Hunter, 3 Car. & P. 591, 4 Car. & P. 128; Rex v. Haworth, 4 Car, & P. 254. "Considering, moreover, the inherent infirmity of human memory, in the fair construction and application of this rule, evidence ought in all criminal cases, and a fortiori in cases of circumstantial evidence, to be received with distrust, wherever any considerable time has elapsed since the commission of the alleged offense. An unavoidable consequence of great delay is, that the party is deprived of the means of vindicating his innocence, or of proving the attendant circumstances of extenuation, the crime itself becomes forgotten, or is remembered but as a matter of tradition, and the offender may have become a different moral being; in such circumstances punishment can seldom, perhaps never, be efficacious for the purpose of example. On those accounts judges and juries are not always reluctant to convict parties charged with offenses committed long previously. "Rule 4.-In order to justify the inferences of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. This is the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated. The awards of penal law can be justified only when the strength of our convictions is equivalent to moral certainty; which, as we have seen, is that state of the judgment, grounded upon an adequate amount of appropriate evidence, which induces a man of sound mind to act without hesitation in the most important concerns of human life. In cases of direct credible evidence, that degree of assurance immediately and necessarily ensues; but in estimating the effect of circumstantial evidence, there is of necessity an ulterior intellectual process of inference which constitutes an essential element of moral certainty. The most important part of the inductive process, especially in moral inquiries, is the correct exercise of the judgment in drawing the proper inference from the known to the unknown, from the facts proved to the factum probandum. A number of secondary facts of an inculpatory moral aspect being given, the problem is, to discover their causal moral source, not by arbitrary assumption, but by the application of the principles of experience in relation to the immutable laws of human nature and conduct. It is not enough, however, that a particular hy pothesis will explain all the phenomena; nothing must be inferred because, if true, it would account for the facts; and if the circumstances are equally capable of solution upon any other reasonable hypothesis, it is manifest that their true moral cause is not exclusively ascertained, but remains in uncertainty; and they must therefore be discarded as conclusive presumptions of guilt. Every other reasonable supposition by which the facts may be explained consistently with the hypothesis of innocence must therefore be rigorously examined and successively eliminated; and only when no other supposition will reasonably account for all the conditions of the case, can the conclusion of guilt be legitimately adopted. Rule 5.-If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted. In other words, there must be no uncertainty as to the reality of the connection of the circumstances of evidence with the factum probandum, or as to the sufficiency of the proof of the corpus delicti, or, supposing those points to be satisfactorily established, as to the personal complicity of the accused. This is in strictness hardly so much a distinct rule as a consequence naturally flowing from, and virtually comprehended in the preceding rules. Indeed, it is more properly a test of the right application of those rules to the facts of the particular case. The necessity and value of such test is manifest from the consideration of the numerous fallacies incidental to the formation of the judgment on indirect evidence and contingent probabilities, and form the impossibility in all cases of drawing the line between moral certainty and doubt. . . While it is certain that circumstantial evidence is frequently most convincing and satisfactory, it must never be forgotten, as was remarked by that wise and upright magistrate, Sir Matthew Hale, that 'persons really innocent may be entangled under such presumptions, that many times carry great probabilities of guilt;' (2 Hale, P. C. chap. 39; see Rex v. Thornton, Warwick Autumn Assizes, 1817) wherefore, as he justly concludes, this kind of evidence must be warily pressed.' 'It is safer. . . to err in acquitting than in convicting, and better that many guilty persons should escape than that one innocent man should suffer.' 2 Hale, P. C. chap. 39. Paley controverts the maxim, and urges that he who falls by a mistaken sentence may be considered as falling for his country, while he suffers under the operation of those rules by the general effect and tendency of which the welfare of the community is maintained and upheld." 6 Mor. & Pol. Phil. chap. 9. There is no judicial enormity which may not be palliated or justified under color of this execrable doctrine, which is calculated to confound all moral and legal distinctions; its sophistry, absurdity, and injustice have been unanswerably exposed by one of the ablest of lawyers and most upright of men. Romilly, Observation on the Common Law of England, 72; Best, Presumptions, 292. Justice never requires the sacrifice of a victim; an erroneous sentence is calculated to produce incalculable and irreparable mischief to individuals, to destroy all confidence in the justice and integrity of the tribunals, and to introduce an alarming train of social evils as the inevitable result." Wills, Circ. Ev. chap. 6. pp. 173–194. 356. The Rule in Civil Actions Having Criminal Attributes. It is quite usual in civil actions, for the court to instruct the jury that the mere preponderance of evidence is sufficient to justify a verdict for the plaintiff or defendant in the litigation as the case may be. But, in those civil actions where a criminal act is alleged, the attributes of a criminal act follow the allegation. And the party seeking to sustain such an averment, must comply with the rule in criminal actions, and establish the allegation beyond a reasonable doubt. Blaeser v. Milwaukee M. Mut. Ins. Co. 37 Wis. 31, 19 Am. Rep. 747; Thurtell v. Beaumont, 1 Bing. 339; Washington U. Ins. Co. v. Wilson, 7 Wis. 169; McConnell v. Delaware Mut. S. Ins. Co. 18 Ill. 228; Weston v. Gravlin, 49 Vt. 507; Thayer v. Boyle, 30 Me. 475; Bradish v. Bliss, 35 Vt. 326; Butman v. Hobbs, 35 Me. 228; Jones v. Greaves, 26 Ohio St. 2, 20 Am. Rep. 752; White v. Comstock, 6 Vt. 405; Barfield v. Britt, 47 N. C. 41, 62 Am. Dec. 190; Brooks v. Clayes, 10 Vt. 37; Kincade v. Bradshaw, 10 N. C. 63; Riker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646; Kane v. Hibernia Ins. Co. 39 N. J. L. 697, 23 Am. Rep. 239; Freeman v. Freeman, 31 Wis. 235; Folsom v. Brawn, 25 N. H. 122; Scott v. Home Ins. Co. 1 Dill, 105; Rothschild v. American Cent. Ins. Co. 62 Mo. 356; Munson v. Atwood, 30 Conn. 102; Watkins v. Wallace, 19 Mich. 57; State v. Goldsborough, 1 Houst. Crim Rep. 316; Burr v. Willson, 22 Minn. 206; Schnell v. Toomer, 56 Ga. 168; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; Welch v. Jugenheimer, 56 Iowa, 11, 41 Am. Rep. 77; Ellis v. Buzzell, 60 Me. 209, 11 Am. Rep. 204; Barton v. Thompson, 46 Iowa, 30, 26 Am. Rep. 131; Knowles v. Scribner, 57 Me. 495; Kendig v. Overhulser, 58 Iowa, 195; Schmidt v. New York U. Mut. F. Ins. Co. 1 Gray, 529; Etna Ins. Co. v. Johnson, 11 Bush, 587, 21 Am. Rep. 223; Hoffman v. Western M. & F. Ins. Co. 1 La. Ann. 216; Sloan v. Gilbert, 12 Bush, 51, 23 Am. Rep. 708; Wightman v. Western M. & F. Ins. Co. 8 Rob. (La.) 442. PART IV. EVIDENCE FOR THE DEFENSE. CHAPTER XLIV. EVIDENCE OF SELF-DEFENSE. 357. Preliminary Remarks. 358. What must Appear to Justify the Claim of Self-defense. 359. Self-defense Rests upon Necessity. 360. Extent of the Retreat. 361. When Heroic Methods may be Employed. 362. Threats Considered in Relation to Self-defense. 363. Threats Competent to Show Intent. 364. The Rule in Alabama. 365. Proof of Lying in Wait and Violent Temper. 366. Vacillation in the Authorities. 367. Pertinent Illustration of a Missouri Case. 369. What is Reasonable Cooling Time. 370. Extended Collation of Authority. 357. Preliminary Remarks.-All civilized communities as well as savage conditions recognize the principle of lawful resistance; but it is the province only of the higher civilization to prescribe the limits within which this resistence is to act, and within which when shown, it will declare the exoneration of the party resisting. The most expert publicists sanction "lawful resistance" to the commission of a crime. It is the first duty of the citizen to prevent it, and his only concern in preventing it is to take care that the methods he employs are lawful. Resistance sufficient to prevent the crime may be made by the party about to be injured: (1) To prevent a crime against his person; (2) To prevent an illegal attempt by force to take or injure property in his lawful possession. Any other person, in |