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tain might have been taken up by some of the neighbour

[ *274 ] ing vessels; citing Lord Hale, and the case before Gould,

J.; but Ashhurst, J., admitting the correctness of the rules laid down by Lord Hale, 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.

§ 204. Whether it may not be competent, in extreme cases, to prove the basis of the corpus delicti by presumptive evidence, has been questioned. "Were it not so," says Mr. Bentham," a murderer, to secure himself with impunity, would have no more to do but to consume or decompose the body by fire, by lime, or by any other of the known chemical menstrua, or to sink it in an unfathomable part of the sea."(p) And whatever may be the value of presumptive evidence to prove the corpus delicti, it is always admissible, and frequently most powerful as part of the evidentia rei, to disprove it. Thus, the probability of a statement deposed to by witnesses may be tested by comparing their story with the surrounding circumstances.(g)

§ 205. The basis of a corpus delicti once established, not only is presumptive evidence receivable to qualify or complete it, as, for instance, to fix the place of the commission of the [ *275 ] offence, (r) but even to demonstrate the existence of crime, by negativing the hypotheses of the facts_proved being the result of natural causes or irresponsible agency. For these purposes, any species of proof is receivable, and all the circumstances of the case may be taken into consideration.(s) On finding a dead body, for instance, it should be considered whether death may not have been caused by lightning, cold, noxious exhalations, &c., or have been the result of suicide.(t) On this latter subject, the following excellent directions, given by Dr. Beck to the members of his own profession, may not inaptly be inserted here:-" Besides noticing the surface of the body, we should pay particular attention to the following circumstances:-The situation in which it is found, the position of its members, and the state of its dress; the expression of countenance, the marks of violence, if any be present, the redness or suffusion of the face. The last is important, as it may indicate violence,

(p) 3 Benth. Jud. Ev. 234. Attempts of this kind have frequently been made. See, in particular, the case of R. v. Cook, Leicester Summer Assizes, 1834, who murdered a creditor who came to ask for his debt, and endeavoured to dispose of the body by burning. He was, however, detected by the smell, and, a portion of the body which remained unconsumed being identified, was convicted and executed. Wills on Circumst. Ev. 105, where mention is made of a similar instance.

(9) See the case of R. v. Whalley, Wills, 160; and the elaborate judgment of Lord Stowell, in Evans v. Evans, 1 Hagg. C. R. 105, (4 Eng. Eccl. Reps.)

(r) R. v. Burdett, 4 B. & Ald. 163, (6 Eng.Com. Law Reps.)

(8) In Donellan's case, where the question was, whether the deceased had died by poison, Buller, J., told the jury, that, if the fact of poisoning appeared matter of doubt on the medical testimony adduced, they might take into their consideration the contemporaneous acts of the prisoner, in endeavouring to prevent a post mortem examination of the body, &c. (Printed report of the trial, London, 1781.) See, also, R. v. Eldridge, R. & Ry. C. Č. 440, (1 Br. Cr. C.); R. v. White, Id. 308, (1 Br. Cr. C.); R. v. Tippet, Id. 509, (1 Br. Cr. C.) (t) 1 Stark. Ev, 576, 3rd ed.; Taylor's Medical Jurisprudence, vol. 1, p. 367; Quintil., lib. 5, c. 9.

in order to stop the cries of the individual. The quantity of blood on the ground, or on the clothes, should be noticed, and, in particular, the probable weapon used, the nature of the wound, and its depth and direction. In a case of supposed homicide by means of a knife or pistol, the course of the wound should be examined, whether it be

upwards *or downwards, and the length of the arm should [ *276 ] be compared with the direction of the injury. Ascer

tain whether the right or left arm has been used, and, as the former is most commonly employed, the direction should correspond with it, and be from right to left."(u) It is of the utmost importance to examine minutely for the traces of another person at the scene of death, for it is by no means an uncommon practice with murderers to dispose the bodies of their victims in such a manner as to lead to the supposition of suicide or death from natural causes; (x) while on the other hand, persons about to commit suicide, but solicitous to preserve their reputation after death, or their property from forfeiture, sometimes make away with themselves in such a manner as to avert suspicion of the mode by which they came by their end.(y) In one case, where a female was found dead in a room, with her throat cut, and a large quantity of blood on her person and on the floor, the presence of another person in that room was demonstrated by the print of a bloody left hand on the left arm of the deceased. (2) Where a man was found dead with a discharged pistol lying beside him, the hypothesis of suicide from that pistol was rebutted, by shewing that the fatal bullet was too large to fit it. (a) The following case strongly illustrates the difficulties which sometimes attend investigations of this nature. A man, on detecting his wife in the act of adultery, fell into a state of distraction, and having at first dashed his [ *277 ] head several times against the wall, then struck himself violently and repeatedly on the forehead with a cleaver, until he fell dead from a great number of wounds. All this was done in the presence of several witnesses; but suppose it had been otherwise, and that the dead body had been found with these marks of violence upon it, murder would have been at least suspected. (b) And even where there is the clearest proof of the infliction of wounds, still death may have been the result of previous disease, or violence from some other source. Cases illustrative of the former of these are pretty numerous, (c) and the two following shew the necessity of not overlooking the latter hypothesis. At an inn in France, in the year 1808, a quarrel arose among some drovers, during which one of them was wounded with a knife on the upper part of the chest, as also on the face and hand. The wounds were dressed, and he left to return home, but the next morning was found dead, bathed in blood, with the left lung and pulmonery artery cut. His death was at first attributed to the wounds received at the inn; but on more minute

(u) Beck's Med. Jurisp. 583, where several very instructive cases are collected. With respect to the use of the left hand in particular, see, also, William Richardson's case, supra, § 197. (y) Id. 577. (z) Case of Mary Norkot and Others, 14 Ho. St. Tr. 1324.

(x) 1 Stark. Ev. 572.

(a) Theory of Presumptive Proof, App., case 2. See, also, Beck's Medical Jurisp., 591, 592. (b) Beck's Med. Jurisp. 562.

(c) Several instances of this will be found in Beck's Med. Jurisp., chap. 15, 7th ed., intitled "Wounds on the Living Body."

examination, this appeared unlikely, and it ultimately turned out that he had been robbed and murdered on his road home. (d) In another case, a girl expired in convulsions while her father was in the act of chastising her for a theft, and who was believed, both by himself and the bystanders, to have died of the beating. Although there were marks of a large number of pretty severe stripes on the body, they did not seem to the medical man who saw it to be [ *278 ] quite sufficient to cause death, who, therefore, made a post mortem examination, from which, and other circumstances, it appeared that the girl had taken poison on finding her crime. detected.(e)

§ 206. It is in cases of supposed poisoning that the nicest questions arise relative to the proof of a corpus delicti. The evidences of poisoning are either physical or moral; under the former are included the symptoms during life, the appearance of the body after death, or on dissection, and the presence of poison, ascertained by the application of chemical agents used for its detection. Among the moral proofs are, peculiar facilities to commit the crime, the purchasing or preparing poisonous ingredients, attempts to stifle inquiry, spreading false rumours as to the cause of death, abortive endeavours to cast suspicion on others, &c.(f) The existence of disease (and poison is not unfrequently administered to persons already labouring under it) will often explain the symptoms during life, and, in some cases, the appearances after death, which latter may also be the result of putrefaction: so that, in order to obtain clear proof of a corpus delicti, tribunals are generally *obliged to avail themselves of the [ *279 ] scientific tests which chemistry lends to justice for the detection of crime.(g) Not that the science of toxicology is by any means in a perfect state, particularly as regards the vegetable poisons,(h) although the tests of the worst of them, (hydrocyanic (or prussic) acid,) and of the most common of the mineral poisons arsenic,) are among the most complete. (i) It is always advisable to employ as many tests as the quantity of suspected matter supplied will admit of; for, in the case of each individual test, there may, by possibility, be other substances in nature which would produce the appearances supposed to be peculiar to the particular poison; and the danger exists, more or less, of forming the substance, the existence of *which is suspected, by means of the chemical agents [ *280 ] used for its detection. But where several tests, based

(d) Id., p. 588.

(e) Beck's Med. Jurisp. 766. Medical men and others, whose duty brings them in contact with the bodies of individuals who have met with violent deaths, must be careful not to create indicia while searching for them. The following case is related in Taylor's Med. Jurisp, vol. 1, p. 372:-A young man in France 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, stamped in the blood with which the floor was deluged, and had then walked into an adjoining room, passing and repassing several times. The consequence of this was that suspicion was raised against a party, who narrowly escaped being committed to take his trial for murder. It subsequently turned out to be a clear case of suicide,

(f) Venenum arguis-ubi emi? à quo? quanti? per quem dedi? quo conscio? (Quintil., Inst. Orat., lib. 5, c. 7.)

(g) See the tests of a large number of poisons, given with great minuteness in Beck's Med. Jurisp., p. 781 et seq., 7th ed. (h) Id. 754.

(i) of hydrocyanic acid there are several tests, two of which (the sulphate of copper and

on principles totally distinct, are applied to different portions of a suspected substance, and give each the characteristic results of a known poison, the chances of error are indefinitely removed, and the proof of the existence of that poison in that substance comes short only of positive demonstration.

§ 207. In dealing with cases of suspected poisoning, however, it must be remembered, that, even when poison is actually produced from the dead body, it may not only have been taken by accident, or with the view of committing suicide, but that instances have occurred, where, after death from natural causes, a poisonous substance has been introduced into the corpse, with the view of raising a suspicion of murder.(k) This may, however, be detected by a careful post mortem examination,() and attention to the moral circumstances of the case.

§ 208. Few trials in this country have given rise to more violent controversy than that of Captain John Donellan, who was convicted, before Buller, J., at the Warwick Spring Assizes of 1781, for the murder of his brother-in-law, Sir Theodosius Boughton, by poisoning him with laurel water, and shortly after executed.(m) The little treatise by Mr. Phillips, called "The Theory of Presumptive Proof," to which frequent reference has been made in this work, appears to have been written chiefly with the view of impugning that conviction, which has also been condemned by [ *281 ] medical writers of eminence.(n) On the other hand, many names equally high in the medical world have expressed their approbation of the verdict, (o) which seems, also, to have the concurrence of Mr. Bentham.(p) Among these latter is Dr. Beck, who criticises, with much acuteness, the evidence of the celebrated Dr. John Hunter, who was called as a witness for the prisoner; and replies with considerable force to the observations in "The Theory of Presumptive Proof," where, it certainly must be acknowledged, some of the most

the salts of the protoxide of iron) will, it is said, act on the poison dissolved in 20,000 parts of water. (Beck, 1010.) The tests of arsenic are more numerous, among the most remarkable of which is one lately invented by Mr. Marsh, of Woolwich, called the arseniuretted hydrogen test, and which is said to have detected the presence of the 100th part of a grain of arsenic dissolved in 45,000 parts of water. (Id. 846.) The more usual tests of arsenic in solutions are, first, a stream of sulphuretted hydrogen gas, passing through the suspected fluid, will throw down a yellow precipitate, which is the sulphuret of arsenic. (Id. 842.) Secondly, the ammoniacal nitrate of silver, applied to the solution, will produce a yellow precipitate, which is the arsenite of silver. (Id. 843.) Thirdly, the ammoniacal sulphate of copper will in like manner produce a grass-green precipitate, (com. monly called Scheele's green,) which is the arsenite of copper. (Id. 844.) Of the white oxide of arsenic, (the most usual form of the poison,) when in a solid state, a most satisfactory tests is afforded by what is called the process of reduction, which rests on the principle, that, by the operation of heat, arsenic in a metallic state will be produced from the suspected substance, if any of the oxide be present in it; and the metallic arsenic so produced may, by a further process, be reduced to the oxide itself. (Id. 838, 839, 840.) (k) Beck's Med. Jurisp. 770.

(1) Some consequences of poisoning during life, such, for instance, as the traces of recent inflammation in the upper intestines, cannot, it is said, be imitated by poison injected after death. (Ib.)

(m) See the printed report of the trial of John Donellan, Esq., for the murder of Sir T. Boughton, taken in short-hand by Joseph Gurney, London, 1781.

(n) Beck's Med. Jurisp. 1020, 1021. See, also, the defence of John Donellan, published by his solicitors, London, 1781; and "The Case of John Donellan, Esq., impartially examined by a Lawyer," London, 1781.

(0) Beck's Med. Jurisp. 1022.

(p) 3 Jud. Ev. 65 and 232.

important facts in the case for the prosecution are altogether omitted.(q) Undoubtedly, the moral evidence against Donellan is very strong; but when we take into consideration the imperfect state of the science of toxicology at the time of his trial, the unsatisfactory post mortem examination of the body, and the discrepancies in the medical testimony, the corpus delicti can scarcely be said to have been proved with that clearness which justice and sound policy require. Besides, the summing up is in a style of hostility to the accused, which, to say the least of it, is not deserving imitation.

§ 209. It remains to notice a class of cases where the supposed corpus delicti is the result of irresponsible, or unconscious agency. In one unhappy instance, in France, a respectable inan was convicted and executed, on the strength of the presumption of a number of [ *282] found in a articles of silver, which were missing, having been found in a place to which he alone had access, and which were afterwards discovered to have been deposited there by a magpie.(r) Nor must the practice of sleepwalking be overlooked, of which the following curious illustration is given by a writer of the last century. Two persons, who had been hunting during the day, slept together at night. One of them was renewing the chase in his dream, and, imagining himself present at the death of the stag, cried out aloud, "I'll kill him! I'll kill him!" The other, awakened by the noise, got out of bed, and by the light of the moon beheld the sleeper give several deadly stabs with a knife on the part of the bed his companion had just quitted.(s)-Suppose a blow given in this way had proved fatal, and that the two men had been shewn to have quarrelled previous to retiring to rest!

§ 210. Rule 3. The evidence against the accused should be such as to exclude, to a moral certainty, every hypothesis but that of his guilt of the offence imputed to him.(t) This will be best understood by reference to instances where inattention to contrary hypotheses has led into error. In the first place, then, the safety of individuals has occasionally been jeopardised by the fabrication of circumstances: which may be either casual or intentional. Under the former are ranked those cases where the accused, although innocent, is shown to have had peculiar temptations or facilities for committing the act with which he is charged; as where, in cases of murder, he has lived with the deceased, or had an interest in his death; or where

[ *283 ] a man becomes covered with blood, by coming in con

tact, in the dark, with a bleeding body :(u) or death is produced by a weapon which is proved to be the property of a person who, nevertheless, is not the real criminal,(x) and such like. A melancholy instance is related by Mr. Starkie. A servant girl was indicted for the murder of her mistress. The chief evidence against her was, that no one person lived in the house but the prisoner and the deceased, and all

(q) Beck's Med. Jurisp. 1021 et seq.

(r) 3 Benth. Jud. Ev. 94.

(s) Hervey's Meditations on the Night, note 35. (t) 1 Stark. Ev. 577, 3rd ed.; Wills, 187; and see the authorities referred to, supra, § 195. (u) See a curious instance of this in Chambers's Edinburgh Journal for March 11, 1837. (x) Supra, § 192. See the case of violenta præsumptio put by Lord Coke, and the hypotheses on which it may be explained, Part I., chap. 3, § 30.

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