habit of considering circumstantial evidence as of less value than testimonial evidence; and it may be that, where the circumstances are not perfectly clear and intelligible, it is a dangerous and unsafe kind of evidence; but it must not be forgotten that, in many cases, circumstantial is quite as conclusive as testimonial evidence, and that, not unfrequently, it is a great deal weightier than testimonial evidence. For example, take the case to which I referred just now. The circumstantial evidence may be better and more convincing than the testimonial evidence; for it may be impossible, under the conditions that I have defined, to suppose that the man met his death from any cause but the violent blow of an axe wielded by another man. The circumstantial evidence in favor of a murder having been committed, in that case, is as complete and as convincing as evidence can be. It is evidence which is open to no doubt and to no falsification. But the testimony of a witness is open to multitudinous doubts. He may have been mistaken. He may have been actuated by malice. It has constantly happened that even an accurate man has declared that a thing has happened in this, or that, or the other way, when a careful analysis of the circumstantial evidence has shown that it did not happen in that way, but in some other way." 1

"The distinction, then, between direct [testimonial] and circumstantial evidence, is this. Direct or positive evidence is when a witness can be called to testify to the precise fact which

is the subject of the issue in trial; that is, in a case Shaw.

of homicide, that the party accused did cause the death of the deceased. Whatever may be the kind or force of the evidence, this is the fact to be proved. But suppose no person was present on the occasion of the death, and of course no one can be called to testify to it, is it wholly unsusceptible of legal proof? Experience has shown that circumstantial evidence may be offered in such a case; that is, that a body of facts may be proved of so conclusive a character as to warrant a firm belief of the fact, quite as strong and certain as that on

1 Huxley's American Addresses, 11.

which discreet men are accustomed to act in relation to their most important concerns.

"Each of these modes of proof has its advantages and disadvantages; it is not easy to compare their relative value. The advantage of positive evidence is, that you have the direct testimony of a witness to the fact to be proved, who, if he speaks the truth, saw it done; and the only question is, whether he is entitled to belief? The disadvantage is, that the witness may be false and corrupt, and the case may not afford the means of detecting his falsehood.

"But in a case of circumstantial evidence where no witness can testify directly to the fact to be proved, you arrive at it by a series of other facts, which by experience we have found so associated with the fact in question, as in the relation of cause and effect, that they lead to a satisfactory and certain conclusion; as when foot-prints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of the foot-prints, it can be determined with equal certainty, whether it was a man, a bird, or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences, establishing a connection between the known and proved facts and the fact sought to be proved. The advantages are, that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose. The disadvantages are, that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions; a source of error not existing in the consideration of positive evidence.”

1

"It is true of circumstantial evidence that without some direct fact on which it depends it is worthless. If we could show you that the prisoner desired the death of this girl; that

1 Judge Shaw, quoted by Professor A. S. Hill.

he profited by her death; that he had a secret in connection with her child which he can keep from the world Ottolengui. better, now that she is dead; that she died under circumstances which made the attending physician suspect morphine poisoning; that as soon as the suspicion was announced, the prisoner mysteriously disappeared, and remained in hiding for several days; that he had the opportunity to administer the poison; that he understood the working of the drug; and other circumstances of a similar nature, the argument would be entirely circumstantial. All this might be true, and the man might be innocent. But, selecting from this array of suspicious facts, the one which indicates morphine as the drug employed, and then add to it the fact that expert chemists actually find morphine in the tissues of the body, and you see, gentlemen, that at once this single bit of direct evidence gives substantial form to the whole. The circumstantial is strengthened by the direct, just as the direct is made important by the circumstantial. The mere finding of poison in a body, though direct evidence as to the cause of death, neither convicts the assassin, nor even positively indicates that a murder has been committed. The poison might have reached the victim by accident. But consider the attendant circumstances, and then we see that a definite conclusion is inevitable. It is from the circumstantial evidence only that we can reach the true meaning of what the direct testimony teaches. So we come at last to find that evidence is evidence, and that all evidence is important and may prove convincing." 1

On the other hand, there is danger of giving too much weight to circumstantial evidence. Circumstances must be not only indicative of his guilt but inconsistent with his innocence, to convict the Circumstanaccused. "In order to justify the inference ces overestiof legal guilt from circumstantial evidence,

mated.

the existence of the inculpating facts must be absolutely incompatible with the innocence of the accused, and

1 R. Ottolengui, A Modern Wizard, 160.

incapable of explanation upon any other hypothesis than that of his guilt."1

"Circumstantial evidence, I need hardly tell you, is most delusive in its character. Analyzed, what do we find it to be ? It has been truly argued that there is, and can be, no cause without an effect. In considering circumstantial evidence, the mind of the investigator is presented with the relation of a number of facts, or effects, and he is asked to deduce that they are all attributable to a stated cause. For example, a pedler is known to have started out upon a lonely road, and to have in his pack certain wares, a given amount of money in specified coins and bills, wearing a watch and chain, and he is subsequently found murdered, by the wayside. Later, a tramp is arrested upon whose person is found the exact missing money, and many of the articles which were known to have been in the pack. He is charged with the crime, and the evidence against him is circumstantial. His possession of these articles is an effect, which is said to be attributable to a cause, to wit, the killing of the pedler. But strong as such evidence may appear, as I have said, it is delusive. For just as the prosecution ask you to believe that a number of effects are traceable to a single cause, the crime charged, so also it is possible that all of the effects may have resulted from various causes. Thus in the case cited, the tramp may have been a thief, and may have stolen the articles from the pedler after some other person had killed him. And if it could be shown that the watch and chain were missing, and yet were not found upon the tramp, that would be as good evidence in his favor, as the other facts are against him. So that in circumstantial evidence the chain must be complete. If a single link be missing, or have a flaw, the argument is inconclusive, and a doubt is created, the benefit of which must invariably be given in favor of the accused." 2

The character of its contents has much to do with the credibility of evidence. What is probable on the 1 Judge Porter, Babcock Conspiracy Case.

2 Ottolengui, Modern Wizard, 170.

Improbable

face of it, what squares with ordinary human experience, what is consistent with other facts already known in the case, is readily accepted. and IncrediBut if evidence carries improbability on its ble Evidence. face, if it proposes strange, unusual, unaccountable or inconsistent circumstances, the thoughtful reasoner at once rejects it. The accounts in the Bible of Jonah's experience with the whale, of Joshua's causing the sun to stand still, of the raising of Lazarus, and of miracles in general, are questioned by many because these occurrences are so far removed from common experience. For the same reason the revelations to the latter-day saints find slow acceptance. On the other hand, Defoe's account of the plague, though fictitious, is still occasionally quoted as authentic, because of its "natural

The poet, Story, makes a Roman lawyer argue that Judas was "a rash and visionary man rather than a base criminal, since it does not accord with human experience that one should sell his Lord for so small a sum, nor that a criminal should have been chosen to Judas's place among the twelve; nor that a criminal could have hidden his character so long; nor that he would have flung back the bribe, repenting of his act, when he had the approval of his race; nor that he should go at once and hang himself in horror of what he had done.

and Contra

Evidence, to be convincing, must be consistent in all its parts as well as with facts otherwise Inconsistent known. A witness injures his credibility dictory as soon as one part of his story fails to tally Testimony. with any other part. If one part contradicts another,