mitted 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 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. [ *265 ] On examining the mud or sand upon the stockings, it appeared to correspond precisely with that of the mire or puddle adjoining to the cottage, and which was of a particular kind, none other like it being found in that neighbourhood. 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 intellects, 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 gibed with having such connexion with one in her situation, 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 that 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 shew, that, about the time of the murder, a boat's crew from Ireland had landed on that part of the coast, near to the dwelling 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 from the cottages in the neighbourhood. 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 [ *266 ] 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 described, (under a stone in the wall,) with marks of blood upon it.

§198. James Jans was tried on the 8th July, 1643, for the murder of Suffridus Wiggeri.(q) There had been a scuffle between the prisoner and the deceased, in which the prisoner made several blows with a knife at his antagonist, who was unarmed, and continued to do so until the by-standers interposed, and wrested the weapon out of his hand. No one, however, saw any wound inflicted, or even the knife touch the person of Wiggeri, who, after the conflict was over, sat down on a bench, where he remained for nearly an hour, without making any complaint of injury. At the expiration of

(9) Huberus, Prælectiones Juris Civilis, lib. 22, tit. 3, n. 4.

that time he went out, in a few minutes returned with all his intestines fallen into a hat, which he carried in his hand, and shortly after expired; not, however, before declaring that his death wound had been inflicted by Jans during the scuffle. It was fully proved that the deceased had not had a fray with any other person; and the prisoner, on being charged with having been the cause of his death, sometimes said that the wound was too slight for that, and at others made no reply. When brought on trial, he denied the fact, and proved, in his defence, that some days previous to the quarrel, the deceased Wiggeri, being in a privy, and unable to untie the strings of his breeches, attempted to cut them with a knife, in such a violent and [ *267 ] hasty manner, that he almost sent it into his belly; and it was argued, that his death might possibly have been caused by similar conduct on the present occasion. The court, however, was of opinion, that although there was no direct proof of the infliction of any wound by Jans, the presumptive proof of it was too strong to admit of doubt, and he was accordingly declared guilty.(r)

§ 199. While all attempts to reduce the credibility of evidence to fixed degrees must ever be deprecated as absurd and mischievous, still the experience of past ages would indeed be thrown away, did it not point out the principal quicksands and dangers to be avoided when dealing with the serious question of the guilt or innocence of persons charged with crime. Numerous rules have, from time to time, been suggested for the guidance of tribunals in this respect, among which the following seem the soundest in principle, and most generally recognised in practice.

§ 200. Rule 1. The onus of proving every thing essential to the establishment of the charge against the accused lies on the prosecutor.(s) This rule is derived from the maxim of law, that every person must be presumed innocent until proved to be guilty, and is founded on the [ *268 ] *most obvious principles of justice and policy.(t) It is, however, in general sufficient to prove a primâ facie case; for as has been well remarked, "imperfect proofs, from which the accused might clear himself but does not, become perfect."(u) "No one," observes Lord Tenterden, "is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction;" and, "in drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation

(r) This case has been introduced as illustrative of the views of the Dutch civilians on the subject of presumptive evidence. For other instances, in this country, of convictions on proof of this nature, see the case of R. v. Howe, Wills, Circum. Ev. 257; R. v. Smith and others, id. 265; R. v. Patch, Surrey Sp. Ass., 1806, short-hand report taken by Gurney; R. v. Courvoisier, Sessions Papers of the Central C. C., July, 1840.

(8) 1 Stark. Ev. 271, 3rd ed.; R. v. Burdett, 4 B. & A. 140. 149, (6 Eng. Com. Law Reps.); Theory of Pres. Proof, 57; Wills, Circum. Ev. 183.

(t) It is related, that, while the Emperor Julian was sitting one day to administer justice, a prosecutor, seeing his case about to fail for want of proof, angrily exclaimed, "Most illustrious Cæsar, if denial of guilt be sufficient defence, who would ever be convicted ?" To which the emperor readily replied, " And, if accusation were sufficient proof, who would be safe?" Ammianus Marcellinus, lib. 18, c. 1. (u) Beccaria, s. 7.

or contradiction."(x) Undoubtedly, the more serious or improbable the charge, the stronger ought the primâ facie proof to be; and additional proof is required when the offence is of very ancient date, for in such cases the means of defence, particularly by proof of an alibi -when true the completest of all answers-are proportionally diminished.(y)

§ 201. Rule 2. There must be clear and unequivocal proof of the corpus delicti.(z) Every criminal charge involves two things: first, that an offence has been committed; and secondly, that the accused is the author of it. "When a criminal fact is ascertained, says Lord Stowell," presumptive proof may be taken to show who did it,-to fix the criminal, having then an actual corpus delicti: but to take presumptions, in order to swell an equivocal and ambiguous fact into a criminal fact, would, I take it, be an entire misapplication of the doctrine of presumptions."(a) Lord Hale, also, has laid down two rules, which have met with general approbation: "I would never," says he, "convict any person for stealing the goods of a person unknown, merely because he would not give an account how he came by them, unless there were due proof made, that a felony was committed of those goods. I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or, at least, the body found dead:"(b) and Mr. Starkie states it to be an established rule, that, upon charges of homicide, the accused shall not be convicted unless the death be first distinctly proved, either by direct evi

dence of the fact, *or by inspection of the body."(c) Such is [ *270 ] the language of these eminent authorities; but the gene

ral principle which they lay down must be taken with considerable limitation; and in order to treat the subject with accuracy, it is to be remarked that in some offences the evidence establishing the existence of the crime also indicates the criminal, while in others the traces or effects of the crime are visible, leaving the author of it undetermin

(x) R. v. Burdett, 4 B. & A. 161, (6 Eng. Com. Law Reps.) See, also, per Lord Mans. field, in Blatch v. Archer, Cowp. 65.

(y) Wills, Circum. Ev. 186. There are, however, several instances of successful prosecution after the lapse of very long time from the commission of the offence. See, in particular, the case of W. A. Horne, who was tried and executed in 1759, for the murder of his child in 1724; (Smollett's History of England, b. 3, c. 13, s, 1; 2 Annual Reg. 368); also that of Joseph Wall, who was executed in 1802 for a murder committed in 1782; (28 Ho. St. Tr. 51.) In the celebrated case of Eugene Aram, also, there was an interval of about fourteen years between the murder and the trial. 2 Ann. Reg. 351.

(z) R. v. Burdett, 4 B. & A. 162, (6 Eng. Com. Law Reps.); Evans v. Evans, 1 Hagg. Consist. Rep. 105, (4 Eng. Eccl. Reps.); Pleading of Chancellor D'Aguesseau in the Case of La Pivardière, see his works, vol. 4, pp. 423, 456; Theory of Pres. Proof, 57 ; Wills. Circum. Ev. 200. 66 Diligenter cavendum est judici, ne supplicium præcipitet, antequam de crimine constiterit." Matth. de Crim. in Dig., lib. 48, tit. 16, c. 1. (a) Evans v. Evans, 1 Hagg. C. R. 105, (4 Eng. Eccl. Reps.)

(b) 2 Hale, P. C. 290. The coincidence between this and the following passages is singular: "De corpore interfecti necesse est ut constet. . . . Si quis fassus se furem, confessio hæc non obest, nisi constet etiam in specie de rebus furto subtractis." (Matth. de Probat., c. 1, n. 4, p. 9.)

(c) 1 Stark, Ev. 575, 3rd ed. For the proof of the corpus delicti in cases of larceny, see 2 Russell on Crimes, by Greaves, 122; and R. v. Yend, 6 C. & P. 176, (25 Eng. Com. Law Reps.)

JANUARY, 1845.-11

ed.(d) Under the former are ranged all those offences, the essence of which consists in intention, such as conspiracy, treason, &c., which, being of an exclusively psychological nature, must necessarily be established by presumptive inference only.(e) To these must be added the crime of adultery, respecting which Lord Stowell himself, in another place, lays it down as a fundamental rule, that it is not necessary to prove the fact by direct evidence,(f) but that it is enough to prove such proximate circumstances as, by former decisions, or their own nature and tendency, satisfy the legal conviction of the Court that the criminal act has been committed.(g)

*§ 202. In most cases, however, the proof of the crime [ *271 ] is separable from that of the criminal.(h) Thus, the finding a dead body, or a house in ashes, indicate a probable crime, but do not necessarily afford any clue to the perpetrator. And here, again, it is necessary to draw a distinction relative to the effect of presumptive evidence. The corpus delicti, in cases such as we are now considering, is made up of two things: first, certain facts, forming its basis; and, secondly, the existence of criminal agency as the cause of them.(i) Now, it is with respect to the former of these that the general principles of Lord Stowell and Lord Hale especially apply, and it is the established rule that the facts which form the basis of the corpus delicti ought to be proved, either by direct testimony, or by presumptive evidence of the most cogent and irresistible kind.(j) This is particularly necessary in cases of murder, where, as has been already stated, the two rules above laid down by Lord Hale seem to have been generally followed; namely, that the fact of death should be shewn, either by witnesses who were present when the murderous act was done, or by proof of the body having been seen dead; or, if found in a state of decomposition, or reduced to a skeleton, it should be identified by dress or circumstances.(k) There are some

(d) Case of Captain Green and his Crew, 14 Ho. St. Tr. 1230; Pleading of Chancellor D'Aguesseau on the case of La Pivardière, see his works, vol. 4, p. 438.

(e) Benth. Jud. Ev. 5; R. v. Burdett, 4 B. & A. 122, (6 Eng. Com. Law Reps.); see Part I., ch. 1.

(f) Loveden v. Loveden, 2 Hagg. Consist. Rep. 1, (4 Eng. Eccl. Reps.); Williams v. Williams, id. 299, (4 Eng. Eccl. Reps.): Elwes v. Elwes, Id. 269, (4 Eng. Eccl. Reps.); Cadogan v. Cadogan, 2 Hagg. C. R. 4, n., (4 Eng. Eccl. Reps.); "Cum adulterium sit ex illis criminibus quæ in abdito loco et omnino occultè admittuntur, est difficillimum probatu; nec verè probari potest, sed ex probationibus petitis ex præsumptionibus concluditur." (Sanchez de Matrimonio, lib. 10, disput. 12, No. 40.) See also, to the same effect, Mascardus de Prob., quæst. 10, No. 16.

(g) Williams v. Williams, 2 Hagg. C. R., 299, 300, (4 Eng. Eccl. Reps.); and the observations of Sir J. Nicholl in Hammerton v. Hammerton, 2 Hagg. C. R., N. S. 8, 14.

(h) D'Aguesseau, vol. 4, p. 438, ut suprà.

(i) Constare crimen non dicitor, simul atque de facto constiterit; etiam de dolo et causâ facti liquere debet. Matt. de Criminib. in Dig. lib. 48, tit. 16, c. 1.

(j) R. v. Burdett, 4 B. & A. 123, (6 Eng. Com. Law Reps.); Wills, Circumstan. Ev. 204. The proof of the corpus delicti by the confession of the accused will be fully considered in the next chapter.

(k) See R. v. Clewes, 4 C. & P. 221, (19 Eng. Com. Law Reps.) where the body of a man was, after a lapse of twenty-three years, identified by his widow, from some peculiarity about the teeth. A carpenter's rule and a pair of shoes, found with his remains, were also identified. Where a skeleton is found, it frequently becomes of the utmost importance to determine whether it is that of a male or female, of a young or old person. For full information on this subject the reader is referred to Beck's Med. Juris., p. 539 et seq., 7th ed.; and a curious case, illustrative of the necessity of examining the remains, with the view of ascertaining it, is given in Chambers's Edinb. Journal of Aug. 31, 1839.

[ *272 ]

old cases which *fearfully establish the sound policy of this rule. One given by Lord Coke has been already cited in a former part of this work.() An uncle had the bringing up of his niece, a girl about eight or nine years old, to whom he was heir-at-law, and happening to correct her for some offence, she was overheard, by some of the neighbours, to cry out, " Oh! good uncle, kill me not!" after which she disappeared, and was not to be found. The uncle was taken up on suspicion of murder, and admonished by the judge of assize to produce the child by the next assizes. This he could not do; but, in order to avert suspicion, dressed up another child about her age, and resembling her in person, which he presented to the justices as his niece. The deception, was, however, detected, and he was convicted and executed for the murder. The girl, who had only run away to avoid being beaten, returned afterwards and claimed her property. Lord Hale also mentions a case where a man was missing for a considerable time, and there was strong ground for presuming that another had murdered him, and consumed the body to ashes in an oven. The supposed murderer was convicted and executed, after which the other man returned from sea, where he had been sent against his will by the accused, who, though innocent of murder, was not entirely blameless. (m) This *rule has been carried so far, that, where the mother and reputed [ *273 ] father of a bastard child were observed to strip and throw it into the dock of a seaport town, subsequently to which the body of the infant was never seen, Gould, J., who tried the father and mother for the murder, advised an acquittal, on the ground that, as the tide of the sea flowed and reflowed into and out of the dock, it might possibly have carried out the living infant.(n)

§ 203. Where, however, the fact of the murder can be proved by eye-witnesses, the inspection of the body after death may be dispensed with, as is well illustrated by the case of R. v. Hindmarsh.(0) There, the prisoner, who was a seaman on board the ship Eolus, was charged with the murder of his captain. The first count of the indictment alleged the murder to have been committed by a blow from a large piece of wood, and the second by throwing the deceased into the sea. It appeared in evidence, 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, that the corpus delicti was not proved, as the cap

(l) 3 Inst., c. 104; 2 Hale, P. C. 290; 2 Evans's Poth. 338; see Part II., Presumptions in disfavour of the Spoliator.

(m) 2 Hale, P. C. 290. There is also a case of a man of the name of John Miles, who was executed for the murder of his friend, William Ridley, with whom he had been last seen drinking, and whose body was not found until after the execution of Miles. The deceased had, while in a state of intoxication, fallen into a deep privy, where no one ever thought of looking for him. See Theory of Presumptive Proof, Append., case 5; also, The Case of Antoine Pin, 5 Causes Célèbres, 449.

(n) Per Garrow, arguendo, in R. v. Hindmarsh, 2 Leach's Crown Law, 571. (0) 2 Leach's C. L. 569.