tions of every name and nature are accorded legal indulgence merely to supply the place of facts that are supposed to exist, but they are utterly impotent, and worthless as against an established fact. Fresh v. Gilson, 41 U. S. 16 Pet. 327, 10 L. ed. 982; Lincoln v. French, 105 U. S. 614, 26 L. ed. 1189; Best, Presumptions, § 136; Smith v. New York Cent. R. Co. 43 Barb. 225.

It is only when insanity of a chronic or permanent nature is proved that its continuous existence is presumed. No such presumption arises where fitful and exceptional attacks of insanity are proved; and where an insane person has lucid intervals, an offense by him is presumed to have been committed during a lucid interval, unless the contrary appears.

An ordinary witness may testify to the sanity or insanity of a person with whom he is intimately acquainted. If expressing the opinion that such person is of unsound mind, he should state the facts on which such opinion is founded; but when he testifies that such person is sane, this is not necessary, since a sane person would not manifest any such eccentricities as usually mark the conduct of person of unsound mind. Ford v. State, 71 Ala. 385.

§ 22. Presumption of Guilt Arising from Silence and Conduct Generally. In almost every criminal case a portion of the evidence laid before the jury consists of the conduct of the party at the time of, or after being charged with, the offense. Thus it is frequently proved that upon being charged he fled, or endeav ored to make his escape. Upon this proof it is said by Smith, B., that he had the authority of the law to say, that though a man charged with an offense should fly, that is not conclusive evidence of guilt. The jury could not forget that one of the oaths they had taken was, whether the prisoner had fled in consequence of the charge made on him; but though it should be established that he fled in consequence of the charge, yet it did not follow of necessity that he was guilty of the murder; though it was a circumstance materially unfavorable and suspicious. Crawley's Case, cited in M'Nally, Crim. Ev. 577. The introduction of a falsehood into the defense is also a presumption against a prisoner. This presumption is heightened if the falsehood is to be supported, as it almost necessarily must be, by a witness conscious of it. Clarke's Case, 1789, cited in Gilbert, Ev. (Loft. ed.) 898; M'Nally, Ev. 580. No presumption of guilt arises from the

silence of a prisoner when, on his examination before a magistrate, he is charged by another prisoner with having been joined in the commission of the offense. Rex v. Appleby, 3 Starkie, 33.

In weighing the effect of the presumptive evidence furnished by the conduct of a person charged with the criminal offense, great caution should be exercised. An innocent man finding himself in a situation of difficulty, and perhaps from the circumstances of the case, of danger, is sometimes induced to adopt a line of conduct which bears with it a presumption of guilt. 2 Hale, P. C. 290n.

"Flight may be very strong evidence of guilt, or it may weigh nothing, according to the circumstances under which it takes place. The legal presumption from flight is against the prisoner, and it lies upon him to rebut it." Fox, J., Chapman's Trial (Pamphl.) p. 213; Fanning v. State, 14 Mo. 386.

So the destruction, suppression, withholding or fabrication of evidence by a party, creates the presumption that the truth is detrimental to his interests. Winchell v. Edwards, 57 Ill. 41. And reasoning from analogy we have the further proposition that where a defendant adopts a theory of defense which is false, and which he must have known to be false, it is not error for the court to instruct the jury, that if the attempted explanation fails it may be regarded as indicative of his guilt. Pilger v. Com. 112 Pa. 220. And "a failure to produce proof, when in the power of the party, is recognized, even in criminal cases, as proper to be considered by the jury." State v. Ward, 61 Vt. 153.

The rule which imposes upon a suspect the obligation of producing evidence, which will contradict or explain circumstantial evidence against him, requires him to do so only when he is pressed by circumstantial proof, having it in his power to destroy its apparent force. 1 Cowen & Hill's Notes, 310, and cases there cited; 1 Starkie, Ev. 34; 3 Starkie, Ev. 487. Before the absence of evidence can affect the accused, it must appear that there is evidence that would elucidate the matter in dispute, and that it is peculiarly within the knowledge of the accused; and then if he is pressed by the force of circumstantial evidence and does not produce the evidence within his power, it may afford a strong presumption against him. People v. Mc Whorter, 4 Barb. 438.

Of similar import is the language of Judge Barnard, who in writing for affirmance in a criminal case decided 30 years later,

employs the following language: "When a man has evidence at hand, by which he could prove a given fact material to his defense, and does not use it, it was for the jury to say whether it should be considered against him or not." And generally we may affirm, that where the guilt of the accused depends upon the credibility of evidence given by an accomplice, it is no error to charge the jury that they might take into consideration the omission of the prisoner to contradict the accomplice upon a statement in respect to which, if false, contradictory evidence was apparently within the prisoner's power. People v. Dyle, 21 N. Y. 578.

The silence of a defendant when he should have spoken cannot be taken to be an admission unless it is proved that he heard the statement which he should have denied. People v. Holfelder, 5 N. Y. Crim. Rep. 179. And this rule is of doubtful propriety in any event obviously if the silence of a witness can be treated as evidence against a party who cannot compel him to answer, it would not be difficult to make out a case against anyone on mere insinuations. It is the duty of the court to caution the jury against this. People v. Hall, 48 Mich. 482, 42 Am. Rep. 477.

§ 23. Presumption of Natural Consequences of Act.-In Starkie on Evidence it is said, "that a rational agent must be taken to contemplate and intend the natural and immediate consequences of his own act, is a presumption so cogent as to constitute rather a rule of law than of mere evidence" (p. 848). "There is a general presumption in criminal matters that a person intends whatever is the natural and probable consequences of his own. actions." 1 Phil. Ev. 632. It was said by Judge Andrews, that "it is a fundamental rule of evidence of very general application, founded upon observation and experience, that a man is presumed to intend the natural consequences of his act." People v. Conroy, 97 N. Y. 62.

It follows from this presumption, that a criminal intent is presumed from the commission of a criminal act. N. Y. Penal Code, § 17.

24. Statutory Law of California on the Subject.-Three sections of the California Code of Civil Procedure embody the most exhaustive resumé of authority, and reflect so faithfully the present attitude of the law regarding this somewhat extended topic, that a failure to reproduce the salient features they embody would argue gross neglect of the subject. As a monumental ex

hibit of condensation they will attract attention, and as an epigrammatic statement of statutory law they are of ideal excellence and singularly pertinent in their relations to the law of criminal evidence throughout the Federal union.

The following extract is from part 4, California Code of Civil Procedure, title "Evidence-Inferences and Presumptions," chap. 5.

When Presumptions may be controverted-§ 1961. “A presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect; but unless so controverted, the jury are bound to find according to the presumptions."

What Presumptions are conclusive.-§ 1962. "The following presumptions and no others are deemed conclusive:

"1. A malicious and guilty intent, from the deliberate commission of a unlawful act, for the purpose of injuring another;

"2. The truth of the facts recited, from a recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration;

"3. Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it;

"4. A tenant is not permitted to deny the title of his landlord, at the time of the commencement of the relation;

"5. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate;

"6. The judgment or order of a court, when declared by this Code to be conclusive; but such judgment or order must be alleged in the pleadings, if there be an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence;

"7. Any other presumption which by statute is expressly made conclusive."

What presumptions may be controverted; extended tabulation of these instances.- 1963. "All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind:

"1. That a person is innocent of crime or wrong;

"2. That an unlawful act was done with an unlawful intent; "3. That a person intends the ordinary consequences of his voluntary act;

"4. That a person takes ordinary care of his own concern; "5. That evidence willfully suppressed would be adverse if produced;

"6. That higher evidence would be adverse from inferior, being produced;

"7. That money paid by one to another was due the latter;

"8. That a thing delivered by one to another was due the latter. "9. That an obligation delivered up to the debtor has been paid;

"10. That former rent or installments have been paid when a receipt for the latter is produced;

"11. That things which a person possesses are owned by him; "12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership;

"13. That a person is possessed of any order on himself for the payment of money, or the delivery of a thing, has paid the money or delivered the thing accordingly;

"14. That a person acting in a public office was regularly appointed to it;

"15. That official duty has been regularly performed;

"16. That a court or judge, acting as such, whether in this state or in any other state or country, was acting in the lawful exercise of his lawful jurisdiction;

"17. That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties;

"18. That all matters within an issue are laid before the jury and passed upon by them, and, in like manner, that all matters within a submission to arbitration were laid before the arbitrator and passed upon by him;

"19. That private transactions have been fair and regular; "20. That the ordinary course of business has been followed; "21. That a promissory note or bill of exchange was given or endorsed for a sufficient consideration;

"22. That an endorsement of a negotiable promissory note or bill of exchange was made at the time and place of making the note or bill;