of circumstantial evidence is said to consist; its application constituting the second stage in the general process of presumption. This test is the negative point of view. It is not sufficient that the circumstances proved coincide with, account for and therefore render probable the hypothesis sought to be established; but they must exclude, to a moral certainty, every other hypothesis but that single one." Burrill, Circ. Ev. 181.

In another work of merit, the same line of thought is pursued, thus: "The hypothesis of delinquency should be consistent with all the facts proved. The chief danger to be avoided when dealing with presumptive evidence arises from a proneness natural to man, to jump to conclusions from certain facts, without duly adverting to others which are inconsistent with the hypothesis which those facts seem to indicate. . It should never be

forgotten, as observed by an able writer on the law of evidence, that all facts and circumstances which have really happened were perfectly consistent with each other, for they did actually so consist; an inevitable consequence of which is that, if any of the circumstances established in evidence, is absolutely inconsistent with the hypothesis of the guilt of the accused, that hypothesis cannot be true." 2 Best, Ev. (Morgan's Notes) § 451.

This familiar principle of evidentiary law is frequently enunciated in criminal reports. People v. Cunningham, 6 Park. Crim. Rep. 398; People v. Strong, 30 Cal. 151; Harrison v. State, 6 Tex. App. 42; State v. Moxley, 102 Mo. 374.

"Where there is nothing but the evidence of circumstances to guide you," said Mr. Justice Bailey, "those circumstances ought to be closely and necessarily connected, and to be made as clear as if there were absolute and positive proof." Rex v. Downing, Salop Summer Assizes, 1822. Every circumstance, therefore, which is not clearly shown to be really connected as its correlative with the hypothesis it is supposed to support, must be rejected from the judicial balance; in other words, it must be distinctly established that there exists between the factum probandum and the facts which are adduced in proof of it, a real connection, either evident and necessary, or so highly probable as to admit of no other reasonable explanation. See Mittermaier, chap. 55, 57; Wills, Circ. Ev. chap. 6, pp. 173, 174.

350. Review of the Celebrated Webster Case-the Harris Case. Few criminal cases have been decided in this country

that have given a wider scope to evidentiary rules or have called for a more extended application of the many principles they embody, than that of the celebrated Webster case decided by the Massachusetts supreme judicial court in March, 1850. Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711. The high social distinction enjoyed by the prisoner, his scientific attainments and his close relations with the greatest university of our land threw around the trial of that case an interest that but rarely attaches to a criminal prosecution. The distinguished chief justice who presided has left behind him a monumental record of rare legal accomplishments coupled with great logical acuteness, rigid impartiality and keen and unrelenting perceptions of what circumstantial evidence should disclose in order to meet the exactions of a capital case. These considerations taken in connection with the eminence of the counsel appearing for both the commonwealth and for the prisoner, must ever invest this celebrated case with intense interest and lasting value. The following quotations of the opinions of Chief Justice Shaw bear their own commentary and vindication. Much has been written since this opinion has been handed down pertaining to this subject; but the entire range of judicial discussion or theoretical review has failed to disclose a more apt or convincing statement of the rules pertaining to this particular grade of evidence than are found within the paragraphs of that singularly exhaustive and scholarly opinion. The most efficient and instructive application of the rules of circumstantial evidence were demanded by that celebrated case and every exaction was fully met.

"The distinction between direct and circumstantial evidence is this. Direct or positive evidence is when a witness can be called to testify to the precise fact which is the subject of the issue on trial; that is, in a case of homicide, that the party accused did cause the death of the deceased. Whatever may be the kind or force of the evidence, this is the fact to be proved. But suppose no person was present on the occasion of the death, and of course that no one can be called to testify to it; is it wholly unsusceptible of legal proof? Experience has shown that circumstantial evidence may be offered in such a case; that is, that a body of facts may be proved of so conclusive a character, as to warrant a firm belief of the fact, quite as strong and certain as that on which discreet men are accustomed to act, in relation to their most

important concerns. It would be injurious to the best interests of society, if such proof could not avail in judicial proceedings. If it was necessary always to have positive evidence, how many criminal acts committed in the community, destructive of its peace and subversive of its order and security, would go wholly undetected and unpunished?

"The necessity, therefore, of resorting to circumstantial evidence if it is a safe and reliable proceeding, is obvious and absolute. Crimes are secret. Most men, conscious of criminal purposes, and about the execution of criminal acts, seek the security of secrecy and darkness. It is therefore necessary to use all other modes of evidence besides that of direct testimony, provided such proofs may be relied on as leading to safe and satisfactory conclusions; and, thanks to a beneficent providence, the laws of nature and the relations of things to each other are so linked and combined together, that a medium of proof is often thereby furnished, leading to inferences and conclusions as strong as those arising from direct testimony.

"On this subject, I will once more ask attention to a remark in East's Pleas of the Crown, chap. 5, § 11: 'Perhaps,' he says, 'strong circumstantial evidence, in cases of crime like this, committed for the most part in secret, is the most satisfactory of any from whence to draw the conclusion of guilt; for men may be seduced to perjury by many base motives, to which the secret nature of the offense may sometimes afford a temptation; but it can scarcely happen that many circumstances, especially if they be such over which the accuser could have no control, forming together the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous.'

"Each of these modes of proof has its advantages and disadvantages; it is not easy to compare their relative value. The advantage of positive evidence is, that it is the direct testimony of a witness to the fact to be proved, who, if he speaks the truth, saw it done; and the only question is, whether he is entitled to belief. The disadvantage is, that the witness may be false and corrupt, and that the case may not afford the means of detecting his falsehood.

"But, in a case of circumstantial evidence where no witness can testify directly to the fact to be proved, it is arrived at by a series

of other facts, which by experience have been found so associated with the fact in question, that in the relation of cause and effect, they lead to a satisfactory and certain conclusion; as when footprints are discovered after a recent snow, it is certain that some animated being has 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, a bird, or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences, establishing a connection between the known and proved facts and the fact sought to be proved. The advantages are, that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances it less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose. The disadvantages are that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be lead by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions; a source of error not existing in the consideration of positive evidence.

"From this view, it is manifest, that great care and caution ought to be used in drawing inferences from proved facts. It must be a fair and natural, and not a forced or artificial conclusion; as when a house is found to have been plundered, and there are indications of force and violence upon the windows and shutters, the inference is that the house was broken open, and that the persons who broke open the house plundered the property." Com. v. Webster, 59 Cush. 295, 52 Am. Dec. 711.

Mr. Justice Grey of the New York court of appeals in a very recent case that has attracted wide attention says:

"All evidence is, in a strict sense, more or less circumstantial, whether consisting in facts which permit the inference of guilt, or whether given by the eye-witnesses of the occurrence; for the testimony of eye-witnesses is, of course, based upon circumstances more or less distinctly and directly observed. But, of course, there is a difference between evidence consisting in facts of a peculiar nature and hence giving rise to presumptions, and evidence which is direct, as consisting in the positive testimony of eye-witnesses; and the difference is material according to the degree of exactness and relevancy, the weight of the circumstances and the

credibility of witnesses. The mind may be reluctant to conclude upon the issue of guilt in criminal cases upon evidence which is not direct, and yet, in the facts brought out, when taken together, all point in the one direction of guilt, and to the exclusion of any other hypothesis, there is no substantial reason for that reluctance. Purely circumstantial evidence may be often more satisfactory, and a safer form of evidence, for it must rest upon facts which, to prove the truth of the charge made, must collectively tend to establish the guilt of the accused. A fact has the sense of, and is equivalent to, a truth, or that which is real. It is in the ingenious combination of facts that they may be made to deceive, or to express what is not the truth. In the evidence of eye-witnesses to prove the facts of an occurence we are not guaranteed against mistake and falsehood, or the extortion of truth by exaggeration or prejudice, but when we are dealing with a number of established facts, if, upon arranging, exainining, and weighing them in our mind, we reach only the conclusion of guilt, the judgment rests upon pillars as substantial and sound as though resting upon the testimony of eye-witnesses. The necessity of a resort to circumstantial evidence in criminal cases is apparent in the nature of things, for a criminal act is sought to be performed in secrecy, and an intended wrongdoer usually chooses his time, and an occasion when most favorable to concealment, and sedulously schemes to render detection impossible. All that we should require of circumstantial evidence is that there shall be positive proof of the facts from which the inference of guilt is to be drawn, and that that inference is the only one which can reasonably be drawn from those facts." People v. Harris (N. Y.) Jan. 17, 1893.

§ 351. The Maybrick Case Considered.-The necessity of reviewing all criminal cases, especially those dependent upon circumstantial evidence, and of correcting such errors as may have determined the verdict or in fact presided throughout the entire trial, has received ample vindication in a recent English case presided over by Sir James Stephen. It has since been abundantly established that the celebrated baronet was relapsing into the early stages of senility and decay, but the appalling result can be only discerned by a reference to the facts elicited on the trial.

Florence Maybrick is an American woman who was tried in Liverpool, England, in August, 1889, for the murder of her husband. August 27th she was found guilty and sentenced to be