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"Declarations made by the injured party immediately after receiving the injury have in some cases been received as competent evidence, though not as dying declarations. Rex v. Foster, 6 Car. & P. 325; Com. v. M'Pike, 3 Cush. 181, 50 Am. Dec. 727. In the latter case it was held that the declaration of a person who is wounded and bleeding, that the defendant had stabbed her, made immediately after the occurrence, though with such an interval of time as to allow her to go from her own room up stairs into another room, is admissible in evidence after her death as a part of the res gestœ."

It has long been a familiar axiom of the schools-"That is certain which can be rendered certain;" and whenever the evidence discloses the presence of a certain apprehension of immediate death in the mind of the declarant, although there is no express avowal of that apprehension or belief the declaration should be admitted. A surgeon of great experience and of iron nerve and fortitude is fatally wounded, the merest inspection of his injury reveals the impending result. In the nature of the case this result is as clear to the apprehension of the wounded man as to any of his attendants, and to deny his dying declaration the status of legal evidence merely because he has failed to disclose his belief in approaching death is a rank prostitution of practical methods in the prosecution of crime. The circumstances of each particular case may be relied upon to furnish a just inference as to whether the victim was conscious of the imminency of death. Anthony v. State, Meigs, 265, 33 Am. Dec. 143; McDaniel v.

State, 8 Smedes & M. 401, 47 Am. Dec. 93.

See Essay of Clark

Bell before the Medico-Legal Society of New York, 1893.

CHAPTER XLIII.

CIRCUMSTANTIAL EVIDENCE.

§ 342. Term Defined.

343. Test of Sufficiency.

344. Theory of the "Connected Chain" Examined.

345. Direct and Circumstantial Evidence Contrasted.

346. What must be Proved to Warrant a Conviction by.

347. Instructions from the Court Regarding this Grade of Evidence.

348. Great Latitude Allowed in the Reception of.

349. Views of Eminent Text-writers.

350. Review of the Celebrated Webster Case-the Harris Case. 351. The Maybrick Case Considered.

352. The Stokes Case Considered.

353. Views of the Texas Supreme Court.

354. Comparative Weight of Direct and Circumstantial Evi

dence.

355. Rules of Induction Specially Applicable to Circumstan

tial Evidence.

356. The Rule in Civil Actions Having Criminal Attributes.

§ 342. Term Defined.-Circumstantial evidence consists in reasoning from facts which are known or proved, to establish such as are conjectured to exist; but the process is fatally vicious if the circumstances from which we seek to deduce the conclusion depends upon conjecture. People v. Kennedy, 32 N. Y. 141; Jenkins v. State, 62 Wis. 63; 1 Bishop, Crim. Proc. § 1069. In all of its correlations and affinities it is essentially the legal manifestation of the inductive process, and in its best adaptations to the requirements of either a criminal or a civil case, induction inspires its best efforts and suggests its best conclusions. This induction of which we speak, has been defined as, "that operation of the mind, by which we infer that what we know to be true in a particular case or cases, will be true in all cases which resemble the former in certain assignable respects. In other words, induction is the process by which we conclude that what is true of certain individuals of a class is true of the whole class, or that what

is true at certain times will be true in similar circumstances at all times. This definition excludes from the meaning of the term induction, various logical operations, to which it is not usual to apply that name. Induction, as above defined, is a process of inference; it proceeds from the known to the unknown; and any operation involving no inference, any process in which what seems the conclusion is no wider than the premises from which it is drawn, does not fall within the meaning of the term." Mills, Logic, Ratiocinative & Inductive (8th ed.) 210.

Evidence is defined to be circumstantial where the main fact is deduced from a series of collateral facts by a process of reasoning. Best, Presumptions, 12, 246; 1 Greenl. Ev. § 13; 3 Bl. Com. 371; 1 Phil. Ev. 598.

This grade of evidence is frequently used to prove an offense, in the absence of positive evidence of it, and it may be satisfactory, and even stronger than positive evidence. It is also often used when there is direct and positive evidence of the commission of a crime and the guilt of the defendant, in order to make a stronger case against him. And it is quite common to prove cer. tain ingredients of the crime by the one, and other ingredients by the other kind of evidence. Thus "in larceny, for instance, after proving that the goods were taken or stolen, proof that they were found in the possession of the prisoner shortly afterwards, and that he did not give any satisfactory account of the manner in which he came by them, is deemed good presumptive evidence of the prisoner having stolen them; and if to this be added evidence that the goods when found, were concealed or disguised, or the prisoner when charged with the offense, absconded, it will very much strengthen the presumption." Archb. Crim. Pr. & Pl. 135.

It usually consists of various independent circumstances which, connected together, may show that a crime has been committed, and that the defendant is guilty. Each circumstance may be sustained by independent proof, or the testimony of different parties and the value of the evidence may largely depend upon the sufficiency of the proof of a single fact, constituting a link in the whole chain of evidence. Sometimes, however, each necessary link in the chain may be sustained by corroborative facts and testimony; and the value of the whole may depend upon the amount and value of the testimony, to independent facts. McCann v. State, 13 Smedes & M. 471. See also Mason v. State, 42 Ala.

532; Williams v. State, 41 Tex. 209; Barnes v. State, 41 Tex. 342; Riggs v. State, 6 Coldw. 517; Clark v. People, 5 Thomp. & C. 33, 2 Hun, 520; Woodford v. People, 5 Thomp. & C. 589; People v. Myers, 2 Hun, 6.

Circumstantial evidence is proof of a series of other facts than the fact in issue, which by experience have been found so associated with that fact that, in the relation of cause and effect, they lead to a certain and satisfactory conclusion; as when footprints are discovered after a recent snow, it is certain some animated being passed over the snow since it fell; and from the form and number of the footprints, it can be determined with equal certainty whether they are those of a man, bird or quadruped. Such evidence is founded on experience and observed facts and coincidences, establishing a connection between the known and proved facts and the facts sought to be proved. Com. v. Webster, 5 Cush. 310, 312, 52 Am. Dec. 711. See also People v. Cronin, 34 Cal. 202, 203; People v. Morrow, 60 Cal. 144.

Presumptive or circumstantial evidence is admissible both in civil and criminal cases, and in prosecutions for some of the worst species of crimes, is often the most satisfactory and convincing that can be produced. Walworth, Chancellor, in People v. Videto, 1 Park. Crim. Rep. 603. In the abstract, it is nearly, if not quite as strong as positive evidence; in the concrete, it may be much stronger. Com. v. Harman, 4 Pa. 271-273.

§ 343. Test of Sufficiency. The criterion of sufficiency is this, does the circumstantial evidence resorted to, establish in the minds of the jury a sense of conviction, to the exclusion of all reasonable doubt? The convincing effect that would follow from positive testimony, is not expected to flow from circumstantial evidence. Banks v. State, 72 Ala. 522; State v. Goldsborough, 1 Houst. Crim. Rep. 302; Jackson v. State, 9 Tex. App. 114; Faulk v. State, 52 Ala. 415; State v. Norwood, 74 N. C. 247; Rea v. State, 8 Lea, 356; Dean v. Com. 32 Gratt. 912; Walbridge v. State, 13 Neb. 236.

344. Theory of the "Connected Chain" Examined.The philosophy of circumstantial evidence is this: That it consists in proving the many independent circumstances by different witnesses; but which, if they are proved, and if they form one consistent and connected chain in a transaction, they are apt to convince the mind; while, if they are not true, error and falsehood

are likely to be detected, so that no person shall be injured thereby. There are certain humane rules laid down in the law in relation to circumstantial evidence. In the first place, if there is a single circumstance proved which is one of the necessary links in the chain of the transaction that is inconsistent with the guilt of the accused, no matter how suspicious the other circumstances may be, he is entitled to an acquittal.

Another rule is, that in order to find a verdict of guilty the circumstances all taken together, as you shall find them proved, shall sustain no other reasonable hypothesis than that of the guilt of the accused in order to find a verdict of guilty.

In a case of circumstantial evidence, the jury have not only to determine whether the witnesses testified truthfully to the circumstances, but also to draw a natural and reasonable inference from the circumstances they find to be proved.

It is always an exceedingly satisfactory circumstance of corroboration in a criminal case, when in connection with other convincing proofs, an adequate motive for the crime or act can be assigned. It is a general axiom of human action, that all persons act from motive, and it is always a satisfactory circumstance if a jury can feel that it is proved to their satisfaction that the party had a motive, a strong, impelling motive, for the act which he is charged with doing. But it is not essential to a conviction that a motive should be proved. It is utterly impossible to see the operations of the human mind; the characters and instincts and intents of persons differ, so that what might be an adequate motive for another, for a certain act, and hence it is that it is not absolutely necessary that there shall be a motive proved in order to insure a conviction, but the absence of any probable motive is a circumstance always to be considered by a jury in favor of the accused. Pratt, J., in People v. Rubenstein, Kings County Oyer & Terminer (not reported).

"It is a rule that may be called a golden rule in the examination and application of this kind of evidence which we call circumstantial, that should it so turn out that every fact and circumstance alleged and proved to exist is consistent on the one hand with the hypothesis of guilt, and on the other hand consistent, reasonably and fairly, with the hypothesis of innocence, then those circumstances prove nothing at all. Unless they go so far as to establish a necessary conclusion of this guilt which they offered with a view

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