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sacks, and, after they had gone some distance on their journey, had them arrested as thieves, and brought back.
(j 226. The other infirmative hypothesis affecting real evidence remains to be noticed ; namely, that the apparently criminative fact may have been created by the accused in the furiherance of some lawful or even laudable design. This is best exemplified by those cases of larceny where the stolen property is found in the possession of a person, who, knowing or suspecting it to have been stolen, took possession of it with the view of either seeking out the true owner in order to restore it, or of bringing the thief to justice; but, before this can be accomplished, becomes himself the object of suspicion, in consequence either of the stolen goods being seen in his possession, or of false information being laid against him by the real criminal in order to save himself. So, where a pedlar got drunk in a public house, and a person present took possession of his pack, with the viewing of returning it to him when sober, &c. In cases of suspected murder, also, stains of blood may have been produced by an accidental bleeding from the *nose,(b) a surgical operation,(c) the slaughter of an animal,(d) &c.
*§ 227. Real evidence, while truly indicative of guilt in r . general, may be fallacious as to the species and quality of L J the crime. The recent possession of stolen property, for instance, is deemed presumptive evidence of larceny, not of the accused having received the goods with a guilty knowledge of their having been stolen ;(e) and there can be little doubt that persons are frequently convicted and punished for the former offence whose guilt consisted in the latter.(f) So, cases have occurred, where, from the possession of the property of a deceased person, an individual has been suspected of murder, whose real crime was robbery.(A)
§ 228. There is one species of real evidence which, from its frequent occurrence, and the stress usually laid on it, deserves a more
J,articular consideration; namely, the presumption of guilt in cases of arceny, drawn from possession bylheaccused ofthewhole or some portion of the stolen property. Not only is this strong presumptive evidence of delinquency, when coupled with other circumstances, but, according to the practice of our criminal courts, when the possession is recent and exclusive, is sufficient, even standing alone, to assume the shape of a praesumptio fortior, so as to cast on the accused the onus of shewing that he came honestly by the stolen "property, and, in the r 4j. , event of his failing so to do, warrant the jury in convict- *• J ing him as the thief. This presumption is not only subject to the infirmative circumstances attending real evidence in general, which
(b) Quint., lib. 5, c. 9.
(c) In the case of William Shaw, who was executed at Edinburgh in 1721, for the murder of bis daughter, who had committed suicide, one of the facts which pressed against him was that his shirt was bloody, which was, however, caused by his having bled himself a few days before, and the bandage becoming untied. Theory of Pres. Proof, App., case 8.
(dj In the case of Thomas Pryor, convicted at the Maidstone Spring Assizes of 1836, for robbery with attempt to murder, the stains of blood on his shirt were attempted to be explained, by shewing that he was a butcher by trade, and had recently slaughtered a bullock. The time, however, not coinciding, he was convicted and executed, having previously confessed his guilt. («) R. v. Densley, 6 C. & P. 399, (25 Eng. Com. Law Reps.)
(g) This would be avoided if counts for larceny were allowed to be joined with counts for receiving.
(A) See the case of R. v. Downing, Wills on Circumst. Ev. 179, 180.
have been already treated of, but, from its frequent occurrence, and the obvious danger of acting indiscriminately upon it, has, as it were, attracted the attention of the judges, who have endeavoured to impose some practical limits to its operation in cases where it constitutes the only evidence against the accused. And, first, it is clearly established, that, in order to put the accused on his defence, his possession of the stolen property must be recent although what shall be deemed such must be determined by the nature of the articles stolen, and whether they are of a nature likely to pass rapidly from hand to hand, or such as the accused might, from his situation in life, or nature of his vocation, become innocently possessed of.(A) A poor man, for instance, 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.(/) In the first reported case on this subject, which is an anonymous one,(n») Bayley, J., directed an acquittal, because the only evidence against the prisoner was, that the stolen goods (the nature of which is not stated in the report) were not found in his possession until a lapse of sixteen T *306 1 mon,lls from the time *of the loss. Where, however, J seventy sheep were put on a common on the 16th June, but not missed till November, and the prisoner was proved to have been in possession of four of them in October, and of nineteen more on the 23rd November, the same judge allowed evidence of the possession of both to be given.(«) In the subsequent case of R. v. Adams,(o) where the prisoner was indicted for stealing a saw and a a mattock, and the whole evidence was, that they were found in his possesion three months after they were missed, Parke, B., directed an acquittal. And in a more recent case, of R. v. Cruttenden,fj)) 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, Gurney, B., held, that, on this evidence alone, the prisoner ought not to be called on for his defence. In the case, however, of R. v. Partridge,(<7) where the prisoner was indicted for stealing two ends of woolen cloih, (i. e. pieces of cloth consisting of about twenty yards each,) which, at the expiration of two months after they were missed, were found in his possession; on its being objected that too long a time had elapsed, Patteson, J., overruled the objection, and the prisoner was convicted. In the most recent case on this 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 R. v. Adams, that T *307 1 prisoner ought not to be called on for his defence; L J but *Wightman, J., said, that it seemed to him impossible
(i) 2 Stark, Et. 614; 2 East, P. C. 656. See R. v. Cockin, 2 Lew. C. C. 235, with the able note of the reporter.
(*) 2 Grcaves's Rum. 121; R. v. Partridge, 7 C. & P. 551, (32 Eng. Com. Law Repe.); R. v. Cockin, 2 Lew. C. C. 235, note.
(/) Anon., 2 C. oi P. 459, (12 Eng. Com. Law Reps.)
(m) 7 Monthly Law Mag. 58. (n) R. v. Dewhirst, 2 Stark. Ev. 614, 3rd od.
(o) R. v. Adams, 3 C. & P. 600, (14 Eng. Coin. Law Reps.)
(p) Kent Sp. Ass. 5 Vict. MS.; and 6 Jurist, 267.
(f) R. v. Partridge, 7 C. & P. 551, (32 Eng. Com. Law Reps.)
POSSESSION OF STOLEN PROPERTY.
to lay down any definite rule as to the precise time which was too great to call on a prisoner to give an account 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
with this subject, it is also to be remarked, that the probability of guilt is increased by the coincidence in number and kind of the articles stolen with those found in the possession of the accused ; the possession of one out of a large number stolen being more easily attributable to accident or forgery than the possession of all. (s)
§ 229. But in order to raise this presumption legitimately, the possession of the stolen property should be clearly traced to the accused, and be exclusive as well as recent. The finding it on his person, for instance, or in a lock-up room or box of which he kept the key, would be a fair ground for calling on him for his defence; but if the articles stolen were only found lying in a house or room in which he lived jointly with others equally capable of having committed the theft, it is clear that no definite presumption of his guilt could be made.(i) An exception is said to exist where the accused is the occupier of the house, who must be presumed to have such a control over it as to prevent any thing coming in or being taken out without his sanction ;(s) and as a foundation for civil responsibility, this reasoning may be correct. But to conclude the master *of r #300 1 a house guilty of felony, on the double presumption, first, >- J that stolen goods found in the house must have been placed there with his connivance, and, secondly, if they even were, that he was the thief who stole them, and there are no corroborating circumstances, is certainly treading on the very verge of artificial conviction.
§ 230. Indeed, there can be no doubt that, in practice the legitimate limits of the presumption under consideration are considerably overstepped.^) "Nothing," remarks Mr. Bentham, " can be more persuasive than the circumstance of possession commonly is, when corroborated by other criminative circumstances; 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: e. g. the jewel in a case; the case in a box; the box in a bureau; the bureau in a closet; the closet in a room; the room in a house; the house in a field. Possession of a 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 successive possessors is manifestly beyond all limit."(a;) It is in its character of a circumstance, joined with others of a criminative nature, that the fact of possession becomes really valuable.(y) and entitled to consideration, whether it be ancient or recent, joint or exclusive. But, whatever the nature
(r) R. v. Hewlett, 2 Greavcs's Rues. 728, Salop Spring Assizes, 1843.
(») 2 Greaves's Russ. 124. (() 2 Stark. Ev. 614; Roscoe, Cr. Ev. 19, 2nd ed.
(a) See the note to R. v. Cockin, 2 Lew. C. C. 235. (x) 3 Benth. Jud. Ev. 39, 40.
(y) " If the panel is found in possession recently after the thing lias been stolen, in which case it is nnlikety that he should have got it otherwise than by stealing, this is always a strong ingredient of evidence, and such as, with the aid of any other material circumstances, will and ought to be held a relevant ground of conviction." (Hume's Comment, on the Criminal Law of Scotland, vol. 1, p. 111.)
they would attach to it. The
r #309 -I of the evidence, the jury *must be morally convinced of the *- -* guilt of the accused, who as we have frequently had occa
sion to remark, is not to be condemned on any artificial presumption or technical reasoning, however true and just in the abstract.(z)
§ 231. II. Motives, Means, And Opportunities To Commit The Offence.—The law of England, as has been shewn in the second part of this work, does not allow general character to be adduced, in the first instance,(a) in evidence as a criminative circumstance. It requires facts of a more proximate nature; among the foremost of which are motives, means, and opportunities, on the part of the accused, to commit the offence charged.
§ 232. "A mischievous event," says Mr. Bentham, "being supposed to have been produced, and Titius suspected of having been concerned in the production of it, What could have been his motive 1 says a question, the pertinency of which will never be matter of dispute."(6) The same author, however judiciously remarks, that proof of the existence of a motive is not so properly a criminative circumstance, as one removing the improbability of the individual having done an act, the effect of which would be to render him liable to judicial or other punishment.(c) But, considered in itself, the mere fact of a party being placed in a situation from whence, abstractedly speaking, an advantage would be derived from the crime, amounts to nothing, or next to nothing. Almost every child has something to r %210 1 &ain lne dea,n of bis parents; but, on the death *of a J parent, how seldom is parricide even suspected.(ct) Still, a motive may, under peculiar circumstances, become an exceedingly important element in a chain of presumptive proof: as where a person, charged with having set fire to his own house, is shown to have insured it to an amount exceeding its value; where a man accused of the murder of his wife, has previously formed an adulterous connexion with another female, <kc.(e) On the other hand, the absence of any apparent motive is always a fact in favour of the accused; although the existence of motives, invisible to any but the person whose breast is solicited by them, must not be overlooked. The observations relative to motives are applicable, also, to means and opportunities^ f)
§ 233. III. Antecedent Preparations And Previous Attempts.— Under the head of preparations for the commission of an offence, may be ranked the purchasing, the collecting, the fashioning instruments of mischief; repairing to the spot destined to be the scene of it; acts done with the view of giving birth to productive or facilitating causes, for removing obstructions in its execution, for obviating suspicion, &c.(g) Besides preparations of this nature, which are immediately pointed to the accomplishment of the principal design, are others of a secondary nature, for preventing discovery or suspicion of the former.^) In addition to these preparations of the second order, may be imagined preparations of the third and fourth order, and so on.(t)
234. Of all species of preparations, those which are r #g.. -, resorted to for the purpose of averting suspicion require *- * the most particular notice. A remarkable instance is presented in the case of Richard Patch, who was convicted and executed in 1806, for the murder of his patron and friend Isaac Blight. The prisoner and 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. 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 assassins were prowling about the building.(A) It has been remarked, that murderers, especially in the lower walks of life, are frequently found busy for some time previous to the act, in throwing out dark hints, spreading rumours, or uttering prophecies relative to the impending fate of their intended victims.(Z) As, for instance, 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." In the case of Susannah Holroyd, who was convicted at the Lancaster Assizes of 1816, for the murder of her husband, r #3^2 1 ♦her son, and the child of another person; about a month <- * before committing the crime the prisoner told the mother of the child 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 of the child of the person whom she was then addressing.(m) So, where the death of a young man of fortune was resolved on, the mind of the neighbourhood was prepared for the event by reports that his health was rendered desperate by his own imprudence, which was daily accumulating causes upon causes to accelerate his end.(n) Attempts to commit an offence are closely allied to preparations for it, and only differ in being carried one step further, and nearer to the criminal act, of which, however, they, like the former, fall short.(o)
§ 235. The probative force, both of preparations and attempts, manifestly rests on the presumption, that an intention to commit that individual offence was formed in the mind of the accused, which persisted until power and opportunity were found to carry it into execution. But, however strong this presumption may be when the corpus delicti has been proved,it must be taken in connexion with the following infirmative circumstances;—1. The intention of the accused in doing the suspicious act is altogether a psychological question, and may be mistaken. His intention may either have been innocent altogether, or, if criminal, directed towards a different object.( p) Thus, a person may be poisoned, and another, altogether innocent of his death,