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Seymour D. (Seymour Dwight) Thompson.

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Guilt. — The caution which is usually given in respect of circum-
stantial evidence is, that the circumstances which the evidence
tends to show must, in order to warrant a conviction, be inexpli-
cable, except upon the hypothesis of guilt, and must be consist-
ent with each other. Such an instruction, it is well ruled, is not
open to the objection that it is a charge upon the " weight of
evidence." '^ The essential element in such an instruction seems
to be, that the circumstances must be such as to exclude every
other reasonable hypothesis, except that of the defendant's
guilt." ^ This principle has probably never been better stated

1 Mickle V. State, 27 Ala. 20, 21, 22, 2 nuut r. State, 7 Tex. App. 213.

opinioa by Goklthwaite, J. This ^ Turner v. State, 63 Teun. (4 Lea)

doctrine was re-affirmed in Faulk v. 200.
State, 52 Ala. 410.



18G0



CHARGING THE JURY.



[2 Thomp. Ti-.,



than in the charge to the jury ))y Chief Justice Shaw in Webster's
case,which has become the usual model. ^ " The proof," saysPro-
fessor Greenleaf , "ought to be not only consistent with the prison-
er'sguilt, butinconsistent with every other rational conclusion." ^
The following rule from the text of Starkie has been often ap-
proved: " The force of circumstantial evidence being exclusive
in its nature, and the mere coincidence of the hypothesis with
the circumstances being, in the abstract, insufficient unless they
exclude every other supposition, it is essential to inquire with
the most scrupulous attention what other hypothesis there may be
which may agree wholly or partially with the facts in evidence." ^
One court has said: "We can conceive of no hypothesis by
which, in the order of natural causes and effects, the facts proved
can be explained consistently "vvith the innocence of the jirisouer;
and this is the true test of circumstantial evidence. It excludes
all reasonable doubt of the prisoner's guilt." * But this princi-
l)le applies only to proof of the act^ and not to proof of tliQ intent.
Accordingly, in a case of burglary, an instruction which contained



i Commouwealth v. AVebstor, 5 Cush.
(Mass.) 296.

2 1 Greenl. Ev., § U. This rule
was approved and adopted iu People
V. Schuler, 28 Cal. 400, and iu People
V. Strong, 30 Cal. 151; People v. Da-
vis, 1 Pac. Rep. 890; s. c. G4 Cal. 4-tO;
People V. Crouin, 34 Cal. 191; State v.
Nelson, 11 Nev. 334, 440; State v.
Jones, 11 Pac. Rep. 317; s. c. 19 Nev.
365; State v. Shelledy, 8 la. 477, 498;
Cora. V. Harraau, 4 Pa. St. 269,274;
State V. "Willingham, 33 La. Ann. 537;
State V. Vansant, 80 Mo. G7,72; Stout
V. State, 90 lud. 1, 12; Blnus v. State,
60 lud. 428, 435; Coue v. State,
13 Tex. App. 483, 486; Algheri v.
State, 25 Miss. 584; Mose v. State, 36
Ala. 212, 221, 231; United States v.
Jackson, 29 Fed. Rep. 503 ; s. c. 9 Crim.
Law Mag. 325, charge by Spccr, J. ;
State V. Glass; 5 Ore. 73, 81 ; People v.
Strong, 30 Cal. 151, 154; James v.



State, 45 Miss. 572, 575; People v.
Dick., 32 Cal. 213, 215. The following
instruction was held not a correct
api)licatiou of this i)riuciple, aud
properly refused : " In the application
of circumstantial evidence, the utmost
cautiou should be used; it is always
iusufficient to convict or warrant a
verdict, when, assuming all to be
proved which the evidence tends to
prove, some other hypothesis may
still be true." The criticism of this
iustructiuu was tluit it was *' ol)scure,
if not witliout any delinite meaning
whatever." Peojile v. Schuler, 28
Cal. 490, 495. It seems, uotwith-
stauding, to be a perfectly good iu-
struction.

s Starki'j Ev. (9th Am. ed.), § 863.
See, for instance, Casey v. State, 8
Crim. Law Mag. .''.97, 611,

4 Beavers v. State, 58 Ind. 531, 537,
opinion ])y Biddle, C. J.



Tit. VI, Ch. LXIX.] CIRCUMSTANTIAL EVIDENCE. 18G1

the following sentence was properly refused : " Where a crimi-
nal intent is to be established by circumstantial evidence, the
proof ought to be not only consistent with the defendant's guilt,
but it must be wholly inconsistent with any other rational con-
clusion than that of the defendant's guilt." The court said:
" This rule is })roper when the act which is claimed to be crimi-
nal is sought to be established by circumstantial testimony. But
when the art is proved by direct testimony, and all that remains
to be found is the intent which accompanied the act, and which
may be inferred from the circumstances accompanying the act,
then this principle does not apply." ^ It is to be observed that
the courts do not state the principle in uniform language. Some
of them prefix before the word " hypothesis " or " supposition,"
the word "reasonable"^ or "rational,"^ and others omit it.*
But, even where it is omitted, it is necessarily understood or im-
plied, for the meaning is not that the evidence shall exclude a
hypothesis which is unreasonable or absurd.*

§ 2506. But not every " Possible ^' Hypothesis. — " The rule
is not so severe as to deny conviction, unless the evidence should
be such as to exclude to a moral certainty every possible hvpo-
thesis but that of guilt. ^ Human testimony is rarely so clear
and full, as to exclude conjunctured, divergent possibilities;

1 State V. Maxwell, 42 la. 208, 211, v. State, 36 Ala. 212, 221, 331 ; State v.
212, opiuion by Day, J. Shelledy, 8 la. 497, 498.

2 Com. V. Harman, 4 Pa. St. 209, ^ Applying this principle in deter-
274; Janaes v. State, 45 Miss. 572, 575; mining whether a new trial ought to
United States v. Jackson, 29 Fed. Eep. be granted because the verdict is not
503; s. c. 9 Crim. Law Mag. 325, supported by the evidence, the court
charge by Speer, J. ; State v. Vausant, will reject as untrue an hypothesis
80 Mo. (57, 72; Stout r. State, 90 lud. which is improbable in itself and
1, 12. which the jury did not believe, — as

^People V. Strong, 30 Cal. 151, that, after the defendant had pursued

154; People r. Dick, 32 Cal. 213, 215. the deceased and caught up with him

* State V. Glass, 5 Ore. 73, 81; and cocked his gun and leveled it at

Coleman ■!;. State, 59 Ala. 52; Black t?. him, the gun went off accidentally.

State, 1 Tex. App. 3C9, 391; Cone u. Binfield «. State, 19 N. NV. Kep. G07,

State, 13 Tex. App. 483, 486; Binnsu. 608; s. c. 15 Keb. 484.
State, 66 Ind. 428, 435; Com. v. Wei)- 6 Mose v. State, 30 Ala. 211.

ster, 5 Cush. (Mass.) 295, 320; Mose



1862 CHARGING THE JURY. [2 Thom[). Tr,,

Neither docs ' mathematical certainty ' or ' physical inipossibil-
itj',' define the rule. Conviction, resting on human testimony,
can never attain the certainty of mathematical demonstra-
tion, or repel all possi])le doubt of its correctness. A rule
so exacting would paralyze the })unitive arm of the law. A
doubt which requires an actjuittal nmst be actual and su))-
stantial, not a mere possibility or speculation. It is not a
mere possible doubt, because everj^thing relating to human
affairs, and depending upon moral evidence, is open to some
possible or imaginary dou)>t." ^ An instruction that " circum-
stantial evidence is always insufficient to convict, when, conceding
all to be proved that the evidence tends to prove, some otlier
hypothesis than tliat of the defendant's guilt may be true," has
been condemned as an inaccurate statement of this doctrine,
and hence rightly refused.^

§ 2507. Need not be " Absolutely Incompatible " with Inno-
cence. — It is proper to refuse au instruction, in a case depend-
ing upon circumstantial evidence, which tells the jur}^ that, in
order to warrant a conviction, the circumstances must be " abso-
lutely incompatible Avith the innocence of the accused." This
language is said to " imply that proof of defendant's guilt must
be beyond the possibility of a doubt, Avhich, as already seen, is
not the rule." ^ In such a case it has been well said : " The jury
is never required to find that it Avas not possible for another to
have committed the crime, before they can convict a prisoner on
trial, — or in other words, to find that it is impossible for the
prisoner to be innocent. Such a degree of certainly is rarely
attainable in the administration of justice. It is sufficient that
all the material circumstances })oint to guilt, and that they
are inexplicable upon the theory of innocence. The guilt must
be established beyond a reasonable not beyond a possible
doubt.'" ^

'Coleman v. State, 59 Ala. 52, 54 3 Cornish v. Territory (Wyo.), 3

opinion by Stone, ,T. Pac. Kep. 793, 795.

2 People V. Strong, 30 Cal. 151, ■• Poole v. People, 80 N. Y. 646;

153. Cornish v. Territory, supra.



Tit. Vr, Ch. LXIX.] CIRCUMSTANTIAL EVIDENCE. 18l)3

§ 2508, This Principle how Expounded to Juries. — This
principle is frequently embodied in instructions to juries, with the
approval of the appellate courts, in equivalent forms of expres-
sion, — thus: " It [the evidence] must be inconsistent with any
reasonable supposition of innocence;" ^ or, " If all the facts and
circumstances can be reasonably reconciled with any other theory
than that of guilt;" - or, " "When the facts proved are suscepti-
ble of explanation, upon no reasonable hypothesis consistent
with innocence, and point to guilt beyond any other reasonable
solution, then they are sufficient to rest a conviction upon,
although the crime is of the utmost malignity and the penalty
attached is the highest known to the law;" ^ or, " The material
facts proved must be susceptible of explanation upon no reason-
able hypothesis consistent with innocence;"^ or, "The State
must prove the guilt of the accused beyond all reasonable doubt,
to the exclusion of every other conclusion," — the word " con-
clusion " being the substantial equivalent of " hypothesis;" ® or,
" If you can reconcile it with any reasonable hypothesis of inno-
cence, you may acquit ; if not, you are bound to say so." '^

§ 2509. Must Exclude to a Moral Certainty every Hypothe-
sis save that of G-uilt. — Possibly a still more emphatic expres-
sion, which is much used, and always with approval, in instructing
juries in criminal prosecutions depending upon circumstantial
evidence, is, that in order to warrant a conviction the circum-
stances proved must be of such a character as to exclude, to a
moral certainti/, every hypothesis or supposition ( or, as some courts
qualify it, every reasonable or rational hypothesis) save that of
guilt/ Instructions which strengthen the phrase " moral cer-

1 State V. Shelledy, 8 la. 497, 498. ' Stark. Ev.(9th Am. ed.) 8G2; quoted

2 State V. Vansaut, 80 Mo. 67, 72. with approval in Algheri v. State, 25
8 Stout V. State, 90 lud. 1, 12. See Miss. 584, 589, where a conviction of

also Jarrell v. State, 58 Ind. 293. murder oa circumstantial evidence was

■* Binns v. State, 66 lud. 428, 435. reversed, as being inadequately sup-

5 State V. Wiliingham, 33 La. Ann. ported by the evidence. Cora. v. Web-

537. ster, 5 Cush. (Mass.) 295, 320; Mc-

« Com. r. Harman,4 Pa.St. 269,274. Kleroy r. State, 77 Ala. 95; Mose v.

charge by Gibson, C. J. State, 36 Ala. 212, 221, 231; Stater.



1^64 CHARGING THE JURY. [2 TllOlup. Tl'.,

tainty " by prefixing the word " absolute " have been approved/
but more properly condemned,^ on the ground that absohite
moral certainty is not attainable by the hunum mind. In like
manner, it has })een held proper to refuse an instruction which
tells the jury that, in order to warrant a conviction, the circum-
stances must be " absolutely incompatible with the innocence of
the accused." ^ This principle is embodied in the fourth rule
of Starkie, relating to circumstantial evidence, as follows: " It is
essential that the circumstances should, to a moral certainty, ac-
tually exclude every hvpothesis but the one proposed to be
proved." ^

§ 2510. Precedents OF Instructions UNDER THIS Rule. — The follow-
ing instruction under this head has been approved : "In order to convict
the defendant upon the evidence of circumstances, it is necessary, not
only that all the circumstances concur to show that he committed the
crime charged, but that they are inconsistent with any other rational
conclusion. It is not sufficient that the circumstances proved, coincide
with, account for, and therefore render probable, the hj^pothesis sought
to be established by the prosecution ; but they must exclude, to a moral
certainty, every other hypothesis but the single one of guilt, or the

jury must find the defendant not guilty." ^ It has been held error

to refuse the following: "(3.) Unless the evidence against the pris-

Glass, 5 Ore. 73, 81; People v. Strong, found by the writer iu the 9th Ameri-

30 Cal. 151, 154; Coleman v. State, 59 can edition: " It is always insufficieut

Ala. 52; James v. State, 45 Miss. 672, where, assuming all to be proved which

575; Blaclcu. State, 1 Tex. Ap'p. 369, the evidence teuds to prove, some

301 ; People v. Dick, 32 Cal. 213, 215; other hypothesis may still be true ; for

Peoples. Anthony, 56 Cal. 400; Casey it is the actual exclusion of every other

V. State, 8 Crim. Law Mag. 597, (ill; hypothesis which invests mere cir-

s. c. 20 Neb. 138. cumstances with the force of truth.

1 People V. Strong, 30 Cal. 151, 154. Whenever, therefore, the evidence

2 Peoples. Davis (Cal.), IPac. Hep. leaves it indifferent which of several
890; s.c. G4Cal. 440; Peoples. Glass, hypotheses is true, or merely estab-
5 Ore. 73,81. lishessome finite probability in favor

3 Cornish t). Territory (Wyo.), 3 of cue hypothesis rather than another,
Pac. Rep. 793, 795. such evidence cannot amount to proof,

■* Stark. Ev. (9th Am. ed.), § 802. however great the probability may

The following passage, often quoted be." Algheri v. State, 25 Miss. 584,

from earlier editions of Starkie, and 589.
approved by American judges, is not ^ People v. Anthony, 50 Cal. 397, 400.



Tit. VI, Ch. LXIX.] CIRCUMSTANTIAL EVIDENCE. 1865

oner should be such as to exchule to a moral certainty every supposition
but that of his guilt of the offense imputed to hira, then they must find
him not guilty. (4.) Unless the evidence against the prisoner should
be such as to exclude to a moral certainty every hypothesis but that of his
guilt of the offense imputed to him, they must find him not guilty." It
is perceived that these instructions are drawn in the same words, except
that the former uses the word " supposition," while the latter uses the
word " hypothesis." ^

§ 2511. View that Jury must l>e Satisfied of every Essential
Fact beyond a Reasonable Doubt. — It is undoubtedly a sound
view that, iu cases depending upon circumstantial evidence, in
order to Avarraut them in convicting, tlie jury should be satisfied
beyond a reasonable doubt of every essential fact or circum-
stance necessary to the conclusion of guilt. ^ This doctrine is
found in the text of Starkie in the following words : " The party
upon whom the burden of proof rests is bound to prove every
single circumstance which is essential to the conclusion, in the
same manner and to the same extent as if the whole issue had
rested upon the proof of each individual and essential circum-
stance." ^ The same conclusion is thus stated by Mr. Burrill:
"The evidentiary facts must all be proved, and the existence of
none of them can be presumed."' * The same principle was thus
stated to the jury by Chief Justice Shaw in Webster's case:
"The several circumstances upon which the conclusion depends
must be fully established by proof. They are facts from which
the main fact is to be inferred ; and they are to be proved by
competent evidence, and by the same weight and force of evi-
dence, as if each one were itself the main fact in issue." ^ The

1 Mose V. State, 3G Ala. 212, 221, held in Lehmau v. State, 18 Tex. App.
231 ; and again in Coleman v. State, 59 174; Scott v. State, 19 Tex. App. 325.
Ala. 52. Other instructions drawn * Burrill Cir. Ev. 733. Tlie writer
upon this theory will be found in Peo- is not referring to the doctrine of
pie 17. Dick, 32 Cal. 213, 215; States. reasonable doubt, but is giving a rule
Glass, 5 Ore. 73, 82; People ». Strong, applicable to circumstantial evidence
30 Cal. 151, 154. in all cases, civil or criminal.

2 Bresskr v. People, 3 N. East. ^ Cora. v. Webster, 5 Cush. (Mass.)
Rep. 522, 528; s. c. 117 111. 422. 295, 317.

3 Stark. Ev. (9th Am. ed.),§85G. So



1866 CHARGING THE JURY. [2 Thomp. Tr.,

subject of circumstantial evidence was explained in that charge
at considerable length, and from it the reporter has condensed
the following statement of law, which is sometimes employed
b}^ judges in charging juries: " In order to warrant a conviction
of a crime on circumstantial evidence, each fact necessary to the
conclusion sought to 1)6 established must be proved hy compe-
tent evidence beyond a reasonable d()ul)t ; all the facts nuist be
consistent with each other, and with the main fact sought to be
proved; and the circumstances taken together must be of a con-
clusive nature, leading on the whole to a satisfactory conclusion,
and producing in effect a reasonable and moral certainty, that
the accused, and no other person, committed the offense
charged."^ In applying this principle, it has been held error
to refuse the following instruction: " Every circumstance ma-
terial in this case must also be proved beyond a rational doubt,
or it is the duty of the jury to discard such circumstance in
making up their verdict." ^

§ 2512. Doctrine that tlie State must Establish every
«' Link " in the Chain of Circumstances beyond a Reasonable
Doubt. — It is but another expression of the doctrine of the
preceding section to say that, in a criminal prosecution, the
State is bound to establish every link in the chain of inculpatory
circumstances (where they arrange themselves in the form of a
chain, so as to be interdependent), by evidence which satisfies the
minds of the jurors beyond a reasonable doubt. This doctrine
has been stated thus: "When independent facts and circum-
stances are relied upon to identify the accused as the person
committing the offense charged, and, taken together, are re-
garded as a sufficient basis for a presumption of his guilt to a
moral certainty or beyond a reasonable doubt, each material in-
dependent fact or circumstance necessary to complete such chain
or series of independent facts, tending to establish a presumption
of guilt, should be established to the same degree of certainty as

1 Ihid. 290, reporter's stllabus. * Sumner v. State, 5 Blackf. (lud.)

This is copied iuto tlie author's uote 579.
2, in 3 Greenl. Ev., § 2'j.



Tit. VI, Ch. LXIX.] CIRCUMSTANTIAL EVIDENCE. 1867

the main fact which these independent circumstances, taken to-
gether, tend to establish; that is, each essential, independent fact
in the chain or series of facts relied on to establish the main fact,
must ])c estal)lished to a moral certainty, or beyond a reasonable
d()u])t." ^ In one jurisdiction, it was held error for the court to
omit to charge the jury, in any case depending upon circumstan-
tial evidence, that it is incumbent upon the State to establish every
link in the chain of inculpatory circumstances beyond reasonable
doubt. ^ But this court overlooks a fact frequently observed u})ou
by other courts and by text-writers, that in many cases depend-
ing upon circumstantial evidence, the circumstances do not
arrange themselves in the form of a chain, — that is, that they
are not interdependent, supporting each other in such a sense that
if a single one fails the chain is broken and all fail ; but that they
frequently array themselves in a group or multitude of isolated
facts, in such a manner that each isolated fact, though insufficient
of itself to raise the conclusion of guilt, points to it Avith more
or less force, so that the whole group of facts, according to the
strength and number of the isolated facts, will, when considered
together, create a satisfactory conclusion of guilt. In by far the
greater number of cases, it is believed, the facts thus arrange
themselves, and not in the form of a chain. When they so
arrange themselves, they have been more properly likened to the
strands of a cable? One or more of the strands may break, but
the cable itself will not part. Where all the inculpatory facts
are not interdependent, forming what may properly be called a
chain of circumstances, it is obviously improper and misleading
for the judge to instruct the jury as required by the doctrine of
the Texas case above quoted. But where they plainl}^ do so
arrange themselves, it should seem that the judge may properly

1 People V. Phipps, 39 Cal. 320, 333, 2 gcott v. State, 19 Tex. App.

opinion of the covu't by Sprague, J. 325.

The above statement would, perhaps, ^ ciair v. People, 8 Crim. Law

have been improved by using the word Mag. 184, per Helm, J. ; s. c. siib nom.

*' interdependent" in the place of Clare r. People, 9 Colo. 122.
" independent," in same places where
it occurs.



1868 CHARGING THE JURY. [2 Thouip. Tr.^

so instruct them. Accordingly, the following instruction has
been approved; " When the evidence against the defendant is
made up wholly of a chain of circumstances, and there is a rea-
sonable doubt as to one of the facts essential to establish guilt,
it is the duty of the jury to acquit." ^

§ 2513. This Principle how Expounded to Juries. — The

doctrine that every link in the chain of circumstances must be
established by evidence, beyond a reasonable doubt, has been
thus expounded to a jury: " P^acli fact in any chain of facts,
from which the defendant's guilt is to be inferred, must be
proved by the same weight, degree and force of evidence as if
it were the main fact of the defendant's guilt itself; all of such
facts must be consistent, each with all the others, and with the
defendant's guilt; and all, taken together, must be so strong as
to exclude, to a moral certainty, every reasonable hypothesis
but that of the defendant's guilt." ^ In framing such an instruc-
tion, it has been held not error for the judge to direct the atten-
tion of the jury to the circumstances relied on by the prosecution,
if, at the same time, they are left free to determine whether or
not the circumstances have been proved.^

2514. [Contra.] The «« Link" Doctrine Repudiated. —

This so-called "link" doctrine has been repudiated by several
courts, upon one or the other of the following grounds: 1.
The ground reasoned in the preceding section, that in many
cases the circumstances are not interdependent, and do not arrange
themselves in the form of links in a chain, — in which case a
failure of satisfactory proof as to a particular circumstance
would merely impair, but not necessarily overthrow the conclu-
sion of guilt, deducible from all the other established circum-
stances. 2. Upon aground hereafter stated and discussed,^ that

1 People V. Anthony, 5G Cal. 397, ^ Koener v. State, ii8 Ind. 7, U.
400. - * Post, next section.

2 Johnson v. State, 18 Tex. App.
386, 398.



Tit. VI, Ch. LXIX.] CIRCUMSTANTIAL EVIDENCE. 1869

the doctrine of rea.son;i))le doubt is a doubt arising upon a com-
parison of all the evidence in the case, and not upon the evidence
going to establish a particular inculpatory or defensive fact. 3.
(By one court) ^ that, although the circumstances do arrange
themselvea in the form of the links of a chain, yet, when one
link is broken the chain is not necessarily broken. It has been
held that an instruction which tells the jury that they " must be
satisfied beyond a reasonable doubt of each link in the chain of
circumstances to esta])lish the defendant's guilt," — is properly
refused, where the doctrine of reasonable dou})t, in its applica-
tion to circumstantial evidence, is otherwise properly explained
to them.'^ Where the jury were otherwise properly instructed
touching circumstantial evidence and reasonable doubt, it Avas
held not error to refuse the followino;: "In order to convict
the defendant upon the evidence of circumstances, it is neces-
sary, not only that all the circumstances concur to show that
he committed the crime charged, but that they are all incon-
sistent with any other rational conclusion." " The true rule,"
said the court, " was undoubtedly laid down in the case of Com.
V. Webster.^ Each fact necessary to the conclusion sought to
bo established, must be proved by competent evidence beyond
a reasonable doubt. It is only required that ' the circumstances,
taken together^ must be of a conclusive nature, and leading on
the whole, to a satisfactory conclusion, and producing in effect
a reasonable and moral certainty that the accused committed the



Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 79 of 126)