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[ *313 ] may have purchased a quantity of the same poison a short time before, for the purpose of destroying vermin. So, predictions of approaching mischief to an individual who is afterwards found murdered may frequently be explained, on the ground that the accused was really speaking the conviction of his own mind, and without any criminal intention-we must not forget that idle prophecies of death are quite as frequently the offspring of superstition as of premeditated assassination. As an example of intention criminal with a different object; murder by fire-arms is not uncommon; and a person innocent of the murder might, a short time previous to its commission, have purchased a gun for the purpose of poaching, or even have stolen one, which is found in his possession. So A. might purchase a sword or pistol for the purpose of fighting a duel with B., but, before the meeting takes place, the weapon might be purloined or stolen by C., in order to assassinate D.

§ 236. 2. But, even where the preparations or attempts have been made with the intention of committing the identical offence, two things remain to be considered :(g) 1. The intention may have been changed or abandoned. Until a deed is done, there is always a locus penitentia; and the possibility of a like criminal design having been harboured and carried into execution by other persons must not be overlooked. 2. The rare, though possible case, of the criminal intention persisting, but the criminal act anticipated by others. An instance of this has been given in the preceding chapter, in the case of Jonathan Bradford.(r)

[ *314 ] *closely allied to preparations and attempts are antece

§ 237. IV. DECLARATIONS OF INTENTION AND THREATS.

dent declarations of intention and threats to commit the offence which is afterwards found perpetrated. Most of the infirmative circumstances applicable to the former are incident to those now under consideration, which, however, have some additional ones peculiar to themselves. 1st. The words supposed declaratory of criminal intention may have been misunderstood or misremembered. 2ndly. It does not necessarily follow, because a man avows an intention, or threatens to commit a crime, that such intention really existed in his mind. The words may have been uttered through bravado, or with the view of intimidating, annoying, extorting money, or other collateral objects. 3rdly. Besides, another person, really desirous of committing the offence, may have profited by the occasion of the threat, to avert suspicion from himself. A curious instance of this is given in the Causes Célèbres. (s) A woman of extremely bad character and violent temper, one day, in the open street, threatened a man, who had done something to displease her, that she would "get his hams cut across for him." He was found dead a short time afterwards with his hams cut across. This was, of course, sufficient to excite suspicion against the female, who, according to the practice of continental tribunals, at that time, was put to the torture, confessed the crime and was executed. person, was, however, soon after taken into custody for some other A offence, who confessed that he was the murderer; that, happening to be passing when the threat was uttered, he conceived the idea of

(9) 3 Benth. Jud. Ev. 74.
(8) 5 Causes Célèbres, 437.

(r) Supra, § 211.

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committing the crime, as he knew the *woman's bad character would be sure to tell against her. 4thly. It must be recollected that the tendency of a threat or declaration of this nature is to frustrate its own accomplishment. By threatening a man you put him on his guard, and force him to have recourse to such means of protection as the force of the law, or any extrajudicial powers which he may have at command, may be capable of affording to him.(t) Still, however, as judiciously observed by Mr. Bentham, "by the testimony of experience, criminal threats are but too often, sooner or later, realised. To the intention of producing the terror, and nothing but the terror, succeeds, under favour of some special opportunity, or under the spur of some fresh provocation, the intention of producing the mischief, and (in pursuance of that intention) the mischievous act."(u)

§ 238. V. SUDDEN CHANGE OF LIFE OR CIRCUMSTANCES.-Having examined the probative force of criminative facts, existing before, though perhaps not discovered until after, the perpetration of the offence, we proceed to consider those occurring subsequent to it; among which the first that presents itself is a change of life or circumstances, not easily explicable, except on the hypothesis of the possession of the fruits of crime; as, for instance, where, shortly after a larceny or robbery, a person, previously poor, is found in the possession of considerable wealth and the like. (c) We have already seen, that, by the civil law, the suddenly becoming rich was not even primâ facie evidence of dishonesty against a guardian;(y) *and it is now perfectly understood in our criminal courts, that

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it is not, when standing alone, any ground for putting a party on his defence-however the principle may occasionally have been violated by inferior tribunals. (z) A writer on the law of evidence puts the following case :(a)—Suppose A. is robbed at a fair, and that the contents of his purse were one penny, two sixpences, three shillings, four half-crowns, five crowns, six half-sovereigns, and seven sovereigns, and that a person, apprehended in the same fair, were found in the possession of the same remarkable combination of coin, and of no other, still, if no part of the coin were identified, and there were no other evidence against the party apprehended, it would be unsafe to convict him. The possession of unidentified coin is, however, a circumstance always proper, when joined with others, to be left to a jury.

§ 239. VI. PRESUMPTIONS OF GUILT DERIVED FROM SILENCE UNDER ACCUSATION, EVASIVE RESPONSION, GIVING FALSE ANSWERS, AND SUPPRESSION OR FABRICATION OF EVIDENCE.-Silence under accusation, or nonresponsion on the part of a person charged with crime, is either judicial or extrajudicial. Judicial non-responsion is where the accused observes silence on being interrogated by a judge or person in authority: extrajudicial, when the criminative interrogation or observation is made by a private person.

§ 240. In Continental practice, where a rigid examination of the

(t) 3 Benth. Jud. Ev. 78.

(u) Ib. (x) This may in some cases be evidence also of murder. See Burdock's case, supra, § 196. (y) Cod. lib. 5, tit. 51, 1. 10; Part I. ch. 3, § 33. (z) 2 Ev. Poth. 345. (a) 1 Stark. Ev. 569, 3rd ed.

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accused, with the view of extracting criminative evidence against [ *317 ] him out of his own mouth, constitutes the chief feature of most criminal trials, the subject of judicial non-responsion and false or evasive responsion necessarily constitutes a most important feature in forensic procedure. But in English law the practice is quite the reverse. The only questions allowed to be put to the accused are to desire him to plead guilty or not guilty: and if the latter, to call on him for his defence after the evidence for the prosecution is closed. Where he refuses to plead, a plea of not guilty will be entered for him; and the inference of guilt derivable from his refusing to make any defence in answer to a prima facie case against him, or making a false, incomplete, or inconsistent statement, is evidently liable to most of the infirmative circumstances attendant on extrajudicial silence or false or evasive responsion out of court.

§ 241. We therefore come at once to extrajudicial non-responsion -a subject deserving in every way of attentive consideration. A statement is made either to a man or within his hearing, that he was concerned in the commission of a given crime, to which he returns no reply; the natural inference is, that the imputation is well founded, or he would have repelled it-" silence is tantamount to confession." But, however, strongly such a circumstance as this may tell against prisoners in general, there are several things to be considered before we invest it with conclusive force. Ist. It must be remembered that the transaction comes to the court and jury through the testimony of witnesses, who may either wilfully misreport or have misunderstood it. The prisoner, owing to deafness, or any other cause, may not have heard the question or observation or may not have understood [ *318 ] it as conveying an imputation against himself. 2ndly. Assuming the words correctly reported, the following observations of Mr. Bentham are very pertinent and forcible:-"The strength of the inference (viz. of guilt under such circumstances) depends principally on two circumstances, the strength the appearances may naturally be supposed to possess in the point of view in which they present themselves to the party interrogated, (or suspected) and the quality of the interrogator. Suppose him a person of ripe years, armed by the law with the authority of justice, authorised (as in offences of a certain magnitude persons in general commonly are under every system of law) to take immediate measures for rendering the supposed delinquent forthcoming for the purposes of justice, as by conducting him before or giving information to a magistrate,-authorised to take such measures and, to appearance, having it in contemplation so to do; in such case, silence, instead of answer to a question put to the party by such a person, may afford an inference, little, if at all, weaker than that which would be afforded by the like deportment in case of judicial interrogation before a magistrate. Suppose, on the other hand, a question put in relation to the subject, at a time distant from that in which the cause of suspicion has first manifested itself-put at a time when no fresh incident leads to it,-put therefore, without reflection, or in sport,-by a child, from whom no such interposition can be apprehended, and to whose opinion no attention can

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be looked upon as due; in a case like this, the strength of the infermay vanish altogether."(b)

§242. Connected with the subject of non-responsion, *is that of incomplete or evasive responsion; e. g. a man [ *319 ] accused of crime either evades the question, or, while denying his guilt, refuses to evidence his innocence, or answer or explain any circumstances which are brought forward in his presence as suspicious or criminative against him. The inference of guilt derivable from conduct of this nature is weakened by the following additional considerations:-1. A perfectly innocent man cannot in all cases explain all the circumstances which press against him. 2. In many cases an innocent man can only explain particular circumstances by criminating other individuals, whom he is unwilling to expose, or disclosing facts which he is anxious, if possible, to conceal. And in some cases the accused, blameless in the actual instance, could only prove himself so by showing his guilt of some other offence. 3. Where a prosecution is altogether groundless, the result of conspiracy, or likely to be supported by perjured testimony, it is often good policy on the part of the accused not to disclose his defence until judicially demanded of him on his trial. It has accordingly been held that no presumption of guilt arises from the silence of a prisoner before a magistrate, when he is charged even by another prisoner with having been joined with him in the commission of an offence.(c)

§ 243. We next come to the subject of false responsion, a criminative fact infinitely stronger than either of the former. "In justification of simple silence," observes Mr. Bentham, "the defence founded on incompetency on the part of the interrogator might be pertinent, and even convincing: to false responsion, *the application of it could scarce extend. Of the claim the question had [ *320 ] to notice, you (i. e. the accused) yourself have borne sufficient testimony: so far from grudging the trouble of a true answer, you bestowed upon it the greater trouble of a lie."(d) The infirmative circumstances here seem to be: 1st. The possibility of the conversation having been misunderstood, or misreported; 2ndly. That, as innocent persons have frequently been found, under the influence of fear, &c., to resort to false evidence in their defence, it is not impossible that false statements may have arisen from the same causes. 3rdly. The presumption of guilt derivable from the suppression, eloignment, destruction, or fabrication of evidence has been already considered in a former part of this work, when treating of presumptions made in disfavour of the spoliator. (e)

§ 244. VII. EVASION OF JUSTICE.-By evasion of justice is meant the doing some act indicative of a wish to avoid judicial inquiry into the crime of which the party doing the act is suspected; and is evidenced either by his flying from the country, removing himself, his family, or his goods, to another place, or keeping concealed. To these may also be added, the kindred act of bribing or tampering with officers of justice; all of which afford a presumption of guilt more or less strong, according to circumstances.

(b) 3 Benth. Jud. Ev. 92, 93. (d) 3 Benth. Jud. Ev. 94.

(c) R. v. Appleby, 3 Stark. 33.
(e) Part II., ch. 7.

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$245. The fact, that, about the time of the commission of an offence, the suspected person left his home, is only presumptive evidence of an intention to escape being rendered amenable to justice. A [ *321 ] man may change his abode for health, business or pleasure(g) without having so much as heard of the commission of the crime; and the probability of his having done so depends on the notoriety of the event, his being able to read, &c. Besides, in estimating the weight due to the presumption, it is most important to take into consideration, the party's general mode of life. In the case of a mariner, carrier, itinerant vendor, or itinerant handicraft, the inference of guilt from change of place might amount to little or nothing.(h) So, the object in absconding might be to avoid civil process, or inquiry into some other offence.(i)

§ 246. But even the clearest proof that the accused has absented himself to avoid the actual charge against him, although a strong circumstance, is by no means conclusive evidence of guilt.(k) The nerves of all men are not equally strong; and, under certain circumstances, the most innocent person might deem a trial too great a risk to encounter. He may be aware that a number of suspicious, though inconclusive facts will be adduced in evidence against him; he may feel his incompetency to procure legal advice in his defence; he may be fully assured that powerful or wealthy individuals have resolved on his ruin, or that witnesses have been bribed to bear false testimony against him. Besides, even under the best-regulated judicial system, more or less vexation must necessarily be experienced by all persons who are made the objects of criminal charges, which vexation it may have been the object of the accused to avoid by concealment, with the intention of surrendering himself into the hands of justice when the [ *322 ] *time for trial approached.(7) Considerations like the above are entitled to weight at all times, and in all places; but, in dealing with the general question, the nature and character of the tribunal before whom, and of the administration of justice in the country where the trial is to take place, must never be lost sight of. In the case, for instance, of some of the old Continental tribunals, which acted on this maxim, " In atrocissimis leviores conjecturæ sufficiunt, et licet judici jura transgredi ;" or of others, which, on slight evidence, would, in order to extract a confession, order the accused to be put to the torture, so as, perhaps, to maim him for life; or of others, acting on the enlightened principle laid down by Dr. Paley, that it is justifiable to deliver up to capital punishment persons whose guilt is not indisputably proved, on the ground that those who fall by a mistaken sentence may be considered as falling for their country(m)-is it to be wondered at, that innocent persons should fly to avoid the impending danger? or would

(g) 3 Benth. Jud. 175.

(k) Matth. de Prob., c. 2, n. 69; Voet. ad Pand., lib. 22, tit. 3 n. 5. (h) Id. 176. (i) Id. 180. (1) For the purpose of computing the average duration of a penal suit, the 32 volumes, in closely-printed 12mo., of the Causes Célèbres were examined. It was not in every instance that the duration of the suit could be ascertained; but, in those in which it could, the average duration turned out to be six years. (3 Benth. Jud. Ev. 174). And even in this country, when there is no winter assize and where the Central Criminal Court has not jurisdiction, a party, committed for a capital felony in the month of September, cannot be tried until the following March. (m) Vide supra § 215.

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