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are cases of circumstantial evidence, where the testimony adduced for and against a prisoner is nearly balanced, in which a good character may be very important to a man's defense. A stranger, for instance, may be placed under circumstances tending to render him suspected of larceny or other lesser crime. He may show, that, notwithstanding these suspicious circumstances, he is esteemed to be of perfectly good character for honesty in the community where he is known; and that may be sufficient to exonerate him. But where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things and beyond common experience; it is so manifest that the offense, if perpetrated, must have been influenced by motives not frequently operating upon the human mind; that evidence of character, and of a man's habitual conduct under common circumstances, must be considered far inferior to what it is in the instance of accusations of a lower grade. Against facts strongly proved, good character can not avail. It is therefore in smaller offenses, in such as relate to the actions of daily and common life, as when one is charged with pilfering and stealing, that evidence of a high character for honesty will satisfy a jury that the accused is not likely to yield to so slight a temptation. In such case, where the evidence is doubtful, proof of character may be given with good effect.
But still, even with regard to the higher crimes, testimony of good character, though of less avail, is competent evidence to the jury, and a species of evidence which the accused has a right to offer. But it behooves one charged with an atrocious crime like this of murder to prove a high character, and, by strong evidence, to make it counterbalance a strong amount of proof on the part of the prosecution. It is the privilege of the accused to put his character in issue or not. If he does, and offers evidence of good character, then the prosecution may give evidence to rebut and counteract it. But it is not competent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character.
PRISONER MUST CHALLENGE PEREMPTORILY BEFORE JUROR IS EXAMINED AS to his bias, in Massachusetts, or his right gone: Commonwealth v. Rogers, 41 Am. Dec. 458, and note. The principal case is cited to the same point in Commonwealth v. McElhaney, 111 Mass. 440.
PRECONCEIVED OPINION OR BIAS OF JUROR as ground of challenge: See the note to Smith v. Eames, 36 Am. Dec. 521, where this subject is discussed; See also Lohman v. People, 49 Id. 340, and other cases cited in the noto tharato.
OPINIONS OF JUROR AS TO CAPITAL PUNISHMENT, whether sufficient to dis. qualify in capital case: See the note to Smith v. Eames, 36 Am. Dec. 532.
VIEW OF PREMISES IN CASE OF HOMICIDE may be allowed: Commonwealth v. Knapp, 20 Am. Dec. 491.
OPINIONS OF WITNESSES ON QUESTION OF HANDWRITING as evidence: See People v. Spooner, 43 Am. Dec. 672; Cochran v. Butterfield, 45 Id. 363; May v. State, Id. 548, and cases cited in the notes thereto. An opinion of a witness skilled in handwriting that all the words in a note were written at the same time is within the legitimate province of expert testimony: Quinsiga. mond Bank v. Hobbs, 11 Gray, 257, citing the principal case. But in Jewett v. Draper, 6 Allen, 435, it was held that the opinion of an expert that certain words in a written agreement were interpolated after it was signed, formed from the situation and crowded appearance of the words, was inadmissible, because that was a matter upon which the jury could judge as well as the witness, and Commonwealth v. Webster was referred to as showing the true distinction between what is and what is not a proper subject for expert testimony. A witness professing to be acquainted with a party's handwriting, and testifying that in his opinion the party's pretended signature to a note is not genuine, may be cross-examined as to other genuine signatures of the party to test his knowledge: Melvin v. Hodges, 71 III. 426.
EXPERT MAY Give Reasons for His OPINION as to the genuineness of the signature to a will: Demerritt v. Randall, 116 Mass. 332; or for his opinion upon any other question as to which expert testimony is competent: Keith v. Lothrop, 10 Cush. 457; Ilawkins v. Fall River, 119 Mase. 94, all citing the principal case.
MURDER AND MANSLAUGHTER, What CONSTITUTE respectively, and how distinguished: See the note to Whiteford v. Commonwealth, 18 Am. Dec. 771; Bower v. State, 32 Id. 325; Anthony v. State, 33 Id. 143; State v. Hoover, 34 Id. 383; State v. Hill, Id. 396; Slaughter v. Commonwealth, 37 Id. 638; State v. Scott, 42 Id. 148; Commonwealth v. York, 43 Id. 373; McWhirt's Case, 46 Id, 196; McDaniel v. State, 47 Id. 93; Slate v. Smith, Id. 589; State v. Hil. dreth, 51 Id. 364; Sutcliffe v. State, Id. 459, and notes.
MALICE DISTINGUISHING MURDER FROM MANSLAUGHTER, what constitutes: See Commonwealth v. York, 43 Am. Dec. 373; McWhirt's Case, 46 Id. 196, and notes.
MALICE IS IMPLIED FROM ANY DELIBERATE OR CRUEL ACT, however sud. den: McWhirt's Case, 46 Am. Dec. 196.
EVERY INTENTIONAL HOMICIDE IS PRESUMED MALICIOUS, AND ONUS to show extenuation or justification is on the defendant unless it appears from the proof of the killing: Commonwealth v. York, 43 Am. Dec. 373; McWhirt's Case, 46 Id. 196; McDaniel v. State, 47 Id. 93; State v. Ilildreth, 51 Id. 364, and notes. That the burden is on the prisoner to mitigate or excuse such a homicide, is a point to which the principal case is cited in Silvus y, State, 22 Ohio St. 90, 100. But where excuse or justification appears from the proof uffered by the prosecution or the circumstances attending the killing, the bur. den of proof is not shifted from the proseccution: Commonwealth v. McKie, 1 Gray, 65.
WILLFUL USE OF DEADLY WEAPON without excuse or prorocation, in such a manner as to imperil life, is almost universally recognized as showing a felonious intent: Wellar v. People, 30 Mich. 21, citing the principal case as one “the rulings of which have been regarded as going beyond law in sever. ity.” See State v. Scott, 42 Am. Dec. 148; Shorter v. People, 51 Id. 286.
PROVOCATION MITIGATING HOMICIDE FROM MURDER TO MANSLAUGHTER, what is or is not sufficient: See Anthony v. State, 33 Am. Dec. 143; State v Hill, 34 Id. 396; State v. Johnson, 35 Id. 742; Slaughter v. Commonwealth, 37 Id. 638; State v. Scott, 42 Id. 148; McWhirt's Case, 46 Id. 196; McDaniel v. Stale, 47 Id. 93.
Words ONLY NOT SUFFICIENT PROVOCATION to mitigate an inteational homicide to manslaughter: State v. Hill, 34 Am. Dec. 396; Commonwealth r York, 43 Id. 373.
HOMICIDE IN MUTUAL COMBAT IS MANSLAUGHTER, when, and when murder: See State v. Hildreth, 51 Am. Dec. 364; State v. Scott, 42 Id. 148. See also Shorter v. People, 51 Id. 256.
DELIBERATION FOR ANY PARTICULAR LENGTH OF TIME not necessary to con. stitute malice aforethought, or the premeditation required to render a killing murder in the first degree: See Whiteford v. Commonwealth, 18 Am. Dec. 771, and note; Anthony v. State, 33 Id. 143.
CIRCUMSTANTIAL EVIDENCE, TO JUSTIFY CONVICTION in a criminal case, need not be so conclusive as to exclude every possibility of the defendant's inno. cence: Findley v. State, 36 Am. Dec. 557; Sumner v. State, Id. 561; Common. wealth v. Goodwin, 14 Gray, 57, citing the principal case. The evidence must, however, be such as to establish the prisoner's guilt to a reasonable moral certainty, and must, as a whole, be inconsistent with any reasonable hypothesis of his innocence: Sumner v. State, supra; People v. Williams, 32 Cal. 283; Commonwealth v. Goodwin, 14 Gray, 57; People v. Lambert, 5 Mich. 367, citing Commonwealth v. Webster. See also Hipp v. State, 33 Am. Dec. 463. It must be of such character and strength that nothing but the defend. ant's guilt can, in the natural order of things, be deduced from it: People v. Lambert, supra. But if it produces in the minds of the jury a conviction of the defendant's guilt beyond a reasonable doubt, it is enough: Findley v. State, 36 Am. Dec. 557; People v. Kelly, 28 Cal. 426; although it may not be such as to render it impossible that the crime could have been committed by another: Findley v. State, supra. Every independent material fact in the chain or series of facts or circumstances relied upon to procure a conviction must, however, be thus established beyond a reasonable doubt: Sumner v. Slate, 36 Am. Dec. 561; People v. Phipps, 39 Cal. 333, also citing the prin. cipal case. In Campbell v. State, 10 Tex. App. 565, a charge, based upon the opinion in Commonwealth v. Webster, to the effect that where circumstantial evidence is relied on for the prosecution in a criminal case, each fact in the chain from which the main fact is to be inferred must be proved by competent evidence beyond a reasonable doubt, and that the facts constituting such chain must be consistent with each other and with the main fact, and must, beyond any reasonable doubt, exclude every other hypothesis but that of guilt, was held to be at least sufficiently favorable to the prisoner. The factum of the crime, the corpus delicti, must be proved beyond a reasonable doubt: Commonwealth v. York, 43 Am. Dec. 373. In Edmonds v. State, 34 Ark. 747, the principal case is cited to the point that, in the absence of direct proof, the identity of the remains supposed to be those of the person alleged to have been murdered may be established by circumstantial evidence.
ABSENCE OF EVIDENCE ON THE PART OF THE DEFENDANT tending to disprove some of the circumstances against him should have no weight with the jury if they are not satisfied of his guilt, from all the circumstances proved, beyond a reasonable doubt: Findley v. State, 36 Am. Dec. 557. The absence of such exculpatory proof is not to be taken into the account, at least until a
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prima facie case is made out in favor of the indictment: Commonwealth v. Hardiman, 9 Gray, 137, citing Commonwealth v. Webster.
DEFINITION OF “REASONABLE Doubt" given in the principal case is ap. proved in Miles v. United States, 103 U. S. 312; Sch v. New York etc. Ins. Co., 1 Gray, 534; People v. Strong, 30 Cal. 155; People v. Ashe, 44 Id. 290. In People v. Strong, supra, Currey, C. J., says that it is "probably the most satisfactory definition ever given to the words “reasonable doubt' in any caso known to criminal jurisprudence."
DESCRIPTION OF MODE OF COMMITTING OFFENSE IN INDICTMENT for mur. der: See State v. Owen, 4 Am. Dec. 571; Territory v. McFarlane, 5 Id. 706; White v. Commonwealth, 6 Id. 443. An indictment charging a homicidc to have been committed “in some way and manner and by some means, instru. ments, and weapons to the jury unknown,” where the mode of effcting the death can not be described with greater certainty, is sufficient: Edlmonds v. State, 34 Ark. 724; Cox v. People, 80 N. Y. 516; People v. Cronin, 34 Cal. 201, 210, all approving and following the principal case. The case is cited on the same point also in Commonwealth v. Strangford, 112 Mass. 292, where, upon similar principles, an indictment under the statute for fraudulently concealing mortgaged personalty, describing it as a “large quantity of ready. made clothing," etc., the whole of the value of a certain sum, etc., and as having been mortgaged by the defendants to a person named by a deed of a certain date, and alleging that the jurors can not more particularly describe it, was held sufficient. As to the utility and necessity of charging an offense, particularly murder, in different counts so as to describe the different possible modes of committing it, the principal case is cited in Commonwealth v. Demarteau, 16 Gray, 12.
That PERSON ALLEGED TO HAVE BEEN MURDERED IS STILL ALIVE, or was seen alive after the time of the alleged murder, is in the nature of a de. fense of alibi, and the burden of proof is on the prisoner after the death is established prima facie by the identification of the remains: State v. Vincent, 24 Iowa, 570. Similarly in the case of an attempt to prove an alibi for the prisoner: State v. Kline, 54 Id. 186, citing the principal case. But in either case a preponderance of evidence in favor of the defense is sufficient, and if upon the whole case a reasonable doubt exists as to the defendant's guilt, he must be acquitted: Id.
EVIDENCE OF GOOD CHARACTER OF PRISONER INDICTED FOR MURDER, ad. missibility of: See McDaniel v. State, 47 Am. Dec. 93. That the prisoner may in a capital case, as well as in any other, introduce evidence of his good character, and that the jury are to give it the weight to which it is entitled in the light of the other evidence, is a point to which the principal case is cited in People v. Garbutt, 17 Mich. 27. So where the defense is insanity: Hlopps v. People, 31 Ill. 388. In Cancemi v. People, 16 N. Y. 501, 506, evi. dence of good character in capital cases was held entitled to as much weight as in other criminal cases of lower grade, its value as tending to show innocence depending, not upon the grade of the offense, but upon the circumstances of the case, repudiating the doctrine laid down in Commonwealth v. Webster. Referring to this case, Strong, J., says it “was a very peculiar case, in which evidence of character may have been entitled to but little consideration; but," says he, “I do not find the doctrine advanced in any other case." In Har. rington v. Statı, 19 Ohio St. 264, 268, the principal case is disapproved, and Cancemi v. People approved, on this point; and White, J., referring to Com. monwealth v. Webster, says: “That case was peculiar in its circumstances; And we may here remark, that it is unsafe as a general rule, and often calcu. lated to mislead, to adopt a charge prepared for a particular case and give it as a rule of law to guide juries in weighing evidence in other cases, dissimilar in their circumstances. The distinction taken in Webster's Case, as to the weight that may be given to proof of good character, between cases where the charge is for crime of a higher and where it is of a lower grade, we hasa not found recognized in any other case; while its correctness has been der.ed by the court of appeals of New York: Cancemi v. People, 16 N. Y. 501." In Commonwealth v. O'Brien, 119 Mass. 345, the principal case is cited to the point that the prosecution can not attack the character of one accused of crime until he puts his character in evidence, and then can not do so by proof of particular acts.
JENKINS V. SPOONER.
15 CUSHING, 419.) PROMISE TO PAY FOR HALF OF NEW PARTITION Wall, made to the owner
of one of two adjoining lots upon his crecting the same, by the husband of a cestui que trust of the other lot, in case the promisor shall have any occasion to use the wall for a different purpose from the old wall, is per. sonal only and to be strictly construed, and the husband does not become liable on his promise where he and his wife assent to a conveyance of their lot by the trustees to a third person who afterwards makes a differ: ent use of the wall. Action to recover half the expenses of building a certain parLition wall. It appeared that the plaintiff was, in 1832, the owner of one of two adjoining lots, and that the title to the other lot was vested in trustecs for the benefit of the defendant's wife under a marriage settlement, though it seems that the state of the title to the latter lot was not then known to the defendant. The plaintiff, wishing to build a new wall on the boundary line to replace the old walls then existing, wrote a letter to the defendant, proposing to build the same so as to be six inches on each lot, and the defendant answered, acceding to the proposition if it could be done without subjecting him to "present expense” and agreeing to pay for one half of the wall if at any future time he should “have occasion to use it for any other purpose than the present one is used.” The defendant never made any different use of the wall. But in 1845 the trustees conveyed the lot to one Batchelder, the defendant and his wife assenting to the conveyance by signing and sealing the same, the deed making no mention of the wall, and Batchelder subsequently made a new and different use of the wall. The court below held that such use did not make the defendant liable to pay for half the wall. Verdict for the defendant. Exceptions by the plaintiff.