William Wills.

An essay on the principles of circumstantial evidence : illustrated by numerous cases online

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' Law ^"' - 3 Of

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AN ESSAY

ON

THE PRINCIPLES

OF

CIRCUMSTANTIAL EVIDENCE

XUusttattti i)^ ISTumcrous (tantn

BY THE LATE

WILLIAM WILLS, Esq.

JUSTICE OF THE PEACE

EDITED BY HIS SON

SIR ALFRED WILLS, Knt.

ONE OF HIS MAJESTY'S JUDGES OF THE HIGH COURT OF JUSTICE

FIFTH ENGLISH EDITION (1902)



WITH AMERICAN NOTES

By GEORGE E. BEERS

OF THE NEW HAVEN BAR; OF THE FACULTY OF THE YALE LAW SCHOOL
AND

ARTHUR L. CORBIN

OF THE FACULTY OF THE YALE LAW SCHOOL



BOSTON, MASS.
THE BOSTON BOOK COMPANY

Eafaj ^ublisfjcrs
1905



Copyright, 1905
By The Boston Book Company



MJ U"^^^^



\'^ nc;,



iM



PREFATORY NOTE.

In the present edition tlie English text is pre-
served intact, the American notes following at the
end of each chapter. While the primary object has
been to furnish a working tool for the profession, it
is the hope of the American editor that it may be
said of the notes, as it has so long been said of the

"^ text, that much is embraced in them of vital human

-^ interest to both lawyer and layman.

While the work was originally undertaken by
Mr. Beers, he was prevented by professional en-
gagements from giving that continuity of attention
which labor of this character demands. He desires
to express his obligation to Mr. Arthur L. Corbin,
assistant professor in the Yale Law School, for his
effective assistance in the undertakino:. He is also
indebted for much aid and many kindnesses to Mr.
Charles F. Chamberlayne, who has placed a large
amount of material at his disposal and has ever
been ready with suggestions and encouragement.

G. E. B.

42 Church St.,

New Haven, Conn.,
June 22, 1905



o^



PREFACE

TO THE FIFTH EDITION.



This work of my father's having met with
a favourable reception from the legal pro-
fession as well when originally published
in 1838 as upon the publication of later
editions in 1850 and 1862, I have thought
that a further edition, illustrated by later
cases, many of which have come under my
own personal observation, might fairly be
attempted.

Some modifications of the original text have
necessarily been introduced. The nature of
my professional life has brought me into
closer touch with many of the questions
discussed than could be the case with my
father, who was for many years a solicitor
in large practice at Birmingham. The text
has been most carefully revised and recon-
sidered throughout, but it is no more than
is due to him to say that in substantial



VI PREFACE.

matters I have foiiiul very little to alter. I
did at one time contemplate indicating the
alterations by brackets, but I found the plan
jjractically impossible; and I am quite sure
that my father would not have objected to
the amalgamation of our respective parts in
the joint work. To him must always belong
the principal share of any credit this volume
may deserve.

The additional matter, therefore, which will
be found in this edition consists largely of
illustrations of the principles laid down in
the text drawn from cases of a later date
than that of the last edition. In some of
them I have been engaged as counsel, some
I have tried as a judge, some I have gathered
from the relation of friends upon whom I
could depend. The rest have been found for
me in the Old Bailey Sessions Papers, in the
fdes .of The Times or other contemporary
records. For the use made of them I am
responsible.

From the section at the end of the work
containing details of some remarkable cases
illustrative of the proving force of circum-
stantial evidence, one case [Reg. v. Smithy



PREFACE. vii

VaruJiam, and Timms) has been omitted
which upon consideration did not appear to
be of sufficient interest to justify its retention.
On the other hand, three new cases will be
found which are perhaps as remarkable in
this connection as any which have ever been
tried : the Matlock PVill case, in which I was
counsel, the case of Howe v. Bur char dt and
anof/ier, which I tried, and the YarmoMth
Mnrder case. The Matlock IVill case and
Howe V. Burchardt are distinguished by one
very curious circumstance which I do not
remember to have seen or heard of in any
other instance. In each, the question in the
cause was whether certain documents were
forgeries. In each, it ultimately turned out
that a single stroke of the pen afforded an
absolutely infallible test of the genuineness
of the documents in question. In each case,
the indication had escaped the observation of
the experts, and I was fortunate enough to
discover it.

In the present edition both quotations
and references have been carefully revised.

The original work met with much recog-
nition abroad as well as at home, and it was



Vlll PREFACE.



a source of natural gratification to my father
that it had brought him into personal relations
with some very eminent juridical writers —
amongst others, with Dr. Mittermaier in
Germany, and with Professor Greenlcaf in
the United States, from both of whom I
found interesting letters amongst my father's
papers after his death.

In the United States an edition was
published during the author's lifetime, and
another, if not more than one, after his death.
I possess a reprint of the edition of 1862,
published in Philadelphia in 1881, which is
styled " Sixth American from the Fourth
London Edition." Literary property in
books by English authors had at that time
no recognition in the United States. It is
still recognized only on terms too onerous
to make it worth while, with a work of
limited circulation, to claim the protection
of American law. Arrangements have been
made, however, with a Boston firm, which,
if they give no appreciable pecuniary advan-
tage to myself as the owner of the English
copyright, at least secure that an edition shall
be published in the United States identical in
matter v./ith the English edition.



PREFACE. ix

There is some reason for a wish that this
should be possible. Amongst the American
admirers of the edition published in 1862 —
if admiration may be fairly inferred from
wholesale appropriation — is a gentleman
who published in 1896, at Philadelphia, a
volume entitled '' A Treatise on the Law
of Circumstantial Evidence, illustrated by
numerous cases, by Arthur P. Will, of the
Chicago Bar." Mr. Will's book contains
a considerable amount of original matter — ■
perhaps about half of the volume is his own
— and is especially rich in American cases.
In a short preface Mr. Will says :

** The writer, in presenting to the profession a
volume thoroughly American, begs to acknowledge
his indebtedness to the essay of Mr. William Wills,
the last edition of which was prepared by his son,
Judge Alfred Wills. It has been thought wisest
to follow Mr. W^ills's plan in its main divisions,
and to preserve much that is valuable in his
scientific discussion concerning the phenomena
on which the rules of circumstantial evidence
are based."

The edition of 1862 which is here referred
to contains 315 pages. Of these, six con-
stitute a section on "Statutory Presump-
tions," which deals exclusively with English



X PREFACE.

statute law, and therefore was not likely to
be useriil to Mr. Will. Of the remaining
309 jxi^es, Mr. Will has appropriated all
but an insignificant fraction (a). The very
divisions are in most cases preserved, the
only difference being that they are often
called "chapters" instead of sections. The
titles indicating the subject-matter of the
divisions have rarely been altered. Clerical
and accidental errors have remained un-
corrected, except in the account of Pahiiers
case. In the edition of 1862 there was a
confusion in the dates, one Monday being
described as both the i8th and the 20th
November, and one or two other dates being
wrong. Mr. Will has made corrections by
which they accord with one another. Unfor-
tunately, the corrections are not themselves
correct. Mr. Will did not consult the
almanac of 1855. If there is any more
trace of original work in the copying (other
than a few^ purely verbal alterations) I have
failed to find it out.

{a) Desiring to be accurate I have marked in the margins
of a copy of the edition of 1862 the pages of Mr. Will's
book, where the text of my father's work will be found,
and the extent of the respective passages appropriated.
Only 365 lines remain unmarked.



PREFACE. XI

I have only to add that should Mr. Will
be disposed to make a similar use of the
present edition, I hope he will remember
that this preface is as much at his disposal
as any other part of the book.

I am greatly indebted to Dr. Dupre,
F.R.S., so well knowm in connection with
medical jurisprudence, for his kindness in
revising the notice at pp. 144 — 146 of the
acknowledged methods of detecting blood-
stains, and of the extent to which discrimina-
tion between different kinds of blood has
hitherto been considered possible. A note at
the end of the volume by my son. Dr. Wills,
contains an interesting summary of the latest
discoveries of science relating to the examina-
tion of bloodstains and their identification with
the blood of different animals — an achieve-
ment which has up till very lately been
deemed impossible. The methods indicated
have certainly not as yet been employed in
judicial investigations in this country, and
whether they are really to be depended upon
in practice remains to be seen. The sub-
ject is a very important one, and should the
processes indicated prove to be reliable, a
source of difficulty in some cases of murder



j,jj PREFACE.

will be removed, and an addition made to
the rcs(nirccs of science which will at times
be of the i^reatest assistance, both in the
detection of crime and in the protection of
innocence.

I have in conclusion to express my
obligations to my nephew, Mr. Wm. Wills,
of the Midland Circuit, from whom I
received the greatest assistance in arrang-
ing the plan of the new edition and the
selection of additional matter, and to Mr.
Thornton Lawes, of the Western Circuit, who
has been indefatigable in helping me, not
merely in abstracting cases and bringing
references to the statute law and to deci-
sions up to date, but also in securing
uniformity in' methods of citation and in the
necessary though tedious work of correcting
the proofs. The excellent index is also his.
I have also to thank Mr. H. O. Buckle for
a prolonged and careful search through the
files of The Times for many years back.
It is interesting to be able to add that after
carrying his rifle as a member of the Inns of
Court Volunteer Corps through the earlier
phases of the South African war to Pretoria,
he has been appointed to a judicial office at



PREFACE. Xlll

Johannesburg, where I am sure he will do
good service to the Colony in administering
justice as he did to his country in helping
to fight her battles.

The Lord Chief Justice of England has
kindly revised for me the account of a great
trial over which he presided, Rex v. Bennett,
generally known as the Yarmouth Mttrder
case.

ALFRED WILLS.

Royal Courts of Justicb,
July, 190a.



EXTRACT FROM THE PREFACE

TO THE ORIGINAL EDITION OF 1838.



It has not always been practicable to support the
statement of cases by reference to books of recog-
nized authority, or of an equal degree of credit ;
but discrimination has uniformly been exercised in
the adoption of such statements : and they have
generally been verified by comparison with con-
temporaneous and independent accounts. A like
discretion has been exercised in the rejection of
some generally received cases of circumstantial
evidence, the authenticity of which does not appear
to be sufficiently established.



W. W.



Edgbaston, near BirminghaMj
February, 1838



THE PRINCIPLES

OF

CIRCUMSTANTIAL EVIDENCE.



CHAPTER I.

EVIDENCE IN GENERAL,



Section r.

THE NATURE OF EVIDENCE.

It will greatly conduce to the formation of clear
and correct notions on the subject of Circumstantial
Evidence, to take a brief introductory view of the
nature of evidence in general, of some of its various
kinds, and of the nature of the assurance which each
of them is calculated to produce.

The great object of all intellectual research is the
discovery of truth, which is either objective and
ABSOLUTE, in which sense it is synonymous with
being or existence, or subjective and relative, in
which acceptation it expresses the conformity of our
ideas and mental convictions with the nature and
reality of events and things.

C.E. B



2 EVIDENCE IN GENERAL.

The Junc.MKN r is tliat faculty of the mind wliich
is principally concerned in the investigation and
acquisition of truth ; and its exercise is tlie intel-
lectual act by which one thing is perceived and
affirmed of another, or the reverse.

Every conclusion of the judgment, whatever may
be its subject, is the result of evidence, — a word
which (derived from two Latin words signifying to
see out, to trace out by sight), by a natural transition
is applied to denote the means by which any alleged
matter of fact, the truth of which is submitted to
investigation, is established or disproved.

The term proof is often confounded with evidence,
and applied to denote the viediJini of proof, whereas
in strictness it marks merely the effect of evidence.
When the result of evidence is undoubting assent to
the certainty of the event or proposition which is the
subject-matter of inquiry, such event or proposition
is said to be proved; and, according to the nature of
the evidence on which such conclusion is grounded,
it is either knoivn or believed to be true. Our judg-
ments, then, are the consequence of proof in its
secondary sense ; and proof is the final result of that
quantity of appropriate evidence which produces
assurance and certainty ; evidence therefore differs
from proof, as cause from effect.

It is unnecessary, in relation to the subject of this
section, to mention the inferior degrees of assurance,
which will be more appropriately noticed in another
place.



the various kinds of evidence. 3

Section 2.

the various kinds of evidence.

Truth is either abstract and necessary, or probable
and contingent ; and each of these kinds of truth is
discoverable by appropriate, but necessarily different
kinds of evidence. This classification, however, is
not founded in any essential dift'erence in the nature
of truths themselves, and has reference merely to
our imperfect capacity and ability of perceiving"
them ; since to an Infinite Intelligence nothing
which is the object of knowledge can be probable,
and everything must be perceived absolutely and
really as it is {a).

In many instances the correspondence of our
ideas with realities is perceived instantaneously,
and without any conscious intermediate process of
reasoning, in which cases the judgment is said to be
INTUITIVE, from a word signifying to look at ; and
the evidence on which it is founded is also denomi-
nated intuitive ; though it would perhaps be more
correct to use that word as descriptive of the nature
of the mental operation, rather than of the kind of
evidence on which it rests.

Intuition is the foundation of demonstration,
which consists of a series of steps severally re-
solvable into some intuitive truth. Demonstration
concerns only necessary and immutable truth ; and
its first principles are definitions, which exclude all

{a) Butler's Analogy, Introduction.

B 2



4 EVIDENCE IN GENERAL.

ambio^uities of language, and lead to infallibly
certain conclusions (d).

But the subjects which admit of the certainty of
intuition and demonstration are comparatively few.
Innumerable truths, the knowledge of which is
indispensable to happiness, if not to existence,
depend upon evidence of a totally different kind,
and admit of no other guide than our own observation
and experience, or the testimony of our fellow-men.
Such truths involve questions of fact or of actual
existence, which, as they are not of a necessary nature,
may or may not have existed, without involving any
contradiction, and as to which our reasonings and
deductions may be erroneous. Such evidence is
called MORAL evidence ; probably because its prin-
cipal application is to suljects directly or remotely
connected with moral conduct and relations.

Of the various kinds of moral evidence, that of
TESTIMONY is the most comprehensive and important
in its relation to human concerns ; so extensive in
its application, that to enter on the subject of testi-
mony at large, would be to treat of the conduct of
the understanding in relation to the greater portion
of human affairs. The design of this essay is
limited to the consideration of some of the principal
rules and doctrines peculiar to circumstantial evi-
dence as applicable to criminal jurisprudence, — one
of the leading heads under which philosophical
and juridical writers consider the subject of

{b) Stewart's Elements of the Philosophy of the Human Mind,
vol. ii. ch. ii. s. 3.



NATURE OF THE ASSURANCE PRODUCED. 5

testimonial evidence. Nor is it proposed to treat,
except cursorily and incidentally, of documentary
circumstantial evidence ; a subject which, however
interesting in itself, is applicable principally to dis-
cussions upon the genuineness of historical and
other writings ; and such cases of this description as
occasionally happen in the concerns of common life,
are referable to general principles, which equally
apply to circumstantial evidence of every kind.

Considering how many of our most momentous
determinations are grounded upon circumstantial
evidence, and how important it is that they should
be correctly formed, the subject is one of deep
interest and moment. It would be most erroneous
to conclude that, because it is illustrated principally
by forensic occurrences, it especially concerns the
business or the members of a particular profession.
Such events are amoncrst the most interestino- ocCur-
rences of social life ; the subject relates to an intel-
lectual process, called into exercise in almost every
branch of human speculation and research.

Section 3.

nature of the assurance produced by different
kinds of evidence.

In investigations of every kind it is essential that
a correct estimate be made, of the kind and degree
of assurance of which the subject admits.

Since the evidence of demonstration relates to



6 EVIDENCE IN GENERAL.

necessary trulhs (as to which the supposition of the
contrar)' involves not merely what is not and cannot
be true, but what is also absurd), and since moral
EVIDKNCK is the basis of contingent or probable truth
merel)-, it follows that the convictions which these
various kinds of evidence are calculated to produce
must be of very different natures. In the former case
ABSOLUTE CERTITUDE is the result ; to which moral
CERTAINTY, the highest degree of assurance of which
truths of the latter class admit, is necessarily inferior.

Unlike the assent, which is the inevitable result
of mathematical reasoning, belief in the truth of
events may be of various degrees, from moral cer-
tainty, the highest, to that of mere probability, the
lowest ; between which extremes there are innumer-
able degrees and shades of conviction, which the
latency of mental operations and the unavoidable
imperfections of language render it impossible to
define or express. In subjects of moral science, the
want of appropriate words, and the occasional appli-
cation of the same word to denote different thinors,
have given occasion to much obscurity and confusion
both of idea and expression ; of which a remarkable
exemplification is presented in the words probability
and certainty.

The general meaning of the word probability is
likeness or similarity to some other truth, event, or
thing (r). Sometimes the w^ord probability is used

(c) Butler's Analogy, Introduction ; Locke's Essay concerning
Human Understanding, b. iv. ch. xv. ; Cic. De Inventione Rhetorica,
lib. I. c. 47.



NATURE OF THE ASSURANCE PRODUCED. 7

to express the preponderance of the evidence or
arguments, in favour of the existence of a particular
event or proposition, or adverse to it ; and some-
times as assertive of the abstract and intrinsic
credibiHty of a fact or event (<'/).

In its former sense the word probability is applied
as well to certain mathematical subjects, as to ques-
tions dependent upon moral evidence, and expresses
the ratio of the favourable cases to all the possible
cases by which an event may happen or fail ; and it
is represented by a fraction, the numerator of which
is the sum of the favourable cases, and the denomi-
nator the whole number of possible cases, certainty
being represented by unity. If the number of
chances for the happening of the event be o, and
the event be consequently impossible, the expres-
sion for that chance will be o ; and so, if the
number of chances of the failure of the event be
o, and the event be therefore certain, the expres-
sion for the chance of failure will also be o.
If m + n be the whole number of cases, vi the
favourable and ;/ the unfavourable ones, the proba-
bility of the event is i?i : vi + n. It follows, that if
there be an equality of chances for the happening or
the failing of an event, the fraction expressive of the
probability is ^, the mean between certainty and
impossibility [c) ; and probability therefore includes
the whole rano^e between those extremes.

{(f) The latter sense, however, scarcely differs in character from the
former ; inasmuch as its real meaning is that the event or fact in
question is consonant with other accepted facts.

{e) Kirwan's Logic, part iii. ch. vii. s. I.



8 EVIDENCE IN GENERAL.

The terms certainty and probability are how-
ever essentially different in meaninrr as applied to
moral evidence, from what they import in a mathe-
matical sense ; inasmuch as the elements of moral
certainty and moral probability, notwithstanding the
ingenious arguments which have been urged to the
contrary, appear to be incapable of numerical expres-
sion, and because it is not possible to reduce to a



Online LibraryWilliam WillsAn essay on the principles of circumstantial evidence : illustrated by numerous cases → online text (page 1 of 52)