Circumstantial Evidence. from the mark being there, but was ar- point, for instance, that that door was not rived at by a process of reasoning, and in that reasoning there might be error. To recur to the case before us :-One question is-Was the front door fastened at the time of the fire? You can judge only from the circumstances. The bar had not been up. If it had been it would have been charred or marked by the fire; yet it was not. The end only of the bolt of the lock was discolored by the action of the fire, and not the other parts, which would have been marked if it had been thrown forward by the key. So on the sliding bolt, the parts which would have been exposed to the action of the fire when the door was not bolted, were discolored, while the other parts, which would have been thus exposed if the door had been bolted, were not. Now, here you have the direct evidence that certain parts of the fastenings were discolored, and you have the certain conclusion, drawn from the circumstances, that the other parts had not been exposed to the fire, and from those circumstances you are called upon still further to conclude or to presume that the door was not fastened a point on which you cannot be certain, but on which you may draw safe and satisfactory conclusions. : locked? all the fastenings showed you that none of them were probably in use at the time the fire was raging, but that they were in a state of repose from their ordinary duty. Now, from that, what conclusions are you to draw? Is there any doubt that the door was not fastened by any of its ordinary fastenings? If you arrive at that conclusion, you do it by a process of reasoning; and as long as your process is a just and honest one, there is little danger of your erring. Take also the case I mentioned in the examination of some of you, when on trial yourselves as jurors, that of hearing your front door bell ring. You sit in your parlor and hear it ring. You are perfectly satisfied that some one is ringing at the door. A man is found with his hand on the knob of the door-would you doubt that he rang the bell? not at all. You judge from that circumstance, and that the bell cannot ring itself, that it was rung by the person standing at the door. You ask the man, "What do you want?" he replies, "nothing." "You rung my bell." No!" Well, you find from some one inside; in whom you have perfect confidence, that no one in the house touched Another instance from this case: the bell. Besides, you are told by a witOne 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. 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 presump-clusion 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 removed from the stove, and cold ashes put into it, for the purpose of producing the very conclusion which you are invited arrive at. In these instances the conusions do not necessarily follow. But they fairly follow? Then comes the ⚫cess of reasoning by which we are to ive at a conclusion, that is, presumptive circumstantial evidence. Are you satisfied from the evidence in the one be likely to deceive you. The man can and may deceive you. In a case of that kind, who is there that would not give credence to the circumstantial evidence rather than to the positive and direct. I mention this familiar instance to you, because you can thus see that in most of the acts of your lives, you are governed by circumstantial evidence, and from the very nature of things it must be so. Gentlemen, it has been well said: “It Circumstantial Evidence. This kind of proof, to which I have been calling your attention, is that which, from necessity, we are obliged most to use in criminal cases, because, as you have heard, visible proof is not to be expected from works of darkness. is not 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 and irreparable nature of the consequences flowing from the decision of the former. For instance, you are perhaps trying whether I executed a note of hand. Some one swears that he is familiar with my hand-writing, and that the note is mine. You think it is so from this evidence, and decide accordingly. It is not an irreparable injury, even if you decide wrong. In that case, a probability may enable you to decide, but in a criminal case there must be an unbiassed moral conviction of guilt, not a probability only. From these suggestions, gentlemen, you will perceive that there is a species of circumstantial evidence, from which conclusions may be drawn as certain, as unerring, and as infallible as from the most satisfactory direct evidence. And that there is a species which does not possess 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 injudice, 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 and simple as that of Staten Island, or one as busy and acute as that which here surrounds us—and there is a natural proneness in the minds of every one who hears of it to exaggerate the details. Persons who may be called on to testify are affected in the same way. Facts which otherwise might be harmless enough are thus distorted and exaggerated, and assume a serious aspect. It is our duty to bear this in mind, and to see that we are not misled by this exaggeration. To guard against these dangers, the rules, which have been adopted by our courts, are to be regarded closely by you in deciding this case. These rules have existed for many years. They are rules which the wisdom, and thought, and experience of ages have sanctioned, and we must be careful how we unsettle any of been broken into-and from the fact that The conviction in There is another thing to be taken into account-that circumstances are sometimes 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 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 home, having run away from his severity. There can be little doubt that that fabrication of evidence by him operated most strongly in the minds of the jury in convicting him. Fabrication is also sometimes resorted to by the really guilty, to ward off suspicion from themselves. niece. Guided by these rules, and with these safeguards, it is safe, it is usual, and it is necessary in the administration of justice, to rely upon circumstantial evidence, and not only upon that which is certain, but that which is presumptive. It is safe when no person has an interest, either to convict or acquit, sufficiently strong to induce the fabrication of evidence, and when we can bring to the task of drawing the conclusion a calm, an enlightened, and unbiassed judgment. Take the instance of the man found on the road with the stolen horse. He was found alone with the horse, and could not give any satisfactory account of the manner in which it came into his possession, and on that evidence he was convicted. But it turned out that the real thief, finding himself hotly pursued and in danger of being overtaken, encountered this man on the highway and asked him to hold his horse while he stepped into the neighboring field, and thus he escaped. The possibility of circumstances being thus fabricated, both by the innocent and the guilty, is therefore to be taken into consid-prisoners in the state prison at Sing Sing, eration. Another rule is, that the supposition of guilt must flow naturally from all the facts, and be consistent with all of them. It must be no constrained result, and if any one of the facts is utterly inconsistent with the idea of guilt, it breaks the chain, and bars the conclusion which might otherwise naturally flow from the other circumstances. As in the case of the servant girl, accused of poisoning the family in food of which she partook as freely as any. The danger which she thus unnecessarily incurred was so inconsistent with the supposition of her guilt, as of itself to be regarded as destructive of the conclusion which naturally flowed from the other cucumstances in the case. Another rule is, that, in cases of doubt, it is safest to acquit. In the first place, all persons are to be presumed innocent It is usual, not only in courts of justice, but in the everyday concerns of life; and though in both respects we may sometimes be deceived, yet not more frequently than by false direct testimony. And particularly is it usual in criminal trials, where the inducement to conceal the evidence of guilt is so strong and overpowering. The unfrequency of error is manifested by the remarkable fact, that of 934 only 168 pretended to assert their innocence. Yet of that whole number, a large majority must have been convicted on cirstantial evidence alone. It is necessary, because without it the innocent, the unwary, the confiding, would be deprived of the great instrument of their protection, and the artful, the designing, and the depraved, would be furnished with an impunity for their depredations upon society, which would soon defeat the administration of justice, and overthrow the supremacy of the law. It is indispensable to the very existence of society, that the magistrate should found many of his determinations upon circumstantial evidence. A vast majority of the ordinary transactions of life have this foundation and none other. And it would be indeed a misfortune, if the popular error, which has so frequently and so strong Liability of husband for wife's debts. ly manifested itself during this trial, and which I have endeavored to combat, were to prevail in our courts of justice, merely because absolute certainty could not be attained. "With the wisest laws, and with the most perfect administration of them, the innocent may sometimes be doomed to suffer the fate of the guilty, for it were vain to hope that from any human institution all error can be excluded.” But this danger is as great, at least, when the conclusion is founded upon direct, as when upon circumstantial evidence. Will you, therefore, reject either species of evidence? If so, which will you reject, and where will you stop? And what is to save you from the moral wreck to which you are invited, your knowledge of the physical world, or your belief in the divine religion you possess? I have dwelt long upon this topic, gentlemen, but not too long, if I have driven from your minds the impression which seemed to have settled there, that it would be never safe to convict on circumstantial evidence; if I have dispelled an error, strong in popular prejudice, and founded on imperfect knowledge, but most dangerous in its effects, and alarming in its consequences. Practical Points. LIABILITY OF HUSBAND FOR WIFE'S DEBTS. A MARRIED Woman has by law no power to make contracts, either on her own account, or on account of her husband; the law, in those cases where the husband is bound by his wife's alleged contract, treats the wife as the agent or servant of the husband, and thus binds him consequentially. A recent exposition of the law on this point is to be found in Lord Abinger's charge to the jury in Freestone v. Butcher, 9 Car. & P., where his lordship says: The general rule is, that a wife cannot bind her husband by her contract, except as his agent. There are, however, cases in which a jury may infer such agency. In the cases of orders given by the wife in those departments which she has under her control, the jury may infer that the wife was the agent of her husband till the contrary appear. So that for such articles as are necessary for the wife, such as clothes, if the order is given by the wife, and she is living with her husband, and nothing appears to the contrary, the jury do right in inferring the agency; but if the order is excessive in point of extent, or if, when the husband has a small income, the wife gives extravagant orders, these are circumstances from which a jury would infer that there was no agency. The tradesman who supplies the goods takes the risk: and if the bill is one of an extravagant nature, such as the husband would never have authorized, that would be alone sufficient to repel the inference of agency. In the case now before us, the action was brought to recover a sum of £5287, for articles of millinery supplied to the defendant's wife during part of the year 1843. The wife had a separate fortune, but was living with her husband, whose income was said to be £1100 a year, and to have been so ascertained by the plaintiff. The No evidence was given of any express authority to the wife to order the articles in question; and under these circumstances payment was resisted. The Lord Chief Baron Pollock read to the jury the above quoted ruling of Lord Abinger as a correct statement of the law, and the jury found a verdict for the defendant. plaintiff moved for a new trial on the ground of misdirection: but the court held that the jury had been rightly directed. Parke, B., observed-" There may be a trifling inaccuracy in the report of Freestone v. Butcher, in stating that the extravagance of the bill would alone repel the inference of agency; that alone, perhaps, would not be sufficient: but it may be repelled by that and other circumstances together. The law, as there laid down, is substantially correct. The whole turns upon the question of the husband's authority; and it is for the jury to say, whether the wife had any such authority, and whether the plaintiff, who supplied her with these articles, must not have known that she was exceeding her husband's authority to pledge his credit. If he had any doubts upon the subject, he might have made enquiries of the husband. It was not proved that the husband knew the articles had been ordered, or saw his wife wearing them, Judg Bill of exchange-Identity of defendant. ment was accordingly rendered for the defendant. Lane v. Ironmonger, 13 M. & W. 368. BILL OF EXCHANGE-IDENTITY OF DE- Gilbert, while it was in Neate's hands, after the expiration of the year. He then tendered to Neate the amount due; and on Neate's refusal to deliver the chronometer, brought the present action in trover. The defendant contended that no property passed to the plaintiff by the Ir 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 redempan action on a bond, or on a promissory directed the jury to find a verdict for the tion; and at the trial the learned judge note, or bill of exchange, and in other ca- defendant, giving leave to the plaintiff to ses, some evidence of identity will be nemove to enter a verdict for him for the cessary to connect the party with the insum of £19 10s. The case was accordstrument; and that, with a view to establish the identity of the party, and to showingly argued before the full court, and that the person who executed, the instru- judgment was delivered by Rolfe, B. ment is the party to the suit or the party books on the subject of the right of a "There is very little to be found in the charged, proof of the party's hand-writing may be important and most satisfactory pawnor over the chattle pawned: but this 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 evidence will be sufficient. The case now before us shows that proof of the signature of a bill of exchange, by a person bearing the same name as the defendant, is prima facie, sufficient evidence to charge him with the liability, unless from the frequency of the name, or from other special circumstances, such evidence is manifestly deprived of its ordinary weight. Roden v. Ryde, 4, Q. B. 626. PLEDGER AND PLEDGEE. pawnor transfer Property; and in the absence of direct decisive in favor of his right to sell, and authority on the point, this seems to us by the sale to transfer to the purchaser his qualified property in the goods pawned, together with all the rights incident thereto. The case was argued for the red, or sought to transfer, was a mere defendant, as if what the right of action. But this is not so: we transfer the property in the chattle, qualified, indeed, by the right existing in the pawnee, but still a right of property; and the right of action afterwards exists in the purchaser, not in consequence of its having 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 ordipawn; and, in such a case, the vendee nary cases of bailment, not by way of will be substituted 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. Neate, 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." * * |