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In People v. Wilson, 3 Park. Crim. Rep. 207, the cook of the schooner Eudora was indicted for the murder of the captain upon Long Island Sound; after five months a body floated on shore, which the prosecution claimed was shown to be that of the murdered man. Strong, J., who presided at the trial, charged the jury "that ordinarily there could be no conviction for murder until the body of the deceased was discovered. That there were several exceptions to the rule, however, as where the murder has been on the high seas, at a great distance from the shore, and the body had been thrown overboard, or where the body had been entirely consumed by fire, or so far that it was impossible to identify it. But, in the present case, the scene of the supposed tragedy was near the shore, and there was strong reason to suppose that if a murder had been committed, the body of the deceased would be discovered. The exception to the rule is, therefore, inapplicable, and the jury must be satisfied that the body discovered was that of the murdered captain,

before they could convict the prisoner."

In Reg. v. Tawell, cited in Wills, Circ. Ev. (3d ed.) 181, Baron Parke told the jury that "the only fact which the law requires to be proved by direct and positive evidence is the death of the party by finding the body, or, when such proof is absolutely impossible, by circumstantial evidence leading closely to that result-as where a body was thrown overboard, far from land, when it is quite enough to prove that fact without producing the body."

"The Texas statute following the liberal tendency of the Code Napoleon accurately states the rule as to corpus delicti that ‘no person shall be convicted of any degree of homicide unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed.' Texas Penal Code, art. 549. Now, we assert that the death of the person charged to have been killed can be proved in no other manner-by no other evidence or circumstances than those named in the statute. The dead body or a portion of it must be found. The body or a portion thereof must not only be found, but must be identified as the body or a portion of the body of the person charged to have been killed. The death of the person must be established by proof of these facts, and the death cannot be established by any other evidence

or circumstance short of such proof. This the law requires, and whether this provision be wise or unwise is not for this court to determine. We will remark, however, that the fearful results consequent upon any other rule being adopted and followed are well known to all thoughtful readers and students of criminaljurisprudence." Hurt, J., in Puryear v. State, 28 Tex. App. 73.

§ 299. Intent of the Rule Requiring Proof of. The rule that the corpus delicti must be proved beyond a reasonable doubt was intended as a shield to prisoners, and must never be used as a sword. In the language of Lord Hale, "tutius semper est errare in acquittando, quam in puniendo, ex parte misericordiæ, quam ex parte justitiæ."

The people in every case of homicide must prove the corpus delicti beyond a reasonable doubt, and if the prisoner claims a justification he must take upon himself the burden of satisfying the jury by a preponderance of evidence. He must produce the same degree of proof that would be required if the blow inflicted had not produced death, and he had been sued for assault and battery, and had set up a justification. When a man takes human life, upon which the law sets a high value, it is not sufficient for him to raise a reasonable doubt whether he was justifiable or not, but he must go one step further, and give satisfactory evidence that he was justified. This rule is sufficiently humane to the prisoner, and at the same time gives some protection to human life.

CHAPTER XXXIX.

EVIDENCE OF IDENTITY.

§ 300. A Cautionary Paragraph.

301. Circumstances from which Identity may be Inferred.
302. Voice as Evidence of Identity.

a. Telephonic Communications.

303. Dress as a Means of Identification.

304. Perplexing Nature of this Grade of Evidence.
305. Cautionary Suggestions of Mr. Justice Taylor.

§ 300. A Cautionary Paragraph.-"This branch of our subject, simple as it may seem, and free from difficulty in the estimation of those unaccustomed to reasoning on the topic, is, on the contrary, perhaps one of the most difficult questions with which courts and juries are called upon to deal. The change in the appearance of the person whose identity is in question, wrought by age, mode of life, hardships, toil and care, sometimes coupled with a skillful disguise; again, the want of perception and discrimination in the identifying witnesses; these and numerous other causes have led to numerous cases of mistaken identity, both in ancient and modern times, and in all civilized countries, as we shall see, in both civil and criminal causes. Sometimes position and estates are acquired by fraud, and again, the innocent is punished, and not unfrequently the guilty escapes, from a mistake in the personal identity. These questions are fraught with their dangerous consequences, and difficult in their solution, and are of the greatest importance in the affairs of men. But where is the remedy? It lies alone in caution and prudence. Observation and sad experience admonish courts and juries to the use of the utmost care, caution and prudence." Harris, Identification, § 3.

The cautionary suggestions of this paragraph are abundantly emphasized by a brief reference to the celebrated Tichborne Case, Feb. 28, 1872, MS. That an illiterate roving tramp could so impose upon people of marked intelligence as to induce eightyfive witnesses including the mother of the real heir to testify as to his identity, argues an appalling defect in human sagacity.

For 103 days this remarkable case engrossed the attention of one of the highest tribunals in Great Britain; and nothing but the searching and drastic cross-examination to which the imposter was subjected, dispelled the illusions that mistaken identity had evolved. The rule obtains in most of our jurisdictions that nonexpert testimony is admissible upon all questions of identity. The exceptions to this rule will be hereafter considered; but in support of the general proposition we will cite the following: Cunningham v. Hudson River Bank, 21 Wend. 557; Tate v. Missouri, K. & T. R. Co. 64 Mo. 149; Holten v. Lake County Comrs. 55 Ind. 194; State v. Vittum, 9 N. H. 519; Com. v. Dowdican, 114 Mass. 237; Curtis v. Chicago & N. W. R. Co. 18 Wis. 312; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; Cooper v. State, 53 Miss. 393; People v. Rolfe, 61 Cal. 541; Hallahan v. New York, L. E. & W. R. Co. 102 N. Y. 194; Funston v. Chicago, R. I. & P. R. Co. 61 Iowa, 452; Clifford v. Richardson, 18 Vt. 620; Cooper v. State, 23 Tex. 339; Alexander v. Mt. Sterling, 71 Ill. 366; Cottrill v. Myrick, 12 Me. 222; Colee v State, 75 Ind. 511.

The elaborate opinion in the Tichborne Case, supra, while distinguished by a great parade of unusual learning was rendered somewhat perplexing and obscure by the subtlety of the distinctions and the very artificial texture of the argument.

§ 301. Circumstances from which Identity may be Inferred. "The liability to mistake must necessarily be greater where the question of identity is matter of deduction and inference, than where it is the subject of direct evidence. The circumstances from which identity may be thus inferred are innumerable, and admit of only a very general classification, of which the following are perhaps the most remarkable heads.

"Family likeness has always been insisted upon as a reason for inferring parentage and identity. In the Douglas Case, Lord Mansfield said: 'I have always considered likeness as an argument of a child's being the son of a parent; and the rather as the distinction between individuals in the human species is more discernible than in other animals; a man may survey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discrimi

nancy of voice, a difference in the gestures, the smile, the other various things; whereas a family likeness runs generally through all these, for in everything there is a resemblance, as of features, size, attitude, and action.' But in a case in Scotland, where the question was who was the father of a certain woman, an allegation that she had a strong resemblance in the features of the face to one of the tenants of the alleged father was held not to be relevant, as being too much a matter of fancy and loose opinion to form a material article of evidence. Tait, Ev. 443. And, in another Scottish case, a trial for child-murder, it was permitted, after proof that the child had six toes, to ask a witness whether any member of the prisoner's family had supernumary fingers and toes; though the inference to be deduced was evidently only matter of opinion. 1 Dickson, Ev. 14.

Circumstances frequently contribute to identification, by confining suspicion and limiting the range of inquiry to a class of persons, as where crimes have been committed by lefthanded persons; or where, notwithstanding simulated appearances. of external violence and infraction, the offenders must have been domestics; as in the case mentioned on a former page, of two persons convicted of murder, who created an alarm from within the house; but upon whom, nevertheless, suspicion fell, from the circumstance that the dew on the grass surrounding the house had not been disturbed on the morning of the murder, which must have been the case had it been committed by any other than inmates." Wills, Circ. Ev. 117.

§ 302. Voice as Evidence of Identity.-"In a Texas case on an indictment for arson in the burning of a house and fences in the night time, the owner hurried to the scene, and was shot at by the accused, he returned the fire, when he heard bitter oaths and vociferations emanating from the accused, whose voice he recognized and identified, having known him for thirteen years and lived within half a mile of him for many years. The court held that positive recognition of the defendant's voice, by one who was familiar with it, might suffice to identify the guilty party. In a Massachusetts case the accused was indicted for an attempt at arson in burning a house belonging to one Farnham, whose wife testified that she heard the voice of the accused on the day before the attempt at night, had heard it but the one time, and again that night, and recognized it and could identify it. This was held

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