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§ 140. The possession of stolen property recently after the com- 122 mission of a theft, is primâ facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case; and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive. The question as to what amounts to recent possession, varies according as the stolen article is or is not calculated to pass readily from hand to hand. Thus, where two ends of woollen cloth in an unfinished state, consisting of about twenty yards each, were found in the possession of the prisoner two months after they had been stolen, Mr. Justice Patteson held that the prisoner should explain how he came by the property. But, where the only evidence against a prisoner was, that certain tools had been traced to his possession three months after their loss, Mr. Justice Parke directed an acquittal; and Mr. Justice Maule pursued a similar course on an indictment for horse stealing, where it appeared that the horse was not discovered in the custody of the accused until after six months from the date of the robbery. So, where goods, lost sixteen months before, were found in the prisoner's house, and no other evidence was adduced against him, he was not called upon for his defence. Indeed, the finding of stolen property in the house of the accused, provided there were other inmates capable of committing the larceny, will of itself be insufficient to prove his possession, however recently the theft may have been effected; though, if

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1 R. v. Langmead, 1 L. & Cave, 427; 9 Cox, 464, S. C. 2 R. v. Exall, 4 Fost. & Fin. 922, per Pollock, C. B. 3 2 East, P. C. 656; R. v. 2 C. & P. 459; the State v. Adams, 1 Hayw. 463; Wills, Cir. Ev. 53. "Furtum præsumitur commissum ab illo, renes quem res furata inventa fuerit, adeo ut si non docuerit à quo rem habuerit, justè, ex illâ inventione, poterit subjici tormentis." 2 Masc. de Prob., concl. 834; Menoch. de Præs. lib. 5, præs, 31. See ante, 2 63.

R. v. Partridge, 7 C. & P. 551.

3 R. v. Adams, 3 C. & P. 600. See R. v. Cockin, 2 Lew. C. C. 235, where two sacks were found in the prisoner's possession twenty days after they had been missed; and Coleridge, J., left the question to the jury, observing, that "stolen property usually passes through many hands." See the observations of the Reporter on this presumption, id.

R. v. Cooper, 3 C. & Kir. 318; R. v. Harris, 8 Cox, 333, per Channell, B. 2 C. & P. 459, per Bayley, J.

7 R. v.

2 St. Ev. 614, n. g. See Ex parte Ransley, 3 D. & R. 572. In that case, 11 LAW OF EVID.-V. I.

(3027)

coupled with proof of other suspicious circumstances, it may fully warrant the prisoner's conviction, even though the property be not found in his house until after his apprehension.'

§ 141. This presumption, which in all cases is one of fact rather 122 than of law, is occasionally so strong as to render unnecessary any direct proof of what is called the corpus delicti. Thus, to borrow an apt illustration from Mr. Justice Maule, if a man were to go into the London Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars, in which above a million gallons of wine are stowed, "I think," says the learned judge, and most persons will probably agree with him,-"that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had been broached, and that any wine had actually been missed."

992

§ 142.3 The presumption under discussion is not confined to 123 cases of theft, but applies to all crimes, even the most penal. Thus, on an indictment for arson, proof that property, which was in the house at the time it was burnt, was soon afterwards found in the possession of the prisoner, has been held to raise a probable presumption that he was present and concerned in the offence." A like inference has been raised in the case of murder accom

the bare finding of smuggled spirits in the defendant's house, during his absence from home, was held insufficient to support a conviction under 11 G. 1, c. 30, 16 (now repealed by 30 & 31 V., c. 59), for knowingly harbouring and concealing three gallons of foreign Geneva, &c. Abbott, C. J., observed, "The mere naked fact of the spirits being found in the defendant's house during his absence cannot be considered as conclusive evidence of knowledge to support a conviction on this statute. There is abundant ground for suspicion, but we cannot say that it is a clear and satisfactory ground to convict." See also R. v. Hale, 2 Cowp. 728.

1 R. v. Watson, 2 Stark. R. 139, per Ld. Ellenborough & Abbott, J.

2 R. v. Barton, Pearce & D. 284. See, also, R. v. Mockford, 11 Cox, 16. In R. v. Williams, 11 Cox, 684, Montague Smith, J., is reported to have laid down the law in a very different spirit; but that case surely cannot be relied 3 Gr. Ev. 34.

upon.

4 R. v. Rickman, 2 East, P. C. 1035.

panied by robbery,' in the case of burglary, and in the case of the possession of a quantity of counterfeit money.3

§ 143. One of the most important presumptions known to the 124 law is that which is usually embodied in the maxim "omnia præsumuntur ritè esse acta." This presumption,-which in principle is nearly allied to that of innocence,-is, as we have seen,* in some instances conclusive, but in the great majority of cases to which it applies, it is only available, donec probetur in contrarium. The application of this presumption to acts of an official or judicial character will be best illustrated by referring to one or two decisions. For instance, it has been held, that, where successive decisions are inconsistent with a general order of the court, reversal of that order ought to be presumed.' So, on an indictment for perjury in an answer to a bill in Chancery under the old practice, proof of the signatures of the defendant, and of the Master in Chancery before whom the answer purported to have been sworn, has been held sufficient evidence that the defendant was regularly sworn to the truth of its contents, though the clerk, who proved the handwriting of the Master, had no recollection of administering the oath, and admitted that the jurat was not written by himself. So, where a town was proved to be in the military occupation of an enemy, and proclamations, purporting to be signed by the general in command, were posted on its walls, this was held to be evidence whence a jury might infer that the placards had been printed and posted by the authority of the commander.

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$144. Again, on

an indictment for bigamy, proof of the 124

1 Wills, Cir. Ev. 61.

See R. v. Gould, 9 C. & P. 364; R. v. Exall, 4 Fost. & Fin. 922.

3 R. v. Fuller, R. & R. 308; R. v. Jarvis, 25 L. J., M. C. 30; Pearce & D.

552, S. C.

Ante, 22 84-88.

5 See R. v. Bjornsen, 1 L. & Cave, 545; 10 Cox, 74; 34 L. J., M. C. 180,

S. C.

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See, also, Lee v. Johnstone, 1 Law Rep., H. L. Sc. 426.

Bohun v. Delessert; 2 Coop. 21, per Ld. Eldon; Man v. Ricketts, id. 8, 21, per Ld. Lyndhurst.

* R. v. Benson, 2 Camp. 508, per Ld. Ellenborough. See, also, Cheney v. Courtois, 13 Com. B., N. S. 634. "Bruce v. Nicolopulo, 11 Ex. R. 129.

solemnisation of the first marriage in a Wesleyan chapel in the presence of the registrar, and of the entry of such marriage in his book, has been held to raise a primâ facie presumption that the chapel was duly registered;' and in another similar prosecution, where the marriage was shown by a witness present at it to have been solemnised in a parish church by the curate of the parish, it was deemed unnecessary to prove either the registration of the marriage, or the fact of any licence having been granted, or of any banns having been published. So, the constant performance of divine service from an early period in a chapel, raises a primâ facie presumption that it has been duly consecrated.3

§ 144A. A recent decision in Ireland has carried this presumption to its extreme limit. In that case a shopkeeper, prior to the passing of the Weights and Measures Act, 1878,' was prosecuted for using weights which were light when compared with the county standard, but no proof was furnished that the county standard had been compared with the imperial standard within the last five years, although such comparison was expressly required by statute. The court, however, held that this evidence was unnecessary, the primâ facie presumption being that the officials in charge of the local standards had performed their duty, and that, consequently, the comparison had been properly made."

§ 145. Again, a party being detained for debt in the gaol of the sheriff of Devonshire, a writ of ca. sa. at the suit of the sheriff was directed to the coroner of the county, and was lodged with the keeper of the gaol. On motion to discharge this party out of custody on the ground of irregularity in the proceedings, it did not appear from the affidavits that the writ was ever in

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1 R. . Mainwaring, 26 L. J., M. C. 10; 7 Cox, 192; Dear. & Bell, 132, S. C.; Sichel v. Lambert, 15 Com. B., N. S. 781; 33 L. J., C. P. 137, S. C.; R. v. Cradock, 3 Fost. & Fin. 837, per Willes, J., and Pollock, C. B.

2 R. v. Allison, R. & R. 109. See Limerick v. Limerick, 32 L. J., Pr. & Mat. 22; 4 Swab. & Trist. 252, S. C.

S Rugg v. Kingsmill, 1 Law Rep., Adm. & Ecc. 343; R. v. Cresswell, 45 L. J., M. C. 77; 13 Cox, 126; and L. R. 1 Q. B. D. 446, S. C.

441 & 42 V., c. 49.

5 Hill v. Hennigan, I. R., 11 C. L. 522.

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the coroner's hands, but in a return which the gaolor had made to a writ of habeas corpus previously issued, the ca. sa. was set out, together with a certificate by the coroner, that this was a true copy of the writ. Upon these facts the court gave such credit to the regularity of the proceedings, as to presume that the writ had in due course come to the gaolor through the coroner.1 So, where a parish certificate purported to be granted by A, the only church warden, and B, the only overseer of the parish, the court, after a lapse of sixty years, during which time the appellant parish had submitted to the certificate, presumed in its favour that, by custom, there was only one churchwarden in the parish, and that two overseers had been originally appointed, but that one of them was dead, and his vacancy not filled up at the date of the certificate. A like presumption was made in favour of a parish indenture of apprenticeship, which was signed only by one church warden and one overseer.3 So, where a parish deed of apprenticeship had been allowed by the justices pursuant to the statute, the court, in the absence of evidence to the contrary, presumed that notice had been duly given to the officers of the parish, where the apprentice was to serve; and where a similar indenture, certified by the allowance of the justices, contained a recital of the order of binding, it was held that no evidence of such order, beyond the indenture itself, was necessary. So, where the deed of apprenticeship, executed thirty years before, and under which the apprentice had regularly served his time, was proved to be lost, and it further appeared that the parish, in which the pauper was settled under this indenture, had relieved him for the last twelve years, the court considered that the Sessions had acted rightly in presuming that the deed was properly stamped, though

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1 Bastard v. Trutch, 3 A. & E. 451; 5 N. & M. 109; 4 Dowl. 6, S. C. R. v. Catesby, 2 B. & C. 814; see, also, R. v. Whitchurch 7 B. & C. 573. From R. v. Upton Gray, 10 B. & C. 807, it appears that this presumption is rather one of fact than of law.

* R. v. Hinckley, 12 East, 361; R. v. Stainforth, 11 Q. B. 66.

456 G. 3, C.

139, ¿? 1, 2; 3. & 4 W. 4, c. 63, 1.

5 R. v. Whiston, 4 A. & E. 607; 6 N. & M. 65, S. C.; R. v. Whitney, 5 A. &

E. 191; 6 N. & M. 552, S. C.

R. v. Stain forth 11 Q. B. 66. See, also, R. v. St. Mary Magdalen, 2 E. & B. 809; R. v. Broadhempston, 28 L. J., M. C. 18; 1 E. & E. 154, S. C.