Circumstantial Evidence. from the mark being there, but was ar-1 point, for instance, that that door was not rived at by a process of reasoning, and in locked ? all the fastenings showed you that reasoning there might be error. that none of them were probably in use

To recur to the case before us :-One at the time the fire was raging, but that question is—Was the front door fastened they were in a state of repose from their at the time of the fire ? You can judge ordinary duty. Now, from that, what only from the circumstances. The bar conclusions are you to draw ? Is there had not been up. If it had been it would any doubt that the door was not fastened have been charred or marked by the fire; by any of its ordinary fastenings? If you yet it was not. The end only of the bolt arrive at that conclusion, you do it by a of the lock was discolored by the action process of reasoning; and as long as your of the fire, and not the other parts, which process is a just and honest one, there is would have been marked if it had been little danger of your erring. Take also thrown forward by the key. So on the sli- the case I mentioned in the examination ding bolt, the parts which would have been of some of you, when on trial yourselves exposed to the action of the fire when the as jurors, that of hearing your front door door was not bolted, were discolored, while bell ring. You sit in your parlor and the other parts, which would have been thus hear it ring. You are perfectly satisfied exposed if the door had been bolted, were that some one is ringing at the door. A not. Now, here you have the direct evi- man is found with his hand on the knob dence that certain parts of the fastenings of the door-would you doubt that he were discolored, and you have the certain rang the bell ? not at all. You judge conclusion, drawn from the circumstances, from that circumstance, and that the bell that the other parts had not been exposed cannot ring itself, that it was rung by the to the fire, and from those circumstances person standing at the door. You ask you are called upon still further to con- the man, “ What do you want ?” he reclude or to presume that the door was not plies, “nothing." "You rung my bell.” fastened: a point on which you cannot * No!” Well, you find from some one bez certain, but on which you may draw inside; in whom you have perfect confisafe and satisfactory conclusions.

dence, that no one in the house touched Another instance from this case: the bell. Besides, you are told by a wit

One of the witnesses felt the outside of ness in the street, in whom also you have the stove in the room where the fire was perfect confidence, that he saw the person discovered and found it warm. He had on the steps ascend them and put his hand the good sense to open the door and feel on the wire, and that no person but he the ashes inside. He found them cold. I had been there; would you, in that case, This is direct evidence that the ashes were believe the man at the door? would you cold. From that the inference flows that credit his denial ? You have the positive there was then no fire in the stove. That evidence on his part that he did not ring, is certain circumstantial evidence. There but all these circumstances tell you that is, however, another step to be taken, and he did. In this case you would doubtless you are called upon to infer or presume take the circumstantial evidence and rethat the fire in the house was not commu-ject the positive. You arrive at the connicated from the stove. This is presumpclusion by a process of reasoning, founded tive circumstantial evidence. Yet it is on circumstances : and if fairly conducted, not certain and cannot be, because you that process, as I have remarked, will not cannot know that the fire had not been be likely to deceive you. The man can removed from the stove, and cold ashes and may deceive you. In a case of that put into it, for the purpose of producing kind, who is there that would not give the very conclusion which you are invited credence to the circumstantial evidence

i arrive at. In these instances the con- rather than to the positive and direct. I tusions do not necessarily follow. But mention this familiar instance to you, be.? they fairly follow? Then comes the cause you can thus see that in most of the ...cess of reasoning by which we are to acts of your lives, you are governed by rrive at a conclusion, that is, presump- circumstantial evidence, and from the very tive circumstantial evidence. Are you nature of things it must be so. satisfied from the evidence in the onel Gentlemen, it has been well said: “It Circumstantial Evidence. is nut likely that so many beams of light them, because upon their continuance should issue from the chambers of heaven may depend the protection of all that is for no other purpose than to lead us to a valuable to us as members of a civilized precipice. Probable arguments and pru- community. One is, that a higher degree dential motives are the great hinges of of certainty is necessary in criminal than human action.”

in civil cases, because of the more serious This kind of proof, to which I have and irreparable nature of the consequenbeen calling your attention, is that which, ces flowing from the decision of the forfrom necessity, we are obliged most to mer. For instance, you are perhaps tryuse in criminal cases, because, as you ing whether I executed a note of hand. have heard, visible proof is not to be ex- | Some one swears that he is familiar with pected from works of darkness.

my hand-writing, and that the note is From these suggestions, gentlemen, you mine. You think it is so from this evidence, will perceive that there is a species of and decide accordingly. It is not an ircircumstantial evidence, from which con- reparable injury, even if you decide wrong. clusions may be drawn as certain, as un- In that case, a probability may enable you erring, and as infallible as from the most to decide, but in a criminal case there satisfactory direct evidence. And that must be an unbiassed moral conviction of there is a species which does not possess guilt, not a probability only. those characteristics, but depending for Another rule is this : The evidence its conclusions upon a process of reason- must exclude, to a moral certainty, every ing, is much more liable to error. To other hypothesis but that of guilt. If you guard against that error, certain rules have can reconcile the facts that are proven, been established by the wisdom and ex- with the belief or supposition that the perience of the past, and it only remains prisoner is innocent—that somebody else for me, in this part of the case, to point | committed the guilty deed—then that hyout to you the dangers of erring, and to pothesis which the law requires does not explain to you those precautionary rules. exist in your minds. To illustrate this

One danger arises from the incomplete-matter—for I find that these illustrations ness of the evidence, as to the different are in my own mind more effective than circumstances that constitute the chain of abstract propositions—take the instance proof. Another is that arising from pre- stated by counsel, of the servant girl in-' judice, against which I have already warn- dicted for the murder of her mistress. It ed you, and another arises from our prone- was proved that she was alone in the ness in cases of atrocious crime to exag- house with the murdered woman—there gerate. Let an atrocious crime happen were no signs about the house that it had where it may-in a community as quiet been broken into and from the fact that and simple as that of Staten Island, or she had had all the opportunities of comone as busy and acute as that which here mitting the deed, it was concluded that surrounds us and there is a natural she was the guilty person. One would proneness in the minds of every one who have, indeed, supposed that every hypohears of it to exaggerate the details. thesis but that of guilt was excluded. Persons who may be called on to testify And yet in that very case there was anare affected in the same way. Facts which other hypothesis that was nearer the truth otherwise might be harmless enough are even than that which the jury had formed. thus 'distorted and exaggerated, and as- A man had entered the house by an open sume a serious aspect. It is our duty to window, to which he obtained access by bear this in mind, and to see that we are means of a plank thrown across from the not misled by this exaggeration.

opposite side of an ally, and after he had To guard against these dangers, the perpetrated the murder, he removed every rules, which have been adopted by our trace of his entrance. The conviction in courts, are to be regarded closely by you that case was therefore held to be wrong, in deciding this case. These rules have because there was another hypothesis existed for many years. They are rules which the evidence did not exclude. which the wisdom, and thought, and ex- There is another thing to be taken into perience of ages have sanctioned, and we account that circumstances are somemust be careful how we unsettle any of times fabricated by innocent persons falsely

Circumstantial Evidence. accused. Take the case of the uncle: he until proved guilty; and, in the next place, was heard chastising his niece severely, it is better to let the guilty escape than to she cried out “ You will kill me”-she punish the innocent. But the doubt is was afterwards missing — nobody knew not to be a capricious doubt—not the where she was—the uncle was strongly mere quibble of an erring or a feeble interested in her death, because he would mind. It must be the rational doubt of a have inherited her estate; he, alarmed at reasoning mind-it must be the result of the circumstantial evidence against him, calm and deliberate reason, and not of endeavored to save himself by dressing feeling, or passion, or prejudice; and up another child and presenting it as his when such does exist, as has been justly niece. That very fact was, as might have remarked by the counsel for the prisoner, been expected, taken as strong evidence it is her property, and you cannot deprive of his guilt. The man was convicted, and her of it. afterwards the child returned horne, hay. Guided by these rules, and with these ing run away from his severity. There safeguards, it is safe, it is usual, and it is can be little doubt that that fabrication of necessary in the administration of justice, evidence by him operated most strongly to rely upon circumstantial evidence, and in the minds of the jury in convicting him. not only upon that which is certain, but Fabrication is also sometimes resorted to that which is presumptive. by the really guilty, to ward off suspicion | It is safe when no person has an interfrom themselves.

est, either to convict or acquit, sufficiently Take the instance of the man found on strong to induce the fabrication of evithe road with the stolen horse. He was dence, and when we can bring to the task found alone with the horse, and could not of drawing the conclusion a calm, an engive any satisfactory account of the man- lightened, and unbiassed judgment. ner in which it came into his possession, It is usual, not only in courts of justice, and on that evidence he was convicted. but in the everyday concerns of life; and But it turned out that the real thief, find-though in both respects we may someing himself hotly pursued and in danger times be deceived, yet not more frequentof being overtaken, encountered this man ly chan by false direct testimony. "And on the highway and asked him to hold his particularly is it usual in criminal trials, horse while he stepped into the neighbor-where the inducement to conceal the eviing field, and thus he escaped. The pos- dence of guilt is so strong and overpowsibility of circumstances being thus fabri-ering. The unfrequency of error is mancated, both by the innocent and the guil-lifested by the remarkable fact, that of 934 ty, is therefore to be taken into consid-prisoners in the state prison at Sing Sing, eration.

only 168 pretended to assert their innoAnother rule is, that the supposition of cence. Yet of that whole number, a large guilt must flow naturally from all the facts, majority must have been convicted on cirand be consistent with all of them. It stantial evidence alone. must be no constrained result, and if any It is necessary, because without it the one of the facts is utterly inconsistent with innocent, the unwary, the confiding, would the idea of guilt, it breaks the chain, and be deprived of the great instrument of bars the conclusion which might other their protection, and the artful, the dewise naturally flow from the other circum- signing, and the depraved, would be furstances. As in the case of the servant nished with an impunity for their depregirl, accused of poisoning the family in dations upon society, which would soon food of which she partook as freely as defeat the administration of justice, and any. The danger which she thus unne- overthrow the supremacy of the law. It cessarily incurred was so inconsistent with is indispensable to the very existence of the supposition of her guilt, as of itself to society, that the magistrate should found be regarded as destructive of the conclu- many of his determinations upon circumsion which naturally flowed from the oth- stantial evidence. A vast majority of the er cucumstances in the case.

ordinary transactions of life have this Another rule is, that, in cases of doubt, foundation and none other. And it would it is safest to acquit. In the first place, be indeed a misfortune, if the popular erall persons are to be presumed innocentror, which has so frequently and so strong

Liability of husband for wife's debts. ly manifested itself during this trial, and contrary appear. So that for such artiwhich I have endeavored to combat, were cles as are necessary for the wife, such as to prevail in our courts of justice, merely clothes, if the order is given by the wife, because absolute certainty could not be and she is living with her husband, and attained.

nothing appears to the contrary, the jury “With the wisest laws, and with the do right in inferring the agency; but if most perfect administration of them, the the order is excessive in point of extent, or innocent may sometimes be doomed to if, when the husband has a small income, suffer the fate of the guilty, for it were the wife gives extravagant orders, these vain to hope that from any human insti- are circumstances from which a jury would tution all error can be excluded.”

infer that there was no agency. The But this danger is as great, at least, tradesman who supplies the goods takes when the conclusion is founded upon di- the risk: and if the bill is one of an exrect, as when upon circumstantial evi-travagant nature, such as the husband dence, Will you, therefore, reject either would never have authorized, that would species of evidence? If so, which will be alone sufficient to repel the inference you reject, and where will you stop ? of agency. In the case now before us, And what is to save you from the inoral the action was brought to recover a sum wreck to which you are invited, your of £5287, for articles of millinery supplied knowledge of the physical world, or your to the defendant's wife during part of the belief in the divine religion you possess ? year 1843. The wife had a separate for

I have dwelt long upon this topic, gen- tune, but was living with her husband, tlemen, but not too long, if I have driven whose income was said to be £1100 a from your minds the impression which year, and to have been so ascertained by seemed to have settled there, that it would the plaintiff. be never safe to convict on circumstantial | No evidence was given of any express evidence; if I have dispelled an error, authority to the wife to order the articles strong in popular prejudice, and founded in question; and under these circumstanon imperfect knowledge, but most dan- ces payment was resisted. The Lord gerous in its effects, and alarming in its Chief Baron Pollock read to the jury the consequences.

above quoted ruling of Lord Abinger as a

correct statement of the law, and the jury Practical Points.

found a verdict for the defendant. The plaintiff moved for a new trial on the

ground of misdirection : but the court LIABILITY OF HUSBAND FOR WIFE'S

held that the jury had been rightly direct

ed. Parke, B., observed—“There may be A MARRIED woman has by law no pow. a trifling inaccuracy in the report of Freeer to make contracts, either on her own stone v. Butcher, in stating that the ex. account, or on account of her husband; travagance of the bill would alone repel the law, in those cases where the husband the inference of agency; that alone, peris bound by his wife's alleged contract, haps, would not be sufficient : but it may treats the wife as the agent or servant of be repelled by that and other circumstanthe husband, and thus binds him conse- ces together. The law, as there laid down, quentially.

is substantially correct. The whole turns A recent exposition of the law on this upon the question of the husband's aupoint is to be found in Lord Abinger's thority; and it is for the jury to say, charge to the jury in Freestone v. Butcher, whether the wife had any such authority, 9 Car. & P., where his lordship says: and whether the plaintiff, who supplied “The general rule is, that a wife cannot her with these articles, must not have bind her husband by her contract, except known that she was exceeding her husas his agent. There are, however, cases band's authority to pledge his credit. If in which a jury may infer such agency. he had any doubts upon the subject, he In the cases of orders given by the wife might have made enquiries of the husin those departments which she has under band. It was not proved that the husa her control, the jury may infer that the band knew the articles had been ordered, wife was the agent of her husband till the or saw his wife wearing them, Judga


Bill of exchange-Identity of defendant. ment was accordingly rendered for the Gilbert, while it was in Neate's hands, afdefendant. Lane v. Ironmonger, 13 M. &ter the expiration of the year. He then W. 368.

tendered to Neate the amount due; and on Neate's refusal to deliver the chrono

meter, brought the present action in troBILL OF EXCHANGE-IDENTITY OF DE ver. The defendant contended that no FENDANT.

property passed to the plaintiff by the It is laid down by Mr. Phillips, in his

sale; that it was merely an assignment of Treatise on the Law of Evidence, that in

| a right of action with an equity of redemp.

at m tion; and at the trial the learned judge an action on a bond, or on a promissory

ISSOTY | directed the jury to find a verdict for the note, or bill of exchange, and in other cases, some evidence of identity will be ne

defendant, giving leave to the plaintiff to

move to enter a verdict for him for the cessary to connect the party with the in

sum of £19 10s. The case was accordstrument; and that, with a view to estab

ingly argued before the full court, and lish the identity of the party, and to show

| judgment was delivered by Rolfe, B. that the person who executed the instru

"There is very little to be found in the ment is the party to the suit or the party, charged, proof of the party's hand-writing

books on the subject of the right of a

pawnor over the chattle pawned: but this may be important and most satisfactory evidence. Proof of his signiture would

is very clear, that, notwithstanding the be decisive; but that proof is not abso

pawn, the pawnor still retains a qualified lutely necessary, and much slighter evi

property; and in the absence of direct

authority on the point, this seems to us dence will be sufficient. The case now

decisive in favor of his right to sell, and before us shows that proof of the signature of a bill of exchange, by a person

by the sale to transfer to the purchaser

his qualified property in the goods pawnbearing the same name as the defendant, is primâ facie, sufficient evidence to charge

ed, together with all the rights incident

thereto. The case was argued for the him with the liability, unless from the fre.

defendant, as if what the pawnor transferquency of the name, or from other special

| red, or sought to transfer, was a mere circumstances, such evidence is manifestly

right of action. But this is not so: we deprived of its ordinary weight. Roden

transfer the property in the chattle, qualv. Ryde, 4, Q. B. 626.

ified, indeed, by the right existing in the pawnee, but still a right of property; and

the right of action afterwards exists in the PLEDGER AND PLEDGEE.

purchaser, not in consequence of its hav

ing been transferred to him by the origiIN Mr. Justice Story's work on bail-nal pawnor, but by reason of the pawnee ments, 377, it is laid down, that “subject having wrongfully converted to his own use to the rights of the pledgee the owner has that which by the sale became the property a right to sell or assign his property in the of the purchaser. * * * That in ordi. pawn; and, in such a case, the vendee nary cases of bailment, not by way of will be stubstituted for the pledger, and pawn, the bailor may sell, is a proposition the pledgee will be bound to redeem, and admitting of no doubt. Indeed, it is asto account to him for the pledge and its sumed to be law by Lord Holt, in Rich proceeds. If he refuses, an action at law v. Aldred, 6 Mod. 216. With so little, will lie for damages as well as a bill in then, of direct authority, we must act on equity to compel a redemption and ac- the general principle that a pawnor, like count." In the case of Franklin v. Ncate, every other bailor, retains his property in 13 Mees. & W. 481, one Gilbert pawned the goods pawned, subject only to the a chronometer to Neate, under a written qualified property transferred to the pawagreement that it was a collateral security nee; that, as an incident to such property, for £15 and interest; and that in case he has the right of sale: and that after the Gilbert did not redeem within twelve sale the purchaser has the same interest months, Neate should be at liberty to sell in the chattel which the pawnor had. it, and repay himself principal and inter- The rule must, therefore, be made absoest. Franklin bought the chronometer of lute,"

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