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ed up as a sacrifice to the laws, though the law has never-been violated; where the tribunals have committed the double mistake of supposing a crime where none had been committed, and of finding a criminal where none could exist. These, however, are very gross, and therefore very rare examples of judicial error. In most cases the crime is ascertained, and to discover the author is all that remains for investigation; and, in every such case, if there follow an erroneous conviction, a twofold evil must be incurred,—the escape of the guilty, as well as the suffering of the innocent. Perhaps, amidst the crowd of those who are gazing upon the supposed criminal when he is led out to execution, may be lurking the real murderer, who, while he contemplates the fate of the wretch before him, reflects with scorn on the imbecility of the law, and becomes more hardened, and derives more confidence in the dangerous career on which he has entered."(z)
[ *294 ] 'CHAPTER II.
EXAMINATION OF SOME OF THE PRINCIPAL SPECIES OF PRESUMPTIVE PROOF IN CRIMINAL CASES.(tt)
§ 216. The force of a chain of presumptive evidence consists, as we have seen, in the number, independence, weight, and consistency, of the facts or elements, moral and physical, which compose it.(b) To convict, at least in capital cases, on the strength of a single circumstance, is always dangerous; and most of the erroneous convictions which have taken place, when the criminative facts were more numerous, seem to have arisen from relying too much on general appearances, where no inchoate act approaching to the crime has been proved against the accused.(c) On the other hand, no article of legitimate presumptive evidence ought to be rejected as inadmissible simply because it is weak, still less on the ground of its not being conclusive.^)
§ 217. The following are the most usual species of inculpatory evidence in criminal cases :—
1. Real evidence, or evidence from things.
2. Evidence derived from the antecedent conduct or position of the r #295 1 accused; such as peculiar motives, means, *or facilities *- J of committing the offence; preparations, or previous attempts to commit it; declarations of intention, or previous threats to commit it.
3. Evidence derived from the subsequent conduct of the accused; such as sudden change in his life or circumstances; silence, when accused; false, or evasive statements made by him; suppression, or eloignment of evidence; forgery of exculpatory evidence; flight from justice and tampering with officers of justice; indications of fear, evi
(*) Observations on the Criminal Law of England, &c, p. 72, n. D.
(a) The author has to acknow ledge the great assistance he has received, throughout this chapter, from the labours of Mr. Bcntham, in the 5th book of his Rationale of Judicial Evidence. (6) Supra, § 188.
(c) Theory of Pres. Proof, p. 58, 59. (d) 3 Benth. Jud. Ev. 229,230.
denced either by passive deportment or acts showing a desire for secrecy.
4. Confessorial evidence.
It is proposed, in the present chapter, to consider these in order, and shew the infirmative facts or hypotheses severally affecting each; with which view we will begin with,
§ 218. I. Real Evidence, Or Evidence From Things.—By the expression, " real evidence," it is intended to designate all evidence of which any object belonging to the class of things is the source,—persons also included,—in respect of such properlies as belong to them in common with things ;(e) all of which become indicative of guilt in the particular case, by virtue of some peculiarity in their condition.(f) These species of proof are divided by Mr. Bentham into six heads :(g) I. The subject-matter of the offence itself: such as the person killed or hurt; the thing stolen, damaged, or destroyed; the instrument fraudulently uttered or fabricated; the genuine money diminished; the counterfeit #money fabricated. 2. The fruits of the offence; r #296 1 such as the goods or money taken in larceny, embezzle- *• * ment, &c, the profit obtained by forgery, &c. 3. The instruments of the offence; such as the weapon or instrument of death, in cases of murder, the combustibles, in cases of arson, &c. 4. Materials appropriate to be converted into instruments of the offence; such as leaves from which a poison could easily be made, drugs capable of being used for the purpose of adulterating food, &c. 5. Receptacles inclosing any of the above. 6. Detached circumjacent bodies; such as the floor or bed on which a murdered person is found; traces of blood near a corpse, or on a way leading from it, &c. To these may be added, 7thly, Peculiarities about the person of the accused, such as natural marks, wounds, or stains of blood on his person or clothes; injuries to, or disorder of his dress, &c. Some good illustrations of the nature and probative force of evidence derived from things are given by Mr. Starkie.(A) Thus, in a case of burglary, where the thief gained admiitance into the house by opening a window with a penknife, which was broken in the attempt, and a part of the blade left sticking in the window-frame, a broken knife, the fragment of which corresponded with that found in the frame, was found in the pocket of the prisoner. So, where a man was found killed with a pistol, part of the wadding of which was found in the wound, and consisted of a piece of paper, part of a printed ballard,(t) the corresponding part of which was found in the pocket of *the prisoner. In ano- r #297 I ther case of murder, a patch on one knee of the prisoner's * breeches corresponded with an impression found on the soil, close to the place where the murdered body lay. In a case of robbery, the prosecutor, 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. Mascardus also relates an instance where an inclosed ground, set with fruits, was broken into by night, and several of them eaten, the rinds and fragments of some of which were found
(«) 3 Benth. Jud. Ev. 26. (/) Id. 33. (g) Id. 31, 32.
(A) 1 Stark. Ev. 562, 3rd cd.
(») The facts are thus stated, 3 Benth. Jud. Ev. 256; in 1 Stark. Ev. 502, the paper found in the prisoner's pocket is described as a letter.
lying about. On examining these, it appeared that the person who eat them had lost two front teeth, which caused suspicion to fall on a man in the neighbourhood, who had lost a corresponding number, and on being taxed with the theft, confessed his guilt.(A) We have already seen, in the case of W. Richardson, how the fact of the accused being left-handed may become an adminiculum of evidence against a prisoner^Z) Strong, however, as coincidences of this nature undoubtedly are, we must be careful not to attribute to them, when standing alone, a conclusive effect in all cases. Just let it be remembered, that the men who were found in possession of the broken knife and the fragment of the ballad (the latter especially) might have picked them up, where they had been thrown away by the real criminals; that the perT *298 1 son* print of whose knee was visible on #the soil near * J the murdered corpse, might have been a passer by, who
knelt down to see if life was really extinct, or to render assistance to the sufferer; that the being left-handed, or having lost front teeth, are not very uncommon occurrences; and, even in the case of the impression made on the face by the key, the phenomenon might, by possibility, be a natural mark, &c. An excellent instance of how closely the propensity to run after coincidences ought to be watched, is presented in the case of John Fitter, who was indicted at the Warwick Assizes of 1834 for the murder of a female. He was a shoemaker, and his leather apron had several circular marks, made by paring away superficial pieces, and it was supposed that they had been removed, as containing spots of blood; but it was satisfactorily proved, in his defence, that he had cut them off for plasters for a neighbour.(m) It is when taken in connexion with other evidence that physical coincidences are chiefly valuable, when they certainly press with fearful weight on a criminal.
(j 219. The subject of real evidence is, however, of too much importance to be dismissed with a cursory notice, and we accordingly proceed in a more general way to shew the infirmative circumstances affecting it. Considering the subject in the abstract, it is to be observed that real evidence, apparently indicative of guilt, may be indebted for its criminative shape to accident, forgery, or innocent conduct of the accused. Under the head of real evidence produced by accident come those cases alluded to in the preceding chapter, where the appearance is the result of irresponsible or unconscious agency; as in the case of the unfortunate person who was executed as a thief on the strength of T *299 1 a nuirmer of articles *of missing silver 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.(n) So, the appearance of blood on the person of the accused may be explained by his having come in contact with a bleeding body in the dark.(o)
(k) Mascard. do Prob., quest. 8, n. 24.
(I) Supra, fj 179; Burnett's Criminal Law of Scotland, 524. In the case of Richard Patch, who was charged with shooting Isaac Blight, in 1806, under circumstances which shewed that the assassin, whoever he was, must have been left-handed, the prisoner was pressed by his counsel, at a conference held before the trial, to say whether he was lefthanded, which he protested he was not; but when put to the bar, and called on to hold up his hand and plead, he held up his left hand. Beck's Med. Jur. 583, 7lh ed.
(m) Wills on Circum. Ev. 159. ~ (n) 3 Benth. Jud. Ev. 49.
(o) See the case of Jonathan Bradford, supra, § 211, and Theory of Pres. Proof, App.%
(j 220. There is no subject in the whole range of the theory of presumptive proof which demands more anxious attention than that of the forgery of real evidence. That facts may lie, as well as witnesses, was shewn in the preceding chapter, and the forgery of real evidence is, in some degree, analogous to the subornation of personal evidence, it being an attempt to pervert and corrupt the nature of things or real objects, and thus force them to speak falsely.(p) The presumption of guilt afforded by the detection of a forgery of real evidence is a different subject—its weight as an infirmative hypothesis, respecting real evidence in general, is all that comes in question at present.
§ 221. Forgery of real evidence may arise from one or more of the following causes:—1. With a view of self-exculpation. 2. Maliciously, with the intention of injuring the accused, or others. 3. In sport, or in order to effect some moral end.(<7) Of these three in their order—
222. 1. Self-ezculpatioe Forgery of real Evidence.— r #gQQ I An excellent instance of tfwc danger to be apprehended *- * from this source is given by Lord Hale in a case which is very frequently quoted, and conveys a melancholy proof of the truth of the observation at the commencement of this chapter, how dangerous it is to convict of a capital offence on the strength of a solitary circumstance. In the instance alluded to, Lord Hale, after observing that the recent and unexplained possession of s* \len property raises a strong presumption of larceny, tells us of a case tried, as he says, before a very learned and wary judge, where a man was convicted and executed for horse-stealing, on the strength of his having been found on the animal on the day it was stolen, but whose innocence was afterwards made clear by the confession of the real thief, who acknowledged, that, on finding himself closely pursued by the officers of justice, he had requested the unfortunate man to walk the horse for him while he turned aside on a necessary occasion, and thus escaped.(r) This species of forgery, however, is not confined to actual criminals. It sometimes happens that an innocent man, who is sensible, that, although guiltless, appearances are against him, and not duly weighing the danger of his being detected in clandestine attempts to stifle proof, has endeavoured to get rid of real evidence in such a way as to avert suspicion from himself, or even turn it on some one else. Mr. Bentham gives an extremely apt illustration of this, taken from the Arabian Nights' Entertainments, * where the body of a man, who r m^qi I had died by accident in the house of a neighbour, was * conveyed by him, under the apprehension of suspicion of murder, in the event of the corpse being found in his house, into the house of another neighbour, who, finding it there, and acting under the influ
case 7. See, also, in Chambers's Edinb. Journal for March II, 1837, a case where part of the evidence against a man charged with murder consisted in his night clothes having been found stained with blood—a fact which he declared his inability to account for; and it was afterwards discovered to have been occasioned by his bcd-fcllow having u bleeding wound, of which the prisoner was nut aware.
(p) 3 Benth. Jud. Ev. 50. (») Id. 35, 36, 37.
(r) 2 H. P. C. -289. A very similar conviction occurred in 1827, but the fatal result was averted. (R. v. Gill, Wills on Circumst. Ev. 79, 80.) Sje, also, the case of Du Moulin, Chambers's Edinb. Journ. for Oct. 29, 1837.
ence of similar apprehension, in like manner transmitted it to a third, who, in his turn, shifted the possession of the corpse to a fourth, with whom it was found by the officers of jusiice.(s)
(j 223. The forgery of real evidence may have been effected with the malicious purpose of bringing down suffering on an innocent individual. The most obvious instance of this is to be found in a case of rare occurrence, it is true, although, perhaps, not so much as is usually supposed; namely, where stolen goods are clandestinely deposited in the house, room, or box of an innocent person, with the view of exciting a suspicion of larceny against him; and a suspicion of murder may be raised by secreting a bloody weapon in the like manner.(0 We have already referred to the unfortunate case of Le Brun, who was accused of having murdered his mistress, where the officers of justice were charged with having altered a common key, found in his possession, into a master key, in order to make it appear at the trial that he had a facility for committing the murder which he really did not possess.(u) The following instance orMhis kind of forgery is likely to be resorted to in countries where the rules of evidence are not well understood, and convictions of offences, especially of such as are of a T *302 T pontical nature, are based on "slender proof. The artifice *- * alluded to is that of sending to the person whom it is de
sired to injure, letters, in which the mode either of committing some crime is discussed, or containing allusion to a supposed crime already committed, and then procuring the arrest of the party under such circumstances that the document may be found in his possession: e. g. "On such an occasion, (naming it), my dear friend, you failed in your enterprise: (describing it by allusion, as theft, murder, &c.;) on such a day do so and so, and you will succeed." "In this way," observes Mr. Bentham, " so far as the possession of criminative written evidence amounts to crimination, it is in the power of any one man to make circumstantial evidence of criminality, in anv shape, against any other."(;c)
§ 224. It sometimes happens that real evidence is forged with the double motive of self-exculpation and of inducing suspicion on a hated individual; a bad case of which is given in the Causes Ceiebres.(y) The subject of this species of forgery, it is to be observed, may be accomplished by force, as well as by fraud: e. g. three men unite in a conspiracy against an innocent person, one lays hold of his hands, another puts into his pocket an article of stolen property, which the third, running up as if by accident during the scuffle, finds there, and denounces him to justice as a thief.(z)
§ 225. Forgery of real evidence committed either in sport or with some moral end in view. As an instance of this, Mr. Bentham refers T *303 1 to ,ne s,orv of tne *I*atriarch Joseph,(a) who, with the L J view of creating alarm and remorse in the minds of his
guilty brothers, caused a silver cup to be privately hid in one of their
(») 3 Benth. Jud. Ev. 36. Arabian Nights' Entertainments, Story of the Little Hunchback. (0 Theory of Pres. Proof, App., case 10, p. 102.
(u) 3 Benth. Jud. Ev. 60. '(*) Id. 44.
(y) Case of the Flemish Curate, 5 Causes Ceiebres, 442; cited in Chambers's Edinb. Journal, Jan. 18, 1840. (z) 3 Benth. Jud. Ev. 39.
(a) Genesis, zliv. 2; 3 Benth. Jud. Ev. 37, 52.