mis-statement. There is another matter upon which I wish, before I go into the case to address you, and that is upon the degree of certainty with which you ought to give your verdict. I collected from my brother Parry's address that he suggested to you that you ought not to pronounce a verdict of guilty unless you were as satisfied of the guilt of the prisoner as if you had seen him do the act, and you yourselves, too, witness the completion of it. Gentlemen, I think that is not the certainty which is required of you to discharge your duty, or the oath you have taken to the country to which you belong, or to the prisoner whose safety is in your power. I have heard the late Lord Tenterden frequently lay down a rule, which I will pronounce to you in his own language :-"It is not necessary that you should have a certainty which deos not belong to any human transaction; it is only necessary that you should have that certainty with which you transact your own most important concerns." No doubt the question before you to-day, involving as it does the life of the prisoner at the bar, must be deemed to-be of the highest importance; but you are requested to have only that degree of certainty with which you can decide upon and conclude your own most important transactions."

And again

"Now, gentlemen, the facts of the history of this case, though appearing to be many, are in reality very few-the watch, the chain and the hat Mr. Briggs lost that night. The hat was found in the carriage in the place of Mr. Briggs' hat. These are the three matters which constitute the case for the prosecution. Gentlemen, there are three links of the same chain; but do not make the mistake which, it appears to me Serjeant Parry is rather inclined to lead you into, that if there is one link of that chain broken, you have got rid of the prosecution. There are three separate and distinct links, having each of them a separate history, and a failure on the part of one does not in the slightest degree affect the position of each of the others. For instance, if there had been no trace whatever of either of the hats; if the hat alleged to be the hat of Mr. Briggs had not been found in the box, that does not at all diminish the evidence of the watch and chain. They all stand on separate and distinct grounds apart from each other, and if one of them is made out to your satisfaction—that is, if the result of the evidence satisfies you-that the prisoner at the bar was on the Monday morning in possession of the watch and chain, then you are to see whether he has given a true account, or clear account, or-for this is the question -has he given a satisfactory account."

§ 828. Useful instances of the dangers of hasty dealing with circumstantial evidence may be found in Arbuthnot's Select Reports, pp. 195, 227 and 243.(i)

(i) The celebrated Cockspur case.

See also R. v. Thornton, in Wills, p. 141.

"But perhaps one of the most extraordinary and instructive cases of this kind which have ever occurred, was that of Abraham Thornton, who was tried at Warwick Autumn Assizes, 1817, before Mr. Justice Holroyd, for the alleged murder of a young woman, Mary Ashford, who was found dead in a pit of water, about seven o'clock in the morning, with marks of violence about her person and dress; from which it was supposed that she had been violated and afterwards drowned. On the bank of the pit were found the deceased's bonnet and shoes, and a bundle. At the distance of forty yards was found upon the grass the impression of an extended human figure, with blood on the grass near to the centre of the impression, and a large quantity of blood upon the ground near to the lower extremity of the impression; spots of blood were also found in a direction leading from the impression to the pit upon a footpath, and about a foot and a half from the path upon the grass on one side of it. When the body was found, there was no vestige of any footstep on the grass, which was covered with dew not otherwise disturbed than by the blood; from which circumstance it was insisted that the spots of blood on the grass must have fallen from the body of the deceased carried in some person's arms. The prisoner and the deceased had met at a dance on the preceding evening, at a public house, which they left together about twelve o'clock. About three in the morning they had been seen talking together at a stile near to the spot. About four o'clock in the morning the deceased called at the house of Mrs. Butler at Erdington, where she had left a bundle of clothes on the preceding day; she appeared in good health and spirits, changed a part of her dress for some of the garments which she had left there, and quitted the house in about a quarter of an hour. Her way lay across certain fields, one of which adjoined that in which the pit was, and had been newly harrowed. Soon after the discovery of the body, there were found in the harrowed ground the recent marks of the footsteps of the prisoner and the deceased, which, from the length and depth of the steps, indicated that there had been running and pursuit, and that the deceased had been overtaken. From that part of the harrowed field where the deceased had been overtaken, her footsteps and those of the prisoner proceeded together in a direction towards the pit and the spot where the impression was found, until the footsteps came within the distance of forty yards from the pit, when, from the hardness of the ground, they could be no longer traced. The marks of a man's running footsteps, not proved however to have been the prisoner's, were also discovered in a direction leading from the pit across the harrowed field; from which it was contended that the accused had run alone in that direc tion after the commission of the supposed murder. The mark of a man's left shoe (also not proved to have been the prisoner's) was discovered near the edge of the pit, and it was proved that the prisoner had worn right and left shoes. On the prisoner's shirt and breeches were found stains of blood, and he acknowledged that he had had sexual intercourse

with the deceased, but alleged that it had taken place with her own consent. The defence was an alibi. The deceased, it was proved, was successively seen after leaving Mrs. Butler's house by several persons, proceeding alone in a direction towards her own home, the last of whom saw her within a quarter of an hour afterwards, that is to say, before or about half-past four. At about half-past four, and not later than twenty-five minutes before five, the accused was seen by several persons, wholly unacquainted with him, walking slowly and leisurely along a lane leading in an opposite direction from the young woman's course towards his father's house, where he lived. From Mrs. Butler's house to the pit was a distance of upwards of a mile and a quarter, and from the pit to the place where the prisoner was first seen afterwards, was a distance of two miles and a half; so that upon the hypothesis of his guilt, he must have rejoined the deceased after she left Mrs. Butler's house, and a distance of upwards of three miles and a quarter must have been traversed, partly by the deceased and partly by the accused, and the pursuit, the criminal intercourse, the drowning, and the deliberate placing of the deceased's bonnet, shoes, and bundle, must have taken place within twenty-five minutes. The defence was set up at the instant of the prisoner's apprehension, which took place within a few hours after the occurrence of the event which formed the subject of the accusation, and was maintained without variation before the coroner's inquest and the committing magistrates, and also upon the trial, and no inroad was made on the credibility of the testimony by which it was supported. The various timepieces to which the witnesses referred, and which differed much from each other, were carefully compared on the day after the occurrence and reduced to a common standard, so that there could be no doubt of the real times as spoken to by the various witnesses.

"It is not too much to assert that it was not within the bounds of possibility that the prisoner could have committed the crime imputed to him; nevertheless public indignation was so strongly excited that his acquittal occasioned great dissatisfaction. There was a total absence of all conclusive evidence of a corpus delicti, which the jury were required to infer from circumstances of apparent suspicion. The deceased might have drowned herself, in a moment of bitter remorse, after parting from her seducer, and excited to agonizing reflection by the sight of so many appalling marks of her ruin. It was possible that she might have sat down to change her dancing-shoes for the boots which she had worn the preceding day and carried in her bundle, and fallen into the water from exhaustion; for she had walked to and from market in the morning, had exerted herself in dancing in the evening, and had been wandering all night in the fields. without food. The allegation that the prisoner had violated the deceased, and therefore had a motive to destroy her, was mere conjecture; and from the circumstance of her having been out all night with the prisoner, with whom she was previously unacquainted, and from the state of the gar

ments which she took off at Mrs. Butler's, as compared with those for which she exchanged them, it was pretty clear that the sexual intercourse had taken place before she called there, at which time she made no complaint, but appeared composed and cheerful. Again, the inference contended for, from the state of the grass, with drops of blood upon it where the dew had not been disturbed, appeared to be equally groundless and inconclusive; for there was no proof that the dew had not been deposited after the drops of blood; and it clearly appeared that the footsteps could not be traced on other parts of the grass where, beyond all doubt, the parties had been together in the course of the night. Now, suppose that the alibi had been incapable of satisfactory proof, that the prisoner had not been seen after parting from the deceased, and that the inconclusive. ness of the inference drawn from the discovery of drops of blood on the grass, where there were no footmarks, had not been manifested from the absence of those marks in other places where the deceased had unquestionably been,-the guilt of the prisoner would probably have been considered indubitable, and his execution been too certain; and yet these exculpatory circumstances were entirely casual, collateral, and independ ent of the facts which were supposed to be clearly indicative of guilt." See also Wills, p. 127.

"As in the case with other presumptions, so the inference of guilt from the recent possession of stolen property may be rebutted by circumstances which create a counter-presumption; as where the property is found in the prisoner's possession under circumstances which render it more probable that some other person was the thief. Therefore, where, on the trial of a mother and her two sons for sheep-stealing, it was proved that the carcase of a sheep was found in the house of the mother, it was nevertheless considered that the presumption arising from the possession of the stolen property immediately after the theft was rebutted so far as respected her, by the circumstance that male footsteps only were found near the spot from which the sheep had been stolen. A woman was tried for the larceny of five saws which had been stolen from the workshop of a hat-block turner during the night. There was a hole in the building large enough for a person to have crept in through it. On the following day the priso ner pledged two of the saws with a pawn-broker in the neighbourhood. On the following night, the house of the prosecutor was broken open and a number of articles stolen, and no communication existed between the house and the workshop. Two days afterwards the prisoner was taken into custody for this theft, in the house of a man who was himself chargedwith having committed the burglary. Mr. Baron Gurney said it was improbable that the female should have taken these saws, but that it was extremely probable that she should have been employed by another person to pawn them, and that it was hardly a case in which the general rule could apply, and that it would be safer to acquit the prisoner."

§ 829. Circumstantial evidence is never to be direct evidence of the same fact is wilfully kept back.

relied on where

See ante, § 298. § 830. When the Judge has a doubt, the prisoner should have the benefit of it. (k)

§ 831. It is here that evidence of character may give the measuring cast. Where there is no doubt, evidence of character can be of no weight.

CHAPTER XLVI.

CONFLICTING TESTIMONY.

§ 832. A Judge will often have to determine between conflicting testimony. I do not mean to allude to the frequent cases where there is perjury on both sides or on one. But to those cases where evidence of facts or witnesses deposing bonâ fide is nevertheless irreconcileable. On this subject the remarks of Starkie are of much value.()

"Thirdly, with respect to cases of conflicting evidence. The first step in the process of enquiry in these cases must naturally and obviously be, to ascertain whether the apparent inconsistencies and incongruities which such evidence presents may not without violence be reconciled, and if not, to what extent, and in what particulars, the adverse evidence is irreconcileable; and then, by careful investigation and comparison, to reject that which is vicious and thus, if it be practicable, to reduce the whole to testimony and circumstances of uniform and consistent tendency.

:

"Where the testimony of direct witnesses is apparently at variance, it is to be considered, in the first place, whether they be not in reality reconcileable, especially where there is no extrinsic reason for suspecting error or fraud. But if their statements upon examination be found to be irreconcileable, it becomes an important duty to distinguish between the misconceptions of an innocent witness, which may not affect his general testimony, and wilful and corrupt misrepresentations which destroy his credit altogether. The presumption of reason as well as of law in favor of innocence, will attribute a variance in testimony to the former rather than the latter origin. Partial incongruities and discrepancies in testimony,

(k) R. v. Davidson, 32 St. Tr. 217.

(1) Pages 866-871.