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ally be in one or two particular instances, it is founded on the great principle of public utility, to which all private considerations ought to yield; for travellers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are usually none of the best, and who must have frequent opportunities of associating with ruffians or pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them."(n) 1n this, as in many other instances of legal presumption, we may detect the application of the maxim, "Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt."(o)

*PART III. [ *246 ]


^ 185. In this Third Part of the present work it is proposed to consider, first, the general theory and rules of presumptive proof in criminal cases; secondly, the probative force and infirmative circumstances of some of the most usual species of it.



§ 186. All judicial evidence, as has been shewn, is either direct or circumslantial.(a) When the existence of any fact is attested by witnesses, as having come under the cognizance of their senses, or is stated in documents, the genuineness and veracity of which there seems no reason to question, the evidence of that fact is said to be direct, or positive. By circumstantial evidence, on the contrary, is meant, that the existence of the principal fact is only inferred from one or more circumstances which have been established directly. And when the existence of the principal fact does not r #247 1 follow *from the evidentiary facts as a necessary conse- *- J quence of the laws of nature, but is deduced from them by a process of probable reasoning, the evidence and proof are said to be presumptive.^)

Reps.), Bayley, J-, says, " It appears to me, that an innkeeper's liability very closely resembles of a carrier. He is prima facie liable for any loss not occasioned by the actof God or the king's enemies; although he may be exonerated where the guest chooses to have his goods under his own care." The correctness of this analogy between innkeepers and carriers was, however, doubted by the Court of Queen's Bench, in the recent case of Dawson v. C holmeley, 7 Jurist, 1037, which seems to corroborate the view of Mr. Justice Story.

(n) Jones on Bailments, 95,96. (o) Co. Litt. 70, b.

(a) 3 Bcnth. Jud. £v. 2. See Part I. ch. 1, art 11. (*) Ibid.

§ 187. The process of presumptive reasoning, evidencing any fact, and of course that fact which is the object of inquiry in criminal acts, —the delinquency or innocence of the accused,—may be more or less complex, longer or shorter. The inference may be drawn from one evidentiary fact, or from a combination, or, as it is usually termed, a chain, of evidentiary facts ;(c) and the existence of the principal or any intermediate evidentiary fact may be inferred from another, which is itself only a probable consequence of a third.(d) Thus, on an indictment for arson, proof that property stolen from the house at the time it was burnt was shortly afterwards found in the possession of the prisoner, is presumptive evidence that he was concerned in the arson ;(c) and the fact of a person suspected of a crime having left his home about the time of its commission is only presumptive evidence of his having absconded to avoid being brought to trial, which latter fact, even if true, is by no means conclusive of guilt.(/) In all cases, however, the ultimate presumption must be connected, either mediately or immediately, with facts established by direct proof.(g)

§ 188. The elements, or links, which compose a chain of presumpT *248 1 Iive Pro0^10 criminal cases, are certain moral *and phyL J sical coincidences, which individually indicate delin

quency in the accused; and the probative force of the whole depends on the number, independence, weight, and consistency of those elementary circumstances. A number of circumstances, each individually very slight, may so tally and confirm each other, as to leave no room for doubt of the fact they tend to establish; but if they are not independent of each other, and all arise from one source, an increase in the number of the circumstances does not increase the probability of the hypothesis.(A) But it is also of the utmost importance to bear in mind, that, where a number of independent circumstances all point to the same conclusion, the probability of the justness of that conclusion is not merely the sum of the simple probabilities of the circumstances composing the chain, but is the multiplied, or compound ratio of them.(i) "Not to speak," says Mr. Bentham, "of greater numbers, even two articles of circumsiantial evidence, though each taken by itself weigh but as a feather—join them together, you will find them pressing on the delinquent with the weight of a millstone."(A) Thus, on an indictment for uttering a bank-note, knowing it to be counterfeit, proof that the accused uttered a counterfeit note amounts to nothing, or next to noihing—any person might have a counterfeit note in his possession: but suppose further proof adduced, that, shortly before the transaction, he had, in another place, and to another T *249 1 person, offered another *counterfeit note, the presumption *- J of guilty knowledge becomes very strong. Lastly, the

circumstances composing the chain must all be consistent with each other,—a principle sufficiently obvious in itself, and which will be further illustrated presently.(Z)

(e) 3 Benth. Jud. Ev. 223. (<f) 2 Evans's Poth. 332; 3 Benth. Jud. Ev. 3.

(e) R. v. Rickman, 2 East, P. C. 1035. (/) See infra, chap. 2.

(e) 2 Evans's Poth. 332.

(A) Beccaria, s. 7; Theory of Presumptive Proof, 57; 1 Stark. Ev. 567, 3rd ed. (t) 1 Stark. Ev. 563, 3rd ed.; 2 Evans's Poth. 342. This proposition is mathematically, u well as morally, true. See Appendix, note I. (i) 3 Benth. Jud. Ev. 242.

(/) See infrfc.

§ 189. The rules regulating the admissibility of evidence are the same in civil and criminal proceedings ;(m) and although, as has been shewn in a former chapter, presumptive evidence is receivable to prove almost any fact, the necessity of resorting to it in proof of crimes is more frequent than for the establishment of civil rights. The most heinous offences are generally committed in secret: "visible proofs must not be expected in works of darkness ;"(n) so that direct evidence is seldom attainable in criminal cases4 except in the comparatively rare instance of the thief being taken with the mainour, or where one of several delinquents denounces his companions at the bar of justice.

§ 190. It must not, however, be supposed, that a chain of presumptive evidence affords proof of a less convincing nature than direct testimony, or that, for want of legitimate evidence, the law condemns and punishes on that which is inferior, or less conclusive.(o) On the contrary, as in criminal trials the interests at stake are greater, and the consequences of erroneous decision infinitely more serious, a higher degree of assurance is required than in civil proceedings, where the mere preponderance of probability is sufficient r %2f,Q 1 ground *for adjudication.(p) Except in a few instances, *•' where positive law expressly requires it, the accused should never be pressed on by technical rules or artificial presumptions: but his condemnation, whether founded on director presumptive evidence, should flow from an unbiassed moral conviction of his guilt.(<7)

§ 191. Unfortunately, however, for the interests of justice, the true principles on which presumptive proof rests have not been always understood by those appointed to administer it; and the judicial histories of every country supply melancholy instances, where the *safety of individuals has been sacrificed to the ignorance, r ^251 1 haste, or misdirected zeal of judges and jurymen, dealing J

(m) R. v. Burdett, 4 B. & A. 122, (6 Eng. Cora. Law Reps); R. v. Watson, 2 Stark. 155, (3 Eng. Coin. Law Reps.); Roscoe's Criminal Ev. 1, 2nd ed.; Rex v. Murphy, 8 C fit P. 306, (34 Eng. Com. Law Reps.)

(n) Per Bu!lcr, J., in Donellan's case, Warwick Sp Ass., 1781.

(o) 1 Stark. Ev. 559; Theory of Presumptive Proof, p. 58; Beccaria, s. 7; Works of Chancellor D'Aguesscau, vol. 12, p. 647.

(p) 2 Russell on Crimes, by Greaves, 727. See, also, per Lord Mansfield, in the Douglas ca9e, cited 4 B. 4. Aid. 122, (6 Eng. Com. Law Reps.); Theory of Presumptive Proof, p. 62.

(o) 3 Stark. Ev. 930, 3rd ed.; D'Aguesscau, vol. 12, p. 648, ed. Paris, 1783. There are, however, Prassumptiones juris to be found in the criminal code. Some ol these are known to the common law, such as, for instance, the presumptions of malice in case of homicide; of an intent to defraud in cases of forgery ; of the due appointment of public officers who are proved to have anted as such, Ate, But their number has been increased of late years by different acts of Parliament; see the 11 Gen. 4 & 1 W. 4, c. 66. By statute, also, 21 Jac. 1, c. 27, it was enacted, that every woman delivered of a bastard issue, who should endeavour, by secret burying, or in any other way, to conceal the death thereof, so that it might not come to light, whether it were born alive or not, should be deemed to have murdered it, unless she proved it to have been born dead. This inhuman law, which is supposed to have been copied from an edict of Hen. 2, of France, A. D. 1556, has been repealed. Of pro), sumptiones juras et de jure in criminal cases, there are but few instances, and the fewer the better. In cases of robbery, however, fear will be presumed in odium spoliatoris, even though the evidence shew that none existed in fact, (I Phill. fit Am. Ev. 468; Fost. 128): and the conspiring to imprison the sovereign must, it is said, be deemed conclusive evidence of compassing his death. (1 Hale, P. C. 109; Fost. 195; 4 Blackst, C. 79). There are sorffe presumptions of this nature which operate in favour of the accused. 1 bus, no proof is receivable to convict of felony an infant under the age of seven years, (I Hale, P. C. 19; 1 Blackst. C. 23); or of rape, as principal in the first degree, if under the age of fourteen. 1 Hale, P. C. 630; 4B1.C.212.

with this peculiar mode of proof. The natural consequence has been, to raise a prejudice, sometimes an outcry, against it; so that a declamation on the injustice of condemning any person on presumptive evidence, or anything short of proof positive, as it is called, is ever sure of the ready ear of a popular assembly. If such a proposition be thought worthy serious refutation, we would just observe, that no species of judicial evidence is infallible. When a person is convicted of a crime on the most,positive testimony of witnesses, who swear that they saw him do the act with which he is charged, the verdict of the jury only rests on the probability, or presumption, that the witnesses are neither deceived themselves nor wilfully deceiving them;(r) and perhaps as many instances could be found of erroneous decisions from one or other of these causes, as from rash inferences drawn from testimony presumptive in the narrower sense of the word :(j) while T *252 1 even tne freest *and fullest confessions of guilt have occa*- sionally turned out to be untrue.(£) In short the only evi

dence that cannot lie is one which it would be absurd to require, namely, that which, without the intervention of human testimony, presents itself directly to the senses of the judge.(u) Any proof, however strong and convincing, which falls short of this, is but an indefinitely high degree of probability,(x) which will be found, on examination, to be as attainable by a well conducted process of reasoning from circumstances, as from evidence either of a direct or confessorial nature. And as, in the most important transactions of life, in all

T «253 1 *,'ie moral' am* most of tne physical sciences, we are L J compelled to rely, almost exclusively, on probable or pre

(r) Matthoeus de Criminibus, p. 625; Domat, liv. 1, tit. 6; 2 Ev. Poth. 332; Roscoe's Civ. Ev. 18, 5th ed.; Paley's Moral Philosophy, b. 6, c. 9.

(«) The resemblance between individuals is often very close. A well-known man of fashion once narrowly escaped conviction for a highway robbery from his extraordinary resemblance to one Page, a notorious highwayman of the day; (Beck's Med. Jur. 408); and Sir Thomas Davenport, an eminent barrister, swore positively to the persons of two men whom he charged with having stopped and robbed him on the highway, at noon-day. A clear alibi, was, however, proved; and the real robbers being afterwards taken into custody, with the stolen property upon them. Sir Thomas, on seeing them, at once acknow. lodged that he had been mistaken; (per Mac Nally, arguendo, in R. v. Byrne, 28 How. St. Tr. 119). A more unfortunate case is given in the Theory of Presumptive Proof, Appendix, case 4, where a man of the name of James Crow, was executed for a robbery committed by a person of the name of Geddtley, for whom he was mistaken, and to whom, the book ■ays, he bore a resemblance so strong, that it was next to impossible for the nicest eye to distinguish between them. Several other cases of mistaken identity will be found in Wills on Circum. Evidence, p. 143 et seq.; and also in Beck's Med. Jur., p. 404. See, also, the case of Male, 3 Bcnth. J. E.255; and that of Joseph Lesurges, Chamb. Edin. Jour., Dec 3,1842. On the other hand, there are many instances of the most positive direct testimony having its origin in wilful falsehood. See the cases of R. v. Hawkins, 6 Ho. St. Tr. 921 ; K. v. Titus Outes, 10 Id. 1079; the singular case of R. v. Elizabeth Canning, 19 Id. 283; R. v. Whalley, Wills, Circum. Ev. 159, &c. Instances have even been found of the most heinous offences, murder not excepted, having been committed by individuals, with the view of afterwards accusing an innocent person of them, in order to obtain a reword held out for the conviction of offenders. See the case of John Delahunt, executed at Dublin in January, 1842; and R. v. M'Daniel and others, Old Bailey Sessions, 1755, reported Foster's C. L. 121. Indeed, as a general rule, it may safely be said, that the most unhappy cases of erroneous conviction have been based on suspicions circumstances, coupled with false direct testimony. Sec the case of Thomas Harris, Theory of Presumptive Proof, Append. 3; and also Id., case 10.

(i) See infra, chap. 2. (u) 3 Bentli. Jud.Ev. 249.

(z) Beccaria, s. 7. See, also, Part 1, chap. 1 ; and Sir S. Romilly on the Criminal Law of England, note D, p. 73.

sumptive reasoning,(y) it seems difficult to suggest any grounds why a greater degree of assurance should be required in judicial investigations, even were such assurance attainable.

§ 192. But while we condemn this, perhaps, not unnatural error, what must be said to one of an opposite kind, infinitely more mischievous, as promulgated by authority which we are bound to respect, —namely, the setting presumptive evidence above all other modes of proof, and investing it with infallibility? Juries have been told from the bench, even in capital cases, that, " where a violent presumption necessarily arises from circumstances, they are more convincing and satisfactory than any other kind of evidence, because facts cannot Iie."(z) Numerous remarks might be made on this strange proposition; the first of which that presents itself is, that the moment we talk of any thing following as a necessary consequence from others, all idea of presumptive reasoning is at an end.(a) Secondly, even assuming the truth of the assertion, that facts or circumstances cannot lie, still, so long as witnesses and documents, by which the existence of these facts is to be established,(b) can, so long will it be impossible to arrive at infallible conclusions. But, without dwelling on these considerations, *look at the brbad proposition— r #254 1 facts cannot lie. Can they not, indeed T When, in order J to effect the ruin of a poor servant, his box is opened with a false key, and a quantity of goods stolen from his master deposited in it: or, where a man is found dead, with a bloody weapon lying beside him, which is proved to belong to a person with whom he had a quarrel a short lime before, and footmarks of that person are traced near the corpse; but the murder has in reality been committed by a third person, who, owing a spite to both, put on the shoes and borrowed the •weapon of one to kill the other,—did not the circumstances lie— wickedly, cruelly lie?(c) There is reason to fear, that a blind reliance on the dictum, that" circumstances cannot lie," has occasionally exercised a mischievous effect in the administration of justice.(rf)

§ 193. The truth is, that direct and presumptive evidence (using the words in their technical sense) are distinct modes of proof, which have each their peculiar advantages and characteristic dangers. Abstractedly speaking, 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 otherwise could not be proved at all ;(e) so that a given portion of credible direct evidence must ever be superior to an equal portion of presumptive evidence of the same fact. But in practice it is, from the nature of things, impossible, except in a few rare and peculiar cases, to obtain more than a very

(y) Locke on the Human Understanding, book 4, chapter 14, s. 2.

(z) Per Legge, B., in the case of Mary Blandy, IS Ho. St. Tr. 1187; per Buller, J., in Donellan's case, printed report, London, 1781. See, also, per Mounteney, B., in Annesley v. Earl of Anglcsea, 17 Ho. St. Tr. 1430; Gilb. L. E. 157; Payley'a Moral and Political Philosophy, book 6, chap. 9; and the works of Chancellor D'Aguesscau, vol. 12, p. 647, Paris, 1783.

(a) 2 Ev. Poth. 329. Sec Part I., chap. 1, art. 3, n. (n).

(6) Domat, liv. 3, Tit. 6; Theory of Presumptive Proof, p. 28.

(e) A bad case of this nature is given in the Theory of Presumptive Proof, Append., case 10, p. 102. Sec, also, the case of Adrien Doue, 5 Causes Celebrea, 445; and that of the Milan Jews, Id. 440. (d) Theory of Pres. Proof, p. 49.

(e) Gilb. Ev. 157; R. T. Burdett, 4 B. &. A. 123, (6 Eng. Com. Law Reps.); Theory of Presumptive Proof, p. 55.

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