official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution. In these cases the ordinary rule is omnia præsumuntur rite et solemniter esse acta donec probetur in contrarium. n Everything is presumed to be rightfully and duly performed until the contrary is shown. The following may be mentioned as general presumptions of law, illustrating this maxim: That a man acting in a public capacity is duly authorized so to do;o that the records of a court of justice have been correctly made, p according to the rule, res judicata pro veritate accipitur; q that judges and jurors do nothing carelessly and maliciously; r that the decisions of courts of competent jurisdiction are well founded, and their judgments regular and legitimate;s that public officers act in conformity with law; s1 and that facts, without proof of which the verdict could not have been found, were proved at the trial. t 4. Presumption arising from Attempts to escape or evade Justice, or from Deportment when charged with Offence. t1 § 714. Here, again, we enter on the domain of inductive reasoning from circumstances, and recur to processes which are to be called inferences, rather than presumptions. What the law here says is, that certain collateral facts may be put in evidence, when from them, in connection with proof of the corpus delicti, guilt may be inferred. Among such facts are to be now mentioned attempts to escape. Hence it is admissible for the prosecution n Co. Litt. 232; Van Omeron v. Dowick, 2 Camp. 44; Doe d. Phillips v. Evans, 1 Cr. & M. 461; 2 Russ. on Crimes, 732. o Per Lord Ellenborough, C. J., R. v. Verelst, 3 Camp. 432; Monke v. Butler, Roll. R. 83; State v. Gregory, 2 Murphey, 69; State v. Hascall, 6 N. Hamp. 352; Jacob v. U. States, 1 Brock. 520; post, § 1041. p Reed v. Jackson, 1 East, 355. q Co. Litt. 103. r Sutton v. Johnstone, 1 T. R. 503. 8 Lyttleton v. Cross, 3 B. & C. 327. s1 U. S. v. Crusell, 14 Wall. 1. t Best on Presumptions, 68. 11 See on this topic, 1 Wh. & S. Med. Jur. 1873, as follows: PSYCHICAL INDICATIONS OF CRIME. A. PRIOR TO CRIME, § 773. (a1) Preparations, § 773. B. AT CRIME. (a1) Incoherence, § 782. (a1) Convulsive confession, § 788. to scene and topic of guilt, § 812. (d) Permanent mental wretchedness, § 816. (el) Animosity between confederates, § 823. to show, that the prisoner advised an accomplice to break jail and escape; u or that he offered to bribe one of his guards; v or that he killed an officer of justice when making such attempt; vl or that he attempted to bribe or intimidate witnesses. 2 So with flight, to which no proper motive can be assigned, and with the acts of disguise, concealment of person, family, or goods, and many other ex post facto indications of mental emotion. w But it must be remembered that while these acts are indicative of fear, they may spring from causes very different from that of conscious guilt. x The question, it cannot be too often repeated, is simply one of inductive probable reasoning from certain established facts. All the courts can do, when such inferences are invoked, is to say, that escape, disguise, and similar acts, afford, in connection with other proof, the basis from which guilt may be inferred; nor should this be done without a general statement of the countervailing considerations which a comprehensive view of the question induces. It was in rightful recognition of this, that Mr. Justice Abbott, on the trial of Donnall for the murder of Mrs. Downing, observed in his charge to the jury, that "a person, however conscious of innocence, might not have the courage to stand a trial; but might, although innocent, think it necessary to consult his safety by flight."y So it is proper to keep in mind the influence which might have been exerted upon the accused, by the character of the tribunal before whom, and the mode of criminal procedure in the country where the trial is to take place. z Hence is it that conduct exhibiting indications of guilt should not be received by the court, unless there be satisfactory evidence that a crime has been committed; as in cases of alleged larceny, that the property has been feloniously taken and carried away. a For the same purpose, confusion, prevarication, and embarrass u People v. Rathbun, 21 Wend. 509; Byles on Bills, 449; Fanning v. State, 14 Mo. 386. v Whaley v. State, 11 Geo. 123. vl Revel v. State, 26 Geo. 275. v2 See People v. Pitcher, 15 Mich. 397; State v. Staples, 47 N. H. 113. w Mittermaier, Deutsch. St. sect. 12; Fanning v. State, 14 Mo. 386; People v. Pitcher, 15 Mich. 397. x Wills on Circumstantial Evidence, 70; 1 Wh. & S. Med. Jur. (1873) § 805. y Trial of Robert Saule Donnall, London, 1817. z Best on Presumptions, p. 322. a Tyner v. State, 5 Humphreys, 383. See post, § 745; ante, § 683. ment on the defendant's part, when charged with the crime, may always be proved; b though it is not admissible for him to show that several days after the corpus delicti was discovered, he appeared surprised when it was announced to him. ¿1 The prisoner will not be permitted to give evidence to account for his flight unless the prosecution prove the flight as tending to establish guilt ; e nor can he show that he refused to avail himself of an opportunity of flight. c1 Evidence of subsequent public excitement to justify an anticipation of violence after a homicide, and thus rebut a presumption of guilt from flight, is admissible, but the excitement must exist before the flight. d 5. Presumption arising from Forgery of Evidence. d1 § 715. This, again, is an inference of inductive reasoning to be drawn from certain facts, which for this purpose are admissible in evidence. Yet, supposing such forgery of evidence to be proved, it is important to keep in mind Mr. Bentham's criticism, that the motives from which it springs may be various. These motives Mr. Bentham groups as follows: 1. From a view of self-exculpation; 2. Maliciously, with the intention of injuring the accused, or others; 3. In sport, or in order to effect some moral end. § 716. (a.) With a view to self-exculpation. A striking illustration of this is found in the trial of Dr. Webster, for the murder of Dr. Parkman, where letters were received by the police marshal of Boston, purporting to reveal the location of the body, which upon the trial were proved to have been written by the prisoner, in order to divert suspicion from himself, and to prevent a rigid examination of the premises where the murder was actually committed. e Under this head also may be mentioned a forged defence of alibi. It is not an uncommon artifice to endeavor to give coherence and effect to a fabricated alibi, by assigning the events of another day to that on which the offence was committed; so that the events being true in themselves, are necessarily consistent with each other, and false only as they are applied to the day in question. A case is reported where a gentleman was robbed, and swore positively to the prisoner, who, nevertheless, was acquitted, the completest alibi being proved. About a year afterwards, the prisoner confessed to the prosecutor that he had committed the robbery, and that the alibi was concerted. g It has hence been held that the getting up by the defendant of a false and fictitious affidavit by false personation was admissible against him on trial, h though such a defence must not be treated as necessarily involving guilt; h1 and so of an attempt to corrupt witnesses. h2 § 717. The fact of a forgery of evidence having taken place is, therefore, simply a circumstance from which, in connection with others (proof of the corpus delicti being essential), guilt may be inferred. h3 Taken by itself, an innocent but weak man is almost as likely to resort to it as is an experienced rogue. Frequently an innocent man, sensible that, although guiltless, appearances are against him, and not duly weighing the danger of his being detected in clandestine attempts to stifle proof, has endeavored to get rid of real evidence in such a way as to avert suspicion from himself, or even to turn it on some one else. A case to the point is mentioned by Sir Edward Coke : i county of Warwick," says he, "there were two brethren; the one having issue a daughter, and being seised of lands in fee, devised the government of his daughter and his lands, until she came to her age of sixteen years, to his brother, and died. When she was about eight or nine years of age, her uncle for some offence correcting her, she was heard to say, 'Oh, good uncle, kill me not!' after which the child, after much inquiry, could not be heard of; whereupon the uncle, being suspected of the f Wills on Circumstantial Evid. 116. "In the h1 Toler v. State, 16 Ohio, S. R. 583; State v. Brown, 25 Iowa, 561; post, g London Med. Gazette, vol. viii. § 744. p. 36. h State v. Williams, 1 Williams (Vt.), 724. h2 State v. Staples, 47 N. H. 113. murder of her, the rather for that he was her next heir, was, upon examination, anno 8 Jac. Rep., committed to the jail for suspicion of murder, and was admonished by the justices of the assize to find out the child, and thereupon bailed until the next assizes. Against which time, for that he could not find her, and fearing what would fall out against him, he took another child, as like unto her both in person and years as he could find, and apparelled her like unto the true child, and brought her to the next assizes, but upon view and examination she was found not to be the true child; and upon these presumptions he was indicted, found guilty, had judgment, and was hanged. But the truth of the case was, that the child being beaten over night, the next morning when she should go to school, ran away into the next county; and being well educated, she was received and entertained of a stranger; and when she was sixteen years old, at what time she should come to her land, she came to demand it and was directly proved to be the true child."; Mr. Bentham also gives a pointed illustration of a case of this kind, taken from the Arabian Nights' Entertainments, where the body of a man who had died by accident in the house of a neighbor was conveyed by him, under the apprehension of suspicion of murder, in the event of the corpse being found in his house, into the house of another, who, finding it there, and acting under the influence of similar apprehensions, in like manner transmitted it to a third, who in his turn shifted the possession of the corpse to a fourth, with whom it was found by the officers of justice.k j Wills on Circum. Evid. 113. k On an ejectment involving large estates in Ireland, the question being whether the plaintiff was the legitimate son of Lord Altham, and therefore prior in right to the defendant, who was his brother, it was proved that the defendant had procured the plaintiff, when a boy, to be kidnapped and sent to America, and on his return, fifteen years afterwards, on occasion of an accidental homicide, had assisted in an unjust prosecution against him for murder; it was held that these circumstances created a violent presumption of the defendant's knowledge of title in the plaintiff; and the jury were directed that the suppresser and the destroyer were to be considered in the same light as the law considers a spoliator, as having destroyed the proper evidence; that against him, defective proof, so far as he had occasioned such defect, must be received, and everything presumed to make it effectual; and that if they thought the plaintiff had given probable evidence of his being the legitimate son of Lord Altham, the proof might be turned on the defendant, and they might expect satisfaction from him that his brother died without issue. Craig on dem. |