general rule. Upon this rule the trial might be in the county in which the prosecutor received the letter by the post, though delivered by the prisoner and put into the post in another county. (w) And it seems that the offender might be tried in the county in which he sent the letter, though the prosecutor received it in another county. The offence of sending a threatening letter, would seem to be complete, as far as depends on the offender, by his putting the letter into the post-office to go into another county; though the party to whom it is sent afterwards receives it in the latter county. (x) The post-office marks in town or country, Post office proved to be such, are evidence that the letters on which they ap- marks. pear were in the office to which those marks belong at the dates which the marks specify; (y) but a mark of double postage paid on any such letter is not of itself evidence that the letter contained an inclosure. (*) The prisoner was tried for feloniously sending to J. S. Tucker the following letter, with intent to extort money from the said J. S. Tucker: "Sir On an indictment for send ing a threat- of the letter, are admissible in evidence. on the 4 An indictment infamous crime "You perhaps did not expect to hear from me so suddenly: but when you turned me away from Laytonstone for a mere trifle, (that too at a time when by the late failures many scores of clerks were out of employ) you forgot that I had you in my power through your transactions with me five nights following, (I have the dates Geo. 4, c. 54, for sending and circumstances on paper written at the time) and that from your a letter, conduct to me before I went to live with you, you could expect no threatening to mercy from me. Did you not, however, let it pass? In a few accuse of an words, I have taken advice upon the subject, and know that if you need are obstinate, it is in my power to bring down ruin on your head, have specified and infamy on your name. However, I will be merciful; allow me such crime to return to L. in the same manner as before, I will never mention for the specific it again, as if I did I should lose everything, and gain nothing; but prisoner it is impossible for me to get any situation in town at present. It is not true that Mrs. T. advertised, as you said; she is in great distress, and she is my mother, therefore I would wish to afford her a little relief, if possible; so send me five pounds to my address; which, with the other you lent me, I will I. O. U. for, and pay when I get a place. If I do not hear from you by Saturday morning, you will hear of it (enclosing five pounds.) Now, consider ruin and beggary on one side, and wealth and comfort on the other; remember that, if you are obstinate, it will cost you all; do as I say, it will cost you (w) Girdwood's case, 1 Leach, 142. 2 East, P. C. c. 23, s. 4, p. 1120, ante, p. 714, where the letter was received by the prosecutor in Middlesex, and the trial had in that county, though the letter was delivered by the prisoner to a woman in London, and by her put into the office which was also in London. Esser's case, 2 East, P. C. c. 23, s. 7, p. 1125, where the offence was laid in Middlesex, though the letter was dated from Maidstone, in Kent, and sent by the post from Maidstone; and Lord Mansfield held that as the letter was directed to the prosecutor in Middlesex, where it was delivered, that was a sending in Middlesex, and that the whole was to be considered as (x) 2 East, P. C. c. 23, s. 7, p. 1125. (y) Perkins's case, 1 Lew. 99, Park, (a) This is the marginal note to the A A A 2 crime the threatened to charge might intentionally be left in doubt. (a) Prior and sub sequent letters may be given in evidence. nothing. I wait your answer before I proceed. As yet, I have given Mr. Norris no names. On Saturday night (if you are silent) "Your's obediently, (Signed)" JAMES TUCKER, Junr." The second count charged the prisoner with threatening to accuse the said J. S. Tucker of a certain infamous crime, viz., with attempting and endeavouring to commit the abominable crime of sodomy with the said J. S. Tucker, with the same intent. The third count charged him with threatening to accuse the said J. S. Tucker of an infamous crime, with the same intent. The fourth, fifth, and sixth counts were the same as the former, except that the letter was called a paper-writing, and the direction omitted. The third and sixth counts did not describe the specific crime, but alleged, generally, an infamous crime. All the counts concluded against the statute, &c. The prosecutor, after proving the letter in question, said, that on the Saturday following the Thursday on which he received the letter, he saw the prisoner at a public-house in the Strand, and that he, the prosecutor, asked him what he meant by sending him that letter, and what he meant by "transactions five nights following." The prisoner said that the prosecutor knew what he meant. The prosecutor denied it; and the prisoner afterwards said, "I mean, by taking indecent liberties with my person." The prisoner, in crossexamination, asked the prosecutor whether on his oath he could deny that he did take indecent liberties with his (prisoner's) person. The prosecutor said he never did. Alexander, C. B., submitted the following question to the Judges, whether parol evidence to explain the letter was properly received? Adding, that without it, the prisoner could not have been convicted, and that by his cross-examination he in effect repeated the charge. And all the Judges (except Littledale, J., who was absent) were unanimously of opinion that such evidence was properly received, and that the conviction was proper. (a) From a case which was cited in a former part of this chapter, it appears that prior and subsequent letters from the prisoner to the party threatened, may be given in evidence as explanatory of the meaning and intent of the particular letter on which the indictment is framed. (b) The Court will, after the bill is found, upon the application of the prisoner, order the letter to be deposited with an officer, in order that the prisoner's witnesses may inspect it. (c) (a) Rex v. Tucker, R. & M. C. C. R. 134. We have seen that it has been held, on the trial of an indictment for threatening to accuse a person of an abominable crime, that the jury need not confine themselves to the consideration of the expressions used before the money was given, but may, if those expressions are equivocal, connect with them what was afterwards said by the prisoner when taken into custody. Reg. v. Kain, 8 C. & P. 187, ante, vol. 1, p. 898. (b) Robinson's case, ante, p. 713. (c) Rex v. Harris, 6 C. & P. 105, Littledale, J., and Bolland, B. BOOK THE SIXTH. OF EVIDENCE. CHAPTER THE FIRST. OF WHAT NATURE EVIDENCE MUST BE.- -OF DENCE. OF THE RULE THAT THE BEST POSSIBLE EVIDENCE BEFORE entering upon the subject of Presumptive Evidence, to which the following section will be appropriated, it may be proper to pay attention to a few points applicable to the law of evidence in criminal prosecutions generally. There is no difference as to the rules of evidence between criminal and civil cases. What may be received in the one case may be received in the other: and what is rejected in the one ought to be rejected in the other. (a) A fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence. (b) Rules of evi dence the same in cri minal as civil cases. It is doubtful whether a bill of exceptions lies in any criminal Bill of excepcase. (c) In one case Lord Hardwicke mentioned it as a point not tions to evisettled; and said that a bill of exceptions had never been determined dence. to lie in mere criminal proceedings, though he had known it allowed in informations in the Court of Exchequer. (d) If the Judge who Case reserved. presides at the trial shall be of opinion that there is a doubt whether he may not have admitted some evidence or witness improperly, or whether the facts proved constitute the crime charged, he may, in his discretion, forbear to pass sentence, or he may respite the judgment, until the opinion of the fifteen judges be obtained upon a case reserved. (e) If the case were clearly made out by proper evidence in such a way as to leave no doubt of the guilt of the prisoner in the mind of any reasonable man, such a conviction ought not to be set aside because some other evidence was given (a) By Abbott, J., in Rex v. Watson, 2 Stark. R. 155. (b) Lord Melville's case, 29 How. St. Tr. 763. (c) Sir H. Vane's case, 1 Lev. 68. S. C. Kel. 15. 1 Sid. 85. Hawk. P. C. b. 2, c. 46, s. 210. Rex v. Lord Paget and others, 1 Leon. 5. Rex v. Nutt, 1 Barnardist. 307. 2 Phil. Ev. 465. (d) Rex v. Inhabitants of Preston, Cas. temp. Hardw. 249. (e) The proper course to raise objections to the insufficiency of the indictment is by demurrer, motion in arrest of judgment, or writ of error, and in recent cases the Judges seem strongly disposed not to allow cases to be reserved on such objections. Reg. v. Purchase, 1 C. & Mars. 617. Reg. v. Overton, ibid. 655. New Trial. which ought not to have been received; but if the case without such improper evidence were not so clearly made out, and the improper evidence might be supposed to have had an effect on the minds of the jury, it would be otherwise. (e) But as it has since been determined, and seems now to be settled, that where evidence, objected to on the trial of a cause, is received by the judge, and is afterwards thought by the Court to be inadmissible, the losing party has a right to a new trial, on the ground that it is impossible for the Court to say what effect such evidence may have produced on the jury, (f) it may well be doubted whether if the judges were of opinion that any evidence had been improperly admitted or rejected in a criminal case, the conviction would be supported. Where the defendant has been convicted on an indictment for felony, there can be no new trial; but after a conviction for a misdemeanor, a new trial may be granted, at the instance of the defendant, where the justice of the case requires it: (g) though inferior jurisdictions cannot grant a new trial upon the merits, but only for an irregularity. (h) Where several defendants are tried at the same time for a misdemeanor, and some are acquitted, and others convicted, the Court may grant a new trial as to those convicted, if they think the conviction improper. (i) And it is a rule that all the defendants convicted upon an indictment for a misdemeanor, must be present in Court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance. (k) No new trial can be had, when the defendant is acquitted, although the acquittal was founded on the misdirection of the Judge; (7) or where a verdict is found for a defendant on a plea of auterfois acquit, although that raises a collateral issue, which may have been found in favour of the defendant on insufficient evidence. (m) evidence. SECTION I. Of Presumptive Evidence. Presumptive or WHEN a fact itself cannot be proved, that which comes nearest to circumstantial the proof of the fact is, the proof of the circumstances that necessarily or usually attend such facts, and are called presumptions, not proofs, for they stand instead of the proofs till the con (e) Rex v. Ball. Russ. & Ry. C. C. R. (f) Crease v. Barrett, 5 Tyrw. 458. (g) Rex v. Mawbey, 6 T. R. 638. Tidd, 942, 943. As to the grounds on which the application may be made, see 1 Chit. Cr. L. 654. (h) See the cases collected on this point in note (b) to Rex v. Inhabitants of Oxford, 13 East, 416. The Court of King's Bench in that case refused a certiorari to remove an indictment for a misdemeanor and proceedings thereon at the assizes, after conviction and before judgment, which was prayed for the purpose of applying for a new trial, on the judge's report of the evidence, on the ground of the verdict being against evidence and the Judge's direction. (i) Rex v. Mawbey, 6 T. R. 619. (k) Rex. v. Teal, 11 East, 307. Rex . Askew, 3 M. & S. 9. (1) Rex v. Cohen and Jacob, 1 Stark. N. P. C. 516. Rex v. Sutton, 5 B. & Ad. 52. In a prosecution for not repairing a highway judgment has been suspended under very special circumstances after an acquittal, see vol. 1, p. 371, in the notes. (m) Rex v. Lea, 2 Moo. C. C. B. 9, S, C. 7 C. & P. 836. trary be proved. (n) In criminal cases, from the secret manner in which guilty actions are generally perpetrated, it is seldom possible to give direct evidence of the commission of the offence charged, i. e. to produce a witness who saw the act committed; and, therefore, recourse must necessarily be had to presumptive (or, as it is often called, circumstantial) evidence, i. e. the direct evidence of circumstances, from which the commission of the act may be presumed by the jury. (0) 66 Where an indictment for murder was supported entirely by circumstantial evidence, and there was no fact which, taken alone, amounted to a presumption of guilt; Alderson, B., told the jury that before they could find the prisoner guilty, they must be satisfied not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person ;" and he then pointed out to them the proneness of the human mind to look for, and often slightly to distort the facts, in order to establish such a proposition, forgetting that a single circumstance, which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt. (p) There is no difference between civil and criminal cases, with reference to the modes of proof by direct or circumstantial evidence, except that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in the latter, which affect life and liberty. (q) What circumstantial evidence is suffi cient to warrant a conviction. One of the most usual presumptions in criminal prosecutions Instances of occurs in cases of larceny, where upon proof of the felony having presumptions. (n) Gilb. Ev. 142. As if a man be found suddenly dead in a room, and another be found running out in haste with a bloody sword; this is a violent presumption that he is the murderer: for the blood, the weapon, and the hasty flight, are all the necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself, is the proof of those circumstances that do necessarily attend such fact. Ibid. Unless the wound was in such a part of the body that the deceased could not have inflicted it himself, and it was shown that no other person had been in the room, it is conceived that such a presumption ought not to be considered as conclusive. In Ashford v. Thornton, 1 B. & Ald. 428, where the subject of presumption in cases of murder was much discussed, Abbott, J., said, "A case might be put where a person should come up and find another lying wounded with a dagger in his body, and should draw it out, or should in assisting the wounded man wrench the knife out of the murderer's hand; then if the murderer escaped, leaving him with the body, according to this law [Bracton], he would be considered guilty of the murder, and be immediately hanged without trial." And, "in the history of the law several presumptions which were at one time deemed conclusive by the Courts, have, by the opinions of later Judges, acting upon more enlarged principles, become conclusive only (0) Presumptions are often divided into (p) Hodge's case, 2 Lew. 227. See the very able observations on this subject, 1 Stark. Ev. 558, et seq. (9) 1 Phil. Ev. 166, 7 Edit. Perhaps strong circumstantial evidence in cases of crimes, committed for the most part in secret, is the most satisfactory of any from whence to draw the conclusion of guilt; for men may be seduced to perjury by many base motives, to which the secret nature of the offence may sometimes afford a temptation; but it can scarcely happen, that many circumstances, especially if they be such over which the accuser could have no control, forming altogether the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous. 1 East, P. C. c. 5, s. 9, p. 223. |