parties stand to each other. Thus, a woman who commits felony, or perhaps misdemeanor, in company with her husband, is excused, on the presumption (which however may be rebutted) of her having acted under his coercion (h). But the rule does not extend to crimes which are mala in se, nor to such as are heinous in their character, or dangerous in their consequences (). Encroachments made by a tenant are considered as annexed to his holding, unless it appears clearly that he intended them for his own benefit, and not to hold them as he held the farm to which they are adjacent (m). It is also a maxim, "In præsumptione legis, judicium redditur in invitum" (n).

§ 429. In the case of contracts between individuals, there are many presumptions of law based on policy and general convenience. Thus, it is a conclusive presumption of law, that an instrument under seal has been given for consideration; and this presumption can only be removed by impeaching the instrument for fraud (o). But there is a remarkable exception to this rule, viz. where an instrument under seal operates in restraint of trade, in which case a real consideration must appear (p). So, although in the case of contracts not under seal a consideration is not in general presumed (q), it is otherwise in the case of bills of exchange and promissory notes (r).

§ 430. Where goods intrusted to a common carrier, to be carried for reward, are lost otherwise than by the act of God or the Queen's enemies, it is a præsumptio juris et de jure that they were lost by negligence, fraud, or connivance on his part (s). By the act of God is meant storms, lightning, floods, earthquakes, and such direct, vio

(k) See the authorities collected in Arch. Crim. Plead. pp. 18, 19, 15th ed.; Roscoe's Cr. Evid. 937-939, 5th ed. (2) Id.

(m) Andrews v. Hailes, 2 E. & B. 349; Doe d. Croft v. Tidbury, 14 C. B. 304; Kingsmill v. Millard, 11 Exch. 313; Earl of Lisburne v. Davies, L. Rep., 1 C. P. 259. (n) Co. Litt. 248 b; 5 Co. 28 b; 10 Co. 94 b. See infra, ch. 9.

(0) Bk. 2, pt. 3, § 220.

(p) See Mitchel v. Reynolds, 1 Sm. L. C. 406.

(7) Rann v. Hughes, 7 T. R. 350, note. (r) Supra, sect. 1, subsect. 1, § 314.

(s) Bull. N. P. 70, n. (a); Palmer v. The Grand Junction Railway Company, 4 M. & W. 749.

1 Conf. § 43, n. 1, supra. Like most conclusive presumptions, this rule is part of the substantive law, and amounts to saying, in a rather awkward way, that a common carrier, with the exceptions noted in the text, is liable as an insurer of the goods intrusted to his charge, in the absence of special contract. Propeller Niagara v. Cordes, 21 How. 7; Shaw v. Gardner, 12 Gray, 488: Mitchell v. Western, &c. R. R. Co., 30 Ga. 22; Boorman v. Amer. Express Co., 21 Wisc. 152; Condict v. R. R., 54 N. Y. 500; Am. Trans. Co. v. Moore, 5 Mich. 368; Mershon v. Hobensack, 2 Zab. (N. J.) 372; York Co. v. R. R., 3 Wall. 107. Conf. § 296, n. 1, B. VII. (e), supra.

"

lent, sudden, and irresistible act of nature as could not by any reasonable care have been foreseen or resisted (t); and under the head of the Queen's enemies must be understood public enemies, with whom the nation is at open war (u); so that robbery by a mob, irresistible from their number, would be no excuse for the bailee (x). This is an extremely severe presumption, but one which public policy appears to require; although both by the common law, and by virtue of various modern statutes, common carriers can, in many cases, limit their liability (y). So, in the case of innkeepers, before the 26 & 27 Vict. c. 41- which has considerably modified their liability where the goods of a traveller brought into an inn were lost, it was presumed to be through negligence in the innkeeper; and the law cast on him the onus of rebutting this presumption (2).2 Rigorous as this law may seem," says Sir William Jones (a), “and hard as it may actually be in one or two particular instances, it is founded on the great principle of public utility, to which all private considerations ought to yield. For travellers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are usually none of the best, and who might have frequent opportunities of associating with ruffians or pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them." In this, as in many other instances of legal presumption, we may detect the application of the maxim, "Multa in jure communi contra rationem disputandi, pro communi utilitate introducta sunt" (b).

() Nugent v. Smith, 1 C. P. D. 423. (u) Story, Bailm. § 489, 5th ed. (x) Coggs v. Bernard, 2 L. Raym. 909, 918, per Holt, C. J.

(y) See Carriers Act, 11 Geo. 4 & 1 Will. 4, c. 68; Railway and Canal Traffic Act, 17 & 18 Vict. c. 31.

(z) Story, Bailm. §§ 472, 473, 5th ed.; Armistead v. Wilde, 17 Q. B. 261; Cashill v. Wright, 6 E. & B. 891. As to effect of 26 & 27 Vict. c. 41, see Spice v. Bacon, 2 Q. B. D. 463 — C. A.

(a) Jones on Bailments, 95, 96, 4th ed. (b) Co. Litt. 70 b.

2 Read v. Amidon, 41 Vt. 15, 18; Laird v. Eichold, 10 Ind. 212; Kelsey v. Berry, 42 Ill. 469, acc. The law generally prevailing in America, however, is to the effect that an innholder is absolutely liable for the loss of goods deposited by a guest in his house, provided such loss do not arise from the plaintiff's negligence, the act of God, or by means of the public enemy. Pinkerton v. Woodward, 33 Cal. 557; Hulett v. Swift, 33 N. Y. 571; Wilkins v. Earle, 44 N. Y. 172; Norcross v. Norcross, 53 Me. 163; Sibley v. Aldrich, 33 N. H. 553. See also Fuller v. Coats, 18 Oh. St. 343, 350.

SECTION III.

PRESUMPTIONS AND PRESUMPTIVE EVIDENCE IN CRIMINAL LAW.

§ 431. THE subject of presumptions and presumptive evidence in criminal law requires a separate consideration. In the present section we accordingly propose to treat,

1. Presumptions in criminal law.

2. Presumptive proof in criminal cases.

3. The principal forms of inculpatory presumptive evidence in criminal proceedings.

§ 432. THE introduction of legal presumptions into criminal jurisprudence presents a question of some difficulty. Although no person ought to be condemned in a court of justice, unless the tribunal really and actually believes in his guilt, yet even here the principle of legal presumption may, with due discretion, be advantageously resorted to for the protection alike of the community and the accused. And accordingly we find, that not only are the general presumptions of law recognized in criminal jurisprudence, but that it has peculiar presumptions of its own. The universal presumption of acquaintance with the penal law (c), and the maxim," Res judicata pro veritate accipitur" (d), exist there in full force. Ignorance of

(c) Introd. part 2, § 45, and supra, sect. 2, subsect. 1.

(d) Introd. part 2, § 44, and infra, ch. 9.

any law which has been duly promulgated cannot be pleaded in a criminal court; and a person who has once been tried for an offence, under circumstances where his safety was in jeopardy by the proceedings, cannot, if acquitted, be tried again for that offence, whatever new arguments to prove his guilt may be discovered, or whatever fresh proofs of it may come to light.

§ 433. A criminal intent is often presumed from acts which, morally speaking, are susceptible of but one interpretation. When, for instance, a party is proved to have laid poison for another, or to have deliberately struck at him with a deadly weapon, or to have knowingly discharged loaded fire-arms at him, it would be absurd to require the prosecutor to show that he intended death or bodily harm to that person. So, where a baker delivered adulterated bread for the use of a public asylum, it was held unnecessary to allege that he intended it to be eaten, as the law would imply that from the delivery (e). The setting fire to a building is evidence of an intent to injure the owner, although no motive for the act be shown (f); and the uttering a forged document is conclusive of an intent to defraud the person who would naturally be affected by it, an inference which is not removed merely by that party swearing that he believes the accused had no such intention (g). So, where a party deliberately publishes defamatory matter, malice will be presumed (h). In such cases res ipsa in se dolum habet (î), — the facts speak for themselves. Presumptions of this kind are so conformable to reason, that moral con

(e) R. v. Dixon, 3 Mau. & S. 11. (f) R. v. Farrington, R. & R. 207. (7) R. v. Sheppard, R. & R. 169. See also R. v. Mazagora, id. 291; R. v. Nash, 2 Den. C. C. 493. By 24 & 25 Vict. c. 98, s. 44, it is enacted, that "it shall be sufficient, in any indictment for forging, altering, uttering, offering, disposing of, or putting off any instrument whatsoever, where it shall be necessary to allege an intent to defraud, to allege that the party

1 Conner v. State, 4 Yerg. 137; Com. v. Drum, 58 Pa. St. 9; State v. Smith, 2 Strob. 77; Riggs v. State, 30 Miss. 635; Murphy v. People, 37 Ill. 447; State v. Bertrand, 3 Oreg., 61 acc. But see U. S. v. McClare, 17 Bost. Law Rep. 439; Kingen v. State, 45 Ind. 518, contra. In many instances however to say that intent is presumed is simply another mode of saying that when crime is proven the intent with which it is committed becomes immaterial with regard to the question of liability. Even in cases where evidence is entirely circumstantial, motive and intent are not necessarily to be directly proved; though both, doubtless, are strong circumstances for the consideration of the tribunal.

viction and legal intendment are here in perfect harmony. But the safety of society, joined to the difficulty of proving psychological facts (), renders imperatively necessary a presumption which may seem severe; viz. that which casts on the accused the onus of justifying or explaining certain acts which are prima facie illegal. It is partly on this principle that sanity is presumed in preference to innocence (1), even in the case of suicide (m). So, a party who is proved to have killed another is presumed in the first instance to have done it maliciously, or at least unjustifiably; and consequently all circumstances of justification or extenuation are to be made out by the accused, unless they appear from the evidence adduced against him (n).3

§ 434. A criminal intent is sometimes transferred by law from one act to another, the maxim being, "In criminalibus sufficit generalis malitia intentionis cum facto paris gradus " (o). A., maliciously discharging a gun at B., kills C.; A. is guilty of murder, for the malice is transferred from B. to C. (p). And the same holds where poison laid by A. for B. is accidentally taken by C. (q). It is on

(k) “Comen erudition est que l'entent d'un home ne serra trie, car le Diable n'ad conusance de l'entent de home." Per Brian, C. J., P. 17 Edw. IV. 2 A. pl. 2. See however that case.

(7) 2 Ev. Poth. 332; Answer of the Judges to the House of Lords, 8 Scott, N. R. 595, 601; 1 Car. & K. 134, 135. See supra, sect. 1, subsect. 3, § 332.

(m) The laws of some countries, it is believed, have established it as a præsumptio juris et de jure, that all suicides

are insane. In the United States the decisions are unanimously to the effect that suicide not only raises no presumption of insanity, but that one taking his own life is presumed to do so in his right mind. Morgan's Best, p. 727.

(n) Fost. Cr. Law, 255, 290.

(0) Bacon, Max. Law, Reg. 15. See also 3 Inst. 51.

(p) 1 East, P. C. 230; R. v. Smith, 1 Dearsl. C. C. 559.

(q) Plowd. 474; 1 East, P. C. 230.

2 The "presumption of innocence" has no evidentiary force, being founded upon no presumption of fact. It is in most instances a paraphrase for the rules regulating the "burden of proof" in criminal, and sometimes in civil (Steph. Dig. Law Ev. art. 94) cases. Conf. § 296, n. 1, B. VII. (a), supra. On the other hand, the presumption of sanity has the evidentiary force of the presumption of fact upon which it is founded. Conf. § 296, n. 1, B. III. (b), (c), supra. In all collateral cases, therefore, where the meaning of the presumption of innocence is not that a certain quantum of evidence is required, it means nothing. Sanity is, in such cases, said to be presumed in preference to it. Gay v. Union, &c. Ins. Co., Blatch. 142. See also Cooper v. Mass. &c. Ins. Co., 102 Mass. 227; Van Zandt v. Ins. Co., 55 N. Y. 169; Eastbrook v. Union Ins. Co., 54 Me. 224.

8 See § 296, n. 1, B. IV., supra. State v. Harris, 63 N. C. 1; Murphy v. People, 37 Ill. 447; State v. Bertrand, Oregon, 61, acc. But see Com. v. Hawkins, 3 Gray, 463; U. S. v. Armstrong, 2 Curtis, C. Ct. 446.

1 Whar. Hom. §§ 42-48; State v. Benton, 2 Dev. & Bat. 196; Angell v. State, 36 Tex. 542; State v. Smith, 2 Strob. 77, acc. Bratton v. State, 10 Humph. 103, contra.