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Opinion of the Court, per CHURCH, Ch. J.

was undisputed that death was produced by the wound inflicted in the vagina ; and the remaining material question was, whether the prisoner feloniously inflicted it. It was competent to prove that fact by circumstantial evidence.

Burrill, in his work on Circumstantial Evidence, page 682, lays down the correct rule. He says: “A dead body or its remains having been discovered and identified as that of the person charged to have been slain, and the basis of the corpus delicti being thus fully established, the next step in the process, and the one which seems to complete the proof of that indispensable preliminary fact, is to show that the death has been occasioned by the criminal act of another person. This may always be done by means of circumstantial evidence, including that of the presumptive kind; and for this purpose a much wider range of inquiry is allowed than in regard to the fundamental fact of death. And all the circumstances of the case, including facts of conduct on the part of the accused, may be taken into consideration."

In this case, everything which tended to prove that the wound was inflicted by the criminal agency of another, tended also to fix it upon the prisoner; and everything which bore upon his guilt, of course strengthened the fact of criminal agency. Unless the wound was inflicted by the deceased herself or by an accident, it must have been done by the prisoner. There is no possible theory that any one else could have done it. If any view of the facts which the jury was warranted in taking would justify a conviction, then it was a question of fact and not of law, and the court properly declined to take it from the jury; and it is only upon questions of law that the Supreme Court or this court can reverse the judgment.

In determining a question of fact from circumstantial evidence, there are two general rules to be observed : 1. The hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent with them all. 2. The evidence must be such as to exclude, to a moral certainty, every hypothesis but that of his guilt of the offence imputed to him: or, in other words, the facts proved must all be con

Opinion of the Court, per CHURCH, Ch. J.

sistent with and point to his guilt not only, but they must be inconsistent with his innocence.

The counsel insists that the evidence fails under either rule, and especially under the second; and that it is not proved that the wound might not have been inflicted by the deceased herself, or by accident. The principal affirmative evidence against the prisoner was that he had the opportunity to do it. About half an hour before the deceased died she was seen apparently in her usual health. During that time she and the prisoner were in the house alone with their two infant children when this wound was inflicted, and she bled to death. The deceased had been in the habit of getting drunk; and when in that state would become wild and crazy, and sometimes wander around the neighborhood and remain out all night. When she was intoxicated the prisoner was in the habit of chastising her by whipping her, and they had lived for some time on bad terms.

The prisoner complained of his wife to the neighbors for drinking and made some threats against her, and charged that she sold pork and other property for liquor, and she sometimes complained of misusage on his part. The occurrence took place about dusk on the day in question, and the first that was known of it was that the prisoner informed a half sister of his wife, who lived in the adjoining house; that his wife was fainting or dying and wanted her.

The witness says she asked him if it was a kick he gave her. He said, “no, Catharine, I only gave her three or four slaps. The witness immediately went over and found the deceased lying on the floor in one of the three small rooms of the lower part of the house, without clothing except a chemise, unable to speak from loss of blood, and she died in a few minutes afterward. The post-mortem examination revealed a wound in the vagina, rupturing veins and arteries, from which she bled to death. An article was found in the room, which the children had used as a plaything, being a piece of an old lamp with a metal stem about four inches long and a

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Opinion of the Court, per CHURCH, Ch. J.

quarter of an inch thick, with blood upon the end of it, and two hairs resembling those from the private parts.

There was evidence tending to show that this instrument might have produced the wound. One of the physicians testified that he did not think the deceased conld have inflicted the wound herself. The account which the prisoner gave on the trial was that he and his wife had some words about his paying passage money to bring his brother from Ireland, and he slapped her twice on her cheek while she was standing up; that she then went into the back room, and he soon followed her to see if she had not gone out the window, and found her standing up with her clothes on; that he returned in a short time and found her sitting up under the window with her back to it and her feet to the door; that he saw blood on the floor, and she was gathering her clothes around her feet; “I asked her what was the matter, and she said; 'let me be; I had a miscarriage; I am all right now;'” that he again left her and went out into the other room, and remained until he heard the child cry, when he went in and found her on the floor just alive, and without clothing except her chemise, and then he gave the alarm, and he denied all knowledge of the injury. Her dress was never found. There was some evidence, but rather slight, that he made statements on the night of the occurrence contradictory to this statement in two respects; first, that he said she had a miscarriage instead of saying that she said she had; and second, that he denied having struck her. But substantially he made the same statement throughout. There was evidence that the deceased was intoxicated at the time, and that the prisoner had also been drinking some that day.

This extraordinary wound could only have been inflicted in one of three ways: by accident, by the deceased, or by the prisoner; and it is claimed that the evidence was not sufficient to warrant the jury in excluding the probability of either of the first two. 1st. As to its being an accident, the jury might have fairly inferred that it must have been done with her clothes on, and that it was impossible for such an

Opinion of the Court, per CHURCH, Ch. J.

instrument to have penetrated her clothing and inflicted such a wound, and this would be confirmed by her making no outcry and no complaint. The facts would warrant this inference. Whether done by the deceased would depend upon what reliance should be placed upon the evidence and the inferences to be drawn from it. It might be inferred that it was improbable or impossible even. One physician testified that he didn't think she could have done it. She was not pregnant, and there is no evidence that she believed she was, and it was legitimate to believe that she did not do it to pro duce a miscarriage, and the jury might have inferred that she would not have done it to commit suicide, because, first, she could not, and second, she would not be likely to know that death could be produced in that manner; and in addition to this, it was the duty of the jury to consider the inculpatory circumstances against the prisoner, the want of affection, the ill feeling, the threats, the quarrel and violence at the time, his conduct as stated by himself in going into the room and finding her bleeding profusely, and waiting until she was incapable of speaking before offering aid or giving the alarm, and from all these and other circumstances the jury might have inferred that the prisoner must have inflicted the wound. All we mean to say is, that it was a question of fact for the jury, and not of law for the court; and that the case was not, so defective as to require the court to take it from the jury.

Some of the members of the court are of opinion that the evidence of some of the facts is too unsatisfactory and the facts themselves too inconclusive to exclude any hypothesis consistent with innocence; others think that the jury were justified from the evidence in finding that the prisoner inflicted the wound. This is only referred to as illustrative of the nature of the question involved, and to show that it is one of fact. The jury is the constituted and most appropriate tribunal to decide such questions, and it is neither lawful nor desirable to restrict their functions. The

Opinion of the Court, per CHURCH, Ch. J.

facts were properly and fairly submitted to the jury. There is an exception, however, to one portion of the charge, which deserves attention. The court submitted the propriety of a conviction of manslaughter in the second degree, upon the theory that the prisoner might not have been actuated by a premeditated design to produce death, and yet in the excitement of a quarrel with the deceased, in the sudden heat of passion, have inserted the instrument in her private parts for the purpose of maiming or dishonoring her on account of suspicions in regard to her chastity, or because he was inflamed with passion at the time, and thus have produced her death in a cruel and unusual manner, and this was excepted to. There was evidence sufficient to find heat of passion, and the act committed, if done by the prisoner, would be sufficiently cruel and unusual to fall within the definition of the statute, and the jury could find the absence of a premeditated design to produce death; but the motive suggested was entirely without foundation in the evidence. There is not the slightest evidence tending to show that the deceased was unchaste or that the prisoner entertained any suspicion of a want of chastity. Considerable effort seems to have been made to prove everything that he said against her, and not a word appears upon that subject. It does appear that on some occasions she was wandering about in the night, but on these occasions she seems to have been temporarily insane from intoxication, and there is no evidence of any act of lewdness in fact, or that the prisoner charged or suspected any such thing, and the question is whether this suggestion of a motive not warranted by any evidence was error. Motive is an inducement, or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but from the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers it has any concern. (Bur. on Cir. Evi.,

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