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

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motive has passed into action, or with inculpatory
moral facts which it tends to explain and co-ordinate,
and which would otherwise be inexplicable.

The particulars of external relation and moral
conduct will in general correctly indicate the
character of the motive in which they have
originated. On the other hand, the entire absence
of surrounding circumstances, which on the ordinary
principles of human nature may reasonably be sup-
posed to have acted as an inducing cause, is justly
regarded, whenever upon the general evidence the
imputed guilt is doubtful, as affording a strong pre-
sumption of innocence.

It occasionally happens that actions of great

{b) 3 Inst. 107. For a discussion of the meaning and extent of this
maxim, see Reg. v. Tolsoft, 23 Q. B. D. 168. See Uifra, pp. 1 3 1 - 1 36. As
to the use of the word motive in this passage, see note at p. 45, supra.

{f) Hampden's Lectures on Moral Philosophy, 241.

E 2


enormity are committed, for wliich no apparent
motive is discoveraMe. It must not be concluded,
however, that no pre-existent motive has operated ;
and upon principles of reason and justice essential
to common security, the actor is held to be legally
accountable for his actions, unless it be clearly and
indubitably shown that he is bereft of reason and
moral power. A sense of injury, and long-cherished
feelings of resentment, may ultimately induce a
state of mind independent of self-restraint, and
render their victim the sport of ungovernable im-
pulses of passion [d) ; but the distinction is evident
and just between such actions as are the conse-
quences of a voluntary abdication of moral control,
and actions committed under the over-mastering
power of a delusion of the imagination, which,
though groundless, operates upon the mind with
all the force of reality and necessity (e).

On a trial for murder. Lord Chief Justice Camp-
bell thus summed up the doctrine under discussion :
" With respect to the alleged motive, it is of great
importance to see whether there was a motive for
committing such a crime, or whether there was not ;
or whether there is an improbability of its having
been committed so strong as not to be overpowered

{d) Rex V. Earl Ferrers, ig St. Tr. 885. If the confession of
Constance Kent (_Ann. Reg. 1865, p. 230) be accepted, Jier only motive
for the dehberate murder of her infant half-brother was a desire to
revenge some slighting remarks made by her stepmother as to the
first family. She acknowledged that she had received the greatest
kindness from her stepmother.

(<?) Rexv. Hadjidd, 27 St. Tr. 12S1 ; Rex v. Margin, York Sp. Ass.
1831, Shorthand Report by Fraser ; Rexv. Offord^ 5 C. & P. 168.


by positive evidence. But if there be any motive
which can be assigned, I am bound to tell you
that the adequacy of that motive is of little im-
portance. We know, from the experience of criminal
courts, that atrocious crimes of this sort have been
committed from very slight motives ; not merely
from malice and revenge, but to gain a small
pecuniary advantage, and to drive off for a time
pressing difficulties " (y^).

It is a general rule for the interpretation of
conduct as indicative of motives, demanded by
social security and founded in substantial justice,
that every man shall be held to have intended, and
therefore to be legally accountable for, the natural
and probable consequences of his actions [g-) ; and
no one can be permitted to speculate with impunity
upon the precise extent to which he may securely
carry his mischievous intentions, the reality and
degree of which it is alike impossible to determine.
If therefore the motive have been to commit, not
the particular crime, but another of equal legal
degree, then the maxim applies that in criminalibus
sufficit generalis m ilitia iiitentionis ciLiii facto parts
gradus (/^), " All crimes," says Bacon, " have their
conception in a corrupt intent, and have their


(/) Reg. V. Palmer., Shorthand Report at p. 308. Central Criminal
Court, May, 1856. The details of the case are set out at length, infra.,
pp. 344-351. As to the use of the word motive in this, the next and
some later passages, see note at p. 45, supra.

{g) Rex V. Farringion, R. & R. at p. 207 ; Rex v. Harvey, 2 B. &
C. 257 ; Rexv. Dixon, 3 M. & S. 11.

{h) Bacon's Maxims of the Law, Regula xv. (Bacon's Works,
edited by Spedding, Ellis and Heath, 1859, vol. vii.).


consummation and issuing in some particular fact,
which though it be not the fact at which the intention
of tlie malefactor levelled, yet the law giveth him
no advantage of the error, if another particular
ensue of as high a nature. Therefore if an im-
poisoned apple be laid in a place to impoison I. S.,
and I. D. cometh by chance and eateth it, this
is murder in the principal, that is actor, and yet
the malice in individuo was not against I. D. "(z).
" In capital causes," declares the same high authority,
" in favorem vitcB, the law will not punish in so high
a degree, except the malice of the will and intention
do appear " {k). But nevertheless the rule under
discussion has been extended beyond all reasonable
application, as where two persons were convicted of
lying in wait and slitting the prosecutor's nose with
intent to maim and disfigure, an offence then capital
by the statute 22 & 23 Car. II. c. i, though the
real intention was to commit murder, in order to
obtain an estate, an offence not capital, and there
v/as no such special intent as the statute re-
quired (/) ; a case which, as extending a criminal
law by equity, is inconsistent with the general
principles of jurisprudence, and with the spirit of
many later cases (w).

(J) Bacon, ib. Regula xv.

{k) Id. Regula vii.

(/) Rex V. VVoodburne and Coke, 16 St. Tr. 54.

(;«) 4 Lord Campbell's Lives of the L. Ch. 601 ; Rex v. Bell, Foster's
Discourses on the Crown Law, 3rd ed. 1792, App. p. 430; Rex
V. Carroll, East, P. C. 394, 397, 398, 400, 402 ; Rex v. Duffin,
R. & R. 365.

guilty consciousness or intention. 55

Section 2.

declarations and acts indicative of guilty
consciousness or intention.

It is very common with persons who have been
engaged, or are about to engage, in crime, to make
obscure or mysterious allusion to their criminal acts
or purposes, or to boast to others whose standard of
moral conduct is the same as their own, of what
they have done or will do, or to give vent to expres-
sions of revengeful feelinors or of malio-nant satisfac-
tion at the accomplishment or anticipated occurrence
of some serious mischief. Such declarations or
allusions are of great moment when clearly connected
by independent evidence with some anterior or
subsequent criminal action.

When an act is of such a nature as not necessarily
to imply a guilty intention, and such intention is the
specific point in issue, then the evidence of decla-
rations by the party, or of collateral circumstances,
may be of the last importance, as explanatory of his
motives and purposes. " Declarations referring to
former and existing facts," said Lord Chief Justice
Eyre, "are the explanation and connection of those
facts which serve to make them intelligible. . . .
According to the rules of evidence, what a prisoner has
said respecting a particular fact is admissible evidence,
not in the nature of a confession, but as evidence of
the particular fact ; and it is therefore agreeable to the
general law of evidence to receive such declarations
in all cases whatever, in order to explain and to


establish tlu; true st.ite of any matter of fact which is
in disi)uic or the subject of inquiry before a jury" {n).

The just effect of such language in reference to
future events is to show the existence of the disposi-
liou, from which criminal actions proceed, to render
it less improbable that the person proved to have
used it would commit the particular offence, and to
explain, if it be in itself ambiguous, the motive or
object of the contemplated action. But evidence of
such language cannot dispense with the obligation
of sufficient proof of the criminal facts ; for, though
malignant feelings may possess the mind, and lead
to intemperate and criminal expressions, they never-
theless may exercise but a transient influence without
leading to action (<?). It must be borne in mind,
too, as in regard to the proof of language in general,
that declarations may be obscure in themselves, or
imperfectly remembered, and that witnesses may
speak without a strict and due regard to truth (/).
"Words," says Mr. Justice Foster, "are transient
and fleeting as the wind ; they are frequently the
effect of sudden transport easily misunderstood, and
often misreported " (17). It has been well remarked
that, " Mere threats often proceed from temporary
irritation without deep-rooted hostility. They indi-
cate a rash and unguarded rather than a determinedly
malignant character ; and the very utterance of
them, as every one well knows, tends to defeat their

(«) See Rex V. Crossjichi, 26 St. Tr. 215.
{o) Bentham's Rationale of Jud. Ev. b. 5, c. 4, s. 2.
{p) Per Dallas, J., in Rex- v. Tu7'ner, 32 St. Tr. 1 132.
{q) Foster's Discourses on the Crown Law, Disc. L ch. i. s. 8, 3rd ed.
(1792) p. 204.


execution. The man who has resolved on a crime
is more apt to keep his purpose to himself, or to
confide it to an associate, under the seal of secrecy.
Even the most wary, however, sometimes let their
wicked purposes peep out accidentally in the freedom
of companionship, or the weakness of drunken con-
fidence. When such unguarded hints, dark and
apparently unmeaning at the time, coincide with the
subsequent tokens of guilt, they are strong cords in
the net of criminating evidence " (r).

On the principle under consideration, all such
relevant acts of the party as may reasonably be
considered explanatory of his motives and purposes,
even though they may severally constitute distinct
felonies, are clearly admissible in evidence. Such
evidence is known as " evidence of similar facts " ;
and although it is inadmissible where it amounts to
evidence of distinct and different offences against
other persons, unconnected with and unrelated to the
particular act in question, it is held to be relevant,
and is frequently received, not for the purpose of
showing a predisposition to commit such a crime as
the offence charged, but to show the character of
the act, or the state of mind with which it was done ;
either to show guilty knowledge or a wicked system,
or to rebut obvious defences, such as mistake or
accident. For these purposes evidence of similar
acts, whether previous or subsequent {s) to the act

(r) I Dickson's Law of Evidence in Scotland, § 269, p. 157-

(s) In charges of obtaining money by false pretences, it has been

said that whereas previous acts are admissible {Reg. v. Francis, L. R.

2 C. C. 1 28) subsequent acts are not. This would seem to have arisen

from a misunderstanding of Reg. v. Holt (Bell, C. C. 2S0). See


charged, may be received on any criminal charge,
or in any civil action or proceeding (/).

Our reports present many illustrations of this
rule. A few, however, will explain its legitimate
application. Upon a charge of uttering forged
bank-notes, knowing tliem to be forged, evidence
may be given that the prisoner uttered other forged
notes either before or after the uttering of the note
in question, or that other forged notes were found
upon his person, or that other forged notes of the
same kind were found in the bank with the prisoner's
handwriting upon them(?/). In the same way upon
a charo-e of utterinc: counterfeit coin, knowing^ it to
be counterfeit, the facts that other counterfeit coins
were found in his pockets (a), or that the prisoner
previously or subsequently uttered other counterfeit
coin of a similar or different description, although
such utterings are the subject of separate indict-
ments [y), are admissible in evidence in order to
show his guilty knowledge.

Where upon the trial of a man for setting fire to a
stack of straw it appeared that it caught fire by his

J^e^. V. Rhodes (L. R. 1899, i Q. B. 'j'])^ where subsequent acts were
admitted, and Reg. v. Holt was approved.

(/) " There is no difference, that I am aware of, between the rule in
civil and in criminal cases on this subject." Per Grove, J., in Blake v.
TJie Albion Life Ass. Co., 4 C. P. D. 94.

(«) See Rex v. IVylie, and Rex v. Tal/ersall, i Bos. & P. N . R. 92, 93, n. ;
Rex V. Sunderland, 1 Lewin, C. C. 102, and cases there cited ; Aex v.
Ball, I Camp. 324, R. & R. 132 ; and cf. Rex v. Millward, R. & R. 248.

{x) Reg. V. Jarvis, 25 L. J. M. C. 30.

{y) Reg. V. Foster or Forster, 24 L. J. M. C. 134 ; 6 Co.x, C. C. 521 ;
Reg. V. Weekes, 8 Cox, C. C. 455.


having fired a gun very near to it, evidence was
admitted that the stack had been set fire to the day
before, and that the prisoner was very near to it
with his gun at the same time (z) ; and in a similar
case Mr. Justice Patteson admitted evidence of the
prisoner's presence and demeanour at incendiary
fires of other ricks the property respectively of two
other persons, which occurred the same night,
although these fires were the subject of other indict-
ments against the prisoner : but the learned judge
held that evidence could not be given of threats,
statements, and particular acts pointing alone to
such other charges, and not tending to explain the
conduct of the prisoner in reference to the fire in
question (a). And where the question was whether
the prisoner set fire to his house accidentally or
intentionally in order to obtain the insurance money
on it, the fact that two other houses in which he
had lived had been burned down, and that he had
obtained the money for which they had been insured,
is admissible to negative the suggestion of accident (^).
With regard to cases of arson, Mr. Justice Erie said
that his experience had taught him that indications
of guilt were often found in extremely minute cir-
cumstances, which were not the less cogent on that
account ; that it was to the words whether true or
false, by which a man accounted for himself at a
critical time, to his conduct when the fire was in
progress, to his manner of offering assistance and

(z) Reg. V. Dosseti, 2 C. & K. 306, cor. Maule, J.

{a) Reg. V. Taylor, 5 Cox, C. C. 138, and for a precisely similar
ruling in arson, see Reg. v. Harris, 4 F. & F. 342.

{b) Reg. V. Gray, 4 F. & F. 1102, approved in Makin v. The A.-G.
/or New South Wales, 1894, App. Cas. 57.


Other such particulars, that attention should be directed,
and that in the absence of broad facts, such minute
circumstances often afforded satisfactory evidence (<:).
Upon a charge of maliciously shooting, where the
question was whether the act proceeded from acci-
dent or design, evidence was admitted that the
prisoner had intentionally shot at the same person
about a quarter of an hour before (^t').

In charges of murder the same rule applies, and
two cases referred to at length hereafter afford an
illustration. On a charge of murder by administer-
ing prussic acid in porter, Mr. Baron Parke admitted
evidence that the deceased had been taken ill several
months before, after partaking of porter with the
prisoner, and said that although this was no direct
proof of an attempt to poison, the evidence was
nevertheless admissible, because anything tending
to show antipathy in the party accused against the
deceased was admissible (e) ; and where the charge
was of poisoning with strychnine, after proof that
the prisoner was possessed of strychnine in capsules,
evidence was received by Mr. Justice Hawkins that
three other women died from the effects of str) chnine
after being intimate with the prisoner, and that he
attempted to poison a fourth (/).

In a recent leading case this subject was fully
discussed before the Judicial Committee of the

(<r) Charge to the Grand Jury, Warwick Spring Assize, 1859.
Id) Rexv. Yoke, R. & R. 531.

{e) Reg. V. Taivell, pp. 313-317, infra; 2 C. & K. p. 309, note.
(/) Reg, V. Neill., p. 106, infra.


Privy Council, upon an appeal from the Supreme Court
of New South Wales. A man named Makin and his
wife were tried at Darlinghurst for the wilful murder
of an infant child, whose body was found buried in the
backyard of a house where the prisoners had lived.
They represented to the mother that they were
willing to take the child upon payment of a small
premium of ^3, as they desired to adopt it, having
lost a child of their own ; and they had alleged that
they had received only one child to nurse, and had
given it back to the parents. Evidence was admitted
to prove that several other infants were received
from their mothers on similar representations and
upon payment of a sum inadequate for their support
for more than a very limited period ; and that the
bodies of some ten other infants had been found
buried in a similar manner in the earden or back-
yard of houses where the prisoners had successively
lived. The prisoners were found guilty, but the
judge deferred sentence until after the argument of
a special case, as to whether such evidence was
rightly admitted. The Judicial Committee held
that the evidence was relevant to the issue to be
tried by the jury, and was rightly admitted {£■).

With regard to charges of receiving property
knowing it to be stolen, the same rule was formerly
strictly applied (/i). But this subject is now regulated

(^) Makin v. The A.-G. for New South Wales, 1894, App. Cas. 57,
following Reg. v. Geering (i8 L. J. M. C. 215), see p. 322, infra, and
Reg. V. Dossett, and Reg. v. Gray, supra, p. 59.

(Ji) See Reg. v. Bleasdale, 2 C. & K. 765 ; Rex v. Dunn, i Moody, C. C.
146 ; Rex V. Davis, 6 C. & P. 177. In Reg. v. Oddy (5 Cox, C. C. 210 ;
20 L. J. M. C. 198) evidence of possession by the prisoner (previous


by statute, and some restrictions and modifications
have been introduced by legislation. By the Pre-
vention of Crimes Act, 1871 {i), s. 19, it is enacted
that " where proceedings are taken against any
person for having received goods knowing them
to be stolen, or for having in his possession stolen
property, evidence may be given at any stage of the
proceedings that there was found in the possession
of such person other property stolen within the pre-
ceding period of twelve months and such evidence,
may be taken into consideration for the purpose of
proving that such person knew the property to be
stolen, which forms the subject of the proceedings
taken against him." This section also allows the
proof of any previous conviction (within five years)
for fraud or dishonesty, provided seven days' notice
of the intention to prove it is given ; and such convic-
tion may be taken into consideration for proving
that the accused knew the property was stolen.

This is an abrogation of the strict principles of
the law in cases only of receiving stolen property,
inasmuch as it is not now necessary to show any
connection between the property found in the
prisoner's possession and that which is the subject
of the charge. But the statute has been confined
to reasonable limits, as it has been held that the
other property must be found a^ or abottt the time

to the dateof the alleged receiving) of other goods stolen at other times
from other persons, was rejected as inadmissible on a count for either
stealing or receiving. On principle this is quite correct, (see per Lord
Halsbury, L.C., in Makiti's case, supra), and is still good law except
in cases of receivmg covered by the section above quoted.
(i) 34 & 35 Vict. c. 112.


of finding- the stolen property in question, an.l that
if it has been disposed of before such finding,
evidence as to its possession is inadmissible (k).

The subject-matter of this section may be summarised as follows : —

I. The prosecutor may not, for the purpose of showing that the
prisoner was likely to have committed the offence charsfcd, give evi-
dence, either (a) in the form of statements made by the prisoner, or

(b) in the form of direct testimony of witnesses, that the prisoner has
committed similar but distinct offences or has a disposition to commit
such offences.

II. But the above rule does not exclude evidence of similar offences,
(a) wherever such offences are so mixed up with that charged as to
form virtually one transaction ; (b) wherever they are relevant to make
out any step in the proof of the offence charged ; and especially

(c) wherever they are relevant to make out guilty knowledge or inten-
tion in the commission of the act which is the subject of the charge,
or to rebut obvious defences such as accident, mistake, and the like.

III. The rules of evidence above referred to are quite distinct
from the rules of procedure relating to the joinder of distinct offences
in several counts in one indictment, and the prosecutor's election.

It will be found on examination of the cases that it is somewhat
difficult in application to distinguish between rules II. (b) and (c) and
III. It has been held in certain cases that rule 11. (c) applies
where the commission of the physical act charged has been already
proved, and it only remains to prove guilty knowledge or intention
(see J^e£. v. Fi-ancis, L. R. 2 C. C. R. 108 ; and Blake v. Albion Life
Assurance Society, 4 C. P. D. 94). Other cases, however, have
gone considerably further. Thus in Reg. v. Geering {\Z L. J. M. C.
215, and p. 322, infra) ; Reg. v. Gray (4 F. & F. 1102) ; and Makin v.
A.-G. for New South Wales (1894, App. Cas. 57), the evidence was
admitted where the question at issue was the commission of the crime
as a whole, including the commission of the physical act charged. In
the last of these cases it was held that such evidence may be relevant
" if it bears upon the question whether the acts alleged to constitute
the crime charged in the indictment were designed or accidental, or
to rebut a defence which would otherwise be open to the accused."
These three decisions show, if any authority were needed, that it is
not necessary to the admissibility of such evidence to do more than
prove by circumstantial or other evidence a prima facie case against

{k) See Reg. v. Drage, 14 Cox, C. C. 85; Reg. v. Carter, 12
Q. B. D. 522.



the prisoner from which the jury might or might not infer tliat he had
committed the physical act charged. It may be said in general that
wherever the admissibihty of evidence depends upon the assumption
of a fact, or state of things, it is sufficient, in order to render the evi-
dence admissil)lc, to <g\\'*t prima facie evidence of the fact or state of
tilings. The course of the case cannot be stopped whilst the jury or
tribunal determines whether the principal fact or state of things has
been proved to its satisfaction. It may at times be difficult to get rid
of impressions produced by such evidence if the principal fact or
state of things be in the end negatived ; but procedure must follow
practical lines, and sufficient confidence must be reposed in the tribunal
to assume that it will act rightly under such circumstances. It may
also be observed, with regard to such cases as those just mentiotied,
that the similar offences were not really distinct^ in the sense that the
prisoner's conduct presented the appearance of a regular system or
series of offences connected as parts of one scheme, and might there-
fore be regarded as all parts of one wicked transaction. For a more
detailed discussion of these cases see Archbold's Criminal Pleading,
22nd ed. pp. 283 — 287.

As regards III. — the joinder of distinct offences in one indictment
and election between them by the prosecutor — it should be remem-
bered that at common law there was no objection, in point of law, to
bringing a man charged with several offences, if they were all felonies or
all misdemeanours, before a jury and making him answer for the whole
at one time. Felonies and misdemeanours could not be tried together,
as the challenges and incidents of trial were different, but if they were
all felonies or all misdemeanours, there was no legal objection to the

Online LibraryWilliam WillsAn essay on the principles of circumstantial evidence : illustrated by numerous cases → online text (page 7 of 52)