answering to 
 the evidentiary facts proved. This figure expresses, with 
 great force and aptness, the historical order of the facts, 
 and the necessity of a continuous connection between them 
 thi'oughout, but it does not represent that other feature of 
 the process, which has been prominently presented in the 
 
602 PEOCESS AND PRINCIPLES [PART II. 
 
 present section ; namely, the aggregation of distinct ele- 
 ments, or elements drawn from distinct sources into one con- 
 sistent and homogeneous body.(a) The evidence does not 
 always present a single line of continuous and connected 
 circumstances, but often exhibits lines of connection from 
 diiferent points in collateral positions. Supposing, however, 
 a chain to be composed of a number of minor and constitu- 
 ent chains, (6) the figure acquires aptness in every sense. 
 The evidentiary facts, with their inferred and assigned 
 meanings, may also in many cases be very appropriately com- 
 pared to the strands of a rope or cable, forming so many 
 lines of connection with the principal fact, each continuous 
 in itself, though weak in its connecting power ; but, when 
 woven together in sufficient numbers, constituting a medium 
 of connection which cannot be broken. 
 
 SECTION IT. 
 
 The subject continued, with illustrations from actual cases. 
 
 The course of illustration adopted in the last section was 
 without any particular reference to actual recorded cases of 
 proof by circumstantial evidence ; the facts mentioned being 
 merely supposed to exist, and arranged in combinations best 
 
 (a) Mr. Bentham has taken some pains to expose the inaccuracy of the ap- 
 plication of the metaphorical term " chain" to a body of circumstantial evi- 
 dence. In such a body, the more numerous the constituent facts, if relevant, 
 the greater its strength and efficacy. But " take an iron chain," he observes, 
 " the more links you add to it the weaker you will make it, not the stronger ; 
 and, by adding link to link, you will at last make it break by its own weight." 
 8 Jud. Evid. 223, 224, 225, note. 
 
 (6) See ante, p. 122, note. 
 
CHAP. II.] OP CIECUMSTANTUL PROOF. 603 
 
 adapted to the object in view. Some actual cases may now 
 be introduced with advantage, as confirming the views and 
 conclusions already presented. 
 
 Donellan's case has been referred to, with approval, by 
 Mr. Bentham; not only for individual facts, but, to some 
 extent, as illustrative of the process of aggregating the ele- 
 ments of evidence into a body of gradually increasing 
 force, (a) It will be sufficient to carry out the views of 
 this writer, by presenting briefly all the leading facts of the 
 case, as bearing upon the principal fact sought. And, in so 
 doing, we may begin at the very earliest stage, or with the 
 corpus delicti MsqM; the proof of which rested, in a material 
 degree, upon the same facts which tended to fix the guilt of 
 it upon the prisoner. (6) 
 
 (n) 3 Jud. Evid. 53, 65, 282. 
 
 (6 ) The trial of Captain John Donellan took place before Mr. Justice Buller 
 at the Warwick Assizes in March, 1781, and resulted in the conviction and 
 execution of the prisoner. The case has been made the subject of much criti- 
 cism , and the correctness of the Terdict has been Tioiently assailed by some 
 writers, and vigorously defended by others. The great ground of objection 
 was the irregularity and incompleteness of the anatomical and medical examin- 
 ation of the body of the deceased, as affording evidence of a corpus delicti ; it 
 being contended that nothing appeared on such examination, to show that the 
 deceased had died of poison, or in consequence of the draught which he took 
 just before his death. And although the examining physicians expressed 
 their opinions very confidently on this point, they were considered as balanced 
 by the opinion of the celebrated Dr. John Hunter, who was examined on the 
 trial, although he had taken no part in the previous investigation. The work 
 commonly attributed to Mr. Phillipps, and entitled " The Theory of Presump- 
 tive Proof," appears to have been written chiefly with the object of impugning 
 the conviction; but the fact that the vrriter suppressed all mention of several 
 of the most forcible criminative circumstances proved on the trial, detracts 
 very much from its authority. These last mentioned circumstances served to 
 make up the conceded deficiency in the mere physical proof of a corpus delicti ; 
 and it is on this ground that the verdict has received the approval of 
 some of the best writers on circumstantial evidence and medical jurisprudence, 
 as well as practising physicians of great eminence. 3 Benth. Jud. Evid 53, 
 05, 232. Wills, Circ. Evid. 192—196. Best on Pres. § 208. 2 Beck's Med. 
 Jurispr. 801, 802. (10th ed.) Christison on Poisons, 685. Halford's Essays, 
 158. 
 
60i PROCESS AND PRINCIPLES [PAET II. 
 
 The person for whose milrder Donellan was tried, was Lis 
 brother-in-law, Sir Theodosius Bovg-hton, (a) a young man 
 of fortune, twenty years of age, who, up to the moment of 
 his death, had been in good health and spirits, with the ex- 
 ception of a trifling ailment, for which he occasionally took 
 medicine. Mrs. Donellan was the sister of Sir Theodosius, 
 and together with Lady Boughton, his mother, and Donellan 
 himself, lived with him atLawford Hall, the family mansion. 
 On the day before the death of Sir Theodosius, a neighbor- 
 ing apothecary who had previously prepared medicines for 
 him, sent him a mild and harmless draught, to be taken the 
 next morning. (6) In the evening, he went out fishing, and 
 returned apparently in usual health, (c) About six o'clock, 
 the next morning, a servant awoke him, in order to get some 
 straps to buckle on a net, and received them from his own 
 hand, his health still appearing good, (of) About seven 
 o'clock, his mother went into his room and called him, for 
 the purpose of giving him his medicine, and he then ap- 
 peared to be very .well. As he was taking the medicine, be 
 observed that it smelt and tasted very nauseous, and his 
 mother remarked that it smelt very strongly like bitter 
 almonds. In about two minutes after he had taken it, and 
 had laid down, he appeared to struggle very much, as if to 
 keep the medicine down, and his mother observed a rattling 
 in his- stomach and gurgling. These symptoms continued 
 about ten minutes, after which he seemed inclined to go to 
 sleep, and his mother left, the room. In about five minutes, 
 she returned, and, to her great surprise, found him with his 
 eyes fixed upward, his teeth clenched, and froth running out 
 
 (a) The report here given has been carefully abridged from the Report of 
 the Trial by Joseph Gurney, London, 1781, and will be found to contain several 
 particulars not mentioned by Mr. Wills in his statement of the case. 
 
 (b) Gurney's Report; Testimony of Thomas Powell and Samuel Frost 
 
 (c) Id. Testimony of Lady Boxtghlon. 
 
 (d) Id. Testimony of Samuel Frost. 
 
CffAP. II.J OF CIRCUMSTANTIAL PROOF. 605 
 
 of each corner of his mouth ; and within half an hour after 
 taking the draught, he died, (a) 
 
 These facts may, for a moment, be dwelt upon. That the 
 extraordinary event which had happened was, in some way, 
 connected with the taking of the medicine, appeared from 
 the following considerations. It was clear that a neio in- 
 gredient of strange and marked qualities, strongly affecting 
 the senses of taste and smell, had found its way, from some 
 quarter, into the medicine-bottle. The qualities observed 
 both by the deceased and his mother, and which were so 
 peculiar as to be made the subject of conversation between 
 them, were such as the draught had not before possessed ; 
 and the violent symptoms which immediately followed the 
 taking of it, and which ended in death, very naturally sug- 
 gested the idea of poison,. Any person would have been 
 justified in viewing the facts in this connection, at least as a 
 source of suspicion and basis of inquiry. 
 
 The attention being thus strongly, and indeed unavoidably 
 drawn to the contents of the medicine-bottle, the first step 
 which would naturally occur to any right-minded person of 
 ordinary discretion, as requisite to be taken, would be to 
 have an instant examination made of such of the contents 
 of the bottle as might have remained in it ; and, in order to 
 have such examination adequately made, to send for the 
 apothecary from whom it came ; and, until his arrival, to 
 preserve every thing undisturbed. This was the course 
 which the mother of the deceased actually took. On seeing 
 the alarming symptoms which have been described, she ran 
 down stairs, and directed the servant to take the first horse 
 he could get, and go immediately for the apothecary, who 
 resided about three miles off. (b) But these judicious mea- 
 sures were almost immediately frustrated by the act of Don- 
 ellan, who may now be introduced into the narrative. 
 
 (o) Gumey's Report; testimony of Lady Boughton. 
 (6) Id. ibid. 
 
606 PROCESS AND PRINCIPLES [PART 11. 
 
 In less than five minutes after the servant had been sent 
 away, Donellan came up to the room where the young man 
 lay, and asked his mother what she wanted. She said she 
 wanted to inform him what a terrible thing had happened ; 
 that it was an unaccountable thing in the doctor to send such 
 a medicine, for if it had been taken by a dog, it would have 
 killed him, and that she did not think her son would live. 
 He asked in what manner her son was taken, and she told 
 him. He then asked where the physic-bottle was, and she 
 showed him two draughts ; [that is, two bottles, one which 
 had contained the medicine he had taken, and another which 
 had been used previously.] He took up one of the bottles, 
 and asked her if that was it. She said " Yes." He then 
 poured some water out of the water-bottle, which was near, 
 into the phial, shook it, and then empUed it out into some 
 dirty water which was in a wash-hand basin. She immedi- 
 ately said, " What are you at ? you should not meddle with 
 the bottles." Upon that, he snatched up the other bottle, 
 and poured water into it, and shook it ; then he put his 
 finger to it and tasted it. She again said, " What are you 
 about ? you ought not to meddle with the bottles." Upon 
 which he said, he did it to taste it, but he had not tasted the 
 first bottle.(a) 
 
 This act of decided interference, on the part of Donellan, 
 at a most important crisis, calling for abstinence from inter- 
 ference of every kind, may well be characterized as extra- 
 ordinary, and such as could not reasonably be supposed to 
 proceed from a person who was at all desirous of having the 
 cause of the alarming and fatal appearances which had been 
 witnessed properly inquired into. The apothecary had been 
 sent for and might be momentarily expected ; but, before his 
 arrival, Donellan takes upon himself to destroy the contents 
 of the phials, which Lady Boughton was endeavoring to 
 preserve, under a pretence of examining them. It was not 
 
 (a) Gumey's Keport; testimony of Lady Boughton. 
 
CHAP. II.] OF CIRCU1I3TANTIAL PEOOF. 607 
 
 only deliberate conduct, but it was persisted in, in the face 
 of repeated remonstrance. But this was not all. On one 
 of the servants coming into the room, Donellan desired her 
 to " take away the basin, the dirty things and the bottles," 
 and he put the bottles into her hand. Lady Boughton ob- 
 serving this, took them out of the servant's hand, set them 
 down, and bid her let the things alone. But, shortly after, 
 Donellan, taking advantage of a moment when her back 
 was turned, put the bottles into the servants hand again, and 
 bid her take them down, and was angry that she had not 
 done it before. They were then taken down, (a) Here 
 was more interference, amounting to an actual contest, to 
 have these physical evidences entirely put out of view. (6) 
 
 About nine o'clock, the apothecary arrived, and Donellan 
 went with him into the room where the deceased lay. But 
 instead of asking any questions, he asked none at all. In- 
 stead of alluding to the medicine or the bottles, they were 
 never even mentioned. They had been taken away, and the 
 apothecary saw nothing of them. In reply to a question 
 asked by him, as to how the deceased died, Donellan merely 
 told him, " in convulsions." (c) 
 
 This conduct on the part of Donellan, which, at least in 
 its effect, comprised both the destruction and suppression of 
 vitally important evidence, may now be still further dwelt 
 upon. It was obviously an uncalled for act of interference, 
 from the beginning. It was, under the . circumstances, 
 improper and culpable. It was not accidental, or merely 
 inconsiderate, but wilful, repeated and persisted in. It was, 
 mdeed, so extraordinary and so reasonably pregnant with 
 suspicion, that the contemplation of the construction which 
 would naturally be put upon it seems to have alarmed his 
 own mind. Tor, in the course of the morning of the same 
 
 (a) Gurney's Report; testimony of Lady Sou^Aiojj. 
 
 (A) Of all this important evidence, not a word is mentioned in the professed 
 review of the trial, in the " Theory of Presumptive Proof." 
 (c) Gurney's Keport; testimony of Thomas Powell. 
 
608 PROCESS AND PRINCIPLES [PART II. 
 
 day, lie remarked to his wife, in presence of her mother, that 
 the latter had been pleased to take notice of his washing the 
 bottles out ; and that " he did not know what he should 
 have done, if he had not thought of saying he put the water 
 into it, to put his finger to it, to taste." (a) But the falsity 
 of this excuse, it may be remarked, was shown by the fact 
 that Jie did not taste the first bottle which he took up, 
 and which was pointed out to him as that which contained 
 the draught, but rinsed out and threw away its contents 
 without any act of the kind. (6) 
 
 But to return to the quality of the draught which had been 
 taken by the deceased, upon which the existence or non- 
 existence of a corpus delicti obviously depended, and to 
 which the extraordinary conduct already narrated only 
 served to attract attention more strongly than ever. Had 
 the phials and their contents been preserved unchanged, as 
 was intended by the mother of the deceased, and examined 
 by the apothecary from whom they came, the quality of the 
 strange ingredient which obviously was present in the 
 draught would have been easily detected, and the cause of 
 the death satisfactorily explained. But this, which would 
 have supplied the best evidence in the case, had all been de- 
 stroyed or put out of the way, by the act of Donellan. 
 There remained, however, the impressions which had been 
 made upon the senses of taste and smell, at the time the 
 draught was taken. These constituted the next best evidence 
 in the case, and they were accordingly resorted to with the 
 effect which will next be described. 
 
 The deceased complained of the extremely nauseous taste 
 and smell of the medicine, at the time he swallowed it. His 
 mother observed the peculiar smell at the same time, which 
 she compared to that of bitter almonds, (c) This led to the 
 supposition that the strange ingredient was laurelwater, a 
 
 (a) Gurney's Report; teatimony of Lady Boughton. 
 
 (b) Id. ibid. 
 
 (c) Id. ibid. 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 609 
 
 known poison, having a similar odor. And this supposition 
 was, in the further course of investigation, confirmed by the 
 following coincidences. The apothecary who had originally 
 compounded the draught, prepared two phials ; one contain- 
 ing merely the harmless ingredients of which he had actu- 
 ally compounded it, (a) and which were all that it contained 
 when it was sent by him to the deceased ; and the other, 
 containing the same ingredients, with the addition of laurel- 
 water. These two were presented to the mother of the de- 
 ceased, on the trial, to smell ; and she testified that the 
 phial containing only the ingredients of the genuine draught 
 did not smell at all like the medicine which her son had 
 taken; but the other, containing the laurel-water, had a 
 smell very like it. (&) A physician, also, to whom the latter 
 mixture was presented, on the trial, to smell, detected the 
 laurel-water immediately, by that sense ; and testified that 
 he knew of no medicine that corresponded in smell with it ; 
 and that the description by a comparison to the smell of 
 bitter almonds conveyed a proper idea of it. (c) A further 
 coincidence was, that the symptoms which preceded the 
 death were the same as those attending death from taking 
 laurel-water, (d) 
 
 (a) These were, as described by him on the trial, rhubarb and jalap, fifteen 
 grains of each ; spirits of lavender, twenty drops ; nutmeg water, two drachms ; 
 two drams of simple syrup, and an ounce and a half of simple water. Id, 
 testimony of Thomas Powell. 
 
 (t) Gumey's Report; testimony of Lady Boughton. 
 
 (c) Id. testimony of Dr. Rattray. 
 
 (d) Id. testimony of Dr. Rattray, Mr. Wilmer and Dr. Parsons. And see 
 2 Beck's Med. Jur. 791 . The evidence mentioned in the text as derived from 
 impressions made by a physical substance upon the sense of smell, the com- 
 parison of these impressions with the smell of another substance, and the re- 
 membrance of such impressions and comparison, has been treated by the writer 
 of the " Theory of Presumptive Proof," as amounting to no evidence what- 
 ever. " Of all the human senses," he observes, " that of smell is the most un- 
 certain, the most variable and fallacious." P. 36. But he had previously 
 said, without qualification, that "the senses are ever true." P. 22. And 
 Dr. Beck considers this proof by a comparison of smells as " a very satisfao- 
 
610 PROCESS AND PRINCIPLES [PART II. 
 
 By thi3 course of reasoning, the preliminary conclusion 
 or presumption is arrived at, that a noxious ingredient of 
 some kind, possessing one of the distinctive properties of 
 laurel-water, and resembling that poison more closely than 
 any other known substance, had, by some means, found its 
 way into the medicine, after it had left the apothecary's 
 hands and before the deceased took it ; and that some per- 
 son had been clandestinely meddling with it, for a purpose 
 not very difficult to conjecture. The physical objects, — the 
 phials and their contents, — by which this presumption might 
 have been verified, had been destroyed, as ailready stated. 
 But there still remained a physical object of the highest 
 importance, namely, the dead body itself; and, provided 
 tmmec^ia^e, examination were made of it, the liquid swallowed 
 or the remains of it, might be detected in the stomach, and 
 subjected to proper analysis. Bat at this point, Donellan is 
 again found to interpose in the way of investigation, in a 
 manner and with an effect which will next be described. 
 
 On the same day that Sir Theodosius Boug-hton died, Dow- 
 ellan wrote to his guardian. Sir William Wheeler, informing 
 him of tlie event, but making no reference to its suddenness 
 nor any of the attending circumstances, (a) To this. Sir 
 W. Wheeler made a brief reply expressing regret ; (bi) but 
 in the course of a iaw days, the rumors which began to pre- 
 vail as to the manner of his ward's death, and the suspicions 
 as to the cause of it having reached liis ears, he wrote to 
 Donellan a letter of some length ; saying that he had been 
 applied to, as the guardian of the deceased, to inquire into 
 the cause of his sudden death ; that report said that he 
 was better the morning of his death, and before he took the 
 
 tory circumstance ;" as very few of the fluids in common use possess a smell 
 at all resembling that of bitter almonds. 2 Beok's Med. Jar. 801. It may 
 be added that the sense of smell is frequently relied on, in the most sclentiflo 
 experiments, as a test of the presence of certain substances, such as ars«aio. 
 M. 521. 
 
 (a) Gumey'a Beport, testimony of Sir William Wheeler. 
 
 (6) Id. ibid. 
 
CHAP. II.] OF CIROUilSTANTIAL PROOF. 611 
 
 ptysic, ttan he had been for many weeks, and that he was 
 taken ill and died soon after swallowing it ; that the affair 
 made " a great noise in the country," and he found he was 
 very much blamed for not inquiring into it ; that it was 
 " reported all over the country that the deceased was killed 
 either by medicine or hj poison; " that " the country would 
 never be convinced to the contrary, unless the. body was 
 opened, and they should all be very much blamed." He 
 therefore requested that the body might be " immediately 
 opened," and named three medical men as proper persons 
 for that purpose. The letter concluded with dwelling on 
 the " necessity of complying with his request," as it was 
 " expected by the country." (a) To this letter Donellan 
 replied, expressing his willingness to comply with the re- 
 quest, and desiring that Sir W. Wheeler might be present 
 on the occasion. The latter replied in a third letter, de- 
 clining to be present, but reiterating his former request in 
 more general terms, (b) The body had, by this time, been 
 put into a cof&n and soldered up. Donellan then sent for a 
 physician and a surgeon, and, on their arrival, he showed 
 them the last letter which he had received from Sir W. 
 Wheeler, but did not show them the previous and all-impor- 
 tant one, in which the suspicions of poison had been men- 
 tioned and dwelt on, and the " satisfaction of the country " 
 and the " exoneration of themselves from blame," were 
 specified as the causes of the examination. Nor did he 
 communicate to them, or make any allusion to its contents ; 
 but only said it was " much the same as the other." (c) 
 The coflBn having been unsoldered, the medical gentlemen 
 proceeded 'to look at the body, but finding it to be extremely 
 putrid, the surgeon expressed his opinion to the physician 
 that the proposed inquiry could give no sort of satisfaction ; 
 and, after consulting together, as Donellan had told them 
 
 (o) Gurney'8 Report; testimony of Sir William Wheder. 
 
 (b) Id. ibid. 
 
 (c) Id. testimony of Br. Rattray. 
 
612 PROCESS AND PRmCIPLES [PART II, 
 
 that the body was to be opened merely " for the satisfaction 
 of the family," without intimating any suspicion of poison, 
 and as nothing was said of poison, in the letter shown them, 
 they concluded that, at so late a period, it was of no use to 
 proceed, and they accordingly did not open the body, nor 
 even take off the shroud, (a) They both afterwards testified 
 that, had any thing been said or intimated to them, of poi- 
 son, or suspicions of poison, as the cause of the death, or in 
 connection with it, they should have opened the body at 
 all events, (b) Here was more suppression of evidenceji on 
 the part of Donellan, leading to erroneous impressions upon 
 the medical men, and attended, so far, with the effect of pre- 
 venting the inquiry which had been so urgently directed to 
 be made. 
 
 But this was not all. On the following day, another sur- 
 geon, having heard of what had taken place, called on Don-, 
 ellan and offered to open the body himself ; but the latter 
 refused to permit it, on the ground that it would not be 
 proper to interfere in the case, (c) On the same day, Don- 
 ellan wrote a letter to Sir William Wheeler, saying that he 
 had observed his advice " in all respects ; " that four medi- 
 cal gentlemen had been employed and had proceeded accord- 
 ing to the direction of his letter, and that their report had 
 been fully satisfactory. The language of the whole letter 
 was intended to convey the false impression that the body 
 had been opened; and such was the impression actually 
 made upon Sir William Wheeler, (d) On being undeceived 
 however, the next morning, the latter again wrote to Donel- 
 lan, urging that the examination should be made without 
 further delay, and naming the surgeon who had already 
 offered to make it, as a suitable person. He also sent a 
 verbal message to the latter, requesting him to attend to 
 
 (o) Gurney's Report; testimony of JDr. Rattray. 
 
 (b) Id. testimony of Mr. W^tZmcr andDr. Bai/roy. 
 
 (c) Id. testimony of Mr. Bucknill. 
 
 (d) Id. testimony of Sir W. Wheeler. 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 613 
 
 the examination in company with another surgeon named, (a) 
 By this time, arrangements had been made for the funeral of 
 the deceased ; and the surgeon having been called away at 
 the moment, to attend a patient in a supposed dying condi- 
 tion, the funeral was directed to proceed in his absence, and 
 the body was interred without any examination. (6) 
 
 In the meantime, the circumstances attending the death of 
 Sir Theodosius Boughton having become known to the cor- 
 oner, he directed the body to be disinterred and examined ; 
 and a medical examination was accordingly, at length, made. 
 But by this time eleven days had elapsed since the death, 
 and, it being in hot weather, putrefaction was found to be so 
 far advanced, that the examination was not conducted with 
 much minuteness. The head was not opened, nor the bowels 
 examined, the latter process being pronounced by the exam- 
 ing physician impossible, under the circumstances, (c) 
 Nothing that could be called laurel-water was found in the 
 body ; but the operating physician remarked a very peculiar 
 impression upon the sense of the taste,—" a kind of biting 
 acrimony upon the tongue," resembling exactly the sensa- 
 tions he had always experienced from breathing over laurel- 
 water. Ql) 
 
 At the taking of the coroner's inquest, Lady Boughton was 
 examined as a witness, Donellan also being present. When 
 she came to mention the circumstance of his washing or 
 rinsing the bottles, one of the jurors observed him " catch 
 her by the gown and give her a twitch," as though to pre- 
 vent the mention of it. (e) After she returned home, he 
 gaid to his wife, before her, that she had no occasion to have 
 told the circumstances of his washing the bottles ; that she 
 was only to answer such questions as were put to her, and 
 
 (a) Gurney'a Eeport; testimony of Mr. Bucknill. 
 
 (b) Id. ibid. 
 
 (c) Id. testimony of Dr. Rattray. 
 (if) rd. ibid. 
 
 (e) Id. testimony o" William Crofts. 
 
614 PROCESS AND PRINCIPLES [PART II. 
 
 that question had not been asked her. (a) Here was an- 
 other act, on his part, of attempted suppression of evidence. 
 
 The alleged insufficiency of the medical examination of 
 the body, in this case, has already been alluded to, (If) aa 
 a principal ground of objection to the correctness of the 
 conviction which followed. Admitting that the examination 
 was not made with the scientific fullness and precision of 
 later times, (c) this circumstance appears to have been 
 owing, in a material degree, to the state of the body itself, 
 at the time. This state had been brought about in conse- 
 quence of the delays interposed by Donellan himself: and 
 to allow it to operate in his favor, as an argument that no 
 corpus delicti.hsidi been shown, would not be very far from 
 allowing a man to take advantage of his own wrong. He 
 who had deliberately " spoiled " the best evidence in the 
 case, could not reasonably complain that the next best evi- 
 dence at command had been resorted to. . (c?) If he had not, 
 at the outset, destroyed the contents of the phials, the cause 
 of the death might have been discovered even before the 
 death itself took place. If he had not withheld from the 
 physicians the first letter of Sir William Wheeler, or if he 
 had but intimated any suspicion of poison in the case, the 
 body would have been examined some days before, under 
 more favorable circumstances. 
 
 Thus, we come, at length, to connect the person of Don- 
 ellan directly with the death which had happened, in the 
 character of at least, a suspected party, — a party who knew 
 what its cause actually was, but who had determined to con- 
 ceal that fact from all others. His whole course, from the 
 beginning, was one of continued interference in the way of 
 investigation ; — first, destroying the contents of the phials, 
 
 (a) Gurney's Report; testimony of Lndy SoMgWon. 
 
 (b) Ante, p 60S, note (6). 
 
 (c) See Best on Pres. § 208. Wills, Clro. Evid. 196. 
 
 (d) See Best on Pres. chap. 7, § 145, et seq. and the maxim, Omnia prasit- 
 muniur contra spoliatorem, as there treated. 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 615 
 
 and then endeavoring to suppress even the mention of such 
 conduct ; first, withholding from the physicians the letter 
 which would have led to the opening of the body, and then 
 producing upon the writer of that letter the impression that 
 his directions had been observed and that the body had been 
 opened. It was not a single act, which might be explained 
 on the ground of accident or thoughtlessness ; but a series 
 of acts, some of them persisted in, in the face of opposition, 
 and all of them taken together, showing, upon every reason- 
 able principle of interpretation, an intention to produce the 
 result which actually took place. The suspicion against 
 Donellan may now, in fine, be stated in the positive shape 
 which the facts, thus far, appear to indicate ; namely, that 
 he was the person who introduced the laurel-water, or other 
 noxious ingredient, into the medicine which the deceased 
 had taken and which caused his death. 
 
 But, in order to raise this suspicion to the grade and force 
 of a reasonable presumption of guilty agency, three leading 
 facts must be made to appear ; first, that he had the means, — 
 the laurel-water itself ; next, that he had an opportunity to 
 infuse it into the medicine ; and, lastly, that there was a crimi- 
 nal motive by which he might have been induced to the act. 
 
 That he had the means, was indicated by the following 
 circumstances. Laurel-water was made by distilling the 
 leaves of the laurel plant, (a') and a person contemplating a 
 criminal use of it, would be more likely to prepare it himself 
 than to obtain it from others, as the desired secrecy would 
 thereby be better insured. Now, Donellan had a still, (ft) 
 and knew how to use it. He practised distillation, and that 
 frequently ; (c) sometimes openly, by distilling roses and 
 lavender, (d) sometimes privately, in a locked room, (e) 
 
 (o) Id. Gamey'3 Report; testimony of Dr. Rattray. 
 (6) Id. testimony of Mary Lynnes. 
 
 (c) Id. ibid. 
 
 (d) Id. ibid, and testimony of Francis Amot. | 
 ' (e) Id. testimony of Mary Lynnes. 
 
616 PROCESS AND PRINCIPLES [PART U. 
 
 Laurel grew in the garden, and was always within reach, (a) 
 It was clear, therefore, that he had the means of preparing 
 the poison. (6) 
 
 That he had an opportunity of infusing it into the medi- 
 cine of the deceased, may appear from the following circum- 
 stances. He resided in the same house with him, which 
 necessarily brought them together, but this was not enough 
 for the purpose. The deceased had been in the habit of 
 keeping his medicine in his dressing-room, and as long as 
 this was continued, few or no opportunities of access to it 
 could be had. He complained, on one occasion, when Don- 
 ellan was present, of forgetting to take his medicine. " Why 
 don't you," said the latter, " set it in your outer room ? then 
 you would not so soon forget it." The deceased made the 
 suggested change, which had the effect of presenting an 
 opportunity not before existing, (c) Here was not only an 
 opportunity, but one brought about by DonellarCs own con- 
 trivance. It was moreover known in the family that the de- 
 ceased had received his medicine, and that he was to take it 
 the next day. («?) 
 
 The existence of a motive to commit the crime indicated, 
 appeared from the following fact. The deceased, upon 
 coming of age, would have been entitled to a fortune of 
 above two thousand pounds a year, which, in the event of 
 his dying before that period, would go to his sister, DoneU 
 lan's wife. Donellan was therefore interested in having his 
 
 (o) Gumey's Report; testimony of Francis jSmos. All these important facts 
 are omitted in the statement of the case in the " Theory of Presumptive Proof." 
 
 (6) A remarkable circamstance, still more proximate than any of those 
 stated in the text, and mentioned by Dr. Beck as having been discovered in 
 the case, though not proved on the trial, went to show that Donellan had 
 actually been employed in distilling laKrel-water. A single numbei of the 
 Philosophical Transactions was found in his library; and of this single number 
 the leaves had been cut only in one place: and that place happened to contain 
 an account of the mode of making laurel-water by distillation. 2 Beck's 
 Med. Jur. 802. 
 
 (c) Gurney's Report; testimony of Lady BonghUm. 3 Benth, Jud. Evid. 66. 
 
 (i/l Guri^ey's Report, ubi supra. 
 
CHAP. II.] OP CIBCUMSTANTUL PROOF. 617 
 
 death take place before the time indicated. This time was 
 approaching, as the deceased was already twenty years old. 
 It was further shown that the parties did not, in general, 
 live in friendship and intimacy, (a) 
 
 The proof of these three leading precedent circumstances 
 of motiye, means and opportunity, while supplying the 
 necessary conditions of a definite presumption of guilt, 
 strengthens, in a very material degree, the force of the 
 concomitant and subsequent circumstances of the destruc- 
 tion and suppression of evidence which have been previously 
 mentioned, and acquires, in turn, from those circumstances, 
 additional prominence and efficacy. The possession of the 
 particular kind of means indicated throws light on the corpus 
 delicti itself, while all the circumstances taken together 
 point, without the least inconsistency, to Donellan as the 
 particular agent from whose interference with the medical 
 draught, the corpus delicti originated. 
 
 But, in addition to these, there appeared in the case a 
 variety of minor circumstances of conduct, on the part of 
 the accused, beginning at a period considerably anterior to 
 the death of his brother-in-law, and continued after that 
 event, which support the hypothesis of his criminal agency 
 with singular consistency, and serve to compact and complete 
 the whole body of the proof. These will now be mentioned. 
 
 For some time before the deceased died, Donellan ox- 
 pressed to his mother his apprehension that something would 
 happen to him, and that before long ; that he was in a very 
 bad state of health. (6) On the Saturday previous to his 
 death, in a conversation with a clergyman who was well ac- 
 quainted with the family, he dwelt on the same subject, and 
 made such a representation of the state of his body and even 
 of his mind, that the clergyman observed that if these state- 
 ments were true, he did not think his life worth two years' 
 
 (a) Gumey's Report; testimony of Lady Bovghton. 
 (6) Id.Uid. 
 
618 PROCESS AND PRINCIPLES [PART H. 
 
 purchase ; to which Donellcm replied, " Not one." {a) AH 
 this time, however, the deceased was in good spirits, and 
 looked well, and there was nothing in his appearance to favor 
 the opinion which Donellan had expressed. (&) These cir- 
 cumstances belong to the class of intimations (already con- 
 sidered) (c) of the probable occurrence of an event which a 
 criminally disposed person has determined to bring about ; 
 and which are intended, by taking from the event any 
 character of singularity or suddenness it might otherwise 
 possess, to prepare the mind for it and induce it to be passed 
 over as an ordinary and natural occurrence. 
 
 About six o'clock in the afternoon of the day before he 
 died, Sir Theodosius Boughton went out fishing, attended 
 by a servant, and returned a little after nine, apparently in 
 health, (d) During his absence, Donellcm told his mother 
 'that he had been to see them fish, and that he would have 
 persuaded Sir T. to come in, lest he should take cold, but he 
 could not. (e) The next morning, when Sir T. was dead 
 or nearly so, and while the things were being removed, to 
 be put into the inner room, Donellan said to the servant, 
 " Here, take his stockings, they have been wet ; he has 
 catched cold to be sure, and that might occasion his death." 
 Upon this, his mother examined the stockings, and there 
 was no mark or appearance of their having been wet. (/) 
 It further appeared that it was impossible for him to have 
 wet his feet on the occasion mentioned, as he had boots on, 
 and remained on horseback all the time the fishing was going 
 on. (g-) And it moreover, appeared, t)i2X Donellan was not 
 with him that evening, any part of the time. (A) Here 
 
 (a) Gurney'8 Report; testimony of Rev. Mr. J^ewsam. 
 
 (A) Id. ibid. 
 
 (c) .ante, p. 831. 
 
 {d) Qurney'3 Report; testimony of Samuel Frost and Lady Soughtot. 
 
 (e) Id ibid. 
 
 (/) Id. ibid. "■ 
 
 (g) Id. testimony of Samuel Frost. ' 
 
 (A) Id. ibid. 
 
GHAP, n,] OP CIRCUMSTANTIAL PROOF. 619 
 
 were false statements, appareatly intended to aid the effect 
 of the intimations and apprehensions last mentioned, by ac- 
 counting for the death as oeeasioned by natural and sufficient 
 causes. 
 
 After Sir T. Boughton was d^ad, Donellan accounted for 
 the event in various ways. About a quarter of an hour after 
 it happened, he told one of the servants that it was in con- 
 sequence of his having been out so late fishing, (a) The 
 day the body was opened, he told the same person that the 
 death was occasioned by the bursting of a blood vessel. (6) 
 To others he gave other accounts, (c) After his arrest, he 
 attributed it to poison, (d) 
 
 Another circumstance of conduct on the part of Donellan 
 after the death of his brother in-law, went to show that he 
 had contemplated the possibility of the event with satisfac- 
 tion, and that he was, in reality, satisfied and pleased with 
 its occurrence ; thus serving to indicate the actual influence 
 and operation of the criminal motive already assigned. On 
 the night of that day, Donellan went into the garden and 
 said to the gardener, " Now, gardener, you shall live at your 
 ease, and work at your ease ; it shall not be as it was iu 
 Sir The's days. I wanted before to be master, but I have 
 got master now, and shall be master." (e) 
 
 It has already been mentioned that Donellan had a still, 
 and practiced distillation. After Sir Theodosius Boughton's 
 ' death, this practice was discontinued. One day, Donellan 
 brought a still to the gardener to clean ; it was full of lime 
 and the lime was wet. (/) Wet lime was a substance well 
 adapted to remove from the still any vestiges of its use 
 which it might have contained. Supposing it had been used 
 to distil laurel-water, the lime furnished an effectual means 
 
 (a) Gurney's Report; testimony of Catharine Amos. 
 
 (6) Id. ibid. 
 
 (e) Id. testimony of Francis Amos. 
 
 (i) Id. testimony of John Darbyshire. See ante, p. 4.60. 
 
 («) Id. testimony of Francis Amos. 
 
 (/) Id. ibid. 
 
620 PEOCESS AND PRINCIPLES [PAET II. 
 
 of destroying all traces of that liquid wHch might have been 
 discoverable by the senses : thus constituting another fact of 
 destruction of evidence in the case. As it was, Donellan 
 felt himself called upon to explain the circumstance, which 
 he did by telling the gardener, but without being questioned 
 on the subject, that he had used the lime to kill fleas, (a) 
 Shortly after this, he took the still to the cook, and desired 
 her to put it into the oven, to dry it, that it might not 
 rust. (6) 
 
 Mention has been made, on a former page, (c) of the use 
 of the more minute circumstances of a case, to indicate the 
 existence of some leading fact, from which, in connection 
 with other leading facts, the truth of the principal fact is to 
 be inferred ; there being, in such cases, a convergence upon 
 intermediate points, prior to the final convergence upon the 
 principal or central fact itself ; involving a succession of in- 
 ferences corresponding with the position of the facts. The 
 following recorded cases may be mentioned as illustrations. 
 
 On a trial for murder in Virginia, it appeared that a dirk 
 without a cap to the handle, had been found secreted near 
 the place of the murder. It was important to show that 
 this dirk belonged to the prisoner, as leading to the infer- 
 ence that he was at or near the scene of the crime ; and, 
 with this view, the following minute circumstances, being 
 also of a remote character, in point of time and place, 
 were introduced in evidence. The handle of the dirk found 
 was engraved with the letters " J. H." and the cap of a 
 dirk, engraved " J. H." was handed to a witness by a negro 
 a mile and a half from the place ; but how he came by it, 
 no one could tell. It appeared that some sixteen or seven- 
 teen years before, a witness purchased a dirk, with this en- 
 graving, for James Hickman, the half-brother of the pris- 
 
 (u) Gamey'B Report; testimony of Francit Amoi. 
 (A) Id. testimony of Catharine Amos. 
 (c) Ante, p. 601. 
 
CHAP. II.] OP CIRCUMSTANTIAL PROOF. 621 
 
 oner ; that Hickman since died : and that the prisoner had 
 admitted that a dirk was the only part of Hickman's property 
 he had received. The witness who heard him mate this ad- 
 mission, saw a dirk in his hand, with " J. H." engraved on 
 the handle, but could no further identify it with the one 
 produced. The dirk found secreted was identified by 
 the finder, from its general appearance, with the one pro- 
 duced ; and the cap produced by the negro apparently fitted 
 the handle. The prisoner had, before the murder, lent a 
 dirk, not identified, which was returned to him before the 
 murder was committed. There was no other proof that the 
 prisoner had ever been at or near the place of the murder. 
 These circumstances were allowed to go the jury, as evi- 
 dence that the dirk found belonged to the prisoner ; and 
 they were told that, if they had no doubt of its being his 
 property, then the prisoner's dirk, so found, made one cir- 
 cumstance to be weighed with others. And this was holden 
 well, on error, (a) 
 
 The Rhode Island case of The State v. Avery (6) may 
 be selected as an illustration of the use of distinct combina- 
 tions of minor facts or circumstances, arranged in the stricter 
 form of chains of evidence, (c) to prove distinct leading 
 facts from which the final inference of guilty agency is 
 to be drawn. 
 
 (a) Mendum v. The Commonwealth, 6 Randolph, 704, 711 — 713. It is re- 
 marked upon this case, that " it is obvious how perfectly slight and utterly 
 inconclusive any one, or any two, or three of these circumstances must have 
 been. Yet, all being combined, the result of the trial (a verdict of guilty,) 
 shows that the jury felt safe in acting upon them, as leaving no doubt." 8 
 Phill. Evid. (Cowen & Hill's notes, Van Cott's ed.) Note 307, pp. 597, 598; 
 citing The State v. Watkins, 9 Conn. K. 52, 53. 
 
 (6) Tried before the Supreme Court of Rhode Island, May, 1833. In this 
 case, the prisoner was acquitted. But the evidence produced is not thereby 
 deprived of its pertinency as an example of the method of proof mentioned in 
 the text. 
 
 (c) These also furnish illustrations of the nature and use of minor or con- 
 stituent chains of circumstances, composing a body of evidence. See ante, p. 602. 
 
622 PROCESS AND PKINCIPLB3 [PART 11. 
 
 Oa the afternoon of the 20th of December, 1832, Sarah 
 M, Cornell, the deceased, who worked in one of the fac- 
 tories in Pall River, Massachusetts, and boarded with a 
 resident of that place, left, her boarding place at half-past 
 fire o'clock, to fulfil an appointment of which she had spokea 
 some days before, and respecting which she appeared to feel 
 considerable uneasiness. She went out in something better 
 than her ordinary dress, saying that she was going to Josep^i 
 Durfee's, and should, perhaps, return immediately, but that, 
 if she did not, she would be home by nine o'clock, (a) She 
 did not return that night, and the next morning was found 
 dead, hanging by the neck to a stake in a stack-yard on the 
 premises of John Dv/rfee, a resident of Tirerton, Rhode- 
 Island, whose house was half a mile from the bridge at Fall 
 River. (6) The arrangement of her dress as she was found 
 and certain striking marks of apparent violence on her per- 
 son, led to the belief that she had been murdered ; and a 
 memorandum in her hand-writing, found in her band-box 
 after her death, having concurred, with other circumstances, 
 in attaching suspicion to the accused, who was a Methodist 
 minister, residing at Bristol, R. I., he was subsequently 
 arrested and brought to trial. 
 
 Two of the leading facts proposed for proof, on the part 
 of the prosecution were, — first, that, on the very evening on 
 which the deceased went out to fulfil the appointment of 
 which she had spoken, she was, by previous appointment, to 
 have met the prisoner ; and, next, that he actually did meet 
 her that evening, at or near the place where she was found 
 dead. 
 
 In support of the first of these facts, the following chain of 
 circumstances was claimed to be proved. Upon an examin- 
 ation made of the effects of the deceased, on the same day 
 ou which her body was found, three opened letters ad- 
 
 (a) Beport of the trial; testimony of Harriet and Lucy Hathaway, 
 
 (b) Id. testimony of John Durfee, and others. 
 
CHAP. II.] OP CIECUMSTANTUL PROOF. 623 
 
 dressed to her, were found in her trunk ; one written on pink- 
 colored paper, one on yellow, and one on white, (a) The 
 same letters had been seen in her possession about a week 
 before her death, (6). The letter on pink paper was 
 dated Providence, November 1831, signed with the initials 
 " B. H." and directed to the deceased, at Fall River, " to be 
 left at Mr. Cole's.'^ It contained a proposition for a clan- 
 destine meeting, to the following effect. It first suggested 
 that she should come to Bristol, on the 18th of December, 
 and wait till evening, and then go out to a place mentioned 
 where the writer would meet her ; and requesting her, should 
 it storm on the 18th, to come the 20th. If she could not 
 come, and it would be more convenient to have the meeting 
 at a place mentioned in Somerset, on either of the above 
 evenings, the writer would meet her there set the same time. 
 If she could not do either, the writer would come to Fall 
 Eiver, on one of the above evenings, when there would be 
 the least passing. The letter concluded with requesting her 
 to write soon, and tell which ; and desired her to direct her 
 letters to '^Betsey Hills, Bristol." (c) It afterwards ap- 
 peared that a person of this name was a niece of the pris- 
 oner's wife, and had resided some time in his family, (of) 
 
 This letter was claimed to be traced from the deceased to 
 the prisoner, by the following chain of testimony. The 
 engineer of a steamboat running from Fall Eiver to Provi- 
 dence, testified that, one morning in November, while the 
 boat was lying at the wharf in Providence, a person, whom 
 he identified as the prisoner, came on board and asked him if 
 he would take a letter for him to Fa;ll River. The engineer 
 told him he could put it into the letter-box, but he said he 
 did not want it to go so. He wished it delivered as soon as 
 the boat got in. The engineer told him he did not carry 
 
 (a) Report of the trial; testimony of John Durfet. 
 (6) Id. testimony of Harriet and Lucy Hathaway. 
 
 (c) Report of the trial, p. 50, (Providence ed.) 
 
 (d) Id. testimony of Betsey E. HilU. 
 
624 PROCESS AND PRINCIPLES [PART 11. 
 
 letters himself, and that the hands were not allowed to 
 carry any; but on the person's observing that it would 
 do him a great favor, if he would carry it, he took it, 
 with twelve and a half cpts which the person gave him with 
 it. He identified the letter by its direction and the color of 
 the paper, and certain marks which his own hands had left 
 on it : and further testified that, on reaching Pall River, he 
 gave it to Mr. Cole of that place, according to its direc- 
 tion, (a) Mr. Cole testified that in November, while the 
 deceased was boarding at his house, he received from the 
 last witness a. letter directed to her, which he desired his 
 daughter to take to the deceased. (6) And his daughter 
 testified that she took it to her, and saw it in her possession 
 afterwards, (c) 
 
 It will be seen that, in this letter, the deceased was re- 
 quested to write and say which of the three proposed places 
 of meeting she would approve. To show that she did write, 
 it was proved by the post-master at Pall River, that, on 
 the 19th of November, a letter was mailed for Bristol di- 
 rected to the prisoner, (rf) And it was proved by the post- 
 master at Bristol, that, on the 19th November, a letter was 
 received from Pall River; and that, on the same day, a 
 charge of postage was made against the prisoner, which he 
 afterwards paid, (e) 
 
 The next letter in the series was on white paper, without 
 signature, in the following words : " Pall River, Dec. 8. I 
 will be here on the 20th, if pleasant, at the place mentioned 
 at six o'clock ; if not pleasant, the next Monday eve. — say 
 nothing." (/) This letter was claimed to be traced to the 
 prisoner by the following chain of circumstances. 
 
 (fl) Iteport of the Trial; (Providence ed.), testimony of Jb&n Orswrfl. See 
 aVso the Nevr York Report, (Stodart's ed.) 
 
 (i) Report of the Trial; testimony of Elijah Cole. 
 
 (c) Id. testimony of Betsey E. Cole. 
 
 (d) Id. testimony of Seih Darling. 
 
 (e) Id. testimony of Lemuel Briggs and Walter D. Brigga, 
 {/ ) Beport, p. 50, (Proyidenoe ed.) 
 
CHAP. II.] OF CIRCUMSTANTIAL PKOOP. 625 
 
 On the 8th December, the date of the letter, the prisoaor 
 •vras at Fall River, Between nine and ten o'clock in the 
 morning of that day, he went into a store in Fall River, 
 and asked for some letter-paper, (a) He went behind the 
 counter to the place where the paper was kept, and was 
 seen by the store-keeper at the desk, (6) and by another 
 person, with a pen in his hand, (c) but was not actually 
 seen writing. Shortly after, he asked for a wafer, but the 
 store-keeper, not having any, got one for him at the next 
 door. {(T) 
 
 The person who gave the store-keeper the wafer, testified 
 that it was not of a common color ; it was brick-color ; and 
 on being shown the letter of the 8th December, said that- 
 the wafer on it looked like the wafer she gave, (e) 
 
 The person who was clerk in the post-office at Fall River, 
 in December, testified that, one day, between nine and ten 
 o'clock in the forenoon, a person, whom he believed to be 
 the prisoner, dropped a letter into the box, directed to the 
 deceased, and marked with one cent postage, which he 
 afterwards delivered to the deceased. (/) 
 
 The letter itself was written on a half sheet of letter- 
 paper. Among the paper which was in the store where the 
 prisoner called for paper, on the 8th December, a half sheet 
 of letter-paper was found in the middle of a half-ream, (g-) 
 This being compared with the letter, the edges of the two 
 pieces were found to correspond, (/t) And on examining the 
 pieces with a magnifying-glass, this correspondence of the 
 
 (a) Report of the trial; testimony of Iram Smith. 
 (i) Id. ibid. 
 
 (c) Id. testimony of Jeremiah Rowland According to another report, 
 this witness saw the prisoner with a piece of writing paper in his hand . New 
 York Report, Stodart's ed. 
 
 (d) Report of the trial; testimony of Iram Smitt and Conieni Parry. 
 
 (e) Id. testimony of Content Parry. 
 
 (f) Id. testimony of ift/us H. Lushure. 
 (S) Id. "testimony of Iram Smith. 
 
 (A) Id. ibid. 
 
626 PKOCESS AND PRINCIPLES [PART II. 
 
 edges was verified ia the minutest particulars, (a) The 
 water-mark on the letter, also corresponded with that on 
 the other sheets of paper, (i») 
 
 The second of the two leading facts proposed for proof in 
 the same case was, that the prisoner actually met the de- 
 ceased, at the time appointed, (the 20th December, about 
 six o'clock, P. M.) and near where her body was found ; or, 
 at least, was in the immediate vicinity of the place, on the 
 evening of her death. This was claimed to be made out 
 by the following chain of testimony. 
 
 It was proved and not denied, that the prisoner left his 
 residence in Bristol, in the afternoon of the 20th De- 
 cember, and crossed the ferry from that place to Ports- 
 mouth ; that he was seen at Portsmouth immediately after, 
 and that he returned there about ten o'clock at night. To 
 show that, during this interval, he actually went to the vi- 
 cinity of the supposed murder, the following facts were pre- 
 sented in evidence, tracing his movements from one point to 
 another, successively, both there and back. 
 
 The ferry-man testified that he ferried the prisoner over, 
 about two o'clock, in the afternoon, that he was the only 
 passenger who crossed at the time, and that he paid double 
 ferriage for being taken over, in that way. (c) He was 
 dressed at the time in a brownish colored surtout, QT) and 
 was observed to have the same on, when he returned to the 
 ferry at night, and also a large black hat, with a wide brim.(e) 
 
 The prisoner having been seen to land at Portsmouth, a 
 little after two o'clock, a resident of that place testified that, 
 on the afternoon of the 20th December, he saw a strange man 
 above the common height, and dressed in dark clothes and 
 Itat, going past his house, first in a direction towards the south, 
 
 (a) KepoTt of the trial; testimony of Harvey Harndin. 
 {I) Id. ibid. 
 
 (c) Id. testimony of William Pearce, juu. 
 
 (d) Id. ibid. 
 
 (e) Id. testimony of Jeremiah Gifford, 
 
CHAP, n.] OP CIRCUMSTANTIAL PROOF. 627 
 
 and afterwards towards the east (a) which was the proper 
 direction to be takea by a person going to Fall River. (6) 
 
 Two other residents of Portsmouth testified that, on the 
 same afternoon, about half past two o'clock, as they were 
 returning from Fall River market, after crossing the Stone 
 Bridge, they met a tall man walking fast, in dark colored 
 clothes and broad-brimmed hat, with a handkerchief, tied like 
 a cravat over the chin, who passed on, without looking at 
 them, (c) 
 
 The keeper of the Howland-ferry toll-gate, (commonly 
 called the Stone Bridge,) testified that, about three o'clock 
 on the same day, a man about six feet high, wearing dark 
 colored clothes, a surtout and black hat, and " looking like a 
 lawyer, doctor, or minister," came up and observed that it 
 was a cold blustering day. The keeper invited him into the 
 house, but he declined, saying he was going to Fall River, 
 paid his fare and walked on. He identified the prisoner as 
 the man. ((i) 
 
 The keeper of the Bridge Tavern, at Tiverton, on the east 
 side of the Stone Bridge, testified that about three o'clock, 
 the same day, he observed a man about six feet high, dressed 
 in dark clothes, a surtout coat and broad brimmed hat, 
 coming from the bridge on foot, at a very fast walk. He 
 noticed him particularly, and observed that he exactly re- 
 sembled the prisoner, (e) 
 
 Another witness, residing at Tiverton, just to the north 
 
 of the Stone Bridge, testified to the same fact, saying that 
 
 she thought, from his dress, that the person was a Methodist 
 
 . minister, and that he walked so very fast as to draw from 
 
 her a particular remark. (/) 
 
 (o) Report of the trial; testimony of VfiUiam Anthony. 
 {!/) Id. testimmiy of Jeremiah Gifford and others. 
 
 (c) Id. testimony of William Carr and Charles Cart. 
 
 (d) Id. testimony of Peleg Cranston. 
 
 (e) Id. testimony of George Lawton. 
 
 (/) Id. testimony of .4nni< Abrton. For the defence, evidence was giren 
 
628 PROCESS AND PRINCIPLES [PART H. 
 
 The next link in the chain brings the individual who haa 
 been the subject of the preceding teatimony, quite to the 
 scene of the supposed crime. 
 
 About sunset, or a little before, on the same twentieth day 
 of December, the person in whose stack-yard, the deceased 
 was found dead the next morning, when about twenty rods 
 from the stack-yard, saw a man, about eighty rods from; him, 
 standing and looking about. He was a tall man, in a dark 
 colored surtout, and a black hat with larger brim and higher 
 crown. than common. His attention was directed towards 
 this man, by the blasting of a rock in the vicinity, which 
 exploded at the time. The man was looking towards the 
 west, and could see the whole village of Pall River from 
 where he stood. The stack could be seen from the village. 
 He could not see the man's face, as his back was towards 
 him. He did not ^ee the man move,, but went about his 
 business ; and soon after he heard another explosion louder 
 than the first, (a) 
 
 The- person who was engaged in blasting the rock on this 
 occasion, testified that, after having fired one charge, he 
 charged the rock a second time, with a larger quantity of 
 powder, and after he had applied the fire,, as he was running 
 westward to avoid the danger of the explosion, he. saw a man 
 sitting on a wall, about twenty rods from him, with Ms face 
 to the north-east, who got off the wall, when he saw him, 
 and walked leisurely towards the north. Seeing that the 
 man was going towards the rock, he called out to him to 
 look out. The stranger turned his head, looked up and 
 stopped, and just then the rock exploded ; after which he 
 walked off to the eastward. When nearest, he was ten rods 
 from the witness, who took particular notice of him, the 
 light being still pretty good, although ho had not a full 
 view of his face. The stranger was of the same tall stature 
 
 to show that the prisoner, after landing at Portsmouth, went in a direction 
 quite different from that here indicated. 
 
 (a) Keport of the trial; testimony of John Durfee. 
 
CHAP. II.] OP CmCUMSTANTIAL PROOF. 629 
 
 aad dressed in the same dark surtout and broad-brimmed 
 hat which have been described. The witness thought the 
 prisoner to be the same man. (a) 
 
 There was further testimony given on the part of the prose- 
 cution, intended to trace the movements of the same indi- 
 vidual back from Fall River to Bristol Ferry, after dark ; 
 but it was not very definite and was opposed by counter evi- 
 dence. Enough, however, has been stated to serve the gen- 
 eral purpose contemplated under the present head. 
 
 SECTION III. 
 
 Recapitulation of processes involved in the application of 
 Circumstantial Evidence. 
 
 From the foregoing description of the process of circum- 
 stantial proof, especially that of the presumptive kind, it 
 will be seen that it is, throughout all its stages, a process of 
 interpreting facts, as means of arriving at the knowledge of 
 a desired truth. As incident to this, it is also a process 
 of accounting for and explaining their existence, and of in- 
 vestigating their causes ; physical phenomena being traced 
 to and connected with human agency, and facts of human 
 conduct being traced to those inner sources from which they 
 derive their criminal quality, and from which, though inacces- 
 sible to the sense, they are known from obser\'ation, to 
 arise. (&) 
 
 In all this, the elementary process of comparison is largely 
 
 (a) Report of the trial; testimony ot Jibner Davis. See also, the testimony 
 of Benjamin Manchester. The New York pamphlet report has be6n followed 
 in some particulars. 
 
 (A) See ante, pp. 82, 83, 151. 
 
630 PROCESSES OP [part n, 
 
 and necessarily called into exercise. A single evidentiary 
 fact is compared with tlie principal fact sought, in order to 
 ascertain its relation and bearing. Several evidentiary facts 
 are compared with each other, in order to arrive more readily 
 at their individual and united meaning, and, at the same 
 time, to ascertain whether they are susceptible of actual con- 
 nection, as elements of one and the same transaction. And 
 throughout this, again, there is a constant reference to, 
 and comparison with the great standard of all judgment, — 
 the natural and ordinary course of things, as established by 
 observation and experience, (a) 
 
 As a practical and necessary consequence of these pro- 
 cesses, the process of circumstantial proof is one of actual 
 connection and combination ; an aggregation of various and 
 distinct elements into a consistent and homogeneous body, 
 representing, as nearly as possible, the transaction which is 
 the subject of inquiry ; and an aggregation of the various 
 presumptions or inferences separately dcducible from each 
 fact, into one general and final presumption of the truth of 
 the principal fact sought. (&) Throughout this process, also, 
 there is the same constant reference to the great standard of 
 experience and observation. Because certain facts have been 
 usually, if not uniformly, found to be associated in actual 
 observed cases, it is inferred that they were so associated in 
 the particular case in question. And because, as thus asso- 
 ciated, they have been further found to be connected with 
 the principal fact sought, and have been actually employed 
 with success in developing and proving it, they are, by an- 
 alogy, admitted to the same connection, and employed in the 
 same capacity, in the particular case, (c) And lastly, in 
 order to give the final presumption arrived at, its requisite 
 quality of moral certainty, the facts on which it rests are 
 compared with as many opposite or rival hypotheses as can 
 
 (a) See ante, pp. 81, 149, 151. 
 (6) See anU, pp. 152, 176. 
 (c) See ante, pp. 31, 150. 
 
CHAP. II.] CIRCUMSTANTIAL PBOOP. 631 
 
 reasonably be raised, to see whether they cannot be ex- 
 plained consistently with one or more of such hypotheses, (a) 
 
 The process of circumstantial proof is, in short, an appli- 
 cation, under various modifications, of the process of natural 
 presumption as founded upon probable reasoning, the char- 
 acter and details of which have already been sufSciently ex- 
 plained. 
 
 There is one point of view, however, in which the process 
 of proving the truth of criminal charges by circumstances, 
 remains to be more particularly considered ; namely, that of 
 identification, as applied both to persons and to things. 
 This will form the subject of the next section. 
 
 SECTION IV. 
 
 The process of Identification particularly considered. 
 
 The process of identification is one which is constantly and 
 necessarily called into exercise in the application of judi- 
 cial evidence of every kind. Every- subject which is form- 
 ally proposed for the action of the law must first be indi- 
 vidualized ; that is, it must be singled out and separated 
 from all others, distinctly and specifically presented by name 
 or description before the tribunal, and actually proved to be 
 the subject it is represented to be, and no other. Until this 
 is done, there is no proper subject for the action of the tribu- 
 nal in any case. 
 
 The proof of the signature of a common promissory note 
 furnishes a familiar illustration of what has just been said. 
 The note is presented as a specified written promise of the 
 particular person against whom the remedy is sought ; the 
 
 (a) See ante, p. 181. ci scq. 
 
632 THE PROCESS OP IDENTIFICATION, [PART 11. 
 
 proof of the signature is the identification of it to tie his par:- 
 ticular promise as described : and, through this proof, the 
 party himself, (whom the signature represents,) is finally 
 'and effectually identified as the particular subject for the 
 action of the remedy. So, in criminal cases, the prisoner 
 who is arraigned for trial, under a particular name, as the 
 perpetrator of a crime specified, must be satisfactorily 
 identified as such person and perpetrator, before he can be 
 subjected to the penalty which the law has provided, jand 
 which the prosecutor demands to be applied in the case. 
 
 But it is not only in reference to the ultimate subjects of 
 legal action, that this process of identification is necessarily 
 called into exercise. The whole apparatus of means by 
 which this action is arrived at and applied, or, in other 
 words, the particular materials of the evidence employed for 
 the purpose, especially such as consist of objects of sense, 
 are subject to the same rule, and cannot be effectually used 
 in their instrumental capacity, without being first identified, 
 or proved to be what they are allege4 to be. A knife, pistol 
 or hatchet, alleged to have been found at or near the spot 
 ipp^here a murder is charged to have been committed, and 
 produced in court on the trial, as a means of establishing a 
 corpus delicti, must be. proved or identified as the same 
 article which was so found. And if it is further sought to 
 be used against the prisoner, as a means of connecting him 
 with the offence, it must be further proved or identified as 
 having belonged to him, as having been in his possession at 
 or about the time the crime is supposed to have been com- 
 mitted. Indeed, without the precision of impression and 
 statement which identification implies and involves, neither 
 the witness who testifies, nor the tribunal which hears him, 
 can have any clear ideas of the subject presented for con- 
 sideration ; and, of course, the latter can have no basis for 
 the inferences of judgment which are required to be drawn, 
 and no certainty in regard to the inferences themselves. In 
 
CHAP. 11.] PAETICULARLY CONSIDERED. 63§ 
 
 short, mthout identification of some kind or in some degree', 
 evidence of any sort, natural as well as jadicial, is deprived 
 of its whole distinctive quality and function, as a means of 
 making clear the truth of the matter to which it is ap- 
 plied, (a) 
 
 The subjects of identification iu criminal «ases may be 
 classed under the two general heads of persons and things. 
 And, in regard to both of these subjects, the process of 
 identification is of two descriptions ; positive identification, 
 where the testimony is given rather in the shape of know- 
 ledge than belief ; the witness speaking from the impression 
 made directly upon his mind by the general appearance of 
 the subject, without reference to particulars, or to the pre- 
 cise reason why he knows it to be the same, and which 
 involves no particular process of reasoning or inference; 
 and identification from circumstances, where the witness 
 bases his belief upon certain observed qualities or appearr 
 ances of the person or thing in question, and deduces it from 
 them by a process of reasoning. Hence, the particular form 
 of his impression, even when most complete, is not so much 
 that the person or thing is the same, as that it must be the 
 same. It is the latter description of identification, only, 
 which properly falls within the design of the present work ; 
 the former belonging to the subject of direct evidence. A 
 remark or two, however, in reference to positive identifi- 
 cation will not be altogether out of place. 
 
 It often happens that the most positive and satisfactory 
 impressions of identity which the mind receives from external 
 objects, are those for which no particular cause can be as^ 
 signed; the impression being made at once, by the joint 
 effect of a multitude of minute characteristics which it ia 
 impossible to enumerate or describe. The recognition or 
 identification of a child by its parent, or vice versa, or of 
 
 (a) See ante, p. 1. 
 
634: THE PEOCESS OP [PABT II. 
 
 any one near relative by another, is of this description. 
 This, of course, rests upon intimate knowledge of the sub- 
 ject ; and it is according to the degree of this knowledge that 
 the value of the evidence is always to be estimated. An ob- 
 server is more apt to be deceived in his impression of the 
 identity of a person whom he but slightly knows, than in 
 that of an intimate acquaintance ; and when he has only 
 seen the person once, his impression is still more liable to 
 e rror, (a) 
 
 The case is often the same in regard to inanimate things, 
 as subjects of identification. A person becomes impressed 
 with the identity of an article of property which he has 
 long possessed, and seen and handled daily, (such as an 
 article of his own dress,) not from any particular marks or 
 signs upon or about it, but, absolutely, from its general ap- 
 pearance or tout ensemble. In such a case, he will often 
 find himself unable to assign a reason for his knowledge, if 
 such should be required of him ; or, if ho undertakes to do 
 ^Ojhe may assign what seems to be a very absurd one. (6) 
 
 Perhaps the best illustration of this species of positive 
 identification, is furnished by the proof of handwriting, 
 which is nothing more than, the identification of the writing 
 shown to the witness, as that of the person by whom it is 
 alleged and claimed to have been written. The most positive 
 impression of identity, in these cases, constituting the most 
 reliable evidence possible, is that which is derived not from 
 particular marks, or indicatory appearances, — not from the 
 shape of one or more particular letters, or the particular 
 mode of connecting them, (for it is notorious that no two 
 genuine signatures are exactly and mathematically alike, in 
 all their minutiae,) — ^but from the appearance of the whole 
 taken together. 
 
 («) See the observations of Rolfe, B. in charging the jury in the case of 
 Jlegina v. Rush, Burlse's Trials, connected with the Upper Classes, 509, SlO. 
 (A) See 2 Evans' Pothier on Obligations, 213. (Phil. ed. 1853.) 
 
CHAP. II.] IDENTIFICATION. 635 
 
 The subject of identification by circumstances, will now 
 be more particularly considered under the two general heads 
 which have already been mentioned ; namely, persons and 
 things. 
 
 I. Identification of Persons. 
 
 The two leading descriptions of persons which most fre- 
 quently become the subjects of identification, in the course 
 of judicial inquiry into crimes, are, first, the person of the 
 subject of the crime, and, secondly, the person of the author 
 or perpetrator of it. 
 
 1. Identification of the person of the subject of the crime. 
 This is one of the earliest processes which becomes neces- 
 sary in cases of homicide and supposed murder, and forms 
 an essential part of the proof of a corpus delicti. It will 
 be considered hereafter, in connection with that particular 
 subject. 
 
 2. Identification of the person of the criminal. 
 
 The circumstances which go to identify an accused party 
 as connected with a crime charged, are of two principal 
 kinds, first, those of a remoter and more minute character, 
 the inferences from which are only approximations to identifi- 
 cation, and which chiefly serve to narrow the range of per- 
 sons within which the particular criminal agent is to be 
 sought ; their principal use being to introduce and aid the 
 proof by more proximate circumstances : and, secondly, cir- 
 cumstances which more directly connect the accused indi- 
 vidual with the transaction, and which, in their effect, often 
 amount to positive identification. 
 
 (1.) Under the first of these divisions, the following cir- 
 cumstances may be mentioned. 
 
 The direction and appearance of wounds upon the body 
 of a murdered person, especially such as have been inflicted 
 with fire-arms, often serve to indicate the distance at which 
 the murderer stood, and the. position which he occupied 
 
THE PROCESS OF [PART lly 
 
 while inflicting them, and thus have an effect to confirm an 
 hypothesis based upon other facts and inferences. In thg 
 Mississippi case of The State v. Mc Cann, (as) there \ -were 
 several minute physical circumstances shown in evidence, 
 from which important conclusions were drawn as to the per- 
 son of the murderer. The deceased, while riding home one 
 evening, had been shot in the back of the nock. The sur- 
 face and edges of the wound, as it appeared when the body 
 was first discovered, together with a straw hat which the 
 deceased wore at the time, were found to be blackened with 
 smoke and powder; (&) showing that the shot had been 
 fired from a weapon held in close contact with the person, 
 and most probably from a pistol, (c) A saddle was found 
 on the ground, iiot far from the body, with blood upon the 
 right stirrup-leather, _(^d) going to show that the deceased 
 was shot upon his horse, (e) An impression was discovered 
 to have been made, by a ball, upon a tree near the spot, 
 some six feet from the ground, on the side next the road ; ^ 
 and the ball itself was found at the foot of the tree, bruised 
 and flattened ; (/) indicating that the person who fired the 
 shot was also on horseback, and elevated somewhat above 
 the deceased. (§•) The same circumstances went to show 
 that the shot did not proceed from a person concealed in 
 the woods. (A) The conclusion from these circumstances 
 was, that the pistol was fired by some person on horseback, 
 in the road, and riding higher than the deceased ; (i) and 
 this conclusion corresponded with other facts which were 
 actually proved; namely, that the prisoner was seen on 
 horseback, the same evening, on the same road where 
 the deceased was last seen alive ; and that the latter 
 
 (o) 13 Smedes & Marshall, 472, 473. (/) Id. 477, 479. 
 
 (A) Id. 474. 477, 478, 479. (g) Id. 490, Clayton, 3. 
 
 (c) Id. 490, Clayton, J. (ft) Id. ibid. 
 
 (d) Id. 474. (i) Id. ibid. 
 
 (e) Id. 490, Clayton, J. 
 
CHAP. II.] IDENTIFICATIOjr. 637 
 
 rode a small horse,, and, from age, stooped forward as he 
 rode, (a) 
 
 The position and directioa of wounds also frequently 
 serve to establish the fact that the person who inflicted 
 them was left-handed; and thus furnish a most important 
 coincidence in cases where it is proved that the prisoner is a 
 left-handed person (i). So, where the manner in which a 
 dead body has been dismembered, for the purpose of conceal- 
 ment, indicates that it has been done by a person having 
 some acquaintance with anatomy ; (c) or where the conduct 
 and movements of a person in entering the premises on 
 which a murder is committed, show an acquaintance with the 
 premises, the ways and modes of entrance and exit, the fact 
 of a watch-dog being kept, and the means of avoiding such 
 an obstacle ; ((i) all these circumstances tend towards iden- 
 tification, by narrowing the range or description of persona 
 within which the offender is to be sought. 
 
 (2.) The next class of circumstances which may be em- 
 ployed as means of identifying a criminal agent, are of a 
 more proximate character, being directly and physically con- 
 nected with the person. And these, again, are of two kinds : 
 first, appearances or peculiarities of the person of a criminal 
 as observed during the commission of the crime, or about 
 that time, or shortly before or after it, as corresponding with 
 similar observed: appearances and peculiarities of the person 
 of the accused ; and, secondly, physical coincidences, fur- 
 nished by objects and appearances, not seen at the time, but 
 discovered afterwards. 
 
 (a) Id. 476, 477. For other cases in whicli the position ooeupied by a 
 crimin!)^ was indicated by, and inferred from the position and direction of the 
 marks or wounds made by a gun-shot or pistol-shot, see Rex v. Patch, Wills, 
 CSrc. Evid. 230; and the State v. Carawan, Pamphlet Report, 32, 36. 
 
 (6) Rex V. Richardson, ante, p. 243. 
 
 (c) Commonwealth v. Webster, Bemis' Report, 402, 403. 
 
 (d) Regina v. Rush, Burke's Trials, connected with the Upper Classes, 480 
 431. ITu People v. Beehan, Suffolk (N. T.) Oyer & Tenmner, Oot. 1854. 
 
638 THE PROCESS OP [PAET II. 
 
 Under the first of these divisions, the following circum- 
 stances may be mentioned. 
 
 Size, including stature. This circumstance is the one 
 which ordinarily makes the first impression on the sense of 
 vision, when directed towards a particular person; and 
 where it exists in excess, or the reverse, as where the per- 
 son is unusually large or unusually small, much below or 
 much above the common height, (a) it always arrests the 
 attention and impresses the memory. The impression it 
 makes is an instantaneous one, and may be received under 
 circumstances admitting ant/ exercise of the faculty per- 
 ceiving it. Hence it may be observed under circumstances 
 of imperfect light or hurried motion ; which would not admit 
 of the observation of minuter peculiarities. If there be 
 light enough to see an individual with any distinctness at all,, 
 the outline of his person, which sufi5ces to give an idea of 
 size or stature, must be visible. (6) It is moreover a cir- 
 cumstance which cannot, ordinarily, be disguised by artificial 
 means, like other personal peculiarities. 
 
 Peculiarities of personal appearance. These furnish a 
 great variety of important means of identification. Among 
 them may be mentioned, — ^lameness, causing a peculiar gait ; 
 a habit of stooping or carrying the head on one side ; (c) 
 unusual breadth of shoulders ; (of) hair of a peculiar color 
 or length ; peculiarity o& a particular feature ; a conspicuous 
 
 (a) In Barbot's case, one of the ciroumstances prinoipally relied on for the 
 identification of the prisoner, was the diminutiveness of his person. 18 State 
 Trials, 1267, 1270, 1275, 1276. And see remarks on the case. Id. 1322, 1323. 
 In the case of the State t. Avery, the correspondence in stature, between the 
 person seen near the scene of the supposed crime, and the prisoner, was par- 
 ticularly mentioned by the witnesses. See ante, pp. 626, 629. 
 
 (6) In the case of Rex v. Brook, (31 State Trials, 1137,) one of the circum- 
 stances relied on by the identifying witness, was the size of the person of the 
 offender; and this was observed by a light caused by striking on the stone 
 floor with something like a sword, which produced a flash near his face. Wills, 
 Giro. Evid. 93. 
 
 (c) Regina v. Ruth, Burke's Trials, 488. 
 
 (d) Id. ibid. 
 
CHAP. II.J IDENTIFICATION. 639 
 
 scar on the face ; the want of an eye or front tooth ; the 
 want of a finger, or any other risible defect or mutilation. 
 
 Dress. This is usually one of the first circumstances ob- 
 served in the appearance of a person, and, where it is in any 
 degree peculiar, furnishes important means of identification. 
 In Barbof s casQ, (a) the peculiar dress of the prisoner, (6) 
 in connection with his diminutive size, was a principal instru- 
 ment ' of identifying him and tracing his movements from 
 place to place, (c) But the particular arrangement and 
 details of the dress are not usually so much observed, as 
 some single garment if noticeable from its color, size or mate- 
 rial. In Howe's case, (d) a fawn-skin waistcoat was par- 
 ticularly noticed as an article of the prisoner's dress on the 
 day of the murder. It is the exterior clothing, however, 
 including the hat, which ordinarily makes the first and most 
 lasting impression upon the sense of sight. An overcoat, 
 from its size, will soonest attract attention, and frequently is 
 the only portion of the clothing which is distinctly visible. 
 Hence it is constantly mentioned in testimony descriptive of 
 the persons of assailants and other offenders, (e) The 
 exterior clothing, like the size, is also frequently distinguish- 
 -able by very imperfect or transient light. (/ ) But, in one 
 respect, this circumstance of dress is less reliable than other 
 
 (a) 18 State Trials, 1229. 
 
 ( b ) Described by the witnesses as " a whitish coat, a silver-laced liat, a brown 
 waistcoat, and a long-tailed wig." Id. 1269, 1270, 1275. 
 
 (c) See also, the case of James Stewart, 19 State Trials, 107, 108, 109, 110. 
 
 (d) Stafford Spring Assizes, 1813; Wills, Giro. Evid. 234, 236. 
 
 (c) In Howe's case, the prisoner was observed to have on a dark-colored 
 great-coat, which reached to the calves of his legs. Wills, Circ. Evid. 234. 
 In Rex v. Brook, the prisoner was observed to have on a dark-colored top-coat 
 and a dark-colored handkerchief. Id. 93. See also Rex v. Haines, Id. ibid. 
 And see the trial of James Stewart, 19 State Trials, 103 — 113. In Avery's 
 case, an attempt was made to identify the prisoner, who wore a brownish- 
 colored surtout-coat and black broad-brimmed hat, on the day of the supposed 
 murder, with a person wearing the same dress, and of the same height, who 
 was seen very near the spot where it was supposed to have been committed. 
 See ante, pp. 626, 629. 
 
 (/) See Rex v. Brook, and Rex v. Haines, cited supra and infra. 
 
640 THE PROCESS OP [PART 11. 
 
 observed appearances ; it being frequently assumed for the 
 very purpose of disguise, and laid aside or destroyed after 
 the crime has been perpetrated. 
 
 The absence of an article of apparel usually worn out of 
 doors, such as a hat, constitutes another observable circum- 
 stance by which a person may be identified, (a) 
 
 Voice. This circumstance, if at all remarkable, frequently 
 makes a strong and lasting impression on the sense of an 
 observer. In Harrison's case, it was very prominently relied 
 on against the prisonei*. A witness testified on the trial, 
 that .on the same night on which the deceased was found 
 strangled in a hackney-coach in the street, she saw a coach 
 stop at a place named, and heard a person in the coach tell 
 the coachman to go to the house of the deceased, and after- 
 wards saw a person whom she identified' as the prisoner, put 
 his head out of the coach, and heard him swear at the coach- 
 man for not going faster ; and- that the latter returned with 
 the deceased, who went into the coach. On afterwards hear- 
 ing the prisoner speak, in Newgate, before she saw him, slio 
 said she knew him, by his voice, to be the same person who 
 swore at the coachman on the night in question, (i) Th& 
 voice of the prisoner was also a corroborative circumstance 
 in the case of Rex v. Brook, (c) 
 
 Physical objects connected with the person, such as a 
 horse ridden by the criminal, or a weapon held in his hand. 
 In the case of Rex v. Haines (d) where three Bow street 
 of&cers had been attacked in a post-chaise, by two persons 
 on horseback, it was stated by one of the officers that, by the 
 light produced by the flash of the pistols fited, he saw that 
 the horse of the robber who stationed himself at the head' 
 of the horses, was of a dark brown color, and of a very 
 remarkable shape, having a square head and thick shoulders 
 
 (a) See the case of Stewart Abercrombie^ cited aiite, p. 661, note. 
 
 (A) 12 State Trials, 860, 860, 861. 
 
 (c) 31 State Trials, 1137. Wills, Giro. Ev. 93. 
 
 (<i) 3 P. & F. 144; Wills, Giro. Et. 93. 
 
CHAP. II.J IDEJITIFICA.TION. 641 
 
 ami such that he could select him out of fifty horses ; and 
 that he had seen the horse since, at a stable in Long-Acre. 
 In Rex T. Howe (a) the murdered man, before his death, de- 
 scribed his assailant as haying a long and very bright pistol. 
 
 Under the second division above mentioned, namely, 
 physical coincidences, discovered after the commission of 
 a supposed crime, and serving to connect an accused party 
 with the transaction, and by that means to identify him as 
 the perpetrator, may be mentioned the following. 
 
 Impressions made at the scene of crime, by portions of the 
 person of the criminal, or, more commonly, by articles of 
 dress covering such portions ; such as the shoes, clothing, <fec. 
 as compared with the shoes, clothing, &c. of the prisoner. 
 These have already been considered at some length. (6). 
 
 Impressions made at the scene of crime by instruments 
 and objects found in or traced to the prisoner's possession ; 
 such as marks upon the windows of a house, corresponding 
 with a chisel so found or traced ; (c) and the impression 
 upon the seal of a letter mailed (containing an explosive 
 powder,) corresponding with a seal found in the prisoner's 
 possession, (d) 
 
 Marks made by wounds upon the person of an offender, 
 given with a weapon in the hands of an assaulted party, cor- 
 responding with marks visible upon the person of the pris- 
 oner. A case is mentioned by Mr. Best, where a person, on 
 being attacked by a robber, struck him on the face with a 
 key ; and a mark of a key, with corresponding wards, was 
 visible on the face of the prisoner, (e) In a case mentioned 
 by Mr. Wills, where a man had been attacked, thrown down 
 and robbed by three others, one of whom he wounded in the 
 
 (a) Wills, Circ. Evid. 234. 
 
 (A) Seeonie, pp 264—269. 
 
 (c) Rex v. Bowman, Allison's Prino. 314. 
 
 irf) Rex V. Palayo, Wills, Circ. Evid. 99. 
 
 (e) Beet on Pres. § 218, p. 297. 
 
.642 THE PROCESS OF [PART II. 
 
 struggle, with a clasp-knife, a pair of trowsers was found 
 concealed in the prisoner's possession, with two long cuts in 
 one thigh, one of which had penetrated thi'ough the lining and 
 was stained with blood at that spot, and the holes had been 
 sewed 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 plais- 
 ters, was found upon the prisoner's thigh, (a) 
 
 Impressions made on the clothing of a prisoner, by the 
 instrument used in committing a crime. A case is men- 
 tioned by Mr. Wharton as tried in Philadelphia in 1845, 
 where the prisoner's agency was determined by the fact that 
 the profile of a notched hatchet with which the homicide 
 was committed, was found penciled in blood on his hand- 
 kerchief, with which the hatchet had probably been wiped. (6) 
 
 Articles found near a dead body, or the scene of the crime, 
 and found to have belonged to the prisoner, or to have been 
 in his possession at or about the time of its commission ; 
 such as a dirk, (c) a razor, (c^) ahat, (^e) a razor-case, (/), 
 and the like. Even fragments of clothing have furnished 
 physical connections of this character. (^) 
 
 Articles belonging to a deceased person or to the place 
 where a crime has been committed, and found on the person 
 of the prisoner, or proved to have been in his possession 
 after its commission ; such as a watch, (A) keys, (J) spec- 
 tacles, (y ) and the like. 
 
 (o) Rex T. Dawtrey, York Spring Assizes, 1841. Wills, Giro. Evid. 58. 
 (6) Wharton's American Grim. Law, 388, (ed. 1855.) 
 
 (c) Mendum v. The Commonwealth, 6 Randolph, 704. ' 
 
 (d) Rex V. Sawyer, Maidstone Spring Assizes, 1839; Wills, Giro. Evid. 118. 
 
 (e) Rex V. Simmons, Gelebrated Trials, 57, 58, (Phil. 1855.) 
 {/ ) Rex V. Jones, Id. 90. 
 
 (g) See ante, p 272. 
 
 (A) The State v. Robinson, Middlesex (N. J.) Oyer & Terminer, IMt 
 Pamphlet Report, 16. 
 
 (t) Rex V. Smith, Varnham ani Tinms ; Wills, Giro. Evid. 237. 
 (;■) Rex V. Diggles, Lancaster Spring Assizes, 1826; Id. 53. 
 
CHAP. n.J IDENTIFICATION. 643 
 
 Correspondences between objects found at the sceae of a 
 crime, with other objects found in the prisoner's possession ; 
 as between a bullet taken from the body of a murdered per- 
 son, and a bullet-mould found in a box belonging to the pris- 
 oner, (a) 
 
 Correspondences between portions or fragments of objects 
 found at the scene of crime, and other portions of objects 
 found on the prisoner, or traced to his possession. These 
 have already been enumerated. (6) 
 
 Another means of identifying a criminal, or contributing 
 to his identification, is often furnished by articles observed 
 in his possession, about the time of the commission of the 
 crime, and by which his viovements may be traced from one 
 place to another. In a case of arson, a bundle containing 
 books and other articles, which the prisoner had left at one 
 house, the day before the fire, and at another, the day of the 
 fire, where it remained till afterwards, and which had been 
 observed and was identified by the persons with whom it 
 was left, afforded an important clue to his detection and 
 identification, (c) So, when the object is only generally 
 observed at first, and not minutely examined until afterwards. 
 Thus, in a case of murder, two boxes, which had -been 
 clandestinely removed by the prisoner, and, on being traced 
 out, were afterwards examined, were found to contain articles 
 which furnished important means of identifying him as the 
 ofiend'er. (rf) And even when the objects are not actually 
 seen, but their presence is only inferred from appearances, 
 the same general effect is sometimes produced. As in a case 
 of murder, where the prisoner was observed, shortly after 
 the commission of the crime, with something bulky under his 
 
 (a) Rex V. Howe; Id. 234. See ante, p. 272. 
 (A) Ante, ^.272. 
 
 (c) Trial of James Hill, alias John the Painter, 20 State Trials, 1331, 1382, 
 1333. 
 (rf) Rex V. Boiee, tiJi supra. 
 
644 THE PROCESS OF [PART II. 
 
 coat, near a place where a bundle containing articles stolen 
 from the deceased was afterwards found, (a) 
 
 It is, of course, essential that all such physical objects as 
 have been mentioned should be themselves identified, before 
 they can serve as means of identifying the accused. This 
 branch of the subject will be considered in the sequel. 
 
 Identification of the person has already been distinguished 
 as being either positive or inferential ; the former resting on 
 impressions derived from a general view of the person of the 
 subject, and most commonly from that portion of the person 
 by which one individual is naturally and most effectually 
 distinguished from another, namely, the face or features. It 
 often happens, however, that the process is found to partake 
 of both the positive and the inferential quality ; the witness 
 relying partly, and sometimes chiefly, on the close resem- 
 blance of the features, and partly upon circumstances con- 
 nected with the person, such as size, dress, voice, and the 
 like. 
 
 There are cases, again, in which, the identity being posi- 
 tively sworn to, and as positively denied, the witness resorts 
 to another class of circumstances of a still stronger charac- 
 ter, as tests of the accuracy of his testimony ; such as marks 
 upon the person not prominently visible, or even such as are 
 quite concealed by the ordinary clothing, and thus invisible 
 to any but one who has been intimately acquainted with the 
 subject, and who consequently possesses the most complete 
 means of knowing its identity. But the possibility of a 
 seemingly exact resemblance between two individuals, even 
 in numerous and minute particulars, must always be taken 
 into account in these cases ; and there are instances on 
 
 (o) Rex V. Beards, Wills, Circ. Ev. 101. See also the cases of Rex v. Downic, 
 and MilTie, (Allison's Prino. 213,) and Rex v. Bowman, (Id. 314,) where a 
 chisel which hsA been used by house-breakers, and was left behind by them, 
 Bcrved as means of identifying them, and connecting them with several thefts 
 committed in different houses. Wills, Circ. Ev. 50, 61. 
 
CHAP. II.] IDENTIFICATION. 645 
 
 record, in whicli the most confident testimony as to identity, 
 partaking of both the positive and inferential character, has 
 turned out to be founded in entire mistake. With the men- 
 tion of a few of these cases, the present head of the subject 
 will be concluded. 
 
 In the English case of Rex v. Clinch, and Mackley, (a) 
 the prisoners were indicted for murder, and, upon positive 
 testimony of their identity, were convicted and executed. 
 But it appeared, several years after, that the crime had been 
 committed by others. In the later case of Rex v. Robin- 
 son, (6) the facts were as follows. A young man, articled 
 to an attorney, was tried at the Old Bailey, on the 17th and 
 19th of July, 1824, on five 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, jew- 
 elry, and other articles, with the pretended intention of mak- 
 ing purchases, but made ofi' with the property placed before 
 him, while the shop-keepers were engaged in looking at 
 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 
 irreproachable character, and under no temptation from 
 want of money, to ^esort to acts of dishonesty. Similar 
 depredations on other tradesmen had been committed by a 
 person resembling the prisoner, and those persons deposed 
 that, although there was a considerable resemblance to the 
 prisoner, he was not the person that robbed them. The pris- 
 oner was convicted upon one indictment, but acquitted on 
 all the others ; and the judge and jurors who tried the last 
 three cases, expz-essed their conviction that the witnesses had 
 been mistaken, and that the prosecutor had been robbed by 
 
 (a) 3 p. & F. X44. 
 
 (A) Sessions Papers, 1824; Wills, Giro. Evid. 91. 
 
646 THE PROCESS OP PART II.] 
 
 another person resembling the prisoner. A pardon was 
 immediately procured in respect of that charge on which 
 conviction had taken place. 
 
 In another English case of supposed robbery, tried about 
 the same time with the one last mentioned, the prisoner was 
 saved from conviction (the prosecutor swearing positively 
 to his identity,) by the expedient of placing at his side, in 
 court, another person closely resembling him, and who 
 afterwards proved to be the real offender, (a) 
 
 One of the most extraordinary instances on record, of mis- 
 taken and disputed identity, ia which the close resemblance 
 between two individuals came near baffling a most severe 
 and protracted judicial scrutiny, occurred in the French case 
 of Martin Guerre and Arnaud du Tilh, in 1580, of which 
 tlie following may be taken as an abstract. Martin Gfuerre 
 of Biscay, had married a woman of Artignes in 1560. Hav- 
 ing afterwards a dispute with his father, he thought fit to 
 leave his family, and absented himself for eight years, with- 
 out giving them any information as to where he was. At 
 the expiration of this time, a person, afterwards ascertained 
 to be Arnaud du Tilh, appeared and represented himself to 
 be Martin Guerre. So closely did he resemble the absent 
 man, in features, stature and complexion, that he imposed 
 himself effectually on Guerre's wife, as her husband, and 
 lived with her three years, during whicji time she had two 
 children by him. For the same length of time, he succeeded 
 in deceiving four sisters and two brothers-in-law of Martin 
 Guerre, so that no suspicion was entertained of his identity. 
 
 (a.) Wills, Giro. Evid. 92. A singular case occurred lately in New York, 
 ■where the identity of the prisoner was sworn to by a number of witnesses, some 
 of whom persisted in their opinions, even after the jury had rendered a ver- 
 dict of acquittal, which they did without leaving the bar. The People v. 
 Mason, New York General Sessions, 1853. In this case, an action of false 
 imprisonment and malicious prosecution was brought against the prosecuting 
 parties, but resulted in a judgment for the defendants. New York JMorine 
 Court, May, 1854. 
 
CHAP. II.] IDENTIFICATION. 647 
 
 At length some circumstances led Peter G-uerre, the uncle 
 of the absent man, to doubt the real character of the sup- 
 posed husband, and upon the complaint of Martin Guerre' s 
 wife, Arnaud du Tilk, as the individual was now called and 
 claimed to be, was arrested and prosecuted for the fraud 
 before the criminal judge of E.ieux. On his examination, a 
 great variety of interrogatories, involving very minute par- 
 ticulars, of Martin Guerre's birth, relatives, marriage, &c., 
 was put to him, all of which he answered satisfactorily, the 
 truth of his answers being confirmed by the answers given 
 by Guerre's wife to the same interrogatories. In the course 
 of the subsequent iuvestigation, nearly one hundred and 
 fifty witnesses were examined. 'Of these, between thirty 
 and forty deposed that the prisoner was the true Martin 
 Guerre ; basing their belief upon intimate acquaintance 
 with him from his infancy, and upon the existence of certain 
 scars and marks upon his person. On the other hand, about 
 the same number of witnesses positively deposed that the 
 prisoner was Arnaud du Tilh, whom they well knew. The 
 rest of the \\ntnesses, to the number of sixty and upwards, 
 declared that there was so strong a resemblance between 
 the two persons, that it was impossible for them to say 
 which the prisoner was. 
 
 The judge, however, thought proper to pronounce a de- 
 finitive sentence, condemning the prisoner to death, from 
 which he appealed to the Parliament of Thoulouse, who 
 ordered the parties to be confronted in open court. In the 
 course of the personal examination which followed, the pris- 
 oner had so decidedly the advantage of the prosecuting 
 parties, (the uncle and wife of the absent man,) that the 
 members were induced to think he was the true Martin. 
 Guerre. Thirty new witnesses were examined, but without 
 altering the complexion of the evidence as it stood before. 
 For while nine or ten of them were positive that the accused 
 was Martin Guerre^ seven or eight >vere as positive that he 
 
648 THE PROCESS OP [PAKT II. 
 
 was Arnaud du Tilh, and the rest were unable to determine, 
 as ou tlie first trial. On examining the whole evidence 
 which had been given, it appeared that forty-five witnesses 
 had affirmed in the most express terms, that the accused 
 was not Martin Guerre, but Arnaud du Tilh, which they 
 said they were the better enabled to do, because they had 
 known both persons intimately, ate and drunk with them, 
 and conversed constantly with them from their very child- 
 hood. Various personal peculiarities were referred to by 
 them, such as those of stature, size, shape of the legs, length 
 of the foot, acquaintance with wrestling, dialect and tone of 
 the .voice ; in all which the two persons were distinguishable. 
 On the other hand, there ^ere thirty or forty witnesses who 
 swore positively that the prisoner was the true Martin 
 Guerre, that they knew him intimately and remembered him 
 from his childhood. Among these were the four sisters of 
 Martin Guerre, who were brought up with him, and two of 
 their husbands. The most of these witnesses agreed that 
 Martin Guerre had two strokes under his right eye-brow, 
 and that his left eye was blood-shot ; that the nail of his 
 first finger was crooked, and that he had three warts on his 
 right hand, and another on his little finger ; all of which 
 were visible on the prisoner. 
 
 The parliament still continued in doubt, and considering 
 the nicety of the case, and the consequences of annulling a 
 marriage and illegitimating a child, began to incline to the 
 accused, and thought of reversing the judgment of the in- 
 ferior judge, when suddenly Martin Guerre himself ap- 
 peared. He asserted that he came from Spain, gave a 
 distinct account of the impostor who had taken his name, 
 ■ and presenting a petition to the parliament, demanded a 
 hearing, which was granted him. On being interrogated as 
 to the same facts on which the prisoner had been questioned, 
 his answers were true, but they were neither so clear, so 
 positive, nor so exact as those which had been given by the 
 
CHAP. II.j IDENTIFICATION. 649 
 
 prisoner. Oq being confronted with the prisoner, the latter 
 treated Martin Guerre as an impostor who had been hired 
 on the part of the prosecution ; and conducted himself 
 throughout with such coolness and effrontery, that the ques- 
 tion seemed still to remain in doubt ; and some began to 
 think there was witchcraft in the business. 
 
 At last the court directed that, both the persons being 
 present, the four sisters of Martin Guerre, the husbands of 
 two of them, and such of the witnesses as had been most 
 positive in asserting the accused to be Martin Guerre, 
 should be called in and obliged to point out him whom they 
 now judged to be the true Martin. This final test, proved 
 decisive. For, the moment Martin Guerre' s eldest sister 
 looked upon the two individuals, she distinguished and re- 
 cognized her brother, and, with tears, declared him to be 
 such, acknowledging her former error. All the rest of the 
 witnesses knew him as soon as they saw him, and there was 
 not one who did not declare that Arnaud du Tilh was an 
 impostor. 
 
 No doubt now remaining as to the guilt of the prisoner, 
 he was condemned by a special sentence and afterwards exe- 
 cuted. Before his death, he made a long confession, from 
 which it appeared that having been mistaken while abroad, 
 for Martin Guerre, by some of Martin's friends, he deter- 
 mined to take advantage of the error ; and that it was from 
 these persons that he obtained all the minute particulars 
 respecting Martin Guerre and his relatives, which enabled 
 him to personate the absent man so successfully, and to sus- 
 tain the searching examinations to which he was subjected, 
 without failing in a single particular, (a) 
 
 The case just mentioned was an instance of close personal 
 resemblance being taken advantage of, to perpetrate an 
 
 (ff) The above account is abridged from a translation of the original case 
 in the Caiiset Celebres, containe*in the London Legal Observer for October 
 20th, 1832. 4 Legal Obs. 391. 
 
650 THE PROCESS OF [PART II. 
 
 atrocious fraud. In an American case, which will next be 
 mentioned, the same physical circumstance led to the prose- 
 cution of an innocent person for a felony. At a court of 
 Oyer and Terminer, held in the city of New York, on the 
 22d June, 1804, before Mr. Justice Livingston, assisted by 
 the Recorder and an alderman, Joseph Parker was tried for 
 bigamy under the name of Thomas Hoag, alias Joseph Parker. 
 Twelve witnesses called for the prosecution, positively testi- 
 fied to the identity of the prisoner whom they swore to be 
 Thomas Hoag. Among these was one of the judges of the 
 court of Common Pleas of Rockland county, who testified 
 that ho well knew the prisoner, who had worked for him 
 about a month, during which time he ate daily at his table : 
 that he married him as Thomas Ho.ag, to Catharine Secor, 
 on the 25th day of December, 1800 ; and that he was as 
 well satisfied of his identity, as he was of his own. The 
 woman who claimed to have been married to him, and to 
 have lived with him for several montlis, also testified to his 
 being Thomas Hoag, in the most positive terms ; expressing 
 herself to be as well convinced of that fact as she could pos- 
 sibly be of any thing in the world. The belief of the other 
 witnesses was founded not only on the general appearance of 
 the prisoner, but on a number of minute peculiarities by 
 which they had known Thomas Hoag to be distinguished ; 
 such as his voice, which was very singular, being shrill, 
 thick, hurried, and something of a lisp ; his smile, which was 
 very peculiar ; a habit of shrugging up his shoulders ; a 
 scar on his forehead, partly covered by his hair ; and an- 
 otlier scar on his neck. All these peculiarities were observ- 
 able in the prisoner. On the other hand, eight witnesses 
 positively testified that the prisoner was .Joseph Parker, as 
 they knew from intimate acquaintance with him : and some 
 of them further declared that, about the time when he was 
 chai'ged with having been married^ in Rockland, he resided 
 in New York, and was never absent from there any length 
 of time. 
 
CHAP. II.] IDENTIFICATION. 651 
 
 Among the marks sworn to have been observed on the per- 
 son of Thomas Hoag, was a large and visible scar under 
 one of his feet, occasioned by his having trodden on a draw- 
 ing-knife, which some of the witnesses swore they had seen. 
 This proved to be a decisive circumstance in the prisoner's 
 favour. For on exhibiting his feet to the jury, not the least 
 mark or scar could be seen upon either of them. It finally 
 appeared that the prisoner had been regularly upon duty as 
 a watchman, in the city of New York during the months of 
 October, November and December, 1800, and of January 
 and February, 1801 ; and particularly that ho was upon duty 
 there, on the 26th December, 1800, the day after that on 
 which he was charged with having married in Rockland. 
 The jury, without retiring from the bar, found a verdict of 
 " Not Guilty." (a) 
 
 II. Identification of Things. 
 
 Things, in their character of subjects of identification, for 
 the purposes of judicial proof, may be divided into the 
 following classes : the subjects of crime, the instruments of 
 its commission, objects found near the scene of crime, or in 
 the possession of criminals ; and handwriting. And the 
 process of identification, as applied to each of them, may be, 
 as in the case of persons, either positive, or inferential, or 
 compounded of both. 
 
 1. Subjects of Crime. 
 
 The most common class of things comprised under this 
 head, consists of articles claimed to have been stolen. And 
 
 (o) See the Report of the Trial in 1 Hall's American Law Journal, 70, and 
 also in the appendix (No. 4,) to Edwards' Juryman's Guide, New York, 1831. 
 The author of the last mentioned worli states, in a note to the case, that 
 Parker was then still living in the city, and that the alleged wife continued 
 to be so infatuated on the subject of her marriage to him, as to upbraid him, 
 whenever she met him, and would point his attention to her daughter, as if the 
 latter were their joint offspring. 
 
652 THE PROCESS OP [PART II. 
 
 these may be considered under the three divisions of goods 
 or merchandize, specific articles of personal property, and 
 money. 
 
 I (1.) Goods or Merchandize. 
 
 The most satisfactory means of identifying property of 
 this description is by marks existing upon the goods them- 
 selves ; such marks being known to the identifying witness, 
 and enabling him to swear positively that the goods found 
 and shown to him with such marks upon them, are the same 
 with those claimed to have been stolen. The mere general 
 appearance of goods, which are without marks of this char- 
 acter, ordinarily leads to no more definite conclusion, and no 
 nearer approach to identification than that they are of 
 the same kind, which, as already shown, is, without other 
 circumstances, insufficient evidence for the purpose in 
 view, (a) -^ 
 
 There are some descriptions of goods, however, which do 
 not admit of being thus specifically designated by marks, 
 such as grain kept in bulk in a barn. There are other de- 
 scriptions, again, which are no farther susceptible of being 
 marked than- as their outer coverings, cases or receptacles 
 may be thus designated, and which lose these marks, in the 
 act of being taken out of such receptacles ; such as sugar 
 taken from casks, grain from bags, tea from chests and the 
 like. In these cases, similarity of description is the only 
 quality which the articles themselves retain ; and this 
 frequently serves as a basis of identification, when corrobo- 
 rated by other circumstances. Thus, as in the example 
 given on a previous page, (6) if a man be found coming out 
 of another's barn containing grain, and upon being searched, 
 grain is found upon him, of the same kind as that in the 
 barn, it is a fair inference that he took the grain from the 
 
 (fl) See ante, p. 453. 
 (b) Ibid. 
 
CHAP. 11. J rDENTIFICATION. 653 
 
 barn, (a) So, persons employed as laborers in carrying 
 goods to or from ships, wharves and warehouses, or at work 
 in stores or warehouses containing goods, have been con- 
 victed of larceny, upon evidence that they were detected 
 with property of the same kind upon them, recently after 
 coming from such places. (6) One or two American cases 
 of proof of identity by this kind of evidence, may be here 
 mentioned. In a New York case, (c) the facts were as 
 follow. A quantity of silk handkerchiefs (in the piece,) 
 being missed from store-packages lying open for sale, goods 
 of the same description were traced to the possession of 
 three persons (blacks,) who had labored about the store the 
 same day, and had sold the goods to a woman, alleging that 
 they were the ventures of some young men who had recently 
 returned from sea. A gross of buttons, stolen at the same 
 time, and which had been sold by one of the prisoners to 
 the same woman, was identified with absolute certainty. 
 The identity of the handkerchiefs was holden to be well 
 made out by these circumstances. In another New York 
 case, Qit) where a habitual laborer about a store was indicted 
 for stealing bank-bills and sewing-silk, the evidence was — 
 that the prisoner was well acquainted with the premises ; 
 that the upper part of the store had been entered from the 
 cellar, by breaking, through a particular passage of which a 
 stranger would have been ignorant ; and that bills, some of 
 them of the same denominations with those taken, were 
 afterwards found on the laborer, which a clerk in the store 
 believed to be the same as those missed from a desk in the 
 store, which had been broken open. The laborer had sold 
 silk of the same description as that which was missed. These 
 
 (a) 2 East's P. C. 657. 
 
 (b) Id. ibid, and see 2 Russell on Crimes, 125. Wills, Giro. Evid. 55, 108 
 {c) The People y. Ferguson, et al. 1 City Hall Recorder, 65. 
 
 (d) 2%e People v. Williamson, Id. 115. 
 
654 THE PROCESS OP [PART II. 
 
 circumstances were left to the jury to determine the question 
 of identity, and they found the prisoner guilty. 
 
 (2) Specific articles of Property. 
 
 These are identified either by general appearance, by par- 
 ticular marks, or by both of these means in conjunction. 
 "The facility of identification by mere general appearance, 
 and the value of the evidence in itself, depend, obviously 
 upon the familiarity of the witness with the subject of the 
 testimony. An article of property which has been seen and 
 handled daily, especially when worn upon and carried about 
 the person, acquires by use and time a general exterior 
 which, to the eye of the owner or wearer,, sufficiently dis- 
 tinguishes it from others of the same kind. A pocket-book 
 or an article of apparel may be easily identified in this way. 
 Indeed, in the case of clothing, we have seen that it is ad- 
 mitted to be often impossible for the identifying witness to 
 assign any particular reason for his knowledge, (a) It occa- 
 sionally happens, however, that the most positive impressions 
 as to the identity of such articles, obtained in the way just 
 mentioned, prove to be fallacious, in consequence of the 
 number of articles which may have been manufactured or 
 made up in the same way, and out of the same material, 
 producing a close resemblance among several, — a resem- 
 blance which similar use and wear, for a similar length of 
 time, serve to complete and confirm. A remarkable instance 
 of deception, arising from these causes, occurred in the 
 English case of Re^v. Carter, (6) mentioned by Mr. Wills, 
 A youth was tried at Stafford Assizes, on a charge of 
 stealing a pocket-book containing a five pound note. The 
 evidence showed that the prosecutrix left home, 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 
 
 (a) Jlnte, p. 634. 
 
 (A) Coram Mr. Baron darrow; Wills, Circ. Evid. 106, 107 
 
CHAP. II.'] IDENTIFICATION. 655 
 
 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 identified 
 as that which she had lost, but it contained no money. 
 Several witnesses proved that the prisoner had long pos- 
 sessed the pocket-book, but some discrepancy in their evi- 
 dence, in other respects, led to the suspicion that the defence 
 was a fabricated one, and the jury returned a verdict of 
 guilty, and the prisoner was sentenced to be transported. 
 During the continuance 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 a five pound note. 
 The men took the money and pocket-book to th^^ prosecutrix 
 who immediately recognized them, and the comiiiitting magis- 
 trate dispatched a messenger, with the articles found and her 
 affidavit of identity, to the judge of the assize-town. The 
 prosecutrix must have dropped her pocket-book, or drawn it 
 from her pocket with her pocket-handkerchief; and had 
 clearly been mistaken as to the identity of the pocket-book 
 produced upon the trial. 
 
 That a person may be deceived by the appearance of an 
 article of dress, so far as to swear to its identity, was shown 
 in the Scotch case of Rex v. Webster, (a) in which a girl 
 swore to a white gown found in the prisoner's possession, as 
 being her property ; but which, on a minute examination, 
 she became satisfied was not hers, though very closely re- 
 sembling it). (Jj) 
 
 (a) Burnett's Crim. Law of Scotland, 558. 
 
 (4) The truth was elicited, in this case, in consequence of the suggestion of 
 one of the jurors, just before the case was closed by the prosecutor, that the 
 girl should pvit on the gown. This appeared rather a whimsical proposal, but 
 was agreed to by the court; when it turned out, to the surprise of every ono 
 present, that the gown would not fit her person. She then examined it more 
 minutely, and at length said it was not her gown. The prisoner was of cours& 
 
656 THE TEOCESS OF '[PART II. 
 
 The close resemblance necessarily existing among a num- 
 ber of articles of the same size and color, which have been 
 manufactured out of the same material, and after the same 
 pattern, has already been mentioned as a source of deceptive 
 impressions of identity in regard even to articles most 
 familiarl}'' known to the person claiming them. There are 
 cases in which this resemblance amounts to absolute com- 
 pleteness in every respect, as where several medals have 
 been struck from one die. In such cases, a resort to par- 
 ticular marks which have been accidentally or intentionally 
 put upon the article, becomes absolutely necessary to deter- 
 mine the question of identity, (a) 
 
 It is possible, however, that marks, even of a supposed 
 peculiar character, may prove fallacious as means of distin- 
 guishing and thereby identifying articles of property. Cases 
 have occurred in which, by a singular coincidence, precisely 
 the same mark has been put upon an article in precisely the 
 the same form and way, by two different persons claiming to 
 be its owners. An extraordinary case is mentioned by 
 Mr. Wills, in which a cask, among other articles claimed to 
 have been stolen, and which was identified as the property 
 of the prosecutor, by the mark " P. C. 84," enclosed in a 
 circle, at one end of it, was proved to be the prisoner's by 
 the very same mark. (6) 
 
 The sources of the most accurate impressions of the iden- 
 tity of specific articles of property are undoubtedly to be 
 found in the general appearance of such articles, as con- 
 firmed by marks upon them. The identity of articles long 
 possessed and familiarly known is often established in this way. 
 The impression of the witness is, in the first instance, derived 
 from and based upon general appearance, and he is frequently 
 disposed and content to rest it on that foundation alone. 
 
 acquitted, though it afterwards appeared that he had stolen the gown from 
 another person. 
 
 (a) See further, under the head of " Money," post. 
 
 (i) Wills, Cire. Evid. 105. 
 
CHAP. II.] IDENTIPICATIOX. 657 
 
 But if led, or required to examine the article closely, lie 
 finds upon it marks made either by time, accident or pure 
 intention, (such as fractures, abrasions, indentations, fissures, 
 scratches, rents and stains, as well as letters and figures put 
 upon it,) which he at once recognizes as the same with 
 those which the article had while in his possession ; and 
 hence superadds to his first positive opinion the inferential 
 one derived from the examination. Opinions made up in 
 this way rarely prove unfounded. '^ 
 
 (3) Money. 
 
 Money, whether in the shape of bank-notes or coin, 
 belongs to that class of things which cannot, without the aid 
 of circumstances, be identified by mere general appearance. 
 This is particularly the case with metallic money. The 
 impressions which give it value and currency, being pro- 
 duced in large numbers from the same die, render the indi- 
 vidual pieces, especially when newly coined, so entirely and 
 exactly similar in the minutest details, that no one piece can 
 be distinguished from another of the same denomination and 
 issue. The mere fact, therefore, that a coin, lost and charged 
 to have been stolen, is of the same denomination and issue 
 with a coin found in another's possession, although an ap- 
 proach to identification, falls far short of proof of that fact. 
 Indeed, it has been shown in a former part of this work, (a) 
 that even the exact coincidence between a particular combi- 
 nation of denominations of ordinary coin, contained in a 
 purse lost, and precisely the same number of coins of the 
 same denominations, contained in a purse found on another's 
 person, would not, of itself, amount to proof of identity. 
 Again, not only are the pieces of coin, when new, precisely 
 similar, but the same degree of use and wear to which they 
 are, in general, subjected, continues to preserve the same re- 
 semblance. It is indeed, extremely difficult, if not impos- 
 
 (o) Ante, p. 171. 
 
658 THE PROCESS OP [pART II. 
 
 sible, to say of any coin, however old or rare, that there are 
 not two pieces in existence, exactly similar. The only 
 effectual means, therefore, of identifying metallic money, is 
 by peculiar marks upon the individual coins, produced either 
 by accident in the process of coining, or in the course of 
 wear, or intentionally made either for the express purpose of 
 identification, or out of mere wantonness ; such as scratches, 
 bruises, abrasions, indentations, discolorations by heat or 
 chemical substances, and the various mutilations by clipping, 
 perforating, hammering, and the lilce, so commonly seen 
 upon silver money. Sometimes, though more rarely, the 
 process of mere wear is found to communicate to a coin an 
 appearance by which it is more easily distinguishable from 
 others of the same denomination and issue. 
 
 In regard to paper money, the same observations are for 
 the most part applicable. The complete similarity necessa- 
 rily given to notes of the same denomination and of the same 
 bank, by their engraved portions, is little affected by the 
 written portions, or filling up, which also bear a close re- 
 semblance to each other ; the only real difference consisting 
 in the bank numbers and letters and the dates, which, how- 
 ever, are rarely so much as noticed by the majority of holders 
 of the money. Hence the necessity of resorting to marks 
 upon the particular note or notes in question ; such as the 
 bank letter and number already mentioned, but naore com- 
 monly marks intentionally made by the holder, or accident- 
 ally produced in the course of circulation, such as stains, 
 rents and mutilations of various kinds. 
 
 The actual identification of paper money is, however, 
 often dispensed with, to a considerable extent, when there 
 are other circumstances from which the general inference of 
 guilt may be drawn. Thus, in a case in Massachusetts, 
 where the prisoner had been indicted for stealing a package 
 of bank-bills in December, it was held that evidence that 
 two of the bills, (which were identified,) each of the de- 
 
CHAP. U.] IDENTIFICATION. 659 
 
 nomination of one hundred dollars, were in the defendant's 
 possession, one of them in March, and the other in April 
 following, might be submitted to the jury, and that they 
 might infer therefrom, and from accompanying circumstances, 
 that he stole the whole package. It was held, also, in the 
 same case, that although none of the stolen bills were identi- 
 fied, yet that evidence was admissible to prove that the de- 
 fendant, after the larceny, was in possession of two one 
 hundred dollar bills like those that were proved to have 
 been stolen, and also of a large amount of other bank bills ; 
 and that such evidence, together with evidence that the de- 
 fendant was destitute of money before the larceny, might be 
 submitted to the jury, to be considered by them in connec- 
 tion with other accompanying circumstances indicative of 
 his guilt, (o) 
 
 2. Instruments of Crime. 
 
 Where an instrument or weapon with which a crime may 
 be committed is found near the subject or scene of the crime, 
 such as a pistol near a body found dead, or a chisel in a 
 house which has been broken into, especially if accom- 
 panied by indications of having been actually used for the 
 purpose, the great object of inquiry is to trace it to some 
 particular individual as its owner or possessor, or to identify 
 it as either belonging to an individual who may be suspected 
 as the perpetrator, or as having been seen in his possession 
 about the time when the crime was committed. Where 
 the instrument has been stolen, borrowed, purchased, or 
 ordered to be made, recently before the commission of the 
 crime, and for . the express purpose of committing it, the 
 requisite proof is made by the owner, seller or maker identi- 
 fying the article, as in the case of stolen property, with the 
 addition of identifying the person who stole, obtained or 
 
 (a) CommoHwealth v. Montgomery, 11 Metcalf, 534. 
 
660 THE PROCESS OP [PART H. 
 
 purchased it from him ; and the evidence adduced for this 
 purpose, in such cases, is often yery complete and satisfactory. 
 But identification by witnesses who have merely seen the in- 
 strument in the possession of the suspected or accused party, 
 especially where they speak from impressions produced by 
 general appearance only, is a more difficult process, and 
 frequently fails on the trial. Where particular marks, how- 
 ever, have been observed upon the article thus seen, the wit- 
 nesses are enabled to speak with more confidence ; and a 
 mere general view of such marks, if accompanied by other 
 circumstances, has been allowed as sufficient proof of iden- 
 tity, (a) 
 
 Again, there are some marks upon articles believed or 
 shown to have been used as instruments of crime, which 
 enable the inference of identity to be drawn by any person 
 to whom they may be exhibited, such as the owner's name 
 written, scratched or engraved upon them. But a very 
 minute examination is sometimes necessary to the discovery 
 of such marks of ownership. In an English case, where a 
 razor was found in a wood near the spot where a murder had 
 been committed, no means of its identification were visible 
 until an optician showed, satisfactorily to the jury, the name 
 of the prisoner, scratched in rude letters on the handle. (6) 
 
 3. Objects found at the scene of crime, or in the posses- 
 sion of the accused. 
 
 Objects, other than the instruments of crime, are some- 
 times found near the scene of its commission, which it 
 becomes highly important to identify, either as a ground of 
 suspicion against a particular individual, or as confirming 
 suspicions arising from other circumstances. Articles of 
 
 (a) See MendvM T. The Commonwealth, 6 Rand. 704; where the corrobo- 
 rative circumstances were quite remote in point both of time and place. 
 
 (6) Regina v. Sawyer, Maidstone Spring Assizes, 1839; Wills, Giro. Evid. 
 Jl8. 
 
CHAP. II.] IDENTIFICATION. 661 
 
 personal use or wear, such as a hat, a handkerchief, a pair 
 of gloves, a razor-case, may be identified, by persons who 
 have previously seen them in the possession of the accused. 
 But the same difl&culty is often found to arise in these cases, 
 as in the case of the attempted .proof of the identity of 
 actual instruments, and from the same cause ; namely, the 
 inability or indisposition and refusal (sometimes unexpect- 
 ed,) of the witness to swear to the fact of identity from the 
 mere general appearance of the article shown him. (a) 
 Where the identification rests upon minute physical coinci- 
 dences, which may be observed and tested by any person, 
 being essentially a mechanical process, it is often very satis- 
 factory : as where a piece of bloody cloth found near the 
 body of a murdered person, is ascertained, by physical ad- 
 justment and minute inspection, to have been torn from the 
 clothing of the prisoner. (6) 
 
 In regard to articles found in or traced to the possession 
 of an accused party, which it becomes necessary to show to 
 have belonged to a deceased and supposed murdered person, 
 such as a watch, the requisite proof of identity is made by 
 the testimony of persons who have often seen and handled 
 the article during the owner's life ; and where such testi- 
 mony is confirmed by that of the person from whom the de- 
 ceased purchased it, or who has afterwards had it in his 
 possession for the purpose of repair, it amounts to evidence 
 of the most satisfactory character, (c) r> 
 
 4. Handwriting. 
 
 Important links in a chain of criminative evidence are 
 often furnished by letters written by the accused, as to an 
 accomplice, to the person upon or against whom the crime 
 
 (o) Rex M.Jones, Celebrated Trials, 90, 94, (Phil. 1835.) 
 (4) Rex V. Johnson and Fare, 5 Lond. Legal Observer, 254, 257. 
 (c) See the case of The Slate v. Robinson, Middlesex (N. J.) Oyer and 
 Terminer, March, 1841. Pamphlet Report, pp. 14, 20. 
 
662 THE PROCESS OP [PART II. 
 
 has been committed, and, in sonie instances, to other persons. 
 Where these are in the ordinary hand of the accused, they 
 are identified in the usual way of proof of handwriting, 
 upon which it will not be necessary to dwell. But it more 
 commonly happens that they are in hands more or less com- 
 pletely disguised, and this introduces a kind of proof which 
 is in its nature thoroughly circumstantial ; being based upon 
 a minute and sometimes literally microscopic examination 
 of particular words and letters, with a Tiew of detecting 
 those involuntary adhesions to the natural manner of writing, 
 which, from the pure force of mechanical habit, maintain their " 
 existence in the most elaborate specimens of imposture and 
 fraud, and can seldom be completely excluded from them. 
 A very prominent instanc3 of this kind of proof occurred in 
 the case of Commonwealth v. Webster, in which, out of 
 three letters which it became important to trace to the pris- 
 oner, one wa^ marked by the most extraordinary character- 
 istics. In order, apparently, to give greater effect to the 
 deception intended, the use of the ordinary pen was avoided, 
 and the letters were made with a marking instrument called 
 " a cotton pen ; " some of the words being so rudely shaped 
 as to be almost illegible, and the coarse heavy strokes 
 produced- throughout, giving to the entire letter a most 
 singular aspect, (a) The more, thoroughly (as it would 
 appear) to guard against involuntary adhesions to the 
 natural manner, some of the letters were rudely printed; 
 and to secure the deceptive effect of the whole, the manner 
 of an illiterate person, in regard to spelling, punctuation 
 and the like, was studiously counterfeited ; the letter being 
 moreover written in a straggling, uneven manner, upon a 
 torn scrap of paper. (6) Yet, under all this exterior of 
 
 (a) Henoe it was not very inaptly designated by one of the counsel on the 
 trial, aa " the Sanscrit letter." Bemis' Report, 441. 
 
 (6) A fao-simile is given in Bemis' Report, 210, 211. And see anUt pp. 
 432, 433, and note (a) ibid. 
 
CHAP. 11.] IDENTIFICATION. 663 
 
 ingenious and labored uncouthness, the practiced eye of an 
 expert was enabled to detect those traces of the usual and 
 natural manner which have been alluded to, and the exist- 
 ence of which was afterwards confirmed as the truth by the 
 confession of the prisoner himself, (a) 
 
 SECTION V. 
 Psychological Considerations. 
 
 What have been termed psychological facts ' are always 
 found to constitute a most important division of the elements 
 of circumstantial evidence. They exhibit the outward and 
 visible conduct, as it is prompted and directed by the mind — 
 the real source and seat of all guilt ; and, could they be 
 uniformly reached and developed with certainty, would be 
 decisive of almost every case proposed for investigation. 
 But as they arise from causes and consist of operations too 
 subtile and latent to be the objects of sense, they can be 
 arrived at only indirectly, (and therefore not always with 
 absolute accuracy,) through facts of the physical class, by 
 processes of presumptive reasoning which have already been 
 explained. 
 
 Among facts of this description, motives and intents are 
 especially prominent. So far as these may be considered 
 as the general inducing causes of a criminal act charged, or 
 as giving to such act its criminal quality, they have already 
 been sufficiently dwelt upon. (6) But they also constantly 
 occur for consideration in a more limited view and appli- 
 
 (e) Bemis' Report, 204, 207, 571. And see further, on the subject of 
 iJentification of handwriting. Wills, Giro. Evid. chap. 4, sect. 3. 
 (d) See anU, pp. 281—328. 
 
664 PSYCHOLOGICAL [PAET 11. 
 
 cation ; namely, as illustrative of the significance and bear- 
 ing of particular and minor facts of conduct, in their char- 
 acter of portions of a body of presumptive evidence. 
 
 The motive and intent, then, of any particular fact of 
 conduct, which it becomes requisite to use as evidence for a 
 criminative purpose, are arrived at by looking carefully at all 
 the minuter circumstances and incidents by which such fact 
 has been accompanied. This is particularly true of the fact 
 of intent, which more immediately and effectually gives to 
 the act in question its criminal aspect and quality, (a) Tlie 
 essential point to be established in connexion with facts of 
 conduct in every case, is that the party actually intended or 
 willed to do the act which it is proved he did, and that he 
 also intended to produce the consequence which actually 
 flowed from it ; and this may be very effectually done in the 
 presumptive way already mentioned. If the accompanying 
 circumstances show that the act was a deliberate one ; that 
 it was repeated, almost immediately ; that it was done, on 
 both occasions, in the face of opposition ; and that it was 
 followed by an exhibition of feeling, showing a positive 
 interest in it, and in its result ; the defence that it was acci- 
 dental or unintentional, or done out of mere thoughtlessness 
 or inadvertence, will be excluded. In the case of Donellan 
 which has already been particularly examined, (6) his con- 
 duct in rinsing the medicine phials, and then destroying 
 their contents, was shown to be wilful, by means of circum- 
 stances of this description, in the clearest manner. He 
 first asked for the phial out of which the deceased had 
 taken the draught, and had it particularly pointed out to 
 him ; showing that he meant to act upon thorough informa- 
 tion. He next deliberately poured water into it from an- 
 other vessel; shook it and emptied the contents ; and this 
 against the expressed wish and sharp remonstrance of an- 
 
 (a) See ante, p. 284. 
 (6) .^Hfe.pp. 604—620. 
 
CHAP, n.] CONSIDERATIONS. 665 
 
 other person present. He then repeated the same conduct 
 with another phial, in the face of similar remonstrance. He 
 then ordered the bottles and the basin into which he had 
 poured their contents to be carried away, and gave to his 
 conduct in this particular the shape of an actual contest with 
 another person who was endeavoring to prevent him. And 
 finally, after he had succeeded in procuring the removal of 
 the articles, he expressed anger that he had been thus 
 opposed and striven with. All this went incontestably to 
 show that he had intended to do what he did, and to pro- 
 duce the consequence which followed ; namely, the destruc- 
 tion of all the evidence of what the phials had contained. (a) 
 The unfavorable bearing of this conduct, and the light in 
 which it would naturally be viewed by others, were consider- 
 ations which seem to have, almost immediately, struck the 
 mind of Donellan himself, and that so forcibly as to compel 
 him to attempt an explanation of it. In doing this, he chose 
 to recur to his motive. He undertook to say what it was that 
 induced him to act as he had done. He rinsed the phials, 
 he said, " in order to taste " their contents. But, looking 
 at this assignment of motive in the light of the accompany- 
 ing facts, we are enabled to detect its falsity, while the same 
 facts serve as means of discovering what was the real 
 motive at work in the case. It was shown that he tasted 
 but one phial, and that he did not taste the phial which was 
 pointed out to him as having contained the draught which 
 had occasioned the alarming appearances and symptoms 
 observed, but rinsed out and threw away the contents 
 immediately. The excuse, therefore, had, in point of fact, 
 no application to the case and no reasonable meaning what- 
 ever, and its falsity might, on this ground alone, be pro- 
 nounced apparent. But supposing he had tasted both, how 
 
 (a) In a defence of the prisoner, written after his execution, this conduct 
 was placed in the light of mere imprudence and want of proper consideration. 
 Celebrated Trials, 176. 
 
666 PSYCHOLOGICAL [PART H. 
 
 does this explain or excuse the acts of destruction which 
 followed, and which were completed by the "uppression of 
 all mention of them (even by way of allusion) to the apothe- 
 cary who had been sent for, for the purpose of making the 
 very examination which was thus frustrated ? Besides, if 
 he had rinsed the phials, to taste them, his only reasonable 
 object in tasting could have been to ascertain what they had 
 contained ; and under the shocking circumstances of the case, 
 it would have been natural to expect that he would have 
 expressed some opinion or belief, as the result ; — that there 
 was or was not something extraordinary, if not actually 
 noxious, in the draught which had been taken ; and that the 
 apprehension expressed by Lady Boughton that the alarming 
 appearances which were still visible upon the body of her 
 eon, were attributable to it, was or was not unfounded. But 
 not a word to that effect was said. All these circumstances, 
 while tending to show that the motive assigned was not the 
 true one, serve positively to indicate what the real motive 
 was, namely, a desire to conceal the cause of the death, as 
 quickly as possible, and by the most effectual means. 
 
 The motives, therefore, as well as the intents of particular 
 acts on the part of an accused person, may often be very 
 satisfactorily explained by the aid of the light, which ac- 
 companying circumstances afford ; and, in this way, all facts 
 of conduct which are made to appear in evidence in any 
 investigation are subject to be interpreted. And this species 
 of natural construction is materially aided by one of the 
 most general rules of presumption in nature, as well as in 
 law : — that every sane person is presumed to know, and 
 therefore to intend, the natural consequences of his own 
 voluntary acts, (a) And this rule again is founded upon 
 another, of still more general character and of universal 
 application ; namely, that every person endowed with an 
 ordinary measure of sense and discretion, is presumed to be 
 
 (a) See arde, p. 309. 
 
CHAP, n.] CONSIDERATIONS. 667 
 
 able to perceive and understand the relation of cause and 
 effect, especially in its application to common and familiar 
 subjects, to estimate that relation in its proper character, 
 and to act accordingly. 
 
 There is much, however, in courses of criminal conduct, 
 when closely analyzed, which distinguishes them from any 
 ordinary course of human conduct, entered upon from a 
 particular motive and carried on to a certain desired end or 
 result ; showing, at times, a singular blindness to the exist- 
 ence of the relation just mentioned ; or, an equally singular 
 disregard of it, if properly apprehended and appreciated. 
 And this reveals a feature of crime of the very highest 
 importance to be kept in view, in investigations of its cause, 
 namely, its frequent inconsistency with itself; a quality 
 which it might not be difficult to show to be inherent in 
 its nature, and which, in some recorded instances, (to be 
 presently mentioned,) has exhibited itself in the most glaring 
 form. 
 
 But the .existence of this peculiar quality is often either 
 not perceived or not admitted, especially on occasions of 
 defending persons accused of crimes of the higher grades. 
 It is a common practice to treat crime, considered in an 
 abstract or general point of view, as a course, development, 
 or exhibition of human conduct, which, however morally 
 wrong, is mentally and logically correct ; that is, as exhibit- 
 ing, in all its stages, a clear perception and true apprecia- 
 tion of relations and consequences ; and, in particular, a 
 prudent, consistent and vigilant regard to the criminal's own 
 interest, and to that great leading policy of secrecy by 
 which he is enabled to accomplish the two successive objects 
 of committing the crime and escaping discovery. Hence, 
 where, in any particular case under investigation, the evi- 
 dence goes to show a departure from this assumed general 
 policy or rule of crime, and fixes the imputation of ii-ration- 
 ality or folly upon the accused, by proving hisi to have done 
 
668 PSYCHOLOGICAL [PAET II. 
 
 an act, the natural (if not obvious) tendency of which was 
 to expose himself to discovery, it is made use of as an argu- 
 ment to show the improbability of his guilt. In the common 
 phrase used on such occasions, " he would not have been 
 such a fool as to have acted thus ; " or, " he must have been 
 a fool to have done so." Thus, in Carder's case, the pris- 
 oner, in a written defence read by him on the trial, dwelt on 
 the fact that the place to which he went, in company with 
 the deceased, on the day they were last seen together, and 
 where her dead body was afterwards found, was a place sur- 
 rounded by cottages, and that they went there in the middle 
 of the day ; and then asked whether it was likely that he 
 would have thus exposed himself to the danger of discovery, 
 had he intended to commit murder, (a) And yet, before 
 execution, he fully confessed the crime. (6) Indeed, in 
 some cases where acts of this character have been clearly 
 proved to have been done by the prisoner, they have been 
 laboriously and ingeniously dwelt upon as proofs of a dis- 
 ordered mind. Thus, in Mrs. Spooner's case, where it was 
 shown that the female criminal, immediately after the mur- 
 der, gave to her male accomplices the watch of the deceased, 
 and various articles of his wearing apparel, which were sub- 
 sequently found on their persons, and, being easily identified, 
 aided materially in their detection and apprehension ; it was 
 argued that this was not the conduct of a person in the 
 exercise of reason, (c) And the radical circumstance of 
 her entrusting the commission of the crime to strangers and 
 foreigners (two of the murderers having been British sol- 
 diers,) was dwelt on as showing the same fact, (rf) 
 
 It is undoubtedly true that the general policy of crime is 
 secrecy, or avoidance of human observation, and that much 
 
 (a) Rex V. Corder, Celebrated Trials, 215, 223, (Phil. 1836.) 
 
 (b) Id. 224. 
 
 (c) 2 Cliaoiller'B American Crim. Trials, 81. 
 (il) Id. 82. 8». 
 
CHAP. II.J CONSIDERATIONS. 669 
 
 sagacity and vigilance are ordinarily exercised in adhering 
 to it. And it is on this very account, as already shown, that 
 the proof of crime, by means of circumstances^ is so often 
 a difficult, uncertain, imperfect, and ineffectual process. But 
 it is not less true that, in many instances, this policy is more 
 or less widely departed from, and that the criminal does not 
 keep in constant view what is supposed to be (by a kind of 
 necessity,) the great ruling principle of his conduct, — a 
 careful regard to his own interest. This, indeed, is manifest 
 from the very fact of the existence and availability of the 
 materials or elements of circumstantial evidence itself; 
 they being nothing more than traces of action which the 
 actor has failed to conceal. Were the policy just men- 
 tioned perfectly and consistently adhered to, few of these 
 traces of crime would ever be discoverable. 
 
 Hence, on a careful analysis of criminal conduct, as dis- 
 played in actual cases, we often find an ingredient of 
 thoughtlessness, carelessness or negligence, amounting some- 
 times to what appears as actual folly, and even absolute 
 stupidity, present in union with great shrewdness and 
 sagacity ; bringing prominently to view the quality of in- 
 consistency, which has been adverted to. 
 
 Looking at the two successive objects which every crimi- 
 nal may be supposed to contemplate, — the commission of 
 the crime and the avoidance of its consequences, — ^it is in 
 planning and effecting the former, in preparing the neces- 
 sary means, and watching the necessary opportunity, that 
 what may be called the art of crime is most apt to be fully 
 exhibited. It is in getting access to the coveted property, 
 or in getting the intended victim within desired reach, that 
 the criminal is found to exercise the greatest amount of 
 skill and ingenuity. The object of action, thus far, lies 
 within a limited compass, and the action itself is, in its 
 nature, more entirely within his own control. Thus, up to 
 a certain point, he is often found to reason correctly, to 
 
670 PSYCHOLOGICAL [PART 11. 
 
 observe vigilantly and in all. directions, and to adapt his 
 conduct to its anticipated results in the nicest manner. But 
 even to this course of conduct there are found exceptions ; 
 constituting sources of what has already been treated of 
 as precedent circumstantial evidence ; such as hints, in the 
 presence of others, at the act in contemplation ; declarations 
 of intention to do it, and even threats to do it : (a) show- 
 ing the intensity of the desire to attain the first or immedi- 
 ate object in view, as blinding the mind to the necessity of 
 regarding the other, or ulterior and consequent one. 
 
 But it is beyond the point just indicated, — that is, immedi- 
 ately after the crime, or even during the act of commission, 
 and sometimes just before, — that the sagacity and vigilance 
 of the criminal most commonly begin to forsake him ; and 
 he is found to leave one, and another, and another trace of 
 himself, exposed to view, without any adequate attempt at 
 concealment. What greater folly, for instance, can be con- 
 ceived, than to set out for the scene of a contemplated 
 murder, when the ground was covered with newly-fallen 
 snow, which would certainly show the impression and direc- 
 tion of every footstep ; and with shoes which would as cer- 
 tainly give to such impressions a peculiar character, suggest- 
 ing and ultimately leading to the decisive mode of proof 
 and detection by comparison ? Or what greater folly than 
 to convey the murdered body to a place where it was sure 
 to be found and traced back to the premises of the murder- 
 ers ? Yet these were the actual facts in recorded instan- 
 ces. (6) This species of folly is ordinarily exhibited in the 
 negative form of carelessness and omission. But it some- 
 times occurs in the grosser form of actual commission ; the 
 criminal (in effect) deliberately framing evidence against 
 himself. 
 
 (a) See ante, pp. 331, 338, 840. 
 
 (6) See the case of Mrs. Arden, ante, p. 264. See also the case of Bix v. 
 Smith, Varnham and Timms, ante, p. 266. 
 
CHAP, n.] CONSIDERATIONS. 671 
 
 Perhaps in no instance -was ttis inconsistent quality of 
 criminal conduct, this union of great sagacity and caution 
 with unaccountable thoughtlessness and folly, more strongly 
 exemplified than in the case of Fauntleroy, who was exe- 
 cuted in England for forgery, in October, 1824. (a) In 
 this case, the prisoner had carried on a course of forgery 
 for several years, by means of which he had fraudulently 
 obtained the transfer of stocks entered in the Bank of Eng- 
 land, in the names of various persons, and amounting in the 
 whole to considerably over 100,000^. ; and had managed his 
 proceedings throughout with so much art and success, by 
 means of false entries and fictitious accounts, as to escape 
 the notice even of his own partners in business. But, by 
 an extraordinary infatuation, while these proceedings were 
 going on, the criminal took the step of committing his secret 
 to writing ; and in a document penned and signed by him- 
 self, though carefully kept among private papers, most 
 explicitly declared the whole fact of his guilt. This docu- 
 ment having been found in his possession on his arrest, 
 operated against him as unanswerable evidence, and with 
 the most fatal effect. (6) 
 
 A few other cases may be here referred to, as illustra- 
 ting the same point. In the Scotch case of Nairn and 
 
 (o) Celebrated Trials, 19. (Phil. 1835.) 
 
 (6) The following is a copy of this singular paper. " Consols, II.ISIZ.; 
 standing in the name of my trusteeship, 3000Z. ; E. W. Young, 6000Z. ; con- 
 Bols, General Toung, 5000J.; Long annuities, J'rances Foung, another 6000L 
 Lady JVdson, 11,595/.; Mrs. Ferrer, 2O,O00Z. 4 per cents; Earl of Ossory, 
 7,000Z.; T. Owen, 9400i.; J. W. Parkins, 4000Z.; Lord Aboyne, 6000J.; 
 P. Moore and John Marsh, 21 ,000. — ^In order to keep up the credit of otfr 
 house, I have forged powers of attorney, and have thereupon sold out all these 
 sums, without the knowledge of any of my partners. I haye given credit in 
 the accounts for the interest when it became due. May 7th, 1816. (Signed,) 
 Henry Fauntleroy." And then followed, at the foot of the paper, these re- 
 markable words, disclosing another motive to the crime than the mere desire 
 of gain, and throwing not a little light on the cause of such a record being 
 kept. " The bank began first to refuse our acceptances, and thereby to destroy 
 the oredit of our house ; they shall therefore smart for it." 
 
672 PSYCHOLOGICAL [PART II. 
 
 Ogilvie, (a) the female prisoner seems to have made no 
 secret of her intention to poison her husband, and although 
 a great degree of art and caution was used in getting posses- 
 sion of the poison, and in mixing it with the victim's food, 
 the crime was no sooner committed than the same party is 
 found endeavoring to prevail on the medical attendant who 
 was called in, to conceal whatever he might think to have 
 been the cause of the death. In the case of Burdock, (6) 
 another case of poisoning, the prisoner actually mixed the 
 poison in the gruel intended for the deceased, in the presence 
 of a servant ; and although some attempt at disguise and 
 deception was made by giving it the character of a medi- 
 cine, this was more than neutralized, and a palpably sus- 
 picious aspect given to the whole transaction, by her caution 
 to the servant "not to tell the deceased that there was any 
 thing in the gruel, as, if she knew there was, she would not 
 take it, and would think they were going to kill her." In 
 Green's case, (c) also a case of poisoning, the prisoner's 
 course was marked by a similar neglect of the art and pre- 
 caution supposed to be characteristic of the commission of a 
 great and premeditated crime. His disregard of the pre- 
 scriptions of the medical attendant, and his continued ad- 
 ministration of the same white powder in every article of 
 medicine and food prepared for the sick, had the effect, 
 which might have been foreseen, of attracting attention to 
 his movements ; and his suffering the articles in which the 
 powder had been mixed, to remain within reach of observa- 
 tion, was attended with another result, which also might 
 have been anticipated, — examination to see what the powder 
 was, and consequent discovery of its real poisonous character. 
 In short, the criminal observed just enough of secrecy and 
 disguise to excite suspicion and draw upon himself its natu- 
 ral consequences. 
 
 (o) Rex y. JVairn and Ogilvie, 19 State Trials, 1285. 
 
 (i) ilea: t. Burdock, Best on Pres. § 196. 
 
 (c) The People v. Green, Rensselaer (N. Y.) Oyer & Terminer, July, 1845. 
 
CHAP. II.J CONSIDERATIONS. 673 
 
 In crimes of a comparatively petty character, the same ^ 
 singular disregard of relations and consequences is some- 
 times found to take place. Thieves and receivers of stolen 
 goods have been known to keep the stolen articles in their 
 possession, with tte owner's marks still apparent upon them, 
 thus furnishing a means of immediate identification and de- 
 tection, (a) 
 
 The causes of this singular and sometimes sudden blind- 
 ness to the criminal's immediate and obvious interest in the 
 case, and this disregard of what may be called the neces- 
 sary policy of his conduct, may now be more particularly 
 examined. The circumstance of creating evidence against 
 himself, in the way of omission, (that is, by omitting to de- 
 stroy the impressions and vestiges of his own action,) some- 
 times arises from the self-imposed necessity of the case. In 
 entering npon the actual perpetration of a great crime, the 
 criminal commits himself to the issues of events which he 
 can neither foresee nor perfectly control. With the best 
 contrived plan of proceeding, and the best adapted means 
 of action, he often encounters, and sometimes at almost 
 every step, difficulties and obstacles, against which no pro- 
 vision (or no effectual one,) could be made. A trifling acci- 
 dent ma)' serve to endanger the whole enterprise. The 
 premises sought to be invaded are found to be secured 
 with unusual care ; the intended victim takes the alarm, and 
 makes a long and desperate resistance, with cries of distress 
 which violence cannot wholly stifle. (6) To deal the mortal 
 blow and escape for his life, is sometimes all the murderer 
 can do. He has no time for acts of concealment which often 
 take whole days and nights to perform them adequately, (c) 
 
 (a) The People v. Teal, 1 Wheeler's Crim. Cases, 199, 201. 
 
 (6) See the case of The People y. Beehan, Suffolk (N. T.) Oyer & Terminer, 
 October, 1854. 
 
 (c) See the cases of The State v. Carawan, Beaufort County (N. C.) Su- 
 perior Court, Fall Term, 1853; and The People v. Cnlt, New Tork Oyer & 
 
674 PSYCHOLOGICAL [PABT IL 
 
 Again, this omission or neglect to conceal the traces and 
 evidences of criminal action, even when present to the actor's 
 view and within his reach and control, may be attributed to 
 that confusion of mind and memory, which, particularly in 
 cases of inexperienced offenders, is often found to attend 
 the commission of great crimes, and occasionally wholly 
 frustrates their accomplishment. The murderer /org-ejs that 
 his feet are making the impressions which are to lead to his 
 discovery. The ihxQi forgets to erase from the article which 
 he has stolen, the owner's marks ; or he trusts to superficial 
 appearances, without making thorough examination. He 
 keeps the stolen box in his possession, till it is there found, 
 without thinking of looking on the bottom, where the evi- 
 dences of ownership arc distinotly written, (a) 
 
 Lastly, supposing greater coolness and circumspection to 
 be observed in the criminal act, the same circumstance of 
 omission may be ascribed to an excess of confidence, on the 
 part of the offender, in his own intended after-conduct, and 
 in his purpose and plan of subsequent destruction or con- 
 cealment of the evidence of guilt, or of the concealment of 
 his own person, or final escape from danger by flight. 
 
 Terminer, January, 1842. The same circumstance of a self-imposed necessity 
 constitutes an answer to an argument founded on the same view of folly in the 
 party concerned, which was advanced, after the trial, in behalf of the prisoner 
 in DoneUan's case. In that case, the prisoner not only attempted to conceal 
 the physical evidences of the crime, (the traces of a supposed poison in a medi- 
 cal draught, ) but actually succeeded in destroying them altogether. See ante, 
 pp. 606, 607. But this was done in the presence of another person, who en- 
 deavored to prevent it; and thus became the means of creating, upon principles 
 of reasonable construction, evidence of a very strong character against him; so 
 strong, indeed, as to induce the argument that if he was really guilty, he must 
 have been insane to have acted thus. See Celebrated Trials, 178. But, as 
 the case stood, it was his only alternative. He would have been more insane 
 to have left the evidence untouched, as discovery would then have been inevit- 
 able. The apothecary who had been sent for, would have detected the poison- 
 ous ingredient at once; and this would have led to a course of examination far 
 different from that which took place, and with a more certainly adverse lesult. 
 (a) See The People v. Teal, supra, p. 673. 
 
CHAP. II.] CONSIDERATIONS. 675 
 
 All such explanations, however, fail to take from these acts 
 of omission their character of intrinsic and manifest folly. 
 But it is in those cases where the criminal, having effectually 
 perpetrated the crime and escaped discovery, deliberately 
 creates with his own hand the strongest evidence of it, and 
 puts it, as it were, upon record, that this feature of folly is 
 found to reach the height of absolute infatuation, having 
 almost the quality of mental imbecility, though without any 
 of its exculpatory claims or consequences, (a) 
 
 The folly, therefore, (even to a glaring degree,) of par- 
 ticular acts on the part of a person accused of crime, is by 
 no means an unanswerable proof of their not having been 
 committed by him, or, if committed, of having been the 
 result of irresponsible agency. They are parts of a condi- 
 tion of human action, which seems to have been divinely 
 appointed, as a most effectual instrument in a system of 
 self-retribution; and without which, crimes of the most 
 aggravated enormity would constantly and forever escape 
 and defy discovery. 
 
 But in a wider range of observation, looking at crime in 
 general, as a course of conduct prompted by certain motives, 
 and persisted in, in the hope of attaining certain ends, its 
 intrinsic folly, under any circumstances, becomes apparent. 
 
 (o) If the conduct of Fauntleroy, {ante, p. 671,) admits of anj explanation, 
 it may be this. It was a peculiar feature of the ofTence in his case, that it 
 was instigated by both the two leading motives which impel or induce to tho 
 commission of crime, — the desire of unlawful gain, and the gratification of 14 
 revengeful spirit. It was malice, in union with a feeling of self-complaoencu 
 in view of an artifice successfully practiced, which seems to have dictated tho 
 extraordinary record made by the accused , in all its particularity of names and 
 amounts. And it would appear as though these emotions had been too power- 
 ful to rest satisfied with the bare mental remembrance and contemplation of 
 the fraud ; demanding to be expressed in a form palpable to tho bodily sense, 
 even at the risk of encountering the dreadful penalty which was finally under- 
 gone. The record was, of course, intended for no eyes but the writer's own; 
 the purpose, doubtless, being to destroy it on the least suspicion of danger. 
 But the action of the law was too sudden to permit this ailer-expedient to bo 
 resorted to. 
 
676 PSYCHOLOGICAL CONSIDERATIONS. [PART n. 
 
 In yielding to the force of temptation, (tlie real essence of 
 most forms of guilt,) and voluntarily encountering the 
 hazard of consequences far outweighing the gain proposed ; 
 in entering on a path purposely obscured, and most literally 
 crooked and tortuous, where the end can never be seen from 
 the beginning, and trusting himself and -all his interests to 
 the issues of events which he can never wholly control, the 
 criminal constantly manifests the most egregious folly. And 
 such is often his own declared estimate of himself, the 
 moment after the criminal impulse is satisfied, and he has 
 time to reflect on what has been done, and what is to be 
 done. And perhaps the bitterest and most intolerable in- 
 gredient of remorse, when, after all his arts have been ex- 
 hausted in attempts to conceal his guilt, he finds himself 
 detected and condemned, is the same abiding consciousness 
 of his own folly. 
 
 The criminal practice of the old Eoman law furnishes an 
 illustration which may be used as a fitting conclusion to the 
 present course of remark. In capital cases, when the jury 
 condemned the accused, instead of using the direct language 
 of our own time and system, and pronouncing him " guilty " 
 of the crime charged, they adopted an indirect form of ex- 
 pression, and disguised the dreadful announcement under 
 one of those euphemisms in which their language abound- 
 ed : — " Parum cavisse videtur," said they : (a) " He seems 
 to have been incautious ; " " We think he has not been suffi- 
 ciently upon his guard." "Want of due caution most com- 
 prehensively and forcibly expresses the sum of the whole 
 conduct of a condemned criminal, from its earliest instigating 
 impulse to its fatal result. Caution might perhaps, have led 
 him to escape detectioh and its penalty ; but truer and wiser 
 ^caution would have enabled him to escape the crime. 
 
 (a) Fcstus, 825; quoted in i Bl. Com. 862, cote. 
 
CHAP. II.] PROOF OF A CORPUS DELICTI. 677 
 
 SECTION VI. 
 Proof of a Corpus Delicti. 
 
 In most of the preceding illustrations of the nature and 
 use of circumstantial evidence, the existence of a corpus 
 delicti, or the substantial fact of a crime having been com- 
 mitted, has, for the sake of greater convenience, been as- 
 sumed. In order to cover the whole field occupied by the 
 subject, it is now proposed to return to this fundamental 
 fact, for the purpose of more minute consideration. 
 
 A corpus delicti may be considered as always made up of 
 two constituent parts ; first, certain general facts, forming 
 its basis, exclusive of criminative indications of any kind ; 
 as, in a case of alleged homicide, the fact of death, (in- 
 volving the physical fact of the existence of a dead body, 
 and its identification, when possible ;) and secondly, cer- 
 tain other facts showing the existence of criminal agency 
 as the cause of the former, (a) 
 
 The first of these constituents of a corpus delicti is well 
 expressed by the term " corpus" in its primary sense of a 
 material substance or subject, (6) and is always required to 
 be proved either by direct testimony or by presumptive evi- 
 dence of the strongest kind, (c) The latter, in which the 
 term corpus takes the secondary sense of a substantial fun- 
 damental fact, becomes a proper subject of presumptive 
 reasoning upon all the circumstances of the case, including, 
 sometimes, those which are employed in the next stage of 
 investigation, namely, in the process of fixing the crime upon 
 the accused. (jT) 
 
 (a) Best onPres. § 202, p. 271. 
 (h) See ante, p. 119, note (6). 
 
 (c) Best on Pres. ubi supra. 
 
 (d) Id. 6 205, pp. 274, 275. 
 
678 PROOF OF A [PiRT H. 
 
 The mode of proving a corpus delicti, or the quantity of 
 evidence requisite to establish that preliminary fact, will 
 now bo considered aader the following heads. 
 
 I. Corpus Delicti in Homicide. 
 
 In cases of alleged homicide, the proof of a corpus delicti 
 involves that of the following points or general facts ; first, 
 the fact of death, particularly as shown by the discovery of 
 the dead body or its remains ; secondly, the identification 
 of such body or remains as those of the person charged to 
 have been killed ; and, thirdly, the criminal agency of an- ■ 
 other, as the cause of the death. 
 
 1. The fad of Death. 
 
 This is the basis of the corpus delicti ; and the circum- 
 stance which furnishes the best proof of it, as well as the 
 most effectual means of ascertaining its cause, is the finding 
 and inspection of the dead body itself, (a) Hence it is a 
 general rule of evidence that a dead body must have been 
 discovered and seen, so that its existence and identity can 
 be testified to by eye-witnesses. (6) It is considered un- 
 warrantable and dangerous to infer the fact of the death of 
 a person from the circumstance of his sudden and unaccount- 
 able disappearance, even when followed by long continued 
 absence, and even although such circumstance's may be con- 
 nected with others apparently casting suspicion upon a par- 
 ticular individual. Some early cases of mistaken convic- 
 tions founded on such inferences, suflBciently establish the 
 sound policy of this rule, (c) which, so far as its authority 
 is concerned, rests essentially upon the declaration of Sir 
 Matthew Hale, that he would never convict any person of 
 
 (a) Wills, Giro. Evid. 162. 
 
 (h) In the language of the oivilians, de corpore interfecii necesse est ut con- 
 ctet. Matth. de Probat. c. 1, n. 4, p. 9. 
 (c) Best on Pres. § 202, p. 272. 
 
CHAP. II.J CORPUS DELICTI. 679 
 
 murder or manslaughter, " unless the fact was proved to be 
 done, or at least the body found." (a) 
 
 But to require the discovery of the body in all cases, 
 would not only be unreasonable and absurd in itself, but 
 would seriously interfere with the course of criminal justice. 
 Mr. Bentham, regarding the rule in this unqualified light, 
 pronounced it to be in the highest degree prejudicial to 
 justice. " To secure to himself impunity," he observes, 
 " a^ murderer would have no more to do but to consume or 
 decompose the body by fire, by lime, or by any other of the 
 well known chemical menstrua, or to sink it in an unfathom- 
 able part of the sea. In any of these ways, might the body 
 be effectually got rid of." (b) And in the case of The 
 United States v. Gibert, et al. (c) Mr. Justice SLory, in 
 summing up the case at the trial, said of the same rule or 
 proposition, that " it certainly cannot be admitted as correct 
 in point of common reason or of law, unless courts of justice 
 are to establish a positive rule to screen persons from pun- 
 ishment who may be guilty of the most flagitious crimes. In 
 the cases of murders committed on the high seas, the body 
 is rarely if ever found ; and a more complete encouragement 
 and protection for the worst offences of this sort could not 
 be invented than a rule of this strictness. It would amount 
 to a universal condonation of all murders committed on the 
 high seas." (d) 
 
 It follows, therefore, that, in cases where the discovery of 
 the body, after the crime, is impossible, the fact of death may 
 be proved by other means. Indeed, the rule, as stated by 
 
 (a) 2 Hale's P. C. 290. 
 
 (6) 3 Jud. Evid. 234. The truth of this remark has been proved by several 
 cases of attempted destruction by some of the means here mentioned, which 
 have occurred since it was written, among which are some of recent date. See 
 the cases of Rex v. Cook, Leicester Summer Assizes, 1834; case in the Cen 
 tral Criminal Court, May, 1842, Wills, Giro. Ev. 165; and the case of Com- 
 monwealth V. Webster, in 1849. 
 
 (c) 2 Sumner, 19, 27. 
 
 (d) See also 2 Stark. Evid. 944. 
 
680 PBOOP OP A [part II, 
 
 Lord Hale nimself, is in the alternative, — the fact must be 
 proved to have been done, or the body found, (a) The 
 question then occurs, by which kind of evidence,— direct or 
 indirect, — must the fact of death be established. The lan- 
 guage of Lord Rale indicates the former. But, according 
 to the rule as it seems to be understood by the best modem 
 writers, the fact of death, where the body cannot be found, 
 may be proved by circumstances. " It may be inferred" 
 says Mr. Wills, " from such strong and unequivocal circum- 
 stances of presumption as render it morally certain, and 
 leave no ground for reasonable doubt." (6) In illustration 
 of this, the same author cites the case of Rex v. Hind- 
 marsh, (c) in which the prisoner, who was a seaman on 
 board a vessel, was charged with the murder of his captain. 
 It appeared in evidence, in that case, that while the ship 
 was lying off the coast of Africa, where there were several 
 other vessels near, the prisoner was seen, one night, to take 
 the captain up in his arms, and throw him into the sea, after 
 which, he was never seen or heard of; but that, near the 
 place on the deck where the captain was seen, was found a 
 billet of wood, and the deck and part of the prisoner's 
 dress were stained with blood. On this, it was objected by 
 the prisoner's counsel, on the authority of Lord Hate, and a 
 case before Gould, J. that the corpus delicti was not proved, 
 as. the captain might have been taken up by some of the 
 neighboring vessels. But the court, while admitting the 
 general rule on the subject, left it to the jury to say whether 
 the deceased was not killed before his body was cast into 
 the sea. And the jury having found in the affirmative, the 
 prisoner was convicted ; which conviction was, on a case 
 reserved, held good by all the judges, (d) 
 
 («) Supra, p. 679. 
 
 (6) Wills, Circ. Evid. 162. See also Best on Pres. § 202, p. 271. 
 
 (c) 2 Leaoh, C. C. 569. 
 
 (d) Best on Pres. § 203. 
 
CHAP. II.] CORPUS DELICTI. 681 
 
 2. Identification of the body or its remains. 
 
 Supposing a dead body, or its remains, to have been dis- 
 covered, the next step in the proof of a corpus delicti is the 
 identification of such body or remains, as those of the per- 
 son charged to have been slain. 
 
 Where the body is found shortly after the commission of 
 the crime, and the face has not been disfigured by the 
 violence employed, or by accident, or in the natural course 
 of decay, the identification is made in the form of direct 
 and positive proof of the fact by those to whom the deceased 
 ■was known. But where the features have been destroyed, 
 the body may be identified by circumstances, as by the dress, 
 articles found on the person, and by natural marks upon the 
 person. In CoWs case, (a) where a considerable portion 
 of the face had been beaten in by blows, and the progress 
 of decay had otherwise rendered direct recognition impos- 
 sible, the body was identified in this way. In Mc Cannes 
 case, (6) where the face of the deceased had been eaten 
 away by hogs, identification was effected in a similar manner. 
 Even where nothing but the skeleton has been found, it may 
 sometimes be identified by peculiar marks, and by objects 
 discovered near it. In the case of Rex v. Clewes, (c) the 
 body of a man was, after a lapse of twenty-three years, 
 identified by his widow from some peculiarity about the 
 teeth, and by a carpenter's rule and a pair of shoes found 
 with the remains and also identified. But in examining 
 skeletons, great attention should be paid to their anatomical 
 characteristics, upon which the important facts of the age 
 and sex of the person depend ; as these may be decisive of 
 the whole case in favpr of the accused. («f) 
 
 (o) New York Oyer &Terminer, January, 18d2. 
 
 (6) 13 Smedea & Marshall, 472. 478. 
 
 (c) 4Carr. &P. 221. , 
 
 (rf) See 2 Beck's Med. Jur. 28 — 36. The bones of an animal have some- 
 times been mistaken for those of a human being. See th£ case of the State t. 
 Booms, ante, p. 579, note (c). 
 
682 PROOF OP A [part II, 
 
 Where the body has been purposely mutilated, and especi- 
 ally where it has been dismembered, with a view to its de- 
 struction by fire or otherwise, its identification becomes a 
 matter of greater difficulty ; the head being usually des- 
 troyed first, for the very purpose of preventing recognition. 
 But it occasionally happens that even the agency of fire, 
 which is generally selected as the readiest and most effectual 
 means of destruction, proves inadequate to the purpose 
 contemplated. In Webster's case, the head of the deceased 
 had been placed in a furnace and exposed to a strong heat 
 for a considerable time. But some blocks of mineral teeth 
 resisted the action of the fire so effectually, that they were 
 identified by a dentist as parts of a set of artificial teeth 
 which he had made for the deceased, and which the latter 
 wore at the time he disappeared, (a) Some other portions 
 of the body, which had not been subjected to the action of 
 fire, were also identified by peculiar appearances. (6) A 
 case is mentioned by Mr. Wills, in which the remains of a 
 female, consisting merely of the trunk of the body, from 
 which the other parts had been cut, were identified by a 
 curious train of circumstantial evidence, embracing several 
 facts of conduct on the j5SnW^the prisoner, (c) 
 
 3. Criminal agency, as the cause of Death. 
 
 A dead body, (c?) or its remains, having been discovered 
 and identified as that of the person charged to have been 
 slain, and the basis of a corpus delicti being thus fully estab- 
 
 (o) Bemis' Report, 80, 84, 85, 87. Dr. Beck mentions an English case in 
 which the point of identity was determined by the teeth. 2 Beck's Med. 
 Jur. 36. 
 
 (6) BemLs' Report, 70, 71, 89. 
 
 (c) Wills, Ciro. Evid. 165. See also Greenacre's case. Id. 171. 
 
 (d) Where persons are found not dead, but in a dying condition, or with 
 fatal injuries from which death results, the process of proof is much facilitated; 
 identification being readily effected, anil the declarations of the injured person 
 himself furnishing important and sometimes decisive evidence, not only as to 
 the general fact of crime, but also as to the particular perpetrator. 
 
CHAPf II.] CORPUS DELICTI. 
 
 lished, the next step in the process, and the one which serves 
 to complete the proof of that indispensable preliminary fact, 
 is to show that the death has been occasioned by the crimi- 
 nal act or agency of another person. This may always be 
 done by means of circumstantial evidence, including that of 
 the presumptive kind ; and, for this purpose, a much wider 
 range of inquiry is allowed than in regard to the funda- 
 mental fact of death ; and all the circumstances of the case, 
 including facts of conduct on the part of the accused, may 
 be taken into consideration, (o) 
 
 Prominent among the testimony necessarily made use of 
 at this stage of investigation, is that of the medical and 
 scientific persons, — surgeons, physicians and chemists, — ^by 
 whom the body or its remains have been inspected and exam- 
 ined, either at the time of their discovery or shortly after. 
 The testimony of these witnesses, as to the appearances ob- 
 served on such examinations, is always of the greatest value, 
 owing to the care, skill and precision with which they are 
 usually conducted. And their opinions as to the causes of 
 such appearances are often entitled to much consideration, 
 and are of material service in correcting impressions derived 
 by unprofessional persons from the mere exterior of the sub- 
 jects observed. 
 
 The subject of the present section belongs properly to the 
 extensive department of medical jurisprudence, and may be 
 found discussed with great minuteness in the various works 
 which have been professedly devoted to the illustration of 
 that important branch of science. (6) All that is now pro- 
 posed, or indeed practicable, is to present a mere outline of 
 the course of inquiry, and the principal results attainable 
 by it. 
 
 It has been well remarked that the inference of violence 
 
 (o) Best on Pres. § 205. Wills, Ciro. Evid. 168. 
 
 (4) Among these, the works of Drs. Beck and Taylor, and the very recent 
 work by Wharton and StilU may be mentioned as the principal authorities 
 &r Trhat is advanced in the text. 
 
684 PROOF OP A [part u. 
 
 as the cause of death, is not to be hastily . drawn from 
 mere external appearances, however impressive and appar 
 rcntly decisive they may seem, (a) Accident and suicide 
 are among the daily causes of death, and they are often ac- 
 companied by appearances not readily distinguishable from 
 those which attend death by actual violence. The suppo- 
 sitions of accident and suicide, as well as the operation of 
 natural causes, are therefore possibilities which must ba 
 taken into view in every case, and satisfactorily excluded, 
 before the conclusion of criminal violence as the cause of 
 death is to be adopted as probable. (6) 
 
 As aids to inquiry and means of arriving at the truth on 
 the question as to the cause of a known death, the following 
 circumstances are always of the greatest importance. 
 
 (1.) The location, disposition and state of the body, as 
 found. This sometimes serves to negative at once the sup- 
 positions of accident, disease or suicide, as the cause of 
 death. Where the body has been found buried in a rude 
 and hurried manner, as by being thrust into a mere hole in 
 the ground, (c) especially if doubled up, or otherwise dis- 
 torted to facilitate the purpose, {jd) or imperfectly covered 
 with earth, stones or other substances, (e) or merely dragged 
 into a thicket, (/) or crowded into a box and nailed up ; (g-) 
 or sunk with stones in a pond, (A) and particularly where it 
 has been attempted to be mutilated or actually dismembered 
 and partially consumed by fire : (i) — these circumstances 
 show, on their face, and of necessity, the agency of another 
 
 (a) See 2 Beck's Med. Jur. 3, 4. 
 (6) Best on Pres. § 205. Wills, Giro. Evid. 1.68. 
 
 (e) The State v. Robinion, Middlesex (N. J.) Oyer & Terminer, March, 
 1841. 
 
 (d) Drayne's case, 6 London Legal Obg. 128. 
 
 (e) Adam's case, 11 Id. 415. 
 
 {/ ) The State v. McCann, 13 Smedes & Marshall, 471, 473. 
 (g) The People v. Colt, New York Oyer & Terminer, January, 1842. 
 (A) Bex V. Thurtell k Hunt, Celebrated Trials, 7. 
 (i) Commonwealth v. Webster, Bemis' Beport. 
 
CHAP. II.] CORPUS DELICTI. 685 
 
 person in its disposition, while they give to the fact of death 
 itself the character of an event requiring concealment, and 
 subject, therefore, at the outset, to an unfavorable interpre- 
 tation. 
 
 (2.) The locality where the body is found ; (a) as 
 whether in the open air, or in, or under or near a building. 
 If in the open air, whether in or near a road or path ; if in 
 a building, in what part, and whether on a bed or on the 
 floor, or the like. 
 
 (3.) Hh^ position and attitude of the body, as found ; as 
 whether in a sitting or lying posture, and whether lying on 
 the back, face or side, including the disposition of the 
 limbs. (/») And the position of the body should be con- 
 sidered not only in itself, but in its relation to surrounding 
 or contiguous objects, (c) This circumstance is of peculiar 
 importance when taken in connection with visible marks of 
 violence on the body, and the presence of a weapon compe- 
 tent to have inflicted them, {d) And it is strongly urged by 
 medical writers that no change whatever should be made, in 
 this particular, when the body is first found ; but that it 
 should be first viewed, if possible, exactly in the position in 
 which it was first discovered, (e) The circumstance that 
 the body was found tied goes also to negative the supposi- 
 tions of accident and suicide as the cause of death, although 
 it is not to be regarded as uniformly conclusive ; since there 
 have been cases where a party intending suicide has attempted 
 in this way to relieve his memory from the disgrace of the 
 act. This, however, is very difficult to effect, and the dis- 
 guise is readily penetrated. (/) 
 
 (a) Wharton & StilW's Med. Jur. 555, § 817. 
 
 (6) 2 Beck's Med. Jur. 5, 106. Taylor's Med. Jur. 197, 198. (Phil. ed. 
 1853.) 
 
 (c) Wharton 4 StUWs Med. Jur. 555, § 817. 
 
 (d) Id. § 819. 
 
 (e) Id. § 817. 2 Beck's Med. Jur. 5. See the reason given. Id. ibid. 
 (/) Wharton & Still^'s Med. Jur. 75B, § 1152. 
 
686 PROOF OP A [PAET 11. 
 
 (4.) The expression of the countenance, (a) la cases 
 of suicide, death being desired and determined on, there is 
 no expression of fear upon the countenance, though it may be 
 haggard from the influence of other passions ; the eyes 
 being usually closed or sunken. (6) In cases of assassina- 
 tion, on the contrary, where death is struggled against and 
 shrunk from, there is always a degree of fear, amounting 
 sometimes to the extremity of terror, imprinted on the 
 visage, (c) the eyes being open or staring. The counte- 
 nance, in these cases, is also usually pale ; (d) although 
 sometimes there may be the opposite appearance of redness 
 or suffusion. The latter circumstanca is considered impor- 
 tant, as it may indicate the use of violence in order to stop 
 the cries of the subject of the crime, (e) 
 
 (5.) The state of the clothing: (/) If torn, cut or other- 
 wise disordered, or stripped off in apparent haste, or at- 
 tempted to be put on again in an unusual manner, or if the 
 pockets are found rifled, or the like, it goes to indicate a 
 violent death. Stains of blood or other substances and 
 marks of incisions or perforation near the wounds, or corres- 
 ponding with them in size, shape and direction," serve a 
 similar purpose, and require to be accurately observed. (§•) 
 
 (6.) The condition of the ground in the immediate vicinity 
 of the body, where it is found in the open air, as disturbed 
 in any manner, or bearing impressions of any kind. (A) 
 Marks of struggling and. of dragging the body indicate the 
 violent agency of another as the cause of death, (i) Foot- 
 prints conclusively show the presence of others, and their 
 
 (a) 2 Beck's Med, Jur. 106. 
 
 (4) Id. iia 
 
 (c) Id. ibid. 
 
 id) Id. ibid. 
 
 (e) Id. 106. 
 
 (/) Id. 5, 106. Wharton & StUW's Med. Jur. § 1154. 
 
 is) 1 Taylor's Med. Jur. 188. 
 
 (h) 2 Beck's Med. Jur. 5, 
 
 (i) Id. ibid. The Statiy McCann, 13 Smedes & Marshall, 478. 
 
CHAP. II.] CORPUS DELICTI, 687 
 
 number, character and direction are always to be carefully 
 attended to. (a) The prints of horses' hoofs belong to the 
 same head. (6) Bloody appearances on the ground, whether 
 in spots or tracks, and whether in one or more places, are 
 circumstances of the first importance, (c) If little or no 
 blood is found where the body lies, but large quantities at 
 some distance, and especially if concealed or attempted to 
 be concealed, it strongly indicates the agency of another. 
 
 (7.) The condition of the building or apartment in which 
 the body is found. Marks of struggling with an assailant 
 are indicated by the disordered and broken state of the furni- 
 ture. Marks of a violent entry will be apparent on doors 
 or windows. The quantity of blood on the floor or walls, 
 the position and direction of pools or streams of blood, ((f) 
 and its distribution in minute spots over large surfaces, 
 often serve to indicate how death has been inflicted. Marks 
 of the concealment of blood by washing, painting over or 
 planing out, are highly criminative, (e) 
 
 (8.) Weapons, or other means of taking life, whether 
 found in immediate contact with the body, or in its vicin- 
 ity- (/) The minutest circumstances connected with ob- 
 jects of this kind require close attention and examination ; 
 such as the distance at which the weapon is foimd, the 
 
 (o) 2 Beck's Med. Jup. 5, 148. Wharton & StilW's Med. Jur. 760, § 1159. 
 
 (6) In a case which occurred in New Jersey, in 1820, it appeared that the 
 defendant, who was charged with arson, had tumei his horse's shoes round, 
 after ariving at the house he fired, so that there should appear to be two persons 
 proceeding to, and none from it This very artifice however was the means of 
 his detection, since the reversal of the shoes, as indicated by the recent marks 
 of the nails on the horse's feet, afforded one of the most emphatic of the indi- 
 cations by which the defendant's guilt was determined. Whart. & Still^'s 
 M. J. 760, § 1159. 
 
 (c) 2 Beck's Med. Jur. 107. 
 
 (d) Case of Mary JVorkott and others, 14 State Trials, 1324. As to the ex- 
 amination of supposed blood-stains by chemical tests, see Taylor's Med. Jur. 214. 
 
 (e) See ante, p. 412. 
 
 (/) 2 Beck's Med. Jur. 5. Taylor's Med. Jur. 197. 
 
688 PROOF OP A [part n, 
 
 direction in •which it lies, and its relative position to the 
 body ; its condition, whether bloody or otherwise, and 
 whether sheathed or closed, (a) If poison, the state of the 
 phial containing or having contained it, Whether corked or 
 otherwise. Tlie absence of all weapons or means of de- 
 stroying life serves to negative the suppositions of acci- 
 dental or suicidal death. (6) 
 
 (9.) Other objects found near the body, indicative of the 
 presence of another person, (c) 
 
 (10.) Appearances of the body itself, as bearing marks 
 of violence ; such as wounds produced by blows, cuts, stabs 
 or shots ; bruises, stripes, burns, ligatures or the pressure 
 of the hands ; accompanied by effusion of blood, whether 
 external or internal, or both. These may be most conveni- 
 ently considered under separate heads. 
 
 Wounds upon the body viewed may be considered under 
 the classification of contused and lacerated wounds, incised 
 and punctured wounds, and gun-shot wounds, (rf) 
 
 Contused wounds, being usually produced by the applica- 
 tion of considerable force to the body, are often accom- 
 panied by fractures of the bones adjoining the seat of injury. 
 They are also sometimes connected with visible separation 
 and laceration of the skin and flesh, and more or less effusion 
 of blood. In other instances, they present merely a dis- 
 colored appearance, the principal injuries being under the 
 skin. The most fatal wounds of this class are ordinarily 
 those which are received upon the head, but they occasion- 
 ally occur on the trunk, and they may be the result of acci- 
 dent or suicidal design, as well as the criminal agency of 
 another. Thus, they may be produced by the deceased 
 
 (a) See further, post. 
 
 (b) Tayl. Med. Jur. 199, and see post. 
 
 (c) Seeo7i«c, pp. 271, 642. 
 
 (d) Whart. & StilM's Med. Jur. 548, 550. For the definition of the term 
 "wound," see Id. 539, § 792. Tayl. Med. Jur. 169. 2 Beck's Med. Jur. 
 106, 287. 
 
CHAP. II.J CORPUS DKLICTI. 689 
 
 having fallen against some hard substance, or from a height, 
 or by a hard or heavy body having fallen upon him, or 
 passed over him, or by sudden contact with a body in motion ; 
 or they may be intentionally produced by voluntary contact 
 with hard substances, as by dashing the head against a wall, 
 or leaping from a height ; or they may be caused by a kick 
 or blow from a horse or other animal, or by a blow of the 
 fist of another person ; or, finally, by a weapon, such as a 
 stone, club or hammer in the hands of another, or even, 
 (though very rarely) in the hands of the deceased himself. 
 
 To which of these causes to assign the production of the 
 wound or wounds observed on the body, and, in particular, 
 to determine whether a contused wound has resulted from 
 the use of a weapon, or the blow of a fist, or an accidental 
 fall against a hard substance, is often a matter of consider- 
 able diflSculty to a medical examiner and witness, (a) In 
 some cases, it may happen that a wound has been the result 
 of a combination of causes ; as where a person has been 
 knocked down with a stick or fist, and, in falling, has struck 
 his head against a stone. 
 
 Important light may be thrown on these inquiries by the 
 appearance of the wounds themselves, their situation, nature, 
 extent, number, depth, shape and other characteristics. If 
 there be contused wounds on several parts of the head, with 
 copious effusion of blood beneath the skin, the presumption 
 will be that a weapon must have been used. If the marks 
 of violence be on the vertex, it is also highly probable that 
 they have been caused by a weapon, since this is not com- 
 monly a part which can be injured by a fall. (6) And the 
 depth and nature of the wound may be such that no acci- 
 dental fall will reasonably account for its production, (c) 
 
 (o) Taylor's Med. Jur. 187. Wharton & StilW's Med. Jur. 549, § 809. 2 
 Beck's Med. Jur. 108. 
 (6) Taylor's Med. Jur. 187. 
 (c) Id. ibid. 
 
690 PROOF OP A , [part ir. 
 
 The presence of an object near the body, whether animate 
 or inanimate, capable of producing the wounds observed, 
 may also serve to aid in determining their cause ; as where 
 the body is found prostrate near a vicious horse, and it 
 appears that the wounds may have been made by a kick 
 from that animal, (a) But the circumstance to which most 
 importance is usually attached, in these cases, is the presence 
 of one or more weapons, or other detached, mechanical 
 means of death, either in actual contact with the body, or 
 in its immediate vicinity. This goes to repel the supposition 
 of accident. It also, in general, serves to negative the sup- 
 position of suicide, which is rarely committed' with weapons 
 productive of contused wounds. (6) 
 
 The adaptation of an instrument or object found near a 
 dead body, to have produced contused and lacerated wounds 
 observed upon it, is sometimes ascertained by comparing its 
 surface, edges or projecting parts, with the shape and size of 
 the wounds themselves. And the fact that it has actually 
 been used upon the body will sometimes appear from the 
 
 (o) In the case of Rex t. Booth, the deceased was found dead in a stable, 
 not far from a vicious mare, with her traces upon his arms and shoulders. 
 But there was also a bloody spade found in the stable, and from this circum- 
 stance suspicion fell on the prisoner, who had been on ill terms with the de- 
 ceased. The question was, whether the deceased had been killed with the 
 spade, or kicked by the mare. The spade having been inadvertently used 
 after the death, there was no means of determining the nature of the cause of 
 death, except by the character of the wounds themselves, which were all on 
 the head. Two surgeons expressed a strong opinion that the wounds could not 
 have been inflicted by kicks from a horse, and gave particular reasons for such 
 opinion. The prisoner was however acquitted. Wills, Giro. Evid. 172. 
 
 (4) Among the exceptional cases is one mentioned by Mr. Best, in which a 
 man first attempted to destroy himself by running with his head against » 
 wall; and, not having succeeded in this attempt, he struck himself repeatedly 
 on the forehead, with a cleaver, producing wounds from which death soon fol- 
 lowed. Best on Pres. § 205. See also, a case recorded by Mr. Tarleton, and 
 mentioned in Taylor's Med. Jur. 191. A woman, in Philadelphia, lately 
 endeavored to destroy herself by placing her head upon a block, and dealing 
 upon the back part of it numerous severe blows with a hatchet. Wharton & 
 etilW'B Med. Jur. 554, § 816. 
 
CHAP. II.] CORPUS DELICTI. 691 
 
 circumstances of blood, hair and other substances adhering 
 to it. In other cases, greater difficulty is experienced in 
 pronouncing an opinion as to the kind of weapon employed ; 
 and opinions as to the use of an instrument or weapon found 
 near a body, or in the same house with it, have sometimes 
 proved erroneous. In the case of Thorn, who was con- 
 victed of murder in Maine, 'in 1843, the wound, which was 
 upon the head of the deceased, was pronounced by one of 
 the surgeons who examined the body, to have been inflicted 
 with the bow of a pair of iron tongs belonging to the house ; 
 and, by two other surgeons, to have been caused by some 
 blunt instrument, a brick-bat, or something similar. But the 
 criminal himself confessed, after his conviction, that the 
 blow had been inflicted with an axe. (a) In Colt's case, 
 there was much inquiry and discussion as to the cause of a 
 peculiar perforation found on the skull of the deceased, and 
 the nature of the weapon by which it might have been 
 made. It was supposed that it might have been produced 
 by a ball projected from an air-gun, or from a pistol by the 
 mere explosion of a percussion cap ; (6) and several ex- 
 periments were performed with a pistol, thus prepared, in 
 open court, with a view to the determination of the possi- 
 bility of such a circumstance. But, according to the pris- 
 oner's confession, as made on the trial, all the wounds were 
 made with a hatchet ; and this was the final conclusion of 
 the medical witnesses themselves. So, in Webster's case, 
 it was supposed that a sledge-hammer found in one of the 
 prisoner's rooms, might have been used to inflict the mortal 
 blow, and it was so actually charged in one of the counts of 
 the indictment.' But, according to the prisoner's confes- 
 sion, he killed the deceased by a single blow inflicted with 
 the stump of a grape-vine, which happened to be within his 
 
 (n) Law Reporter, Tol. 6, pp. 52, 94. 2 Beck's Med. Jur. 117, note. 
 
 (6) The supposition was expressed in this form, in order to account for the 
 fact that nothing like the report of the discharge of an ordinary loaded fire-arm 
 was heard at the time of the supposed death. 
 
692 PROOF OP A [PAHT H. 
 
 reach, and which he soon afterwards destroyed by putting 
 it into the fire, (a) 
 
 The presence of wounds of other descriptions, upon the 
 body, such as incised and gun-shot wounds, frequently serves 
 to negative the supposition of accident, and also of suicide ; 
 though not always conclusively in regard to the latter. (6) 
 It has sometimes happened that the murderer, after dis- 
 patching his victim by shots or stabs, has thrown him down 
 a precipice, in order to produce an appearance of accidental 
 death, (c) 
 
 Where a body has been found dead at the foot of a height, 
 with contused wounds and fractures only, such as usually 
 accompany injuries of that kind, the presumption is that 
 they were produced by the fall, (rf) But whether the fall 
 itself was an accidental or suicidal act, or produced by the 
 agency of another person, and whether such agency were 
 accidental or intentional, must, of course be determined by 
 accompanying circumstances. If the hands of the corpse 
 are found clenched, and containing earth, grass or other 
 substances, torn from the brink or side of a precipice, or 
 bank of a stream, it serves to negative the supposition of 
 suicide, by showing a violent effort to escape the fatal 
 peril, (e) 
 
 The mere situation of a contused wound will sometimes 
 effectually expose the falsity of the defence that it was 
 accidental, which is sometimes set up in cases of homi- 
 cide. C/) 
 
 In the New York case of The People v. Graham, (g-) 
 
 (a) Bemis' Report, 566— 5C8. 
 
 (A) See further, on this head, post. 
 
 (c) See a French case quoted by Dr. Beck. 2 Beck's Med. Jur. IIT, 118. 
 
 {d) See Id. 116. 
 
 (e) See Id. 5, note. 
 
 (/) Taylor's Med. Jur, 190, 192, 196. Wharton & Still's Med. Jur. 549, 
 § 809. See Greenacre's case, Wills, Giro. Evid. 171. 
 
 (g) Before Mr. Justice Spencer, Delaware (N. T.) Oyer & Terminer, Jul/ 
 1813; Clark's Beport. 
 
CHAP. II.] CORPUS DELICTI. 693 
 
 where the prisoner was indicted for murdering two persons, 
 the defence set up by him was the singular one that the de- 
 ceased had fought with and killed each other. The impossi- ■ 
 bility of this fact was at once shown by the nature of the 
 wounds which the bodies presented, the heads of both being 
 literally split open ; and by the discovery, in a brush heap, 
 where it had been thrown for concealment, of a stick or 
 club, covered with blood, hair and brains, (a) 
 
 lacised and punctured wounds comprise what are called 
 in ordinary language, cuts and stabs ; and from their appear- 
 ance and nature, indicate at once that they must have been 
 produced by weapons, or by objects having sharp cutting 
 edges or points. (6) They are referable" to the same three 
 descriptions of causes as other wounds : namely, to accident 
 and suicidal design, as well as to a homicidal attack upon 
 the person by another. 
 
 Cuts or incisions upon the body may happen accidentally, 
 in consequence of falling against or upon glass, crockery or 
 other similar substances, and such injuries have occasionally 
 been followed by fatal results. But wounds made in this 
 way are characterized by their great irregularity, and the 
 unevenness of their edges, (c) Severe incisions on vital 
 parts do not often happen by accident ; (d) and the question 
 therefore, which imost frequently arises for determination, is 
 whether the wound was inflicted by the deceased himself, or 
 by another person. 
 
 The part of the body in which a single mortal wound of 
 this class is most commonly found to be inflicted, is the 
 
 (o) Id. pp. 4, 5. 
 
 (i) Taylor's Med. Jur. 185. 
 
 (c) Id. 186. 
 
 (d) Id. 193. A possible ease of this kind is mentioned in Fleta; as where a 
 barber, while in the act of shaving a person, has his hand violently struck by 
 another, from mere accident, causing him to cut the person's throat; (cum 
 qitis. Indent cum pila, manum barbitonsoris percvtierit, qaod non viderit, ob' 
 quod gulam barbati pmciderit.) Fleta, lib. 1, c. 31. 
 
694: PROOF OP A [part II. 
 
 Ihroat ; that being the part in which such a wound may be 
 made most quickly, and with the surest effect. Incised 
 wounds of the throat are sometimes set down as presumptive 
 of suicide ; (a) but there are many instances on record, of 
 murders committed in this way, and there is little doubt 
 that murderers sometimes wound the throat for the more 
 effectual concealment of the crime. (6) 
 
 A homicidal wound in the throat is often indicated by its 
 extent, the whole neck being divided to the vertebrae ; and 
 it has sometimes been supposed that such a wound is incom- 
 patible with the supposition of self-destruction, (c) But 
 there have been cases indicating the reverse. (d~) Great 
 irregularity in the wound, so far as it may be referred to a 
 struggle against violence, is a circumstance indicative of 
 homicide ; (e) but it may be present also in cases of suidide, 
 arising from agitation or ignorance on the part of the sub- 
 ject. But a more important circumstance than^ either of^ 
 these is the direction of the wound, or the manner in which 
 it is found to be made ; and it has been considered by some 
 to afford presumptive evidence sufficiently strong to guide a 
 medical jurist in the inquiry. (/) It has been remarked 
 that, in most suicidal wounds which affect tlie throat, the 
 direction of the cut is commonly from left to right, either 
 transversely, or passing obliquely from above downwards. 
 In the case of left-handed persons, the direction would, of 
 course, be precisely the reverse. (^) A homicidal incision 
 is, on the other hand, made from right to left, unless the 
 murderer be left-handed, in which case the direction would 
 be the same as in cases of suicide ; and it will be the same 
 
 (c) Taylor's Mod. Jur. 192. 
 
 (A) Id. ibid. 
 
 (c) Id. ibid. 
 
 (d) Id. ibid. 
 (c) Id. ibid. 
 
 (/) Id. ibid. But see Wharton & StUM's Med. Jur. 555, § 817. 
 (g) Taylor's Med. Jur. 192. 
 
CHAP. II.J CORPUS DfiLICTI. 695 
 
 if the wound is inflicted from behind, (a) It is observed 
 also, that self-murderers usually make the incision immedi- 
 ately under the chin. (&) 
 
 The shape and direction of the wound and the manner in 
 which it has been made, while serving to negative the sup- 
 position of suicide, have sometimes operated to the identifi- 
 cation and detection of the particular criminal. In a case 
 in England, where the body of a farmer was found dead on 
 a high road, with the throat severely cut, the wound was 
 found to have been made, not, as is usual in suicides, by 
 carrying th6 cutting instrument from before backwards, but 
 as the throats of sheep are cut, when slaughtered by a 
 butcher. The knife had been passed in deeply under and 
 behind the ear, and had been brought out by a semicircular 
 sweep in front ; all the great vessels of the neck, with the 
 cesophagus and trachea, having been divided from behind 
 forwards. The prisoner, who was proved to have been 
 a butcher, was subsequently tried and executed for the 
 crime, (c) 
 
 The number of the wounds observed is also an important 
 circumstance. In suicides, commonly one wound only is 
 seen, namely, that which has destroyed life. But murderers 
 also have been known to dispatch their victim by a single 
 wound. The marks of several wounds or attempts around 
 the principal wound have been considered to furnish pre- 
 sumptive evidence of murder : but a suicide also may inflict 
 many wounds, or leave the marks of several attempts, before 
 he succeeds in his purpose, {d) But recent wounds on the 
 back of one or both hands, when found in persons who have 
 died from wounds in the throat, are strongly presumptive of 
 homicide, (e) 
 
 («) Taylor's Med. Jur. 193. 
 
 (b) 2 Beck's Med. Jur. 135. 
 
 (c) Taylor's Med. Jur. 191. 
 
 (<f) Id. 194. See 2 Beck's Med. Jur. 131, note; M. 135, note. 
 . (e) Taylor's Med. Jur. 201. 
 
696 PROOF OP A [part n. 
 
 If no weapon by which the wound could have been made 
 be found, or if it be found concealed in a distant place, it is 
 a circumstance strongly indicative of homicide, provided 
 the wound be of such a nature as to have proved Sfjcedily 
 fatal, (a) If a weapon be found near the body, or within 
 a short distance from it, its nature and the degree of its 
 sharpness, as corresponding with the appearance of the 
 wound, are important considerations. Its appearance, also, 
 and relative position to the body, (that is, as lying on the 
 right or left side of it,) require to be most accurately ex- 
 amined and considered, as the appearances of suicide are 
 sometimes attempted to be given to murder, by the perpe- 
 trator, in order to escape suspicion and discovery. The 
 instrument with which a suicidal wound of the throat is 
 most commonly made is a razor, and it is frequently found 
 cither grasped in the hand or lying by the., side of the de- 
 ceased. Where the wound must have produced almost 
 instant death, if the razor is found cluxed, there is fair 
 ground to suspect the interference of another person ; (6) 
 although this circumstance also has happened in cases of 
 suicide, (c) If the instrument be found still lirmly grasped 
 in the hand of the deceased, no better circumstantial evi- 
 dence of suicide can perhaps be offered ; it being considered 
 impossible that any murderer could imitate such a state and 
 position. (<i) But where the razor is held loosely in the 
 hand, or with no compression of the fingers upon it, there 
 is room for the supposition of homicide, which may become 
 strong presumption, especially if no blood appear upon the 
 hand, (e) 
 
 The relative position of the instrument to the body has 
 
 (a) Taylor'3 Med. Jar. 199. 
 
 (6) Id. ibid. 
 
 (c) Whirton & StilM's Med. Jur. 556, § 819. 
 
 (_d) Taylor's Mod. Jur. 199. See the medical reason, ibid. 
 
 (e) Id. ibid. 
 
CHAP. II.] COEPUS DELICTI. 697 
 
 already been mentioned as an important circumstance, and 
 so is. the particular manner in which it is disposed. If a 
 knife be found with its point stuck into the floor, at. some 
 distance from the body, and pointing towards it, with the 
 handle from it, it is reasonably indicative of homicide, (a) 
 
 The position in which the body is found is also a material 
 circumstance. This may be such a position as the deceased 
 could not have assumed, on the supposition of the wound 
 being accidental or suicidal. (6) The position in which 
 the body was when the wound was inflicted, is a frequent 
 question on coroners' inquests and criminal trials, (c) It 
 is remarked that few suicides cut the throat while in a 
 recumbent posture, (rf) Where the body is found in bed, 
 the manner in which it is covered may serve to indicate a 
 homicide ; as where the bed-clothes are not at all dis- 
 turbed, (e) or where the face is covered with a cloth or 
 towel. (/) 
 
 Cuts in the clothing sometimes serve to indicate the cause 
 of the death. If the deceased has been wounded with his 
 clothes on, and, together with the wound in the throat, the 
 cravat and shirt or part of the dress is found cut through, 
 this is said, (all other circumstances being equal,) to be 
 presumptive of homicide : for it is not usual for suicides, 
 unless laboring under confirmed insanity, to allow any 
 mechanical obstacles of this kind to remain in the way of a 
 weapon. (^) 
 
 Marks of blood in. the apartment where the body is 
 found, and upon the body itself, are among the most impor- 
 tant indicatory circumstances. If blood is found in seve- 
 
 (o) Case of Mary JVorkott and others, 14 State Trials, 1324. 
 
 (6) Taylor's Med. Jur. 198. 
 
 (c) Id. 201. 
 
 (d) Id. ibid. 
 
 (e> Case of Mary JVorkott and others, ubi supra. 
 (/) Regiiia v. Courvoisier, June, 1840. 
 {g) Taylor's Med. Jur. 201. 
 
698 PROOF OP A [part II, 
 
 ral places, it is material to observe in what places the effu- 
 sion has been largest, and the direction of the streams., (a) 
 If the wound be in the throat, it should be observed 
 whether blood has flowed down in front of the clothes or 
 person ; for this will sometimes show whether the wound was 
 inflicted when the individual was standing, lying or sitting 
 down. (&) 
 
 Stabs or punctured wounds come next to be considered. 
 Suicidal wounds of this character usually occur in the chest, 
 but sometimes in the abdomen and neck, (c) Their direc- 
 tion is commonly from right to loft, and from above down- 
 wards. In left-handed persons, the direction is of course 
 the reverse, (fi?) A homicidal stab may take the same 
 direction as one which is suicidal ; but this could be only in 
 cases where the murderer stood behind or at the side, (e) 
 Perforations of the clothing, corresponding with the situa- 
 tion of the wounds, as showing that the deceased was killed 
 with his clothes on,- require to be attentively considered. In 
 suicides, the dress is sometimes drawn aside when the wound 
 is inflicted. (/) 
 
 If no weapon adapted to produce the wound be found, it 
 is, as already stated, presumptive of homicide. If a weapon 
 be found near, a comparison of its shape with that of the 
 wound, and its length with the depth of the stab, will serve 
 to determine whether it was the actual means of death, (g-) 
 It is no uncommon occurrence for a murderer to substitute 
 some instrument belonging to the deceased or another per- 
 son, for that which he has employed. (A) It may happen 
 
 (a) Case of the JVorkotts, vhi supra, 
 (6) Taylor's Med. Jur. 200, 201. 
 
 (c) Id. 189, 190. 
 
 (d) Id. 192, 193. 
 
 (e) Id. 193. 
 
 (/) Wharton & StilW's Med. Jur. 556, § 819. 
 (g) Id. 548. § 808. Taylor's Med. Jur. 185, 198. 
 (A) Id. ibid. 
 
CHAP. II.] CORPUS DELICTI. 699 
 
 that a wound may be single upon the skin, and yet two or 
 more internal wounds have been made by the same weapon ; 
 as where the weapon has been partly withdrawn, and 
 plunged into the body in another direction, (a) or worked 
 about in the wound. 
 
 As to the circumstance of the weapon being held in the 
 hand of the deceased, the remarks on the same point under 
 the preceding head may be referred to. (6) If the wound 
 must have been instantly fatal, and the weapon is found 
 sheathed, it goes to negative the supposition of suicide, (c) 
 
 If the weapon be found bloody, particular attention should 
 be given to the manner in which the blood is diffused over 
 it. It is not unusual for criminals to besmear with blood a 
 knife or other weapon which has probably not been used. 
 On the other hand, it sometimes happens that a weapon which 
 has actually been used, is found to be free from any stain of 
 this kind. This is-accounted for by the supposition that the 
 weapon, in being withdrawn, is cleanly wiped against the 
 edges of the yound, in the integuments, (rf) 
 
 Stabs differ from cuts in this particular, that they are 
 more frequently produced by accident. Fatal wounds of this 
 character have been known to be produced by the deceased 
 having fallen on some pointed weapon or object carried about 
 him, or even held in his hand, (e) It is possible, also, that a 
 person may be injured in this way, by falling upon or running 
 against a weapon held in the hand of another ; and this is 
 sometimes alleged as an excuse for a homicidal injury by 
 stabbing, particularly where there is but one wound found. 
 
 (a) Wharton Si StUlg's Med#Jur. 548, § 808. 
 
 (6) Ante, p. 696. 
 
 (c) Ibid. 
 
 (rf) Tayl. Med. Jur. 200. 
 
 (e) Id. 193. Dr. Beck mentions a singoLir case where a wound of this 
 character was produced by a kind of anger, which the deceased parried °indei 
 his arm. 2 Beck's Med. Jur. 126, 127. 
 
700 PROOF OP A [part II. 
 
 The truth of these defences may sometimes be effectually 
 tested by observing the direction of the wound, (a) 
 
 Gun-shot wounds are of the contused kind, (6) but, like 
 cuts and stabs, usually clearly indicate the employment of a 
 weapon. A wound of this character has such peculiarities, 
 that it is not easy to mistake it for any other injury ; 
 although perforating wounds of the skull have sometimes 
 closely resembled bullet-wounds, (c) 
 
 As to the situation of these wounds, it has been observed 
 that those inflicted by suicides are almost always directed 
 to a vital part, — to the heart or to the brain, (d) If the 
 latter, the weapon is usually put into the mouth, or applied 
 to the temple. Near wounds of this character forbid the 
 supposition of accident, (e) and have sometimes been con- 
 sidered as excluding that of homicide also. (/) Suicides 
 rarely apply the weapon to the back of the head, (g") 
 
 The appearance of a gun-shot wound often serves to indi- 
 cate very clearly the important fact that the muzzle of the 
 piece, when fired, was placed near the surface^ of the body. 
 In " near " wounds, as these are called, the skin is always 
 found to be blackened or burnt, and the wound wide and 
 lacerated. (A) Suicidal wounds almost always exhibit these 
 appearances, and so do accidental wounds from a piece in 
 the hands of the deceased, (i) But homicidal wounds also 
 may present the same appearances. (_;' ) 
 
 The direction of the wound, showing that of the projec- 
 
 (a) 2 Beck's M. J. 107, 111, 112. Tayl. M. J. 193. Wharton & StilW, 
 554, § 817. 
 
 (b) Tayl. Med. Jur. 262. 
 
 (c) Id. 262, 263, • 
 
 (d) Id. 266. 
 (c) Id. 190. 
 
 (/ ) Smith's For. Med. 302. But see Tayl. Med. Jur. 189. 
 
 (g) 2 Beck's Med. Jur. 119. 
 
 (k) Tayl. Med. Jur. 263, 266. 
 
 (i) Id. 267. 
 
 (;■ ) State v. McCann, 13 Smedea & Marshall, 474, 479. 
 
CHAP. II.] CORPUS DELICTI. 701 
 
 tile by which it has been made, is a circumstance of great 
 importance, as serving to distinguish a suicidal from a homi- 
 cidal wound, (a) or, in case of the latter, to indicate the 
 position of the murderer ; (6) as well as the fact that the 
 shot was fired from within the house where the deceased was 
 found, and not from without, as is pretended, (c) Homi- 
 cidal wounds are most commonly inflicted from behind, or at 
 the side ; the murderer choosing such positions in order to 
 avoid observation. But accidental wounds «3ay also be 
 inflicted from behind, (rf) Marks made by a ball in travers- 
 ing or striking against other substances, before reaching the 
 body, such as a fence, tree, door or window frame, serve 
 also to distinguish a homicidal wound, as well as the direc- 
 tion from which the shot has been iired. Where the frag- 
 ments of a glass window through which a fire-arm has been 
 discharged, are found on the outside, it shows that it could 
 not have been fired by a person on the outside of the 
 house, (e) Where the ball has passed through the body, 
 an examination of the entrance and exit wounds (which 
 possess different medical characteristics,) serves to deter- 
 mine the direction. (/) The perforation made in the cloth- 
 ing will also determine the point of entrance, (g-) 
 
 But the presence or absence of a weapon, with which the 
 wound might have been inflicted, is perhaps the most impor- 
 tant circumstance in cases of this kind. If no weapon be 
 found near the body, and the wound is such as to have been 
 speedily fatal, it is strongly presumptive evidence of homi- 
 cide. (Ji) If a weapon be found near the body, its appear- 
 ed) 2 Beck's Med. Jur. 118. 
 
 (6) State V. Carawan, Beaufort (N. C.) Superior Court, 1853. 
 
 (c) The People v. Videto, 2 Beck's M. J. 113. 
 
 ((/) Tayl. M. J. 267. 
 
 (e) The People v. Videto, 2 Beck's M. J. 113, 114. 
 
 (/) Id. 119. 
 
 (g-) State y. Carawan, iibi supra. 
 
 (ft) Tajl. M. J. 199. 
 
702 PROOF OP A [part II. 
 
 ance and position should be attentively considered. In 
 cases of suicide, the pistol is sometimes found firmly grasped 
 in the hand, (a) a state which is said to be impossible for a 
 murderer to imitate. (6) The appearance of suicide has 
 sometimes been given to murder, by placing the deceased's 
 own pistol near his hand or body. The mode of detecting 
 such a fraud by comparing the weapon with the bullet found 
 in the body, has been alluded to under another head, (c) 
 
 The blackrtiing of the fingers of the deceased, from the 
 combustion of the powder in the pan of the weapon, is also 
 a characteristic mark of suicide, (rf) but, as a medical 
 writer has observed, a crafty assassin might have recourse 
 to it, in order to conceal his crime, (e) Useful evidence 
 is often obtained from an examination of the projectile itself, 
 whether it be a single ball or several shot or slugs ; and the 
 identity of these should be carefully preserved by the medi- 
 cal witness. (/) And the examination of foreign substances 
 found in wounds, such as fragments of paper composing 
 the wadding of the charge, has, in more instances than one, 
 led to tne identification of the person who had committed 
 the crime. (§•) 
 
 The presence of two or more mortal wounds in various 
 parts of the body has sometimes been regarded as a decisive 
 proof of homicide, on the presumption that an individual, 
 having already inflicted one on himself, has not the strength 
 to produce the second. But, although correct as a general 
 rule, it must be taken with exceptions, and particularly so 
 if the first wound be not of a nature to produce instant 
 
 {a) Tayl. M. J. 199. Id. 266. 
 (6) Id. 199. 
 
 (c) jinie, p. 422. 
 
 (d) Tayl. M. J. 266. 2 Beck's M. J. 128. 
 
 (e) Id. ibid. 
 
 (/) Tayl. M. J. 263. 
 
 Is) Id. 200. See ante, p. 272. 
 
CHAP. II.] CORPUS DELICTI. 703 
 
 death. A determined suicide may, in the few moments of 
 existence, repeat the blows on himself, (a) 
 
 In regard to wounds in general, the most important cir- 
 cumstances, as tending to throw light upon the manner of 
 their infliction, are their situation, number, variety and pecu- 
 liar characteristics. 
 
 The situation of a wound will sometimes, of itself, exclude 
 the supposition of suicide as its cause; as where it is in a 
 part of the body which the deceased could not himself have 
 possibly reached. In general, wounds which result from 
 accident or suicide are in exposed parts of the body. An 
 incised wound in a concealed or not easily accessible part is 
 presumptive evidence of murder, because this kind of injury 
 could have resulted only from the deliberate use of a weapon. 
 Suicidal wounds, however, are sometimes found in the most 
 unusual situations. (6) It has been remarked that there is 
 no wound which a suicide is capable of inflicting upon him- 
 self, which may not be produced by a murderer ; but there 
 are many wounds inflicted by a murderer, which, from their 
 situation and other circumstances, a suicide would be in- 
 capable of producing on his own person, (c) 
 
 As to the number of wounds, it may be observed that, in 
 cases of suicide, it most commonly happens that only one 
 wound is seen, namely that which has destroyed life ; and the 
 presence of several wounds on a body, or the marks of seve- 
 ral attempts around the principal wound, have been consider- 
 ed to furnish presumptive evidence of murder, (rf) But, as a 
 medical writer has remarked, inferences of this kind must be 
 
 (a) Orfila's Lecons, (1st ed.) vol. 1, p. 717, quoted in 2 Beck's Med. Jur. 
 123, 124. The same author mentions a case where a suicide discharged one 
 pifol into his body, which broke two ribs and wounded the lung, and then 
 went into an adjoining room, obtained another pistol, and discharged it through 
 his head. Id. ibid. 
 
 (h) Taylor's Med. Jur. 190. See the cases mentioned y}id. 
 
 (c) Id. ibid. 
 
 (d) Id. 194. See 2 Beck's Med. Jur. 135. 
 
704 PBOOF OP A [part II, 
 
 very cautiously drawn, as suicides have been known to inflict 
 many wounds upon themselves, before succeeding in their 
 purpose, (a) That the presence of two or more mortal 
 wounds in different parts of the body, when inflicted by the 
 same instrument, does not in all cases and invariably justify 
 the conclusion of murder, has just been shown. And even 
 the presence of several wounds, obviously inflicted by differ- 
 ent means or instruments, does not necessarily exclude the 
 supposition that the death may have been the result of 
 suicide, (i) 
 
 That the extraordinary character of a wound is not, in its 
 nature, incompatible with the supposition of death by suicide, 
 especially in cases whore the deceased is a lunatic, has been 
 remarked by medical jurists, (c) 
 
 In determining whether and how far wounds observed 
 upon a dead body have been the cause of death, it is, of 
 course, material to ascertain, at the outset, that they have 
 been inflicted before death. This may be effected by a 
 careful attention to the medical characteristics of post- 
 mortem- wounds, a principal one of which is the small quan- 
 tity of blood effused, {d) 
 
 (a) Tayl. Med. Jur. 194. In a case of suicide mentioned by Dr. Taylor, 
 there were twenty two wounds found on the front of the chest, besides many 
 on the fore-arm, neck and face. Id. ibid. See two other cases where several 
 wounds were inflicted on the throat. Ibid. And see 2 Beck's Med. Jur. 135, 
 note, quoting Lauret. 
 
 (i) " In general," observes a medical writer, " suicides, when foiled in a 
 first attempt, continue to use the same weapon; but sometimes, after having 
 made a severe incision in the throat, they will shoot themselves, or adopt other 
 methods of self-destruction." Tayl. Med. Jur. 195. A very striking case ia 
 quoted by Orfila, on the authority of Olivier D' Angers. A young man dis- 
 charged a pistol into his mouth, the ball from which fractured the roof, tore 
 the tongue and velum, and dropped from the oesophagus into the stomnh. 
 He then endeavored to fracture his skull with the butt-end of the pistol, and 
 Inflicted no less than thirty wounds on the front part of his head, most of 
 which penetrated to the bone. Finally he hung himself on a neighboring tree. 
 2 Beck's Med. Jud. 124, note. 
 
 (c) S!?e the cases in Taylor's Med, Jur. 191. 
 
 (rf) Seeltl.m, 175,178.179. 
 
CHAP. II.] CORPUS DELICTI. 705 
 
 Supposing it satisfactorily ascertained that the wounds 
 ohserved were produced before death, the next question to 
 be determined will be, whether they were capable of produc- 
 ing death, or whether the death was actually owing to them, 
 and not to some other cause. In regard to the effect of 
 physical injuries, it is to be observed that persons may die 
 from the effect of a number of wounds, or even blows or 
 stripes, not one of which, taken alone, could, in medical 
 language, be deemed mortal, as well as from a single mortal 
 wound, (a) " In general," observes a medical writer, there 
 is only one real cause of death, although other circumstances 
 may have assisted in bringing about a fatal result. Thus, a 
 person cannot die of disease in the bowels and a stab in the 
 chest, at the same time ; nor of apoplexy from disease and 
 compression of the spinal marrow, at the same instant. In 
 most cases of local injury, where a person dies speedily, 
 there will be no great trouble in settling whether disease or 
 the injury was the cause. A diflSculty may, however, exist 
 where a person has recovered from the first effects of a 
 wound, and has subsequently died. Besides, there may be 
 cases in which the cause of death, in spite of the most care- 
 ful deliberation, will be «till obscure ; or sometimes it may 
 happen that the death of a party appears to have been as 
 much dependent on bodily disease, as on an injury proved to 
 have been received at the time he was laboring under dis- 
 ease." (6) The evidences and considerations by which 
 medical witnesses should be governed in forming and expres- 
 sing their opinions in such cases, are sufficiently stated in 
 the works on medical jurisprudence which have already been 
 referred to. (c) 
 
 Where several wounds are found on a dead body, espe- 
 cially if of different kinds and obvj^usly inflicted by different 
 
 (a) Taylor's Med. Jur. 211. 
 
 (6) Id. 208. 
 
 (c) See 2 Beck's Med. Jur. chap. 15. Taylor's Med. Jur. chap. 26. 
 
706 PROOF OP A [part ii. 
 
 means, it is sometimes material to ascertain which was first 
 received. It is said to be fair ground for a strong sus- 
 picion of homicide, when, besides marks of great injury to the 
 head, a severe cut or stab is found on the body. A man is 
 not likely to cut or stab himself after having sustained such 
 severe violence to the head ; but it is quite possible that he 
 may have the power of precipitating himself from an elevated 
 spot, and thereby producing great injury to the head, after 
 having previously attempted to cut his throat, or to stab 
 himself, (a) 
 
 In connexion with wounds, marks of blood on the dead 
 body, and its clothing, are sometimes of great importance as 
 indicia of criminal agency. In an English case which has 
 already been referred to, (i) the presence of another per- 
 son was conclusively shown by the mark of a bloody left 
 hand on the left arm of the deceased. 
 
 Where, instead of wounds properly so called, or in addi- 
 tion to them, what are popularly termed bruises or discolora- 
 tions of the skin are observed upon the body, (constituting 
 the appearances called, in medical language, ecchymosis zxiA 
 summation, (t)) the causes of such marks become a very 
 important part of the general inquiry into the cause of the 
 death. It is well known that these appearances are not only 
 the natural results of blows or violent compression applied 
 to the body, but that they sometimes occur as natural ac- 
 companiments or consequences of death from other causes, (rf) 
 
 (a) See further, on this head, Taylor's Med. Jur. 195. 
 
 (4) Case oi Mary JVbrkoit and others, 14 State Trials, 1324. 
 
 (c) The term " eoohymosis," (signifying an effusion of blooi under the 
 skin,) is applied to those discolorations which are the effects of injuries, 
 ■whether accidental or intentional, received during life. The term " sugilla- 
 tion ' ' is applied to those livid spots which are noticed on the bodies of the 
 dead, generally after they become* stiff and cold; and usually in the most de- 
 pending parts. 2 Beck's Med. Jur. 15 — 17. But this distinction, or the use 
 of any other term than ecchymosis, has been considered unnecessary. Taylor's 
 Med. Jur. 181. 
 
 (,d) See 2 Beck'e Med. Jur. 14—21. Taylor's Med. Jur. 176—184. 
 
CHAP. 11.] COEPUS BELICTI. 707 
 
 It sometimes happens that discolorations or ecchymosis 
 observed, upon a dead body will assume a form indicative of 
 the means by which the violence was offered. In cases of 
 death by hanging, the impression caused by the cord on the 
 neck is sometimes ecchymosed, and indicates its course with 
 precision. And in cases of death by strangulation, where 
 the fingers have been violently applied to the throat, the in- 
 dentations produced may serve to point out the manner in 
 which life was destroyed, (a) The marks of finger-nails 
 around the mouth, serve to indicate the presence of an as- 
 sassin, by showing a forcible attempt to close the mouth, so 
 as to prevent an alarm from being given. (6) 
 
 Burns, constitute another class of appearances upon dead 
 bodies, which are, in general, readily distinguishable from 
 all other injuries. Where no other appearances are observ- 
 able, it rarely happens that they are attributable to any 
 other cause than accident. It may be said that suicide is 
 never attempted by applying fire directly to the body. And 
 perhaps the same may be said of murder, (c) But it fre- 
 quently happens that burning is resorted to, after the com- 
 mission of the murder, either for the purpose of disguising 
 the crime, by giving it the appearance of accident, as where 
 the clothing (t?) or bed of the murdered person is set on 
 fire ; or as a means of obliterating all evidence of the crime, 
 as where the building in which the dead body is left is 
 fired, with a view to its total destruction. Where these 
 attempts are unsuccessful, or where, upon the unconsumed 
 portions of the body, are found marks of violence, such as 
 
 (a) Taylor'3 Med. Jur. 178. 
 
 (6) Id. 203. Marks of this kind were observed in the late French case of 
 the Duchess of Praslin, (August, 1817.) 
 
 (c) 2 Beck's Med. Jur. 94, note. But see the case mentioned ibid. In 
 those cases where the inmates of a house are destroyed during sleep, by firing 
 the house, the suffocation produced by the smoke is usually the immediate 
 agent of destruction. 
 
 {d) See the case mentioned in 2 Beck's Med. Jar. 86, note. 
 
708 PROOF OP A [part n. 
 
 wounds and fractures, it furnishes one of the. strongest indi- 
 cations of murder, (o) 
 
 The medical criteria for distinguishing burns inflicted 
 duj-ing life, from those produced after death, will be found 
 under the proper head in the works on medical, jurisprudence 
 which ha"Pe already been quoted. (6) 
 
 In the cases of death which have hitherto been, considered, 
 the body has been supposed to be found either resting on 
 the ground (or floor,) or concealed under it. There are two 
 other modes of disposition which remain to be noticed ; 
 namely, where the body is found hanging above the ground, 
 and where it is found in water, (c) 
 
 Death by hanging-, as it implies a degree of deliberate 
 preparation in the procurement and adjustment of the cord 
 or other means of suspension, is very rarely the result of 
 accident, (d) And, from its obvious difficulty, it is equally 
 rare that a murderer selects this mode of destroying 
 life, (e) It is, however, frequently adopted by suicides ;(/) 
 and hence becomes a means of simulating suicide, which 
 
 (o) See Taylor's, case, given Id. 228, 230. Itis generally a, msvtter of great 
 difficulty to destroy these traces of violence, when they occur in the shape of 
 fractures of the bony portions, especially of the skull. Dr. Beck mentions a case 
 in Maryland, a few years since, where a ruffian murdered a whole family, and 
 then fited the log-house in which they lived. On the body of the father, how- 
 ever, a fracture of the skull was found; and, in consequence of a bed from the 
 upper room falling on the mother, her body was so far uninjured as to exhibit 
 three incised wounds, one of them penetrating the stomach. 2 Med. Jur. 86. 
 
 (A) See 2 Beck's Med. Jur. 86—93. Tayl. Med. Jur. 2T8— 277. Wharton 
 & Stm^s Med, Jur. 587—589, §§ 867—869. 
 
 (c) For the appearances observed on the bodies of persons found suffocated 
 and strangled, see 2 Beck's M. J. 206, 230. Tayl. Med. Jur. 511. 520. 
 Wharton & StilM's M. J. 605, 612; §§ 893, 899. 
 
 (d) But see two cases mentioned in Tayl. M. J, 501 
 
 (e) 2 Beck's M. J. 186. Dr. Beck mentions an English case in which a 
 murder was committed in. this way, and a Scotcli case in which it was at- 
 tempted. Id. 189, 190. 
 
 (/ ) Cases have occurred in which it has been voluntarily resorted to, after 
 the infliction of severe injuries by other means. Id. 124, note. 
 
CHAP. II.J CORPUS DELICTI. 709 
 
 may be resorted to by a murderer, for the purpose of con- 
 ceaKng his crime. 
 
 In every suspected case of death by this means, two ques- 
 tions may present themselves for solution by the medical 
 witness : first, was the body of the deceased suspended be- 
 fore or after death ; or, in other words, has he been previous- 
 ly killed in some other way, and then placed in this situation 
 to avoid suspicion : secondly, did the deceased hang himself 
 or was he hung by another ? (a) 
 
 Medical writers have enumerated the appearances on 
 bodies hung during life, (J) SUch as marks of the cord upon 
 the neck, the congested appearance of the face, and the 
 state of the genital organs; but as most of these are found 
 to be produced in cases of suspension after death, especially 
 immediately after, they cannot, it would seem, be uniformly 
 and implicitly relied on. But circumstantial evidence has, 
 more than once, assisted in clearing up a doubtful case. 
 On removing the body of a man who was found hanging, the 
 rope was observed to be clotted with blood. This simple 
 circumstance led to further investigation, by which it was 
 discovered that the person had been murdered, and his body 
 afterwards suspended, (c) The presence of marks on the 
 neck, indicative of strangulation, such as the cord was not 
 likely to have produced, may lead to a suspicion that the 
 hanging followed death, (rf) , 
 
 If wounds of a decidedly mortal nature be found upon the 
 body, the presumption of murder amounts almost to positive 
 certainty ; for who but a murderer, it is asked, would sus- 
 pend the dead body of a person so wounded, immediately 
 after death ? (e) But, with these exceptions, the existence 
 
 (ffi) 2 Beck's Med. Jur. 181. 186. 
 
 (i) Id. 167. 181. Taylor's Med. Jur. 492—495. Wharton & Still^'s M. 
 Jur. 621—625. §§ 909—914. , 
 (c) Tayl. M. J. 498. 
 (rf) Id ibid. See the cases ibid. 
 (e) Id. 501. 
 
710 PROOF OP A [part II. 
 
 of wounds or other injuries, even of a serious character, 
 does not necessarily establish the fact of homicide, since 
 persons are capable of making many attempts on their own 
 lives, by various means, (o) And marks of violence on a 
 hanged subject may, in some cases, be fairly ascribed to ac- 
 cident, or natural causes, (i) 
 
 If it be ascertained that the body was suspended during 
 life, the principal question will be, whether the act was the 
 result of suicide or homicide. The difficulty of committing 
 homicide by suspension is so apparent, that the discovery of 
 a person hanging is said to a^ord prima facie evidence of 
 suicide, (c) Still, murder may be committed by this means 
 as actual cases have attested, (d) But, unless the subject 
 has labored under stupefaction, intoxication or great bodily 
 weakness, " we must expect, in homicidal hanging," observes 
 a medical jurist, (e) " that there will be evident marks of 
 violence about'the body," arising from the resistance which 
 would naturally be offered in such cases. In addition to 
 the evidences afforded by such appearances, the following 
 circumstances should be carefully ascertained ; namely, 
 whether the doors and windows of the apartment in which 
 the body is found, be secured on the inside or on the out- 
 side ; whether the furniture be disordered or otherwise ; 
 whether the dress of the deceased be at all torn or discom- 
 posed, or his hair dishevelled ; whether the rope, cord or 
 other insfrument of suspension, correspond with the impres- 
 sion seen around the neck ; and whether it be of sufficient 
 strength to support the body. (/) The substance of which 
 the instrument is made, and the manner in which it is ap- 
 
 (a) Taylor's Med. Jur. 499. 
 
 (i) Id. ibid. As to the discolorations (sugillations) which take place on 
 bodies after death, see 2 Beck's Med. Jur. 16. 
 
 (c) Tayl. M. J. 601. 
 
 (d) See ante, p. 708, note (c). 
 (c) Tayl. M. J. 502. 
 
 (/ ) Id. 601. 2 Beck's M. J. 189. 
 
CHAP. II.] CORPUS DELICTI. 711 
 
 plied to the neck, and secured to the point of suspension, 
 may also be of importance, as indicating the source from 
 which it was obtained, and the agency by which it has been 
 adjusted, (a) 
 
 The position of the body has sometimes been considered 
 as a means of distinguishing suicidal from homicidal hang- 
 ing. But accurate observation has shown that it cannot be 
 relied upon. (6) -So, the circumstance that the hands or 
 • feet, especially the former, are found tied, has been thought 
 to indicate homicide. But this, also, has been found to exist 
 in cases of undoubted suicidal hanging, even in the difficult 
 form of tying the hands together behind the back, (c) If 
 however, the ligatures be obviously such as a person could 
 not possibly have put upon himself, or if the position from 
 which he is found suspended, is one which he could not 
 have reached with his hands tied in any form, the presump- 
 tion of homicide will be conclusive, (d) 
 
 Death by drowning is frequently the result of suicidal 
 design, as well as accident. It is also sometimes produced 
 by criminal violence, as where one person is designedly 
 thrust by another into the water, under circumstances which 
 prevent his extricating himself. But, in cases where the 
 agency of another has existed, it more commonly happens 
 
 (o) See the case of The State v. Aoery, before the Supreme Court of Rhode 
 Idland, May, 1833 ; in which both these facts were made the subject of minute 
 inquiry. This case is particularly considered by Dr. Beck. 2 Beck's Med. 
 Jur. 197—201. 
 
 (b) Tayl. M. J. 504, 505. Whart. & Stills 's M. J. 626, 627, §§ 916—918. 
 
 (c) Tayl. M. J. 505, 506. Robinson's case, given in Whart. & StilWs M. 
 J. 628, § 920. 
 
 (rf) Id. § 919. In connexion with the use of the hands, in cases of hanging, 
 it may be observed, that, in the ease of the Stale v. Jlvery, where the deceased 
 was found hanging, with her toes touching the ground and her knees approach- 
 ing it, her arms being under her cloak, which was hooked together nearly its ' 
 whole length, the clothes of the decea.sed, as she hung, were found smoothed 
 hack as far as they would reach, under her legs. This fact was relied on for 
 the prosecution as an evidence that she must have been hnng by, or with the 
 assistance of another person. 
 
712 PROOF OF A [part II. 
 
 that bodies are thrown into the water, after death by other 
 means, in order to produce an appearance of accident or 
 suicide, and, in that way, to avert suspicion from the crimi- 
 nal. 
 
 Where a body has been found in the water, the first ques- 
 tion to be determined by a medical inquirer and witness, is, 
 whether the person died in the water, and from its effects, or 
 whether he was dead when thrown in. (a) 
 
 The particular appearances observed in cases of death by 
 drowning, (that is, from the effect of the water upon the living 
 body immersed in it,) and which have been regarded as in- 
 dicative of death from that cause, may be found enumerated 
 in the medical works which have already been referred to. (6) 
 The most important of these, only, will now be mentioned. 
 
 The signs upon which medical jurists chiefly rely, as proof 
 of death from drowning, are, the presence of froth in the 
 lungs, or in the trachea and air-passages, water in the lungs, 
 and water in the stomacli. (c) 
 
 The interior of the trachea, in a drowned subject, is fre- 
 quently covered with a watery or mucous froth ; and this is 
 stated to have been, in some instances, so abundant as to 
 have filled the air-tubes and their ramifications, (c?) The 
 presence of this appearance, when the body is recently in- 
 spected, is commonly regarded as a positive and conclusive 
 sign of death by drowning, (e) But it is not a uniform 
 sign or accompaniment of death by that means ; for experi- 
 ments have shown that, in certain cases of drowning, it is 
 not found. Hence the absence of froth in the parts de- 
 scribed, cannot be assigned as a proof that the person did 
 not die from drowning. (/) 
 
 (a) 2 Beck's Med. Jur. 238. 
 
 (A) See Id. 239, 240—256. Tayl. M. J. 472. 
 
 (c) Id. 472—474. 2 Beck's M. J. 246,249, 252. 
 
 (d) Tayl. M. J. 478. 
 
 (e) Id. 474. Whart. & StilM's M. J. 641, § 935. 
 (/) Id. ibid. 
 
CHAP, n.] COBPUS DELICTI. 713 
 
 Water is also found in the luv^s of drowned persons. 
 But this circumstance cannot always be relied on as evidence 
 that it was taken in while the person was drowning, sijpe it 
 is not of uniform occurrence, (a) And besides, it is now well 
 known that it is possible for water to penetrate to the 
 lungs, where a body has been thrown in dead. (6) But 
 this, it seems, can happen only where the body has been 
 thrown in recently, and lies in a position favorable to the 
 ingress of water, (c) On the other hand, the absence of 
 water from the lungs of the subject found apparently drowned 
 must not be considered to indicate that death was not a con- 
 sequence of drowning, as the water may have drained away, 
 or disappeared from other causes, (d) 
 
 Water is also, generally, though not uniformly taken into 
 the stomach, or swallowed, by persons who die from drown- 
 ing, (e) But it is now established that water does not 
 enter the stomach after death, unless putrefaction is consider- 
 ably advanced. (/) Hence the conclusion is warranted 
 that, if the water in the stomach can be recognized as identi- 
 cal with that in which the body is found, (unless it was 
 drunk previous to submersion,) it must have been swallowed 
 by the person before death. (§•) This may be proved by 
 the circumstance that it contains substances similar to those 
 obseiwed in the pond or stream in which the drowning oc- 
 curred, such as mud, straw, grass, duck-weed and the 
 like. (Ji) But the absence of water from the stomach can- 
 not justify the inference that the person has not died by 
 
 (a) Taylor's Med. Jut .639, § 933. Dr. Tay/or observes that it is an appear- 
 ance only occasionally met witii. Med. Jar. 474. 
 (A) M.ibid. 
 
 (c) Whart & Still^'s M. J. 640, § 933. 
 (rf) Id. ibid. 
 
 (0 Taylor's Med. Jnr. 473. 
 (/) Whart. & StilM's M. J. 642, § 936. 
 {g) 2 Beck's M. J. 254. 
 (ft) Tayl. M. J. 473. 
 
714 PROOF OF A [part H. 
 
 drowning, because in some instances it is not swallowed, 
 and in others it may drain away and be lost after death, (a) 
 
 Ii)^ addition to the indications which have just been men- 
 tioned, the following circumstances are important. If sub- 
 stances are found grasped within th& hands of the de- 
 ceased, which have evidently been torn from the bank of a 
 canal or river, or from the bottom of the water in which the 
 body is found, such as grass, weeds, sand, &c., it is strong 
 presumptive evidence that the death occurred in the 
 water. (6) So, if a dead body be discovered, still holding 
 to a rope, oar or similar object, no further evidence is re- 
 quired to show that the deceased must have died by drown- 
 ing, (c) 
 
 The principal signs which denote death previous to sub- 
 mersion, are, the absence of water or foreign substances 
 from the trachea or stomach, and the presence of injuries 
 which could not be inflicted under water, such as the mark 
 of a cord round the neck, wounds from fire-arras, or the 
 traces of poisons, (rf) In regard to the absence of water, it 
 has already been observed that it is by no means a uniform 
 circumstance. And in regard to marks of violence, it 
 should be borne in mind, that unless they appear to have 
 been immediately fatal, or such as to have destroyed all 
 power of motion, they may have been occasioned by at- 
 tempts at suicide before the person succeeded in drowning 
 himself; 
 
 Where the body is found with weights attached to it, it 
 may serve to raise a presumption of murder; but this will 
 not be conclusive, for instances have been known where 
 suicides have attached weights to their bodies so as to ensure 
 
 (a) Taylor's Med. Jur. 473. 
 
 (6) Id. ibid. 
 
 (c) Id. 472, 
 
 {d) 2 Beck's Med. Jur. 240. 
 
CHAP. 11.] CORPUS DELICTI. 715 
 
 death, (a) The same remark will apply in cases where the 
 limbs are secured with ligatures. (6) 
 
 Supposing it ascertained that the body was alive when 
 it went into the water, or, in other words, that the person 
 was drowned, the next question to be determined will be, 
 was the drowning the result of suicide, homicide or acci- 
 dent ? (c) 
 
 Observation has shown that drowning is a mode of death 
 frequently adopted by suicides, (<i) and very commonly due 
 to accident, but it is seldom found to have been resorted to 
 by murderers, without the employment of other means, (e) 
 The question just stated can rarely be determined merely 
 from a view of the post-mortem appearances, for these are, 
 for the most part, the same in each of the supposed kinds 
 of death. (/) Even wounds and marks of violence upon 
 the body are not, in all cases, decisive ; for these may be 
 produced by the mere act of falling into the water, whether 
 the deceased accidentally fell, or suicidally leaped in, or 
 was homicidally thrown in ; or they may be accidentally 
 inflicted upon the body afterwards, in consequence of con- 
 tact with pointed, hard or rough substances in the water. (§•) 
 But where the nature of the wounds shows that they must 
 have been inflicted by artificial means, as in the instance of 
 gun-shot wounds, the supposition of accident will be ex- 
 cluded, and the case will then rest between the two supposi- 
 tions of suicide and homicide. Suicides have been known 
 to inflict severe wounds on themselves, on the brink of the 
 
 (a) Taylor's Med. Jur. 486. 
 
 (4) Id. ibid. 
 
 (c) Id. 483. 2 Beck's M. J. 281. • 
 
 (rf) It has been calculated that drowniDg is the cause of death in nearly one 
 half of all suicides, but this, of course, TTill vary according to localities. Tayl. 
 M. J. 483. 
 
 ( e) Id. 484. 
 
 (/) /(i. 483. 
 
 (e) Id. 483. Whart. & StilM's M. J. 643, § 938. 2 Beck's IL J. 282. 
 
716 PROOF OP A [part II. 
 
 water, or even just toefore precipitating themselves into it, 
 in order to ensure a speedy death ; and hence the determina- 
 tion of this question is often difficult, and necessarily de- 
 pendent on the circumstances proved in each case, (a) 
 " Medically speaking," observes a writer who has already 
 been repeatedly quoted, " the drowning is presumptively 
 suicidal, when there are no marks of violence ; and it is 
 presumptively homicidal when severe vital injuries, of a 
 more or less speedily mortal or dangerous character, and 
 not likely to have had an accidental origin, are met 
 with." (6) The rule which the same writer lays down for 
 the observance of medical examiners, is, never to pronounce 
 a positive opinion in favor of homicidal drowning, from 
 violence on the person of the deceased, unless the violence 
 be so situated on the body that it could not have been self- 
 inflicted, and unless it be of a nature to have destroyed life 
 speedily, (c) Ligatures found on the hands and feet of the 
 body, of course, negative the suppqgition of accident, but 
 often leave the case in doubt between suicide and homi- 
 cide. Qd) Where, however, the ligature is obviously of a 
 kind which could not have been put on by the deceased him 
 self, the case will be placed out of doubt. 
 
 In order to assist inquiry in these cases, Dr. Beck recom- 
 mends attention to the following considerations : — whether 
 the stream in which the body is found is rapid or still 
 water, and whether its banks are precipitous or sliding ; 
 whether the individiial has labored under nearsightedness, 
 vertigo or symptoms of insanity. In some cases, accidental 
 circumstances may clear up the subject ; as the marks of 
 footsteps on the margin of the water, and substances found 
 grasped in the hands of the deceased, (e) 
 
 (fl.) Taylor's Med. Jur. 483. 
 
 (b) Id. 484. 
 
 , (c) Id. ibid. 
 
 (d) 2 Beck's M. J. 283, 284. See supra. 
 
 (e) 2 Beck's M. J. 282. For prominent instances in which appearances of 
 
CHAP. 11.] COEPUS DELICTI. 717 
 
 The last form or mode of death,, which remains to bo 
 considered (o) is that by poisoning., the characteristics of 
 •which distinguish it, at once, from all those which have been 
 mentioned. Instead of resorting to open violence, the 
 poisoner relies upon the arts of deception and secrecy. He 
 never forcibly applies the destructive agent to the body 
 of the subject, with his own hand, as in other cases ; but 
 carefully disguises it under a false appearance, and. thereby 
 induces the subject either to apply it, unknowingly, to him- 
 self, or to suffer it to be applied, without objection. It is 
 applied, moreover, not to the exterior, like other deadly 
 instruments, but to the interior of the body, where it is lost 
 to view, and is, in many instances, never recovered ; and in 
 this secret position it produces its intended effect by its own 
 active qualities, with the least possible amount of visible 
 agency on the part of the criminal. 
 
 The operation of poison, though sometimes very rapid, 
 and even almost instantaneous, is more commonly extended 
 over a considerable length of time, and occasionally over a 
 long space, (i) In many cases, its effects, during life, are 
 with difficulty distinguished from those of natural dis- 
 ease ; (c) and where disease may have actually existed at 
 the time of its administration^ this difficulty is vastly in- 
 creased, (d) Hence,, as already observed, the existence of 
 
 supposed -violence on the body, and the absence of water in the stomatsh, were 
 relied on as evidences of homicide, see the case of Philip Standsfield, 11 State 
 Trials, 1371; and that of Spencer Cowper, 13 Id. 1177; in the former of 
 which, the prisoner was oouyicted, and, in the latter, acquitted. Sec also the 
 New York case of Levi Weeks, March, 1800. These oases are mentioned and 
 commented on by Dr. Beck. Med. Jur. 209. 273, 278. 
 
 (a) As to the proof of a corpus delicti, in oases of infanticide, see Wills, 
 Circ. Evid. 203—208. 
 
 (6) 2 Beck's Med. Jur. 372. 
 
 (c). As to the means of distinguishing between the symptoms and effects of 
 poison and those of disease, see Id. 392—397. Whart. & Stille's M. J. 385 — 
 890, §§ 505— 51,8. 
 
 (d) 2 Beck's M. J. 882. As to the meaos of distinguishing in such cases, 
 see Id. iliid. 
 
718 PROOF OF A [part II. 
 
 an infirm state of health is frequently taken advantage of, as 
 a fitting opportunity for the accomplishment of a murderous 
 design by this means, (a) * 
 
 The first question to be determined in all suspected cases, 
 is, whether the deceased died from the effects of disease or 
 of poison. (&) 
 
 The medical evidence by which the existence of poison, 
 as the cause of a known death, is established, is furnished 
 by circumstances of three kinds, namely, the symptoms 
 observed on the living body, (c) the appearances presented 
 on a, post-mortem examination, (d) and the actual detection 
 of poison in the stomach or intestines, by a chemical analysis 
 of their contents, (e) To this may be added the evidence 
 derived from physical and moral facts of a general char- 
 acter, which is always of the greatest value, and sometimes 
 proves decisive of the case. 
 
 The discovery of poison in the body, by actual chemical 
 examination, and its identification by name as a known sub- 
 stance, (especially if it be found identical with a poison dis- 
 covered in the food or medicine of which the deceased had 
 partaken,) is, of course, conclusive as to the particular means 
 employed, and is, in itself, a fact of the highest impor- 
 tance. (/) " Upon general principles," observes a judicious 
 
 (a) See ante, p. 392. 
 
 (A) Abbott, J. in Rex t. Donnall, Wills, Circ. Evid. 187. 
 
 (c) See 2 Beck's M. J. 374. 
 
 (d) See Id. 397. 
 
 (e) The consideration of these subjects occupies a very large space in most 
 works on medical jurisprudence, including a view of the Tarious known poisons, 
 their ascertained effects upon the human body, the quantities necessary to de- 
 stroy life, and the chemical tests by which their presence may be detected. 
 See Taylor's Med. Jur. 83—168. 2 Beck's M. J. 307—894. Wharton & 
 StilM's M. J. 377—538, book 5, part I. 
 
 (/) See 2 Beck's M. J. 417. For instances in which the existence of poison 
 in the body was most accurately determined by chemical analysis, see the cases 
 of Rex 7. Burdock, Bristol Summer Assizes, 1835; and Regina v. Taieell, 
 Aylesbury Spring Assizes, 1845. Wills, Giro. Evid. 196—203. 
 
CHAP, n,] CORPUS DELICTI. 719 
 
 writer, " it cannot be doubted that courts of law would 
 require chemical evidence of poisoning, wherever it were 
 attainable, and in that case, it would seem but reasonable, 
 in analogy to the general rules of evidence, that it should 
 be of the highest character which the nature of the case 
 admits ; at least, a conviction cannot be satisfactory, if it 
 be grounded upon evidence of an inferior nature, when evi- 
 dence of a more satisfactory character is capable of being 
 adduced." (o) But chemical evidence is not always at- 
 tainable ; nor is it so essential that a case may not be satis- 
 factorily determined without it. (6) If the jury are satisfied 
 from the whole evidence adduced, — the symptoms observed 
 during life, and the appearances presented after death, as 
 reported by the medical witnesses, in connection with other 
 physical and moral circumstances, — that the death was 
 occasioned by poison, it will be sufficient to ground a convic- 
 tion, (c) And it has been observed that the fact that poison 
 was administered can be satisfactorily shown by proof of 
 the potion being given, though there be no post-mortem 
 examination at all. (d) 
 
 Supposing poison to be satisfactorily made out as the 
 means or instrument of death, the next inquiry will be, how, 
 and by whose agency, it came to be introduced into the 
 body ? In determining this, the same counter-possibilities 
 are to be taken into view as in cases of death by the means 
 which have already been considered ; namely, those of acci- 
 dent and suicide, as well as the criminal agency of another. 
 The deceased may have taken the poison, without the inter- 
 vention of any other person ; either by accident, in conse- 
 quence of mistaking it for another substance, or with a 
 suicidal design of destroying life. Instances of death from 
 
 (a) Wms, Cire. Evid. 181. 
 
 (6) Whart. & Stmt's M.J. 707, § 1068. 
 
 (c) See -the observations of Parke, B. in charging the jury, in Rex v. 
 Tawell, uii tupra. 
 
 (d) Whart. & Still^'s M. J. uii tupro. 
 
720 PROOF OP A [part II, 
 
 both these causes are of constant occurrence. Or, if clearly 
 proved to have been administered by another, it may have- 
 been done through mistake, or from ignorance; or erroneous 
 estimate of the properties and.' effects of tho substafice ad- 
 ministered. 
 
 Whether poi'soning has been the result of suicide or homi? 
 cide, is often a very difficult question, and is to be determined 
 by moral considerations almost exclusively ; (iz) such as the 
 previous state of the mind of the deceased, his situation and 
 circumstances ; his manner and conduct during the illness 
 produced by the poison, and his relation to, or connection 
 with others who may have had an interest in his death. (6) 
 Physical circumstances, however, are sometimes found to 
 render important aid in determining the question ; such as 
 the position of the body, and of objects near it or in contact 
 with it. In cases where a liquid (such as prussic acid,) 
 ascertained to have been swallowed by the deceased, is of 
 so dieadly a nature as to be capable of almost instantly de- 
 stroying life, it has been, supposed that the circumstances of 
 the phial from which it has been drunk, being found corked, 
 by the side of the bed on which the body lies, and of the 
 bed-clothes being carefully drawn up about the person, went, 
 of themselves, to exclude the supposition of suicide ; on the 
 ground that the individual would not, after taking the poison, 
 have the power to make such a. disposition of the articles 
 with his own hands. But the existence of such power, 
 thougli highly improbable, has been admitted by medical 
 witnesses to be possible, (c); The finding of a part of the 
 poison in the room or in the pockets of the deceased, is con- 
 sidered a very equivocal proof of suicide, since it may quite 
 as easily be put there by others as by himself. But the 
 finding of a writing, left by him, to express his last wishes, 
 
 (a) 2 Beck'3 Med. Jar: 890. 
 
 (6) Id. quoting Fodcr^, vol. 4, p. 248. 
 
 (c) See Wills, Giro. Evid. 174. 
 
CHAP. II.] CORPUS DELICTI. 721 
 
 or ta explain the reason of the act (and which may be 
 classed among physical as well as moral circumstances,) as 
 it is the most common, so it is also the most certain proof 
 of self-destruction, (a) 
 
 In many cases of criminal charges, the evidence which 
 serves to prove the corpus deticti, is composed of a different 
 class of facts from those which serve to identify the par- 
 ticular criminal agent ; so that the proof may, without much 
 difScnlty, be divided into two successive stages, correspond- 
 ing with these two leading facts. But in cases of poisoning, 
 this distinction or separation does not often exist ; and it is 
 rarely possible to obtain proof of a corpus delicti, without 
 resorting to evidence of moral conduct and circumstances, 
 on the part of the individual who is charged with the 
 crime ; (6) such as previous allusions to the death of the de- 
 ceased as an event likely to happen, the possession of a 
 poison similar to that proved to have been taken, or of the 
 means of preparing such a poison, and acts of suppression 
 or destruction of evidence, after the death had occurred. 
 This was well illustrated by the case of Donellan^ which 
 has already been examined, (c) 
 
 But whether a corpus delicti be capable of 'proof on a 
 distinct ground, or not, it will be found that in the applica- 
 tion of the evidentiary facts to charges of poisoning, the 
 same great fundamental principle of circumstantial evidence 
 is as strictly adhered to, as in the process of identifying the 
 criminal. No single fact is taken as conclusive evidence 
 of guilt itself, but the opinion of the jury is made up from 
 a view of all the facts, taken together, (d) And this 
 
 (a) 2 Beck's M. J. S91. 
 
 (i) See Wills, Giro. Evid. 192. 
 
 (c) See ante, pp. 603—620. 
 
 (d) In the Pennsylvania case of Commonwealth v. Chapman, one of the 
 medical witnesses declared' that his own opinion,, that the death of the deceased 
 had been caused by poison, was mode up from the amount of moral prob^ 
 bilities in the case, any one proof not being sufficient. Celebrated Trials, 365. 
 
722 PBOOP OP A [part II. 
 
 may be laid down as a rule of general application to all cases 
 of crime, where the evidence is not of that cogent descrip- 
 tion known as certain, which, by its own force, necessarily 
 excludes all conclusions but one. (a) 
 
 II. Corpus Delicti in other Crimes, 
 
 The proof of a corpus delicti in other cases than those 
 of homicide, involves the consideration of a much smaller 
 number of particulars, and may be conveniently disposed of 
 under a single head. 
 
 In arson, the corpus delicti consists essentially of the 
 fact that the subject, — the building burned — was intention- 
 ally fired by some responsible agent. The facts which con- 
 stitute its basis, — namely, those of a burning, and the 
 identification of the particular building, — are always easily 
 proved, and never (as in cases of homicide,) raise a ques- 
 tion. But the fact of burning is always liable to the possi- 
 bilities and consequent suppositions of accident and natural 
 causes ; which must be satisfactorily excluded before the 
 proof of a corpus delicti can be considered as complete. 
 This may be done by means of facts independent of those 
 which go to criminate the accused. As where the fire is 
 extinguished soon enough to show the means and materials 
 of combustion, arranged in a manner precluding any other 
 supposition than that of design. Or, where the burning has 
 been so complete that no traces of the means are left, the 
 fact of design may be proved by circumstances going to 
 exclude the possibility of the existence of other causes. 
 As where the building was wholly unoccupied at the time ; 
 or where all means of communicating fire were habitually 
 excluded from it ; as where no fires, lights or lighted sub- 
 
 (u) As where a wound is found to have been inflicted on the body, in such a 
 manner and upon such a part as to exclude at once both the suppositions of 
 accident and suicide; thus completing the proof of a corpus delicti, without 
 any further evidence. See ante, pp. 692, 703. 
 
CHAP, n.J CORPUS DELICTI. 723 
 
 Btances were kept or allowed to be used in it. (a) Or 
 where the fire was seen to break out in diflferent parts of the 
 building at the same moment. Or the same fact may be 
 shown by evidence that a person (not yet identified as the 
 accused,) was seen to enter or leave the building, after it 
 had been closed, or while it was unoccupied, shortly before 
 or about the time when the fire was discovered, (b) 
 
 In rape, the corpus delicti consists of the fact that the 
 person of the complaining party has been forcibly violated. 
 The facts which go to show the commission of this offence, 
 as distinguished from those which connect the accused with 
 it, as the perpetrator, consist of appearances on the person 
 and clothing of the female, a description of which may be 
 found in the works on medical jurisprudence already quo- 
 ted, (c) The counter-possibilities which require to be ex- 
 cluded in these cases, are, that the appearances observed 
 may be the result of fraudulent fabrication, or of disease : 
 the tests for determining which may also be found in the 
 works just referred to. (d') 
 
 In burglary, the evidence of a corpus delicti, or the fact 
 that the building has been burglariously entered by some 
 one, as distinguished from that of those which serv? to 
 identify the offender, consists of the marks of violence 
 observed upon the doors, windows, &c. or of the removal 
 (without physical fracture,) of the usual securities, and of 
 displacement and disorder among articles in the interior, as 
 indicating a forcible entry. The possibility of accident, as 
 
 (a) Xhe possibility of the spontaneous combustion of articles kept or stored 
 in the building, and of the communication of fire by the agency of animals, 
 Buch as rats and mice, should, of course, be taken into view. 
 
 (6) It is remarked by a Scotch writer, that the proof of the corpus delicti 
 in wilful fire-raising, is generally mixed up with that which goes to fix guilt 
 upon the prisoner. Alison's Princ. of the Crim. Law of Scotland, ^44; cited 
 in Rosooe's Crim. Evid. 276. 
 
 (c) See Taylor's Med. Jur. 448—458. Wharton & StUM's M. J. 326—358, 
 §§ 426—472. 1 Beck's Med. Jur. oiiap. 5. 
 
 (d) Id. ibid. 
 
724 PBOOP OP A [part ii. 
 
 the cause of these appearances, is, from the nature of the 
 case, almost necessarily excluded. And the only counter- 
 possibility material to be considered is, whether these marks 
 may not hare been simulated or fabricated by some inmate 
 or occupant of the building ; as has occurred in some cases 
 of murder and robbery, where the criminal has adopted this 
 course, in order to avert suspicion, (a) The peculiar ap- 
 pearances which the marks in such cases, are, on a close 
 examination found to present, and the absence of all traces 
 of the presence and movement of persons on the outside of 
 the building, generally serve to expose such frauds with 
 effect. (6) 
 
 In robbery and larceny, the essence of the corpus delicti 
 is that the property claimed to have been stolen has been 
 feloniously taken out of the prosecutor's possession. Sup- 
 posing the property to be simply missed by the owner, the 
 case is open to the supposition of several counter-possibilities. 
 Thus, it may have been the result of accident, as where it 
 has been hst, in the ordinary sense of the word, that is, (iu 
 the case of an inanimate object,) casually dropped from the 
 person. Or it may have been the result of the act of the 
 ow^r himself; as where it has been mislaid and forgotten. 
 And, in both these cases, there may be no transfer of posses- 
 sion to any human being, (the article remaining where it 
 was dropped or laid ;) and, in the last case, not even a 
 removal out of the owner's possession, (c) Again, if actu- 
 ally transferred to the possession of another, it may have 
 been through accident, (the possession also being an uncon- 
 scious one ;) as where it has been effected by the agency of 
 an animal, or in consequence of the article adhering closely, 
 and in such a way as to escape observation, to another 
 article intentionally transferred. Lastly, supposing a tak- 
 
 (a) See the oaae of Regina v. Courvoisier, cited, ante, pp. 423, 424. 
 
 (A) See the same case. 
 
 (c) See the ease of Rex v. Carter, ante, p. 654. 
 
CHAP. 11.] CORPUS DELICTI. 725 
 
 ing or possession by another, the article may have been 
 honestly found, or it may have been unintentionally taken 
 through mistake ; or taken, if intentionally, under some 
 claim of right, or for some innocent purpose ; and thus may 
 be satisfactorily" proved to have been no robbery or larceny 
 at all. (a) 
 
 It is not always (or, rather it is rarely) possible to prove 
 the general fact of a felonious removal out of the possession 
 of the owner or claimant of the property, with much dis- 
 tinctness from the particular fact of a felonious acquisition 
 by the individual who is accused. But some evidence of 
 such preliminary fact is always required. Thus, on an in- 
 dictment, in England, for stealing a horse, the prosecutor 
 proved that he had put the horse, to be agisted, with a per- 
 son who resided twelve miles distant from his own residence, 
 and, in consequence of hearing of its loss from that person, 
 he went to the field where the horse had been put, and dis- 
 covered that it was gone. But Gurney, B. was of opinion 
 that the loss should be proved more distinctly ; because non 
 conctat but the prisoner might have obtained possession of 
 the horse honestly. He could not see how the court could 
 get at that, without the person with whom- it was put to 
 agist, or his servant. It was perfectly consistent with what 
 had been proved, that the horse might have got out of the 
 person's possession in some other way, and not by felony. (6) 
 So, where, on a similar indictment, it appeared that a serv- 
 ant was sent to turn out a horse in a field, and was sent to 
 fetch it up again the next morning, when it was missed ; 
 but the servant was not called as a witness, and the prisoner 
 was found in possession of the horse the next day ; it was 
 held that there was not sufficient proof given of the loss, 
 and that the servant ought to have been called to prove 
 what he did with the horse ; as, for anything that appeared 
 
 (a) And see further on this head, ante, p. 561. 
 (6) Hex v. rend, 6 Carr. & P. 176. 
 
726 PROOF OP A COEPUS DELICTI. [PART II. 
 
 to the contrary, the servant might have delivered the horse 
 to the prisoner, (a) The same views have been held in 
 some American cases. (6) 
 
 In forgery, the corpus delicti consists of the fact that the 
 writing produced and exhibited on the trial, is a forged 
 writing, or, in other words, that it is not the writing of the 
 party by whom it purports to have been made, or that it is 
 not the writing of any real person at all. (c) In the former 
 case, the forgery may be proved by the testimony of the 
 party himself ; but the rule on this point is not uniform, (d) 
 In the latter it is proved by showing that no such person 
 exists, (e) 
 
 (a) Rex V. Fellows, MS. 2 Russell on Crimea, (by Greaves,) 122. 
 
 (b) Tyner V. TOe Sia/c, 5 Humphreys, 383. Carey y-.The 8tate,7 Id. 4S9. 
 
 (c) 2 Stark. Ev. 575. Rosooe's Grim. Evid. 508. 
 
 {d) This is now the rule in England, by statute 9 Geo. IV. e. 32. s. 2; pre- 
 -vious to which, the party was held to be an incompetent witness. Roscoe's 
 Crim. Evia. 141. 2 Stark. Evid. 583. 2 Russell on Crimes, 392, (Phil. ed. 
 1853.) In Connecticut and in North and South Carolina, the rule is the 
 same as in England before the statute. The State v. Branson, 1 Root, 307. 
 The State V. Bloilgett, Id. 534. The State v. Hamilton, 2 Hayw. 288. The 
 State T. Stanton, 1 Iredell, 424. The State v. Whilten, 1 Hill, 100. In 
 Maine, New Hampshire, Vermont, Massachusetts, Pennsylvania, and Ohio, the 
 rule is in favor of the party's competency as a witness. The State v. Shurt- 
 liff, 18 Maine, (6 Shepley,) 368. Furber v. Hilliard, 2 N. Hamp. 481. 
 The State v. Phelps, 11 Vermont, 116. Commonwealth v. Hutchinson, 1 
 Mass. 7. Commonwealth v. Snell, 3 Id. 84. Commonwealth v. Peck, 1 
 Metoalf, 428. Pennsylvania v. Farrell, Addison, 246. Respublica v. Keat- 
 ing, 1 Dallas, 110. Respublica v. Boss, 2 Id. 239. S. C. 2 Yeates, 1. Resp. 
 Y. Smith, and Resp. v. Sheppard, oited 2 Dallas, 240. S. C. 2 Yeates, 4. 
 Simmons v. The State, 6 & 7 Ohio, (Hammond,) 288. In New York, the 
 Supreme Court, in 1794, adopted the English rule. But in The People v. 
 Howell, 4 Johnson, 296, the propriety of the rule was questioned, and it may 
 now be considered as settled in fevour of the party's competency. l%e People 
 y. Dean, 6 Coweu, 27. 
 
 (e) 2 Stark. Evid. 575. 
 
Ci 
 
 CHAPTER. III. 
 
 Rules op Circumstantial Evidence, given as eesults op 
 the preceding views. 
 
 From the views which have been presented in the pre- 
 ceding pages, of the nature and operation of circumstantial 
 evidence, the fundamental principles upon which it is ap- 
 plied to the development of the truth of criminal charges, 
 will have been sufficiently understood, without the necessity 
 of any further statement or formal repetition of them. 
 But the rules which have, from time to time, been established 
 or recognized by the courts, for controlling and limiting its 
 application in practice, with the view of avoiding the errors to 
 which, as a medium of proof, it had, from experience, been 
 found to be liable, may now be summarily and more dis- 
 tinctly stated in the form of general results, as an appropri- 
 ate conclusion to the whole work. 
 
 These rules may be conveniently arranged under four 
 divisions : first, general and preliminary rules ; secondly, 
 rules regulating the formation of the basis of fact, from 
 which the inference of guilt is to be drawn ; thirdly, rules 
 of inference from the basis of fact as established ; and 
 lastly, rules for securing correctness in the final and general 
 conclusion. 
 
728 RULES OF [PAET 11. 
 
 SECTION I. 
 
 GrEJNEBAL AND PrELIMINAET RULES OP EVIDENCE. 
 
 Rule I. 
 
 The onus of proving every thing essential to the estab- 
 lishment of the charge against the accused, lies on the 
 prosecutor, (a) 
 
 This rule has been otherwise stated thus : — " The burthen 
 of proof is alwajs on the party who asserts the existence of 
 any fact which infers legal accountability." (6) It is a uni- 
 versal rule of evidence, founded on the most obvious prin- 
 ciples of justice and policy, and derived from the great fun- 
 damental maxim of law, that every person must be presumed 
 innocent until proved to be guilty, (c) 
 
 The learned writer in whose words this rule has beea 
 given, in commenting upon it, observes, that " it is, in gene- 
 ral, sufficient to prove a prima facie case ; " (rf) and quotes 
 the remark of Beccaria, that " imperfect proofs from which 
 the accused might clear himself, and does not, become per 
 feet." (e) This is presenting the rule in its preliminarj 
 character of prescribing the foundation of the proof to be 
 made in the case. Undoubtedly, the non-production of ex- 
 planatory evidence, clearly in the power of the accused, 
 
 (a) Best, on PreS. § 200, Rule I. Rex v. Burdett, 4 B. & Aid. 140, 149 
 Theory of Pres. Proof, 57. 
 
 (6) Wills, Giro. Evid. 145, Rule 11. 1 Greenl. Eyid. part 2, o. S. 
 
 (c) Best on Pres. ubi supra. 
 
 (rf) Id. ibid. 
 
 (c) Id. citing Beooaria, s. 7, [chap. 14, .American translation.] 
 
CHAP. III.] CIRCUMSTANTIAL EVIDENCE. 729 
 
 must weigh against Mm : and the rule has been stated with 
 this addition by an American writer on criminal law. ^a) 
 Where . a case, as made out in the first instance, raises a 
 presumption of guilt of a very strong character, and the 
 accused does nothing to remove or weaken it, and it is 
 apparent that, if innocent, he could have done so, the pre- 
 sumption may be allowed to prevail against him. (6) But 
 the rule, in its terms, goes beyond the mere foundation of 
 the proof, by requiring proof to be made of every thing 
 essential to the establishment of the charge ; thus placing 
 the case where it undoubtedly ought to rest, — upon the 
 intrinsic strength of the affirmative evidence, rather than 
 on the weakness or absence of evidence to the contrary. 
 " The burden of proof," as the rule has been stated by a 
 learned judge in an important American case, " lies on the 
 accuser, to make out the whole case by substantive evi- 
 dence." (c) 
 
 " The operation of this rule," observes an English writer, 
 " may, to a certain, extent, be modified by circumstances 
 which create a counter obligation, aud shift the oriMS pro- 
 bandi. 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. It is therefore a 
 qualification of the rule in question, that, in every case, the 
 onus probandi lies on the person who is interested to sup- 
 port his case by a particular fact which lies more particu- 
 -^. ~- — — — ■ % 
 
 (a) Wharton's Am. Grim. Law, 347, (ed. 1855.) 
 
 (6) See ante, p. 165. 
 
 (c) Shaw, C. J. in Commonwealth v. Webster, Bemis' Keport of Trial, 467. 
 And see the opiniona of the judges of the King's Bench, in Rex v. Burdett, 4 
 B. & A. 95. See also, the opinion of Shaw, C. J. in Commonwealth t. Zim- 
 ball, 24 Pick. 366, 378. . 
 
730 RULES OF [part II. 
 
 larly within his own knowledge, or of which he is supposed 
 to be cognizant." (a) 
 
 Rule II. 
 
 In all cfises, the best evidence must be adduced, which 
 the nature of the case admits. (6) 
 
 This is another general rule, equally applicable to cases of 
 direct and circumstantial evidence ; and is a branch of the 
 general principle that the suppression of pertinent evidence, 
 by a party who has it in his power to produce it, raises a 
 presumption against him and throws discredit on the evi- 
 dence which he offers, (c) It is particularly applicable to 
 circumstantial evidence of the presumptive kind, (d) and 
 has been otherwise expressed in the following terms: 
 " Presumptive evidence ought never to be relied on, when 
 direct testimony is wilfully withheld." (e) It is applicable 
 moreover, not only to the principal fact which is proposed 
 to be proved, but to all the evidentiary facts which may be 
 used as means for that purpose ; and hence has been ex- 
 pressively called " the master rule which governs all the 
 subordinate rules." (/) 
 
 It is considered as a consequence of this rule, that in all 
 criminal cases, evidence should be received with distrust, 
 whenever any considerable time has elapsed since the com- 
 
 (a) Wills, Giro. Evid. 145, citing the opinions of the judges of the K. B. in 
 Rex V. Burdett, uhi supra. 
 
 (i) Wills, Giro. Evid. 147; Rule in. 
 
 (c) Id. ibid. Best on Pres. § 214. 
 
 (d) See ante, p. 225. 
 
 (c) Best on Prea. § 214; Rule V. 1 Stark. Evid. 576, [515.] Theory of 
 Pres. Proof, 62. 3 Benth. Jud. Evid. 230. 2 Evans' Pothier, 340. 
 (/■) Wills, Giro. Evid. 148; quoting Burke's Works, vol. 2, p. 618. 
 
CHAP. III.] CIECUMSTANTUL EVIDENCE. 731 
 
 mission of the alleged offence, (a) There are, however, 
 several cases on record, in which very satisfactory proof of 
 guilt has been made, after the lapse of long intervals. (6) 
 
 SECTION II. 
 
 Rules eegtjlating the poemation op the basis of peoop, 
 ob peesentation op the evidence op the facts peom 
 which the inpeeence op guilf is to be deawn. 
 
 Rule I. 
 
 The facts proposed to be proved must be the genuine 
 facts of the case, (c) 
 
 It is hardly necessary to remark that, in order to the at- 
 tainment of any true conclusion in matters of evidence, the 
 premises from which it is proposed to be drawn must them- 
 selves be true, or free from corruption and error. The two 
 great sources of error to be guarded against, by the judicial 
 investigator, in laying the foundation of his proposed conclu- 
 sion or verdict, are, first, the wilful fabrication of facts, or 
 simulation of physical appearances, by guilty parties, with 
 the express object of misleading the senses and the judg- 
 ment of observers ; and, secondly, the alterations which 
 genuine facts of the physical class sometimes undergo, 
 
 (a) Id. ibid. Best on Pres. § 200, p. 268. 
 
 (A) Id. ibid, note (i/). 
 
 (c) Ante, pp. 189, 110. As to genuine facts, see ante, pp. 131, 221. 
 
732 RULES OP [PAET II. 
 
 either from pure accident, or from the inadvertent conduct 
 of observers themselves. Both these subjects having al- 
 ready been dwelt upon at considerable length, (a) it will 
 only be necessary to add, that fabrication of facts may gene- 
 rally be detected by a rigid scrutiny of the facts themselves, 
 and by a careful comparison of them with other proved 
 facts of the case ; (b) and that the alteration of facts may 
 be guarded against, and almost entirely prevented by early, 
 minute and thorough observation of the scene and subject 
 of the crime,. with an express view to the giving of evidence, 
 and by the exclusion of the physical objects and appearances 
 discovered, from careless and indiscriminate contact with 
 merely curious observers., (c) 
 
 Rule II. 
 
 As many of the germine facts of the case should be pre- 
 sented, as may he possible. 
 
 The importance of presenting to a jury as many of the 
 constituent facts of a case .under investigation, as possible, 
 and thereby identifying the case, as shown in evidence, with 
 the case as it actually occurred, has already been sufficiently 
 dwelt upon, (d) The absence of facts, and the want of pos- ' 
 session of all the facts, have also been mentioned as sources 
 of error in the impressions and conclusions both of witnesses 
 and jurors, and as means of frustrating investigation altogeth- 
 er, by preventing the attainment of any conclusion, (e) That 
 the probative force of a body of evidentiary facts increases 
 
 (a) Ante, pp. 181, 140, 238, 420. 
 (6) Ante, pp. 142, 148. 
 
 (c) Ante, pp. 140—142. 
 
 (d) Ante, pp. 138, 139 
 
 (e) Ante, pp. 30, 106, 
 
CHAP. in.J CIRCUMSTANTIAL EVIDENCE. 733 
 
 (and that in a progressive ratio,) with the number of the 
 facts proved, has likewise been explained, (a) But the rule 
 is to be taken with the qualification, that where the facts are 
 proved by the testimony of one witness only, addition to the 
 number of facts adds no force to the evidence. (6) 
 
 EULE III. 
 
 The evidentiary facts must all be proved, and the exist- 
 ence of none of them can be presumed, (c) 
 
 This is a fundamental rule, applying without variation to 
 all the elementary facts of which the basis of the evidence 
 is composed. So far as they are concerned, presumption 
 cannot be made the ground of presumption. This would 
 be extending the principle of induction or inferefice far 
 beyond its legitimate limits, and lead to an endless multipli- 
 cation of the sources and chances of error. The juror is 
 allowed, from the necessity of the case, to draw his coqcIu- 
 sion from facts, by a presumptive process, but the facts them- 
 selves must be proved in the strict sense ; that is, they must 
 be. shown to be true by the testimony of witnesses under 
 whose observation they have actually and directly fallen, (d) 
 This rule, however, does not prevent the deduction of the 
 factum probandum, in the way of inference, from leading 
 facts which have themselves been established by inference 
 from the proved elementary facts of the case. 
 
 (a) Jnte, pp. 156, 157. 
 
 (6) Theory of Pres. Proof, 57. Beaton Pres. § 188. 
 
 (c) Theory of Pres. Proof, 57. 1 Stark. Evid. 502. 
 
 (d) See ante, pp. 136, 137. 
 
734 RULES OP [PABT H. 
 
 SECTION III. 
 
 Roles op inference, bt which the factum probandum 
 is deduced, in the first instance, from the evidenti- 
 aby facts proved. 
 
 Rule I. 
 
 There must be clear and unequivocal proof of a Corpus 
 Delicti, (a) 
 
 This rule, the observance of which is indispensable in 
 all criminal cases, is a rule prescribing the order of the pro- 
 cess of inference, or of the facts to be inferred, rather than 
 the manner of the process itself. (6) The fact that a 
 crime hais been committed being an essential preliminary to 
 the consideration of the fact or proposition that the accused 
 committed it, the proof (so far as an actual separation of its 
 elements is practicable, (c)) must be made in a correspond- 
 ing order. The corpus delicti- is the first leading fact, the 
 existence of which requires to be established by means of 
 the evidentiary facts proved ; and may be considered as oc- 
 cupying an interi|iodiate position between' those facts and 
 the great ultimate factum probandum of the case, (d) So 
 far as its particular and immediate basis is concerned, it 
 is required, as we have seen, to be proved by direct evi- 
 dence, or by circumstances of equal power ; but the pre- 
 
 (u) Best on Pres. § 201, RulelL 1 Stark. Evid. 510. Theory of Pres. 
 Proof, 57. Wharton'a Am. Crim. Law, 347. 
 
 (i) Mr. Wills, instead of making this a distinct rule, considers it as a ne- 
 cessary consequence of Rule I, Section I. Cire. Evid. 147. 
 
 (c) See ante, p. 583. 
 
 (d) In another view, it may be considered as constituting a part of the 
 factum probandum itself. See ante, p. 588 
 
CHAP. III.] CIRCUMSTANTIAL EVIDENCE. 735 
 
 sentatioa of it, as a complete fact, before the jury, is effected 
 to a great extent by the infereatial process, (a) 
 
 Rule II. 
 
 The facts alleged as the basis of any legal inference, 
 must be strictly and indubitably connected with the 
 factum probandum. (6) 
 
 Mr. Wills has given to this rule the prominent position of 
 the iirst rule of induction from circumstantial evidence, (f) 
 But it rather seems to embody an essential principle of the 
 inductive or inferential process itself, (d) The whole pro- 
 cess of presumption is one of connecting the evidentiary 
 facts with the principal fact, founded on previously observed 
 connections between facts standing in a similar relation ; 
 and so far as this connection fails to be made out, the evi- 
 dence fails of its intended object. This whole subject has 
 already been considered at length, (e) 
 
 Rule III. 
 
 The hypothesis of delinquency or guilt should flow nalvr 
 rally from the facts proved, and be consistent with 
 them all. (/) 
 
 By this rule, the attainment of three important objects 
 (all of them indispensable conditions of accuracy in the con- 
 
 (a) See the subject fiiUy considered, ante. Section VI. 
 (6) Wills, Giro. Evid. 136. 
 (c) Id. ibid, et seq. 
 
 (rf) Mr. Best has not mentioned it among his rules, 
 (e) See ante, pp. 151, 630. 
 
 (/ ) Best on Pres. § 212, Rule IV. 1 Stark. Evid. 561, 573, [505] . Theory 
 of Pres. Proof, 63. 
 
736 BULBS OP [part ir. 
 
 elusion proposed,) is secured ; namely, an examination of al« 
 the facts of tlie case ; an examination of. them, free from 
 bias or prejudice ; and an examination of the case on both 
 its sides, or in its aspects &f favor as ■well as disfavor to the 
 accused. Its practical effect is to prevent precipitancy in 
 the inferential process, and to combat what is often the 
 tendency of the mind to jump at conclusions, when under 
 the influence of impressions derived from a few prominent 
 facts, without examining all the facts of the case, and 
 allowing them every interpretation which they will reason- 
 ably admit, (a) The process is to be a natural oile, with- 
 out the use of any mental violence, in straining facts beyond 
 their real significance, or adapting them, in any degree, to 
 preconceived opinions, (fr) By requiring the hypothesis of 
 guilt to be consistent with all the facts, the rule secures to 
 the proposed conclusion an essential element of truth, while 
 allowing all due weight to the supposition of possible error ; 
 and prominently recognizes the existence of that opposite 
 side (^eontrarium,') which is contemplated and embodied in 
 the great fundamental maxim of presumption from facts, (c) 
 The result of the whole is, that if any of the facts or cir- 
 cumstances established in evidence, be absolutely inconsist- 
 ent with the hypothesis of the guilt of the accused, that 
 hypothesis cannot be true, (d) 
 
 (a) See anic, p. 206. 
 
 (4) See ante, p. 195. 
 
 {c) See ante, p. 152. 
 
 (cf) Best on Pres. § 212. 1 Stark. Evid. 660, 661. [606.] 
 
CHAP, in.] CIECUMSTANTIAL EVIDENCE. 737 
 
 SECTION IV. 
 
 Rules for the more certain attainment op truth in 
 the conclusion or verdict, and for the avoidance 
 op error and consequent injustice to the accused. 
 
 Rule I. 
 
 Tlie evidence against the accused must be such as to ex- 
 clude, to a moral certainty, every hypothesis but that 
 of his guilt of the offence imputed to him. (ai) 
 
 This rule has been otherwise stated in the following terms : 
 '• In order to justify the inference of legal guilt from circum- 
 stantial evidence, the existence of the inculpatory facts must 
 be absolutely incompatible with the innocence of the accused, 
 and incapable of explanation upon any other reasonable 
 hypothesis than that of his guilt." (6) 
 
 This is the great test rule of all presumptive proof ; com- 
 pleting the effect of all the rules which have been mentioned, 
 bringing out the peculiar force of the evidence, and securing 
 its effectual operation in the development of truth in the par- 
 ticular case to which it is applied. 
 
 By the last rule of the preceding section, which may be 
 considered immediately preliminary to this, all the elements 
 and conditions for raising and framing a reasonable presump- 
 tion or hypothesis from facts, are provided for. The hypo- 
 thesis of guilt is to be compared with the facts proved, and 
 with all of them ; and if it bo found consistent with them 
 all, and accounts for their existence, it is reasonable to 
 adopt it as a true hypothesis. 
 
 (a) Best on Prea. § 210, Rule III. 1 Stark. E-fid. S77. [510.] 
 (i) Wills, Giro. Evid. 149, Rale IV. 
 
738 RULES OF [part II. 
 
 But this, however important and necessary a step in the 
 process, is only apreliminary and provisional one. Itis known 
 from experience, that the facts of cases are sometimes capable 
 of explanation upon more than one hypothesis : or, in other 
 words, that there is more than one hypothesis which will 
 reasonably account for their existence. The great object of 
 the present rule is to ascertain whether such a state of 
 things exists in the case under investigation, and to guard 
 against its possible consequences ; and it does this by fixing 
 the grade of the belief or persuasion which is to be the 
 immediate basis of the verdict, and requiring that it shall 
 possess the quality of moral certainty. Now, as long as 
 there is a single other hypothesis besides that which the 
 mind, in the first instance, inclines to adopt, which will ac- 
 count for the facts proved, and therefore may be true, as 
 ■well as the first one, it is obvious that this moral certainty, 
 which is in its nature exclusive, cannot exist. Under this 
 rule, therefore, other hypotheses besides that which coincides 
 with ihQ factum probandum,. (ihaX is, other hypotheses pro- 
 ceeding upon the general idea of the innocence of the ac- 
 cused,) must be sought for, and individually compared with 
 all the facts proved, and rejected or excluded, as incom- 
 patible with them, before the hypothesis of guilt is to be 
 adopted, and the factum probandum held as conclusively 
 proved, (a) 
 
 The last rule provided for the consideration of the oppo- 
 site or defensive side of the case, so far as proved facts are 
 concerned, by giving to facts inconsisient'witn the hypothe- 
 sis the effect of preventing its adoption in the first instance. 
 But the present rule goes much farther, and provides for a 
 much more thorough and searching exploration of the oppo- 
 site side of the case, by taking in not only proved facts, but 
 possible hypotheses of facts, as elements to be weighed 
 against the affirmative hypothesis, even after it may have 
 been provisionally adopted as true. 
 
 (a) See this process more partipulnrly described, ante, pp. 183 — 192- 
 
CHAP. III.J CIECDMSTANTIAL ETIDENCB. 739 
 
 Rule II, 
 In cases of ddubt, it is safer to acquit than condemn, (a) 
 
 Tke object and operation of the preceding rule are to fix 
 the degree of strength and impressiveness, which the con- 
 clusion arrived at from the evidence, should possess with the 
 jury, by requiring it to be free from any admixture of reason- 
 able doubt in their minds. The present rule goes still 
 farther, and gives express practical effect to the same requi- 
 sition, by declaring the course which the juror 'should take, 
 and is bound to take, in case the contingency of reasonable 
 doubt should occur. It is the crowning rule of the whole 
 series, and while it certainly implies and admits the insuffi- 
 ciency of presumptive evidence as a means of detecting and 
 punishing guilt in all cases, (for it doubtless sometimes hap- 
 pens that the fact of guilt may, as an absolute truth, be clear, 
 even in cases of seeming uncertainty,) amply compensates 
 for such disparaging admission, by providing, as far as human 
 rules can provide, against the possibility of such evidence 
 ever being used as a means of oppressing and punishing 
 innocence. 
 
 (a) Best on Pres. § 215, Rule VI. Mr. Wills' statement of the rule is 
 much less concise. Circ. Evid. 153, Bale Y. 
 
INDEX. 
 
 ABSENCE of accused, aa corresponding with the iime of oommiaslon of a 
 crime, 379, 384. 
 of blood where a body is found, 687. 
 of emotion on arrest or accusation, 522, 523. 
 of facts in evidence, a source of uncertainty and failure of proof, 
 
 30, 106, 219, 221. 
 of foot-prints on the outside of a house, 266. 
 of motive to the commission of crime, 318 — 316. 
 of weapon or means of death, as indicative of homicide, 688, 696, 
 698, 701. 
 ABSOLUTE certainty unattainable by moral evidence, 40, 197; to be ap- 
 proached as nearly as possible, 197. 
 form of the facts of a case, 584. 
 presumptions, 46. 
 
 truth not attainable by presumption, 20. 
 ABSTRACT ideas, not the materials of evidence, 196. 
 formulae of evidence, impracticable, 197. 
 possibility of error, no reason for failure to convict, 205. 
 ACCESS to a, dwelling-house, means of to be considered, 185. 
 ACCIDENT, as a cause of physical coincidences, 172, 174, note. 
 
 as a cause of death, 684 ; from contused and lacerated wounds, 
 688; from incised wounds, 693; from punctured wounds, 
 699; from gun-shot wounds, 700; from hanging, 708; from 
 drowning, 711 ; from poisoning, 719. 
 assigned as a cause of death, 491. 
 appearances of, fabrication of, 422, 692. 
 as a source of motive to crime, 300. 
 as a source of opportunity for crime, S55. 
 as a cause of transfer and possession of property, 560, 563, 
 724. 
 ACCIDENTAL burning, 707. 
 drowning, 708. 
 banging, 711. 
 
742 INDEX. 
 
 ACCIDENTAL poisoning, 719. 
 
 wounding, 693, 699, 700. 
 ACCOUNTING for existence of appearances or facts, process of, 151, 629. 
 
 by the hypothesis of guilt, 151, 189, note (A) 
 by counter hypotheses, 188. 
 ACCOUNTS of the cause of a death, various. Improbable and inconsistent, 
 given by an accused, 433, 460, 491, 492, 494, 619; inflr- 
 mative considerations applicable to, 467. 
 of the manner of death, given by an accused, 460, 491, 492 
 493. 
 ACCUMULATION of probabilities in circumstantial evidence, 176, and note (o) 
 ACCURACY of observation, on what dependent, 103. 
 
 essential in examining appearances presented by 
 a dead body and neighboring objects, 140. 
 ACCUSATION, silence under, 480; infirmative considerations, applicable to, 
 
 574. 
 ACCUSED character of, as an exculpatory circumstance, 524; as a crimina- 
 tive circumstance, 533. 
 conduct of, before crime, 343, 351, 359. 
 
 after crime, 402, 420, 457, 459, 465, 469. 
 company of, with deceased, 376. 
 connections of, with the ofEence charged, 263. 
 demeanor of, during trial, 502. 
 , language of, before crime, 280, 331, 335, 338, 340. 
 
 ■ after crime, 429, 430, 433, 459. 
 
 peculiarities about person of, 259. 
 presence of, at scene of crime, 368; inferred, 379. 
 presumption in favor of, 58, 119. 
 proximity of, to scene or subject of crime, 368. 
 ACQUITTAL of accused, the proper cpurse in cases of doubt, 789. 
 ACTA exteriora indicant interiora secreta, 297. 
 ACTUS nonfacit reum, nisi mens sit rea, 284, note (A); 297. 
 ADEQUACY of motive, 316—318, 
 ADVANTAGES of direct evidence, 227, 228. 
 
 of circumstantial or presumptive evidence, 227, 228. 
 ADVERSE view of circumstantial evidence, 208, 209 ; its beneficial effects, 
 
 236. 
 AFFIRJIATIVE hypothesis, 119; 146, note (o), 175; as accounting for ap- 
 pearances of facts, 151, 189, note (i). 
 quality or force of circumstantial evidence, 175. 
 AGENCY, of animals in transferring property, 562. 
 
 criminal, as the cause of death, 682; creation of appearances of 
 other persons , 423. 
 " AGENT," as including animals, 147, note (a). 
 AGITATION of criminal, on returning from scene of crime, 382. 
 
INDEX. 743 
 
 AGITATION of accused, during the process of investigation, 466. 
 
 on arrest, 476; ontward marks of, 476; exhibited by 
 innocent persons, 477; extreme, 477; infirmative 
 considerations applicable to, 571. 
 on seeing the dead body, 479; infirmative considera- 
 tions, 568. 
 AGGREGATION of circumstances into a body of evidence, 584. 
 
 of several presumptions into one, 152, 168, 176. 
 ALARM, as the object of threats, 841. 
 given by animals, 258. 
 counterfeiting, by criminal, 429. 
 
 and confusion in view of discovery, 465; infirmative considerations, 
 569. 
 ALIBI EVIBENCE, 511 ; correspondence of time of alibi, with time of offence, 
 512 ; question as dependent on distance of place and 
 rapidity of movement, 513, 514. 
 credibility of, by what circumstances affected, 514, 515. 
 liability of, to abuse, 515. 
 
 fabrication of, by collusion, 515; by taking advantage of 
 erroneous impressions, 515, 516; in advance of a 
 crime, 852. 
 false and fraudulent, how tested and detected, 232. 
 mistakes of alibi witness, as to individual, time and place, 
 
 516, 517. 
 to be received with caution, 518, 519. 
 failure of, its effect, 519. 
 ALIBI of deceased, 520. 
 
 ALL relevant facts of a case, to be presented, 30, 84, 139, 219 — 221. 
 counter hypotheses to be considered, 187. 
 who hide or fly, not necessarily guilty, 473. 
 ALONE in a house or room with a dead body, 371 — 373, and notes. 
 ALTERATION of physical facts by time, 140; by accident, 140, 142, iiote(a); 
 
 by design, 131, 132. 
 ANALOGY, reasoning from, 82. 
 
 ANALOGIES between judicial and philosophical inquiry, 91, 94, 106. 
 ANALYSIS of circumstances, process of, 180; limits of, 180. 
 power of, in jurors, 240. 
 
 chemical, of substances supposed to be blood, 137, note (4) ; 687, 
 note (d). 
 
 supposed to contain poison, 718. 
 ANIMALS, as agents, 147, note (o). 
 
 agency of, in removing physical objects, 147, note (o). 
 bones of, mistaken for those of a human being, 539, 579, note (c). 
 ANIMUS, 284, note (a). 
 ANIMUS ex qualitatefacti prasumitur, 297. 
 
744 INDEX. 
 
 ANTAGONISM of motives, 318. 
 
 ANTICIPATIO, in the sense of presumption, >, note (a); 10, note (a); 12, 
 
 note (6). 
 ANTICIPATION of a criminal purpose, by the act of another, 546, 549. 
 APARTMENT in which a crime is committed, 256; condition of, 687. 
 APPEARANCES of physical objects, altered by handling, 141, 142, and 
 note (a), 
 of facts mistaken for facts, 137, 218, 219. 
 of subjects of crime, 253, 254; of dead body, 688; of fire in 
 
 arson, 254. 
 of instruments of crime, 255, 696. 
 of place or scene of crime, and of neighboring objects or 
 
 places, 256. 
 of the person or dress of a suspected or accused party 275, 
 
 276; infirmative considerations, 541, 542. 
 of objects concealed under dress of accused, 269, 643. 
 of objects, persons or places, as going to indicate a crime, 
 
 262, 263 ; a particular criminal or perpetrator, 263. 
 of wounds, as indicating position or distance of the instru- 
 ment or offender, 275 note (6), 700, 701. 
 created by criminal, 421, 422. 
 of wealth after crime, 457 — 459. 
 
 of removal of blood-stains, 412, 413; infirmative considera- 
 tions 535. 
 as the foundation of character, 529. 
 upon bodies found hanging, 709. 
 in water, 712. 
 APPROXIMATION to truth, presumption an, 20, 23, 30. 
 AKCH, composed of stones, figure of, 179. 
 
 ARGUMENT, presumption defined as, 10, note (o); 51, note (c). 
 ARGUMENTATIVE, another name for presumptive evidence, 6. 
 ARGUMBNTUM, 10, note (a); necessarium, 22, 147; verisimile, 23. 
 ARREST, conduct and language of accused on, 474. 
 
 fear and agitation of accused on, 476. 
 ARSENIC, excuses for procuring, 347 — 349, and notes. 
 ARSON, instruments of, 255; appearances of, 255; materials for making. 260; 
 construction of, 346; receptacles of, 261; incendiary contrivances 
 found in possession, 488. 
 motive to, 290. 
 opportunities for, 398. 
 preparations for, 346, 350. 
 place or scene of, 256; appearances of, 257; sounds heard near, 268; 
 
 smell of burning substances near, 258. 
 subject of, or building burned, 253 ; appearances of, 254. 
 concomitant circumstances in, 397. 
 
INDEX. 745 
 
 ASSON, conduct of ac6used after, 898. 
 
 exculpatory circamatances in, 522. 
 as a means of concealing crime, 416, 707. 
 corpus delicti in, 722. 
 evidence of, from evidence of larceny, 138. 
 ARTICLES of criminative evidence, 436—438. 
 
 possession of, by accused, 277, 278, 436. 
 on premises, 439. 
 on person, 441. 
 concealed, 442. 
 change of, 444. 
 
 infirmative considerations applicable to, 
 539^541, 560. 
 belonging to accused, found at the scene of crime, 259, 271, 642. 
 
 concealed elsewhere, 413. 
 belonging to deceased or subject of crime, found on accused, 277. 
 437. 
 ARTIFICIAL presumptions, 42, 50. 
 ASHES in a stove, heat of, 259. 
 ASSUMPTION, presumption in sense of, 38. 
 ASSURANCE, degree of, to be produced by evidence, 197, 198. 
 ATTEMPTS to commit crime, 365; infirmative considerations, 550. 
 to commit suicide on arrest, 475. 
 
 to conceal or destroy criminative articles about the person, 47S. 
 to escape, or resist being taken, 475. 
 to inflict wounds, as indicative of their cause, 695. 
 ATTITUDE of dead body, 685, 697. 
 AUXILIARY preparations for crime, 351. 
 ATERY'S case, used as an illustration, 621—629. 
 
 AVOWAL of criminal intention, 338. ; 
 
 AXE, as an instrument of crime, 254. 
 
 B 
 
 BACK entrance of buildings, importance of considering, 370, 371, and 
 
 note (a). 
 BALANCING of probabilities not allowed in criminal cases, 198, 194, note (o). 
 BALL from a fire-arm, found in the wood-work of a house, 259. 
 at the foot of a tree, 259. 
 in a wound, comparison of with pistol, 142 ; with 
 other balls, 274. 
 examination of, important, 702. 
 direction of, as showing use of left hand, 271; as show- 
 ing position of party firing, 275, note (6), 636. 
 
 63 
 
746 INDEX, 
 
 BALL from a fire arm, marks, indentations and perforations hy, 257, 636, 
 
 701. 
 BANK-NOTE paper and plates, as materials of counterfeiting, 260. 
 BANK NOTES, identification of, 658. 
 
 BANKS of a stream in which a body is found, examination of, 716, 
 BABRELS, containing inflammable liquids, 261. 
 BASIS of inference, in presumption, composed of facts, 120. 
 established by proof, 136, 144. 
 rules regulating, 731. 
 BED, manner in which a body is found on, 697, 720. 
 
 bloody, 256. 
 BELLS, sound of, near a scene of crime, 258. 
 BEST evidence of facts to be adduced, 730. 
 BETTER that many guilty persons should escape, than that one innocent 
 
 should suffer, 59, and note (a) . 
 BITTER almonds, smell of 604, 609, and note {d). 
 
 BLACKENED appearance of fingers from combustion of gun-powder in the 
 pan of a fire-arm, 702. 
 of near gun-shot wounds, 636, 700. 
 BLADE of knife, piece of, found in a window-frame, 272. 
 
 in a dead body, 272. 
 BLADES of a pocket-knife, as serving to hold and conceal a coin, 560. 
 BLINDNESS of criminals to the consequences of their acts, 418, 670. 
 BLOOD must be proved such, 137. 
 
 examination of, by chemical analysis, 137, note (6) ; 687, note (rf) ; by 
 the microscope, 137, note (6). 
 BLOOD and BLOOD-STAINS, on floors, beds, chairs, walls, doors, 256, 412, 
 
 687. 
 on well-curbs, gates, stiles, fences, paths, or 
 
 roads, 256, 257. 
 on trees, grass, snow or ground, 257, 412, 
 
 687. 
 concealment of, as showing a corpus delicti, 
 
 257, 412, 413, 687. 
 on the body and clothing of the deceased, as 
 
 indicating a violent death, 686, 706. 
 on the dress and person of the accused, 259, 
 260, 413, concealment of, 413; infirma- 
 tive considerations, 541, 554. 
 on instruments of crime, 255, 412, 699. 
 on a knife, 255; sword, 255; hatchet, 255, 
 418. 
 BLOODY bed, 256. 
 
 cloth left at scene of crime, 272, note (g). 
 club, 693. 
 
INDEX. 747 
 
 SIOODT finger marks, 257; infirmatiTe considerations, 543. 
 
 foot-prints, 267, note (o); infirmative considerations, 548, and 
 
 note (A), 
 floor, 256. 
 hatchet, 642. 
 ■ knife, 62, 873, 699. 
 left hand, print of, 77. 
 rope, 709. 
 saddle, 636. 
 BLOWS, marks of, 688. 
 BLUSHING, as a mark of emotion, 476. 
 
 BODY of evidence, 65; process of constructing, 581, 582 — 597, 600. 
 BODY of a dead person, concealment of, by burial, 403 — 405, by other means, 
 406. 408. 
 
 destruction of, by dismemberment, burning, &o. 407, 
 
 408. 
 identification of, 681. 
 examination of, 685, objecting to, 461. 
 appearance of, as indicating a corpus delicti, 253, 
 
 685, 697. 
 as an article of criminative evidence, 438, 439. 
 found on premises of accused, 278, 374, 488 — 440. 
 removal of, by innocent persons, 555, 557, note (6). 
 accused found alone with, 370 — 373, and notes, 
 refusing to look at, 462. 
 agitation on looking at, 479. 
 found hanging, 708; wounds on, 709. 
 ^ found in water, 711. 
 
 BOLDNESS of demeanor on arrest, 475. 
 BOLT of door, as discolored by fire, 82, 
 BONES of human body, examination and identification of, 104, note; 681. 
 
 of animal, mistaken for human, 539, 579, note (c). 
 BORROWING instruments of death, 347. 
 BOX for concealing a dead body, 135. 
 for holding combustibles, 261. 
 for holding an explosive machine, 261, 346. 
 BOXES, as receptacles of articles of property, 565. 
 BRAVADO expressions after a crime, 467, 578. 
 
 before a crime, 546. 
 BREAKING chain of evidence, 145, 180. 
 
 of glass window by a shot, 701. 
 up plate, 417, 452. 
 BRUISES on the body of a deceased person, 688; appearances of, how account- 
 ed for, 706. 
 on the person of an accused, 259. 
 
748 INDEX. 
 
 BUILDING, as the subject of crime, in arson, 253; in burglary, 253. 
 as the scene of crime, 256. 
 number and modes of entrance into, to be considered, 185, 370, 
 
 371, and note (o). 
 lurking around, 350, 399. 
 BULK of articles found on premises or person of accused, 441, 442. 
 BULLET taken from wound, fitting barrel of pistol, or bullet-mould, 272. 
 BULLET-MOULDS, 260. 
 BULLETS, lead for casting, 260. 
 
 and slug, as composing a charge, 272, note (A). 
 BUKDEN of proof, on which party it rests, 728, 729. 
 presumptions which shift, 64, 66. 
 BURGLARY, concomitant circumstances in, 399. 
 corpus delicti in, 723. 
 criminative articles in, 438, 439. 
 instruments of, 255; receptacles of, 261; possession of, 363, 
 
 marks of use of, 264. 
 motive to, 285. 
 scene of crime in, 256; appearance of, 257; sounds heard near, 
 
 268; detached objects found at, 259. 
 subject of, 253. 
 
 possession of stolen property when evidence of, 455, 456. 
 BURGLARS' TOOLS, 255; as articles of criminative evidence, 438. 
 acquisition or construction of, 346, 846. 
 marks of use of, 25T. 
 possession of, 863. 
 BURIAL, as a means of concealing a dead body, 403. 
 
 secrecy of, 405, 406, 556. . 
 
 manner of, 684. 
 place of, 374, 443. 
 BURNING, as a mode of destroying criminative articles, 409, 416, 417; a 
 
 dead body, 407, 416, 707. 
 BURNING sensations in poisoning, 259. 
 
 substances, smells of, 258. 
 BURNS, on a dead body, 688; characteristics of, 707; causes of, 707. 
 BURSTING in a door, sounds of, 258. 
 BUTCHER Identified as a criminal, by mode of cutting throat, 696. 
 
 C 
 
 CAPITAL punishment, as following conviction on circumstantia,! evidence, 
 
 70^76. 
 CARBINE, borrowing of, 847 ; load of, 276. 
 CASE for holding pistols, 261 ; combustibles, 261. 
 
INDEX. 749 
 
 CASUAL quality of ordinary observation of feots, 100. 
 CAUSE and effect, relation of, 16. 
 
 of death of a person found dead, 684. See Death. 
 alleged by an accused party, 460. 
 CAUSES of facts or appearances, investigation of, in process of circumstantial 
 
 proof, 82, 629. 
 CAUTION, want of, in committing crime, 676. 
 CENTRAL act in a course of crime, 126. 
 fact, 582. 
 
 position of the principal fact, 582. 
 CERTAIN circumstantial evidence, 77, 78. 
 CERTAINTY, absolute, unattainable by moral evidence, 40, 80, 197. 
 
 moral, 198—200. 
 CHAIN of evidence, 65, 122, 179; its meaning, 122, note (/>). 
 
 figure of, 179,601, 602. 
 CHAINS of evidence, several, 122, note (6) ; 602, 621. 
 CHAMBER, as the scene of a crime, 256. 
 
 CHANCES of escape from punishment, motives derived from, 319, 320. 
 CHANGE of life or circumstances, sudden, 457; infirmative considerations, 
 566. 
 of possession of criminative articles, 444. 
 CHANGES in criminal intention, 546. 
 
 in physical facts before observation, 140, 141. 
 CHANGING color, as a sign of emotion, 463. 
 
 of an article of clothing, 452. 
 counterfeit money, 400. 
 CHARACTER of observation of facts in ordinary cases, 98, 100, 101. 
 
 of tribunal, importance of, to the attainment of truth, 238. 
 moral, effect of, upon motives, 304 — 307. 
 
 as a source of restraining motives, 323. 
 evidence of, 454, 455, 525. 
 of persons, founded on external appearances, 529. 
 of accused of no avail against convincing evidence, 530, 531, 
 532, note. 
 
 impeachment of, 633. 
 of complaining party, when inquired into, 533, 534. 
 " CHARACTER," defined, 525; in ite largest sense, 525; in its limited and 
 ordinary sense, 526; in the sense of disposition, 527; 
 in the sense of reputation, 527, and notes. 
 CHARACTER EVIDENCE, 525; requisites of, 532, 533. 
 CHARGES of judges to juries, value of, 242. 
 
 CHEMICAL agents, as instruments of forgery, and counterfeiting, 255. 
 analysis, as a means of detecting poison, 718. 
 examination of supposed blood-stains, 137, note (4) ; 687, note(d). 
 CHISEL, as an instrument of burglary, 265. 
 
 63* 
 
750 INDEX. 
 
 CHISEL marks of, on doors, windows, &o., 270, 641. 
 " CIRCUMSTANCE," definition of, 8, 121, note {d); 582. 
 CIRCUMSTANCES, as elements or materials of evidence, 7, 56, 77, 121, 129, 
 250. 
 as indicia of criminal action, 126 — 129. 
 criminative or inculpatory, 252. 
 physical, 253. 
 moral, 280. 
 
 precedent, 280. 
 concomitant, 868. 
 subsequent, 401. 
 exculpatory, 508, 509, 536. 
 
 infirmative, 536. ' 
 
 " CIRCUMSTANCES cannot lie," 217, 222, 223. 
 CIRCUJISTANCES, sudden change of, 457. 
 CIRCUMSTANTIAL EVIDENCE, 4, 77. 
 
 why so called, 7. 
 
 distinguished from presumptive, 76. 
 
 as an instrument of judicial investigation, 
 
 88. 
 necessity of, as a means of investigating 
 
 crime, 116. 
 operation of, as a judicial instrument, 193. 
 process of applying, 193. 
 amount of, necessary to constitute proof, 
 
 196, 197. 
 value of, as compared with direct, 206. 
 source of error in application of, 206, 207. 
 objections against, 209. 
 advantages of, 227,' 228. 
 disadvantages of, 227. 228. 
 use of, as a test of direct evidence, 226, 
 
 232. 
 probative force of, test of, 235. 
 opposite opinions as to merits of, 209, 216, 
 
 223, 234, 235. 
 adverse view of, 209; advantages of, 236. 
 favourable view of, 216 ; extreme, 223. 
 peculiar imperfections of, 237. 
 CIRCUMSTANTIAL and direct evidence, not necessarily in conflict, 227, 230, 
 231. 
 
 both fallible, but necessary means of 
 
 investigating facts, 235. 
 connection between, 231. 
 
INDEX. 751 
 
 CIRCUMSTANTIAL PROOF, process of, 581, 582, 146. 
 
 fundamental principle of, 582. 
 CLANDESTINE deposit of property, by its owner, with a loalicious design, 
 663. 
 
 by a tliief, 564. 
 CLASHING of steel, sound of, 258. 
 
 CLASSIFICATION of evidentiary facts or circumstances, 250. 
 CLOAK left at a scene of crime, 271, 587. 
 CLOTH, piece of, cut from loom, 170. 
 
 correspondence of edges of, 170. 
 sounds made by tearing, 258. 
 CLOTHING of accused, as an article of criminative evidence, 271. 
 blood-stains on, 259. 
 rents and injuries of, 260, 275. 
 disorder and wetness of, 260. 
 stains upon, 260, 276. 
 of a deceased person, 261 ; as an article of criminative evidence, 
 437. 
 
 stains, cuts, rents, perforations, disorder, &c. of, as 
 indicating criminal violence, 686. 
 fragments of, found at a scene of crime, 272. 
 CLUB, as an instrument of death, 254, 693. 
 
 appearance and examinatioa of, 255, 690, 
 
 693. 
 concealment of, 693. 
 COIN, apparent though unreal abstraction of, 219. 
 unconscious possession of, 442. 
 
 transfer of, 560. 
 identification of, 657, 658. 
 COINCIDENCE, what, 168. 
 
 physical, 169, 170; as means of identification, 641. 
 mechanical, 170. 
 moral, 174. 
 COINING, metal for, in counterfeiting, 260. 
 
 dies, presses and other implements for, 255. 
 COMBINATION of circumstances, process of, in process of proof, 84, 176, 
 178, 179, 630. 
 of a number of circumstances, its eflFect, 177, 178. 
 faculty of, 241. 
 COMBUSTIBLES in arson, 255; arrangement of, 255, 256. 
 COMMON observation, characteristics of, 100. 
 • places of the law, cases so called, 211. 
 
 sense in natural presumption, 24, 59. 
 in jurors, 238, 289. 
 COMMUNITY, interest of, when predominant, 58. 
 
752 INDEX. 
 
 COMPANY of an accused with a deceased person, 375, 376; " in whose com 
 
 pany was he last seen alive,' ' 376. 
 COMPARISON, presumption a process of, 81, 147, 151. 
 
 ' of facts proved, with a common standard, 151, 630. 
 
 with the affirmative hypothesis of the case, 
 
 147, 151. 
 with counter hypotheses, 147, 151. 
 of one evidentiary fact with another, 151, 273, 680. 
 of physical objects with each other, 273, 274, 277. 
 of foot-prints, with feet, shoes or boots of accused, 267, 466. 
 process of, in the process of proof, 629, 630. 
 of direct with circumstantial evidence, 224. 
 COMPENSATING circumstances in judicial investigation, 110 — 114. 
 COMPLAINTS against a deceased person, 336. 
 COMPLETENESS of presumption, 29. 
 
 of observation, on what dependent, 103. 
 of the proof of evidentiary facts, 138. 
 CONCEALED possession of criminative articles, 442, 443. 
 CONCEALMENT of evidence, 402; omission of, causes of, 673. 
 of crime, 402, 465; by arson, 416, 417. 
 of a dead body, by interment, 403 — 407; by dismember- 
 ment, 407 ; by other means, 406, 408. 
 place of, 261. 
 
 infirmative considerations, 555, 556. 
 of clothing of a dead body, 408, 409. 
 of articles taliien from a dead body, 409. 
 of instruments of crime, before crime ;| 349, 364; infirma- 
 tive considerations, 441. 
 
 after crime, 409, 410; infirma- 
 tive considerations, 554. 
 places of, 261; appearances of, 
 under clothing, 382. 
 of preparations for crime, 346, 347. 
 of person during preparations for crime, 346, 347. 
 of traces of crime, 412. 
 
 of blood and blood-stains, 412, 413; infirmative considera- 
 tions, 654. 
 of articles of criminative evidence, 442. 
 
 of clothing worn by the accused, 413, 414. 
 connected with the ofience, 414. 
 of person, while concealing or destroying evidence, 414; 
 
 infirmative considerations, 556. 
 of the fruits of crime, 417; place of, 261; appearances 
 
 of, under clothing, 442. 
 of stolen property, 451, 462; of marks upon, 452. 
 
INDEX. 753 
 
 CONCEALMENT of person of criminal, after crime, 465, 469. 
 
 infirmative considerations, 569 — 571. 
 and flight, after crime, 469. 
 
 infirmative considerations, 569 — 571. 
 CONCLUSION or verdict, as made up from facts, 195. 
 CONCLUSIVE evidence, what, 89, 195. 
 
 presumptions of lavr, 46; in criminal cases, 60. 
 circumstances, 177. 
 CONCLUSIVENESS of circumstances, 160, 161. 
 CONCOMITANT CIRCUMSTANCES, 123, 133, 368. 
 
 in murder, 369, 377, 379. 
 in poisoning, 389, 397. 
 in arson, 397, 398. 
 
 in burglary, robbery and larceny, 399. 
 in passing counterfeit money, 400. 
 infirmative considerations, 551 — 554. 
 CONCURRENCE of circumstances and presumptions, the great principle of 
 
 the force of circumstantial evidence, 175 — 177. 
 CONDUCT of accused, evidence derived from, 280. 
 before crime, 343, 351, 359. 
 
 after crime, 402' 420, 457, 459, 465, 469; after mur- 
 der, 460; after larceny, 452. 
 on arrest, 474: infirmative considerations, 571,574. 
 CONFESSION of accused, without proof of corpus delicti, insufiBoient, 498, 
 
 499. 
 CONFESSIONAL evidence, 251; indirect, 495. 
 CONFESSIONS of guilt, direct, judicial, 497. 
 
 extra-judicial, 497. 
 false, instances of, 215, and note (rf). 
 requisites of, 499. 
 COJVFESSOS in jure pro judicaiis haberi placet, 497. 
 CONFIDENCE of criminals, excessive, 674. 
 CONFLICT of facts in a body of evidence, 84. 
 
 of motives, 318. 
 CONFUSION, in view of discovery, 465. 
 
 manifested at a simple inquiry, 462. 
 infirmative considerations, 573. 
 COJVJECTIO, 27, note (e). 
 CON'JECTURA, 10, note (o); 27, note (c). 
 CONJECTURE, 27, note (c); 64, note (/); 65. 
 CONNECTION between facts,' the foundation of presumption, 14, 81. 
 inferred from experience, 149. 
 requisite quality of, 151. 
 of accused with the crime, 151 ; how effected, 263. 
 and combination of facts, proof a process of, 630. 
 
754 INDEX. 
 
 CONNECTION between direct and circumstantial evidence, 231 
 CONSISTENCY of evidentiary facts, 84, 162, 592. 
 
 between direct and circumstantial evidence, 231. 
 CONSTRAINT of jurors, 109; advantages of, 112. 
 CONSTRUCTION of a body of evidence out of circumstances, 581, 582—597, 
 
 600. 
 CONTINGENT quality of presumptions of fact, 57. 
 of truth,- 93, 115. 
 of verdict, 203. 
 CONTINUANCE, presumption of, 21 ; applied to character, 528, 530. 
 CONTRASTS between judicial and philosophical inquiry, 92, 94,96, 100, 104, 
 
 105. 
 CONTUSED WOUNDS, 688; appearance of. 688; causes of, how ascertained, 
 689; indications of the use of a weapon, 689; in- 
 ference from weapon found near body, 690 ; indi- 
 cations of the use of a weapon found, 690, 691 ; 
 mistakes as to instrument or weapon, 691. 
 combination of, with wounds of other descriptions, 
 
 692. 
 situation of, a^ exposing pretext of accident, 692. 
 CONVERGENCE of circumstances upon the principal or central fact, 176, 
 582, 590, 591. 600, 601. 
 
 successive, 601. 
 COBD as an instrument of death, 255. 
 
 marlts of, on neck of a dead body, 707. 
 correspondence of, with impression on nec^ 710. 
 substance of, 710; strength of, 710. 
 
 how applied to the neck, 711; how secured to the point of suspension, 
 711. 
 CORPSE touching, 478, 479. 
 CORPUS DELICTI, what, 119, note (6); 677. 
 to be always proved, 784. 
 proof of, 677, 262, 583. 
 of what facts composed, 677. 
 basis of, 677 ; facts showing criminal agency, 677. 
 in homicide, 678. 
 
 fact of death, 678; how proved, 678, 
 
 680. 
 production of body, 678; when dispens- 
 ed with, 679. 
 identification of body or remains, 681, 
 
 682. 
 criminal agency as the cause of death, 
 
 682. 
 accident and suicide, as causes of death, 
 684. 
 
INDEX. 755 
 
 CORPUS DELICTI, in homicide, cause of death, as indicated by the lo- 
 cation, disposition and state of the 
 body, 684; ite locality, 685; its 
 position and attitude, 685; expres- 
 sion of the countenance, 686 ; state 
 of the clothing, 686 ; condition of the 
 ground, in the vicinity, 686 ; of the 
 building in which the body is 
 found, 687; weapons found near 
 the body, 687; other objects found 
 near, 688; appearances of the body 
 itself, as bearing marks of violence, 
 686; wounds, bruises, stripes, 
 burns, ligatures, &c. 688. 
 in arson, 723; in rape, 723; in burglary, 723; in 
 robbery and larceny, 724; in forgery, 726. 
 CORRECTNESS of proof of evidentiary facts, 140. 
 
 CORRESPONDENCES between objects found at the scene of crime, and other 
 objects in possession of the accused, 261, 272. 
 between fragments or portions of objects so found, 272; 
 
 pieces of knife, cloth, paper, 272, 273. 
 between appearances on the person of the accused, 
 and objects at the scene of crime, 275, 276, 
 277. 
 COUNTER facts, 153. 
 
 hypotheses, 152, 183, 187, 188, 189, 192. 
 probabilities, 198. 
 possibilities, 153, 198. 
 COUNTERFEIT MONEY, passing, or offering to pass, intent in, indicated by 
 
 previous acts, 157, 311; favourable circum- 
 stances, 523. 
 concealment of, before passing, 364. 
 possession of, 438, note {I) ; 441. 
 COUNTERFEITING, subject of, or money fabricated, 253. 
 materials of 260; receptacles of, 261. 
 implements of, 255; receptacles of, 261; possession of, 
 
 363, 438; concealment of, 364. 
 scene of crime in, 256; sounds heard near, 258; appear- 
 ances at, 256, 258; objects found at. 259. 
 fruits of offence in, 261. 
 COUNTERFEITINO alarm and terror, 429. 
 sorrow for death, 480. 
 
 calmness and indifference during investigation, 467 
 COUNTENANCE, expression of, as indicating cause of death, 686, 
 COURSE of criminal action or conduct, 122, 124. 
 
756 INDEX. 
 
 COURSE of things, natural and usual, test of probability, 149. 
 
 of judicial investigation of crime, 585, 586. 
 CREDIBILITY of alibi evidence, 514, 515. 
 CRIES of distress, 258. 
 CRIME, what, 122. 
 
 as an act, 122. 
 as a course of conduct, 122. 
 
 as a cause of appearances and circumstances, 98, 99. 
 as a subject of evidence, 116. 
 general fact of, 252, 262, 583. 
 subjects of, 253. 
 scenes of, 256. 
 instruments of, 254. 
 fruits of, 261. 
 motives to, 281. 
 preparations for, 343. 
 opportunities and facilities for, 354. 
 attempts to commit, 365. 
 concealment of, 124, 125. 
 inconsistency and folly of, 667—670, 675, 676. 
 CRIMES auxiliary to each other, 286. 
 
 commission of, not prevented by legal penalties, 319. 
 CRIMINAL, identification of, as following proof of crime, 252. 
 
 by physical facts and coincidences, 273, 274, 278, 
 635—637. 
 CRIMINAL agency, genei-al fact of, how shown, 262. 
 
 appearances indicative of, 262, 263. 
 as a constituent of a corpus delicti, 677. 
 as the cause of death, 682. 
 character of means and preparations, 362 — 364. 
 conduct, course of, 122, 123. 
 
 intention or purpose, declaration of, 338 ; change of, 546 ; aban 
 donment of, 551; failure of power to execute, 516; anticipa- 
 tion by another, 546, 349. 
 CRIMINALS, action of, how determined, 319—821. 
 concealment and flight of, 469. 
 conduct and language of, on arrest, 474. 
 folly and inconsistency of, 668 — 670. 
 forgetfulness of, 674. 
 over-confidence of, 674. 
 risks encountered by, 286, 320 and note. 
 CRIMINATIVE appearances at a scene of crime, 263 ; inflrmative considera- 
 tions, 542. 
 
 on the person of the accused, 275; infirmative 
 considerations, 541. 
 
INDEX. 757 
 
 CRIMINATIVE articles or objects, 487, 438. 
 circumstances or facts, 133. 
 evidence, 251, 252. 
 CROWS, as instruments of|burglary, 255. 
 CUKVATDBE of a sword-blade, 255. 
 CUT edges of pieces of cloth, comparison of, 151 ; coincidences furnished by, 
 
 170, 175. 
 CUTS, marks of, on the person of an accused, 275, 276; infirmative considera- 
 tions, 542. 
 
 on the clothing of the accused, 275, 276, 642. 
 on a dead body, 693. See Incised Wounds. 
 on the clothing of a body, 686, 697. 
 CUTTING out stains, appearances of, 413; explanation of, 535. 
 throat, mode of, as identifying a murderer, 695. 
 
 DAGGER, as an instrument of death, 254. 
 DAMJ\rUM pradictum et malum secutum, 385. 
 DANGER, sources of, in relying on evidence, 232, 233. 
 De facto, 52, note (6). 
 
 DEAD BODY, concealment of, by interment, 403, 404,405, 406; infirmative 
 considerations, 556. 
 
 by removal without burial, 408; infirmative 
 consideriitions, 555, 557, note (4). 
 mutilation or destruction of, 407, 408 ; infirmative considera- 
 tions, 556. 
 as an article of criminative evidence, 438, 439. 
 possession of, as a motive to crime, 286. 
 objecting to examination of, 461 ; infirmative considerations, 
 
 568. 
 delaying and evading examination of, 611 — 613. 
 refusal to look at, 461 ; infirmative considerations, 568. 
 agitation on looking at, 479 ; infirmative considerations, 568. 
 touching, 478. 
 
 production or inspection of, when necessary, 678, 679. 
 DEATH, cause of, as indicated by the location, disposition and state of the 
 body, 684-; by the locality where it is found, 685; by 
 its position and attitude, 685; by the expression of the 
 countenance, 686; by the state of the clothing, 686; 
 by the condition of the ground in the vicinity, 686 ; of 
 the building where it is found, 687; by weapons found 
 near it, 688 ; by the appearance of the body itself, aa 
 bearing marks of wounds, &c. 688. 
 64. 
 
758 INDEX. 
 
 DEATn, fact of, in homicide, how proved, 678. 
 
 punishment of, on conviction by circumstantial evidence, 70. 
 of deceased, desiring, 337; accounting for, 460, 491, 492;^infirma- 
 tive considerations, 567. 
 DECEPTION of witnesses by appearances, 218, 21&. 
 DECLARATIONS of criminal intention, 338, 839; infirmative considerations, 
 
 545. 
 DECOYING victim within reach, 359, 360. 
 DEFENSIVE fabrication of evidence, 557—559. 
 DEFIANT demeanour on arrest, 475. 
 DEFINITION of certainty, moral, 199, 200. 
 
 certain circumstantial evidence, 77, 78. 
 
 chain of evidence, 122. 
 
 cliaracter, 525 — 527. 
 
 circumstance, 8, 121, note (d); 582. 
 
 circumstantial evidence, 77. 
 
 coincidence, 168. 
 
 conclusive evidence, 89, 90. 
 
 conjecture, 27, and note (c); 64, note (/); 65. 
 
 corpus delicti, 119 and note (A). 
 
 crime, 122. 
 
 design, 284, 331. 
 
 direct evidence, 4, 5, and note (a). 
 
 doubt, reasonable, 200, 202. 
 
 eloignment, 401, note. 
 
 evidence, 1. 
 
 evidentiary facts, 121. 
 
 fact, 218. 
 
 factum probandum, 119. 
 
 hypothesis, 146, note. 
 
 indirect evidence, 4, 5 and note (o). 
 
 inducement, 283. 
 
 infirmative facts, suppositions or hypotheses, 153, 164. 
 
 intention, 284, 331. 
 
 moral certainty, 199, 200. 
 
 motive, 283. 
 
 object, 283. 
 
 physical facts, 130. 
 
 positive evidence, 4, 5, and note (o). 
 
 presumption, 9. 
 
 presumptions of law, 45. 
 
 presumptions of fact, 51. 
 
 presumptive evidence, 79. 
 
 principal fact, 1 19. 
 
 probability, 81. 
 
INDEX. 759 
 
 DEFINITION of probative facte, 121. 
 proof, 1, 38, and note, 
 psychological facts, 130. 
 purpose, 284, 331. 
 reasonable doubt, 200, 202. 
 slight presumption, 64. 
 strong presumption, fi4, 66, 67. 
 uncertain circumstantial evidence, 79. 
 violent presumption, 60. 
 DEGREES of presumption, 26—29, 60. 
 
 probability, 28. 
 DEMEANOUR of criminal after crime, 459. 
 of prisoner, during trial, 502. 
 DENIAL of name on arrest, 475. 
 
 of knowledge of the crime or subject, 475. 
 DEPOSIT of criminative articles with innocent persons, 424, 426. 
 DESIGN, what, 284, 831. 
 DESIRE of the death of a person, 337. 
 
 DESTRUCTION of evidence, 402; open, 410; clandestine, 414: presumption 
 from, 419; infirmative considerations, 554. 
 dead body by fire, 407. 
 clothing of deceased, 408, 409. 
 articles on person of deceased, 409. 
 instrument of crime, 409, 410; infirmative considerations, 
 
 554. 
 criminative appearances on person of criminal, 413; in- 
 firmative considerations, 554. 
 Hcene of crime and sU evidence, by arson, 416. 
 marks of ownership on fruits of crime, 417, 452; infir- 
 mative considerations, 654. 
 identity of stolen property, 452. 
 criminative articles on the person, on arrest, 475. 
 DETACHED bodies at a scene of crime, 259. 
 DEW on grass or ground, disturbance of, 429. 
 DIES , in forgery and counterfeiting, 255. 
 DIFFERENCES between judicial and philosophical inquiry, 92, 94, 96, 100, 
 
 104, 105. 
 DIFFERENT pntrances to a house, consideration of, important, 370, 371, and 
 
 note (a). 
 DIFFICULTIES in the process of presumption, 80. 
 
 arriving at conclusion as to motive, 307. 
 DIRECT evidence, what, 4, 5, 6; advantages of, 227, 228; disadvantages of, 
 227, 228. 
 preparations for crime, 345. 
 confessions of guilt, 495, 496. 
 
T60 INDEX. 
 
 DIRECT and circumstantial evidence, relative value of, 206. 
 
 compared, 224. 
 
 not necessarily adverse or in conflict, 
 229, 231. 
 DIRECTION of foot-prints, 204, 265. 
 
 wounds, 254, 635, 637; of an incised wound, 694; of a punc- 
 tured wound, 698; of a gun-shot wound, 700. 
 streams of blood, in wounds of the throat, 698. 
 DIRK, finding of, near the scene of a crime, 620. 
 
 identification of, 621. 
 DISCOLORATION of human body, as an effect of blows, 706; of a shot, 256; 
 of poison, 259. 
 
 as a natural consequence of death, 706. 
 of iron by fire, 82. 
 DISGUISE of criminal's person, 350; infirmativo considerations, 571. 
 preparations for crime, 349, 353. 
 poisons, 349, 353. 
 
 handwriting, 662; how penetrated, 662, 663. 
 DISINTERMENT of body, avoiding or delaying. 403, 404. 
 DISMEMBERMENT and destruction of dead body, 254, 407. 
 DISORDER of dress of accused, 260. . 
 
 deceased, as indicating a violent death, 686. 
 furniture in a house, 687. 
 DISPOSITION or character of accused, 526, 527. 
 
 of dead body, 684. 
 DISPROPORTION between motive and act, 317. 
 DISPUTABLE presumptions, 47. 
 DISTANCE of places, observations of, 101. 
 
 of place, in alibi evidence, 513, 514. 
 of weapon from body, 687. 
 from which a shot is fired, 700. 
 DISTILLATION, materials and utensils for, 260. 
 
 of poisonous liquid, facilities for, 347. 
 DISTURBED appearance of ground near a dead body, 686. 
 DOGS, alarm given by, 258. 
 DONELLAN'S case examined, 603—620. 
 DOORS, blood on, 256. 
 
 marks of violence on, 25-t. 
 
 fastening of, during destruction of evidence, 414, 416. 
 DOUBT reasonable, what, 200—202. 
 
 in cases of, duty of jury to acquit, 116, 202. 
 DRAGGING body, marks of, 257. 
 DRAWER for holding pistols, 261. 
 DRESS of deceased, 261 ; as meiins of identification, 681. 
 
 rents, cuts, perforations, stains and disorder of, as indi- 
 cating a violent death, 686, 710. 
 
INDEX. 761 
 
 DRESS of accused, appearances on, 260; cuts and stains on, 260, 275, 276. 
 
 disorder and wetness of, 260. 
 
 articles of, left at scene of crime, 271. 
 
 appearances of something concealed under, 260. 
 
 as a means of identification, 626 — 629, 639. 
 DROWNING, evidences of death by, 712. 
 
 as the result of suicide, homicide or accident, 715. 
 DRUG for stupefying subject of rape or robbery, 255. 
 DYEING clothing, as a means of disguise, 409, 452, 463. 
 
 E 
 
 E.\RLY observation of physical fucts, importance of, 140; of foot-marks, 141 
 E.4.RTH, stains of, on dress of accused, 260, 276. 
 impressions on, of the feet or shoes, 264. 
 found in hands of a corpse, 692. 
 ECCHYMOSIS, what, 706, and note (c). 
 ELECTION of motives, 307, 308, 309. 
 ELEMENTS of circumstantial evidence, 250. 
 ELOIGNMENT, what, 401, and note. 
 
 of evidence, 401, 402; of witnesses, 418. 
 infirmative considerations, 554. 
 EMOTION on arrest, 476. 
 
 ENTRANCE to house, as the scene of a supposed crime, 370, 371, and note (o). 
 ENTRANCE wounds, 701. 
 ENTRY of a house by windows, 184, 185. 
 ERASURE of marks or names on stolen property, 452. 
 ERROR in verdict, possibility of, 203. 
 
 infrequency of, 204, note, 
 in application of circumstantial evidence, source of, 203, 206, 207. 
 of witness, a source of danger, 232. 
 EVASIVE response to interrogation or remark, 486; infirmative considerations, 
 
 575. 
 EVERT accountable person is presumed and bound to know the natural conse- 
 quences of his own voluntary acts, 309, 38, 43, 44, 47, 298. 
 person is presumed innocent until proved guilty, 58. 
 EVIDENCE, what, 1, 2, note (a); 3. 
 
 how distinguished from proof, 1. 
 etymology of, 2, note (o). 
 in a legal point of view, 2. 
 direct or positive, 4, 5. 
 indirect, 4, 5. 
 
 circumstantial, 4, 7, 77; certain, 77; uncertain, 79; presump- 
 tive, 79. 
 
762 INDEX. 
 
 EVIDENCE, presumptive, 79, 89. 
 conclusive, 89. 
 destruction of, 402. 
 fabrication of, 420. 
 EVIDEJ^TIA, 2, note (a). 
 
 EVIDENTIARY FACTS, 3, 121; must be proved, 136, 137, 733. 
 EXAMINATION of accused, on arrest, 482. 
 
 of dead body, 685; objecting to, 461; deferred and evaded 
 
 in Donellan's case, 611 — 613. 
 of person of accused, resisting, 464. 
 EXCLUSION of opposite hypotheses in a case, 181, 182, 188, 189, 190, 191, 
 192, 737. 
 of suppositions of causes of death, 684. 
 EXCLUSIVE character of circumstance of proximity, 369, 370. 
 EXCLUSIVENESS of presence at a scene of crime, 370. 
 
 of possession of criminative articles, 441. 
 
 of a dead body or its remains, 374. 
 of stolen property, 450. 
 EXCULPATORY facts, 133; actually proved, 509; going to show the insuffi- 
 ciency of criminative evidence, 509 ; going to disprove 
 the crbninative facts, 510; leading to necessary in- 
 ferences, 611 ; leading to probable inferences, 520; going 
 to avoid or explain the criminative facts proved, 534. 
 not necessarily proved, 536. See Injirmative Con- 
 siderations. 
 hypotheses, 153. 
 presumptions and evidence, 251. 
 circumstantial evidence, 251, 608. 
 EXCUSES for the preparation of means of crime, 347. 
 
 for possession of means of crime, 365. 
 Ex facto jus oritur, 51, note {g). 
 EXIT wounds, '701. 
 
 EXPEDIENCY, as a foundation of legal presumption, 43. 
 EXPERIENCE, as the source of the knowledge upon which presumption is 
 founded, 21. 
 legal, 50. 
 EXPLANATION of criminative appearances, 534, 535. 
 EXPLODED machine, fragments of, 255. 
 EXPLOSION, marks of, 267; sounds of, 258. 
 
 EXPLOSIVE machine, as an instrument of death, 255; construction of, 346: 
 possession of, 363. 
 powder, contained in a letter, 389. 
 EXPRESSING an opinion that a missing person had gone away, 430. 
 EXPRESSION of countenance of a dead body, as indicating cause of death, 
 686. 
 
INDEX. »763 
 
 EXPRESSIONS of ill-will towards a person, 335, 337, and notes; infirmative 
 
 considerations, 545. 
 EXTERNAL and internal motive, 283. 
 EXTRA-JUDICIAL interrogation, 481 ; confessions, 497. 
 EXTRANEOUS facts, 221. 
 EXTRAORDINARY character of facts, 587. 
 EXTREME agitation on arrest, 477. 
 
 opinions of the merits of circumstantial evidence, 223, 224, 234, 
 235. 
 EXTRINSIC indications of crime, 251, 252. 
 EYE, want of, in accused, 260. 
 EYES, averting or casting down, as a symptom of emotion, 476. 
 
 FABRICATED facts or appearances, 131, 219, 221, 547; how detected, 142, 
 143. 
 evidence, most dangerous species of, 234. 
 FABRICATION of facts or evidence, 131, 132, 420. 
 
 effect of, 435, 436. 
 infirmative considerations, 557. 
 of physical evidence, 420; of suicide, 421; of accident, 422; 
 of the agency of another, 423, 424, 427 ; of preparation 
 for crime, 547. 
 
 malicious, 427. 
 
 self-exculpative, 424. See Forgery. 
 of moral evidence, 429. 
 
 of alibi evidence, 352; by collusion, 515; by taking advan- 
 tage of erroneous impressions, 516. 
 of testimony of witnesses, 434, 435. 
 FACILITIES for the commission of crime, 354. 
 FACT and evidence, how connected, 2. 
 the subject matter of evidence, 2. 
 defined, 218. 
 
 appearance of, taken for fact, 218. 
 sought or to be proved, 119. 
 presumptions of, 51. See Presumptions of /act. 
 actual and assumed, 52. 
 of conduct, general, 524. 
 of criminal agency in corpus delicti, 677, 682. 
 of death, how proved, 678. 
 FACTS principal, 3, 119. 
 
 evidentiary or probative, 3, 120, 121 ; must be proved, 136j must be 
 connected with factum probandum, 735. 
 
764. INDEX. 
 
 FACTS, minor, relative, or ciroumstanoes, 121, and note (d\, 
 
 as causes, coacotuitauts and effects, 13, li. 
 
 sources o!', \i^. 
 
 physical, 130, 253, 621. 
 
 psychological, 130. 
 
 genuine, 131, 221, 731. 
 
 extraneous, 221. 
 
 fabricated, 131, 219, 221; false, 218. 
 
 criminative, 133. 
 
 exculpatory, 133, 509, 510, 511, 520, 534, 636. 
 
 number and variety of, 122, 133. 
 
 presented directly to the senses of the jury, iSb. 
 
 infirmative, 153, 154, 536. 
 
 of conduct, particular, 521. 
 
 of conduct on part of complaining party, 624. 
 
 relative position of, in a body of evidence, 582. 
 
 principal and minor, 582. 
 
 central and surrounding, 582. 
 
 convergence of, 582, 590, 591 ; successive, 601. 
 
 aggregation of, into a body of evidence, 178, 602, 630. 
 
 consistency of, 592. 
 
 comparison, connection and combination of, in process' of circumstan- 
 tial proof, 629, 630. 
 
 interpretation of, in process of circumstantial proof, 629. 
 
 composing corpus delicti, 677. 
 "FACTS CANNOT LIE," 217. 
 FACTUM PROBAJVncrM, 119. 
 FAILURE of investigation by evidence, 106, 205. 
 
 to convict, when a duty, 205 ; when error, 206. 
 to establish an alibi, effect of, 519. 
 to hide or fly after crime, effect of, 522. 
 FALL of snow, on a night of crime, 130, 265. 
 
 from a height, whether accidental, suicidal or homicidal, 692. 
 FALLIBILITY of all human evidence, 2U, 235. 
 FALLING bodies, sounds of, 258, 388. 
 
 on pointed instruments, 699. 
 FALSE facts, 218. 
 
 confessions, 215, and note (d); 467, 468. 
 
 reasons alleged for procuring means of crime, 347, 365. 
 
 excuse for coincident absence, 380. 
 
 response or explanation, 488; effect of, as a criminative circumstance, 
 494; infirmative considerations, 576. 
 
 excuse of having found stolen property, 493. 
 
 explanations of minor facts, 493, 494. 
 
 attributing cause of death to accident, 491; to suicide, 492; to the 
 felonious act of another, 492. 
 
INDEX. 765 
 
 FALSITY of statement by accused, how ascertainable, i83; by express proof, 
 489; by inconsistency with other facts, 489; by inconsistency 
 with other statements of accused, 490 ; by intrinsic improba- 
 bility, 491. 
 FALTEKING of voice, as a symptom of agitation, 476. 
 FATETUR /acinus qui judicium fugit, 472. 
 FAVORABLE view of circumstantial evidence, 216. 
 
 circumstances to accused, on charges of passing counterfeit 
 money, 523; on charges of receiving stolen goods, 523. 
 FEAR on arrest, as expressed by visible emotion, 476; infirmative considera- 
 tions, 571, 572. 
 FEET, impressions of, on earth or snow. 264. 
 FEMALES as poisoners, 358. 
 FENCES, blood on, 257. 
 FERRY, circumstance of crossing, 93, 378, 626. 
 
 vicinity of crime to, 378. 
 FIELD, as the scene of a crime, 256. 
 
 FIGURES expressive of combination of facts into a body of evidence, — a chain, 
 179, 601; an arch, 179; a rope, 179; a frame work, 601; a 
 net-work, OUO. 
 FINDING articles of criminative evidence in possession of an accused, 437, 
 .438. ' 
 
 as a cause of possession of stolen property, 562. 
 excuse of, 493. 
 FINGER, want of, 260. 
 
 FINGER-marks, bloody, 257; on the throat, 707. 
 FINGER-nails, marks of, around the mouth, 707. 
 FIRE, traces of, 257. 
 
 indicated by heat of a wall, 258, 259. 
 
 destructiou of human bodies by, 4U7; of criminative articles by, 409. 
 injuries to human bodies by, 707. 
 FIRE-ARiMS, as instruments of death, 254. 
 excuses for obtaining, 317. 
 possession of, 363, concealment of, 364. 
 signs of recent discharge of, 255. 
 reports of discharge of, 258. 
 
 distance from body, as indicated by the wound, 70C. 
 FIRMNESS in jurors, 241. 
 FL.4ME, traces of on a building, 257. 
 FLIGHT after crime, 409; eflect of as an admission of guilt, 472, 474. 
 
 infirmative considerations, 169. 
 FLOOR, bloody, 256, 687. 
 
 as concealing a body or other subject of crime, 261, 374, 376. 
 FLUIDS on clothing, presence of, detected by smell, 276; by taste, 276 
 FOLLY of crime and criminals, 668—670, 675, 676 
 
766 INDEX. 
 
 FOOT-PRINTS on earth or snow near the scene of a crime, 257, 264. 
 ordinary, 264. 
 
 number and direction of, 264. 
 as indicating action, 266; sex, 266. 
 peculiar, 267. 
 
 comparison of, with feet, shoes &o., 267, and note (i), 466. 
 inferences trom, 82, 264—269. 
 how explained, 535. 
 infirmative considerations, 542, 543. 
 as going to identify a criminal, 266, 267. 
 as showing a corpus delicti, 264, 686, 687. 
 FOOT-STEPS, sound of, 258; marks of, 257, 264. See Foot-prints 
 FOREIGN substances found attached to a dead body, 254. 
 
 in wounds, 702. 
 FORGERY, motive to, 285. 
 subject of, 253. 
 
 materials of, 260; receptacles of, 261. 
 instrumeats of, 255; receptacles of, 261. 
 scene of crime in, 256 ; appearances at, 256 ; sounds heard ata 
 
 258; objects found at, 259. 
 fruits of crime In, 261. 
 proof of corpus delicti in, 726. 
 FORGERY of physical facts or real evidence, 131, 132, 233, 420. 
 malicious, 427. 
 
 self-exculpative, 424. See Fabrication. 
 FORGETFULNESS of criminals, 674. 
 FORT 10 R PRMSUMPTIO, 64, 66. 
 FOUNDATION or principle of presumption, 14. 
 FRAGMENTS of an exploded machine, 255. 
 
 of clothing or paper found at a scene of crime, 272, 273. 
 of objects found at a scene of crime, corresponding with other 
 fragments found on an accused, 272, 273. 
 FRAME-WORK of facts, 601. 
 FRAUD, as a cause of possession of property, 663, 564, 565; of criminative 
 
 articles, 425 — 428. 
 FRAUDULENT alibi, how tested, 232. 
 
 fabrication of evidence, 233. 
 FRONT-TOOTH want of, 260; impressions showing, 269. 
 FROTH in the lungs of a body found in water, 712; in the trachea and air 
 
 passages, 712. 
 FRUITS OF CRIME, 261; as indicia of crime, 261. 
 
 as articles of criminative evidence, 438, 442, 445. 
 as means of identifying criminal, 277. 
 possession of, by an accused, 277, 442, 445, 447, 
 
 450; infirmative considerations, 561. 
 concealment of, 417. 
 
INDEX. 767 
 
 FULL confessions of guilt, effect of, 495, 496 
 
 proof, 195. 
 FURNITURE, disordered appearance of, 710. 
 
 G 
 
 GAIN unlawful, motive of, 285. 
 GAIT of criminal, as a means of identification, 260. 
 GATES, blood on, 256. 
 
 GENERAL appearance of persons, as ground of identification, 633; as con- 
 firmed by marks, 644. 
 tilings or specific articles, 634; as confirmed by 
 marks, 644. 
 character, 526, and note (a). » 
 
 course of judicial investigation of crime, 685, 586. 
 feet of conduct, or moral character, 524. 
 foundation of presumption, 14. 
 hypothesis, 82, and note (a), 
 or ordinary observation of facts, 98. 
 GENUINE facts, 181, 221. 
 GETTING persons out of the way, to prevent observation, 351. 
 
 witnesses out of the way, 418. 
 GIVING various false and inconsistent accounts of cause of death, 460. 
 
 improbable or contradictory accounts of manner of death, 460; in- 
 firmative considerations, 567. 
 GLASS, shivering of, sound of, 258; wounds by falling on, 693; fragments 
 
 of window, as indicating direction of a shot, 701. 
 GLOVE found at scene of crime, as means of identifying the criminal, 271. 
 GOOD CHARACTER, evidence of, in larceny, 454, 455. 
 GOODS STOLEN, as the fruits of crime, 261. 
 identification of, 652, 654. 
 GOWN, mistakes as to identity of, 655. 
 GRAIN, identification of, 652. 
 
 GRAINS of wheat scattered near a scene of crime, 259 
 GRASS, blood on, 257. 
 
 in hands of a body found in water, 714; in stomach, 713, 
 GROUND, appearance of, near a dead body, 257, 686. 
 blood on, 257, 687. 
 impressions on, 257. 
 GROUNDS of presumptions of fact, 56. 
 GUESTS at an inn, as subjects of crime, 356. 
 GUILT, indicia or badges of, 83. 
 
 hypothesis of, 119. 
 GUN, as an instrument of death, 254. 
 appearance of, as found, 882, 
 
7 'J 3 INDEX. 
 
 GUN, report of, as heard, 379, 381. 
 
 GUN-SHOT WOUNDS, 700; peculiarities of, 700. 
 
 accidental, suicidal and homicidal, how indioated,700. 
 
 near wounds, appearance of, 700. 
 
 direction of, and of projectile, 700 ; marks made by 
 a ball. 701; presence or absence of a weapon, 
 701, 702; examination of projectile, 702. 
 
 blackened appearance of fingers in cases of, 702. 
 
 foreign substances found in, 702. 
 
 number of, 702, 703. 
 
 HABEMUS optimum iestem confltentem reum, 496. 
 
 HABIT of nature, 15. 
 
 HABITS of individuals, as grounds of presumption, 21. 
 
 as affecting motives, 327. 
 HACKNEY-COACH, as a scene of crime, 258, 378. 
 HAGGARD appearance of countenance in suicide, 686. 
 HAIL, figure of, applied to the effect of a combination of circumstances, 17S, 
 
 note (c). 
 HAIR, found in hands of a corpse, 428. 
 HAMMER, used in fabricating evidence, 427, 428. 
 HAMMERING, sounds of, at a scene of crime, 258. 
 HANDKERCHIEF, as an instrument of strangulation, 255. 
 HANDS, impressions of, at a scene of crime, 257. 
 
 of a deceased person, wound on, 695, blood on, 696' substances found 
 
 clenched in, 692; razor found grasped in, 696; pistol, 70S. 
 of a body hanging, found tied, 711. 
 HANDWRITING, identification of, 661; disguises of, how penetrated, 662, 663. 
 HANGING, death by, 708. 
 HARMONY of circumstances, 84. 
 
 HASTE and secresy, as concomitant circumstances, 380 — 382. 
 HASTINESS of movement near a scene of crime, 378, 380, 381, 882, 385; 
 infirmative considerations, 553. 
 on the part of a deceased person, 494. 
 HASTY burial of body, 403, 406; as indicating a corpus delicti, 684. 
 
 escape from a scene of crime, 398, 399, 471. 
 HAT, left at or near a scene of crime, 271, 587. 
 accused seen without, 594, and note (a). 
 HATCHET, as an instrument of death, 254; blood on, 255, 642. 
 left at a scene of crime, 271, 589. 
 impiession of, on handkerchief of accused, 642. 
 HATREl), motive of, 290, 291. 
 
 expressed in terms, 337. 
 
INDEX. 769 
 
 HEAT of a wall, as indicating fire, 258. 
 of ashes in a stove, 259. 
 effect of, on color of iron, 82. 
 HOMICIDAL wounds of the contused kind, 690, 692. 
 of the incised kind, 694—698. 
 of the punctured kind, 698, 699. 
 gun-shot, 700, 702. 
 HOMICIDE, corpus delicti in, 678. See Murder. 
 HOOF-PKINTS, as indicating a corpus delicti, 687. 
 HORSE, use of, in going to or from a scene of crime, 382. 
 tramp of, heard near a scene of crime, 258, 381. 
 condition of, as found immediately after a crime, 260, 882. I 
 
 peculiarity of, as means of identifying a criminal, 640. 
 kick from, as a cause of death, 690, and note (a). 
 HOBSE-BACK, position of parties on, 636, 637. 
 HORSE-HAIR, adhering to a rifle, 260, 382. 
 
 HORSE-THIEF case, as related by Sir Matthew Hale, 212, note (a). 
 HOUSE, as the scene of a crime, 256. 
 
 appearance of interior of, as indicating crime, 256, 257, 687. 
 traces of entrance from without, 265 ; want of such traces, 266. 
 exclusive presence of persons in, 370, 372. 
 nature of entranoes.to be considered, 370, 371, and'note (a), 
 burning of, as a means of concealing crime, 416, 707. 
 HUE AND CRT in ancient police, 62, 63, note (</). 
 HUSBAND and wife, relation of, as affording opportunities to crime, 394, 
 
 897. 
 HYPOTHESIS, what, 146, note. 
 
 of guilt, or aSBrmative, 119, 182. 
 HYPOTHESES, opposite, as tests of presumption, 31—34; rules as to their 
 application, 3?, 33; general and particular, 32, 
 note (o). 
 as tests of the correctness of the conclusions of a 
 jury, 152, 155, 183. 
 counter, negative or infirmative, 183; that there has been no 
 criminal agency in the case, 183; that the criminal 
 agent has been some other person than the prisoner 
 183. 
 principle of application of, 186. 
 
 should all be considered, 187; consequence of overlook- 
 ing, 187. 
 process of applying, as tests, 188—192. 593—595. 
 exclusion of, 188 — 192, 
 
11Q INDEX. 
 
 IDENTIFICATION of persons, 635. 
 
 of the peison of the subject of a crime, 635-, of a dead 
 body, 681; by direct evidence, 681; by circamstanc- 
 es, 681; of a skeleton, 681. 
 of the person of a criminal, 635. 
 
 by remoter circumstances, 635. 
 by more proximate circumstauoes, 637. 
 by observed appearances of the criminal as 
 seen about the time, 382, 383, 384, 
 637; by size, 638; peculiarities of per- 
 sonal appearance, 638; dress, 689; 
 Toice, 640. 
 by physical coincidences and connections, 
 273—279, 588, 589. 
 of things, 651. 
 of subjects of crime, 651. 
 of goods or merchandize, 652. 
 of specific articles of property, 654. 
 of money, 657. 
 of instruments of crime, 659. 
 of objects found at scene of crime, or in posseaaioa of ac- 
 cused, 660. 
 of handwriting, 661. 
 process of, particularly considered, 631. 
 IDENTITY of person of accused as seen near scene of crime, 382. 
 
 mistakes as to, 215, note (6) ; cases of, 644 — 651. 
 of property stolen, 453; mistakesas to, 654, 655; destroying, 452. 
 ILL HEALTH, state of, created or taken advantage of, by poisoners, 358, 392 
 ILL WILL, expressions of, 835. 
 IMPEACHING character of accused, 533. 
 IMPLEMENTS of arson, 255; of burglary, 255, 439, note (o); of counter- 
 
 felting, 255; concealment of, 364. 
 IMPRESSIONS on the sense of smell, 258; touch, 258; taste, 259. 
 
 from the body of a criminal at a scene of crime, 257, 641. 
 on earth or snow, of the feet, shoes, &o., 264; outside of a 
 
 house, 265. 
 on earth or snow, from the' knee, 269. 
 of the teeth, 269. 
 
 of instruments of crime, 270; as specially indioating the of- 
 fender, 270, 641 ; held or used in a peculiar manner, 271. 
 of a seal on a letter, 270, 271, 641 
 of a bloody instrument on dress of accused, 642. 
 
INDEX. 771 
 
 IMPROBABILITT of existence of motive, 316. 
 
 of accoonts-of death, 491. 
 INABILITY of accused to commit the crime charged, 511. 
 INADEQUACY of motiTC, 316. 
 INCENDIARY cwitrivances, 346, 438, and note (j). 
 
 INCISED WODNDS, 6935 appearance and cause of 693; characteristics of 
 accidental wounds, 693; wounds of the throat, sui- 
 cidal and homicidal how distinguished, 694; indica- 
 tions from extent, irregularity and direction of, 
 694; iiumber of, 695; absence of a weapon, 696; 
 condition of a weapon found, 696; position of wea- 
 . pon, 696; of the body, 697; cuts in the clothing, 
 697 ; marks of blood in apartment and on body , 697. 
 INCOMPLETE response to interrogation, 486; infirmative considerations, 575. 
 INCONSISTENCY of foots or circumstances, 163; causes of, 164; when im- 
 material, 163. 
 of crime and criminal conduct, 667. 
 INCULPATORY circumstantial evidence, 252. 
 INDENTATIONS of a club, 255. 
 by a ball, 257. 
 
 by the stroke of a heavy implement, 257. 
 INDEPENDENCE of evidentiary facts, 159, 160. 
 TJ\/DEX animi sermo, 332. 
 
 INDICATION of principal or central fact by surrounding circumstances, 582. 
 INDICATIONS of crime, moral, 251, 252; mechanical, 221, 252. 
 
 at a scene of crime, derived from the person, 263. 
 on the person or premises of the accused, 275.— 278. 
 INDICE, in French law, 121, note {d). 
 IJVDICIA of the Roman law, 121, note (rf). 
 IJ\rDICIA induhilata qua fidem extorquent, 61, note {g). 
 
 or badges of guilt, 83. 
 INDIRECT or oblique evidence, 4, 5, note (o) . 
 
 confessional evidence, 495; statements, 500, 
 infirmative considerations, 576. 
 INDUCEMENT, 283. ' ' 
 
 INFERENCE, process of, 5, 145; general and special, 5, 6, note (c). 
 in direct evidence, 210, 211. 
 from inference when allowable, 138. 
 INFERENTIAL evidence, 211. 
 
 INFIRMATIVE suppositions or considerations, 153; use and application of, 
 153—155, 593—595. 
 hypotheses, 153, 183, 184, 186; how applied, 188—192. 
 facts or circumstances, 153; why so called, 154. 
 INFIRMATIVE CONSIDFJIATIONS applicable to criminative facts proved. 
 
iTii INDEX. 
 
 INFIRMATIVE CONNSIDEEATIONS applicable to physical fects, 538; as 
 
 showing a corpus delicti, 688< 
 
 to criminatiTe articles found in 
 possession, 539. 
 
 to the fact of possession of stolen 
 articles, 539—541. 
 
 to criminative appearances on the 
 person, 541 ; blood, 541 ; cuts, 
 scratches, trounds, 542. 
 
 to criminative appearances at the 
 scene of crime, 542; prints 
 of shoes, 542; bloody tracks, 
 643 ; impressions, from other 
 parts of the person, 543. 
 
 to facts of condnct or moral cir- 
 cumstances, 543. 
 
 to motives to crime, 544. 
 
 to verbal intimations of intended 
 criminal action, 544. 
 
 to expressions of ill will, 545. 
 
 to declarations of intention, 545. 
 
 to threats, 546. 
 
 to preparations for crime, 546. 
 
 to opportunities and facilities for 
 commission of crime, 549. 
 
 to attempts to commit crime, 550. 
 
 to proximity and other eoncomi- 
 tant circumstances, 551. 
 
 to destruction, suppression and 
 eloignment of evidence, 554. 
 
 to fabrication or forgery of evi- 
 dence, 557. 
 
 to possession of articles of crimin- 
 ative evidence, 560. 
 
 to recent possession of the fruits 
 of crime, 561. 
 
 to sudden change of life or cir- 
 cumstances, 666. 
 
 to giving diSerent and inconsistent 
 accounts of the cause of the 
 death of a person, 567. 
 
 to objecting to examination of a 
 dead body, 568. 
 
 to refusal to look at a dead hody, 
 568 
 
INDEX. 773 
 
 INFIRjMATIVE considerations appUcable to agitation on looking at a 
 
 dead body, 568. 
 to alarm in view of discovery, 569. 
 to concealment and flight, 569. 
 to conduct and language on arrest, 
 and fear as expressed by de- 
 portment, 571. 
 to silence under accusation, 574. 
 to evasive and incomplete response, 
 
 575. 
 to false response, 576. 
 to indirect confessional evidence, 
 576. 
 INFLAMMABLE substances as means of arson, 255. 
 
 materials for making, 260. 
 finding in possession Of an accused, 438. 
 INFLEXIBLE proofs, 222. 
 INNOCENCE, presumption of, 39, 58. 
 INNOCENT fabrication of evidence, 557, 559. 
 
 persons, cases of conviction of, 211 — 215. 
 INQUIRING after a deceased person, 429. 
 INQUIRY judicial, compared with philosophical, 90 — 114. 
 INSTRUMENTS of crime, 254; left at a scene of crime, 271. 
 
 procurement and construction of, 345; excuses for, 
 
 347. 
 possession of, 362, 437, 438, 441. 
 concealment of, 864. 
 identification of, 659. 
 INTENDMENTS of law, 45. 
 INTENT, what, 284, and note (c). 
 
 when enquired into, 298; when inferred, 59, 297, 309. 
 
 to kill, 298; to maim, 298; to ravish, 298; to rob, 298; to steal, 
 
 298; to defraud, 59. 
 in setting fire to a building, 44. 
 in striking a mortal blow, 309. 
 in administering poison, 44, 310. 
 in destroying evidence, 664. 
 as explaining particular facts of conduct, 664. 
 INTENTION criminal, what, 284. 
 
 declaration of, 338. 
 change of, 546, 549, 551. 
 want of, 547. 
 anticipation of, 549. 
 INTEREST or policy of criminal, 667; not uniformly regarded, 667, 669. 
 of accused, as an exculpatory circumstance, 522. 
 
774 INDES. 
 
 INTERMENT, as a means of concealing a dead body, 403; hasty, 406. 
 INTERPRETATION of facts in process of circamstantial proof, 629. 
 INTERROGATION of accused, judicial, 481; extra-judicial, 481. 
 INTERVAL of absence of accused, coincident with perpetration of crime, 384. 
 INTIMATIONS of intended criminal action, 331. 
 
 of an approaching death, 338, 617, 618; infirmative consid- 
 erations, 544. 
 INTOXICATION, words uttered during, 545, 546. 
 
 property taken during, 562. 
 INVESTIGATION, judicial, general course of, 585, 586. 
 
 process of, in a particular case supposed, 586— 
 
 597. 
 rather before than by jury, 242. 
 IRON, discoloration of by fire, inference from, 82. 
 
 rust on, resembling blood, 137. 
 IRREBUTTABLE presumptions, 46. 
 
 IRRESPONSIBLE agency, as a cause of possession Of stolen goods, 562. 
 ISSUE in criminal cases, 3, 4. 
 
 JEWEL, possession of, by several, 565, 566. 
 JUDGES' CHARGES, use of, 242. 
 
 JUDGMENT, faculty of, employed in presumption, 5, 23, 80. 
 exercise of, 193, 240. 
 in jurors, 239, 240. 
 JUDICIAL confessions, 497. 
 interrogation, 481, 
 presumption, 41, 42. 
 
 inquiry, compared with philosophical, 90, 91. 
 investigation of crime, general course of, 586, 586. 
 JUMCTA JUVAMT, 178. 
 JUROR, oath of, 93. 
 
 not an original observer, 96. 
 discretion of, 105. 
 observation of, 105. 
 cannot supply facts, 106. 
 
 opinion of, how made up, 107, 108, note ; 598, 601. 
 not allowed to take notes, 108. 
 investigates under constraint, 109. 
 qualifications of, considered, 238 — 241. 
 virtual functions of, 242. 
 JUET, trial by, adapted to the use of presumptive evidence, 59, 69, note (o) , 
 facts how considered by, in practice, 598. 
 how lud before, 699—601. 
 
INDEX. 775 
 
 JUXTA-POSITiaN of an aooa'^ed to the scene or subject of a crime, 368, 369. 
 of accused and deceased before and after crime, 369, 370. 
 Immediately after, 372, 373. 
 immediately before, 375. 
 
 K 
 
 KEY, mark of, on face of an accused, 275, 641. 
 KEY-HOLE, observation through, 416, note. 
 KEYS, as instruments of burglary, 255. 
 
 of a deceased found on an accused, 277, 438. 
 KNEE, impression of, on ground, 257, 269; infirmative considerations, 543. 
 KNIFE, as an instrument of crime, 254. 
 
 blood on, 255. 
 
 left at a scene of crime, 271. 
 
 bloody, found in hands of an accused, 373. 
 
 broken-bladed, found on accused, 272. 
 
 found sticking in floor, as indicative of homicide, 697. 
 KNIFE-BLADE, piece of, found at a scene of crime, corresponding with a 
 broken knife found on accused, 272. 
 as holding and concealing a coin, 560. 
 KNOWLEDGE, as distinguished from presumption, 12, 13. 
 
 LANDLORDS as criminals, 356. 
 
 LANGUAGE of an accused, before crime, 280, 332, 335, 338. 
 
 after crime, 429—435, 452, 460—464. 
 on arrest, 474. 
 
 infirmative considerations, 571. 
 LAECENY, subject of? 253. 
 
 scene of, 256; objects found at, 259. 
 
 fruits of, 261; receptacles of, 261; recent possession of, 445, 
 446; infirmative considerations, 539, 561 — 566; concealed 
 possession, 451, 452. 
 proximity of person in, 451. 
 
 conduct after, 452; sudden change of circumstances, 457; infir- 
 mative considerations, 566; destroying identity of property, 
 452; infirmative considerations, 554. 
 language after, 452; statement of accused, when to be regarded, 
 454. 
 fkvorable circumstances to the accused, 554. 
 character evidence in, 454, 455. 
 LAST Been alive in company of accused, 367, 377; infirmative considerations, 
 553. -11 
 
776 INDEX. 
 
 LAUREL-WATER, eiisteuoe of, inferred from smeU, 608, 609, and note (d). 
 
 LAW, presumptions of, 45. 
 
 LEAD for making bullets, 260. 
 
 LEADING inquiry away from certain localities, 464. 
 
 LEAVES for distilling a poison, 260. 
 
 LEFT-HAND, indications of use of, where the accused is left-handed, 260, 
 
 271. 
 LEFT-HANDED persons, appearance of wounds by, 694, 698. 
 LEGAL experience, 50. 
 
 presumption, 45, 50. 
 
 penalties, as sources of restraining motives, 318. 
 LEGITIMACY, presumption of, 39. 
 LETTER, piece of, composing wadding of a charge, 272, 273. 
 
 correspondence of, with sheet of paper found on accused, 
 273 ; or near where he had been, 625. 
 LETTERS, writing, to mislead inquiry, 431. 
 identification of, 661, 662. 
 
 found in possession of a deceased person, 622, 623 — 626. 
 LEVIOR PRMSUMPTIO, 64. 
 LIABILITY of circumstantial evidence, to error, 209. 
 
 of alibi evidence to abuse, 515. 
 " LIE" as applied to facts or circumstances, 217. 
 LIGATURES marks of, on a dead body, 688. 
 
 found on a body in water, 715, 716. 
 LIGHT of moon, on a night of crime, 130, 382. 
 of a street-lamp, 130. 
 caused by a sudden flash, 640. 
 LIGHT presumption, 60, 61, 65, 70. 
 LIGHTS, as means of arson, 255. 
 
 on premises at unusual hours, 257. • 
 
 suddenly extinguished, 257. 
 LIME, placed in a still after use, 619. 
 
 LINES of indication from circumstances, 582; convergence of, 882. 
 LINT adhering to a newly-discharged rifle, 260. 
 LIQUOR for stupefying subject of rape or robbery, 255. 
 LOCKET, as an article of criminative evidence, 438. 
 LOCKED-UP premises, sounds from, 258. 
 LOCKING .doors at a scene of crime, 414, 416. 
 LODGERS, as subjects of crime, 356, 357, and notes. 
 LOOM, cloth cut from, 170, 175. 
 LOVE-POWDER, arsenic administered as, 811. 
 LUCE clarioribus, 187, note. 
 LURKING around a scene of crime, 850, 398. 
 
INDEX. 777 
 
 M 
 
 MAGPIE, the cause of a supposed theft, 562. 
 MALICE presumed from fact of killing, 48, 59. 
 MAIilCIODS forgery of real evidence, 427. 
 MALIGNITY of purpose, 293. 
 
 MARES of Violence on a dead body, 254 ; as indicating caniie of death, €88. 
 See Bruises, fVottnds. 
 on the dress of a person found dead, 254. 
 on the person and dress of complainant in rape and rob- 
 bery, 254; simulated, or self inflicted, 424, note (a), 
 on the ground near a dead body, 257. 
 on adjacent objects, 256. 
 on buildings forcibly entered, 254, 257, 270. 
 simulated, 423, 424. 
 of instruments of violence, 256, 257, 270; held in a particular man- 
 ner, 271; of a ball or other projectile, 257, 701. 
 of fijot-steps, 257. See Foot-prints. 
 of the hand or knee, or other parts of the body, 257. 
 of Struggles or resistance to violence, 257, 686, 687. 
 of dragging a body, 257, 686. 
 of blows, cuts or scratches on tne person of an accused, 275, 641, 
 
 642; inflrmative considerations, 542. 
 of fire or smoke, 257. 
 of the explosion of a machine, 257. 
 of burglars' tools, 257. 
 
 on physical objects, obliterated by handling,- 142, note (a) 
 on stolen articles, removing; 417. 
 identification of persons by, 644. 
 
 of things, 652, 657, 658, 660. 
 MATCHES as means of arson, 255. 
 MATERIALS of circumstantial evidence, 120, 250. 
 of subject-matter of crime, 260. 
 
 of means of crime, 260; of poison, 260; bullets, 260; inflamma- 
 ble substances, 260; plates and paper for counterfeiting, 
 260. 
 MEANS OF CRIME, in connection with motives, 329, 330. 
 
 an essential circumstance in criminative evidence, 367. 
 construction of, 345, 346. 
 ' procurement of, 344 — 346. 
 possession of, 343, 354, 862, 615. 
 trials of, 350. 
 concealment of, 364. 
 MECHANICAL coincidences, 169. 
 facts, 253. 
 
778 INDEX. 
 
 MEDICAL draught, and its effects in Donellan's case, 604, 605. 
 evidence, 683. 
 jurisprudence, 688. 
 MEDICINE-bottles, contents of, destruction of, 606, 607. 
 MEDIUM of evidence, 134. 
 
 MEETING a person at a place desigmated, 169, 170, 172, 173, 174. 
 MELTING down plate, 417. 
 
 MEMORY, the repository of observed facts, 104, 108. 
 MEJVS, 284, note (o). 
 
 MENTAL ENDOWMENTS, as a source of restraining motives, 323. 
 MERE presumption, 27, and note (6); 65. 
 METAL for coining in counterfeiting, 260. 
 MICROSCOPE, use of, in identifying blood, 137, note (4). 
 MIND, character of, as creating or adding force to motive, 304. 
 MINOR FACTS, 121, 582. 
 MISAPPREHENSION by witness, of appearances, as preparations for crime, 
 
 546, 547. 
 mSTAKEN identity, 552; oases of, 64*— 651. 
 MISTAKES of witnesses in identifying offenders, 552. 
 of alibi witnesses, 516, 517. 
 in identifying articles of property, 654, 655. 
 as to weapon supposed to have been the means of death, 691. 
 in verdicts, sources of, 207. 
 MISUNDERSTANDING of language of accused, by a witness, 544, 546, 576, 
 577. 
 of conduct of an accused, 551. 
 MONET as the subject of crime, 253. 
 
 as an article of criminative evidence, 438. 
 as the fruits of crime, 261; possession of, 277. 
 identification of, 657. 
 MOON-LIGHT on a night of crime, 130, 382. 
 MORAL certainty, 94, 192, 199, 200. 
 
 character, as a source of restraining motives, 323. 
 
 as an exculpatory circumstance, 524. 
 circumstances, 280. 
 coincidences, 169, 174. 
 evidence, 80, note (c) ; fabrication of, 429. 
 facts, 129. 
 necessity, 199. 
 truth, 93. 
 MOTIVE to crime, how ascertained, 126, 127, 299. 
 a psychological fact, 282, 299. 
 a criminative circumstance, 313. 
 defined, 283. 
 distinguished from object, 283. 
 
INDEX. 779 
 
 MOTIVE external and intomal, 283. 
 
 of gain, 285, 286; force of, 286; excited by visible objects, 286; 
 800, 301; by property under one's control, 287; by the pros- 
 pect of a lucrative event, 303. 
 of gratification of passion, 200; hatred, 290; revenge, 291; force of, 
 
 293. 
 in cases of wanton injury, 294. 
 when necessary to be inquired into, 296, 298. 
 may be inferred, 296, 297. 
 influenced by character, 304—307. 
 evidence of, weight and value of, 312. 
 absence of, 815, 816. 
 adequacy of, 316. 
 
 qualified by habits and tastes of individuals, 327. 
 MOTIVES, the sources of crime, 281, 282. 
 
 importance of, as criminative circumstances, 296. 
 sources of, in external objects, 300; in circumstances and relations 
 of individuals, 303 ; in the character of the mind itself, 304. 
 several, existence of, 294. 
 election of, 307. 
 
 as evidenced by previous acts, 311. 
 conflict of, 318. 
 restraining, 818. 
 
 and intents, as psychological considerations, 663, 664. 
 and acts, as causes and effects, 18. 
 infirmative considerations, 544. 
 MOVEMENTS of criminal, as indicated by foot-prints, 264—266. 
 
 as traced by articles observed in his possession, 
 643. 
 MOVING articles about in a room or building, sounds of, 258. 
 MURDER, subject of, or person killed, 253; place where found, 685. 
 
 appearance of body as found, 253; receptacles of, 261. 
 instruments of, 254; appearances of, as found, 255; absence of, 
 
 696, 698, 701. 
 scene of, 256; appearances at, 256, 257; sounds heard near, 258; 
 
 detached bodies found near, 259. 
 fruits of, 261 ; as indicia of presence of murderer, 261. 
 
 receptacles for concealing, 261. 
 motives to, 285, 290. 
 language previous to, 381 — 342. 
 preparations for, 345. 
 
 acquisition and possession of means of, 345 — 349. 
 opportunities and fiioilities for, 354, 392. 
 attempts to commit, 365. 
 
 proximity of accused to person of deceased, 369 — 377; to scene of 
 crime. 2?7— 379. 
 
780 INDEX. 
 
 MnHDER, possession of wealth after, 457, 458. 
 
 conduct and language after, 460. 
 
 concealment and flight after, 469. 
 
 conduct and language on arrest for, 474. 
 
 criminative appearances on person in, 275— 278i 
 
 demeanour during trial for, 502, 506. 
 
 of relatives, 822. 
 
 roadside, 858. 
 
 by poisoning, 389, 891. 
 MURDR UM, in old English law, 117, note (a). 
 MUTE witnesses, 217, 222. 
 MUTILATION of dead body, 254. 
 MUTUAL support among evidentiary facts, 592, 
 
 N 
 
 NAIL-PBINTS in foot-marks, 268, 269. 
 
 NAME, denial of, by a prisoner, 475. 
 
 NATURAL affections, as sources of restraining motives, 321. 
 
 causes of death, 684; supposition of, to be excluded, 684. 
 marks on person of accused, 260. 
 presumption, 11. 
 
 object of, or proposed fact to be ascertained, 12. 
 source, foundation or nature of, 13. 
 forms of, 13, 14. 
 
 general foundation or principle of, 14. 
 character of process of, 22. 
 
 involved in application of circumstantial evidence, 193. 
 NEAR WOUNDS, 700. 
 
 NECESSARY inference, not presumption, 22 note (tZ). 
 NECESSITY of presumptive or indirect proof, 68, 69. 
 of acting on presumption, 72. 
 of circumstantial evidence, as a means of investigating crime, 
 
 116. 
 of both direct and indirect evidence, 236. 
 self-imposed by criminal, 673. 
 NECK, marks of a cord on, 709, 710, 714; of fingers on, 707. 
 
 wounds on, 694. 
 NECK-CLOTH, left at a scene of crime, 271. 
 NEGATIVE hypothesis, 82, note (a) ; 183. 
 
 point of view of circumstantial evidence, 181. 
 NET-WORK of evidence, 600. 
 
 NEWSPAPER, pieces of, correspondence between, 272, 273, note (a). 
 NIGHT, as a season of crime, 127. 
 
INDEX. 781 
 
 NON-AVOIDANCE of observation, 522. 
 
 NUMBER of evidentiary facts or circumstances, 83, 122, 133. 
 
 importance of, 139, 143, 219, 221. 
 operation and effect of, 156. 
 of wonnds on a human body, 254, 692, 703; incised wounds, 695; 
 gun-shot wounds, 702. 
 
 
 
 OATH of jurors, 93; of witness, 93. 
 OBJECT, as distinguished from motive, 283. 
 
 of inqmry, or principal fact sought, 118. 
 OBJECTING to having a dead body examined, 461 ; infirmative considerations, 
 568. 
 to particular modes of search, 464. 
 OBJECTIONS against circumstantial evidence, 208, 209. 
 OBJECTS left at a scene of crime, belonging to the offender, 271 ; correspond- 
 ing with other objects in possession of the accused, 271, 272. 
 fragments or portions of, corresponding with portions found on the 
 
 accused, 272; identification of, 661. 
 taken from the scene or subject of crime, and found on premises or 
 
 person of accused, 277; identification of, 661. 
 in possession of accused, peculiarities of, 260. 
 criminative, enumerated, 436 — 438, and notes. 
 OBSERVATION by juror, character of, 97. 
 
 by witness, character of, 97, 100. 
 general or ordinary, 98. 
 particular, 99. 
 
 completeness and accuracy of, on what dependent, 103. 
 before and after a crime known, 103, 106. 
 of physical facts, requisites of, 140. 
 OBSERVATIONS, registry of, not made by witness, 104; nor by juror, 108. 
 OCCUPANCY of premises where criminative articles are found, character of, 
 
 441. 
 ODOR of burning substances, 258. 
 of poisonous substances, 258. 
 of inflammable liquids, 258. 
 OMENS of death, 334. 
 
 OMISSION to hide or fly after crime, 469; rare in minor crimes, 472. 
 OMJVTA prasumuntur contra spoliatorem, 419. 
 0JVU8 PROBAJVDI, 64, 66. 
 
 presumptions which shift, 66. 
 upon which party, 728. 
 OPEN destruction of evidence, 410. 
 
782 INDEX. 
 
 OPENNESS of criminal's proceedings in administermg poison, 389, 390. 
 
 OPIJVIO, 10, note (a). 
 
 OPINIONS of the merits of circumstantial evidence, 209, 216, 223, 224, 284, 
 
 235. 
 OPPORTUNITY for the commission of crime, an essential criminative cir- 
 cumstance, 354, 367. 
 OPPORrUNITIES for the commission of crime, 354. 
 presented by accident, 855. 
 arising from existing relations of parties, 356, 357. 
 
 for poisoning, 858, 393, 894. 
 from pre-existing and fore-known circumstances, 
 358. 
 created by contrivance of criminal, 369. 
 infirmative considerations, 549. 
 OPPOSING facts of cases, number and degree of, 33. 
 
 OPPOSITE hypotheses or suppositions, 82; consideration and use of, 152. 
 See Hypotheses. 
 side of a case, reference to, in presumption, 152. 
 OPPROBRIOUS epithets applied to a deceased person, while living, 386, and 
 
 note (b). 
 OPTICAL glasses, used in observation of physical facts, 274, 625, 660. 
 ORDER of nature, 14—17. 
 
 in which facts are prored on a trial, 143. 
 ORDINARY foot-prints, 264, 265. 
 
 observation of facts, 98. 
 OUTWARD marks of emotion and agitation, 476. ■ • 
 
 appearances of poison, 254. : • 
 
 OVERCOATS, as part of the observed dress of offenders, i639, and note (e). 
 
 PAINTING over blood-stains, 413. 
 
 PAPER for making coTinterfeit money, 260. 
 
 PAPER, pieces of, used as wadding of a fire-arm, 272, 278; comparison o^ 
 
 272, 278. 
 PAPERS, as receptacles of poison, 261. 
 PARTICULAR physical facts, (exculpatory,) 521. 
 
 facts of conduct, 521. 
 PAR UM caxisse videtiir, 676. 
 PASSING counterfeit money, concomitant circumstances in, 400 ; favorable 
 
 circumstances in, 523. 
 PATCHES for loading a fire-arm, 272. 
 PAYMENT, presumption of, 44. 
 
 PECULIARITIES of the person of an accused, 259; as a means of identifioa- 
 tion, 638. 
 
INDEX. 783 
 
 PECULIAEITIEB of objects in the possession of an accused, 260. 
 PENALTIES of law, as restraining motives, 318, 319. 
 PERFOKATIONS made by a ball from a fire-arm, 257. 
 
 of the clothing of a dead body, 686, 698, 701. 
 PERMANENCE of the existing order of nature presumed, 17—20. 
 PERRTS' case, 215, note (d). 
 PERSON, meeting, at a place designated, 169, 170, 174. 
 
 concealment of, during the commission of crime, 125, 127 
 after crime, 469. 
 
 while concealing or destroying evidence, 414. 
 criminative articles found on, 486, 437, 441 . 
 stolen property ibund on, 450. 
 PERSONAL evidence, 129, note (6). 
 PERSONS, impressions of, 101. 
 
 as a source and seat of facts, 129. 
 identification of, 635. 
 
 heard or seen in locked apartments, 416, and note. 
 PinALS, as receptacles of poison, 261. 
 
 of medicine, destruction of contents of, 606, 607. 
 PHYSICAL FACTS or circumstances, 130, 253. 
 
 changes in, before olraervation, 140, 
 
 141. 
 early observation of, essential, 140. 
 as indicating a crime, 262; a particu- 
 lar criminal, 263. 
 objectB, appearances of, altered by handling, 141; 142, note (d). 
 connected with the person, as means of identification, 
 640. 
 coincidences, 168, 169, 641—643. 
 PICKLOCK keys, as instruments of burglary, 255. 
 PISTOL, 33 an instrument of death, 254. 
 left at a scene of crime, 271. 
 found grasped in the hand of a dead person, 702. 
 PISTOL-BULLET, fitting barrel of pistol, or buUet-mould of accused, 272. 
 PIT, as a place of concealing a body, 256. 
 PLACE, idea and impression of, 101. 
 
 of offence, or scene of crime, 356. 
 
 character of, essential to exclusive effect of proximity, 370. 
 PLANING out blood-stains, 412. 
 PLATE, breaking up and melting, 417. 
 PLATES for engraving counterfeit money, 260. 
 POCKETS rifled, 263. 
 
 POCKET-BOOK, identification of, 654; mistakes in, 654. 
 POISON, as an instrument of death, 255. 
 outward appearances of, 254. 
 
784 INDEX. 
 
 POISON, symptoms of, 259. 
 
 detection of, in a body, 254, 718. 
 excuses for obtaining, 847, 349. 
 secret preparation of, 347. 
 secret procurement of, 348, 849. 
 disguise and concealment of, 349. 
 possession of, 863. 
 POISONING, murder by, characteristics of, 389, 392. 
 
 concomitant circumstances in, 397. 
 POLICY of criminal conduct, 668; not always observed, 669. 
 of defence, in regard to evidentiary facts, 144, 145. 
 considerations of, allowed to prevail in framing presumptions of law, 
 581. 
 POND, as a place of concealing a body, 256. 
 POKTIONS of objects found at a scene of crime, 272. 
 POSITION of a body found dead, 253, 685, 697. 
 of wounds upon a body, 254, 637: 
 of an instrument found near a body, 696, 697. 
 of fragments of a glass window, 701. 
 of an offender, as indicated by circumstances, 635, 636. 
 POSITIVE evidence, 4, 5. 
 
 POSSESSION of the means of crime, 343, 862; of secret explosive machines, 
 363; of burglars' tools and counterfeiting implements, 363; 
 of secret implements of assault and mischief, 363; of 
 poison, 363. 
 of articles of criminative evidence, 436 ; character of, 489 ; ex- 
 ', clusiveness of, 441 ; recency of, 443 ; change of, 444 ; un- 
 
 conscious, 442; concealed, 442, 443 ; infirmatlve consider- 
 ations, 540. 
 of the fruits of crime, 445; inflrmative considerations, 561 — 566. 
 of property shortly after crime, 457; inflrmative considerations, 
 
 566, 567. 
 of stolen property, presumption from, 446; requisites of, 450; 
 favourable circumstances attending, 454 ; infirmative con- 
 siderations, 539. 
 of stolen property, as evidence of murder, 455; of arson, 455; 
 of burglary, 455, 456. 
 POSSIBILITIES of error in a conclusion from facts, 115. 
 when used as tests of a conclusion, 201. 
 POWER to produce counter evidence to be considered, 165 — 168. • 
 PRMSUMPTIO, 10, note (o). 
 PRJSESCrMPTIO juris, 47, 48, notes (6), (c)'. 
 
 juris et de jure, 46, note (c), 60. 
 
 levior, 64. 
 
 foriior, 66. 
 
 hominis, 24, 63, note (c). 
 
INDEX. 785 
 
 PRECEBENT circumstances, 280; remarks on, 366, 367. 
 PKECIPICE, as the scene of a crime, 256, 692. 
 
 PREDICTIONS of harm or death, 884; infirmatiTe considerations, 545. 
 PREMISES on which criminatiye articles are found, character of, 439. 
 PREPARATIONS for crime, 343; for arson, 350. 
 direct or principal, 845. 
 immediately precedent, 350. 
 auxiliary, 351. 
 to a-rert suspicion, 351. 
 infirmative considerations, 646 — 549. 
 PRESENCE of accused at scene of crime, 868; inferred, 879. 
 PRESSES, as instruments of crime, 255. 
 
 PRESUMPTION, 5, 7, 9; defined, 9, 12; etymology of, 9, notes (o), (i); a 
 process, 9; a result, 9, 10; a proposition, 10; a rule, 
 10; extent of range of, 10; an inference or conse- 
 quence, 10, note (a) ; 25 ; argument or reasoning, 10, 
 note (o). 
 in science, 10; in common life, 10, 40; in law, 1^. 
 natural, 11, 193. 
 
 as a process, 12; principle of, 14; foundation of, 
 
 14, 20, 21; character of, 22. 
 as applied to physical phenomena, 16 — 18. 
 
 to human conduct, 18. 
 as a result, 25; as founded on a single &ct, 26; 
 on several, 26. 
 degrees of, 26—29. 
 an approximation to truth, 30.' 
 considered as proof, 37; as different from proof, 36, 37. 
 in the sense of assumption or proposition, 38, 39. 
 
 of rule, 40. 
 distinguished ftom knowledge, 13. 
 judicial, 41. 
 
 artificial or legal, 42, 50. 
 
 of continuance, 21; applied to character, 528, 530. 
 of innocence, 58. 
 of intent to defraud, 59. 
 of malice, in cases of homicide, 48, 49, 59. 
 necessity of acting on, 72. 
 a process of comparison, 81, 147, 161. 
 proof of, 146; raising, 146; testing, 146, 152. 
 from acts of liestruction, suppression and eloignmentof evi- 
 dence, 419. 
 from fabrication of evidence, 435. 
 from possession of stolen property, 446. 
 
786 INDEX. 
 
 PRESUMPTIONS of law, 45; conoluaiTO, absolute or irrebuttable, 46; dis- 
 putable or rebuttable, 4T; when considered by 
 jury, 59. 
 of fact, 51, 52, 53, 65; grounds of, 56, 58; process of, 66; 
 
 contingent quality of, 57. 
 conclusive, in criminal cases, 60i 
 degrees of, 60; examples of, 63, 6i. 
 violent, 60; Coke's example; 61; Brscton's example, 62, 
 
 note, 
 probable, 60. 
 Ught, 60, 61. 
 
 slight, 64, 65; not shifting the burden of proof, 64. 
 strong, 64; shifting th& burden of proof, 64, 66, 67. 
 simple, 65 ; mere naked, 65i 
 PBESUMPTWE EYIDENCE, 7, 79; as distinguished'from conclusive, 89; from 
 
 primd facie, 90; advantages of, 227, 228. 
 reasoning, an exercise of common sense, 24. 
 proof, necessity of, 68, 69; adapted to trial by 
 jury, 68, 69> and' note (a). 
 PRETENMNG alarm, 429; sorrow, 430. 
 
 PRETEXTS assigned for procuring implements of mischief, 347 — 349 and 
 notes. 
 
 in administering poison, 390. 
 PRIMA FACIE evidence, 90; and note (c). 
 PRINCIPAL facts, 3, 118, 119, 582. 
 PRINCIPLE of presumption, 14. 
 
 of circumstantial proof, 582. 
 of the application of character evidence; 527. 
 PRINTS of foot-steps, at or near a scene of crime, 264. See Foot-prinU, 
 of hands, 257. 
 
 of nails in soles of shoes, 268. 
 PRIVACY in preparations for crime, 346—349. 
 PROBABILITIES, weighing, 85. 
 PROBABILITY, what, 81. 
 
 the foundation of presumptive reasoning, 80. 
 the basis of investigation of fact, 148. 
 test of, 14a. 
 
 of principal tkct, how arrived at, 148, 149. 
 PROBABLE reasoning, the characteristic of the process of natural presump- 
 tion, 22. 
 
 process of, its result, 25. 
 evidence, 80, note (c). 
 PROBARE estfidemfacerejudici, 38, note (6). 
 PROBATIO, 2, note (o); 10, note (a). 
 
rsTDEX. 787 
 
 PROBATIVE fecia, 3, 121. 
 
 force of a tody of oiroumstantial evidence, 156, 
 force of circiimstantial evidence, test of, 235. 
 PBOCESS of natural presumption, foundation of, 14; character of, 22. 
 
 of judicial presumption, or inference, 146; length of, 147, 148i 
 of drcumstantial proof, 581, 582. 
 
 of aggregating circumstances into a body of evidence, 584. 
 of presenting facts on a trial, 599, 600. 
 of weighing fects in evidence, 194. 
 PROCESSES involved in tlie application of circuMstantial evidence, 629; in- 
 terpreting facts, 629; accounting for theit exis- 
 tence, 629; investigating their causes, 629; com- 
 parison, 629; 630; connection and combination, 
 630 ; natural presumption, 631. 
 PROCUREMENT of means of crime, 345, 346; of disguisfes, 346, 350. 
 PRODUCTION of evidence on the part of an accused, 165, 
 
 of dead body to prove a corpus delicti, when dispensed with, 
 678, 679. 
 PROOF, what, 1; how defined, 1, 38, and notes, 
 the result and ^ect of evidence, 196. 
 
 of evidentiary facts, indispensable, 135, ISb, 144; completeness of, 
 I3S; Correctness of, 140. 
 PROPORTION of persons convicted on presumptive evidence, 118, note (c) ; 
 
 204, note. 
 PROXIMITY of accused to scene or subject of crime, 368, 369, 377—379; 
 degrees, kinds and stages of, 369 ; a strong circumstance in 
 larceny, 451. 
 of a dead body to premises of an accused, 374, 375. 
 infirmative considerations, 551. 
 PSYCHOLOGICAL facts, 130; cMisideratioM, 663. 
 PUBLICITY of trial, 109, 110. 
 
 PUNCTURED WOUNDS, 698; suicidal and homiddal, 698, 699; Socidfental, 
 699. 
 situation and direction of, 698. 
 absence of weapon in, 698; position, character and 
 appearance of weapon, 698, 699. 
 PURPOSE, what, 284, 331; how indicated, 127. 
 PURSE, as an article of criminative evidence, 437. 
 and sovereigns, case of, 169: — ^171.. 
 
 QUALIFICATIONS, circumstances so called, 121, note (rf). 
 of jurors considered, 238—241. 
 
788 INDEX. 
 
 RAISING a presumption, 146. 
 
 EAPE, marks of violence on person, in, 254; stains on dotlung of complain, 
 ing party, 254. 
 corpus delicti in, 723. 
 EATIO of increase of probabilities, 157. 
 RAZOR as an instrument of deatli, 254, 271, 696. 
 REAL CTidence, 129, note (6) ; 250, 251. 
 REASONABLE doubt, 200, 202. 
 REASONING, presumption a process of, 11. 
 REBUTTABLE presumptions, 47. 
 RECEIVING stolen property, 456, 457. 
 RECENT discharge of a fire-arm, signs of, 255. 
 possession of fruits of crime, 445, 447. 
 ■wounds on back of liands, 695. 
 RECEPTACLES of subjects, instruments or fruits of crime, 261. 
 RE-CONSTRUCTION of the case under investigation, 95. 
 REFUSING to look at a dead body, 461. 
 REGISTRY of observations in philosophical investigations, 104. 
 
 not made by witness, nor juror, 104, 108. 
 RELATION of cause and effect, 6, 667; blindness to, 667. 
 RELATIONS of parties, as indicating motives, 126. 
 
 as affording opportunities for crime, 356, 857. 
 
 for poisoning, 893, 894. 
 RELATIVE facts, 121, note (d). 
 position of facts, 582. 
 
 of a dead body, and Vfeapon found near, 685, 687, 696. 
 value of direct and circumstantial evidence, 206. 
 RENTS of clothing of a deceased person, 254, 268, 686. 
 
 of an accused, 260. 
 REPETITION of attempts to commit crime, 366. 
 REPORTS of •fire arms, 258. 
 
 as to probability of an approaching death, 833. 
 spreading, as to a missing person being seen, 430. 
 
 as to movements of a suspected party, 438. 
 as to the cause or manner of a death, 488. 
 REPUTATION, 527, and EOtes. 
 RESISTING examination of the person, 464. 
 
 arrest, 475. 
 RESPONSE, evasive, 486. 
 false, 486, 488. 
 incomplete, 486. 
 
INDEX. 789 
 
 RESTRAINING motives, 318. 
 RETRIEVING a case from obscurity, 95. 
 REVIVAL and reoal of the subject of investigation, 95. 
 RICHARDSON'S case, 243—247. 
 RIDING, as a means of rapid motion, 385, 386. 
 RIFLE, condition of, after a crime, 260, 382; patcliBs for charge of, 259. 
 RISKS encountered by criminals, 286. 
 RIVAL hypotheses, 183. 
 ROAD, as the scene of a crime, 256. 
 ROAD-SIDE murders, 358. 
 ROBBERY, corpus delicti in, 724. 
 motives to, 285. 
 preparations for, 346, 350. 
 opportimities for, 356, 357. 
 
 means of robbery of person, (stupefymg drug,) 255. 
 physical indications of, marks on buildings, 254; marks on the 
 
 robber, 259. 
 fruits of, 261, 445. 
 ROCK, as a scene and means of crime, 256. 
 ROPE, as an instrument of death, 255, 710. 
 found on neck of a dead body, 710. 
 marks of, on neok, 710, 714. 
 found grasped in hand, 714. 
 figure of, as composed of filaments, 179, 
 RULES for testing the correctness of presumptions, 32, 33 
 RULES OF CIRCUMSTANTIAL EVIDENCE, 727. 
 General and preliminary rules, 728. 
 
 Rule I. The onus of proving every thing essential to the 
 establishment of the charge' against the accused, lies 
 on the prosecutor, 728. 
 Rule n. In all cases, the best evidence must be adduced 
 which the nature of the case admits, 730. 
 Rules regulating the formation of the basis' of proof, or presenta- 
 tion of the evidence of the facts from -which the inference of 
 guilt is to be drawn, 731. 
 
 Rule I. The facts proposed to be proved, must be the 
 
 genuine facts of the case, 731. 
 Rule n. As many of the genuine facts of the case should 
 
 be presented as may be possible, 732. 
 Rule m. The evidentiary facts must all be proved, and 
 the existence of none of them can be presumed, 733. 
 Rules of inference, by which the factum probandum, is deduced, 
 in the first instance from the evidentiary facts proved, 734. 
 Rule I. There must be clear and unequivocal proof of a 
 corpus delicti, 734. 
 
79Q INDEX. 
 
 Rule n. The facts alleged as the basis of any legal infer- 
 ence must tie strictly and indubitably connected with 
 the/aciuiji pfob^iidum,, 736. 
 Bules for the more certain attainment of trath in the conclosion 
 or verdict, and &r the avoidjiDce of error and consequent in- 
 justice to the accused, 727. 
 
 Rule I. The evidence against the accused must be such as 
 to exclude, to a moral certainty, every hypothesis but 
 that of his guilt of the offence imputed to him, 737. 
 Rule II. In cases of doubt, it is safisr to acquit than -con- 
 demn, 739. 
 
 S 
 
 SADDLE, blood on, 636. 
 
 SALT-WATER on clothing of an accused, 277. 
 
 taste of, 259, 277. 
 SAND found in hands of a dead body, 714. 
 SANITY, presumption of, 39, 40. 
 SAWING, sound of, at a scene of crime; 258. 
 SAWS, as instruments of burglary, 255. 
 SCENE OF CRIME, 256; appearances at, 256. 
 
 traces at, derived from person of accused, 263. 
 proximity of accusedlo, 377 — 379. 
 presence of accused at, inferred, 379, 
 SCRATCHES on person of accused, 259. 
 SCUFFLE, sounds of, 258. 
 SEAL, impressions of, on letter, 270, 271. 
 SEARCH of premises, objecting to, 464. 
 
 of person, resisting, 464; infirmative considerations, 574. 
 SECRECY, a characteristic of criminal action, 68, 116, 124. 
 
 not uniformly observed, 667 . 
 
 in preparations for crime, 346-^345. 
 
 a peculiar characteristic of concomitant oiroumstances, 126, 388. 
 in arson, 397, 399. 
 
 a corroborative circumstance, 880, 882. 
 
 in the destruction of evidence, 414. 
 
 of burial, 405. 
 SECRET imj)Iement8 of assault and mischief, 363; explosive machines, 363. 
 SELF-EXCDLPATIVE forgery of evidence, 424. 
 SELF-IMPOSED necessity, 673. 
 SENDING persons out of the way, before a crime, 351. 
 SENSES, erroneous impressions on, 218, 219. 
 SEVERAL motives, existence and influence of, 294, 295. 
 
 chains of evidence in a case, 602, 621. 
 
INDEX. 791 
 
 SEX of party, as qualifying inferences from facts, 363, 364. 
 SHAPE of person as means of identification, 638. 
 of foot-prints, 267. 
 
 of incised m)vmds, as identifying a criminal, 695. 
 SHIP, as the scene of a crime, 256. 
 SHOES, prints of, on snow or earth, 264. 
 
 use of, in fabricating evidence, 427. 
 SHOT, as projectiles firom a fire-arm, 702. 
 
 taken from wounds, compared with other shot, 272. 
 SHOTS, injuries by, or death from, 688, 700. See Gun-Shot Wmndt. 
 SIGHT of dead body, effect of, on accused, 461, 478. 
 SIGNS of discharge of a fire-arm, 255. 
 
 of death from drowning, 712, 714; from hanging, 709. 
 SILENCE following alarming sounds at a scene of crime, 258. 
 
 under accusation, 480. 
 SIMPLE presumption, 65. 
 SIMULATED facts, 131; how detected, 142, 143. 
 robbery, 423. 
 suicide, 421. 
 SITUATION of wounds, as indicating their cause, 70S. 
 of contused wounds, 692. 
 of incised wounds, 693. 694. 
 of gun-shot wounds, 700. 
 SIZE, as a means of identifying person, 638. 
 SKELETON, identification of, 681. 
 SKELETON-KEYS, in burglary, 439, note. 
 SLEIGH-BELLS heard near a scene of crime, 258. 
 SLIGHT presumptions, 64. 
 SLUGS,- as composing the charge of a fire-arm, 272, note (i) ; 274, note (c) ' 
 
 702. 
 SMELLS of burning substances, 258. 
 
 of poisonous substajices, 258; of bitter almonds, 604. 
 SMOKE, traces of, at a scene of crime, 257. 
 SNOW, on a night of crime, 130. 
 blood on, 257. 
 
 foot-prints and othw impressions on, 257, 264. 
 SOCIAL position as a source of restraining motives, 324. 
 SOIL, stains of, on person of an accused, 260, 276. 
 SOLES of boots and shoes, prints from, 268. 
 SOBEOW, pretence of, 430. 
 SOUNDS, heard at a scene of crime, 258. 
 SOURCES of facts, 123. 
 
 of danger in relying on evidence, 232. 
 of possible error in verdicts, 203. 
 SPACE, circumstance of, importance of, 384 — 387. 
 
792 INDEX. 
 
 SPASMS, 03 symptomg of poisoning, 259. 
 
 SPECIAL inference, process of, in circumstantial eridence, 4, 6, 206. 
 SPECIFIC articles of property, identification of, 654. 
 SPOTS of blood on objects near a scene of crime, 256, 257. 
 SPREADING reports, as to a missing person having been seen, 430. 
 as to the cause of the death of a person, 438. 
 as to the movements of a suspected party, 433. 
 STABITUR prteaumptioni donee probetur in eontrarium, 36, 57. 
 STABS, injuries by, or death from, 688, 693, 698.' See Punctured wmnii 
 STACE-YAKD, as the scene of a supposed crime, 622. 
 STAINS on clothing of complainant in rape and robbery, 254. 
 obliteration of, by handling, 142, note (o). 
 of blood, on clothing of a dead body, 686. 
 
 on a knife or other deadly instrument, 255. 
 on the dress or person of accused, 259, 260. 
 
 infirmative considerations, 635, &41. 
 of eai-th on clothing of an accused, 276. 
 ' STANDING ALONE," a circumstance, of no force as evidence, 65, 150 
 
 473, note. 
 "STANDING AROUND," 176. 
 STATEMENTS of an accused, how far to be regarded, 454. 
 
 falsity of, how ascertainable, 489. 
 STATION, as a source of restraining motives, 324. 
 STATURE, as a means of identification of person, 638. 
 STILES, blood on, 256, 257. 
 STILL, as a means of preparing poison, 260, 615. 
 STOLEN property, possession of, presumption from, 66, 446. 
 
 character of, 447. 450. 
 as evidence of other crimes, 455, 467. 
 concealment of, 451, 452. 
 infirmative considerations, 639. 
 identification of, 453, 651, 652. 
 STRAW, found in stomach of a body in water, 713. 
 STREAM, as the scene or means of a crime, 256. 
 STREET, as the scene of a crime, 256 
 
 as the place of deposit of a dead body, 373, note (a) ; 408. 
 STRENGTH of presumption, 28; how tested, 30, 31. 
 STRIPES, marks of, on a body, 688. 
 STRONG presumptions, 66, 67. 
 
 STRUGGLING, marks of, on the ground near a dead body, 257, 686, 687. 
 STUPEFYING liquor or drug in rape and robbery, 255. 
 SUBJECTS of crime, 253; appearance of, 253, 254, identification of, 661. 
 
 discovered on premises of an accused, 278. 
 SUBJECT matter of crime, materials of, 260. 
 SUBSEQUENT circumstances, 188, 401. 
 
INDEX. 793 
 
 SUCCESSIVE convergences of facts, 601, 620. 
 
 SUDDEN appearance of wealth after a crime, 457 — 459. 
 
 SUDDEN change of life or circumstances, 457; infirmative considerations, 
 
 566. 
 SUFFERING from a supposed criminal act, a circumstance favorable to an ac- 
 cused, 622. 
 SUGILLATION, what, 706, and note (c). 
 
 SUICIDAL wounds, 703, 704; contused, 690; incised, 693—698; punctured, 
 698, 699; gun-shot, 700. 
 hanging, 706—711. 
 drowning, 716. 
 poisoniflg, 719. 
 SUICIDE, attempts to commit, on arrest, 475. 
 alleged as a cause of death, 492. 
 
 as a cause of death, 684; supposition of, to be excluded, 684. 
 indications of, in contused and lacerated wounds, 689. 
 
 in incised wounds, 694, 696; in punctured wounds, 
 698; in gun-shot wounds, 700. 
 several wounds in, 695. 
 fabrication of evidence of, 421. 
 SUPERFICIAL quality of observation of facts, 100. 
 SUPPRESSION of evidence, 402; infirmative considerations, 554. 
 SURPRISE, expressions of, by criminal, 429. 
 SURROUNDING facts, 582. 
 SWORD, as an instrument of crime, 254. 
 
 bloody, 255; party seen escaping with, 373. 
 SWORD-BLADE, curvature of, 255. 
 SYLLOGISTIC form of reasoning, 176, note (a). 
 SYMPTOMS of poison. 219. 604, 718. 
 
 TASTE, impressions on the sense of, 259. 
 
 as serving to detect fluids on clothing, 276. 
 TASTES of individuals, as aifecting motives, 327. 
 TEETH, impressions of, 269. 
 
 as ineans_of identifying remains of body, 681, 681 
 TEMERARY, light or rash presumption, 65 
 TERROR, counterfeiting, 429 
 TEST of probability, 149. 
 
 of probative force of circumstantial evidence, 236. 
 TESTIMONY of witnesses, fabrication of, 435. 
 TESTING a presumption, 146, 181. 
 TESTS of strength of presumption, 30, 31. 
 
794 INDEX. 
 
 THEORY of a cose for the proseoution, 182, for the prisoner, 183. 
 " THEORY of Presumi^we Proof," 212, 214. 
 THICKET, as the scene of a crime, or hiding-place of a body, 256 
 THINGS, as sources and seat of facts, 129. 
 
 identifioation of, 661. 
 THREATS to injure or destroy, 340; infirmative considerations, 546 
 THROAT, as the seat of incised wounds, 694. 
 irounds of, characteristies of, 694. 
 TIME, idea and impression of, 101. 
 
 hnporlance of, as a circumstance, 101, 102. 
 not usually noted with precision, 102. 
 how arrived at in certain eases, 103. 
 of triallimited, 113. 
 
 importance of, in giving exclusive effect to juxta-position, 370. 
 importance o^ ai a ooueomitant circumstance, 384, 387. 
 of an alibi, 512; mistake of witness as to, 517. 
 TOKENS, 121, note (rf). 
 TOUCH, impressions on sense of, 258. 
 
 of dead body, effect produced by, 478, 479, 
 TRACES at soene of crime, derived or supposed to be derived from person of 
 accused, 263. 
 on the person or premises of the accused, derived or supposed to be 
 
 derived from the scene or subject of the crime, 27?. 
 of smoke or flame on a building, 257. 
 of crime, concealment or removal of, 412. 
 TRACHEA, froth in, 712. 
 
 TRACKS, bloody, 267, note (a) ; infirmative considerations, 643, and note (i) 
 TRANSIENT character of ordinary observation, 100, 101. 
 TREES, blood on, 256, 257. 
 
 marks of violence on, 257; of a ball on, 257. 
 TRIAL, what, 203. 
 
 at law, peculiarities of, 92. 
 
 of means of crime to prove their efficacy, or sMU in their use, 350. 
 TRUTH, discovery of, the great object of trial, or judicial inquiry, 93, 114. 
 in the oath of a juror, 93; of a witness, 93. 
 in a verdict, 93, 
 not absolute, but moral, 93. 
 moral, 93. 
 contingent character of, 115. 
 
 U 
 
 UNCERTAIN circumstantial evidence, 79. 
 UNCLE and niece, case of, 211, and note (b). 
 
INDEX. 795 
 
 UNCONSCIOUS possession of (srinJnatiTe articles, Hi. 
 UNEASINESS manifested during the progress of iOTestigation, 466. 
 USUAL, connection between facts must be, 161. 
 USUAL course of things, the test of probability, 149. 
 UTILITY, as a ground of legal p^iesmnptiw, 43. 
 
 VAIiUE, relative, of direct and circumstantiai evidence, 206. 
 
 of evidence as to motive^ 312, 
 VARIETY of circumstances as elements of evidence, 83, 122, 133. 
 VEHICLE, as the scene pf a crime, 256. 
 
 VERBAL intimations of criminal aptjon, 331 ; infirmative considerations, 544. 
 VERDICT, etymology of, 93. 
 
 VERDICT, arrived at Uie any ordinary conclusion from evidence, 202 
 a presumption, 202; contingent quality of, 203. 
 error in, possibility of, 203. 
 
 infirequenoy of, 204, Bote 
 sources of, 203. 
 VERISIMILITUDE, 23 and note (J); 81. 
 VICINITY of accused to scene of crime, 368. 
 VIOLENCE, maiks 0^ on a dead body, 254. 
 on the clothing, 254. 
 in rape and robbery, 254. 
 in burglary and robbery, 254^ 
 VIOLENT death, indications of, 684. 
 
 presumption, 60. 
 VIOLEJVTA prasumptio, 60, note (/). 
 VIRTUAL functions of jurors, 242. 
 VOICE, as a means of identification of persons, 640. 
 VOICES, sound of, at a scene of crime, 258. 
 
 W 
 
 WADDING of a fire-arm, composition of, 272, 273. 
 
 found in wound, ezaminaiion of, 702. 
 WALLS, blood on, 256. 
 WATCH taken from a room, case of, 145. 
 
 taken from the subject of crime, 277. 
 as a means of identifying a criminal, 642. 
 WATER, as a place of concealing a dead body, 124, 254. 
 
 as a place of depositing a dead body, in order to produce erroneous 
 impressions of the cause of death, 712. 
 
796 INDEX. 
 
 WATER, in lungs of a body found in water, 712, 713. 
 in stomaoh of a body, 713. 
 sounds of running, 258. 
 ■ TER-MARK in paper, 223, 232, and note (a). 
 
 TH, sudden appearance of, after crime, 457^-459. 
 i'ON found near a body, or in contact with it, 687; distance, direction, 
 position and condition of, 687, 688, 696, 702. 
 comparison of, with wounds on body, 690, 698. 
 blood on, 699. 
 absence of, 696, 698, 701. 
 WEEDS, in the hands of a body found in water, 714. 
 
 in the stomach, 713. 
 WEIGHING, process of, in presumption, 23, 85, 194, and note. 
 
 probabilities, in what cases allowed, 85. 
 WEIGHT of individual circumstances, 160. 
 WEIGHTS found attached to a body found in water, 714. 
 WELL, as a scene or means of crime, 256. 
 WELL-CURBS, blood on, 256. 
 WHEELS, sound of, at a scene of crime, 258. 
 WINDOW, entrance of house by, 184, 185. 
 WOOD, as the scene of a crime, 256. 
 WOUNDS on a dead body, 254, 688, 703. 
 
 contused and lacerated, 688. See Contused wmmdB 
 inpised, 693. See Incised wounds. 
 punctured, 698. See Punctured wounds. 
 gun-shot, 700. See Gun-shot wounds. 
 accidental, 689, 690, 692, 693, 699, 700, 703. 
 homicidal, 689, 692, 694—703. 
 suicidal, 689, 692, 694—703. 
 situation of, 703. 
 number of, 703, 704. 
 character of, 704. 
 as the cause of death, 705 
 capacity of, to produce death, 705. 
 as connected with disease, 705 
 as inflicted at different times, 706. 
 on a body found suspended, 709, 710. 
 on a body found in the water, 715. 
 
 on the person of an accused, 269, 260; infirmative considerations, 
 541, 542.