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hanged. The trial caused great public excitement. When the verdict was announced there were violent manifestations of disapproval in the court room, and a storm of protest throughout all England followed. The charge against Mrs. Maybrick was that she had killed her husband by giving him arsenic, but the evidence was weak, flimsy and contradictory, while the charge of the presiding judge to the jury was grossly unfair. Because of his behavior on this occasion and at subsequent trials, Justice Stephen has been pronounced insane and imbecile, and he has since resigned from the bench. There was a deep conviction in the popular mind that gross injustice had been done, and floods of petitions, demands and protests poured into the home office. The secretary felt compelled by the agitation to take the case under advisement, and after fourteen days of close investigation came to the conclusion that "there was a reasonable doubt whether in fact James Maybrick's death was caused by poison." Mrs. Maybrick's sentence was thereupon commuted to penal servitude for life, and for over three years she has been confined in Woking prison.

Thus there is presented the singular spectacle of a woman undergoing punishment for a crime of which, in the opinion of the home secretary, there is a reasonable doubt of her guilt.

The outrageous deportment of Mr. Justice Stephen during the trial of this case, is thus commented upon by Mr. Edward Stead: "He laid himself out to excite prejudice against this 'horrible woman,' but even when he had finished his twelve hour harangue for the prosecution from the bench, he had sufficient judicial acumen left amidst preceptible decay of his faculties to doubt the possibility of a verdict of guilty. I was assured in Liverpool by one who had it direct from the official concerned, that when the jury retired the judge called up the clerk and asked him what the verdict would be. 'My lord,' he replied, 'I am not the jury.' 'Oh,' said the judge, 'it is impossible for them to find her guilty in face of the medical evidence.' That was also the opinion of the prosecution."

He also states that under the English criminal law "no appeal is allowed from an unjust verdict or sentence, not even in a case of life and death; while in a civil action, where only a bale of cotton is at stake it is possible to appeal from court to court, even to the House of Lords. Thus Mrs. Maybrick's only hope is in the pardoning power, and the plan is to invoke this power by agitation.”

§ 352. The Stokes Case Considered. If all the circumstances shown are consistent with innocence, then there can be no conviction. If they are not, then the question is whether they point to guilt so clearly and distinctly as to satisfy the mind beyond a reasonable doubt. The facts proved must all be consistent with and point to the defendant's guilt not only, but they must be inconsistent with his innocence. Church, Ch. J., in People v. Bennett, 49 N. Y. 144. If equally susceptible of two interpretations, one innocent and one not, the innocent one must be taken. Pollock v. Pollock, 71 N. Y. 137; Shultz v. Hoagland, 85 N. Y. 464. So it is said that if it be shown that either the defendant or a third person committed the deed, but it cannot be distinctly ascertained which one, the defendant cannot be convicted. 1 Bishop, Crim. Proc. (3d ed.) § 1106. The same author, section 1079, lays it down as established by many adjudications that the test of the sufficiency of circumstantial evidence is that the facts proved can be reasonably accounted for on no hypothesis which excluded the defendant's guilt, that with the theory of his guilt they are harmonious and consistent, and that they point to it so clearly and distinctly as to satisfy the jury of it beyond a reasonable doubt. People v. Stokes, 2 N. Y. Crim. Rep. 382.

§ 353. Views of the Texas Supreme Court.-The Texas supreme court has held, that to justify conviction upon circumstantial evidence alone, the facts relied on must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. Barnes v. State, 41 Tex. 342; Black v. State, 1 Tex. App. 391.

In the case of Burrell v. State, 18 Tex. 713, the judgment was reversed as to the appellant, Burns, because the only evidence tending to criminate him was wholly circumstantial, and the court failed to instruct the jury upon its effect. They were instructed that "circumstantial testimony must tend closely to prove the fact, or it is not, of itself, sufficient, but may still be entitled to great weight in connection with direct testimony."

In Cave v. State, 41 Tex. 182, it was held that in cases depending upon circumstantial evidence, full instruction upon that species of evidence is requisite and essential.

354. Comparative Weight of Direct and Circumstantial Evidence. With respect to the comparative weight due to direct

and presumptive evidence, it has been said that circumstances are in many cases of greater force and more to be depended on than the testimony of living witnesses; inasmuch as witnesses may either be mistaken themselves, or wickedly intend to deceive others; whereas circumstances and presumptions naturally and necessarily arising out of a given fact cannot lie. Annesley v. Lord Anglesea, 17 How. St. Tr. 1430. It may be observed, that it is generally the property of circumstantial evidence to bring a more extensive assemblage of facts under the cognizance of a jury, and to require a greater number of witnesses, than where the evidence is direct, whereby such circumstantial evidence is more capable of being disproved if untrue. See 3 Bentham, Rationale of Judicial Evidence, 251. On the other hand, it may be observed, that circumstantial evidence ought to be acted on with great caution, especially where an anxiety is naturally felt for the detection of great crimes. This anxiety often leads witnesses to mistake or exaggerate facts, and juries to draw rash inferences. Not unfrequently a presumption is formed from circumstances which would not have existed as a ground of crimination, but for the accusation itself; such are the conduct, demeanor, and expressions of a suspected person, when scrutinized by those who suspect him. And it may be observed, that circumstantial evidence, which must in general be submitted to a court of justice through the means of witnesses, is capable of being perverted in like manner as direct evidence, and that, moreover, it is subjected to this additional infirmity, that it is composed of inferences each of which may be fallacious. Phil. Ev. (10th ed.) 468; Phil. Ev. (8th ed.) 458; Roscoe, Crim. Ev. (7th ed.) 14.

The relative merit of evidence direct and circumstantial has proved fertile matter of controversy. On the one hand, it has been widely claimed in behalf of circumstantial evidence that, while witnesses lie, facts do not. Rex v. Blandy, 18 How. St. Tr. 1118, 1187; 6 Paley, Moral and Political Philosophy, chap. 9, Ram, Facts (3d Am. ed.) 287; Burnett, Crim. Law of Scotland, 523; 2 Burke's Works (H. & B.'s ed.) 624. On the other hand, frequent reference is made to lamentable instances of wrong conviction on such evidence. Ram, Facts (3d Am. ed.) 439-459. Each have their peculiar advantages and characteristic dangers. Abstractedly speaking, presumptive evidence is inferior to direct evidence, seeing that it is in truth only a substitute for it, and an

indirect mode of proving that which otherwise might not be probable at all. Gilbert, Ev. (4th. ed.) 157; Rex v. Burdett, 4 Barn. & Ald. 95, 123.

"The force of circumstantial evidence," observes Mr. Starkie, "being exclusive in its nature, and the mere coincidence of the hypothesis with the circumstances being, in the abstract, insufficient, unless they exclude every other supposition, it is essential to inquire, with the most scrupulous attention, what other hypothesis there may be agreeing wholly or partially with the facts in evidence. Those which agree even partially with the circumstances are not unworthy of examination, because they lead to a more accurate examination of those facts with which, at first, they might appear to be inconsistent; and it is possible that on a more accurate examination of these facts, their authenticity may be rendered doubtful, or even altogether disproved." The same able writer from whom this passage is quoted has another observation, which also should be kept in view, while dealing with the facts of this case.

"To acquit, on light, trivial, and fanciful suppositions, and remote conjectures, is a virtual violation of the juror's oath; while, on the other hand, he ought not to condemn, unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused, and unless he be so convinced by the evidence, that he would venture to act upon that conviction, in matters of the highest concern and importance to his own interest." Phillips, Famous Cases Circ. Ev. 530.

355. Rules of Induction Specially Applicable to Circumstantial Evidence.-Mr. Wills in his justly celebrated essay on the Principles of Circumstantial Evidence, tabulates a few of the leading rules which are closely identified with this topic.

"Rule 1.-The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum.

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"Rule 2.-The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability. This is a universal rule of jurisprudence, founded upon evident principles of justice; and it is a necessary consequence, that the affirmant party is not absolved from its obligation because of the difficulty which may attend its application. No man can be

justly deprived of his social rights but upon proof that he has committed some act which legally involves the forfeiture of them. The law respects the status in quo, and regards every man as legally innocent until the contrary be proved. To prove a negative is in most cases difficult, in many impossible. Criminality, therefore, is never to be presumed. But, nevertheless, the operation of this rule may, to a certain extent, be modified by circumstances which create a counter-obligation, and shift the onus probandi. Lord Brougham said that the burden of proof often shifts about from one party to another in the progress of a cause, according as the evidence raises a presumption one way or the other. It follows, from the very nature of the circumstantial evidence, that, in drawing an inference or conclusion as to the existence of a particular fact from other facts that are proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction.

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"Rule 3.-In all cases, whether direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits. The suppression or non-production of pertinent and cogent evidence necessarily raises a strong presumption against the party who withholds such evidence when he has it in his power to produce it, of which some interesting exemplifications appear in other parts of this essay. This rule applies a fortiori to circumstantial evidence, a kind of proof which, for reasons which have been already urged, is inherently inferior to direct and positive testimony; and, therefore, whenever such evidence is capable of being adduced, the very attempt to substitute a description of evidence not of the same degree of force, necessarily creates a suspicion that it is withheld from corrupt and sinister motives. Nor is the application of the rule confined to the proof of the principal fact; it is 'the master rule which governs all the subordinate rules.' The rule is, however, necessarily relaxed, where its application becomes impracticable by the wrongful act of the party who would otherwise be entitled to claim its protection; as where a witness is kept out of the way by or on his behalf (Reg. v. Guttridge, 9 Car. & P. 471; Reg. v. Scaife, 20 L. J. M. C. 229; 2 Hawk, P. C. chap. 46, § 15); or a deed or other instrument in his possession, which he refuses, after notice, to produce. Rex v.

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