ence or non-existence of the facts in issue is deduced from the proved existence of other facts.1

From the nature of circumstantial evidence it follows that' its force wholly depends upon the fact that in each case some direct evidence has been given from which the presumption or inference may arise.

So in the class of cases in which fraud is alleged, or in which it is said that fraud will be presumed from the circumstances of the parties, direct evidence of a clear and satisfactory character must be adduced before the existence of fraud will be presumed; and the facts and circumstances must be established beyond a reasonable doubt.2

The admissibility of circumstantial evidence depends solely upon the strength and distinctness of the logical connection between the facts proved and the inference which may be made by the jury; in other words, whether such evidence is receivable depends upon its relevancy to the fact in issue. The question of relevancy is one for the decision of the judge. To guide him in his decision upon the remoteness of the evidence offered no general rule can be enunciated. Each case must necessarily be decided on its own circumstances, subject to the general qualification that all the evidence. offered, to be admissible, must tend to prove or disprove the fact in issue.3

5. Nature and effect of circumstantial evidence.- Circumstantial evidence is divided by the authorities into that which is certain and that which is uncertain. In the former

and independently proved by competent evidence; and the inference must be fair and natural, not forced or artificial." Webster's Case, 5 Cush. 311. See Com. v. Howe, 132 Mass. 259.

1Com. v. Harmon, 4 Pa. St. 269. to the inference must be distinctly "The advantage of circumstantial evidence is that, as it commonly comes from different sources, a chain of circumstances is less likely to be falsely prepared and falsehood is more likely to be detected. The disadvantage is that the jury have not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which there may be led to make hasty and false deductions - a source of error not existing in the consideration of positive evidence. Hence, each fact necessary

2 McAleer v. McMurray, 58 Pa. St. 126; Douglass v. Mitchell, 35 id. 440; United States v. Ross, 92 U. S. 281; Kaiser v. State, 35 Neb. 704; State v. Hunter, 50 Kan. 302; Kennedy v. State, 12 S. Rep. 858 (Fla., 1893); Hutchison v. Boltz, 35 W. Va. 754. 3 See §§ 7-10.

class the conclusion follows necessarily where the premises are established; in the latter it may or may not follow, according to the course of reasoning pursued by the jury.1 This classification, however, is of small practical value, for the weight of circumstantial evidence and the power to draw inferences from it are matters which are wholly in the hands of the jury, and they are not under the necessity of being convinced by any degree of circumstantial evidence, however satisfactory or certain it may appear. It is the duty of the judge to instruct them as to the rules regulating the subject, and where the evidence is wholly circumstantial it is reversible error for him to refuse to do so.2

So though the jury may, under the direction of the judge as to the law, weigh the evidence and compare that which is circumstantial with that which is direct, they are under no sort of obligation to reject the former in favor of the latter, or to ascribe to either any higher degree of probative force than to the other. So the credibility of either description of evidence depends on its intrinsic merit as regards truthfulness and probability. A conviction of crime may be had on circumstantial evidence alone, provided the jury are convinced beyond a reasonable doubt. In other words, the circumstances should be not only consistent with the prisoner's guilt, but irreconcilable with any other rational hypothesis.5

11 Greenleaf on Evidence, § 13a. 2 Crowell v. State, 24 Tex. App. 404; Boyd v. State, 24 id. 570; Crowley v. State, 10 S. W. Rep. 217; 26 Tex. App. 278.

But where no question of circumstantial evidence is involved the court need not instruct the jury upon the rules governing it. Langdon v. People, 133 Ill. 382; 24 N. E. Rep. 874; Smith v. State, 28 Tex. App. 309; Wampler v. State, 28 Tex. App. 352; Vaughan v. State (Ark., 1893), 20 S. W. Rep. 588; Cotton v. State, 87 Ala. 75.

3 People v. Morrow, 60 Cal. 142; State v. Slingerland, 19 Nev. 135; Clark v. Com., 123 Pa. St. 555. "Nothing in the nature of circumstantial evidence renders it less re

liable than other evidence." People v. Orquidas, 96 Cal. 239.

4 Kaiser v. State, 35 Neb. 704; State v. Hunter, 50 Kan. 302; Kennedy v. State (Fla., 1893), 12 S. Rep. 858.

5 State v. Avery (Mo., 1893), 21 S. W. Rep. 21; Nail v. State (Miss., 1893), 11 S. Rep. 793; State v. Davenport (S. C., 1893), 17 S. E. Rep. 37; State v. Taylor, 20 S. W. Rep. 239; 111 Mo. 538; State v. Milling, 35 S. C. 16; 14 S. E. Rep. 284; Williamson v. State, 30 Tex. 330; 17 S. W. Rep. 722; State v. Woodward (Iowa, 1892), 50 N. W. Rep. 885; People v. Dillwood, 94 Cal. 89; United States v. McKenzie, 35 Fed. Rep. 826; Leonard v. Territory, 2 Wash. T. 281; Overman v. State, 49 Ark. 364; Dean

§ 6. Reasonable doubt and the weight of evidence — Alibi in criminal trials.- Where civil rights are involved, extreme strictness of proof is not required, and the jury may decide for either party according to the probability and weight of evidence, so long as their verdict be in favor of that litigant upon whose side the evidence preponderates.

The jury in criminal cases, however, are not permitted to base their verdict on a mere preponderance of proof, but are required, particularly where the evidence is circumstantial or contradictory, to be satisfied beyond a reasonable doubt that the accused is guilty.

The rule that a preponderance of evidence is sufficient in a civil suit is based upon the fact that proof arrived at by the verdict will only result as a judgment for pecuniary damage or establish a civil right. But in a criminal trial the accused starts with a presumption of innocence which must be overcome in addition to the evidence which he may adduce in his own behalf. So the character, and perhaps the life, of the ac

v. Com., 32 Gratt. 912; Davis v. State, 74 Ga. 869; Russell v. Com., 78 Va. 600; Swigar v. State, 109 Ill. 372; Poe v. State, 10 Lea (Tenn.), 673; State v. Anderson, 10 Oreg. 448; State v. Smith, 73 Iowa, 32; Com. v. Robinson, 146 Mass. 371; Yates v. People, 32 N. Y. 509; Com. v. Webster, 59 Mass. 295; West v. State, 76 Ala. 98; People v. Beckwith, 108 N. Y. 67; State v. Johnson, 37 Minn. 493; People v. Reich, 110 N. Y. 660; Jones v. State, 57 Miss. 684; State v. Brewer, 98 N. C. 607.

"Perhaps strong circumstantial evidence, in cases of crimes committed for the most part in secret, is the most satisfactory of any from which to draw the conclusion of guilt; for men may be seduced to perjury by many base motives, to which the secret nature of the of fense may sometimes afford a temptation: but it can scarcely happen that many circumstances, especially if they be such over which the ac

cuser could have no control, forming altogether the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous." 1 East, P. C., ch. 5, § 9.

1 Pierce v. State (Tex., 1893), 22 S. W. Rep. 587; State v. Johnson, 37 Minn. 493; Coleman v. State, 111 Ind. 563; People v. Flynn, 73 Cal. 511; Hopt v. People, 7 S. Ct. 614; McMeen v. Com., 114 Pa. St. 300; McKee v. State, 82 Ala. 32; Graves v. People (Colo., 1893), 32 Pac. Rep. 63; Bramlette v. State, 21 Tex. App. 611; 2 S. W. Rep. 765; State v. Blunt, 91 Mo. 503; Gardiner v. State (N. J., 1893), 26 Atl. Rep. 30; Gentry v. State (Tex., 1893), 20 S. W. Rep. 551; McDuffie v. State (Ga., 1893), 17 S. E. Rep. 505; Woodruff v. State (Fla., 1893), 12 S. Rep. 653; State v. Grant (Iowa, 1893), 53 N. W. Rep. 120; Weaver v. People, 132 Ill. 536; Taylor . Com. (Va., 1893), 17 S. E. Rep. 81; Kelly v. People, 17 Colo. 130; Cross v. State, 132 Ind. 65;

cused is involved, while in civil cases the loss he may sustain, however great, may be retrieved by his future efforts.1

But where the commission of a crime is in issue in a civil suit, an irreconcilable lack of harmony prevails in the decis ions. In England,2 and in some of the states of the Union, it is held that where the existence of a criminal intent is in issue in a civil proceeding, the party alleging the intent must prove its existence beyond a reasonable doubt. But the weight of the decisions is adverse to this proposition, for the great majority of them support the rule that an accusation of crime in a civil suit may, like any other fact in issue, be proven by a preponderance of evidence.1

The meaning of the phrase "reasonable doubt" has been the subject of much discussion, and many attempts have been made to define it.5 Thus it has been defined as "a doubt for

See remarks of the court in Mut. F. L. Co. v. Usaw, 112 Pa. St. 89.

Hunter v. State, 29 Fla. 486; State the confidence placed in the integrity v. Turner, 110 Mo. 196; Palmer- of witnesses and their capacity to ston v. Ter., 3 Wyo. 333; State v. know the truth. If, for example, Whiton, 111 N. C. 695; People v. facts not improbable are attested by Kerr, 6 N. Y. Crim. R. 406; United numerous witnesses who are crediStates v. Meagher, 37 Fed. Rep. 875; ble, consistent, uncontradicted, and Perry v. State, 87 Ala. 30; State v. who had every opportunity of knowGrant (Iowa, 1893), 53 N. W. Rep. 120. ing the truth, a reasonable or moral certainty would be inspired by their testimony. In such case a doubt would be unreasonable, imaginary or speculative, which it ought not to be. It is not a doubt whether the party may not possibly be innocent in the face of strong proof of his guilt, but a sincere doubt whether he has been proved guilty, that is called reasonable. And even where the testimony is contradictory, so much more credit may be due to one side than the other and the same result

2 Stephen's Dig., art. 94. Polston v. See, 46 Iowa, 30; Mead v. Husted, 52 Conn. 56; Williams v. Dickerson, 28 Fla. 90; Barton v. Thompson, 46 Iowa, 30.

4 Gordon v. Parmlee, 15 Gray (Mass.), 413; Ellis v. Burrell, 60 Me. 209; Burr v. Wilson, 22 Minn. 206; Munson v. Atwood, 30 Conn. 102; Bissell v. West, 35 Ind. 54; Weston v. Gravlin, 49 Vt. 507.

5 State v. Whitson, 16 S. E. Rep. will be produced. On the other 332; 111 N. C. 695.

hand, the opposing proofs may be so nearly balanced that the jury may justly doubt on which side lies the truth. In such case the accused is entitled to the benefit of the doubt. As certainty advances doubt recedes. If one is reasonably certain he cannot at the same time be reasonably

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6

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which a reason can be given;" as a doubt that must satisfy a reasonable mind after a full comparison and consideration of the evidence; as "a doubt that has something to rest upon, and such as a sensible, honest-minded man would reasonably entertain;" as a doubt growing out of the evidence and circumstances of the case, having a foundation in reason; a substantial doubt, and not a mere possibility of innocence; and as an honest, substantial misgiving generated by insufficiency of proof.' But a mere whim, groundless surmise, vague conjecture, captious doubt or misgiving suggested by an ingenious counsel, or arising from a merciful disposition towards defendant or from sympathy for him or his family,10 is not a reasonable doubt."1

2 Wood v. State (Fla., 1893), 12 S. of evidence in the case. It does not Rep. 539.

mean a mere vague conjecture or a

* Fletcher v. State (Ga., 1893), 17 S. bare possibility of the innocence of the accused." Fletcher v. State (Ga.,

E. Rep. 100.

Territory v. Chavez (N. M., 1893), 1893), 17 S. E. Rep. 100. 30 Pac. Rep. 903.

8 Welch v. State (Ala., 1893), 11 S.

5 Conrad v. State, 31 N. E. Rep. 805; Rep. 450. 132 Ind. 254.

State v. Wells, 111 Mo. 533. 7United States v. Newton, 52 Fed. Rep. 275. See, also, Siberry v. State (Ind., 1893), 33 N. E. Rep. 681; People v. Kerm (Utah, 1893), 30 Pac. Rep. 988; Lovett v. State, 30 Fla. 142; Lyons v. People, 137 Ill. 602; Carroll ▼. Same, 136 id. 456; Woodruff v. State (Fla., 1893), 22 S. Rep. 653; People v. Pallister, 138 N. Y. 601.

"A reasonable doubt is such a doubt as the term itself implies. It is difficult to explain what a reasonable doubt is. It means a doubt that

9 Fletcher v. State (Ga., 1893), 17 S. E. Rep. 100.

10 United States v. Newton, 52 Fed. Rep. 275.

11 Territory v. Baningan, 1 Dak. 432; Spies v. People (Anarchist Case), 122 Ill. 8; Schusler v. State, 29 Ind. 394; Horn v. State, 1 Kan. 42; Com. v. Webster, 59 Mass. (5 Cush.) 295; Com. v. Harman, 4 Pa. St. 269; Brotherton v. People, 75 N. Y. 159; McMeen v. Com., 114 Pa. St. 300; State v. Anderson, 86 Mo. 309; Bradshaw v. State, 17 Neb. 147.