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to establish, they are utterly worthless and ineffectual for the investigation of the truth. It is not enough that the circumstances relied upon are plainly and certainly proved. It is not enough to show that they are consistent with the hypothesis of guilt. They must also render the hypothesis of innocence inadmissible and impossible, unreasonable and absurd, or they have proved nothing at all." Rufus Choate in Dalton Divorce Case before the Supreme Judicial Court of Mass. May, 1856.

§ 345. Direct and Circumstantial Evidence Contrasted.Direct and circumstantial evidence so closely hinge upon each other that it is often vexatious to attempt to discriminate between them. Circumstances are always looked to, to support or contradict direct evidence, and direct evidence is absolutely necessary to prove the facts upon which the inference in circumstantial evidence is based. One sustains and supports the other. Where, then, is the line to be drawn by which one is to be used and the other withheld? "Or how can any definite rule be laid down by which one is to be deemed more satisfactory than the other? With the facts clearly proved, beyond a doubt, in either case, if a logical process of reasoning is adopted, and a sound judgment exercised, the result must be the same in both. The danger of circumstantial evidence lies, first, in the liability of the senses to err where any facts are sought to be established, instead of one, as in direct evidence; and, second, in the danger of intended falsity where many witnesses are sworn to several facts instead of one to the main issue; and, third, in the danger of incorrect inferences and illogical conclusions from jurors not accustomed to close habits of reasoning, where the processes of inference and deduction are exercised, either upon several circumstances, or even a single one, remote from the main fact sought to be established. 2 Colby, Crim. L. 175.

As was said by Chief Justice Gibson in the case of Com. v. Harman, 4 Pa. 269: "The only difference between positive and circumstantial evidence is, that the former is more immediate, and has fewer links in the chain of connection between the premises and conclusion; but there may be perjury in both. A man may as well swear falsely to an absolute knowledge of a fact as to a number of facts, by which, if true, the question of guilt or innocence is solved. No human testimony is superior to doubt. The machinery of criminal justice, like every other production of man

is necessarily imperfect, but you are not, therefore, to stop its wheels. Innocent men have doubtless been convicted and executed on circumstantial evidence; but innocent men have sometimes been convicted and executed on what is called positive proof. All evidence is more or less circumstantial, the difference being only in the degree; and it is sufficient for the purpose when it excludes disbelief,-that is, actual disbelief; for he who is to pass on the question is not at liberty to disbelieve as a juror while he believes as a man. It is enough that his conscience is clear." This quotation from the opinion of Chief Justice Gibson was approvingly referred to by Mr. Justice Butler in his charge to the jury in the celebrated case of Udderzook v. Com. 76 Pa. 340.

§ 346. What must be Proved to Warrant a Conviction by. We say of a fact or statement, that it is proved, when we believe its truth by reason of some other fact or statement from which it is said to follow. Most of the propositions, whether affirmative or negative, universal, particular, or singular, which we believe, are not believed on their own evidence, but on the ground of something previously assented to, from which they are said to be inferred. To infer a proposition from a previous proposition or propositions; to give credence to it, or claim credence for it, as a conclusion from something else; is to reason, in the most extensive sense of the term. There is a narrower sense, in which the name reasoning is confined to the form of inference which is termed ratiocination, and of which the syllogism is the general type. The reasons for not conforming to this restricted use of the term were stated in an earlier stage of our inquiry, and additional motives will be suggested by the considerations on which we are now about to enter.

In proceeding to take into consideration the cases in which inferences can legitimately be drawn, we shall first mention some cases in which the inference is apparent, not real; and which require notice chiefly that they may not be confounded with cases of inference properly so called. This occurs when the proposition ostensibly inferred from another, appears on analysis to be merely a repetition of the same, or part of the same, assertion, which was contained in the first. All the cases mentioned in books of logic as examples of equipollency or equivalence of propositions, are of this nature. Mills, Logic, Ratiocinative & Inductive (8th ed.) 122. See also DeMorgan, Formal Logic of the Calculus of Inference Necessary and Probable.

"In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proven by competent evidence beyond a reasonable doubt." Scott v. State, 19 Tex. App. 325; Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298. "Every circumstance material in a case must be proven beyond a rational doubt, or it is the duty of the jury to acquit." Sumner v. State, 5 Blackf. 579. And "each essential independent fact in the chain or series of facts relied upon to establish the main fact, must be established to a moral certainty or beyond a reasonable doubt." People v. Phipps, 39 Cal. 326.

"When the evidence against the defendant is made up wholly of a chain of circumstances, and there is a reasonable doubt as to one of the facts essential to establish guilt, it is the duty of the jury to acquit." People v. Anthony, 56 Cal. 397.

"Every fact in a chain of facts, from which the defendant's guilt is to be inferred, must be proven by the same weight, degree and force of evidence as if it were the main fact of the defendant's guilt itself." Johnson v. State, 18 Tex. App. 385. "The evidentiary facts must all be proved, and the existence of none of them can be presumed." Burrill, Circ. Ev. 733.

"The several circumstances upon which the conclusion depends must be fully established by proof. They are facts from which the main fact is to be inferred, and they are to be proved by competent evidence, and by the same weight and force of evidence as if each was itself the main fact in issue." Com. v. Webster, 5 Cush. 295, 317, 52 Am. Dec. 711.

"The facts alleged as the basis of any legal inference, must be clearly proved and undubitably connected with the factum probandum." Wills, Circ. Ev. 173.

It is necessary to warn the jury against the danger of being misled by a train of circumstantial evidence. The mind is apt to take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual the more likely was it, in considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. Wills, Circ. Ev. 173.

In order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be. absolutely inconsistent with innocence, and incapable of explanation upon any other reasonable hypothesis than that of his guilt; and, further, when a conviction is sought upon circumstantial evidence alone, the state must show by a preponderence of evidence that the alleged facts and circumstances are absolutely incompatible with any reasonable hypothesis other than the guilt of the accused. State v. Holden, 42 Minn. 350.

§ 347. Instructions from the Court Regarding this Grade of Evidence.-In the case of Clare v. People, 9 Colo. 123, the evidence was wholly circumstantial. The trial judge instructed the jury as follows:

"That the rule requiring the jury to be satisfied of the defendant's guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt; it is sufficient if the jury are satisfied beyond a reasonable doubt that the defendant is guilty."

Judge Helm, in reversing the trial court, said:

"The metaphor used is inaccurate, and liable to misconstruction. It is incorrect to speak of a body of circumstantial evidence as a chain, and allude to the different circumstances as the links constituting such chain; for a chain cannot be stronger than its weakest link, and if one link fails the chain is broken. This figure of speech may perhaps be correctly applied to the ultimate and essential facts necessary to a conviction in criminal cases; since if one be omitted or be not proven beyond a reasonable doubt, an acquittal must follow.

"The word 'circumstance' and the word 'fact' are frequently used interchangeably. In cases where the conviction depends upon circumstantial evidence, it often happens that one or more of the ultimate or essential matters may very appropriately be called circumstances; and such matters, whether spoken of as circumstances or as facts, must be established by the state beyond a reasonable doubt. We deem it quite as reasonable to suppose that the jury misunderstood and misapplied the language used as that they comprehended its appropriate meaning and application. For this reason the judgment must be reversed.

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To prevent reversal for error in the charge, it must appear that the prisoner could not have been prejudiced thereby."

The same instruction is considered at length in People v. Aikin, 66 Mich. 481, and its fallacy is exposed; the court concluding its argument by saying:

"Each necessary link, each and every material and necessary fact upon which a conviction depends, must be proven beyond a

reasonable doubt.

"The party upon whom the burden rests, is bound to prove every single circumstance which is essential to the conclusion, in the same manner and to the same extent as if the whole issue had rested upon the proof of each individual and essential circumstance." Stark. Ev. (9th Am. ed.) § 586.

We will add that the instructions delivered in Clare v. People, 9 Colo. 123, were again the subject of judicial condemnation in the celebrated Graves case, where the conviction by the district court was reversed on appeal for error in the admis sion and rejection of evidence, as well as for error in the judge's charge. This case has attracted great attention-was vigorously prosecuted and ably defended and will be found reported under the title of People v. Graves, 18 Colo. --. The decision was

handed down in February, 1893.

§ 348. Great Latitude Allowed in the Reception of.-Great latitude is justly allowed by the law to the reception of indirect or circumstantial evidence, the aid of which is constantly required, not merely for the purpose of remedying the want of direct evidence, but of supplying an invaluable protection against imposition. Stark. Ev. 81.

The greatest scope may be indulged in matters of circumstantial evidence. Washington v. State, 8 Tex. App. 377. And any evidence may be resorted to which tends to develop a fact, which, if shown, would enhance the prospects of conviction or acquittal. Simms v. State, 10 Tex. App. 131; Preston v. State, 8 Tex. App. 30.

§ 349. Views of Eminent Text-writers.-Burrill says: "Supposing that, by a course of examination, combination and inference, the jury have reached the point of forming an affirmative belief of the probability, and strong probability, of the hypothesis of guilt, their task is not yet completed. A great and final test of the accuracy of the conclusion they are thus led to form remains to be applied, in which the entire and peculiar efficacy

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