§ 1. MOTIVES TO COMMIT CRIME.

As there must necessarily preëxist a motive to every human action, it is proper to comprise in the class of moral indications those particulars of external situation which are usually observed, under given circumstances, to operate as motives and inducements to the commission of crime, as well as such wise, unequivocal indications, from language and conduct, as directly and pointedly manifest a relation between the deed and the mind of the actor. The usual inducements to crime are, the desire of avenging real or fancied wrongs; of obtaining some object of desire which rightfully belongs to another, or of preserving reputation, either that of general character or the conventional reputation of sex or profession. It is always a satisfactory circumstance of corroboration when, in connection with convincing facts, an apparently adequate motive can be assigned; but as the operations of the mind are invisible and intangible, it is impossible to go further; and there may be motives which no human being beside the party can divine. Undue or even great stress must not be laid upon the existence of circumstances supposed to be indicative of motives, nor ought it, in any case, to supersede the necessity for the same quantity of proof as would be deemed necessary in the absence of all evidence of such stimulus. An action without a motive would be an effect without a cause; and as the particulars of external situation and conduct will, in general, correctly denote the motive for a criminal action, the absence of all evidence of an inducing cause is reasonably regarded, where the fact is doubtful, as affording a strong presumption of innocence. Courts of justice, of necessity, interpret, by external indications, the secret motives of the mind, but as such conclusions must, in general, be inferential merely, they can never be properly made the subject of testimonial opinion; and when an unlawful act has been voluntarily committed, the motive and intention, though essential elements of criminality, are rightly matters of legal inference and presumption. In the majority of cases the nature of the action is per se unequivocally indicative of guilty intention, and is not susceptible of two interpretations; but when the act is of such a nature as not necessarily to imply a guilty intention, and the knowledge of the party of the nature of his conduct is the specific point in issue, then the evidence of collateral circumstances is of the highest importance as explanatory of his inten

tions, and may be of vital moment, and it may be said that all such relevant acts of the party as are explanatory of his motives are admissible in evidence against him.' The presumption is that a man intended the necessary consequences of his acts." Thus, in a case of arson, the court said the prisoner must be presumed to have intended the ordinary consequences of his acts, and that it devolved upon him to show the absence of an intent to burn the building. Upon this question of intent, evidence is allowed to be given of the prisoner's conduct on other occasions where it has no other connection with the charge upon inquiry, than that it tends to throw light on what were his motives and intention in doing the act complained of. This cannot be done merely with the view of inducing the jury to believe that, because the prisoner has committed a crime upon one occasion, he is likely to have committed a similar offence upon another, but only by way of anticipation of an obvious defence, such as that the prisoner did the act of which he was accused, but innocently and without any guilty knowledge, or that he did not do it because no motive existed in him for the commission of such crime. In both of these cases it is competent for the prosecutor to adduce evidence which, under other circumstances, would not be admissible; such as the conduct of the prisoner on other occasions, his admissions, and other surrounding circumstances, in order to show, as the case may require, either that his ignorance was extremely improbable or that he had ample motives of advantage or revenge for the commission of the crime. There are three classes of offences in which, from the nature of the offence itself, this species of evidence is frequently necessary, and these are conspiracy, the uttering of forged instruments and counterfeit coin, and the offence of receiving stolen goods. In these the act itself is almost always of an equivocal kind, and from which malus animus cannot, as in crimes of violence, be presumed, and almost the only evidence which could be adduced to show the guilt of the prisoner would be his conduct on other occasions.4

1 Wills on Cir. Ev., 38, 39, 41; 1 Mascardus de Prob. Concl., 95; Rex v. Voke, R. & R., 653.

• Van Pelt v. McGraw, 4 N. Y. (4 Com.), 110.

3 Peo. v. Orcutt, 1 Park., 254.

Ros. Cr. Ev., 87; R. v. Cole, Phill. Ev., 477.

§ 2. DECLARATIONS OF INTENTION.

It is not uncommon with persons about to engage in crime to utter menaces, or to make obscure and mysterious allusions to purposes and intentions of revenge, or to boast to others, whose standard of moral conduct is the same as their own, of what they will do, or to give vent to expressions of revengeful purposes, or of malignant satisfaction at the anticipated occurrence of some serious mischief. Such declarations or allusions are of great moment when clearly connected by independent evidence wită some subsequent criminal action. The just effect of such language is to show the existence of the disposition, from which criminal actions proceed, to render it less improbable that a person proved to have used it would commit the offence charged, and to explain the real character and motive of the action; but proof of such language cannot be considered to dispense with the obligation of strict proof of the criminal facts, for though malignant feelings may possess the mind, and lead to intemperate and even criminal expressions, they nevertheless may exercise but a transient influence, without leading to action.1

In the examination of cases of this kind, several considerations are laid down by BEST in his Work on Presumptions,2 which are of importance to be remembered.

(a) It must be recollected that the tendency of a threat or declaration of this nature is to frustrate its own accomplishment, for by threatening a man you put him on his guard.

(b) It does not necessarily follow because a man avows an intention or threatens to commit a crime, that such intention really existed in his mind. The words may have been uttered through bravado, or with a view of annoying, intimidating, extorting money or goods, or other collateral objects. Mr. BENTHAM,3 however, observes that such threats, by the the testimony of experience, are but too often, sooner or later, realized. To the intention of producing the terror, and nothing but the terror, succeeds under favor of some special opportunity, or under the spur of some fresh provocation, the intention of producing the mischief, and (in pursuance of that intention) the mischievous act.

'Wills' Cir. Ev., 45; 3 Bentham's Jud. Ev., bk. 5, ch. 4. ' Best on Presumptions, 315.

Bentham's Jud. Ev.

C. P. VOL. II-13.

(c) The words supposed to be declaratory of criminal intention have been misunderstood or misremembered.

may

(d) Another person really desirous of committing the offence, may heve profited by the occasion of the threat to avert suspicion from himself; thus, a woman of extremely bad character and violent temper, one day in the open street threatened a man who had done something to displease her, that she would "get his hams cut across for him." He was found dead a short time afterwards, with his hams cut across. The woman was arrested, put to the torture, confessed the crime, and was executed. Another person was soon afterwards arrested for another offence, who confessed that he was the murderer, and stated that happening to be passing when the threat was uttered, he conceived the idea of committing the crime, as he knew the woman's bad character would be sure to tell against her.1

§ 3. PREPARATIONS FOR THE COMMISSION OF CRIME.

Premeditated crime must necessarily be preceded not only by impelling motives, but by appropriate preparations. Possession of the instruments or means of crime under circumstances of suspicion-as of poison, coining instruments, combustible matters, picklock keys, dark lanterns, or other destructive or criminal weapons, instruments or materials, and many other acts of apparent preparation for crime-are important facts in the judicial investigation of imputed crime. Thus, where a man had in his possession a large quantity of counterfeit coin unaccounted for, and there was no evidence that he was the maker, it was held to raise a presumption that he had procured it with intent to utter it; but the personal character for probity, and the civil station of the party, are highly material in connection with facts of this kind. A medical man, for instance, in the ordinary course of his profession, has legitimate occasion for the possession of poisons, and a locksmith for the use of picklock keys. Facts of the kind referred to become more powerful indications of guilty purpose if false reasons are assigned to account for them. The bare possession of the means of crime, or other mere acts of preparation, without more conclusive evidence, are not in themselves of great weight, for so long as the supposed offence consists in a bare intent, without some act done towards the commission of the

15 Causes Celebres, 437.

THE POSSESSION OF THE FRUITS OF CRIME.

195 crime, it is not punishable. But as preparation must necessarily precede the commission of premeditated crime, some traces of them may generally be expected to be discovered; and if there be not clear and decisive proof of guilt, the absence of any evidence of such preliminary measures is a circumstance strongly presumptive of innocence. In the foregoing remarks it is, of course, assumed that the party possessed the opportunity of committing the imputed act, without which neither the existence of motives, nor the manifestation of criminal intention, by threats or otherwise, followed even by preparation for its commission, can be of any weight.1

§ 4. THE POSSESSION OF THE FRUITS OF CRIME..

Since the desire of dishonest gain is the impelling motive to. theft and robbery, it naturally follows that the possession of the fruits of crime, recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they were found was the real offender, unless he can account for such possession in some way consistently with his innocence. The foundation of this presumption is the obvious consideration that, if the possession has been lawfully acquired, the party would be able, at least, shortly after its acquisition, to give an account of the manner in which such possession was obtained, and his unwillingness or inability to afford such explanation is justly regarded as amounting to strong self-condemnatory evidence.3

In the consideration of this subject there are three things that require attention:

1st. The possession must be unexplained. If the party give a reasonable and probable account of the way in which he became possessed of the property, as by stating the name of the person from whom he obtained it, and such party is known to be a real person, it is then incumbent upon the prosecutor to show that such account is false. But if the account given be unreasonable or improbable on the face of it, then the accused must prove its truth, or otherwise he will not be relieved from the pressure of

1 Wills' Cir. Ev., 46, 47.

* Wills on Cir. Ev., 47; R. v. Burdett, 4 B. & Ald., 149; 2 C. & P., 459; 3 Star. on Ev., 933; Best on Pres., 44.

* Wills, 48.