suppose it were to transpire in the course of the trial, that the article stolen was so heavy that twenty men could not move it, here would be a fact absolutely inconsistent with the hypothesis of guilt, and clearly indicating mistake or mendacity somewhere. And not only may the hypothesis of guilt be overturned by facts absolutely falsifying it, but due attention should be paid to all contrary hypotheses and infirmative circumstances.

§ 452. WE now proceed to examine more in detail the principal forms of inculpatory presumptive evidence in criminal cases. They are reducible to these general heads (g):

First. Real evidence, or evidence from things.

Secondly. Evidence derived from the antecedent conduct or position of the accused. Under this head come motives to commit the offence; means and opportunities of committing it; preparations for the commission of, and previous attempts to commit it; declarations of intention, and threats to commit it.

(g) The author deems it common justice to acknowledge the large use he has made, throughout this subsection, of the 5th Book of Bentham's Treatise on Judicial Evidence, where he treats of circumstantial evidence. In that part of his

work, we have the full benefit of the strong sense and observant mind of the writer, comparatively free from the peculiar notions and erroneous views which pervade and disfigure so much of the rest.

Thirdly. Evidence derived from the subsequent conduct of the accused. To this class belong sudden change of life or circumstances; silence when accused; false or evasive statements made by the accused; suppression or eloignment of evidence; forgery of exculpatory evidence; evasion of justice, by flight or otherwise; tampering with officers of justice; and fear, indicated either by passive deportment or a desire for secrecy.

Fourthly. Confessorial evidence.

Each of these has of course its peculiar probative force and its infirmative hypotheses. The subject of real evidence has been treated in a former part of this work (h); the suppression and eloignment of evidence, and the forgery of exculpatory evidence, have been mentioned under the head of presumptions in disfavor of a spoliator (2); while silence under accusation, and false or evasive statements, as likewise confessorial evidence, will be reserved for the title of self-regarding evidence (k), to which they most properly belong. The others will now be treated in their order.

§ 453. I. MOTIVES TO COMMIT THE OFFENCE, AND MEANS AND OPPORTUNITIES OF COMMITTING IT. A mischievous event being supposed to have been produced, and Titius being suspected of having been concerned in the production of it, "What could have been his motive?" is a question, the pertinency of which will never be matter of dispute (1). The mere fact, however, of a party being so situated that an advantage would accrue to him from the commission of a crime, amounts to nothing, or next to nothing, as a proof of his having committed it. Almost every child has something to gain by the death of his parents, but rarely on the death of a parent is parricide even suspected (m). Still, under certain circumstances, the existence of a motive becomes an important element in a chain of presumptive proof; as where a person accused of having set fire to his house has previously insured it to an amount exceeding its value; or where a man, accused of the murder of his wife, has previously formed an adulterous connection with another woman, &c. On the other hand, the absence of any apparent motive is always a fact in favor of the accused; although the existence of motives invisible to all except the person who is influenced by them must not be overlooked. The infirmative hypotheses affecting motives to

(h) Bk. 2, pt. 2.

(i) Supra, sect. 2, subsect. 8. (k) Infra, ch. 7.

(7) 3 Benth. Jud. Ev. 183.
(m) Id. 187, 188.

commit an offence are applicable, also, to means and opportunities of committing it (n); and some unhappy cases show the danger of placing undue reliance on them. A female servant was charged with having murdered her mistress. No persons were in the house but the deceased and the prisoner, and the doors and windows were closed and secured as usual. The prisoner was condemned and executed, chiefly on the presumption that no one else could have had access to the house; but it afterwards appeared, by the confession of one of the real murderers, that they had gained admittance into the house, which was situated in a narrow street, by means of a board thrust across the street from an upper window of an opposite house, to an upper window of that in which the deceased lived; and that, having committed the murder, they retreated the same way, leaving no traces behind them (0).

§ 454. II. PREPARATIONS FOR THE COMMISSION OF AN OFFENCE, AND PREVIOUS ATTEMPTS TO COMMIT IT. - Under the head of preparations for the commission of an offence may be ranked the purchasing, collecting, or fashioning instruments of mischief; repairing to the spot destined to be the scene of it; acts done with the view of giving birth to productive or facilitating causes, or of removing obstructions to its execution, or averting suspicion from the criminal (p). Besides preparations of this nature, which are immediately pointed to the accomplishment of the principal design, there are others of a secondary nature, for preventing discovery or averting suspicion of the former (q). In addition to these preparations of the second order may be imagined preparations of the third and fourth orders, and so on (r).

§ 455. Of all species of preparations, those which are resorted to for the purpose of averting suspicion from the criminal require the most particular notice. A remarkable instance is presented in the case of Richard Patch, who was convicted and executed for the murder of his patron and friend, Isaac Blight. The prisoner and deceased lived in the same house, and the latter, while sitting one evening in his parlor, was shot by a pistol from an unseen hand. A strong and well-connected chain of circumstantial evidence fixed Patch as the murderer; in the course of which it appeared that, a few evenings

(n) 3 Benth. Jud. Ev. 189.

(0) Stark. Ev. 865, 4th ed. For another instance, see Burrill, Circ. Evid. 371.

(p) 3 Benth. Jud. Ev. 63, 64.
(q) Id. 64.

(r) Id. 65.

before that on which the murder was committed, and while the deceased was away from home, a loaded gun or pistol had been discharged into the room in which the family when at home usually passed their evenings. This shot the prisoner represented at the time as having been fired at him, but there was every reason to believe that it must have been fired by himself, in order to induce the deceased and his servants to suppose that assassins were prowling about the building (s). Murderers are frequently found busy, for some time previous to their crime, in spreading rumors that from illhealth, imprudence, or other cause, the existence of their victim is likely to be short (t); others prophesy impending mischief to him in more defined terms; and those in the lower walks of life throw out dark and mysterious hints as to his approaching death (u). The object of all this is to prepare the minds of his friends and neighbors for the event, and, by diminishing surprise, to prevent investigation into its cause. Previous attempts to commit an offence are closely allied to preparations for the commission of it, and only differ in being carried one step farther and nearer to the criminal act, of which, however, like the former, they fall short (x).

§ 456. The probative force, both of preparations and previous attempts, manifestly rests on the presumption, that an intention to commit the individual offence was formed in the mind of the accused, which persisted until power and opportunity were found to carry it into execution. But, however strong this presumption may be when the corpus delicti has been proved, it must be taken in connection with the following infirmative hypotheses. 1°. The intention of the accused in doing the suspicious act is a psychological question, and may be mistaken. His intention may either have been altogether innocent, or, if criminal, directed towards a different object (y). 1. Thus a person may be poisoned, and another, innocent of his death, may, a short time before, have purchased a quantity of the same poison, 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,

(8) Trial of Richard Patch, for the murder of Isaac Blight, London, 1806. For another instance, see R. v. Courvoisier, Wills, Circ. Ev. 241, 3d ed.

(t) 3 Benth. Jud. Ev. 65, 66; Wills, Circ. Ev. 79, 3d ed.

(u) Stark. Ev. 850, 4th ed.
(x) 3 Benth. Jud. Ev. 69.
(y) Id. 72.

without any criminal intention;- prophecies of death are much more frequently the offspring of superstition than of premeditated assassination. 2. As an example of criminal intention with a different object:- murder by fire-arms is not uncommon; and a person innocent of a 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.; and before the meeting took place, the weapon might be purloined or stolen by C., in order to assassinate D.

§ 457. 2°. But even when preparations have been made with the intention of committing, or previous attempts have been made to commit, the identical offence charged, two things remain to be considered (2): 1. The intention may have been changed or abandoned, before execution. Until a deed is done, there is always a locus pœnitentiæ; and the possibility of a like criminal design having been harbored and carried into execution by other persons must not be overlooked. 2. The intention to commit the crime may have persisted throughout, but the criminal may have been anticipated by others. A remarkable instance of this is presented by the celebrated case of Jonathan Bradford. This man was an innkeeper. In the middle of the night, a guest in his house was found murdered in bed, his host standing over the bed with a dark lantern in one hand and a knife in the other. The knife and the hand which held it were both bloody, and Bradford on being thus discovered exhibited symptoms of the greatest terror. He was convicted and executed for this murder; but it afterwards appeared that it had been committed by another person, immediately before Bradford came into the room of the deceased. He had, however, entered the room with a similar design; the symptoms attributed to consciousness of guilt were partly attributable to surprise at finding his purpose anticipated: while the blood on his hand and on the knife was occasioned by his having, when turning back the bed-clothes to see if the deceased were really dead, dropped the knife on the bleeding body (a).

§ 458. III. DECLARATIONS OF INTENTION TO COMMIT AN OFFENCE, AND THREATS TO COMMIT IT. - Next to preparations and attempts follow declarations of intention, and threats to commit the offence which is found perpetrated. Most of the infirmative hypotheses

(z) 3 Benth. Jud. Ev. 74.

(a) Theory of Pres. Proof, Append., Case 7.