General nature of presumptive evidence. No subject of criminal law has been more frequently or more amply discussed than that of presumptive evidence, and no subject can be more important; the nature of the presumptions made in criminal cases being the feature of English law which distinguishes it most strongly from all the continental systems. It is not possible to discuss in this place, at any length, the principles of evidence, but it is necessary to point out what is the general nature of presumptive evidence. "A presumption of any fact is properly an inference of that fact from other facts that are known: it is an act of reasoning." Per Abbott, C. J., Rex v. Burdett, 4 B. & Ald. 95 at p. 161, 6 E. C. L. When the fact itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances that necessarily and usually attend such fact, and they are called presumptions and not proofs; for they stand instead of the proofs of the fact until the contrary be proved. Gilb. Ev. 1571. The instance selected by Chief Baron Gilbert to illustrate the nature of presumption is, where a man is discovered suddenly dead in a room, and another is found running out in haste with a bloody sword; that is a violent presumption that he is the murderer; for the blood, the weapon, and the hasty flight, are all the necessary concomitants of such facts; and the next proof to the sight of the fact itself is the proof of those circumstances that usually attend such fact. Id.

It is evident that, in every trial, numberless presumptions must be made by the jury; many so obvious that we are hardly aware that they are necessary, and these present no difficulty; but with regard to others, great care and caution is necessary in making them, and it is

1 Wheel. C. C. 132, a; Id. 100. Presumptions are allowed when the facts to be presumed are consistent with the duty, trust or power authorized, and tend to subserve the purposes of justice; but when the act would be unauthorized by the trust or office, or are contrary to the duty of the party assuming the power, no such presumption can be admitted. Rowan v. Lamb, 4 Greene, 468. S.

for this reason that there are certain practical rules which it is always desirable to observe on this subject.1

There are indeed some presumptions which, as the phrase is, the *law itself makes; that is, the law forbids, under certain circumstances and for certain purposes, any other than one inference to be [*16 drawn, whether that inference be true or false. There are but few such presumptions in criminal cases, and those few mostly in favor of the prisWhere presumptions against the prisoner have been imperatively directed by the law, the rule has generally been looked on with disfavor; as, for instance, the presumptions required by the 21 Jac. 1, c. 27, that a woman delivered of a bastard child, who should endeavor to conceal its birth, should be deemed guilty of murder. This odious statute was repealed by 43 Geo. 3, c. 58, s. 3.

oner.

These two kinds of presumptions are generally distinguished as presumptions of law and presumptions of fact, respectively. With regard to presumptions of law there is not much difficulty, the circumstances under which they arise being generally pretty clearly defined. It is not so, however, with regard to presumptions of fact, there being frequently the difficulty not only of deciding whether a particular presumption ought to be made at all, but which of several presumptions arising out of the same state of facts is the right one.

The difference between the rules as to presumptions in civil and criminal cases seems to arise from this: that in civil cases it is always necessary for a jury to decide the question at issue between the parties, and, whatever be their decision, the rights of the parties will accordingly be affected; however much, therefore, they may be perplexed, they cannot escape from giving a verdict founded upon one view or the other of the conflicting facts before them; presumptions, therefore, are necessarily made on comparatively weak grounds. But in criminal cases, there is always a result open to the jury, which is practically looked upon as merely negative, namely, that which declares the accused to be not guilty of the crime with which he is charged. In cases of doubt it is to this view that juries are taught to lean. 1 Phil. Ev. 456, 10th ed.; M'Nally, Ev. p. 578. Great caution is doubtless nec

1 It is no presumption against a defendant to a criminal charge that he does not produce as a witness a person having a knowledge of material facts, where the evidence is equally accessible to the prosecution. State v. Rosier, 55 Ia. 517. Presumption is not proof, and is, therefore, not a legitimate foundation for a second presumption; but where the first presumption is only confirmatory of what has been proved, it may be invoked in support of the second presumption. Morris v. Indianapolis & St. Louis R. R. Co., 10 Bradw. (Ill.) 389.

2 In the absence of proof to the contrary, the common law of another State will be presumed to be the same as that of the tribunal of trial. Cheff v. Mut. Benefit Life Ins. Co., 13 Allen (Mass.) 308; Cox v. Morrow, 14 Ark. 603; Holmes v. Broughton, 10 Wend. 75; Bundy v. Hart, 46 Mo. 463; Reese r. Harris, 27 Ala. 301; Crake v. Crake, 18 Ind. 156; Hill v. Grigsby, 32 Cal. 55; Walsh v. Dart, 12 Wis. 635; Bramhall v. Van Campen, 8 Minn. 13; Green v. Rugely, 23 Tex. 539; Lucas v. Ladew, 28 Mo. 342; Meyer v. McCabe, 73 Mo. 236. Compare Rowlands v. Manley, 80 Ind. 185. But there is no such presumption as to statute law. Cutter v. Wright, 22 N. Y. 472; Smith v. Whittaker, 23 Ill. 367. It is not necessary to prove that whiskey is an intoxicating liquor; of such things the courts take judicial notice. Egan v. State, 53 Ind. 162. Where a statute makes an act unlawful, without a license, the presumption is against the defendant, unless he produces his license. State v. Higgins, 13 R. I. 330.

essary in all cases of presumptive evidence; and, accordingly, Lord Hale has laid down two rules with regard to the acting upon such evidence in criminal cases. "I would never," he says, "convict any person of stealing the goods of a certain person unknown, merely because he could not give an account how he came by them, unless there was due proof made that a felony was committed of these goods." And again, "I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or, at least, the body found dead." 2 Hale, 290. So it is said by Sir William Blackstone, 4 Comm. 359, that all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape, than that one innocent suffer. The following case on this subject was cited by Garrow, arguendo in R. v. Hindmarsh, 2 Leach, 571. The mother and reputed father of a bastard child were observed to take it to the margin of the dock in Liverpool, and after stripping it, to throw it into the dock. The body of the infant was not afterwards seen, but as the tide of the sea flowed and reflowed into and out of the dock, the learned judge who tried the father and mother for the murder of their child observed that it was possible the tide might have carried out the living infant, and the prisoners were acquitted. "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 *17] 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. Per Mountenoy, B., Annesley v. Lord Anglesea, 9 St. Tr. 426; 17 Howell, 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 Bentham's Rationale of Judicial Evidence, vol. 3, p. 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." Phill. Ev. 468, 10th ed.1

1 As to circumstantial evidence, see McCann v. State, 13 Sm. & Mar. 147; State v. Roe, 12 Vt. 93; People v. Videto, 1 Parker C. R. 603; Rippey v. Miller, 1 Jones' Law,

PRESUMPTIONS.

When the

General instances of presumption. As almost every fact is capable of being proved by presumptive as well as by positive evidence, it 479; Moore v. Ohio, 2 O. St. 500. [State v. Norwood, 74 N. C. 247; Reardon v. State, 4 Tex. App. 602.] Even in the case of a capital offence it is not necessary that the evidence should produce an absolute certainty upon the minds of the jury. Sumner v. State, 5 Blackf. 579. [It is not error for the court to instruct the jury that there is no inherent difference between direct and circumstantial evidence, when properly qualified by an explanation of the force of such evidence. People v. Morrow, 60 Cal. 142.] If it is apparent that the accused is so situated that he could give evidence of all the facts and circumstances as they existed, and he fails to offer such proof, the_natural_conclusion is that if produced instead of rebutting it would sustain the charge. Com. v. Webster, 5 Cush. 295; People v. McWhorter, 4 Barb. 433. [But this presumption will not arise where the evidence is equally accessible to the prosecution. State v. Rosier, 55 Ia. 517. Nor where the witness who is not called is an alleged accomplice. State v. Cousins, 58 Ia. 250.] evidence is circumstantial only, the jury, in order to convict, must find the circumstances to be clearly proved as facts, and must also find that those facts clearly and unequivocally imply the guilt of the prisoner, and that they cannot be reasonably reconciled with any hypothesis of his innocence. United States v. Douglass, 2 Blatch. 207. [Walbridge v. State, 13 Neb. 236; Williams v. State, 41 Tex. 209; Barnes v. State, Id. 342; Beavers v. State, 58 Ind. 530.] The true test as to whether evidence amounts to proof in criminal cases is, whether the circumstances proved produce moral conviction, to the exclusion of every reasonable doubt; and if this result is caused by the evidence, it can make no difference whether the testimony that leads to it is positive or circumstantial. Mickle v. State, 27 Ala. 20. [Faulk v. State, 52 Ala. 415. But the The jury should not indulge in the supposition doubt must be a reasonable one. of facts not proven. Ray v. State, 50 Ala. 104; Cohen v. State, Id. 108; People v. Ashe, 44 Cal. 288; People v. Brannon, 47 Cal. 96; White v. State, 36 Tex. 347; Earle v. People, 73 Ill. 329. A speculative doubt is not a reasonable doubt. Kennedy v. State, 107 Ind. 144.] In the application of circumstantial evidence, the utmost caution should be used. It is always insufficient, when assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true. Algheri v. State, 25 Miss. 584; Rippey v. Miller, 1 Jones, N. C. 479. [State v. Nelson, 11 Nev. 334; Johnson v. Commons, 29 Gratt. (Va.) 796. But this is not so where the evidence is not circumstantial, but direct; Cone v. State, 13 Tex. App. 483; or where it is the intent only which is proved by circumstantial evidence. State v. Maxwell, 42 Ia. 208; cf. Black v. State, 1 Tex. App. 368; Cohen v. State, 32 Ark. 226.] In a case of circumstantial evidence, the fact that the accused was of a peaceful temper and habits was held to be admissible. Carrol v. State, 3 Humph. 315.

In all cases of circumstantial evidence the rule is now established by a great preponderance of authority to be necessary, not only that the circumstances shall all concur to show that the prisoner committed the crime, but that they all are inconsistent with any other rational conclusion. Horne v. State, 1 Kan. 42; People v. Shuler, 28 Cal. 490; State v. Johnson, 19 Ia. 230; State v. Collins, 20 Id. 85; People v. Strong, 30 Cal. 151; Orr v. State, 34 Ga. 342; Joe v. State, 38 Ala. 422; People v. Dick, 32 Cal. 213; Turbeville v. State, 40 Ala. 715; James v. State, 45 Miss. 572; Schusler v. State, 29 Md. 394; Martin v. State, 38 Ga. 293; Commonwealth v. Annis, 15 Gray, 197. See State v. Coleman, 22 La. An. 455; People v. Phipps, 39 Cal. 326; Pitts v. State, 43 Miss. 472; State v. Van Winkle, 6 Nev. 340. [State v. Willingham, 33 La. An. 537.]

Wherever a reasonable doubt exists of the prisoner's guilt in any case the jury should acquit. State v. Ostrander, 18 Ia. 435; Elven v. State, 30 Ga. 869; State v. Rorabacher, 19 Ia. 154; Arnold v. State, 23 Ind. 170; Mose v. State, 36 Ala. 311; People v. Lackanais, 32 Cal. 433; People v. William, Id. 280; State v. Daley, 41 Vt. 564; Clark v. State, 37 Ga. 91; Connor v. State, 34 Tex. 659; Dorsey v. State, Id. 651; Lowder v. Commonwealth, 8 Bush. 432; Commonwealth v. Cunningham, 104 Mass. 545; Bradley v. State, 31 Md. 492; Commonwealth v. Carey, 2 Brews. 404; Commonwealth v. Drum, 58 Pa. 9; Long v. State, 38 Ga. 491; Sparks v. Commonwealth, 3 Bush, 111; Moorer v. State, 44 Ala. 15; State v. Van Winkle, 6 Nev. 340; Reins v People, 30 Ill. 256; [Castle v. State, 75 Ind. 146; People v. Brown, 59 Cal, 345; Harde man v. State, 12 Tex. App. 350; Green v. State, 12 Tex. App. 51]; and this rule applies in the prisoner's favor even as to substantive matters of defence, such as insanity, or alibi, etc., set up by him. Adams v. State, 42 Ind. 373; Pollard v. State,

would be impossible to enumerate the various cases in which the former evidence has been admitted. It may be useful, however, to state some

53 Miss. 410; People v. Pearsall, 50 Mich. 233; Hoge v. People, 117 Ill. 35. The doctrine of reasonable doubt applies only to criminative and not to exculpatory facts. Dyson v. State, 13 Tex. App. 402.] If his evidence raises a reasonable doubt, he is entitled to the benefit of it. State v. McGluer, 5 Nev. 132; State Ellick, 1 Win, 56; Chappel v. State, 7 Cold. 92; Boswell v. Commonwealth, 20 Grati. 860; State v. Hundley, 46 Mo. 414; People v. Schryver, 42 N. Y. 1; Chase v. People, 40 Ill. 352; State v. Klinger, 43 Mo. 127; State v. Felter, 32 Ia. 49; McKensie v. State, 42 Ga. 334; Bradley v. State, 31 Ind, 492; McFarland's Case, 8 Abb. Pr. N. S. 57, 93: but see as to doubt of sanity, Kriel v. Commonwealth, 5 Bush, 362. S.

On insanity, see People v. Wilson, 49 Cal. 13; State v. Bruce, 48 Ia. 530; Dacey v. People, 116 III. 555. It is error to refuse to instruct the jury that the defendant is presumed to be innocent. Line v. State, 51 Ind. 172. On the other hand, falsehoods uttered by the prisoner when satisfactorily proved are circumstantial evidence to establish his guilt. State v. Benner, 64 Me. 267. Where the defence is an alibi, proved by two witnesses who were contradicted by a boy, that the jury gave credence to the boy is not ground to set aside the verdict. Rogers v. People, 98 Ill. 581. To sustain an alibi the evidence therefor must reasonably exclude the possibility of presence. Johnson v. State, 59 Ga. 142; State v. Fenlason, 78 Me. 495. To establish an alibi it is not necessary that the jury should be fully satisfied of its truth. State v. Henry, 48 Ia. 403; State v. Northrup, 48 Ia. 583; Howard v. State, 50 Ind, 190; State v. Jaynes, 78 N. C. 504; State v. Hardin, 46 Ia. 623; State v. Watson, 7 S. C. 63; Staman v. State, 14 Neb. 68. It is sufficient if it raises a reasonable doubt. McAnally v. State, 74 Ala. 9; Johnson v. State, 21 Tex. App. 368. While failure to prove an alibi raises no presumption against the prisoner, detection of a fraudulent attempt to establish a fictitious alibi may have such an effect. Porter v. State, 55 Ala. 95; Turner v. Commonwealth, 86 Pa. 54; Pilger v. Commonwealth, 18 W. N. C. (Pa.) 136; S. C., 1 Pa. Sup. Ct. Dig. 65. Evidence to prove an alibi should be received with great caution, but the defence if established is equal to any other. Provo v. State, 55 Ala. 222. Where the defence is an alibi, the burden of proof is on the defendant. State v. Hamilton, 57 Ia. 596; State v. Krewsen, Id. 588; State v. Bruce, 48 Ia. 530; State v. Reed, 62 Ia. 40; State v. Hemrick, 62 Ia. 414; State v. Fry, 67 Ia. 475. So also of insanity. Bond v. State, 23 Ohio St. 349. Where the court has instructed the jury generally on the subject of reasonable doubt, it is not error to refuse to charge specially on the evidence which may raise the doubt. Gibbs v. State, 1 Tex. App. 12; People v. Cruger, 4 N. Y. Crim. Rep. 60. Where the defence of an alibi is set up, and the prosecution puts in evidence which contradicts this defence, if the jury prefer to believe the witnesses for the prosecution, the weight of the evidence is for them, and their verdict will not be set aside. Doyle v. State, 5 Tex, App. 442. An unsuccessful attempt to prove an alibi is not conclusive. Kilgore v. State, 74 Ala. 1; Porter v. State, 55 Ala. 95.

A failure to establish an alibi is not conclusive against the prisoner. State v. Collins, 20 Ia. 85; it raises no presumption against him. Toler v. State, 16 O. St. 583. S. Turner v. Commonwealth, 86 Pa. 54.

It is erroneous to charge "that he who is to pass on the question is not at liberty to. disbelieve as a juror, while he believes as a man." State v. Collins, 20 Ia. 85; State v. Pratt, Id. 267. [See Munden v. State, 37 Tex. 353; Williams v. State, Id. 474.] On a criminal trial, if the commonwealth fails to make out a prima facie case, the fact that the defendant produces no evidence to negative an averment which the government is bound to prove, will not warrant the jury in finding that such averment is proved. Commonwealth v. Hardiman, 9 Gray, 136. [Nor is the fact that defendant has made no defence in his preliminary examination before the magistrate admissible against him. Templeton v. People, 27 Mich. 501.] Wherever in criminal cases the examination of the evidence given upon a challenge leaves a reasonable doubt of the impartiality of a juror, the defendant should have the benefit of the doubt, and the juror be excluded. Holt v. People, 13 Mich. 224. In an action on a statute to recover treble value of goods feloniously taken, it was held to be erroneous to instruct the jury that the plaintiff was bound to prove the felonious taking beyond a reasonable doubt, in the same manner as in a criminal prosecution. Manson v. Atwood, 30 Conn. 102. S. Evidence is to be deemed beyond reasonable doubt when it is sufficient to impress the judgment of ordinarily prudent men with a conviction on which they would act without hesitation in their own most important concerns. Houser v. State, 58 Ga. 78; Jarrell v. State, 58 Ind. 293; State v. Hayden, 45 Ia. 11; Smith v. People, 74 III.