Famous cases of circumstantial evidence; with an introduction on the theory of presumptive proof

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FAMOUS CASES

CIRCUMSTANTIAL EVIDENCE.

WITH AN INTRODUCTION

THEORY OF PRESUMPTIVE PROOF.

BY

S. M. PHILLIPS,

AUTHOR OF "PHILLIPS ON BVIDENCK."

NEW-YORK:
JAMES COCKCROFT & CO.,

LAW PUBLISHERS, aj GREAT JONES STREET.
I873-

TOBITT * BUNCE,

AMD STXKIOTTPBBS,

W Fulton St., N. Y.

O-

CONTENTS.

INTRODUCTION

PAOS
vii-xxzix

I.

II.
III.
IV.

V.
VI.

CASE
CASE
CASE
CASE
CASE
CASE
CASE VII.
CASE VIII.
CASE IX.
CASE X.
CASE XI.
CASE XII.
CASE XIII.
CASE XIV.
CASE XV.
CASE XVI.
CASE XVII.

1
4
11
14
31
84
45
47
50
53
57
65
73
78
85
89
97

CONTENTS.

Fua

CASE XVIII. .. .. .. .. ..113

CASK XIX 117

CASK XX. .. .. .. .. ..125

CASK XXI. .. .. .. .. ..129

CASK XXIL .. ., .. .. ..132

CASK XXIII. ..' 136

CASE XXIV. .. .. .. .. .. 139

CASK XXV .. ..141

CASK XXVI. .. .. .. .. ..144

CASK XXVII. 149

THE THEORY

PRESUMPTIVE PROOF.

THEKE is no branch of legal knowledge which is of more
general utility, than that which regards the rules of evidence.
The first point in every trial, is to establish the facts of the
case ; for he who fails in his proof, fails in every thing.
Although the jurists hold the law to be always fixed and
certain, yet the discovery of the fact, they say, may deceive
the most skillful. No work has as yet appeared in the English
language on the theory of evidence ; and the nature of circum-
stantial evidence has been still less inquired into. The object
of the present Essay is to inquire into some of the more
general principles of legal proof, and particularly into that
species of proof which is founded on presumptions, and is
known to the English lawyer by the name of circumstantial
evidence.

Evidence and proof are often confounded, as implying the
same idea ; but they differ, as cause and effect. Proof is the
legal credence which the law gives to any statement, by
witnesses or writings ; evidence is the legal process by which
that proof is made. Hence, we say, that the law admits of no
proof but such as is made agreeably to its own principles.

The principles of evidence are founded on our observations
on human conduct, on common life, and living manners : they
are not just because they are rules of law; but they are rules
of law because they are just and reasonable.

It has been found, from common observation, that certain
circumstances warrant certain presumptions. Thus, that a

viii IN TROD UCTION.

mother shall feel an affection for her child, — that a man shall
be influenced by his interest, — that youth shall be susceptible
of the passion of love, — are laws of our general nature, and
grounds of evidence in every country. Of the two women
who contended for their right to the child, she was declared
to be the mother who would not consent to its being divided
betwixt them. When Lothario tells us that he stole alone, at
night, into the chamber of his mistress, " hot with the Tuscan
grape, and high in blood ! " Ccetera quis nescit ?

As the principles of evidence are founded on the observa-
tions of what we have seen, or believed to have been passing in
real life, they will accordingly be suited to the state of the society
in which we live, or to the manners and habits of the times.
The following passage, in the excellent memoirs of Philip de
Comincs, I believe to be perfectly true, because it is confirmed
by other accounts of the general state of manners at the
period when he wrote.

Louis XL distributed, he asserts, for corrupt purposes,
sixteen thousand crowns among the King of England's
officers that were about his person, particularly to the
chancellor, the master of the rolls, the lord chancellor, &c.*

The truth of this narrative has never been called in
question, because it is given by an historian of great gravity
and character, and is illustrated by the manners of the age ;
yet although the author says that his design in writing of
these transactions, is to show the method and conduct of all
human affairs, by the reading of which such persons as are
employed in the negotiation of great matters, may be in-
structed how to manage their administrations, we should find
it difficult to give credence to such facts, if related of any
modern lord high chancellor or officer of state of the court of
England. Thus, the same presumptive evidence that is good
as to the court of Edward IV. and the era of 1477, is
altogether extravagant if applied to the court of George III.
and the beginning of the 19th century.

* V. 2. p. 7.

2NTROD UCTION. ix

The oration of Cicero for Cluentius, exhibits evidence of
'corruption which can only be credited from our
general knowledge of Eoman manners at the era of the facts
which he describes.

The King of Siam gave credence to everything which a
European ambassador told him, as to the circumstances and
condition of Europe, until he came to acquaint him, that the
rivers and sea were occasionally made so hard, by the cold,
that people could walk on them ; but this story he totally
disbelieved and rejected, as entirely repugnant to every thing
which he had either seen or heard; and the ground of his
disbelief was perfectly rational.

A similar principle sways our belief in respect to the acts
of individuals, as arising in the society and period in which
we live. We always refer the credibility of the case to what
has fallen within our own observation and experience of men
and things. "We readily give credence to acts of common
occurrence, and are slow in yielding our assent to the
existence of new and unlocked for events. When a wretch,
at no distant period, in affluent circumstances, was accused of
having stolen some sheets of paper in a shop, the judges
admitted him to bail against evidence, because the charge was
altogether unlikely in one of his condition in life. From
these instances, we may safely infer that the principles for our
believing or disbelieving any fact, are rather governed by the
manners and habits of society, than by any positive rule.
The writers on the general law of evidence, such as Mascardus
and Menochius, have accordingly declared that all proof is
arbitrary, and depends on the feelings of the judges.

There are two species of presumptive proof: the first is the
presumption of the law, and the second the presumption of
the judge, juryman, or trier.

The presumption of the law is that conclusion which the

law attaches to a certain species of guilt. Thus, that he who

, has deliberately and willfully killed another, has done so from

malice, is a presumption of the law. But how far he who has

IN TROD UCTION.

been found with the sword in his hand by the body of the man
just killed, did ' or did not give the mortal stroke, is a pre-
sumption to be made by the jury, and is not determinable by
any positive rule of law.

The presumption of the law, Montesquieu .observes, is
preferable to that of man. The French law considers every
act of a merchant, during the ten days preceding his bank-
ruptcy, as fraudulent; this is the presumption of the law.

The modern French code has wisely decreed, that when
the law, on account of circumstances, shall have deemed
certain acts fraudulent, proof shall not be admitted that they
were done without fraud. And in our own, as in every other
system of legislation, a variety of qualities are presumed as to
different persons and things, against which no proof shall be
allowed. Certainty is the great object of legislation, and
nothing could be established but by the determination of
some thing as already fixed.

All proof is in reference to some fact already known and
admitted, — what is doubtful must be proved in reference to
what is true.

The following rules, by Quintilian, proceed upon this
principle, but they are, perhaps, rather curious than useful : —
One thing is, because another is not : it is day, therefore it is
not night. One thing is, therefore another is: the sun is
risen, therefore it is day. One thing is not, therefore another
is : it is not night, therefore it is day. One thing is not,
therefore another is not : he is not rational, therefore not a
man.

Evidence is divided into positive and presumptive. Positive
evidence is where the witness swears distinctly to the com-
mission of the act or crime which forms the subject of the
trial. Presumptive evidence is that conclusion which the jury
draw for themselves, from circumstances or minor facts, as
sworn to by the witnesses.

Presumptions are consequences drawn from a fact that is
known to serve for the discovery of the truth of a fact that is

IN TROD UCTION. xi

uncertain, and which one seeks to prove. But no presump-
tion can be made but on a fact already known and ascertained.
Thus, if the stains of blood on the coat of one tned for
muider, are to be presumed as evidence of his guilt, the fact
of the stains being occasioned by blood must be first distinctly
ascertained ; the one presumption cannot be made to aid the
other.

The stains are not to be presumed from blood because he
is presumed to have been the murderer ; nor, on the other
hand, is he to be believed the murderer, because the stains are
believed to be from blood ; for this is reasoning in a circle, and
returning back to the point whence the argument commenced-
In laws, the arguments should be drawn from one reality to
another, and not from reality to figure, or from figure to
reality.

Whilst dwelling on the general head of proof, it may be
proper to inquire in what does proof naturally consist. Is
one witness, according to the principles of natural reason,
sufficient to give legal credence, or are two witnesses neces-
sary ?

The Roman or civil law has required two witnesses to each
separate fact.

But this principle did not, perhaps, arise from the dictates
of legal prudence, but was borrowed from a text of Scripture :
" In the mouth of two or three shall the truth be established."
The text was meant merely to carry reference to certain
circumstances incident to the Christian religion. But the
principles of religion are happily founded on higher evidence
than is necessary to guide men in the business of common
life.

The incidents of commerce, and the daily intercourse of
mankind require not only that moral certainty which we are
warranted, from general observations, to confide in. It were
superfluous to show how difficult it must be, nay, how impos-
sible, often, to prove a crime by two witnesses. The absurdity
and inconveniency of the rule has been attended with that

xii IN TROD UCTION.

effect which will always attend an inconvenient law ; a variety
of shifts have been invented to evade it. One witness is held
sufficient to a fact of a general nature, and half proofs have
been established.

If the rules of evidence are founded on the principles of
human nature ; if, like other rules, their fitness is to be
judged of by their practical utility, it must be admitted that
a proof by one witness, or by circumstances, in certain cases, •
is good and reasonable.

It is true, that by the English law of high treason, that is,
by the 25th of Edward the Third, two witnesses are required
to convict a prisoner of the charge: that is to say, one
witness to one fact, and another to a different fact, of the
same species of treason, shall be held to be two witnesses
within the meaning of the statute. But this law was passed
for the security of the subject, and to guard against the over-
bearing influence of the crown in state prosecutions ; and it
is no doubt in reference to crimes against the state, that
Montesquieu has made the following observation : — " Those
laws which condemn a man to death, on the deposition of a
single witness, are fatal to liberty. In right reason there
should be two ; because a witness who affirms, and the
accused who denies, make an equal balance, and a third must
incline the scale."* — Be'sides, the observation is made by a
writer speaking in reference no doubt to the civil law, where
there is no jury to estimate the weight due to the evidence.
In the present Essay, it is not meant to inquire, what crimes
should be liable to the punishment of death, and what not ;
it is only proposed to inquire, what degree of proof is sufficient
to satisfy the mind of the commission of the act. The prin-
ciple in law is clear, that the guilt is neither increased nor
diminished by the fullness or defect of the proof.

When, it will be asked, shall a proof be said to complete ?
The answer must be, — when the judges are satisfied; if the

* Spirit of Laws, b. 12, c. 3.

IN TROD UCTION.

process be regular. For what is implied by the term to
prove ?

The jurists acquaint us, that to prove is to convince the
judge.

Probare est fidem facere judici. And this is the meaning
assigned to the term by the English language. The common
saying, as used in argument, where a fact is disputed, — 7 will
prove this to you, — I will convince you of this, — I will satisfy
you on this head, — sufficiently show, that to prove, only
implies, to convince another of the truth of our assertions.

The proof must be held to be complete, on the part of the
prosecutor, when he produces the best evidence which the
case will afford, and such as shall induce the judges to believe
the commission of the fact, until it is refuted by opposite
evidence on the part of the defendant :* one story is good,
until another is told. "Where the evidence is believed, and is
sufficient to account for the fact, no other proof is necessary.

Hypothetical reasonings are susceptible of the highest
degree of evidence, when the hypothesis explains many pheno-
mena, and contradicts none ; and, when every other hypothesis
is inconsistent with some of the phenomena. And this is the
principle on which the philosophy of Sir Isaac Newton, as to
the motion of the heavenly bodies, is founded.

Where there is no reason, not to believe ; that, alone, is a
reason for believing the evidence of our senses.

The senses are ever true, but the understanding often
reasons ill. It is not proper to reject a probable opinion,
without establishing a better in the room of it.

But these remarks are, after all, but barren generalities ;
and the observation of the great writers on this subject, will
too often be found to be just, — that alljaroof is arbitrary, and
cannot be reduced to positive rules. It happens, sometimes,

* Indeed, the proof is complete, on the part of the prosecution, when
the best evidence has been produced. That is to say, the proof should
be made to rest there, whatever the probable effect of the evidence on
the court may or may not be.

xiv INTR OD UCTION.

that the most probable things are false; for, if they were
always separated from falsehood, they would be certain, and
not probable. Or, as rendered by some other translators, —

The most probable things, sometimes prove false ; because,
if they were exempt from falsity, they would not be probable,
but certain.*

It is likely several things may happen, which are not
likely.

The ancient Romans were so sensible of the uncertainty of
evidence, and the difficulty of always ascertaining the guilt of
the prisoner, that their form of judgment (or verdict of the
jury as we should style it), merely expressed, that he appeared
to have done \i,fecisse videtur.

It is not the fact, always, that constitutes the guilt, but
the opinion of the judge. " What have the laws ordered in
such a case ? " was asked of an advocate of Byzantium : " What
I please," was the answer.f

The end of a proof, is to establish the matter in debate-
In every case, whether by direct proof, or by that of circum-
stantial evidence, the jury ought always to be fully satisfied of
the guilt of the prisoner, before they return such a verdict.
It is immaterial what the proof is, if it is not believed, and
brings conviction to the mind of the jury.

It has been, of late years, a favorite theme, to descant upon
the certainty of circumstantial evidence. The practice of the
law, like other things, has its prejudices ; and the name of an
eminent man, the success of a particular trial, will sometimes
give sanction to a false theory.

Circumstances, it is said, cannot lie. This is very true •
but witnesses can. And from whom do you obtain circum-
stances, but from witnesses ? Thus, you are liable to two
deceptions : first, in the tale told by the witness ; and, secondly,
in your own application of those circumstances. Where a fact
is positively sworn to, as seen by the witness, the conclusion

* Aristotle, Vide Bayle Diet. Agathon.
f Travels of Anacharsis, v. 4. p. 400.

IN TROD UCTION. XY

or inference to be drawn from it, is generally obvious. But,
where the inference is to be drawn from a long train of cir-
cumstances, it is a matter of judgment ; it is an exercise of the
understanding ; and, as all men do not understand alike, very
opposite conclusions are sometimes drawn from the same
shades of probability.

When the ancient prudence of the law denied to a prisoner
the benefit of counsel, on a capital charge, to plead for him,
it was understood that the proof should be so clear, as to be
self-evident to the jury. It was understood that the judge
should be counsel for the prisoner ; that is to say, that he
should see that the process was fair and regular, and that no
Undue advantages were taken ; but that process is vitiated in
As vital part, when a false principle is introduced.

" A presumption, which necessarily arises from circum-
stances, is very often more convincing, and more satisfactory,
than any other kind of evidence ; it is not within the reach
and compass of human abilities to invent a train of circum-
stances, which shall be so connected together as to amount to
a proof of guilt, without affording opportunities of contra-
dicting a great part, if not all, of these circumstances."
(CJiarge of Mr. Justice JSullen, on the trial of Captain
Donnellan.)

I deny the position. I maintain, that the theory is repug-
nant to the received principles of jurisprudence ; as known to
the best foreign writers on the law of evidence. I maintain,
that it is not warranted by experience, — the greatest proof of
every rule, the proof of proofs. And I may further assert, that
it is new to the practice of the English law.

First, I shall show, that the theory is repugnant to the
received principles of jurisprudence, as known to the best
foreign writers, on the law of evidence.

The first to whom I shall refer is Mascardus, a writer of
great eminence on the general theory of proof; regarding
which, he has published four volumes.

" Proof by evidence of the thing, is superior to every other ;

xvi INTRODUCTION.

and of all different kinds, none is so great as that which is
made by witnesses deposing to what they have seen/'* '

" Proof by presumption and conjectures," he observes in
another place, " cannot be called a true and proper proof." f

The work of Menochius is entirely dedicated to the doctrine
of presumptions or circumstantial evidence ; and although he
displays the partiality for this species of proof, which is natural
to one who has dedicated his attention to a particular subject'
yet, in the very first chapter of his work, he observes, that
" the proof or credence which arises from the testimony of
witnesses, is superior to any other."J '

I shall not think it necessary to load this Essay with quota-
tions from other writers on the civil law ; the above two
possess the most eminent authority of any on the subject of
evidence. But the same opinion is expressed by every other
author, whom I have had occusion to consult : no one has
maintained the absurd position, that circumstances cannot
lie ; or, that conjectural proof is superior to that of ocular
demonstration.

Secondly. I maintain, that it is not warranted by expe-
rience,— the great test of every rule.

It might appear invidious, to carry reference to cases of
modern occurrence, where fatal mistakes have been discovered
of persons too hastily convicted on mere circumstantial
evidence ; the history of the judicial proceedings in this and
every other country will afford too many illustrations.

Some cases of this kind will be found well illustrated in
Lord Chief Justice Hale's Pleas of the Crown, vol. 2, p. 289.

Various instances occur, of the fatal error being too late

* Probatio per evidentiam rei omnibus est potentior, et inter omnes
ejus generis major est ilia, quae fit per testes de visu. (Macardus de
Probationibus, v. 1, q. 3, n. 8.

£. \ Probatio per presumtiones et conjectures dici non potest vera et
propria probatio.

Q J Probatio seu fides quae testibus fit, cceteria excellet. (Menochiua
de Prsesumptionibus, 1. 1, q. 1.)

IN TROD UCTION. xvii

discovered; but who can say, how many instances have
occurred, where the mistake has never been discovered ?

It has of ten happened, that the real murderer has confessed
the fact for which the innocent man has suffered ; but, as real
murderers do not always confess when innocent men suffer,
it is impossible to say to what length this dangerous doctrine
may have been carried.

Thirdly. I have further to observe, that this principle is
new to the practice of the English law.

That great collection of criminal cases, which bears the
name of the State Trials, contains a great fund of criminal
knowledge.

The opinions of the judges, however, as expressed in state
prosecutions, are not always to be regarded as law, until we
reach the period of tbe revolution.

New enactments of the legislature have changed some part
of the law, and the improving experience of time has altered
others. The first notice to be found of this principle, in sound
and wholesome times, is on the trial of Miss Blandy, for
poisoning her father, — before Mr. Baron LEGGE, in 1752.

The judge, in summing 'up the evidence to the jury,
declares that circumstances are more convincing and satisfac-
tory than any other kind of evidence ; because "facts" he
says, " cannot lie"*

That facts cannot lie, is sound logic, no doubt. Men only
lie. But as we only know facts through the medium of
witnesses, the truth of the fact depends always upon the truth
of the witness; so that, although he furnishes us with a
thousand facts, it is of no consequence, if he himself is un- J
sound.

The next occasion on which this doctrine appears, is on
the celebrated trial of Captain Donnellan, in 1781, before Mr.
Justice BULLER, in the passage already quoted. But he has
altered the position a little, by shifting the criterion from facts

* State Trials, v. 10, p. 32.

xviii INTRODUCTION.

to circumstances. Facts, before, were the standard of truth;
circumstances are now made to be so. For circumstances
cannot lie. But what else are circumstances but facts, or
minor facts ; and I must take the liberty to say, that circum-
stances are still more liable to deceive, or to lead to deception,
than even facts. A fact being more an object of sight, is
easier apprehended by the senses than a circumstance ; which,
from its triviality, often escapes the attention altogether, is
misapprehended, or assigned to a wrong cause.

The trial in question, will afford a most unparalleled
illustration of the truth of this observation ; it will show the
fallibility of circumstances, and the very opposite conclusions
which different men will draw from the same appearances.

I shall here give the general shape of the case —

If shape it might be called, which shape had none,
Or substance might be called, which shadow seemed.

Sir Theodosius Boughton, a young man of a delicate con-
stitution, had sent to a country apothecary's shop for a
draught of medicine. Different vials appear to have been in
his chamber, at the time he took the draught ; which was
intended to be a composition of rhubarb, jalap, and lavender
water.

He was suddenly seized with convulsions in his stomach,
and foaming at the mouth ; and expired before he could give
any explanation. Qn rinsing one of the vials, the sediment
gave the effluvia of laurel water, which is known to be a strong
poison. Convulsions, foaming at the mouth, and sudden
death, are the natural effects of that liquid.

But every man who dies in that way, is not, therefore,
poisoned. The apoplexy will produce the sama effects and
appearances : of which disease, the father of the young man
was known to have died. No evidence whatever was produced
as to the existence of the laurel water.

Captain Donnellan, the brother-in-law of Sir Theodosius,

IN TROD UCTION. xix

was living in his house at the time of the accident. He was
the next heir to the estate, and, accordingly, the person who
had the most immediate interest in his death. He certainly
betrayed some uneasiness on the event, and appearances indi-
cated that he was afraid of being suspected as the author of
the mischief. But, if it was natural that he should be
suspected, if the cui bono points out the actor of a nefarious
deed, it was not unnatural that he should find himself placed
in circumstances of peculiar delicacy, and manifest embarrass-
ment and confusion in his conduct.

Captain Donnellan was brought to trial, on a charge of
poisoning Sir Theodosius Boughton.

The leading point in every case of this sort, is — did the
deceased die of poison ? For, if he did not, there is an end of
the whole. Where there was no poison, there was no poisoner.

But this was altogether a question to be decided by the
opinion of medical men. From what then did they form their
opinion ? From any of those broad marks, respecting which
all men judge alike. No ; there was nothing of the kind to
guide their judgment. The whole cause turned on circum-
stances, from first to last. Presumptions were formed on con-
jectures; and conjectures supposed from circumstances never
proved. Four physicians inspected the body, on dissection,
the eleventh day after the death. They gave their opinion to
the jury, and described the circumstances on which that
opinion was founded ; those four said, they believed him to
have died of poison.

The circumstances on which they had given their opinion,
were stated, at the trial, to Doctor John Hunter, the most
eminent physician of the age. He declared he could not dis-
cover, in any of those circumstances, nor in all of them united,
any sign of the deceased having died from poison, nor any
symptoms beyond those incident to a man dying suddenly.

Q. from the court to Mr. Hunter. Then, in your judg-
ment, upon the appearance the gentlemen have described, no
inference can be drawn from thence that Sir Theodosius

xx IN TROD UCTION.

Bough ton died of poison ? — A. Certainly not : it does not give '
the least suspicion.

In questions of science, and above all, in those of medical
science, the faith to be reposed in any opinion, will be regula-
ted by the professional eminence of the person giving it. One
man's sight being generally as good as that of another, as to a
mere matter of fact; as whether he saw, or did not see such a
thing, the learned and the ignorant are upon a par, and one
witness to a fact is just as good as another. But the case is
very different as to a matter of science ; for one man's judg-
ment will outweigh that of many. Upon a point of law or
equity, we would not put the opinion of a country attorney,
or of four country attorneys, against that of a chief justice,
Doctor John Hunter stood, at that time, at the very head of
his profession ; his opinion gave the law to that profession,
both in England and in every country in Europe. Had the
profession been to estimate his opinion, and not the jury, a
very different verdict would have been given. The case re-
ferred peculiarly to to Doctor Hunter's line of study, — that of
dissection, and the appearances incident to a body on sudden
and convulsive death. He pronounced, that the dissection
had been irregularly made, and in a way not to afford the true
criterion to judge by. And, where the process is irregular,
when the experiment is defective, the conclusion must always
be vague and doubtful.

The gentlemen composing the jury did not perhaps know
the eminence of Mr. Hunter's character; nor, consequently,
the weight due to his opinion. But the judge, on the bench,
no doubt knew this ; and in balancing the evidence, and in
summing up, it was clearly his duty 10 have stated the great
weight to be attached to Mr. Hunter's observations. He
stated nothing of all this ; but took them numerically, " four
medical men to one."

Thusx from an irregular dissection, a positive conclusion
was admitted.

It is a rule of law, and above all in cases of life and death,

INTRODUCTION. xxi

that the want of any one circumstance will prevent the effect
of the whole. Thus, if the dissection were irregular, the
opinion formed in reference to that dissection was a mere
nothing. As well may you suppose that proposition itself to
be true, which you wish to prove, as that other, whereby you
hope to prove it.

Post hoc , ergo propter hoc — a species of argument which
often leads to fallacy.

Because the fact immediately followed ; therefore it was
occasioned by that which it followed. He died immediately
after taking the medicine ; therefore, he was killed by the
medicine.

The present question is, was the process on the trial
according to law ? "Was the conclusion arrived at by regular
and legal forms ? The grounds on which the legal inference
is to be drawn, must always of themselves be clear and certain ;
there is no presumption upon a presumption ; there is no in-
ference from a fact not known.

When the judgment of the law is passed in reference to a
certain thing, the existence of that thing should be first clearly
made to appear.

The fact of poisoning ought to have been established
beyond a shadow of doubt, before any person was convicted as
the poisoner.

But the jury, it will be said, were satisfied on this point.
Had the evidence been duly summed up by the judge ; had
they been told, as they ought to have been, that in experi-
mental philosophy, such as tracing the effects of a particular
poison, in tracing the causes, so many and so complicated that
lead to death, if the experiment is defective, if the process is
vitiated in one instance, the result is also vitiated and defect-
ive. Every practitioner in philosophy is sensible and aware
of this truth ; and wherever he finds that he has erred in his
experiment, he sets the case aside, as affording no satisfactory
result, and renews his process in another subject.

But, unfortunately, it is a matter of pride, in some men,

xxii INTRODUCTION.

to be always certain in their opinion, and to appear beyond
the influence of doubt. Very different was the practice of
that modest and eminent man who gave his evidence on this
trial : he was accustomed to the fallaciousness of appearances,
— to the danger of hasty inferences from imperfect proofs, and
refused to give his assent to an opinion, without facts being
first produced to support it. " If I knew," said Mr. Hunter,
'• that the draught was poison, I should say, most probably,
that the symptoms arose from that; but when I don't know
that that draught was poison, when I consider that a number
of other things might occasion his death, I cannot answer
positively to it."

During the whole course of this celebrated trial, there was
not a single fact established by evidence, except the death, and
convulsive appearances at the moment. These appearances,
Mr. Hunter declared, offered no suspicion whatever of poison,
and were generally incident to sudden death, in what might
be called a state of health ; not only there was no fact proved^
but there was not one single circumstance proved. One cir»
cumstance was supposed i'rom another, equally suppositions,
and from two fictions united a third was produced. The
existence of the laurel water was thus made out : the sediment
found in the vial, from which the unfortunate young man
had drunk, was supposed to smell like bitter almonds ; for, as
the smell of laurel water was not then known to Lady Bough-
ton, she could not trace the resemblance further; bitter
almonds were supposed to smell like laurel water.

It is here to be observed, that the smell attached to the
vial was momentary, for it was washed out almost immedi-
ately, and could not be twice experienced. But what so un-
certain as the sense of smell ? Of all the human senses, it is
the most uncertain, the most variable, and fallacious. It is
often different to different men, and different in the same
person, at one hour, from what it is at the next; a cold, a
slight indisposition, the state of the stomach, a sudden expo-
sure to the air, will extenuate or destroy this impression.

INTRODUCTION. xxiii

But this train of proof was altogether at variance with
principles. In law, as already observed, the arguments should
be drawn from one reality to another ; but here, the argument
turned upon the breath, the smell of a woman, distracted at
the moment, with the loss of her son, and ready to ascribe that
evil to the first thing that came in her way:

All proof must begin at a fixed point. The law never
admits of an inference from an inference. Two imperfect
things cannot make one perfect. That which is weak, may be
made stronger ; but that which has no substance, cannot be
corroborated. The question is never what a thing is like; but
the witness must swear to his belief, as to what it is. A simile
is no argument. Upon the principle, that comparison of hands
is no evidence, in a criminal trial, comparison of smells must
be held to be equally defective. Besides, there are a variety of
articles that resemble bitter almonds in the smell, and many
of these altogether innoxious.

In circumstantial evidence, the circumstance and the pre-
sumption are too often confounded ; as they seem to have been
throughout this trial. The circumstance is always a fact ;
the presumption is the inference drawn from that fact. It is
hence called presumptive proof; because it proceeds merely on
presumption or opinion. But the circumstance itself is never
to be presumed, but must be substantively proved. An argu-
ment ought to consist in something that is itself admitted;
for who can prove one doubtful thing by another. If it was
not laurel water, that Sir Theodosius drank, the proof fails as
to the effect ; and, certainly, some of the usual proofs, some of
the common indicia or marks of things, should have been
established. "Where did the prisoner procure it ? From whom
did he obtain it ? Where, and what time, — and by whom, or
how did he administer it ?* Nothing of this kind was proved.

The whole proof, as to laurel water, rested upon the com-

* Venenum arguis : ubi emi ? a quo ? quanti ? per quern dedi ? quo
conscio ? Quintilian, 1. 5, c. 8, s. 37

xxiv IN TROD UCTION.

parison of the smell. Question to Doctor Parsons, " You
ground your opinion upon the description of its smell by Lady
Bonghton ?" Answer. " Yes, we can ground our opinion upon
nothing else but that, and the subsequent effects."

But the judgment of the cause from its effects, Mr. Hunter
has already shown to be equally conjectural as that formed
from its resemblance in smell.

The proof proceeds. He was supposed to be poisoned,
because it was believed to be laurel water; and it was believed
to be laurel water, because he was supposed to be poisoned.
We will not say that both these suppositions might not have
been true ; yet still they were but conjectures, unsupported by
any proof, and formed against all the rules of law.

But the accused, it is said, furnished the proof against him-
self, by his own distrust of his innocence. He no doubt be-
trayed great apprehensions of being charged with the murder ;
but are innocent men never afraid of being thought guilty ?

We readily recognize all the general truisms, and common-
place observations, as to the confidence of innocence, and the
consciousness of guilt ; but, we find, from history, that inno-
cence loses its confidence, when oppressed with prejudice; and
that men have been convicted of crimes, which they never
committed, from the very means which they have taken to
clear themselves.

" An uncle who had the bringing up of his niece, to whom
he was heir at law, correcting her for some offense, she was
heard to say, ' Good uncle, do not kill me ; * after which time
she could not be found ; whereupon the uncle was committed
upon suspicion of murder, and admonished, by the justices of
the assize, to find out the child by the next assizes ; against
which time he could not find her, but brought another child,
as like her in years and person as he could find, and appa-
relled her like the true child ; but on examination she was
found not to be the true child. Upon these presumptions
(which were considered to be as strong as facts that appear in
the broad face of day), he was found guilty and executed;

IN TROD UCTION. xxv

but the truth was, the child, being beaten, ran away, and was
received by a stranger; and afterwards, when she came of
age to have her land, came and demanded it, and was directly
proved to be the true child.*

The above case was referred to by Lord MANSFIELD, in his
speech in the Douglass cause, as an illustration that forgery,
and falsehood itself, has been sometimes used to defend even
an innocent cause. "It was no uncommon thing," he
observed, " for a man to defend a good cause by foul means,
or false pretenses."

Captain Donnellan was liable to suspicion, and to great
suspicion, on the general relations of the subject, independent
of particular circumstances, and would have been suspected
by all the world, had he been never so innocent.

In the first place, it was a well-known fact, that he had
been obliged either to quit the army (to which he origin-
ally belonged), or had been cashiered by the sentence of a
court-martial.

Secondly, he was of all other men the person who was to
have gained by the death of Sir Theodosius Bough ton ; to
whose estate and property he succeeded as his brother-in-law.
No other human being had an interest in the case. Such is
the disposition in human nature (founded perhaps on a too
just knowledge of our feelings and principles of action), that
first suspicion always points to the person who is to gain by
it, as the author of any mischief of which the real perpetra-
tor is not known. The cui bono was not invented by Cassius
Severus, to whom it is ascribed, — but every man is alike the
rock of the accused, in this respect.

If, therefore, it was natural, on general grounds, that Mr.
Donnellan should be so suspected, it was also natural for him
to be sensible that he would be so, and consequently, to be
alarmed, distracted, and uneasy.

But it will be said, that, granting all this, he displayed

* Male's Pleas of the Crown, v. 2, p. 290.

xxvi IN TROD UCTION.

more uneasiness than was even natural to one in his situa-
tion. It is a delicate thing to answer this question, — it is a
nice thing to fix the standard of human feelings, — and to
say what degree of perturbation a man, already branded
with guilt and conviction, shall feel when placed under cir-
cumstances which make him to be suspected of a capital
crime.

Lawyers, and those accustomed to see and advise with per-
sons in that unfortunate predicament, only can tell the ter-
rible apprehensions that every man feels at the idea of being
a second time brought to a public trial ; it is altogether a new
view of human nature, and we seldom estimate, rightly, feel
ings which we have never experienced, nor expect to ex
perience in our own persons, nor have witnessed in that of
other persons ; —

" To thee no reason, —

" Who good has only known, and evil has not proved."

They who have been accustomed to carry on criminal
prosecutions, must be fully aware of the influence which a
former trial and conviction is calculated to have on almost
any accusation ; but in no case can that influence be greater
than where the trial turns on presumptive proof. For here
it is often the feelings, the prejudices, and opinion of the
the jury, that supply the want of evidence.

Suspicion is to be distinguished from proof, — a thousand
suspicions do not form one proof. We understand, in common
language, by the term suspicion, the imagining of something
ill, without proof. It may, therefore, form a proper ground
of accusation, but never of conviction : it seems to arise from
the general semblance of things, and often from the morals
of the individual, rather than from any distinct act. Thus,
in the civil law, a guardian is regarded as suspected, whose
morals render him so.

A suspicion is one thing, and a necessary inference an-

- r

INTRODUCTION. xxvii

other : a suspicion is an impression on another man's mind,
— an inference is made from the fact itself.

^There certainly was no overt act proved against the pris-
oner during the whole course of this trial ; it was not proved
that he gave the poison, or saw it given, or had such in his
possession. Many things, no doubt, in his demeanor and
conversation, gave strong suspicions against him ; but, if
the civil law positively forbids a man being condemned on
suspicion, can that be justified by ours ?

" The wisdom and goodness of our law appears in nothing
more remarkably, than in the perspicuity, certainty, and
clearness of the evidence it requires to fix a crime upon any
man, whereby his life, his liberty, or his property can be con-
cerned: herein we glory and pride ourselves, and are justly
fhe envy of all our neighbor nations. Our law, in such
cases, requires evidence so clear and convincing, that every
bystander, the instant he hears it, must be fully satisfied of
the truth and certainty of it. It admits of no surmises,
innuendoes, forced consequences, or harsh constructions, nor
anything else to be offered as evidence, but what is real and
substantial, according to the rules of natural justice and
equity."*

We have been the more full in our observations on this
trial, because it has been so often quoted with a sort of
triumph, as forming a model and illustration of the nature of
circumstantial evidence. It is an illustration, indeed, of how
little evidence one man has been convicted on; but it is an
illustration of nothing else.

We can never bring ourselves to believe, that it is neces-
sary to forfeit the life of a man on bare suspicion, on pre-
sumptions without proof, and on inferences unsupported by
evidence.

A rule of conduct, to be good, must be so on general
grounds, and in reference to the state of society in which we

* Lord Cowper's speech on the Bishop of Rochester's trial.

xxviii INTRODUCTION.

are placed ; and, happily, the wholesome state of British mor-
als does not require that men should be convicted on any evi-
dence but that which is established by law, and warranted by
sound reason.

The mischief of a nice conviction does not rest with the
particular case ; precedents are grounds of luw by the English
practice, and indeed the most general ground of our law of
evidence.

We have, in more than one instance, witnessed the doc-
trine of circumstantial evidence being hastily applied by
loose analogies and incidents, foreign to the intrinsic condi-
tions of the subject. But we do not feel ourselves at liberty
to hurt the tenderness due to living reputation, by recurrence
to recent instances; we adopt the more agreeable duty of
bearing testimony to the wise maxim of an eminent magis-
trate: "Xothiug can be more dangerous or unjust, in mat-
ters of fliis nature," says Mr. Chief Justice HYDE, speaking
of homicide, " than to establish material distinctions upon
points which do not enter into the intrinsic merits of the
case." (East's Pleas of the Crown, p. 241.)

The evidence of circumstances on every criminal trial,
should be confined as much as possible to the actual commis-
sion of the fact.

The intention, indeed, must always precede the act, and is
chiefly to be judged of by the antecedent circumstances. But
then each of these circumstances should be regarded as a facb
to be proved and established by evidence ; and, unless so es-
tablished, ought never to form a ground of conviction. We
must once more revert to the trial for illustration. On pass-
ing sentence, Mr. Justice BULLEB conveyed the following
opinion as to the motives : — " Probably the greatness of his
fortune caused the greatness of your offense; and I am fully
satisfied, on the evidence given against you, that avarice was
your motive, and hypocrisy served you with the means."

But where or how was this proved by evidence on the
trial ? The speech of a judge is to be taken out of the evi-

INTRODUCTION. xxix

dence adduced on the trial ; — if it is not so limited, it may be
difficult to fix its bounds.

In a criminal trial, and more especially in the trial for a
capital offense, everything is supposed to be governed by
fixed and known rules. There is here no room for the discre-
tion of a judge ; the proof by which the prisoner is to be tried
is as fixed as the law which condemns the crime ; at least, the
principles of that proof are to be stated by the judge to the
jury, as known and received maxims of reason, handed down
by a long train of precedents, or fixed by statutory enact-
ment. "Whatever the rules in "Westminister Hall are, it is
not therefore reason because it is a rule ; but because it is
reason, and reason approved of by long experience, therefore
it is a rule." (State Trials, vol. 4, p. 291.) The opinion of
Mr. Justice BULLER might have been very just, but if it was
not regularly formed, it was extra-judicial and of dangerous
example.

It is an observation warranted by the history of our crimi-
nal law, that all the instances by which innocent men have
lost their lives, have arisen from precedents against guilty
men ;* but laws were meant to protect the innocent, as well
as to punish the guilty.

The following observation, by Lord BACON, suggests the
caution with which men should give their assent to any pro-
position founded on a mere similarity of circumstances: —
" The mind," he observes, " has this property, — that it readily
supposes a greater order and conformity in things than it
finds ; and although many things in nature are singular, and
extremely dissimilar, yet the mind is still imagining parallel
correspondence and relations betwixt them which have no*
existence.

"Nor does this folly," he adds, " prevail only in abstract
tenets, but also in simple notions." (Novum oryanum, s. 2.
apliorim 45.)

,_ — '

* Omnia mala exampla, ex bonis initiis orta sun.

xxx INTRODUCTION.

Every one may prove the justice of these remarks, by his
reflections on what he sees every day occurring in common
life.

Weak men are always the first to assent and to admit of
loose analogies, imperfect resemblances, and inferences with-
out proof, — whilst men of stronger minds, and more reflec-
tion, look out for distinctions; they search for discriminations
in subjects nearly similar, and are slow in yielding their
assent to first impressions. Judgment consists in distinguish-
ing things which are nearly alike, without exactly being so.

In the general prejudice, which at present prevails for
circumstantial evidence, the mind, I am afraid, is rather dis-
posed to look out for analogies and resemblances, than for
discrimination.

f In almost every trial, it is the interest of the accuser to
1 accumulate his proofs, whilst the safety of the prisoner con-
sists in considering these, separate and apart; this practice,
therefore, has a tendency rather to convict than to acquit.

We should lament to advance any thing that might tend
to weaken the facility of detecting crimes ; but that facility
may be increaped by establishing certain rules for the deter-
mination of proof.

Without presuming to state a body of general rules, we
may be allowed to show where some obvious principles have
been violated. All instruction proceeds safest by negatives and
exclusives to what is positive and affirmative. And it was this
principle which led us to dwell so particularly on the above case.
We conceive one great error has arisen from the popular say-
ing, that circumstances cannot lie ; from the idea that cir-
cumstantial evidence is equivalent to direct proof.

And, perhaps, from the vanity of forming resemblances,
where (if that passion in the judicial character is ever allow-
able), the vanity should rather be in perceiving distinctions.

Nothing is more dangerous in the mouth of a judge, than
popular brocards, barren generalities, and loose unsettled
maxims, which carry away the attention of the jury from the

IN TROD UCTION. xxxi

intrinsic evidence of the case itself, and prevent the free
exercise of their own understandings. It is not every jury-
man that can understand a general theory, but every man of
sense can compare what he hears at the trial, with similar
circumstances, as falling under his own experience, and so
estimate for himself the credibility of the evidence.

I deprecate an argumentative judge, reasoning a jury into a
belief of guilt or innocence, rather than leaving them to
judge from their own feelings; from those feelings which God
and nature have bestowed on them, as the safeguard of inno-
cence, and the true measure of human conduct.

The following observation, in the charge so often alluded
to, deserves particular remark : — " It is not within the reach
and compass of human abilities to invent a train of circum-
stances which shall be so connected together as to amount to
a proof, without affording opportunities of contradicting a
great part, if not all, of these circumstances."

This is one of those general sayings which, coming from
high authority, is allowed to pass without examination, and,
from being often repeated, no one thinks to doubt of its truth.
No other remark, however, was ever more refuted by experi-
ence. If the observation was just, we should find it illus-
trated by practice; but we know that there are infinitely
more instances of mistaken convictions on circumstantial
evidence, than by any other species of proof whatever.
" Reducing general words to particular facts, clears the
sophistry of them."*

I beg here to dwell, a little more minutely, on the hard-
ship of requiring a prisoner to controvert a train of circum-
stantial evidence. For, how can a prisoner, altogether
innocent of the charge, controvert circumstances, or an
account of events, with which he is unacquainted. A man,
charged with the commission of a crime, at a period long an-

* Remarks on College's trial, by Sir J. Hawles. State Trials, vol. 3,
p. 621.

xxxii IN TROD UCTION.

terior to the trial, if innocent, and at a distance from the
place, at the time of its occurrence, can only establish his
innocence by one of two methods : — first, by showing a con-
tradiction in the circumstances of the proof itself; or,
secondly, hy establishing an alibi, — that is, by showing that
lie w:.)s at a different place at the time.* In regard to the first
mode of refuting the charge: if he is ignorant of the facts,
if he is unaccustomed to the nature of legal argument, he
may not easily confute the chain of circumstances. A pre-
meditated story is always so made up as to bear the appear-
Iance of consistency. Men will believe a probable falsehood
rather than a singular truth; and, in regard to the proof of
an alibi, if the prisoner does not happen to recollect the day
or cannot, perhaps, recall to mind where he chanced to be on
that day, he is left without a defense. The proof of a nega-
tive is always difficult, often impossible.

But what is the situation of a person charged with a capi-
tal crime ? Suspicions of this sort generally fall upon the
needy and unfortunate. He is brought from a jail, where he
has been perhaps long confined, distracted and agitated with
his situation ; he has none to assist him or suggest to him
what course to pursue ; and no counsel is allowed to plead for
him, and assert his innocency of the facts charged. A long
train of circumstances are offered by the witnesses, of the
whole of which he is ignorant, and, therefore, unprepared to
ask the necessary questions, or to point out to the jury the
incongruity of the story advanced: — his very attempt to do
so, unsuccessfully (that is to say, if he makes observations on
the evidence, which are not explanatory or correct), will be
held an argument of his guilt. But the facts have been sworn
to, and his personal appearance is perhaps against him; and
his character, — it may be, suffering under prejudice. If a
weak magistrate happens to sit on the bench (and weak men

* The character of the witnesses is, no doubt, always a matter of the
most important consideration.

INTRODUCTION. xxxiii

4

sometimes find their way to the bench, as well as to other
places) ; if the judge is infirm, or his attention exhausted by
the fatigue of a long trial ; and if, in summing up, he loses
sight of the chain of incidents, assumes a fact as established
before it is so, — endeavors to prove facts by other facts, which
are not proved themselves, — forgets the attention which is due
to the character of the witnesses, and has allowed the counsel
for the prosecution, in his opening speech, to prejudice and
inflame the minds of the jury! —

It were superfluous to ask what the result of such a trial
must naturally be. We hope, and believe, that such a con-
currence of incidents, hostile to justice, is very uncommon.

But to return to the proposition in the charge : can it
ever be admitted that the number of circumstances alleged
against a prisoner, facilitates the refutation? Surely the diffi-
culty of defense is increased by the multiplicity of proof that
it has to contend with! The attention is distracted; and the
very embarrassment incident to the occasion, is alone suffi-
cient to bereave any common man of his faculties.

The civil law has foreseen the embarrassments, which a
prisoner must always be under, from a variety of witnesses
being produced against him; and has, therefore, left it to the
discretion of the judge to moderate their number. It might
as well^be said, that a prisoner has an aclvantag3 in the mul-
tiplicity of witnesses opposed to him, because if false he can
always refute some of them.

But, if you break the chain of circumstances, it will be
said, in one link, the whole structure falls to the ground.
This, no doubt, ought to be the consequence. But is the fact
so? Does experience warrant the observation? Are we to
suppose that all those who have been irregularly convicted,
mad£ no defense, and broke no part of the chain ? They
must naturally have offered something to the -consideration of
the jury. Yet still, we see, that the general effect of the
whole, the multiplicity of the circumstances, pointing against
C

xxxiv INTRODUCTION.

the prisoner, has been thought sufficient to warrant convic-
tion.

It happens, not unfrequently, that a prisoner is not ap-
prized of the evidence intended to be produced against him.
If the case is altogether false on the part of the prosecution,
the difficulty of defense is increased. For a man can only re-
fute a false story, by being acquainted with some part of it.
The true case must always be opposed to the false one. Thus,
in the case of two men who were tried some few years ago,
for the murder of Mr. Steele, on Hounslow Heath, a long de-
tail of the circumstances attending the occasion, was given in
evidence against them. But if they were not, as they as-
serted, present on the occasion, and knew nothing of either
Mr. Steele or the murder, how was it possible for them to re-
fute or disprove the circumstances ?

The accusation was not brought until some years after the
murder. They could not bring to recollection where they
were on that day, and so failed in establishing an alibi.

A different man has been since brought to trial for that
very murder. It is true that the judges did not allow the
evidence to be entered upon, because they thought that it was
insufficient on the statement of the counsel in his opening
speech.

It should be always kept in mind, that circumstantial evi-
dence is merely supplemental; and is only resorted to from
the want of original and direct proof. And it never can be
said that what is secondary, is equal to that which is original,
— the thing substituted equal to that which it is meant to
supply.

And this distinction seems fully recognized by Lord Chief
Baron GILBERT. " "When the fact itself cannot be proved,
that which conies nearest to the proof of the fact, is the proof
of the circumstances that necessarily and usually attend such
facts, and called presumptions ; and not proof, for they stand
instead of the proofs of the fact till the contrary be proved."
(Gilbert's Law of Evidence, vol. 1, p. 142.)

IN TROD UCTION. xxxv

A regard to the peace and good order of society, certainly
requires that crimes shall be liable to be proved by circum-
stantial evidence. But a regard to the well being of society
likewise demands, that the mode of proof should be regulated
by some fixed rules. If the nature of the thing admits of but
few rules, for that very reason, those few should be the more
distinctly observed. This principle is excellently illustrated
by the deep G-ravina, who somewhere observes (for the book is
not at hand for reference), that as the military state admits of
but few laws, those few should be the more distinctly ob-
served, as they could only have been introduced into an army
or camp from a strong sense of their necessity.

Legal proceedings would be vague and uncertain, judges
would become arbitrary, and innocence would be exposed to
the resentment of witnesses, if some general and fixed rules
were not observed for the discovery of truth.

Of these the following are perhaps the chief : —

1. The actual commission of the crime itself (the corpus de-
licti) shall be clearly established.

2. Each circumstance shall be distinctly proved.

3. The circumstance relied on, shall be such as is necessary
or usually incident to the fact charged.

4. When the number of circumstances depend on the testi-
mony of one witness, that number shall not increase the
strength of the proof. For, as the whole depends on the ve-
racity of the witness, when that fails the whole fails.

5. Direct evidence shall not be held refuted from^leing op-
posed to circumstances incongruous with that evidence. Because
a certain degree of incongruity is incident to every man's
conduct.

6. TJie judge, in summing up, shall assume no fact or cir-
cumstance as proved ; but shall state the whole hypothetically
and conditionally ; leaving it entirely to the jury, to determine
how far the case is made out to their satisfaction.

7. The difficulty of proving the negative shall in all cases
be allowed due weight. But the silence of the prisoner as to

xxxvi INTRODUCTION.

facts, which, if innocent, he might have explained, shall be
held an argument against him. This, of course, proceeds
upon the supposition, that he stood fully apprized, before his
trial, of all that was intended to be produced.

8. The counsel for tlw prisoner shall be allowed to object
freely to the production of any evidence, as not proper to go to
the jury, or as not being of legal credence. On Captain Don-
nellan's trial, the counsel do not appear to have always
availed themselves of this privilege.

The liberty of objecting to any piece of evidence, ought,
on every occasion, to be strenuously exerted; as supplying,
in a great measure, the right of making the defense.

9. The jury shall be as fully convinced of the guilt of the
prisoner, from the combination of the circumstances, as if
direct proof had been brought.

It should always be considered, whether the connection
betwixt the circumstances and the crime is necessary, or only
casual and contingent ; and whether, therefore, the circum-
stances necessarily involve the guilt of the prisoner, or only
probably so ; whether these circumstances might not all exist,
and yet the accused be innocent.

It seems desirable, that some inchoate act, approaching to
the crime, should be proved on the prisoner ; and that he
should not be convicted on general appearances, — such as
from being found in a certain situation. The improper con-
viction seem chiefly to have been owing to a neglect of this
rule. Strong appearances, but without any act proved
against the prisoner, have too often turned out unfounded.

It is sometimes said, in summing up by the judge, that
the evidence is the best that the nature of the case can be
supposed to afford ; but this, certainly, is no reason for the
jury being satisfied with it. In the first place, the nature of
the case is only to be known by the evidence. The case of an
innocent man must always be of a nature to afford very little
evidence ; but the jury, let the case be what it will, must be
distinctly persuaded of the guilt of the prisoner, before they

IN TROD UCTION. xxxvii

return such a verdict. Agreeably to the common law, where
the facts have gone regularly before a jury, and there is no
misdirection from the judge in summing up, the proof is
complete. When the jury is satisfied, the law is satisfied. No
principle can be at once more calculated to facilitate the de-
tection of crimes, to ensure the safety of innocence, and to
maintain the general peace of society.

10. Where the body of the act is distinctly sworn to, a vari-
ation in the circumstances does not destroy the proof. "If
several independent witnesses, of fair character, should agree
in all the parts of a story (in testifying, for instance, that a
murder or a robbery was committed at a particular time, in a
particular place, and by a certain individual), every court of
justice in the world would admit the fact, notwithstanding
the abstract possibility of the whole being false. Again, if
several honest men should agree in saying that they saw the
king of France beheaded, though they should disagree as to
the figure of the guillotine, or the size of his executioner, as
to the king's head being bound or loose, as to his being com-
posed or agitated in ascending the scaffold, yet every court of
justice in the world would think that such difference, respect-
ing the circumstances of the fact, did not invalidate the evi-
dence respecting the fact itself.

" When you speak of the whole of a story, you cannot mean
every particular circumstance connected with the history, but
not essential to it ; you must mean the pith and marrow of a
story ; for it would be impossible to establish the truth of
any fact (of Admirals Byng or Keppel, for example, having
neglected or not neglected their duty), if a disagreement in
the evidence of witnesses, in minute points, should be con-
sidered as annihilating the weight of the evidence in points of
importance. In a word, the relation of a fact differs essen -
tially from the demonstration of a theorem ; if one step is left
out, one link in the chain of ideas constituting a demonstra-
tion is omitted, the conclusion will be destroyed ; but a fact
may be established notwithstanding a disagreement of wit-

xxxviii IN TROD UCTION.

nesses in certain trifling particulars of their evidence respect-
ing it."*

The following rule is the converse of the preceding one :

11. Where the leading fact or crime is only to be collected
from circumstances, a material variation in these will defeat
the effect of the whole.

For, as each particular is to have an effect on the general
conclusion, a variation in the circumstances may give a differ-
ent color to the whole transaction.

A system of propositions is only true, because each of the
propositions, of which it is composed, is true.

12. There being no repugnance in the chain of circum-
stances, is a proof that a thing may be ; not that it is : though
there /being a repugnance, is a proof that it cannot be. What-
ever does not involve a contradiction, is possible ; whatever in-
volves one, is impossible.

13. The absence of the proof, naturally to be expected, is a
strong argument against the existence of any fact alleged.
This applies particularly to cases where violence is charged.

"It is an undoubted truth" (Lord MANSFIELD observed
in the Douglass cause), "that judges, in forming their
opinion of events, and in deciding upon the truth or falsehood
of controverted facts, must be guided by the rules of proba-
bility; and, as mathematical or absolute certainty is seldom
to be attained in human affairs, reason and public utility re-
quire that judges, and all mankind, in forming their opinion
of the truth of facts, should be regulated by the superior
number of the probabilities on the one side or the other,

* Apology for the Bible, p. 344.

We shall search in vain our State Trials, for a happier illustration of
the principle than the above, from the elegant pen of Doctor Watson.
" Literary men," it has been observed, " have marked superiority over
lawyears, whenever they assume their profession."

Quae argumenta ad quern modum probandae cuique rei sufficiant, nullo
certo modo satis definiri potest.

Ex sententia animi tui te aestimare oportet, quid aut credas, aut parum
probatum tibi opinaris (ff. lib. 22, tit. 5, s. 8).

IN TROD UCTION. xxxix

•whether the amount of these probabilities be expressed in
words and arguments, or by figures and numbers."

Applied to the affairs of civil life in reference to which the
observation was made, the proposition is excellent; but the
rule does not hold in criminal cases. The impression on the
mind of the jury, in a criminal case, must be, not that the
prisoner is probably guilty, but that he really and absolutely
is so ; — where they doubt, they are to acquit.

It is often said, in respect to evidence of this sort, if you
break the chain of circumstances, the whole falls to the
ground. It is material, always, to be apprised of the meaning
of terms, before we argue as to their effect. What is the im-
port of the term ? In what does this interruption consist ?
The Douglass cause turned entirely on circumstantial evi-
dence ; yet neither the speeches of the judges, nor the singu-
larly acute letters of Mr. Stewart, on the subject of the trial,
afford any solution of the term. The chain appears, on both
sides of the question, repeatedly broken, and as often re-
newed; the want of the fact is supplied by argument, and
the argument invalidated by the want of the fact, in endless
prolixity.

We hazard an explanation of it with great diffidence : —
the chain of circumstances is broken, whenever there is such a
defect in the thread of the narrative as cannot be accounted
for ; or, such a contradiction in the statement, as is irrecon-
cilable with probability.

We will not add to the number of the above rules, lest we
might appear to aim at forming a technical system for the
belief or disbelief of facts, independent of the free exercise of
the understanding over the circumstances of the case.

We must never bind ourselves down to believe or disbe-
lieve, on general grounds, abstracted from the condition of
times, persons, motives, and all the variety of relations of
which the particular case happens to consist. Irregular, ca-
pricious, and shifting as man is, in all his actions, we can
never establish absolute grounds for judging of these.

FAMOUS CASES

OF

CIRCUMSTANTIAL EVIDENCE,

i.

THEEE lived in Paris, more than a century ago, an
old dame who kept a shop in a house not far distant
from the Place St. Michel. She was reputed rich,
and was supposed to keep her money in the house.
Her only servant was a boy who had lived with her
for several years ; he slept in the house, but high up
in the fourth story, or rather loft, which could only be
reached by a staircase, such as was common in those
days, outside the house wall, the old lady sleeping in
a room on the ground floor at the back of the shop.
It was the boy's duty to lock the shop door at night
and retain possession of the key. One morning the
neighbors found the shop door open much earlier than
usual, and as there was no one to be seen in the shop,
some of them, suspecting that all was not right, went
in. There were no marks betokening a violent entry
of the premises, but the old lady was discovered dead

FAMOUS CASES OF

in her bed, having received many wounds, such
wounds, to all appearance, having been inflicted with
a knife ; and a knife covered with blood was found
lying in the middle of the shop floor. One hand of
the corpse yet grasped a thick lock of hair, and in
the other was a neck-handkerchief. It was proved
beyond doubt that the knife and the neck-handker-
chief belonged to the boy who had been so long her
servant, and the lock of hair also matched his exactly.
He was arrested, charged with the crime, and (proba-
bly under torture) confessed it, and suffered capital
punishment as a murderer. He was innocent, not-
withstanding. Not very long after his execution
another boy, a servant in a neighboring wine-shop,
being taken into custody for another offense, and
seized with the pangs of remorse, confessed to the
murder of the old dame. He had long been familiarly
acquainted with the shop boy, who had suffered inno-
cently, and had been in the habit of dressing his hair.
He had managed by degrees to save up enough of the
lad's hair from the comb he made use of to make
into a tolerably stout lock, and this he had put into
the hand of the dead woman. He had stolen one of
the boy's neck-handkerchiefs, and also his knife, and
by taking an impression in wax of the key, had been
able to construct another by which to gain entrance

CIRCUMSTANTIAL EVIDENCE. 3

to the shop. At the first glance, the evidence in this
case seems at once clear, natural and spontaneous ;
but the very completeness of the evidentiary facts
ought to have aroused suspicion; and there is no
doubt that had a rigid investigation been set on foot,
the innocence of the accused would have been
established.

FAMOUS CASES OF

II.

A CASE of fabricated evidence of a sufficiently
remarkable kind occurred near Hull, in the year
1742. A gentleman traveling to that place was
stopped" late in the evening, about seven miles from
the town, by a masked highwayman, who robbed
him of a purse containing twenty guineas. The high-
wayman galloped off by a side road, and the trav-
eler, in no way injured, save in purse, continued his
journey. It was now growing la,te, and, being ex-
cited and alarmed by what had happened, he
naturally looked out for a place of shelter, and,
instead of riding on to Hull, stopped at the first inn
he came to, which was the "Bell Inn," kept by Mr.
James Brunell. He went into the kitchen to give
directions for his supper, and there he related to
several persons the fact of his having been robbed,
to which he added the further information, that when
he traveled he always gave his gold a peculiar mark,
and that every guinea in the purse taken from him

CIRCUMSTANTIAL EVIDENCE. 5

was thus marked. He hoped, therefore, that the
robber would yet be detected. Supper being ready,
he withdrew. The gentleman had not long finished
his supper, when Mr. Brunell came into the parlor
where he was, and, after the usual inquiries of land-
lords as to the desires of the guest, observed, " Sir,
I understand you have been robbed in this neighbor-
hood this evening?" "Yes," said the traveler, "I
have." "And your money was marked?" con-
tinued the landlord. "It was so," was the reply.
"A circumstance has arisen," resumed Mr. Brunell,
"which leads me to think I can point out the rob-
ber. Pray, at what time in the evening were you
stopped." "It was just setting in to be dark,"
replied the traveler. "The time confirms my suspi-
cions," said the landlord; and he then informed the
gentleman that he had a waiter, one John Jennings,
who had of late been so very full of money, and so
very extravagant, that he (the landlord) had been
surprised at it, and had determined to part with him,
his conduct being every way suspicious ; that long
before dark that day, he had sent out Jennings to
change a guinea for him ; that the man had only
come back since the arrival of the traveler, saying
he could not get change ; and that, seeing Jennings
to be in liquor, he had sent him off to bed, deter-

FAMOUS CASES OF

mined to discharge him in the morning. Mr. Brunei!
continued to say, that when the guinea was brought
back to him, it struck him that it was not the same
he had sent out for change, there being on the
returned one a mark which he was very sure was
not upon the other ; but he should probably have
thought no more of the matter, Jennings paving
frequently had gold in his pocket of late, had not the
people in the kitchen told him what the traveler had
related respecting the robbery, and the circumstance
of the guineas being marked. He (Mr. Brunell) had
not been present when this relation was made, and,
unluckily, before he heard of it from the people in
the kitchen, he had paid away the guinea to a man
who lived at some distance, and who had now gone
home, "The circumstance, however," said the land-
lord, in conclusion, " struck me so very strongly,
that I could not refrain, as an honest man, from
coming and giving you information of it."

Mr. Brunell was duly thanked for his disclosure.
There appeared from it the strongest reasons for
suspecting Jennings ;• and if, on searching him, any
others of the marked guineas should be found, and
the gentleman could identify them, there would then
remain no doubt in the matter. It was now agreed
to go up to his room. Jennings was fast asleep ; his

CIRCUMSTANTIAL EVIDENCE. 7

pockets were searched, and from one of them was
drawn forth a purse containing exactly nineteen
guineas. Suspicion now became certainty ; for the
traveler declared the purse and guineas to be
identically those of which he had been robbed.
Assistance was called ; Jennings was awakened,
dragged out of bed, and charged with the robbery.
He denied it firmly ; but the circumstances against
him were too strong, and he was not believed. He
was secured that night, and next day was taken
before a justice of the peace. The gentleman and
Mr. Brunell deposed to the facts upon oath ; and
Jennings, having no proofs, nothing but mere
assertions of innocence, which could not be credited,
was committed to take his trial at the next assizes.
So strong seemed the case against him, that most
of the man's friends advised him to plead guilty,
and throw himself on the mercy of the court. This
advice he rejected, and when arraigned, pleaded not
guilty. The prosecutor swore to the fact of the rob-
bery ; though, as it took place in the dusk, and the
highwayman wore a mask, he could not swear to the
person of the prisoner, but thought him of the same
stature nearly as the man who robbed him. To the
purse and guineas, when they were produced in
court, he swore — as to the purse, positively, and as

8 FAMOUS CASES OF

to the marked guineas, to the best of his belief ; and
he testified to their having been taken from the
pocket of the prisoner.

The prisoner's master, Mr. Brnnell, deposed as to
the sending of Jennings for the change of a guinea,
and to the waiter's having brought him back a
marked one instead of the one he had given him
unmarked. He also gave evidence as to the discov-
ery of the purse and guineas on the prisoner. To
consummate the proof, the man to whom Mr. Brunell
had paid the guinea, as mentioned, came forward
and produced the coin, testifying at the same time,
that he had received it on the evening of the rob-
bery, from the prisoner's master, in payment of a
debt ; and the prosecutor, on comparing it with the
other nineteen, swore to its being, to the best of his
belief, one of the twenty marked coins taken from
him by the highwayman, and of which the other
nineteen were found on Jennings.

The judge summed up the evidence, pointing out
all the concurring circumstances against the prison-
er ; and the jury, convinced by this strong accumula-
tion of testimony, without going out of court, brought
in a verdict of guilty. Jennings was executed some
time afterwards, at Hull, repeatedly declaring hia
innocence up to the moment of his execution.

CIRCUMSTANTIAL EVIDENCE. 9

Within a twelvemonth afterwards, Brunell, the
master of Jennings, was himself taken up for a
robbery committed on a guest in his house, and the
fact being proved on trial, he was convicted and
ordered for execution. The approach of death
brought on repentance and confession. Brunell not
only acknowledged he had been guilty of many
highway robberies, but owned that he had commit-
ted the very one for which Jennings suffered. The
account which he gave was, that after robbing the
traveler, he had reached home before him by swifter
riding, aod by a nearer way. That he found a man
at home waiting for him, to whom he owed a little
bill, and to whom, not having enough of other money
in his pocket, he gave away one of the guineas which
he had just obtained by robbery. Presently came
in the robbed gentleman, who, whilst Brunell, not
knowing of his arrival, was in the stable, told his
tale, as before related, in the kitchen. The gentle-
man had scarcely left the kitchen before Brunell
entered it, and there, to his consternation, heard of
the facts, and of the guineas being marked. He
became dreadfully alarmed. The guinea which he
had paid away he dared not ask back again ; and
as the affair of the robbery, as well as the circum-
stance of the marked guineas, would soon become

io FAMOUS CASES OF

publicly known, he saw nothing before him but
detection, disgrace, and death. In this dilemma, the
thought of accusing and sacrificing poor Jennings
occurred to him. The state of intoxication in which
Jennings was, gave him an opportunity of concealing
the purse of money in the waiter's pocket. The rest
the reader knows.

CIRCUMSTANTIAL EVIDENCE. n

III.

JAMES HAREIS kept a public house within eighteen
miles of York, having in his service a man named
Morgan, who, to his other occupations, added that of
gardener. It happened that one Grey, a blacksmith,
journeying on foot to Edinburgh, supped and slept
at this public house. Next morning Morgan deposed
before a magistrate, that his master strangled Grey
in his bed— that he actually saw him commit the
murder — that he in vain endeavored to prevent it,
his master insisting that the man was in a fit, and
that he was merely endeavoring to assist him. Mor-
gan further swore, that, affecting to believe this, he
left the room ; but after retiring, looked through the
keyhole, and saw the murderer rifling the pockets of
the deceased. Harris, as well he might, vehemently
denied the accusation, and, haplessly for himself,
threatened a prosecution for perjury. As no mark
of violence was .visible on the body, Harris was on
the point of being discharged, when the maid-servant
demanded to be heard. She swore that from a wash
house window, as she was descending the stairs, she

12 FAMOUS CASES OF

saw her master take some gold from his pocket, and
having carefully wrapped it np, bury it under a tree
in the garden, the position of which she indicated.
Upon this, Harris turned pale, and the earth under
the tree having been searched by a constable, thirty
pounds in gold was found wrapped up in a paper.
Harris then admitted that he had buried the money
for security's sake, but answered in so confused and
hesitating manner, that he was committed. He was
tried at. York for the murder. The man, the maid,
the constable, and the magistrate, were all examined,
and no suspicion attaching to their testimony, a ver-
dict of guilty was at once pronounced. He died
protesting his innocence, and ere long his innocence
became manifest to all men. The real facts were as
follows. In a quarrel between Harris and his ser-
vant, Morgan received a blow, and vowed revenge.
Soon afterwards, Grey's arrival furnished the oppor-
tunity. The part which the servant maid played in
the business is explained by the fact that she and the
gardener were sweethearts. Seeing her master one
day apparently hiding something under a tree, she
apprised Morgan, who, on digging, found five
guineas concealed there. On this, they agreed to
purloin the hoard, when it should amount to a sum
sufficient to enable them to set up in business. But

CIRCUMSTANTIAL EVIDENCE. 13

Harris's threat of a prosecution for perjury so terri-
fied the girl, that she resolved to save her lover by
the sacrifice both of the money and of her master's
life. A subsequent quarrel, the not unusual conse-
quence of guilt like theirs, betrayed the truth.
They died of jail fever, on the day previous to
that appointed for their trial. It was afterwards
ascertained that Grey had had two apoplectic fits,
and had never been in possession of five pounds
at a time in his life.

In this melancholy case, it will be observed that
the victim of circumstantial evidence himself uncon-
sciously prepared the principal fact which told
against him.

FAMOUS CASES OF

IV.

THE most striking case of circumstantial evidence,
in which the testimony against the accused was
altogether fabricated by the accuser, is one taken
from the Danish records, and which, from its im-
pressiveness, has been made the subject of remark
by both Danish and German writers. The, unhappy
fate of the clergyman, Soren Qvist, is familiar to
his countrymen, though many generations have
passed away since the events which are about to
be related.

Soren was the pastor of the little village of
Veilby, situated a few miles from Grenaee, in the
Jutland peninsula. He was a man of excellent
moral character, generous, hospitable, and diligent
in the performance of his sacred duties ; but he
was also a man of constitutionally violent temper,
which he lacked the ability to restrain, and was
consequently subject at times to fierce outbreaks of
wrath, which were a scourge to his household
when they occurred, and a humiliation to himself.
Like most Danish clergymen of that day, he was

CIRCUMSTANTIAL EVIDENCE. 15

a tiller of the soil, as well as a preacher of the
word ; and from the produce of his tithes, and the
cultivation of his farm, realized a comfortable com-
petence. He was a widower with two children — a
daughter who kept house for him, and a son hold-
ing an officer's commission in the army. At Ingvor-
strup, a village not far from Veilby, dwelt a cattle-
farmer, one Morten Burns, who, by means anything
but honest and honorable, had acquired considerable
property, and who was in ill repute as a reckless
self-seeker, and oppressor of the poor. This man
Morten thought fit to pay court to the pastor's
daughter, but his suit was rejected by both parent
and child ; and either the refusal, or the manner of
it, so irritated the suitor that he swore secretly to
be revenged on both.

Some months later, when the short-lived suit had
been forgotten, the pastor, being in want of a farm
servant, engaged Niels Burns, a poor brother of the
rich Morten, the discarded lover. Niels soon showed
himself to be an utterly worthless fellow, lazy, im-
pudent, and overbearing ; and the result was a con-
stant recurrence of quarrels and mutual recrimina-
tions between him and his master. Soren on more
than one occasion gave the fellow a thrashing, which
did not at all tend to improve the relations between

1 6 FAMOUS CASES OF

them. These relations, however, were destined to
come to a speedy close. The pastor had set Niels
to dig a piece of ground in the garden, but on com-
ing out he found him not digging, but leisurely
resting on his spade and cracking nuts which he
had plucked, his work being left undone. The
pastor scolded him angrily ; the man retorted that
it was no business of his to dig in the garden ; at
which Soren struck him twice in the face, and the
fellow, throwing down the spade, retaliated with a
volley of abuse. Thereupon the old man lost all
self-control, and seizing the spade, he dealt the fellow
several blows with it. Mels fell to the earth like one
dead ; but when his master in great alarm raised him
up he broke away, leaped through the hedge, and
made off into the neighboring wood. From that time
he was seen no more, and all inquiries after him
proved vain. The above was the pastor's account
of the facts.

Ere long strange rumors began to circulate in
the neighborhood, and, as a matter of course, they
reached the pastor' s ears. Morten Burns was known
to have said that "he would make the parson pro-
duce his brother even if he had to dig him out of
the earth." Soren was intensely pained at the
calumny implied, and instituted at his own expense

CIRCUMSTANTIAL EVIDENCE. 17

a quiet search after the missing man — a search which
failed altogether. Even before that failure was
known, Morten Burns, in fulfillment of his threat,
applied to the district magistrate, taking with him
as witnesses one Larsen, a cottager, and a laborer's
widow and daughter, on the strength of whose
testimony he declared his suspicion that the pastor
had slain his brother. The magistrate represented
to him the risk he ran in making so serious a charge
against the clergyman, and advised him to weigh
the matter well before it was too late. But Morten
persisted in his design, and the statements of the
witnesses were taken down. The widow Karsten
deposed, that on the very day when Niels Bruns
was said to have fled from the parsonage, she and
her daughter Else had passed by the pastor's garden
about the hour of noon. When they were nearly
in front of the hedge which encloses it on the eastern
side, they heard some one calling Else. It was
Niels, who was on the other side of the hazel bushes,
and who now bent back the branches, and asked
Else if she would have some nuts. She took a
handful, and then asked him what he was doing
there? He answered, that the pastor had ordered
him to dig, but that the job did not suit him, and
he preferred cracking nuts. Just then they heard a

1 8 FAMOUS CASES OF

door in the house open, and Niels said, "Now,
listen, and you shall hear a preachment." Directly
after they heard (they could not see, because the
hedge was too high and too thick) how the two
quarreled, and how the one paid the other in kind.
At last they heard the pastor cry, "I will beat
thee, dog, until thou liest dead at my feet !"
Whereupon there were sounds as of blows, and
then they heard Niels calling the pastor a rogue
and a hangman. To this the pastor made no reply ;
but they heard two blows, and they saw the iron
blade of a spade and part of the handle swing twice
above the hedgerow, but in whose hands they could
not discern. After this all was quiet in the garden,
and, somewhat alarmed and excited, the widow
and her daughter hurried on their way.

Larsen disposed that on the evening of the day
following that of the disappearance of Niels, as he
was returning home very late from Tolstrup, and
was passing along the footpath which flanks the
southern side of the pastor's garden, he heard from
within the garden the sound of some one digging
the earth. At first he was rather startled ; but see-
ing that it was clear moonlight, he determined to
find out who it was that was working in the garden
at that late hour ; whereupon he slipped off his

CIRCUMSTANTIAL EVIDENCE. 19

wooden shoes, climbed up the hedge, and parted
the tops of the hazel bushes so as to enable himself
to see. Then he saw the pastor in the green dressing-
gown he usually wore, and with a white night-cap
on his head, busied in leveling the earth with a
spade ; but more than this be did not see, for the
pastor turned suddenly round as if some sound
had struck his ear, and witness being afraid of de-
tection, let himself down, and ran away.

When the witnesses had thus disposed, Morten
demanded that the parson should be arrested.
Wishing to avoid such a scandal if possible, the
magistrate, who was a friend of Soren's, proposed
that they should go together to the parsonage,
where they would probably receive a satisfactory
explanation of the facts deposed to. Morten con-
sented to this, and the party set out. On approach-
ing the house they saw Soren coming to meet them
— when Morten ran forward, and bluntly accused
him of murdering his brother, adding that he was
come with the magistrate to make search for the
body. The pastor made him no reply, but courte-
ously greeting the magistrate, gave directions to
the farm servants, who now gathered round, to aid
by all the means in their power the search about
to be made. Morten led the way into the garden,

20 FAMOUS CASES OF

and after looking round for some time, pointed to
a certain spot and called upon the men to dig
there. The men fell to work, and Morten joined
them, working with a show of frantic eagerness.
When they had dug to a little depth the ground
proved so hard that it was evident it had not been
broken up for a long while. Soren had looked on
quite at ease, and now he said to Morten, "Slanderer,
what have you got for your pains?" Instead of
replying, Morten turned to Larsen, and asked him
where it was that he had seen the parson digging.
Larsen pointed to a heap of cabbage stalks, dried
haulms, and other refuse, and said he thought that
was the place. The rubbish was soon removed, and
the men began digging at the soil beneath. They
had not dug long, when one of them cried out,
"Heaven preserve us!" and as all present crowd-
ed to look, the crown of a hat was visible above
the earth. "That is Mel's hat!" cried Morten,
"I know it well — here is a security we shall find
him! Dig away!" he shouted with fierce energy,
and was almost as eagerly obeyed. Soon an arm
appeared, and in a few minutes the entire corpse
was disinterred. There could be no doubt that it
was the missing man. The face could not be re-
cognized, for decomposition had commenced, and

CIRCUMSTANTIAL EVIDENCE. 21

the features had been injured by blows ; but all his
clothes, even unto his shirt with his name on it,
were identified by his fellow servants ; even a leaden
ring in the left ear of the corpse was recognized as
one which Niels had worn for years.

There was no alternative but to arrest the pastor
on the spot — indeed, he willingly surrendered him-
self, merely protesting his innocence. "Appearances
are against me," he said; "surely this must be the
work of Satan and his ministry ; but He still lives
who will at his pleasure make my innocence mani-
fest. Take me to prison ; in solitude and in chains
I will await what He in his wisdom shall decree."

The pastor was removed to the goal at Grenaee
the same night, and on the following day came the
judicial examination. The first three witnesses con-
firmed their former statements on oath. Moreover,
there now appeared three additional witnesses, viz :
the pastor's two farm servants and the dairymaid.
The two former explained how on the day of the
murder they had been sitting near the open window
in the servant's room, and had heard distinctly how
the pastor and the man Neils were quarreling, and
how the former had cried out, "I will slay thee,
dog! thou. shalt lie dead at my feet!" They
added that they had twice before heard the pastor

22 FAMOUS CASES OF

threaten Niels with the like. The dairymaid de-
posed that on the night when Larsen saw the pas-
tor in the garden, she was lying awake in bed,
and heard the door leading from the passage into
the garden creak ; and that when she rose and
peeped out, she saw the pastor, in his dressing-
gown and night-cap, go out into the garden. What
he did there she saw not ; but about an hour after-
wards she again heard the creaking of the door.

When asked what he had to say in his de-
fense, the pastor replied solemnly, "So help me
God, I will say nothing but the truth. I struck
deceased with the spade, but not otherwise than
that he was able to run away from me, and out of
the garden ; what became of him afterwards, or
how he came to be buried in my garden, I know
not. As for the evidence of Larsen and the dairy-
maid, who say that they saw me in the garden in the
night, it is either a foul lie or it is a hellish delu-
sion. Miserable man that I am ! I have no one
on earth to speak in my defense — that I see clearly ;
if He in heaven likewise remains silent, I have only
to submit to His inscrutable will."

When, some weeks later, the trial came on,
two more fresh witnesses were produced. They de-
clared that on the oft-mentioned night they were pro-

CIRCUMSTANTIAL EVIDENCE. 23

ceeding along the road which runs from the pastor's
garden to the wood, when they met a man carry-
ing a sack on his back, who passed them and
walked on in the direction of the garden. His face
they could not see, inasmuch as it was concealed by
the overhanging sack ; but as the moon was
shining on his back, they could plainly descry that
he was clad in a pale green coat and a white night-
cap. He disappeared near the pastor's garden
hedge. No sooner did the pastor hear the evidence
of the witness to this effect than his face turned an
ashy hue, and he cried out in a faltering voice, "I
am fainting!" and was so prostrated in body that
he had to be taken back to prison. There, after
a period of severe suffering, to the intense astonish-
ment of every one, he made, to his friend, the dis-
trict magistrate who had first arrested him, the fol-
lowing strange confession: — "From my childhood,
as far back as I can remember, I have ever been
passionate, quarrelsome, and proud — impatient of
contradiction, and ever ready with a blow. Yet
have I seldom let the sun go down on my wrath, nor
have I borne ill-will to any one. When but a lad
I slew in anger a dog which one day ate my dinner,
which I had left in his way. When, as a student, I
went on foreign travel, I entered, on slight provoca-

24 FAMOUS CASES OF

tion, into a broil with a German youth in Leipsic,
challenged him, and gave him a wound that endan-
gered his life. For that deed, I feel it, I merited
that which has now come upon me after long years ;
but the punishment falls upon my sinful head with
tenfold weight now that I am broken down with age,
a clergyman, and a father. Oh, Father in heaven !
it is here that the wound is sorest."

After a pause of anguish, he continued : UI will
now confess the crime which no doubt I have com-
mitted, but of which I am, nevertheless, not fully
conscious. That I struck the unhappy man with the
spade I know full well, and have already con-
fessed ; whether it were with the flat side or with the
sharp edge I could not in my passion discern ;
that he then fell down, and afterwards again rose
up and ran away — that is all that I know to a
surety. What follows — heaven help me ! — four wit-
nesses have seen ; namely, that I fetched the
corpse from the wood and buried it ; and that this
must be substantially true I am obliged to believe,
and I will tell you wherefore. Three or four times
in my life, that I know of, it has happened to me
to walk in my sleep. The last time (about nine years
ago), I was next day to preach a funeral sermon
over the remains of a man who had unexpectedly

CIRCUMSTANTIAL EVIDENCE. 25

met with a dreadful death. I was at a loss for a
text, when the words of a wise man among the
ancient Greeks suddenly occurred to me, 'Call no
man happy until he be in his grave.' To use the
words of a heathen for the text of a Christian dis-
course, was not, methought, seemly ; but I then
remembered that the same thought, expressed in
well-nigh the same terms, was to be met with some-
where in the Apocrypha. I sought, and sought, but
could not find the passage. It was late, I was
wearied by much previous labor ; I therefore went to
bed, and soon fell asleep. Greatly clid I marvel the
next morning when, on arising and seating myself
at my writing desk, I saw before me, written in
large letters in a piece of paper, ' Let no man be
deemed happy before his end cometh (Syrach xi.
34).' But not this alone ; I found likewise a funeral
discourse — short, but as well written as any I had
ever composed — and all in my own handwriting.
In the chamber none other than I could have been.
I knew, therefore, who it was that had written the
discourse ; and that it was no other than myself.
Not more than half a year previous, I had, in the
same marvelous 'state, gone in the night time into the
church, and fetched away a handkerchief which I
had left in the chair behind the altar. Mark now —

26 FAMOUS CASES OF

when the two witnesses this morning delivered
their evidence before the court, then my previous
sleep-walkings suddenly flashed across me ; and
I likewise called to mind that in the morning
after the night during which the corpse must have
been buried, I had been surprised to see my dressing-
gowD lying on the floor just inside the door, whereas
it was always my custom to hang it on a chair
by my bedside. The unhappy victim of my un-
bridled passion must, in all likelihood, have fallen
down dead in the wood ; and I must in my sleep-
walking have followed him thither. Yes — the Lord
have mercy ! — so it was, so it must have been."

On the following day sentence of death was
passed upon the prisoner — a sentence which many
felt to be too severe, and which led to a friendly con-
spiracy on his behalf ; and had it not been for his
own refusal to be a party to anything unlawful, he
might have escaped. The jailer was gained ' over,
and a fisherman had his boat in readiness for a flight
to the Swedish coast, where he would have been
beyond the reach of danger. But Soren Qvist refused
to flee. He longed, he said, for death ; and he would
not add a new stain to his reputation by a furtive
flight. He maintained his strength of mind to the
last, and from the scaffold he addressed to the by-

CIRCUMSTANTIAL EVIDENCE. 27

standers a discourse of much power, which he had
composed in prison during his last days. It treated
of anger and its direful consequences, with touching
allusions to himself and the dreadful crime to which
his anger misled him. Thereafter, he doffed his
coat, bound with his own hands the napkin before
his eyes, and submitted his neck to the execu-
tioner's sword.

One-and-twenty years after the pastor, Soren Qvist
of Veilby, had been accused, tried, condemned,
and executed for the murder of his serving-man, an
old beggarman applied for alms to the people of
Aalsoe, the parish adjoining to Yeilby. Suspi-
cions were aroused by the exact likeness the beggar-
man bore to Morten Bruns, of Ingvorstrup, who had
lately died, and also by the curious and anxious in-
quiries the man made concerning events long past.
The pastor of Aalsoe, who had buried Morten Bruns,
took the vagabond to his parsonage, and there the
fellow, all unconscious of the portentous nature
of the admission, acknowledged that he was Niels
Bruns, the very man for whose supposed murder the
pastor had suffered the shameful death of a crimi-
nal. Had his brother Morten survived him, it is
pretty certain the truth, concealed so long, had never
been known, as Niels had only returned to the dis-

28 FAMOUS CASES OF

trict in the hope of profiting by Morten's death,
the news of which had accidentally reached him. He
professed— and, indeed, plainly experienced— the ut-
most horror on hearing the dreadful history of
the pastor' s cruel fate. It was all Morten' s doing, he
said ; but he was so overcome by the terrible nar-
rative that he could scarcely gather strength to reply
to the questions put to him. The result of his exam
ination and confession may be summed up very
briefly. Morten had conceived a mortal hatred of
Soren Qvist from the time that he refused him his
daughter, and had determined on revenge. It was he
who compelled Niels to take service with the pas-
tor ; he had spurred him on to the repeated
offenses, in the expectation that violence would
result, owing to the pastor' s hasty temper ; and had
carefully nursed the feud which soon arose between
master and man. Niels told him daily all that took
place. On leaving the garden, on that fatal day, he
had run over to Ingvorstrup to acquaint his brother
with what had happened. Morten shut him up in a
private room that no one might see him. Shortly
after midnight, when the whole village was asleep,
the two brothers went to a place where the roads
cross each other, and where two days previously a
suicide had been buried — a young man of about

CIRCUMSTANTIAL EVIDENCE. 29

Niels' age and stature. In spite of Niels' reluctance
and remonstrance they dug up the corpse and took it
into Morten's house. Niels was made to strip and
don a suit of Morten's, and the corpse was clad,
piece by piece, in Niels' cast-off clothes, even to the
very ear-ring. Then Morten battered the dead face
with a spade, and hid it in a sack until the next
night, when they carried it into the wood by Yeilby
parsonage. Niels asked what all these preparations
meant. Morten told him to mind his own business,
and to go and fetch the parson's green dressing-
gown and cap. This Niels refused to do, where-
upon Morten went and fetched them himself.* "And
now," he said to his brother, "you go your way.
Here is a purse with a hundred dollars — make for the
frontier, where no one knows thee ; pass thyself
under another name, and never set thy foot on
Danish soil again as thou wouldst answer it with
thy life ! " Niels did as he was commanded, and
parted from Morten forever. He had enlisted for a
soldier, had suffered great hardships, had lost a limb,
and had returned to his native place a mere wreck.

* It was not the custom in Jutland, in those days — it is hardly
the custom now — to lock up the house at night.

30 FAMOUS CASES OF

V.

THOMAS GEDDELY was a waiter in a public house
kept by a Mrs. Williams at York, and much fre-
quented. The landlady was a bustling woman, a
favorite with her customers, and had the reputation
of being well-to-do. One morning it was found that
her scrutoire had been broken open and rifled of a
considerable sum ; and as on that same morning
Thomas Geddely did not make his appearance, every-
body concluded that he was the robber. A year
afterwards, or thereabouts, a man came to York who,
under the name of James Crow, plied for employ-
ment as a porter, and thus picked up a scanty living '
for a few days. Meanwhile, from his unlucky like-
ness to Geddely he began to be mistaken for the thief.
Many people addressed him as Tom Geddely, and
when he declared that he did not know them, that
his name was James Crow, and that he had never
lived in York before, they would not believe him,
and attributed his denial to his natural desire to
escape the consequences of the robbery he had com-
mitted at the public house.

CIRCUMSTANTIAL EVIDENCE. 31

When subsequently Ms mistress was sent for, she
singled him out from a number of people, and calling
him Geddely, upbraided him with his ingratitude,
and charged him with robbing her. When dragged
before the justice of the peace, and examined in his
presence, the man affirmed, as stoutly as any man
could, that his name was not Geddely, that he had
never known any person of that name, that he had
never in his life lived in York before, and that his
name was James Crow. He could not, however, get
any one else to substantiate his affirmations ; he
could give but a poor account of himself, but was
forced to admit that he led a vagabond life — and as
the landlady and others swore positively to his per-
son, he was committed to jail at York Castle to
await his trial at the next assizes. When, in due
time, the trial came on, he pleaded "not guilty," and
denied as before that he was the person he was taken
for ; but the landlady of the inn and several other
witnesses swore positively that he was the identical
Thomas Geddely who was waiter when she was
robbed ; while a servant girl deposed that she had seen
him on the very morning of the robbery in the room
where the scrutoire was broken open, with a poker in
his hand. As the prisoner had nothing to urge
against the evidence but a simple denial, and as he

32 FAMOUS CASES OF

could not prove an alibi, he was found guilty of the
robbery, was condemned to death, and executed.
He persisted to his latest breath in affirming that he
was not Thomas Geddely, and that his name was
Crow.

The truth of the poor fellow's declaration was
established all too late. Not long after Crow's
unjust punishment, the real Thomas Geddely, who,
after the robbery, had fled from York to Ireland, was
taken up in Dublin for a crime of the same stamp,
and there condemned and executed. Between his
conviction and execution, and again at the fatal tree,
he confessed himself to be the very Thomas Geddely
who had committed the robbery at York for which
the unfortunate James Crow had suffered. A gentle-
man, a native of York, who happened to be at
Dublin at the time of Geddely' s trial and execution,
and who knew him when he lived with Mrs. Wil-
liams, declared that the resemblance between the two
men was so remarkable that it was next to impossible
to distinguish their persons assunder.

CIRCUMSTANTIAL EVIDENCE. 33

VI.

ONE of the most lamentable cases of mistaken
identity was that of Lesurques, the history of which
may be summed up as follows :

In the month of April, 1796, a young man named
Joseph Lesurques arrived in Paris from Douai, his
native town. He was thirty-three years of age. and
possessed a fortune equal to six hundred pounds a
year. He hired apartments, and made preparations
for residing permanently in Paris. One of his first
cares was to repay one Guesno, of Douai, two thou-
sand francs he had borrowed of him. On the follow-
ing day Guesno invited Lesurques to breakfast.
They accordingly went to a refreshment room, in
company with two other persons, one of whom,
named Couriol, happened to call just as they were
sitting down to table. After breakfast they pro-
ceeded to the Palais Royal, and having' taken coffee,
separated. Four days afterwards, four horsemen,
mounted on hired horses, were seen to drive out of
Paris. They all wore long cloaks and sabres hang-
ing from the waist. One of the party was Couriol.

34 FAMOUS CASES OF

Between twelve and one o'clock the four horsemen
arrived at the village of Mongeron, on the road to
Melun. There they dined, and then proceeded at a
foot pace towards Lieursaint. They reached Lieur-
saint about three in the afternoon, and made a long
halt at the inn, amusing themselves with billiards,
and one of them having his horse shod. At half-
past seven they remounted and rode off towards
Melun. About an hour later the mail courier from
Paris to Lyons arrived to change horses. It was then
half-past eight, and the night had been for some time
dark. The courier, having changed horses, set out to
pass the long forest of Leuart. The mail at this
period was a sort of post-chaise, with a large trunk
behind containing the dispatches. There was one
place only open to the public, at the side of the
courier ; and the place was occupied on that day by
a man about thirty years of age, who had that morn-
ing taken it in the name of Laborde.

The next morning the mail was found rifled, the
courier dead in his seat, and the postilion lying dead
in the road — both being evidently slain with sabres.
One horse only was found near the carriage. The
mail had been robbed of seventy -five thousand livres
in silver and bank bills. The officers of justice soon
discovered that five persons had passed through the

CIRCUMSTANTIAL EVIDENCE. 35

barrier on their way to Paris between four and five in
the morning after the murders. The horse of the
postilion was found wandering about the Place
Royale ; and they ascertained that four horses, cov-
ered with foam and quite exhausted, had been
brought, about five in the morning, to a man named
Muiron, Rue des Fosses, Saint Germain 1' Auxerrois,
by two persons who had hired them the day before.
These two persons were named Bernard and Couriol.
Bernard was immediately arrested ; Couriol escaped.
A description was obtained of the four who had
ridden from Paris and stopped at Mongeron and
Lieursaint, and also of the man who had taken his
place with the courier under the name of Laborde.
Couriol was traced to Chateau Thierry, where he was
arrested, together with Guesno, the Douai carrier,
and one Bruer, who happened to be in the same
house. Guesno and Bruer proved alibis so clearly
that they were discharged on arriving at Paris.

The magistrate, after discharging Guesno, told
him to apply at his office the next morning for the
return of his papers, which had been seized at
Chateau Thierry ; at the same time he had sent a
police officer to Mongeron and Lieursaint to fetch the
witnesses, of whom he gave a list. Guesno, being
desirous to obtain his papers as soon as possible, left

36 FAMOUS CASES OF

home the next day earlier than usual. On his way to
the office he met Lesurques, who consented to ac-
company him. They went to the office, and as Dau-
benton, the Juge-de-Paix, had not yet arrived, they
sat down in the antechamber to await his arrival.
About two o'clock the Juge-de-Paix, who had entered
his room by a back door, was thunderstruck on being
told by the police officer who had come back with the
witnesses, that two of them declared that two of the
actual murderers were in the house. "Impossible ! "
he exclaimed, "guilty men would not voluntarily
venture here." Not believing the statement he
ordered the two women to be introduced separately ;
and examined each of them, when they repeated
their statement and declared they could not be
mistaken. Warning them solemnly that life and
death depended on. their truth, he had the accused
brought into the room one by one, and after convers-
ing with them sent them again to the antechamber,
where they waited as before. When they had left
the room the magistrate again asked the women if
they persisted in their previous declarations. They
did persist ; their evidence was taken down in writ-
ing ; and the two frrends were immediately arrested.
No time was lost in pushing on the prosecution.
Seven persons were put upon their trial, amongst

CIRCUMSTANTIAL EVIDENCE. 37

whom were Couriol, Madeline Breban (his mistress),
Lesurques, and Guesno. Lesurques was sworn to
most positively by several, as being one of the party,
at different places on the road, on the day of the
robbery and murder. It should be born in mind that
the case was quite conclusive against Couriol. "I
attended them (said one witness) at dinner at Mon-
geron ; this one (Lesurques) wanted to pay the bill in
assignats, but the tall dark one (Couriol) paid it in
silver." A stable boy at Mongeron also identified
him. A woman named Alfroy, of Lieursaint, and
the innkeeper and his wife of the same place, all
recognized him as of the party there — Lesurques
declaring that he had never been present at either
place. But the witnesses were positive, were unim-
peached, were believed, and — were all mistaken.
Lesurques and Couriol were convicted, Guesno,
though as positively sworn to, proved his perfect
innocence, and was acquitted. Lesurques called
fifteen persons of known probity to prove an alibi,
which was disbelieved in consequence of the folly of
one of them, who falsified an entry in his book with
the design of adding weight to the. evidence in Lesur-
qufs's favor, but did it so clumsily that the falsifica-
tion was discovered. Eighty persons of all classes
declared the character of Lesurques to be irre-

38 FAMOUS CASES OF

proachable ; but all was of no avail — lie was con-
demned.

When the sentence was pronounced, rising from
his place, he calmly said — "I am innocent of the
crime imputed to me. Ah, citizens ! if murder on
the highway be atrocious, it is not less a crime to
execute an innocent man."

Madeline Breban, though compromising herself,
wildly exclaimed — "Lesurques is innocent — he is
the victim of his fatal likeness to Dubosq."

Couriol then, addressing the judges, said — " I am
guilty ; I acknowledge my crime ; my accomplices
were Vidal, Rossi, Durochat, and Dubosq ; but
Lesurques is innocent."

After the sentence had been pronounced, the
horror-stricken Madeline again presented herself be-
fore the judges to reiterate her declaration, and two
other witnesses attested to her having told them so
before the trial. The judges applied to the Directory
for a reprieve ; and the Directory applied to the
Council of Five Hundred, requesting instructions for
their guidance, and concluding with the emphatic
question — "Ought Lesurques to die on the scaffold
because he resembles a criminal ?" The answer was
prompt: "The jury had legally sentenced the ac-
cused, and the right of pardon had been abolished."

CIRCUMSTANTIAL EVIDENCE. 39

Left to his fate, poor Lesurques on the morning
of his execution thus wrote to his wife: — "My dear
friend, we cannot avoid our fate. I shall, at any
rate, endure mine with the courage which becomes'
a man. I send some locks of my hair. When my
children are older, divide it with them. It is the
only thing that I can leave them."

Couriol had disclosed to Lesurques the history
of Dubosq, and the fatal mistake which had been
made, and accordingly, on the eve of his death, he
had the following mournful letter inserted in the
journals: "Man, in whose place I am to die, be
satisfied with the sacrifice of my life ; if you be ever
brought to justice, think of my three children
covered with shame, and of their mother's despair,
and do not prolong the misfortunes of so fatal a
resemblance."

On the 10th of March, 1797, Lesurques went to
the place of execution dressed completely in white,
as a symbol of his innocence. On the way from the
prison to the place of execution, Couriol, who was
seated in the car beside him, cried in a loud voice,
addressing the people, "I am guilty ; but Lesurques
is innocent." On reaching the scaffold, Lesurques
gave himself up to the executioners, and died pro-
testing his innocence.

40 FAMOUS CASES OF

In consequence of his own misgivings, and of
mnrmnrs on the part of the public, Daubenton, the
Juge-de-Paix, who had arrested Lesurques, and
conducted the first proceedings, resolved to investi-
gate the truth, which could only be satisfactorily
done through the arrest and trial of the four per-
sons denounced by Couriol as his accomplices.
Two years elapsed in vain inquiries. At the end
of that time, he discovered that Durochat — the
man who, under the name of Laborde, had taken
the place by the side of the courier— had been
arrested for a robbery, and lodged in St. Pelagie.

When the trial of the villain came on, he was,
through the exertions of Daubenton, recognized by
the inspector of the mails as the man who traveled
with the courier on the day of the assassination.
When charged with the fact, he made at first some
faint denials, and subsequently he confessed, relating
the particulars of the crime, all which tallied with the
statements made by Couriol. He stated that Yidal
had projected the affair, and had communicated it to
him as a restaurant in the Champs Elysees. The
criminals were Couriol, Rossi, (alias Beroldy),
Vidal, himself, and Dubosq. Dubosq had forged
for him the passport in the name of Laborde, by
means of which he easily procured another for

CIRCUMSTANTIAL EVIDENCE. 41

Lyons, to enable him to take his place in the mail.
Bernard had supplied the four horses. They had
attacked the carriage as the postilion was slackening
his pace to ascend the hill. It was he (Durochat)
who had stabbed the courier, at the instant that
Rossi cut down the postilion with a sabre ; Rossi
had then given up his horse to him (Durochat), and
had returned to Paris on that of the postilion. As
soon as they arrived there, they all met at Dubosq's
lodgings, where they proceeded to divide the booty.
Bernard, who had only procured the horses, was
there, and claimed his share, and got it. "I have
heard," he added, "that there was a fellow named
Lesurques condemned for this business ; but, to
tell the truth, I never knew the fellow, either at
the planning of the affair, or at its execution, or
at the division of the spoil."

Such was Durochat' s confession as taken down
in writing; he added a description of Dubosq,
stating that on the day of the murder he wore a
blonde wig.

Shortly after the arrest of Durochat, Yidal was
also arrested. He was recognized by the witnesses
and positively sworn to, but he denied everything,
and was sent to the prison of La Seine. Towards
the end of the year 1799, Dubosq, having been

42 FAMOUS CASES OF

arrested for a robbery in the department of Allier,
was recognized in the prison and brought to Ver-
sailles to be tried at the same time as Yidal before
the criminal tribunal. It was seen by the registers
that Dubosq was a thorough desperado; he had
been sentenced to the galleys for life, but had
escaped, and on four several occasions had broken
prison. Like Vidal, he denied everything. Con-
fined in the same cell with his old companion in
guilt, Dubosq planned an escape ; but this time he
broke his leg in the attempt — Vidal alone getting
clear away — to be retaken, however, after a brief in-
terval, to be brought back to trial — and to execution.
Strange as it may seem, Dubosq had no sooner
recovered from his fracture, than he found another
opportunity of attempting an escape, and for the
sixth time succeeded in breaking his bonds. As he
could not live without rapine, however, he fell again
into the hands of the police before the expiration
of a year, and was brought before the tribunal at
Versailles. The president ordered a blonde wig to
be put on his head, and thus attired, he was
recognized by the same witnesses who had sworn
away the life of Lesurques, who now recanted their
former testimony, and declared too late that they
had been mistaken.

CIRCUMSTANTIAL EVIDENCE. 43

After the execution of Dubosq, in Febuary, 1802,
there still remained one of the accomplices to be
brought to justice. This man, Rossi, whose real
name was Beroldy, was at length discovered near
Madrid, and was given up to the French govern-
ment. Unlike Yidal and Dubosq, he confessed his
crimes, testifying the utmost remorse. In the
declaration, which he confided to his confessor,
he affirmed the entire innocence of Lesurques ; but,
for a reason which does not appear, made it a con-
dition that the declaration should not be published
until six months after his death.

According to law, the property of Lesurques
had been confiscated on his conviction, and his
widow and children reduced to indigence. One
would have thought that a government which had
erred so egregiously as to execute a man for a
crime of which he was not guilty, would have been
eager to make what atonement was possible to the
family of the victim. Nothing of the sort. The
widow and her advisers, relying on the confessions
of the real criminals, and the retractions of the
witnesses, applied for a revision of the sentence, so
far as concerned Lesurques, in order to obtain a
judicial declaration of his innocence and the restora-
tion of his property. All their endeavors were vain.

44 FAMOUS CASES OF

The right of revision no longer existed in the French
code. Under the Directory, the Consulate, and the
Restoration, the applications of the widow and
family were equally unsuccessful. All that they
could obtain was the restoration, in the last two
years of the elder Bourbons, of a part of the prop-
erty sequestrated at the condemnation of the un-
offending husband and father.

CIRCUMSTANTIAL EVIDENCE. 45

VII.

Ox the 7th of February, 1851, in the dead of
night, the house of David Williams, situated at
Truasth, in the county of Brecknock, was broken
open by forcing the shutters and window of an
outhouse. Williams, an old man, who with his
wife alone occupied the cottage, was alarmed by

the noise, and going to the head of the stairs, saw

t

by the light of a candle the person of a man whom
he recognized as one Tom Williams, a blacksmith
living in the neighborhood, and who had formerly
done some work in the house. This was only for
a moment, as the light was struck out, and the
burglar attacked old Williams and his wife in the
dark. However, they proved too strong for him,
and compelled him to take to flight. Nothing was
stolen, but the drawer of a dresser in the kitchen
had been ransacked, and some papers of no value
turned out of it. Tom Williams, the blacksmith,
was tried at the following spring assizes at Brecon
for the burglary, and as the old man, who had
known him from his boyhood, swore to him posi-

46 FAMOUS CASES OF

tively, he was convicted, and sentenced to trans-
portation. Happily for Mm, however, a person
named Morris was present at the trial, who, on
hearing ,ihe verdict, at once exculpated the con-
victed man, and directed the attention of the police
to one Powell, as the real criminal, Strict inquiry
was immediately instituted, the result of which was
that Powell was committed. He was tried before
the late Mr. Justice TALFOTJED, and convicted on
evidence perfectly conclusive. It seems old Wil-
liams had lent Powell six hundred pounds on
mortgage, taking as security certain title deeds.
"Williams commenced proceedings to recover princi-
pal and interest, and Powell committed the burglary
to possess himself of the documents ; hence the
ransacking of the dresser drawer in which he be-
lieved they had been deposited. The blacksmith
was of course pardoned on the report of Mr. Justice
TALFOURD, and was discharged in September. But
the real criminal was also discharged, although his
guilt was clear as the sun at noonday. The jury
convicted him of breaking open, the house "with
intent to steal the title deeds;" the indictment
charged his intent to be to " steal the goods and
chattels." The Appeal Court held the conviction
bad.

CIRCUMSTANTIAL EVIDENCE. 47

VIII.

4»

A CTJEIOUS case of identification occurred about
twenty years ago. This was an instance in which
the guilt of a crime was brought home to the per-
petrator through the identifying of a body after it
had been separated limb from limb, submitted to
chemical processes, and to the inordinate heat of a
furnace, and mingled with the countless bones of
anatomical subjects in their common burying- place.
One Professor Webster was brought to trial for the
murder of Dr. Parkman. It was shown that the
professor had urgent pecuniary motives at the time
when the crime was committed, to get Dr. Parkman
out of the way. The prisoner had a residence at
the Medical College, Boston. He made an appoint-
ment to meet the deceased at this place at two
o'clock on Friday, the 23rd of November, 1849, in
order to discuss certain money matters. Dr. Park-
man was seen about a quarter before two o'clock
apparently about to enter the Medical College, and
after that was never again seen alive. The prisoner
affirmed that Dr. Parkman did not keep his appoint-

48 FAMOUS CASES OF

ment, and diet not enter the college at all on that
day. For a whole week nothing was discovered,
and when search was made the prisoner interfered
with itj^nd threw hindrances in the way.

On the Friday week and the day following there
were found in a furnace connected with the prison-
er's laboratory in the college, fused together indis-
criminately with the slag, the cinders, and the refuse
of the fuel, a large number of bones and certain
blocks of mineral teeth. A quantity of gold, which
had been melted, was also found. Other bones
were found in a vault under the college. There
was also discovered in a tea-chest, and embedded
in a quantity of tan, the entire trunk of a human
body and other bones. The parts thus collected
together from different places, made the entire body
of a person of Dr. Parkman's age, about sixty
years, and the form of the body when reconstructed
had just the peculiarities shown to be possessed by
Dr. Parkman. In no single particular were the
parts dissimilar to these of the deceased, nor in the
tea-chest or the furnace were any duplicate parts
t'ound over and above .what was necessary to com-
pose one body.

The remains were further shown to have been
separated by a person possessed of anatomical skill,

CIRCUMSTANTIAL EVIDENCE. 49

though not for anatomical purposes. Finally, three
witnesses, dentists, testified to the mineral teeth
found being those made for Dr. Parkman three
years before. A mould of the doctor's jaw had
been made at the time, and it was procBrced, and
shown to be so peculiar that no accidental con-
formity of the teeth to the jaw could possibly
account for the adaptation. This last piece of evi-
dence was conclusive against the prisoner, and he
was convicted. Without this closing proof the
evidence would certainly have been unsatisfactory.
The character of the prisoner, the possible confusion
throughout the college of the remains of anatomical
subjects, the undistinguished features, and the illu-
siveness of evidence derived from the likeness of a
reconstructed body, were all facts of a nature to
substantiate assumptions in favor of the prisoner's
innocence. It is singular that the block of mineral
teeth was only accidentally preserved, having been
found so near the bottom of the furnace as to take
the current of cold air, whose impact had prevented
the thorough combustion that would otherwise have
taken place.

50 FAMOUS CASES OF

IX.

the 6th of August, 1660, William Harrison,
who was steward to Lady Campden, a person of
good estate in Gloucestershire, left his home in order
to collect her rents. There happened to reside in
the neighborhood a humble family of the name of
Perry, a mother and two sons, Joan, John, and
Richard, of whom Joan, the mother, bore but an
indifferent character, and John, one of the sons, was
known to be half-witted. It so happened that days
and weeks elapsed, and yet Harrison did not return
nor were any tidings heard of him. Of course, the
population of the place became excited, and rumors
soon became rife that he had been robbed and
murdered. From the mission on which he was
known to have left his home, and his prolonged
absence, the suspicion was not unnatural. The
alarm which ensued, and the numberless inventions
which were circulated, are supposed to have be-
wildered what little intellect the poor idiot had, for
he actually went before a justice of the peace, and
solemnly deposed to the murder of Harrison by his

CIRCUMSTANTIAL EVIDENCE. 5!

brother Richard, while his mother and himself
looked on, and afterwards joined in robbing the
deceased of a hundred and forty pounds. On
this the whole three were sent to prison, and at the
following assizes were doubly indicted for the rob-
bery and the murder. The presiding judge, Sir
CHAELES THENEE, refused to try them on the mur-
(Jer indictment, as the body had not been found ; they
were, however, arraigned on the charge of robbery,
and pleaded guilty on some vague superstition that
their lives would be spared. While in confinement
John persisted in the charge, adding that his mother
and brother had attempted to poison him in the
jail for peaching. When the next assizes came,
Sir ROBEET HYDE, considering the length of time
which had elapsed, and the non-appearance of
Harrison, tried them for the murder. The deposi-
tions of John, and the plea on the indictment for
robbery, were given in evidence, and the whole
three were forthwith convicted. On the trial
John retracted his accusation, declaring that he
was mad when he made it, and knew not what he
said. They all suffered death. The mother was
executed first, it being alleged that she influ-
enced her sons, and that they would never con-
fess while she was living ; they died, however,

52 FAMOUS CASES OF

loudly protesting their innocence. But the dis-
appearance of Harrison, the confession of John,
and the plea of "guilty" to the indictment for
robbery, seemed to invest the case with every
human "certainty.

After this poor, ignorant, and deluded family
had lain in the grave for three years, the people of

*

Gloucester were startled by the reappearance in
their streets of the murdered Harrison ! He ac-
counted for his long absence thus, in a letter to Sir
Thomas Overbury. On returning homewards after
the receipt of Lady Campden's rents, he was set
upon by a gang of crimps, who forced him. to the
seashore, where they hurried him on shipboard and
carried him off to Turkey. They there sold him
as a slave to a physician, with whom he lived for
nearly two years, when, his master dying, he made
his escape in a Hamburg vessel to Lisbon, and
was thence conveyed to England.

CIRCUMSTANTIAL EVIDENCE. 53

X.

the Gth of October, 1806, Thomas Wood, a
young seaman, was tried at Plymouth by naval
court-martial. The offense charged was an active
participation in a mutiny and murder on board the
"Hermione," in 1797. At the time of his trial, he
was only twenty-five years old, and therefore some-
where about sixteen when the mutiny took place.
There was but one witness against him ; one, how-
ever, whose testimony had considerable weight — the
master of the "Hermione." This person most
positively identified him as one of those chiefly im-
plicated, and as having gone, when on board his
ship, by the name of James Hayes. The identifi-
cation undoubtedly was strong ; but still, consider-
ing the personal changes which generally take place
between the age of sixteen and twenty -five, and after
an interruption of nine years in the intercourse,
scarcely strong enough to warrant a conviction.
But all doubt of the prisoner's guilt vanished at
once before the voluntary statement which he put in,
in the form of a written document. "At the time,"

54

FAMOUS CASES OF

said the written statement, "when the mutiny took
place, I was a boy in my fourteenth year. Com-
pelled by the torrent of mutiny, I took the oath ad-
ministered to me on the occasion. The examples of
death which were before my eyes drove me for shelter
among the mutineers, dreading a similar fate with
those that fell if I sided with or showed the smallest
inclination for mercy." To this frank and sweeping
confession of his guilt he added a declaration of pro-
found remorse for his crime, and wound up by
throwing himself despairingly on the compassion of
the court. The court found him guilty, passed upon
him the sentence of death, and eleven days after-
wards he was executed. In vain were all his suppli-
cations for compassion. In vain did his brother and
sister interfere, proving, by a certificate from the
Navy Office, that his written statement must have
been a mere hallucination, seeing that the boy was at
another place and in another ship when the crime
was committed on board the " Hermione."

The subsequent establishment of this poor victim's
innocence was most complete and satisfactory. The
editor of a weekly journal, called the "Independent
Whig," took up the matter very sternly, and de-
nounced all the proceedings so indignantly from time
to time that the members of the court-martial ap-

CIRCUMSTANTIAL EVIDENCE.

55

pealed to the Lords of the Admiralty for protection
against the journalist. The Lords of the Admiralty
responded to the appeal, and a prosecution was at
once instituted. It was fortunate that the then law
officers of the crown were Sir Arthur Pigott and Sir
Samuel Romilly. These discreet men deemed it
prudent to set on foot a strict inquiry into the facts
before committing themselves to a public prosecution,
" not, however," as Sir Samuel afterwards stated,
"that either of us entertained any doubt as to the
man's guilt." An inquiry was accordingly in-
stituted by the solicitor of the Admiralty, the result
of which was that Thomas Wood, who had been
hanged for mutiny and murder, was proved to have
been perfectly innocent, and was actually shown to
have been doing his duty on board the "Marl-
borough" at Portsmouth at the very time that the
crime was committed by the mutineers in the "Her-
mione." The reader naturally asks, How came
Thomas Wood, if he was an innocent man, to con-
fess himself guilty? The answer is not far to seek.
Wood was a simple-minded Jack tar ; he had no
friends of any influence ; he knew, or thought he
knew, that no assertions of his would be of any avail
against the positive evidence of the master of the
"Hermione;" he therefore applied to another man

56 FAMOUS CASES OF

to write a defense for Mm. Wood read the produc-
tion of his comrade, and thinking it likely to excite
the compassion of his judges, and that it would serve
him better that a mere denial of the charges brought
against him, adopted it. That the means chosen by
his ignorant comrade for his defense proved his
destruction, there can be no doubt. The confession
acted as a bar to further inquiry, otherwise it is im-
possible to conceive that the certificate sent in by the
brother and sister previous to the execution, and
which showed the poor man's innocence, should not
have been attended to. The truth was, that to all
concerned in the condemnation of Thomas Wood, the
facts were so clear, owing to the confession, that no
regard whatever was paid to the exertions of his
friends, and the official certificate was not merely
slighted, it was probably never read.

CIRCUMSTANTIAL EVIDENCE. 57

XL

the first floor of a large hotel in the Rue
Royale, at Paris, resided the Count and Countess de
Montgomery. The Count was a personage of rank,
and the possessor of considerable property, maintain-
ing a numerous retinue of attendants, and an
almoner, who formed part of the establishment. On
the second and third floors of the same hotel the
Sieur d' Anglade resided with his lady in a style of
considerable respectability. The two families lived
on the most amicable terms. It so happened that on
one occasion the count and countess invited these
neighbors to accompany them on a visit to one of
their country seats. The invitation, at first accepted,
was, for some unexplained reason, subsequently de-
clined when the count and countess were just on the
eve of their departure. Many of their numerous
suite accompanied the family, and amongst these was
the priest-almoner, Francis Gagnard. From some
presentiment, it was said, pressing on the mind of the
count, they returned to Paris the day before they
were expected, and in the evening they received a

58 FAMOUS CASES Of

visit from the d'Anglades. On the following day the
unwelcome discovery was made that the count's
strong box had been opened by a false key, and
completely plundered. It contents were thirteen
small sacks with a thousand silver livres in each. In
addition to these were near twelve thousand livres
in gold, some double pistoles, a hundred louis d'or,
of a new coinage called au cordon, and a pearl
necklace worth four thousand livres. The whole
had vanished.

The lieutenant of police having been consulted,
at once pronounced the crime to have been per-
petrated by some one within the house, and seems
to have conceived and manifested a violent prejudice
against the d'Anglade family. On observing this
they immediately demanded that their apartments
should be examined, and a strict search was made,
their very beds having been ripped up, but nothing
whatever was found to implicate any one in the
floors which they inhabited. In an attic, however,
which had been used as a kind of lumber-room,
there were discovered,' in an old trunk filled with
parchments and rubbish, seventy louis d'or au
cordon, wrapped up in a paper on which a genea-
logical table was printed, both of which Mont-
gomery claimed, although the coin had no peculiar

CIRCUMSTANTIAL EVIDENCE. 59

mark, and was ill general circulation. From this
moment the suspicions entertained by the lieutenant
were adopted by the count. He loudly avouched
the honesty of all his servants, and invidiously
adverted to the theft of a piece of plate from the
Sieur Grimandet, a former tenant, the d'Anglades
at the same time living in the hotel. These sus-
picions were strengthened by the fact that it was
known that d'Anglade had expensive habits, and
that on their desiring him to count the coin he was
observed to tremble. His trembling was the agita-
tion of innocence under an accusation false but
plausible. After this the small room in which the'
almoner, a page, and a valet de chambre slept, was
subjected to a close search, and here, in a recess in
the wall, were found five sacks containing a thou-
sand livres each, and a sixth from which two hun-
dred had been extracted. The d'Anglades were
committed to prison, and it seems, by the law of
France, the prejudiced police lieutenant who com-
mitted was the judge by whom they were to be
tried. D'Anglade appealed to the parliament
against this foul prejudgment, but he appealed in
vain. It would appear that Count Montgomery had
his misgivings, for he ordered his almoner, the
priest Gagnard, to say a solemn mass at the church

60 FAMOUS CASES OF

of Saint Esprit for the detection of the culprits ;
and accordingly the "holy man" so fervently im-
plored the aid of the Divine Being that the pros-
ecutor's conscience was at rest. The almoner was
examined as a witness at the trial, though what was
the nature of his evidence does not appear ; what-
ever it may have been, satisfactory proofs were
wanting to inculpate the accused. The public eye
was upon the judge, and, without plausible proof,
even a prejudiced judge shrank from pronouncing
judgment. But he had an alternative, which at
that time unhappily was legal. What the witnesses
failed in proving, the torture might goad the ac-
cused to confess ; they therefore put d' Anglade to
the question, ordinary and extraordinary — they
tormented him even to the verge of death, and
then, covered over with wounds, his back dis-
located, his whole frame shattered, all in ruins
save a noble nature, they bore him back to
prison beseeching God to manifest his innocence,
and to pardon his inhuman persecutors and his in-
exorable judge. Although they failed to prove his
guilt, they sentenced him to restore the amount
which had been stolen, and to serve for nine years
chained as a galley-slave. From this last degrada-
tion he was saved by death, for he sank in his

CIRCUMSTANTIAL EVIDENCE. 61

dungeon at Marseilles, having received the sacra-
ments. His poor widow and orphan, stripped of
everything, even of the bed on .which they lay,
were banished from Paris and its precincts, and
cast upon the world, forsaken and heartbroken.

After the death of d'Anglade and the utter
desolation of his family, their innocence was clearly
demonstrated. Inquiry was instituted in conse-
quence of some letters which, at first anonymous,
appear to have been written by an Abbe de Font-
pierre, and the truth was brought to light. This
son of the church and expounder of doctrine was a
member of a thieves' society, and, as such, an as-
sociate of one Belestre, who was the principal in
the crime. What motive impelled Fontpierre to
write the letters — whether it was some quarrel with
Belestre, or remorse at the fate of d'Anglade — does
not appear. Belestre could not have accomplished
the crime without assistance, and such was afforded
him by Francis Gagnard, the inmate of Mont-
gomery's house, and his trusted almoner, the rev- ,
erend divine who actually celebrated the sacred
ceremony at Saint Esprit for the discovery of the
criminals. Gagnard and Belestre, both natives of
the town of Mons, had been associated from infancy.
The former was the son of a jailer; he had

62 FAMOUS CASES OF

journeyed to Paris as an adventurer, and was
eking out a mere subsistence by saying masses at
Saint Esprit, when Montgomery admitted him on
his establishment. The return he made was the
furnishing his friend Belestre with wax impressions
of all the keys he found there. It turned out that
Belestre was a. still greater villain than himself,
having been in the army, from which he deserted
after murdering his sergeant, and was afterwards
prowling about the dens of Paris, alternately a
gambler, a beggar, and a bully. Gagnard left
the service of Montgomery after the conviction of
d'Anglade, and following his criminal bent, soon
found himself in prison, and, strangely enough,
in the same cell with Belestre, arrested about the
same time on a different charge. In the mean
time the contents of the anonymous letters hav-
ing much impressed the authorities, it occurred to
them to interrogate the count's late almoner and
his fellow prisoner as to the robbery in the Rue
Royale. They were first examined apart, and an
immediate prosecution was the result. The Abbe
de Fontpierre gave most important evidence.
Amongst other things he deposed, that being in
a room adjoining one in which the accused was
holding a revel, he heard Belestre say, "Come,

CIRCUMSTANTIAL EVIDENCE. 63

my friend, let us drink and be merry, while
d'Anglade is at the galleys." "Poor man," an-
swered the almoner, "I can't help being sorry
for him ; he is a good sort of man, and was al-
ways obliging to me." "Sorry!" said the other,
with a laugh, " sorry for the man who has
saved us from suspicion and made our fortune!"
A woman named De la Comble deposed that
Belestre frequently showed her a beautiful pearl
necklace, which he said he had won at play.
Upon Belestre there was a gazette of Holland, in
which, after reference to the d'Anglade case, there
was a positive statement that the men who were
really guilty of that robbery had been since ex-
ecuted at Orleans for another crime. Of this it
was supposed he had himself procured the inser-
tion in order to lull inquiry. Unfortunately, how-
ever, for him and his confederate, there was also
found on him a document, in Gagnard's writing,
alluding to the anonymous letters, and advising
him by some means or other to quiet or to rid
himself of the Abbe de Fontpierre. In addition
to this it was shown that Gagnard, who on enter-
ing the count's service was almost destitute, and
who could have saved but little from his salary,
had on leaving it a profusion of money, which he

64 FAMOUS CASES OF

lavished in feasting and debauchery. Belestre,
also, was proved at the same period to have pur-
chased an estate at MODS, where his father was a
humble tanner. Madame d'Anglade completely
cleared up the paltry suspicions by which her
husband had been sacrificed ; but it is needless to
detail the particulars of the exculpation, as the
criminals made a full confession of their guilt.
Indeed, Gagnard went farther, and declared that,
had he been closely interrogated during the first
inquiry, such was his confusion, he must have ad-
mitted everything. But the mind of the judge was
all intent on vindicating the prejudices in which
he never should have indulged.

CIRCUMSTANTIAL EVIDENCE. 65

XII.

THEEE lived in Paris a woman of fashion, known
as Lady Mazel. Her house was roomy and lofty ;
on the ground floor was a large hall in which was
a grand staircase ; in a room opening into the hall
slept the valet, whose name was Le Bran ; the rest
of this floor consisting of apartments in which the
lady saw company. In the floor up one pair of
stairs was the lady's own chamber, which was in
front of the house, and was the innermost of three
rooms from the grand staircase. The key of this
chamber was usually taken out of the door and
laid on a chair by the servant who was last with
the lady, and who, pulling the door after her, shut
it with a spring, so that it could not be opened
from without. In this chamber, also were two
doors — one communicating with a back staircase,
the other with a wardrobe which also opened on
the back stairs. On the second floor slept the Abbe
Poulard ; and on the third story were the chambers
allotted to the servants ; the fourth story consisted
of lofts and granaries, whose doors were always open.

66 FAMOUS CASES OF

On the last Sunday in November, the two
daughters of Le Brun, the valet, who were fashion-
able milliners, waited on the lady, and were kindly
received ; but, as she was going to church to the
afternoon service, she pressed them to come again
when she could have more of their company. Le
Brun attended his lady to church, and then went
to another himself, after which he went to several
places, and having supped with a friend, he went
home. Lady Mazel supped with the Abbe Poulard,
as usual, and about eleven o'clock retired to her
chamber, attended by her maids. Before they left
her Le Brun came to the door to receive his orders
for the next day ; then one of the maids laid the
key of the room door on the chair next it — they
went out, and Le Brun following shut the door after
him.

In the morning he went to market, made his
purchases, and returning home transacted his
business as usual. At eight o'clock he expressed
surprise that his lady did not get up, as she
generally rose early. He went to his wife's lodg-
ing, which was close by, told her he was uneasy
that his lady's bell had not rung, and gave her
some money which he desired her to lock up; he
then went home again, and found the servants dis-

CIRCUMSTANTIAL EVIDENCE. 67

mayed at hearing nothing of their lady. When
one of them observed that he feared she had been
seized with an illness, Le Brim said, "It must be
something worse ; my mind misgives me, for I
found the street door open last night after all the
family were in bed." They then sent for the lady's
son, M. de Savoniere, who hinted to Le Brun his
fear of an apoplexy. Le Brun replied that he
feared something worse, and again mentioned his
having found the street door open. A smith was
eent for, the door was broken open, and Le Brun,
running to the bed, after calling several times, threw
back the curtains and cried out, "Oh, my lady is
murdered!" He then ran to the wardrobe and
took up the strong box, and finding it heavy, said,
"She has not been robbed, how is this?" The
body, on examination, showed no less than fifty
wounds ; they found in the bed a scrap of a cravat
of coarse lace, and a napkin made into a nightcap,
which was blood-stained, and had the family mark
on it. From the wounds on the lady's hand, it ap-
peared she had struggled bravely with the assassin ;
she could not ring for aid, the bell-strings being
twisted round the tester, and thus out of her reach.
A knife was found in the ashes almost consumed
by the fire ; the key of the chamber had been

68 FAMOUS CASES OF

taken from the chair ; but there were no marks of
violence on any of the doors, nor were there any
indications of a robbery, as a large sum of money
and all the lady's jewels were found in the strong
box and other places.

On being examined, Le Brun stated that after he
left the maids on the stairs, he went down into the
kitchen, and, sitting down by the fire, he fell asleep ;
that he slept, as he thought, about an hour, and
going to lock the street door, he found it open; that
he locked it, and took the key with him to his
chamber. When searched, there was found in his
pocket a key, the wards of which had been enlarged
by filing, and which was found to open the. street
door, the antechamber, and both the doors in Lady
Hazel's chamber. On trying the bloody nightcap on
Le Bran's head, it was found to fit him exactly,
whereupon he was committed to prison.

At the trial, it appeared that the lady had been
murdered by some persons who had been admitted
by Le Brun for the purpose. He could not himself
have done it, because there was no blood upon his
clothes, nor any scratch on his person, as there must
have been on the murderer from the victim's strug-
gling. But that Le Brun had let him in seemed
clear. None of the locks were forced, and his

CIRCUMSTANTIAL EVIDENCE. 69

story of finding the street door open, the circum-
stances of the key and the nightcap, also of a ladder
of ropes being found in the house, which might be
supposed to be laid there by Le Brun to take off
the attention from himself, were all interpreted as
proofs of his guilt. It was inferred that he had an
accomplice, because part of the cravat found in the
bed was discovered not to be his, but the maids
deposed that they had washed such a cravat for one
Berry, who had been a footman to the lady, and
who was turned away about four months before
for robbing her. There was also found in the loft
at the top of the house, under some straw, a shirt
very bloody, but which evidently had never belonged
to Le Brun. The accused had nothing to oppose to
these strong circumstances but his long and faithful
service, and his uniformly good character. It was
resolved to put him to the torture in order to dis-
cover his accomplices. This was done with such
severity that he died in a few days of the injuries
he received, declaring his innocence with his dying
breath.

Poor Le Brun had scarcely been dead a month,
when there came information from the provost of
Sens, that a dealer in horses had lately set up there
by the name of John Garlet, but whose real name

70 FAMOUS CASES OF

was found to be Berry, and that he had been a
footman in Paris. In consequence of this, he was
taken up, and the suspicion of his guilt was in-
creased by his attempting to bribe the officers. On
searching him, a gold watch was found, which
proved to be Lady Hazel's. A person in Paris
swore to seeing him go out of Lady Mazel's, the
night she was murdered ; and a barber swore to
shaving him next morning, when, on his remarking
to his customer that his hands were very much
scratched, Berry said he had been killing a cat. His
guilt being evident, he was condemned to the torture,
and afterwards to be broken alive on the wheel.
Under the torture, he made, as many others have
done, a false confession, declaring that at the insti-
gation of Madame de Savoniere, Lady Mazel's
daughter, he and Le Brun had undertaken to rob
and murder the lady, and that Le Brun murdered
her while he guarded the door to prevent surprise.
But when brought to the place of execution, he
recanted what he had said against Le Brun and
Madame de Savoniere, and confessed "that he
came to Paris on the Wednesday before the murder
was committed. On the Friday evening he went
into the house, and unperceived, got into one of the
lofts, where he lay till Sunday morning, subsisting

CIRCUMSTANTIAL EVIDENCE. 71

on apples and bread, which he had in his pockets ;
that about eleven o'clock on Sunday morning, when
he knew the lady had gone to church, he stole
down to her chamber, and the door being open, he
tried to get under the bed ; but it being too low, he
returned to the loft, pulled off his coat and waist-
coat, and returned to the chamber a second time,
in his shirt. He then got under the bed, where he
continued till the afternoon, when Lady Mazel went
to church ; that knowing she would not come back
soon, he left his hiding-place, and being incom-
moded with his hat, he threw it under the bed, and
made a cap of a napkin which lay on a chair, secured
the bell-strings, and then sat down by the fire, where
he continued till he heard her coach drive into the
courtyard, when he again got under the bed and
remained there ; that Lady Mazel having been in
bed about an hour, he got from under it, and
demanded her money ; she began to cry out, and
attempted to ring, upon which he stabbed her, and
she resisting with all her strength, he repeated the
stabs till she was dead ; that he then took the key
of the wardrobe cupboard from the bed's head,
opened the cupboard, found the key of the strong
box, opened it and took out all the gold he could
find, to the amount of about six hundred livres ;

72 FAMOUS CASES OF

that he then, locked the cupboard, and replaced the
key at the bed's head, threw his knife into the fire,
took his hat from under the bed, left the napkin in
it, took the key of the chamber from the chair, and
let himself out; went to the loft, where he pulled
off his shirt and cravat, and leaving them there, put
on his «oat and waistcoat, and stole softly down
stairs ; and finding the street door only on the single
lock, he opened it, went out, and left it open ; that
he had brought a rope ladder to let himself down
from a widow if he had found the street door
double locked, but finding it otherwise, he left the
rope ladder at the bottom of the stairs, where it was
found."

Thus was this foul mystery cleared up — and
thus were all the circumstances which appeared
against Le Brun accounted for, consistently with
his innocence. Le Brun perished, as d'Anglade
had perished, through the headlong precipitancy of
the criminal court and the judge.

CIRCUMSTANTIAL EVIDENCE. 73

XIII.

A MOST melancholy case of circumstantial evi-
dence happened in London, in the year 1315, the
particulars of which must yet dwell in the memo-
ries of many still living. Eliza Fenning was a
servant girl, very young, and said to be very beauti-
ful, living in Chancery Lane. She was but twenty-
one years of age, the dutiful and only child of
respectable parents, then alive. She was tried at
the Old Bailey, in the month of April, 1815, before
the recorder of London, for the crime of admin-
istering poison to her master and mistress, and her
master's father — a capital felony under Lord EL-
LENBOKOTJGH'S Act. The only evidence to affect
the prisoner was entirely circumstantial. The
poison was contained in dumplings made by her,
but it was proved by the surgeon, who gave evi-
dence at the trial, that she had eaten of them .her-
self, and had been quite as ill as any of the persons
whom she was supposed to have intended to poison.
Further, her eating of them could not be ascribed
to art, or to any attempt to conceal her crime, for

74 FAMOUS CASES OF

she had made no effort whatever to remove the
strongest evidence of guilt, if guilt there was. She
had left the dish unwashed ; and the proof that
arsenic was mixed it it, was furnished by its being
found in the kitchen on the following day, exactly
in the state in which it had been brought from the
table.

It is hardly conceivable that, such being the cir-
cumstances, a conviction could have been possible.
"But," says Sir SAMUEL ROMILLY, from whose
manuscript this account is condensed, "the recorder
appeared to have conceived a strong prejudice
against the prisoner; in summing up the evidence,
he made some very unjust and unfounded observa-
tions to her disadvantage, and she was convicted."
Petitions signed, not by hundreds, but by thousands,
besought the throne for mercy. The master of the
girl was requested to add his name to the petitioners
on her behalf, but the recorder dissuaded him, and
at his instance he refused. All intercession was
fruitless, and Eliza Fenning was ordered for execu-
tion. She mildly, but earnestly, asserted her inno-
cence to the last, and prayed to God some day to
make it manifest. When the religious ceremonies
were over, the sad procession moved towards the
scaffold. As the last door was opening which still

CIRCUMSTANTIAL EVIDENCE. 75

Concealed her from the public gaze, Mr. Cotton, the
ordinary, made a final effort: "Eliza, have you
nothing more to say to me?" It was an awful
moment, but her last words in this world were,
"Before the just and Almighty God, and by the
faith of the Holy Sacrament I have received, I am
innocent of the offense of which I am charged."
The door then opened, and she stood robed in white,
before the people. Two old offenders were executed
with her, "and," says a bystander, "as all three
stood under the beam, beneath the sun, she looked
serene as angel." The stormy multitude was hushed
at once, and while all eyes wept, and every tongue
prayed for her, she passed into eternity.

When the curtain had fallen upon this tragedy,
the fury of the people knew no bounds, and the
house of the prosecutor was protected only by the
presence of a considerable* force. The temper of the
times was such that nothing could prevent a popular
demonstration at the funeral, and a mournful and
striking one it must have been. The broken-hearted
parents led the way, followed by six young females
clad in white, and then by eight chief mourners. At
least ten thousand persons accompanied the hearse,
and thus, every window filled, and every housetop
crowded, they reached the cemetery of St. George

7 6 FAMOUS CASES OF

the Martyr, where the remains of the innocent girl
was interred.

Sir SAMUEL ROMILLY farther states, that after
Eliza Fenning's conviction, and while the error was
reparable, "an offer was made to prove that there
was in the house of Eliza' s master, when the poison-
ing took place, a person who had labored, a short
time before, under mental derangement, and who,
in that state, had declared his fears that he should
destroy himself and his family." This statement
was made to the recorder himself, and evidence of
its truth was offered, but that functionary affirmed
that the production of any evidence of the kind
would be wholly useless. That the crime was com-
mitted by a maniac, there can be but small doubt.
The testimony of Mr. Gibson, who was then con-
nected with the firm of Corbyn & Co., Holborn, is
all but conclusive on the point. This gentleman
stated that "about September or October, in the

preceding year, a Mr. (the name, for obvious

reasons, was not made public), called on me in
Holborn. He seemed in such a wild and deranged
state, that I took him into a back room, where he
used the most violent and incoherent expressions —
'My dear Gibson, do, for Heaven's sake, get me
secured or confined, for if I am left at liberty I

CIRCUMSTANTIAL EVIDENCE. 77

shall do some mischief; I shall destroy myself
and my wife. I must and shall do it unless all
means of destruction are removed out of my way ;
therefore do, my good friend, have me put under
some restraint ; somefJiing from above tells me I
must do it, and, unless I am prevented, I shall cer-
tainly do it." Mr. Gibson felt it his duty to com-
municate this to the poor maniac's family, but they
were heedless of the warning, and he was left at
liberty.

FAMOUS CASES OF

XIV.

ABOUT the middle of the last century, Richard
Coleman was indicted at the Kingston assizes, in
Surrey, for the murder of Sarah Green. Coleman
was a man of some education, was married and had
several children, and was clerk to a brewer when
the affair happened which cost him his life. One
Sarah Green, a woman of a humble class, was
attacked by three men, who maltreated her so
cruelly that she afterwards died. These men had
the appearance of brewers' servants,! and while
she was under treatment in the hospital, she de-
clared that a clerk in Berry's brewhouse was one
of them, though it was not clear to whom she
alluded. Two days after the transaction, Coleman
went into an alehouse for refreshment, where he
met with one Daniel Trotman, whom he knew.
Having called for some spirits and water, Coleman
was stirring it with a spoon, when a stranger who
was present, asked him what he had done with the
pig — alluding to a pig which had been lately stolen in
the neighborhood. The retort led to a violent

CIRCUMSTANTIAL EVIDENCE. 79

quarrel, in the course of which, the stranger in-
sinuated that Coleman had been concerned in the
murder of Sarah Green. Coleman answered the in-
sinuation only by further aggravating his opponent.
There was no breach of the peace, and the parties
separated at length, with mutual ill-temper and
personal abuse.

A day or two after this quarrel, Daniel Trotman
and another man went before a magistrate in the
Borough, and charged Coleman with the crime.
The magistrate, not supposing that Coleman was
guilty, sent a man with him to the hospital where
the wounded woman lay, and a person pointing
out Coleman, asked her if he was one of the per-
sons who assailed her. She said she believed he
was, but as she declined to swear positively to his
having any concern in the affair, the magistrate,
Justice CLAEKE, admitted him to bail. A short
time afterwards Coleman was again taken before
the magistrate, when nothing positive being sworn
against him, the justice would have absolutely
discharged him; but Mr. Wynne, the master of the
injured girl, requesting that he might be once
more taken to see her, a time was fixed for that
purpose, and the justice took Coleman' s word for
his appearance. He came punctually to his time,

8o FAMOUS CASES OF

bringing with, him the landlord of an alehouse where
Sarah Green had been drinking on the night of
the crime with the three men who were really guilty ;
and this publican, and other people, declared on
oath that Coleman was not one of the party. On
the following day, Justice CLAEKE went to the
hospital to take the examination of the woman on
oath. Having asked her if Coleman was one of the
men who had attacked her, she said she could not
tell, as it was dark at the time, but Coleman being
called in, an oath was administered to her, when
she swore that he was one of the three assailants.
Spite of her oath, the justice, who thought the poor
girl not in her right senses, and was convinced in his
own mind of the innocence of Coleman, permitted
him to depart, on his promise of bringing bail the
following day, to answer the complaint at the next
assizes for Surrey ; and he brought his bail and gave
security accordingly.

Sarah Green dying in the hospital, the coroner's
jury sat to inquire the cause of her death ; and hav-
ing found a verdict of willful murder against Richard
Coleman and two persons then unknown, a warrant
was issued to take Coleman into custody. Though
conscious of his innocence, yet such was the agita-
tion of his mind at the idea of being sent to prison

CIRCUMSTANTIAL EVIDENCE. 81

on such a charge, that Coleman absconded, and
secreted himself at Pinner, near Harrow-on-the-Hill.
The king being then at Hanover, a proclamation was
issued by the lords of the regency, offering a re-
ward of fifty pounds for the apprehension of the
supposed offender ; and to this the parish of Saint
Saviour, Southwark, added a further sum of twenty
pounds. Coleman read in the "Gazette" an ad-
vertisement for his apprehension, but was still so
thoughtless as to conceal himself, though perhaps
an immediate and voluntary surrender would have
been his wisest course. However, to assert his in-
nocence, he caused the following advertisement to
be printed in the newspapers :

"I, Richard Coleman, seeing myself advertised
in the 'Gazette' as absconding on account of the
murder of Sarah Green, knowing myself not any
way culpable, do assert that I have not absconded
from justice, but will willingly and readily appear
at the next assizes, knowing that my innocence will
acquit me."

The authorities, not choosing to wait for his
promised appearance, however, made strict search
after him, and he was apprehended at Pinner on
the 22nd of November, and lodged in Southwark
jail till the time of the assizes at Kingston, Surrey,

82 FAMOUS CASES OF

At the trial several persons swore positively that
Coleman was at another place at the time the crime
was committed ; but their evidence was not believed,
and he was convicted principally upon the evidence
of Daniel Trotman, and the declaration of the dying
woman. After conviction, Coleman behaved like a
man possessed of conscious innocence, and betrayed
no fear in dying for a crime which he had not com
mitted. At the place of execution, he delivered to
the chaplain who had attended him a paper, in
which he declared, in the most solemn and explicit
manner, that he was altogether innocent of the
crime alleged against him. He was executed at
Kennington Common, on the 12th of April, 1749—-
and died with perfect resignation, lamenting only
the distress in which he should leave a wife and two
children.

About two years after Coleman' s death, it was
discovered that three working brewers named
James Welch, Thomas Jones, and John Nichols,
were the persons who had actually occasioned the
death of Sarah Green. These wretches had been
intimately acquainted from 'their childhood, and
had kept the murder a secret, till it was discovered
in the following manner. Welch, and a young fellow
named James Bush, were walking together in the

CIRCUMSTANTIAL EVIDENCE. 83

neighborhood of Newington, when their conversa-
tion happened to turn on the subject of persons
who had been executed for offenses of which they
had not been guilty — "Among whom," said Welch,
as if by a sudden impulse, "was Richard Coleman.
Nichols, Jones, and I, were the persons who com-
mitted the murder for which he was hanged."
Welch then went on to relate the circumstances of
the crime — his companion listening to the disclo-
sure with feelings that may be imagined. Bush
scarcely credited the story thus abruptly communi-
cated, and for a time said nothing about it to any
one ; at length, however, he told his father what
he had heard, and his father meeting shortly after-
wards with Thomas Jones, and willing to test the
truth of so strange a tale, abruptly charged him
with being one of the murderers of Sarah Green.
Jones trembled and turned pale at the charge, but
soon assuming a degree of courage, said: "What
does it signify ? The man is hanged, and the woman
is dead, and nobody can hurt us." In consequence
of this acknowledgment, Nichols, Jones, and Welch
were apprehended, when all of them steadily denied
their guilt. Nichols, however, subsequently turned
against his companions, and was admitted as evi-
dence for the crown.

84 FAMOUS CASES OF

The prisoners being brought to trial at the next
Surrey assizes, were both of them convicted on the
testimony of Nichols, and sentence of death was
passed upon them. After conviction, they be-
haved with the utmost contrition, and made a
full confession of their crime. They likewise
signed a declaration which they begged might be
published, containing the fullest assertions of Cole-
man's innocence.

CIRCUMSTANTIAL EVIDENCE. 85

XV.

ANOTHEB case, in which an innocent man was
convicted on the evidence of a dying person, was
that of William Shaw, of Leith. Shaw was an
artisan, and lived in that town respectably for his
station in life, his family consisting but of an only
daughter, who resided with him ; she had formed
an unfortunate attachment to a young man whom
the father knew to be of bad character, and there-
fore sternly discountenanced his addresses. This
gave rise to continual dissension, until, at length, it
one day rose to such a height, that James Morrison,
the tenant of an adjoining room, could not avoid
overhearing the conversation. The voices of father
and daughter were recognized, and the words,
"cruelty," "barbarity," and "death," were over
and over again angrily enunciated. The father at
last left the room abruptly, locking the door behind
him, and leaving the daughter a prisoner. After
some little time, deep noises were heard from within,
which gradually becoming fainter, the alarmed,
neighbors procured the assistance of a bailiff, and

86. FAMOUS CASES OF

burst open the door. Ghastly, indeed, was the
spectacle which presented itself. There lay the
young woman on the floor, weltering in her blood —
a knife, the instrument of her death, beside her.
To the question whether her father had been the
cause of her sad condition, she was just able to
make a faint affirmative gesture, and expired. At
this moment the father reappeared. His horror
may be imagined ; every eye was fixed on him,
and some specks of blood upon his shirt-sleeves
seemed to confirm strongly the dreadful accusation
which his daughter's dying gesture had too clearly
intimated. Yainly attempting to account for the
stained sleeve by the rupture of some swathe with
which he had bound his wrist, he was hurried
before a magistrate, and, upon the depositions of
all the parties, committed to prison upon suspicion.
He was shortly after brought to trial, when, in his
defense, he acknowledged his having confined his
daughter to prevent her intercourse with Lawson,
the young man to whom he objected ; and that he
had quarreled with her on the subject the evening
she was found murdered, as the witness Morrison
had deposed ; but he averred that he left his
daughter unharmed and untouched, and that .the
blood found upon his shirt was there in conse-

CIRCUMSTANTIAL EVIDENCE. 87

quence of his having bled himself some days
before, and the bandage becoming untied. These
assertions did not weigh a feather with the jury
when opposed to the strong circumstantial evidence
of the daughter's expressions of "barbarity, cruelty,
death," together with that apparently affirmative
motion of her head, and of the blood so, as it
seemed, providentially discovered on the father's
shirt. On these severally concurring circumstances
was William Shaw found guilty and executed.

After this unfortunate man had swung for weeks
upon his gibbet — for he was gibbeted in chains,
exposed to the four winds of heaven and the gaze
of every passer-by — it was shown, beyond the
possibility of donbt, that he was not merely guilt-
less, but that he had fallen a sacrifice to his regard
for her whom he was accused of having murdered.
The incoming tenant who succeeded Shaw, while
rummaging in the chamber where Catherine Shaw
died, discovered in a cavity on one side of the
chimney, where it appeared to have fallen, a paper
written by the wayward girl, announcing her in-
tention of committing suicide, and ending with the
words, "My inhuman father is the cause of my
death ; " thus explaining her expiring gesture.
This document being shown, the handwriting was

88 FAMOUS CASES OF

recognized and avowed to be Catherine's by many
of her relatives and friends. It became the pnblic
talk, and the magistracy of Edinburgh, on a
scrutiny, being convinced of its authenticity,
ordered the body of William Shaw to be given
to his relatives for interment. Willing to make
some reparation to his memory, and to show some
sympathy with the feelings of his relatives, they
caused a pair of colors to be waved over his grave.
It was all the compensation they could award.

CIRCUMSTANTIAL EVIDENCE. 89

XVI.

JAQUES DU MOULIIST, a French refugee, having
brought over his family and a small sum of money,
employed it in purchasing lots of goods that had been
condemned at the custom-house, which he again dis-
posed of by retail. As these goods were such as,
having a high duty, were frequently smuggled,
those who dealt in this way were generally suspected
of increasing their stock by illicit means, and
smuggling, or purchasing smuggled goods, under
color of dealing only in goods that had been legally
seized by the king's officers, and taken from smug-
glers. This trade, however, did not, in the general
estimation, impeach his honesty, though it gave no
sanction to his character ; but he was often detected
in uttering false gold. He came frequently to per-
sons of whom he had received money, with several
of these pieces of counterfeit coin, and pretended
that they were among the pieces which had been
paid him ; this was generally denied with great
eagerness, but, if particular circumstances did not
confirm the contrary, he was always peremptory

9o FAMOUS CASES OF

and obstinate in Ms charge. This soon brought him
into disrepute, and he gradually lost not only his
business, but his credit. It happened that, having
sold a parcel of goods, which amounted to seventy-
eight pounds, to one Harris, a person with whom
he had before had no dealings, he received the
money in guineas and Portugal gold, several pieces
of which he scrupled ; but the man having assured
him that he himself had carefully examined and
weighed those very pieces, and found them good,
Du Moulin took them, and gave his receipt.

In a few days he returned with six pieces, which
he averred were of base metal, and part of the
sum which he had a few days before received of
him for the lot of goods. Harris examined the
pieces, and told Du Moulin that he was sure there
were none of them among those which he had
paid him, and refused to exchange them for others.
Du Moulin as peremptorily insisted on the contrary,
alleging that he had put the money in a drawer by
itself, and locked it up till he offered it in payment
of a bill of exchange, and then the pieces were
found to be bad, insisting that they were the same to
which he had objected. The man now became
angry, and charged Du Moulin with intending a
fraud. Du Moulin appeared to be rather piqued

CIRCUMSTANTIAL EVIDENCE. 91

than intimidated at this charge ; and having sworn
that these were the pieces he received of Harris,
Harris was at length obliged to make them good ; but
as he was confident Du Moulin had injured him by
a fraud, supported by perjury, he told his story
wherever he went, exclaiming against him with
great bitterness, and met with many persons who
made nearly the same complaints, and told him that
it had been a practice of Du Moulin' s for a con-
siderable time. Du Moulin now found himself
universally shunned ; and hearing what Harris had
reported from all parts, he brought his action for de-
famatory words, and Harris, irritated to the highest
degree, stood upon his defense ; and, in the mean
time, having procured a meeting of several persons
who had suffered the same way in their dealings
with Du Moulin, they procured a warrant against
him, and he was apprehended upon suspicion of
counterfeiting the coin. Upon searching his drawers,
a great number of pieces of counterfeit gold were
found in a drawer by themselves, and several others
were picked from other money, that was found in
different parcels in his scrutoire ; upon further
search, a flask, several files, a .pair of moulds, some
powdered cjhalk, a small quantity of aqua regia,
and several other implements, were discovered. No

92 FAMOUS CASES OF

doubt could now be made of his guilt, which was
extremely aggravated by the methods he had taken
to dispose of the money he made, the insolence
with which he had insisted upon its being paid him
by others, and the perjury by which he had sup-
ported his claim. His action against Harris for de-
famation was also considered as greatly increasing
his guilt, and everybody was impatient to see him
punished. In these circumstances he was brought
to his trial, and his many attempts to put off bad
money, the quantity found by itself in his scrutoire,
and, above all, the instruments of coining, which,
upon a comparison, exactly answered the money
in his possession, being proved, he was upon this
evidence convicted, and received sentence of death.

It happened that a few days before he was to have
been executed, one Williams, who had been bred a
seal engraver, but had left his business, was killed
by a fall from his horse ; his wife who was then
big with child, and near her time, immediately
fell into fits, and miscarried. She was soon sensible
that she could not live, and therefore sending for
the wife of Du Moulin, she desired to be left alone,
and gave her the following account :

That her husband was one of four, .whom she
named, that had for many years subsisted by coun-

CIRCUMSTANTIAL EVIDENCE. 93

terfeiting gold coin, which she had been frequently
employed to put off, and was therefore intrusted
with the whole secret ; that another of these persons
had hired himself to Du Moulin as a kind of foot-
man and porter, and being provided by the gang
with false keys, had disposed of a very considerable
sum of bad money, by opening his master's scru-
toire, and leaving it there in the stead of an equal
number of good pieces, which he took out ; that by
this iniquitous practice, Du Moulin had been de-
frauded of his business, his credit, and his liberty,
to which in a short time his life would be added,
if application was not immediately made to save
him. By this account, which she gave in great
agonies of mind, she was much exhausted, and hav-
ing given directions where to find the persons whom
she impeached, she fell into convulsions, and soon
after expired. The woman immediately applied to
a magistrate, and having related the story she had
heard, procured a warrant against the three men,
who wdre taken the same day, and separately
examined. Du Moulin' s servant steadily denied
the whole charge, and so did one of the other two ;
but while the last was examining, a messenger who
had been sent to search their lodgings, arrived with
a great quantity of bad money, and many instru-

94 FAMOUS CASES OF

ments for coining. This threw him into confusion,
and the magistrate, improving the opportunity by
offering him his life if he would become an evi-
dence for the king, he confessed that he' had been
long associated with the other prisoners and the
man that was dead, and he directed where other
tools and money might be found, but he could say
nothing as to the manner in which Du Moulin' s
servant was employed to put it off. Upon this dis-
covery, Du Moulin' s execution was suspended ;
and the king's witness swearing positively that his
servant and the other prisoner had frequently
coined in his presence, and giving a particular ac-
count of the process, and the part which each of
them usually performed, they were convicted, and
condemned to die. Both of them, however, still
denied the fact, and the public were still in doubt
about Du Moulin. In his defense, he had declared
that the bad money which was found together was
such as he could not trace to the persons of whom
he had received it ; that the parcels with which
bad money was found mixed, he kept separate,
that he might know to whom to apply if it should
appear to be bad ; but the finding of the moulds
and other instruments in his custody was a par-
ticular not yet accounted for, as he only alleged

CIRCUMSTANTIAL EVIDENCE. 95

in general terms that he knew not how they came
there, and it was doubted whether the impeach-
ment of others had not been managed with a view
to save him who was equally guilty, there being
no evidence of his servant's treachery but that of
a woman who was dead, reported at second hand
by the wife of Du Moulin, who was manifestly
an interested party. He was not, however, charged
by either of the convicts as an accomplice, a par-
ticular which was strongly urged by his friends in
his behalf; but it happened that while the public
opinion was thus held in suspense, a private
drawer was discovered in a chest that belonged to
his servant, and in it a bunch of keys, and the
impression of one in wax ; the impression was
compared with the keys, and that which it cor-
responded with was found to open Du Moulin' s
scrutoire, in which the bad money and implements
had been found. When this particular, so strong
and unexpected, was urged, and the key produced,
he burst into tears, and confessed all that had been*
alleged against him. He was then asked how the
tools came into his master's scrutoire; and he
answered, that when the officers of justice came
to seize his master, he was terrified for himself,
knowing that he had in his chest these instru-

96 FAMOUS CASES OF

ments, which the private drawer would not con-
tain, and fearing that he might be included in the
warrant, his consciousness of guilt kept him in
continual dread and suspicion ; that for this reason,
before the officers went up stairs, he opened the
scrutoire with his false key, and having fetched
his tools from his box in the garret, he deposited
them there, and had just locked it when he heard
them at the door.

In this case, even the positive evidence of Du
Moulin, that the money he brought back to Harris
was the same he had received of him, was not true,
though Du Moulin was not guilty of perjury, either
willfully or by neglect, inattention or forgetfulness.
And the circumstantial evidence against him, how-
ever strong, would only have heaped one injury
upon another, and have taken away the life of an
unhappy wretch, from whom a perfidious servant
had taken everything else.

CIRCUMSTANTIAL EVIDENCE. 97

XVII.

IN the town of M , in Germany, resided a

goldsmith, named Christopher Ruprecht, aged up-
wards of sixty ; rich, illiterate, quarrelsome, cov-
etous ; rude in speech, vulgar in his habits ; whose
chief indulgence consisted in frequenting low ale-
houses, and mingling in such haunts with the most
disreputable among the lower classes of his fellow
citizens. His selfishness and repulsive manners
had alienated from him all his relations, with the
exception of a sister, who resided with him, and a
married daughter, who still continued, notwithstand-
ing his peculiarities of temper, to visit him regu-
larly, though as much from interest perhaps as
affection.

The favorite resort of Ruprecht was a small ale-
house of the meanest order, situated at the end of
a dark winding lane, and receiving as a title, from
its gloomy situation, and the orgies of which it was
the scene, the emphatic monosyllable usually ap-
plied to the place of darkness. About half-past
eight o'clock, on the evening of the 7th of Febru-

FAMOUS CASES OF

ary, 1817, the goldsmith, repaired to this place
according to his custom, took his seat among the
circle' which generally assembled round the inn

fire on the first floor, and in his usual overbearing

' «
style, joined in the current conversation. In this

manner the time was spent till past ten o'clock,
when Ruprecht despatched the landlord to the
ground floor for a further supply of beer. As the
master of the house was reascending the stairs to
the company with the liquor wanted, a voice from
the passage or outer door below, was heard in-
quiring if Ruprecht was above ; and on the land-
lord replying — without turning his head — in the
affirmative, he was desired by the person below to
tell the goldsmith to come down. On receiving the
message, Ruprecht rose immediately, and left the
room. A minute had scarcely elapsed afterwards,
when the company heard distinctly a loud groan-
ing from below stairs, followed by a sound as of a
heavy body falling in the passage. All present, to
the number of eleven, hurried down stairs, where
they found the goldsmith lying near the house
door, still alive, but covered with blood flowing
from a large wound on his head. At a little dis-
tance lay his leather cap, which had been cut
through by the blow. The only words which the

CIRCUMSTANTIAL EVIDENCE. 99

wounded man uttered, when lifted up, were: "Th%
villain — the villain with the axe ! " and once after-
wards, " My daughter, my daughter ! " She was
immediately sent for, but his mind apparently
wandered, and he did not recognize her.

No trace of the author of the deed, or of any
weapon, was visible in the neighborhood. On
examination, the wound was found to be about
four inches long, extending along the left side of
the head from front to back, and deeper in the
center than at the ends. From the force required
to inflict such a blow, it was obvious that it must
have been done outside the door, as the passage
within was so low, that no weapon could have
been raised sufficiently high to produce such an
injury. After receiving it, the goldsmith must
have been able to stagger into the passage before
falling. On the left side of the door without, was
a stone seat, two feet high, on which, it was sup-
posed, the murderer must have taken his stand,
awaiting his victim, and directed, from this posi-
tion, the deadly stroke. Though Ruprecht's words
implied that the weapon had been an axe, the
medical inspector was of opinion that a saber,
wielded by an experienced hand, was more likely
to have been the instrument. The main hope of

i op FAMOUS CASES OF

^xplaining this point, and of discovering the author
of the deed, rested on the revelations which the
goldsmith himself might be able to make. It was
not, however, till the evening of the following day,
that he appeared sufficiently in his senses to war-
rant the judge in commencing his examination.
The wounded man's answers were given in mono-
syllables. He was asked :

"Who struck you ? "

" Schmidt."

"What is this Schmidt — where does he reside ? "

" In the Most." (The Most is a street of the town.)

"With what did he strike you?"

"A hatchet."

"How did you know him?"

"By his voice."

"Was he indebted to you?" Ruprecht shook
Ms head.

"What was his motive?"

"A quarrel."

The wounded man was so much exhausted by
these responses, that scarcely any other questions
could be put to him, excepting the request, that he
would again name the individual who had struck
Mm. His repeated answer was, " Schmidt-
woodcutter."

CIRCUMSTANTIAL EVIDENCE. 101

Who, then, was this Schmidt ? — a name, it is to
be observed, not less common in Germany than
Smith is in England. It turned out that there
were three Schmidts, woodcutters, in the town,
two of whom were brothers, and lived in the Most,
the street indicated by the goldsmith ; while the
third, Christopher Schmidt, lived in the street called
the Hohen Pilaster. The brothers were usually
named from their different heights, the Great
Schmidt and the Little Schmidt, and they proved
to be old acquaintances of Ruprecht, bat to have
recently ceased to be on familiar terms with him,
chiefly because the Great Schmidt had given evi-
dence against him in an action of damages. Re-
garding Christopher Schmidt, it was ascertained
that, at a former period of his life, he had been
imprisoned under a charge of accession to a rob-
bery. Before proceeding to the arrest of any of
these individuals, Ruprecht, whose skull had in
the interval been trepanned, in order to raise the
depressed bone, was again asked, at a favorable
moment, a string of questions similar to the former,
and gave the same responses, excepting in one im-
portant point. On being asked whether the Great
or the Little Schmidt was the guilty person, he
tried to speak, but failed. He was then asked if

102 FAMOUS CASES OF

the Most was the street, but was silent. To the
next question, "If the Hohen Pilaster was the
man's residence?" he answered with difficulty,
but distinctly, "Yes," and then relapsed into the
state of insensibility which was common to him.

All three Schmidts being thus implicated in
suspicion, they were taken into custody, for the
purpose, in the first place, of being confronted with
the wounded man, and to have the guilty indi-
vidual, if possible, identified by him. But Ru-
precht, though sensible, was unable to open his
eyes, and the main object of the interview was
thus defeated. The behavior of the suspected per-
sons was, however, so very different, as to excite
the strongest hopes that the matter would be
cleared up. The brothers Schmidt were calm and
composed on being brought into the goldsmith's
presence ; they spoke to him, called him by name,
and expressed the greatest sympathy for his situa-
tion. Christopher Schmidt, on the contrary, was
agitated and restless ; when asked if he knew the
person in bed, he first said he did not know him,
and then that he did know him ; first, that he re-
mained in his mother-in-law's house on the night
of the murder till eleven, and afterwards, that he
was in his own house in bed at nine. He at the

CIRCUMSTANTIAL EVIDENCE. 103

same time protested his entire innocence, and ap-
pealed to the testimony of hid wife, his mother-in-
law, and his neighbors. His agitation and con-
tradictions drew the suspicion of all from the other
Schmidts upon him, and he was committed by the
judge to prison. All hope of further information
from the victim himself, was put an end to by his
death on the following day, the second from the
accident.

Subsequent investigations tended to increase the
suspicions against Christopher Schmidt, which his
behavior on the first occasion "had awakened. On
inspecting his house, the handle of his axe, near
the blade, was found to be streaked with blood !
The truth of the report as to his former imprison-
ment he did not attempt to deny, but alleged that
he had been merely made the innocent instrument
of conveying stolen property from one place to
another. On undergoing another examination, his
contradictions were even more glaring than before.
To the question,- "How he came to know Ruprecht
in bed, when he stated that he had never seen him
before," he said that he knew him from having
heard of his accident, and from being aware of the
object of his own visit to the goldsmith's house.
He stated that he had been with his wife and child

104 FAMOUS CASES OF

to his mother-in-law's house, where they wrought
at some in-door work, to save candles at home.
It was impossible to ascertain from his answers
the time at which he had come from his mother-in-
law's house to his own. He first averred that he
had come home with his child at nine, and that his
wife had come an hour after him ; then, that his
wife had returned with him at ten o'clock ; then,
that he was asleep, and did not know when she
came ; and made fresh contradictions, in short, with
regard to time, at every query put to him. All
these things — his variations, his agitation, his down-
cast and suspicious look, his previous imprison-
ment, the spots upon his axe, the expression of
the dying man, which pointed most strongly to
him — when taken together, formed a strong com-
bination of circumstances against Christopher
Schmidt. Indeed, his guilt was scarcely doubted of
by any one.

On the other hand, after men's minds became
capable of calmer reflection on the -subject, the very
grossness of these contradictions seemed to lead to
the inference, that they arose from a deficiency of
intellect, or from a mind disordered by temporary
anxiety and fear, or from both causes, rather than
from a desire to conceal the truth. The report of

CIRCUMSTANTIAL EVIDENCE. 105

the neighbors, when their evidence was collected,
corroborated this conjecture ; his stolidity and dull-
ness of intellect was such as to have acquired for
him the common nickname of "The Sheep." He
never was capable, it was found, of expressing him-
self clearly, and it followed that, under such cir-
cumstances as a charge of murder, this deficiency
must evidently have been greatly aggravated.
From such a character as this, the statement,
illogical as it was, that he knew Ruprecht in bed
from having heard of his accident, was natural
enough. With regard to the contradictory repre-
sentations regarding the hour of his return, the
inconsistency might be in part explained away by
supposing his wife to have first gone home with
him, seen him to bed with the child, and after-
wards to have returned to her mother's for a short
period before she finally came to sleep in her own
house. This was, in fact, substantially proved by
subsequent investigations of Schmidt's mother-in-
law and wife. They, with other witnesses, proved
that the wife, having seen her husband home, went
back to her mother's to finish some work, and after
an hour or an hour and a half s stay, returned to
her own domicile. It was remarkable, however,
that these two witnesses differed considerably with

io6 FAMOUS CASES OF

respect to the hours at which these events took
place. These discrepancies were held to arise from
the fact, that the night in question was a long and
dark one in February, and that no clocks were
within reach of the parties. This gave a favora-
ble color also to Schmidt's own inconsistencies as
to time, particularly when taken in connection with
the man's unquestionable stupidity. ;

But — admitting the wife's statement to be cor-
rect— Christopher Schmidt was left alone for an
hour and a half at the very time the deed was corn-
committed. The ale-house where it took place,
however, was a mile and a quarter from Schmidt's
dwelling ; and to have been the actor in the deed,
he must have sprung from bed at the moment of
his wife's departure, hurried to the spot, com-
mitted the murder, and then been in bed a quarter
of an hour afterwards. Was this energetic vil-
lainy likely to have been exhibited by one so slow
and sluggish in intellect and behavior as Schmidt
was proved to be? The thing was felt by all, on
reflection, to be barely possible.

But, again, the blood on the handle of the axe?
The accused, on being questioned respecting this,
said, that if such stains existed, of which he knew
nothing, they must have proceeded from a swell-

CIRCUMSTANTIAL EVIDENCE. 107

ing in the hand — which he showed — that had
burst some days before. The swelling, it was
replied, is in the right hand, while the stains are
upon the upper of the handle, which is always
held in the left hand. "I am left-handed," said
the accused ; and on inquiry among his asso-
ciates, it was found to be the case. Further ex-
amination, also, showed that the axe of Schmidt
could not have been the instrument of death, the
wound in the head being four inches long, while
the axe's blade was barely three inches. A strong
additional testimony in Schmidt's favor, was the
discovery that he had actually been free of all
guilt, as he had represented, on the occasion of
his former imprisonment, and that his general
character everywhere was that • of a sober, indus-
trious, peaceable man.

Thus, one by one, the grounds of suspicion
which had at first appeared to be assuming so
firm and compact a form, crumbled away, and,
though not yet finally liberated, it was apparent to
all that Christopher Schmidt would be acquitted.
But, as the clouds of suspicion passed from Chris-
topher, they gathered for a time round the heads
of his namesakes, the Great and Little Schmidts
of the Most. These men, it was recollected, knew

io8 FAMOUS CASES OF

Kuprecht, which Christopher did not ; they had,
moreover, been actually placed in an inimical posi-
tion with respect to the deceased. They had borne
evidence against him, in an action instituted by
two respectable surveyors, whose names the gold-
smith had publicly vilified. Ruprecht had lost
the cause, and had been sentenced to a short con-
finement on bread and water. At his liberation, he
had set on foot an action of retaliation against the
surveyors, which was still undecided at the time
of the murder. Could the surveyors have made
use of their former witnesses, the Schmidts, to rid
themselves of their pertinacious opponent ? The
high character of the men rendered this supposition
improbable; and after it had lived for but a short
time on the public breath, it was completely ex-
tinguished by the coming forward of several wit-
nesses, who spoke to the fact of the brothers
Schmidt having come home early on the night of
the goldsmith's death, and not having left the
house till next morning.

While all grounds for suspicion to rest upon
were thus disappearing as far as the parties first
implicated were concerned, some new discoveries,
or rather conjectures, were made, which drew the
eyes of justice to an entirely different quarter.

CIRCUMSTANTIAL EVIDENCE. 109

Two other Schmidts, woodcutters also, were found
out, not living in the town indeed, but in the
suburbs. One of these men was woodman to
Berenger, Ruprechfs son-in-law, and this circum-
stance seems to have originated a new train of
thinking in the minds of the official persons of the
town, though no ground of suspicion could be found
against the newly discovered Schmidts. One of
Ruprecht's first expressions, it will be remembered,
after receiving the blow, was, "My daughter! my
daughter!" These words had been naturally in-
terpreted at the time into an expression of anxiety
to see her, but circumstances subsequently emerg-
ing, seemed to render it doubtful whether his ex-
clamation did not bear a less favorable meaning.
The matrimonial life of Berenger and his wife had
long been, it appeared, an unhappy one ; Berenger
had often made complaints against his wife to her
father. Recently, some steps taken by the husband
had ended in making the wedded pair's life a little
more harmonious, but they had, at the same time,
exasperated Ruprecht's mind in the highest de-
gree against Berenger. A short time before his
death, the goldsmith had been heard to call his
son-in law a villain ; and he had also for some time
past entertained the resolution of making a will,

no FAMOUS CASES OF

leaving all to his daughter, and beyond her hus-
band's control. This resolve he had announced to
his daughter, about two months before his death,
and also to his apprentice, Hogner. Nay, within a
few hours of his accident, he had sent for Hogner
to assist in arranging his papers, preparatory to
the execution of the will on the following Sunday.
This intention he had expressed in the hearing of
of the maid servant. These remarkable circum-
stances directed the attention of justice to Berenger,
who might have heard of the old man's determina-
tion ; and a sufficient motive for a desire on his
part to get rid quickly of the goldsmith would
thus have been established.

Berenger, according to account, showed no emo-
tion or sympathy on hearing of the accident, and
his wife, it was said, showed also a want of feeling.
One of her first concerns was to see whether her
father had his keys about him ; and having ascer-
tained that he had, she took possession of and
walked away with them. She had, besides, shown
a strong anxiety to criminate one of the Schmidts,
reporting several speeches against him, from her
father's lips, which no one else had heard. Several
other minor incidents seemed to bear against the
Berengers. In interpreting her father's dying words

CIRCUMSTANTIAL EVIDENCE. m

with this view, it was thought that the old man,
feeling himself struck with what he conceived to be
an axe, would immediately revert in his mind to
the woodcutters, the Schmidts, who had borne a
part against him in the suit then pending, and
which occupied at the time much of his attention.
This was the sense now put upon the goldsmith's
mention of the name of Schmidt.

Here also, however, as in the former cases, the
grounds of suspicion vanished, one by one, into thin
air. That the words "my daughter" bore no mean-
ing unfavorable to the Berengers, was proved by
the statement of Ruprecht's sister, that such was
her brother's common expression when anything
troubled him ; it was also proved, on better inquiry,
that Berenger's wife had shown deep feeling for her
father, and had only taken away his keys on the
surgeon suggesting that the murder might be a pre-
limary to robbery; it was, however, sworn by the
wife, the apprentice, and the maid servant, that they
had never spoken of the will — a thing, indeed, most
unlikely for the wife to do, when she alone was to
to be benefited by it; and, finally, there was dis-
tinct evidence that Berenger himself, at least, had
not been the murderer, as, at the time of it, he was
quietly seated in the parlor of the Golden Pish. By

ii2 FAMOUS CASES OF

this and other evidence, the suspicion against the
Berengers fell to peices.

Even after all these failures, the investigation
was not abandoned. A soldier, who was indebted
to Ruprecht, and who had been threatened by him,
on the day of the accident, with hard measures, was
the person next brought under examination. After
the fabric of evidence in this case also had gathered
strength, it was at once overturned by a clear proof
of an alibi.

Here, at last, justice was obliged to give up the
pursuit ; nor has any light since been thrown on
this strange story.

CIRCUMSTANTIAL EVIDENCE. 113

XVIII.

THE following narrative, while it strikingly ex-
hibits the fallible and uncertain nature of circum-
stantial evidence, affords also a convincing proof of
the indispensable necessity of procuring medical
testimony of the highest order, in all criminal
cases relating to injuries of the person. The nar-
rator, Mr. Perfect, a surgeon at Hammersmith, sent
the statement to the editor of the Lancet (Mr.
Wakley) in January, 1839 :—

"It is now thirty years ago, that accidentally
passing the Packhorse, Turnham Green, my atten-
tion was attracted by a mob of persons of the
lowest order assembled around the door of that inn,
who were very loud in their execrations against
some person who was suspected of having murdered
his brother ; in corroboration of which, I was told
that his bones were found near the premises where
he formerly resided, upon view of which a jury
was then sitting, after an adjournment from the
day preceding. I found that two surgeons had

ii4 FAMOUS CASES OF

been supoenaed to inspect the remains, and I had
no doubt but that every information as to their
character had been obtained ; curiosity alone, there-
fore, induced me to make way into the room, where
I found that the coroner, and, I believe, a double
jury, were sitting for the second day, and were
engaged in an investigation which tended to show
that a farmer and market gardner at Suttoncourt
Farm, had, a few years before, a brother living
with him, who was engaged in the farm, but whose
conduct was dissolute and irregular to a degree
that often provoked the anger of his elder brother,
and sometimes begat strife and violence between
them ; that the temper of the elder brother was as
little under control as the conduct of the younger ;
and, in fine, that they lived very uncomfortably
together.

" One winter night, when the ground was covered
with snow, the younger brother absconded from the
house (for they both lived together), by letting him-
self down from his chamber window ; and when he
was missed the ensuing morning, his footsteps were
clearly tracked in the snow to a considerable dis-
tance, nor were there any other footsteps but Ms
own. Time passed on, and after a lapse of some few
years no tidings were heard of his retreat, nor per-

CIRCUMSTANTIAL EVIDENCE. 115

haps have there ever been since. Some alterations
in the grounds surrounding the house having been
undertaken by. a subsequent tenant (for the elder
brother had then left the farm), a skeleton was
dug up, and the circumstance appeared so con-
clusive that one brother had murdered the other,
that the popular clamor was raised to the utmost,
and a jury impanneled to investigate the case.

"After listening attentively to these details, I
ventured to request of the coroner to be allowed
to examine the bones, which I found were con-
tained in a hamper basket at the further end of
the room, and I felt much flattered by his imme-
diate compliance, for he desired the parish beadle,
who was in attendance, to place them upon the
table ; and having himself disposed them in their
natural order, I found that they represented a
person of short statute, and from the obliteration
of the sutures of the skull, and the worn-down
state of the teeth, must have belonged to an aged
person. But what was my surprise when I recon-
structed the bones of the skeleton, and found the
lower bones of the trunk to be those of a female.
I immediately communicated the fact to the jury,
and requested that the two medical men who had
before given their opinions might be sent for, one

I

n6 FAMOUS CASES OF

of whom attended, and without a moment's hesita-
tion corroborated my report.

"I need not add that the proceedings -were in-
stantly at an end, and an innocent man received
the amende honorable, in the shape of an apology,
from all present, in which the coroner heartily
joined. It has since been proved beyond all doubt
that the spot where the bones were found was for-
merly the site of a large gravel pit, in which hordes
of gipsies not only assembled, but occasionally
buried their dead, and perhaps more skeletons are
yet to be found in that vicinity."

djfc

CIRCUMSTANTIAL EVIDENCE. 117

XIX.

IN the year 1841, at Gibraltar, there occurred one
of those extraordinary cases, which show us how in-
effectively the romancist, even when his imagination
is strained to the uttermost, can portray the extremes
of passion of which human nature is susceptible. A
communication, bearing date Feberuary 20th, from
the rock-built fortress which England keeps as a key
to the Mediterranean, relates the following par-
ticulars :

A respectable merchant, named James Baxwell,
born at London, had removed in early life to Gibral-
tar, induced partly by the circumstance of his being
of the same religious persuasion to which the people
of his adopted country belonged. For many years
he occupied a small dwelling near the base of Mount
St. Michael, so renowned for its caves and crystal-
lizations. He carried on a successful traffic in all the
articles of British manufacture introduced into Spain.
He acquired, in truth, a very considereble fortune in
this way. All the country knew that he had a large
amount of treasure lying by him, not to speak of the
capital belonging to him, which was embarked in

n8 FAMOUS CASES OF

commerce. His name was one of credit in all the
principal houses of exchange in Europe.

James Baxwell had a daughter, an only daughter,
aged seventeen, and of remarkable beauty. Her
countenance and figure combined in a most agreeable
manner the peculiar charms of the Englishman with
the soft and languishing characteristics of the
Spaniard. Young as she was, she had been for some
two or three years an object of devoted admiration to
all the youths around Gibraltar. At church they
devoured her with their eyes ; and many, many a
one thought to himself that happy above all men
would be he who could win the smiles of Elezia Bax-
well. But Elezia bestowed her smiles upon no one.
She seemed, to those whose involuntary sighs she
excited, to carry maidenly modesty to freezing cold-
ness. At mass, Tier eyes were ever bent upon her
book, regardless of all the glances cast upon her by
others.

Such was, at least, the case, till shortly before the
events to be narrated. At length, however, Elezia
did see one who awakened in herself some of the
emotions which she had caused in others. At mass,
one day, she observed the eyes of a young stranger
fixed upon her with an expression of admiration and
respect. To her he seemed a being superior to all

CIRCUMSTANTIAL EVIDENCE. 119

the young men she had ever yet beheld. From that
moment, her calm and self-possessed demeanor left
her for ever. Abroad and at home, she was restless
and uneasy. But, ere long, the stranger found an
opportunity of being introduced to her, and mutual
avowals of love followed at no great distance of
time.

Assured of the affections of Elezia, the young
stranger then presented himself to Mr. Baxwell. " I
am named William Katt," said he to the merchant;
"I am, like yourself, an Englishman; I am of
respectable family and character, young, and
wealthy. Give me your daughter — we love one
another."

"Never!" said James Baxwell, to whom the
position and circumstances of the young man were
not unknown ; " never ! You belong to the denomi-
nant religion of England, by which my fathers suf-
fered so much and so long. You are a Lutheran and
my daughter is a Catholic. Such a union could not be
happy ; nor will I ever give my consent to it. Elezia
shall never be yours!" The daughter, informed of
this declaration, threw herself at the feet of her
father, and endeavored to move him from his pur-
pose. Her lover did the same. But the father
remained obstinate, and a violent scene took place

120 FAMOUS CASES OF

between Elezia and her parent. The blood of the
fiery South coursed in the daughter's veins, and she
declared that she would marry the object of her
choice, despite of all opposition. James Baxwell, on
the other hand, declared that he would sooner kill
her with his own hands, than see her carry such a
resolution into effect. As to William Katt, who
stood by at this scene, he kept silence. What
thoughts were revolving in his mind, it would be
difficult to say.

Two days afterwards, an alarming noise was heard
by the neighbors to issue from a cave immediately
adjoining the merchant's house, and used by him for
some domestic purposes. The noise consisted at
first of loud cries, winch gradually became fainter,
and at length died altogether away. The auditors
looked at each other with amazement, and many
were the conjectures as to the cause of the sounds
alluded to. A solution of the mystery was not long
in suggesting itself. Elezia had disappeared ; she
was no longer to be seen about her father's house.
After many low murmurs had circulated, the father
was interrogated respecting his daughter. He said
that she was missing, certainly ; but whither she had
gone, he knew not. He had nothing whatever to do,
he said, with her disappearance.

CIRCUMSTANTIAL EVIDENCE. 121

This explanation was not satisfactory. The
whisper went abroad that James Baxwell had
assassinated his daughter, to prevent her marriage
with William Katt, and, ultimately, this conjecture
was so forcibly pressed on the attention of the public
authorities, that they were compelled to arrest James
Baxwell, and inquire into the matter. The dwelling
of the merchant was examined, but nothing crimina-
tory was found. " The cave ! the cave is the place ! "
cried some of the crowd. The magistrates then
descended into the cave, and there, on lifting some
loose stones, they found a portion of Elezia's dress,
sprinkled all over with blood. They also discovered
a small quantity of hair, clotted with gore, and that
hair was recognized by many as having been taken
from the head of Elezia.

Baxwell protested his innocence. But the proof
seemed strong against him, and he was regularly
brought to trial. The result was his conviction for
the murder of his daughter, and his condemnation
to death.

On receiving sentence, the unhappy merchant
trembled to excess, and afterwards seemed utterly
overpowered by the dreadful nature of his situation.
He continued in a state almost of total insensibility
during the interval between his trial and the day

122 FAMOUS CASES OF

appointed for his execution. On the morning of the
latter day, the jailer came to announce to him. for
the final time, that the moment was at hand. The
merchant was seized again with a fearful trembling,
and he cried, what he had reiterated to all who saw
him in his confinement : "Before my Maker, I swear
that I am guiltless of my child's death ! "

They led him out to the scaffold. There he found,
among others, William Katt, who, it should have
been said, was the most important witness against
him at his trial, having repeated to the" court the
threat of assassination which had been uttered by
James Baxwell in his presence against Elezia. No
sooner did the doomed merchant behold Katt, than
he exclaimed, at the very foot of the scaffold : "My
friend, in one minute I shall be in eternity. I wish
to die in peace with all men. Give me your hand —
I pardon you freely for the injury your evidence has
done to me." Baxwell said this with some com-
posure, but the effect of his words upon Katt were
very striking. He became pale as death, and could
not conceal the depth of his agitation.

Baxwell mounted the steps of the gallows slowly,
and gave himself up to the hands of the executioner,
to undergo death by the rope. According to the
ancient custom of Gibraltar, the executioner com-

CIRCUMSTANTIAL EVIDENCE. 123

menced his last duties by crying in a loud voice : "Jus-
tice is doing! Justice is done!" He then placed
the black bonnet on the head of the condemned
merchant, and pulled it down in front, so as to cover
the eyes. He had just done this, when he was stopped
in his proceedings by a loud cry from the side of
the scaffold : " It is I who am guilty — I alone! "

This cry came from William Katt. The magis-
trates in attendance instantly called him forward,
and demanded an explanation. The young man
avowed that he had carried off Elezia, with her con-
sent, to be his wife, and that she was now residing
not far off, in concealment. But to her he did not
communicate other measures which he had taken,
chiefly to revenge himself for the scorn of her father.
He had contrived to cut off a portion of her hair
while she slept. He had clotted it with the blood of
a lamb, and had also sprinkled in the same way a
part of Elezia' s dress, which he had purloined.
These articles he had placed in the cave, and there,
also, had he emitted personally those cries which
had borne so heavily against the merchant. The
generous pardon which the merchant had bestowed
on him at the scaffold, had awakened (the young
man said) instantaneous remorse- in his breast, and
compelled him to avow the truth.

124 FAMOUS CASES OF

This confession was partly made at the scaffold,
and partly afterwards. As soon as Katt had spoken
out decisively, the executioner had turned to James
Baxwell, to take from him the insignia of death.
The merchant, almost unobserved, had sunk down
into a sitting posture. The black bonnet was drawn
by the executioner from off his eyes and head. It
was found that he was a corpse ! No exertions had
the slightest effect in awakening in him the spark
of life. The physicians, saying all they could on
such a subject, declared that he had died from the
effects of strong imagination.

William Katt was conducted to prison amid the
clamors of the populace, there to await judgment
for his misdeeds.

Elezia, the unhappy daughter of an unhappy
father, retired to a convent for life immediately on
learning all that had passed.

CIRCUMSTANTIAL EVIDENCE. 125

XX.

WILLIAM RIDLEY kept the Red Cow, a public
house at Exeter. John Miles was an old acquaint-
ance of Ridley's, but they had not seen each other
for some time (Miles living some distance off), when
they met one morning, as the latter was going a little
way to receive some money. They adjourned to the
next public house, and, after drinking together,
Ridley told Miles that he must go about the business
which brought him from home, which was to receive
a sum of money, but made him promise to wait for
his coming back. Ridley returned, and they drank
together again. Ridley now insisted upon Miles'
accompanying him home to dinner. They dined,
they drank, they shook hands, repeated old( stories,
drank and shook hands again and again, as old ac-
quaintances in the lower class, after long absences,
usually do ; in fine, they both got, at last, pretty
much in liquor.

The room they sat in was backwards, detached as
it were from the house, with a door that went imme-
diately into a yard, and had communication with the
street, without passing through the house.

126 FAMOUS CASES OF

As it grew late, Mrs. Ridley came into tlie room,
and not seeing her husband there, made inquiry
after him of Miles. Miles being much intoxicated,
all that could be got out of him was, that Ridley
went out into the yard some time before, and had not
returned. Ridley was called, Ridley was searched
after, by all the family ; but neither answering, nor
being to be met with, Miles, as well as he was able
for intoxication, went his way.

Ridley not coming home that night, and some
days passing without his returning, or being Leard
of, suspicions arose, in the mind of Mrs. Ridley, of
some foul play against her husband on the part of
Miles ; and these were not a little increased on the
recollection that her husband had received a sum of
money that day, and that Miles had replied to her
inquiries after him in a very incoherent, unintelligible
manner, which, at the time, she had attributed to his
being in liquor.

These suspicions went abroad, and at length a full
belief took place in many, that Miles was actually
the m urderer of Ridley ; had gone out with him,
robbed and murdered him, disposed of the body, and
slid back again to the room where they were drink-
ing, unseen by any one.

The officers of justice were sent to take up Miles,

CIRCUMSTANTIAL EVIDENCE. 127

and lie giving, before the magistrate, a very unsatis-
factory relation of his parting with Ridley, which he
affirmed was owing to his having been intoxicated
when Ridley went out of the room from him, but
which the magistrate ascribed to guiltiness, he was
committed to Exeter jail for trial.

Whilst Miles was in confinement, a thousand
reports were spread, tending to warp the minds of
the people against him. Supernatural as well as
natural reasons were alleged as proof of his guilt.
Ridley's house was declared to be haunted ; frequent
knockings were heard in the dead of the night ; two
of the lodgers avowed they had seen the ghost.
And to crown the whole, an old man, another lodger,
positively affirmed, that once, at midnight, his
curtains flew open, the ghost of Ridley appeared, all
bloody, and, with a piteous look and hollow voice,
declared he had been murdered, and that Miles was
the murderer.

Under these prepossessions amongst the weak
and superstitious, and a general prejudice even in
the stronger minds, was John Miles brought to trial
for the willful murder of William Ridley. Circum-
stances upon circumstances were deposed against
him ; and as it appeared that Miles was with Ridley
the whole day, both before and after his receiving

128 FAMOUS CASES OF

the money, and that they spent the afternoon and
evening together alone, the jury, who were neighbors
of Ridley, found Miles guilty, notwithstanding his
protestations, on his defense, of innocence, and he
was shortly after executed at Exeter.

It happened, that, some time after, Mrs. Ridley
left the Red Cow to keep another ale house, and the
person who succeeded her, making several repairs in
and about the house, in emptying the necessary,
which was at the end of a long dark passage, the
body of William Ridley was discovered. In his
pockets were found twenty guineas, from whence it
was evident he had not been murdered, as the rob-
bing of him was the sole circumstance that could be
and was ascribed to Miles for murdering of Ridley.
The truth of Miles' assertions and defense now
became doubly evident ; for it was recollected that
the floor of the necessary had been taken up the
morning before the death of Ridley, and that, on one
side of the seat, a couple of boards had been left up ;
so that, being much in liquor, he must have fallen
into the vault, which was uncommonly deep ; but
which, unhappily, was not adverted to at the time of
his disappearance !

CIRCUMSTANTIAL EVIDENCE. 129

XXI.

Two men were seen fighting together in a field.
One of them was found, soon after, lying dead in
that field. Near him lay a pitchfork which had
apparently been the instrument of his death. This
pitchfork was known to have belonged to the person
who had been seen fighting with the deceased ; and
he was known to have taken it out with him that
morning. Being apprehended and brought to trial,
and these circumstances appearing in evidence, and
also that there had been, for some time, an enmity
between the parties, there was little doubt of the
prisoner's being convicted, although he strongly
persisted in his innocence ; but, to the great surprise
of the court, the jury, instead of bringing in an im-
mediate verdict of guilty, withdrew, and, after stay-
ing out a considerable time, returned and informed
the court, that eleven, out of the twelve, had been,
from the first, for finding the prisoner guilty ; but
that one man would not concur in the verdict. Upon
this, the judge observed to the dissentient person,
the great strength of the circumstances, and asked
him, "how it was possible, all circumstances con-

130

FAMOUS CASES OF

sidered, for him to have any doubts of the guilt of
the accused?" But no arguments that could be
urged, either by the court or the rest of the jury,
could persuade him to find the prisoner guilty ; so
that the rest of the jury were at last obliged to agree
to the verdict of acquittal.

This affair remained, for some time, mysterious;
but it at length came out, either by the private
acknowledgment of the obstinate juryman to the
judge who tried the cause (who is said to have had
the curiosity to inquire into the motives of his
extraordinary pertinacity), or by his confession at
the point of death (for the case is related both
ways), that he himself had been the murderer!
The accused had, indeed, had a scuffle with the de-
ceased, as sworn on the trial, in which he had
dropped his pitchfork, which had been, soon after,
found by the juryman, between whom and the de-
ceased an accidental quarrel had arisen in the same
field ; the deceased having continued there at work
after the departure of the person with whom he had
been seen to have the affray ; in the heat of which
quarrel, the juryman had unfortunately stabbed him
with that very pitchfork, and had then got away
totally unsuspected ; but finding, soon after, that the
other person had been apprehended, on suspicion of

CIRCUMSTANTIAL EVIDENCE. 131

being the murderer, and fearing, as the circumstances
appeared so strong against him, that he should be
convicted, although not guilty, he had contrived to
get upon the jury, as the only way of saving the
innocent without endangering himself.

132 FAMOUS CASES OF

XXII.

HAWKIXS and George Simpson ware indicted
for robbing the mail, on the 16th of April, 1722.
Hawkins, in his defense, set up an alibi, to prove
which, he called one "William Fuller, who deposed,
that Hawkins came to his house on Sunday, the
15th of April, and lay there that night, and did not
go out until the next morning. Being asked by the
court, "By what token do you remember that it was
the 15th* of April?" he replied, "By a very good
token, for he owed me a sum of money for horse
hire, and on Tuesday, the 10th of April, he called
upon me and paid me in full, and I gave him a
receipt ; and I very well remember, that he lay at
my house the Sunday night following." The receipt
was now produced. "April the 10th, 1722. Re-
ceived of Mr. John Hawkins, the sum of one pound
ten shillings, in full of all accounts, per me, William
Fuller." Upon inspecting the receipt, the court
asked Fuller who wrote it. He replied, "Hawkins
wrote the body of it, and I signed it."

* The robbery was committed about two o'clock on the morn-
ing of the 16th.

CIRCUMSTANTIAL EVIDENCE. 133

Court. "Did you see Mm write it \ "

Fuller. "Yes."

Court. "And how iong was it after lie wrote
it, before you signed ? "

Fullefy " I signed it immediately, without going
from the table."

Court. "How many standishes do you keep in
the house ?"

Fuller. "Standishes?"

Court. "Aye, standishes • it is a plain
question."

Fuller. " My Lord, but one ; and that is enough
for the little handwriting we have to do."

Court. "Then you signed the receipt with the
same ink that Hawkins wrote the body of it with ?"

Fuller. ' ' For certain. "

Court. "Officer, hand the receipt to the jury.
Gentlemen, you will see that the body of the note is
written with one kind of ink, and the name at the
bottom with another very different ; and yet this
witness has sworn, that they were both written with
the same ink, and one immediately after the other.
You will judge what credit is to be given to his
evidence !"

Thus, the authenticity of the receipt, and the
credit of the witness, were overthrown by the

134 FAMOUS CASES OF

sagacity of the court ! But While the judge, Lord
Chief Baron MONTAGUE was summing up the
evidence, he was interrupted by the following
occurrence : The person who reports the trial was
then taking notes of the proceedings ; his ink, as it
happened, was very bad, being thick at the bottom,
and thin and waterish at the top, so that/ accordingly
as he dipped the pen, the writing appeared very pale
or pretty black. This circumstance being remarked
by some gentlemen present, they handed the book to
the jury ; the judge perceiving them very attentively
inspecting it, called to them: "Gentlemen, what are
you doing? What book is that?" They told him
that it was the writer's book, and that they were
observing how the same ink appeared pale in one
place, and black in another. The judge then told
them — "You ought not, gentlemen to take notice of
any thing but what is produced in evidence" ; and,
turning to the writer, demanded — "what he meant
by showing that book to the jury?" And being
informed by the writer that it was taken from him,
he inquired "who took it, and who handed it to the
jury?" . But this the writer could not say, as the
gentlemen near him were all strangers to him, and
he had not taken any particular notice of the person
who took his book.

CIRCUMSTANTIAL EVIDENCE. 135

That a jury ought not to take notice of any thing
but what is produced in evidence, has been said to be
law ; but, on the contrary, it has been held, and
surely very properly, that a juryman may find from
his own knowledge ; indeed, what evidence can con-
vince a person that is which he knows not to be ?

Hawkins and Simpson were convicted and exe-
cuted ; indeed, the evidence against them was very
strong ; but, had the fate of Hawkins depended upon
the single testimony of Fuller, he would, but for this
occurrence, have fallen a sacrifice to the acuteness of
the judge ! who appears to have been much dis-
pleased at the accidental confutation of his remarks
on the receipt, although it was an accident in favor of
life ; and, had it not been in a case where other
evidence was so strong against the accused, it must
have been looked upon as the special interposition of
Providence.

136 FAMOUS CASES OF

XXIII.

A MAN- was tried for, and convicted of, the
murder of his own father. The evidence against him
was merely circumstantial, and the principal witness
was his sister. She proved that her father possessed
a small income, which, with his industry, enabled
him to live with comfort ; that her brother, the
prisoner, who was his heir at law, had long expressed
a great desire to come into the possession of his
father's effects ; and that he had long behaved in a
very undutiful manner to him, wishing, as the
witness believed, to put a period to his existence by
uneasiness and vexation ; that, on the evening the
murder was committed, the deceased went a small
distance from the house, to milk a cow he had for
some time kept, and that the witness also went out
to spend the evening and to sleep, leaving only her
brother in the house ; that, returning home early in
the morning, and finding that her father and brother
were absent, she was much alarmed, and sent for
some neighbors to consult with them, and to receive
advice what should be done ; that, in company with

CIRCUMSTANTIAL EVIDENCE. 137

these neighbors, she went to the hovel in which her
father was accustomed to milk the cow, where they
found him murdered in an inhuman manner, his
head being almost beat to pieces ; that a suspicion
immediately falling on her brother, and there being
then some snow upon the ground, in which the foot-
steps of a human being, to and from the hovel, were
observed, it was agreed to take one of the brother5 s
shoes, and to measure therewith the impressions in
the snow ; this was done, and there did not remain a
doubt but that the impressions were made with his
shoes. Thus confirmed in their suspicions, they
then immediately went to the prisoner's room, and
after a diligent search, they found a hammer, in the
corner of a private drawer, with several spots of
blood upon it, and with a small splinter of bone, and
some brains in a crack which they discovered in the
handle. The circumstances of finding the deceased
and the hammer, as described by the former witness,
were fully proved by the neighbors whom she had
called ; and upon this evidence the prisoner was con-
victed and suffered death, but denied the fact to the
last. About four years after, the witness was ex-
tremely ill, and understanding that there were no
possible hopes of her recovery, she confessed that her
father and brother having offended her, she was

i38 FAMOUS CASES OF

determined they should both die ; and, accordingly,
when the former went to milk the cow, she followed
him with her brother's hammer, and in his shoes;
that she beat out her father's brains with the hammer,
and laid it where it was afterwards found ; that she
then went from home to give a better color to this
wicked business, and that her brother was perfectly
innocent of the crime for which he had suffered.
She was immediately taken into custody, but died
before she could be brought to trial.

CIRCUMSTANTIAL EVIDENCE 139

XXIV.

JOHIST STEINGER was tried at the Lent assizes, held
at Kingston, in the county of Surry, in the year
1765, before the late Lord Chief Baron SMYTHE, for
the murder of his wife, and found guilty. The trial
being on the Saturday, he was ordered for execution
on the Monday following. The case was thus :
Stringer, a man in low circumstances, had brought
his wife, who had long been in an ill state of health,
from London to Lambeth, for the benefit of the air ;
here they lived for some time ; generally in great
harmony ; but not without those little quarrels and
scuffles, so common with persons in their rank of life.
Upon the woman's death, some of the neighboring
females, who had been occasionally witnesses to
these litttle accidental bickerings between the hus-
band and wife, took it in their heads that he had
murdered her, notwithstanding she had never been
heard to make the least complaint of her husband
during the course of her illness ; and the man was
brought to trial in consequence.

Some trifling evidence being given of the little

'140 FAMOUS CASES OF

differences that had arisen between them ; and the
opinion of a young surgeon, that some appearances
on the corpse were somewhat the appearances of a
mortification, occasioned by bruises ; Stringer, on
these slight circumstances, was convicted, and left
for execution !

Mr. Carsan, a surgeon of great experience in the
neighborhood, had, on the report of the murder,
from mere curiosity, examined the body, and was so
clear thai there were no marks of violence thereon,
that he had not the least apprehension of the possi-
bility of Stringer's being convicted : but hearing of
the conviction, and confident of the innocence of the
unhappy man, and actuated by the love of justice
and humanity, he instantly, on the Sunday, waited
on, and represented the case to the Archbishop of
Canterbury ; his grace gave Mr. Carsan a letter to
Baron SMYTHE, who, convinced by his statement of
the matter, that himself and the jury had been too
precipitate in forming an opinion of the guilt of
Stringer, granted an immediate respite ; which gave
Mr. Carsan an opportunity of laying the whole case
before his majesty, and he had the satisfaction of
saving an innocent man from an undeserved and
ignominious death.

CIRCUMSTANTIAL EVIDENCE. 141

XXV.

*

Lsr the year 1764, a citizen of Liege was found
dead in his chamber, shot in the head. Close to him
lay a discharged pistol, with which he had appar-
ently been his own executioner. Firearms are the
chief manufacture of that city ; and so common is
the use of pistols at that place, that every peasant,
who brings his goods to the markets there, is seen
armed with them ; so that the circumstance of the
pistol did not, at first, meet with so much attention
as it might have done in places where those weapons
are not in such common use. But, upon the
researches of the proper officer of that city, whose
duty, like that of our coroner, it is to inquire into
all the circumstances of accidental deaths, it ap-
peared that the ball which was found lodged in the
head of the deceased could never, from its size,
have been fired out of the pistol which lay by him ;
thus it was clear that he had been murdered ; nor
were they long in deciding who was the murderer.
A girl, of about sixteen, the niece of the deceased,
had been brought up by him, and he had been

142 FAMOUS CASES OF

always supposed to have intended to leave her his
effects, which were something considerable ; but the
girl had then lately listened HI the addresses of a
young man whom the uncle did not approve of, and
he had, upon that occasion, several times threatened
to alter his will, and leave his fortune to some other
of his relations. Upon these, and some other con-
current circumstances, such as having been heard to
wish her uncle's death, &c., the girl was committed
to prison.

The torturing a supposed criminal, in order to
force confession, is certainly the most cruel and
absurd idea that ever entered into the head of a
legislator. This being observed by the writer of this
narrative, who was then at Liege, to a magistrate of
that place, on this very occasion, his defense was,—
"We never condemn to the torture but upon circum-
stances on which you in England would convict ; so
that the innocent has really a better chance to escape
here than with you." But, until it is proved that
pain has a greater tendency to make a person speak
truth than falsehood, this reasoning seems to have
little weight.

This unhappy girl was, therefore, horridly and
repeatedly tortured ; but still persevering in assert-
ing her innocence, she at last escaped with life ; — if

CIRCUMSTANTIAL EVIDENCE. 143

it could be called an escape, when it was supposed
she would never again enjoy health or limbs, from
the effects of the torture.

The writer has since learned, that, some years
afterwards, her innocence became manifest, by the
confession of the real assassins, who, being sen-
tenced to the wheel for other crimes, confessed
themselves the authors of this of which the girl was
suspected ; and that, several pistols having been
discharged at the deceased, they had, intending that
it should appear a suicide, laid a pistol near him,
without adverting that it was not the same by which
he fell.

144 FAMOUS CASES OF

XXVI.

JONATHAN BRADFOBD kept an inn, in Oxford-
shire, on the London road to Oxford. He bore a
very unexceptionable character. Mr. Hayes, a gen-
tleman of fortune, being on his way to Oxford, on a
visit to a relation, put up at Bradford's. He there
joined company with two gentlemen, with whom he
supped, and, in conversation, unguardedly men-
tioned that he had then about him a sum of money.
In due time they retired to their respective chambers ;
the gentlemen to a two-bedded room, leaving, as is
customary with many, a candle burning in the
chimney corner. Some hours after they were in bed,
one of the gentlemen, being awake, thought he heard
a deep groan in an adjoining chamber ; and this
being repeated, he softly awaked his friend. They
listened together, and the groans increasing, as of
one dying and in pain, they both instantly arose, and
proceeded silently to the door of the next chamber,
whence they had heard^ the groans, and, the door
being ajar, saw a light in the room. They entered,
but it is impossible to paint their consternation, on

CIRCUMSTANTIAL EVIDENCE. 145

perceiving a person weltering in his blood in the bed,
and a man standing over him with a dark lantern in
one hand, and a knife in the other ! The man
seemed as petrified as themselves, but his terror
carried with it all the terror of guilt. The gentlemen
soon discovered that the murdered person was the \
stranger with whom they had that night supped, and
that the man who was standing over him was their
host. They seized Bradford directly, disarmed him
of his knife, and charged him with being the mur-
derer. He assumed, by this time, the air of inno-
cence, positively denied the crime, and asserted that
he came there with the same humane intentions as
themselves ; for that, hearing a noise, which was
succeeded by a groaning, he got out of bed, struck a
light, armed himself with a knife for his defense,
and was but that minute entered the room before
them. These assertions were of little avail ; he was
kept in close custody till the morning, and then
taken before a neighboring justice of the peace.
Bradford still denied the murder, but, nevertheless,
with such apparent indications of guilt, that the
justice hesitated not to make use of this most extra-
ordinary expression, on writing out his mittimus :
"Mr. Bradford, either you or myself committed this

murder."
10

146 FAMOUS CASES OF

This extraordinary affair was the conversation of
the whole country. Bradford was tried and con-
demned, over and over again, in every company. In
the midst of all this predetermination, came on the
assizes at Oxford. Bradford was brought to trial ;
he pleaded — not guilty. Nothing could be stronger
than the evidence of the two gentlemen. They
testified to the finding Mr. Hayes murdered in his
bed ; Bradford at the side of the body with a light
and a knife ; that knife, and the hand which held it,
bloody ; that, on their entering the room, he betrayed
all the signs of a guilty man ; and that, but a few
moments preceding, they had heard the groans of
the deceased.

Bradford's defense on his trial was the same as
before the gentlemen : he had heard a noise ; he
suspected some villany was transacting ; he struck a
light ; he snatched the knife, the only weapon near
him, to defend himself ; and the terrors he discovered
were merely the terrors of humanity, the natural
effects of innocence as well as guilt, on beholding
such a horrid scene.

This defense, however, could not be considered
but as weak, contrasted with the several powerful
circumstances against him. Never was circumstan-
tial evidence more strong ! There was little need of

CIRCUMSTANTIAL EVIDENCE. 147

the prejudice of the county against the murderer to
strengthen it ; there was little need left of comment
from the judge, in summing up the evidence; no
room appeared for extenuation ; and the jury
brought in the prisoner guilty, even without going
out of their box.

Bradford was executed shortly after, still de-
claring that he was not the murderer, nor privy to
the murder of Mr. Hayes ; but he died disbelieved
by all.

Yet were these assertions not untrue ! The mur-
der was actually committed by Mr. Hayes' footman ;
who, immediately on stabbing his master, rifled his
breeches of his money, gold watch, and snuff-box,
and escaped back to his own room ; which could
have been, from the after circumstances, scarcely
two seconds before Bradford's entering the unfor-
tunate gentleman's chamber. The world owes this
knowledge to a remorse of conscience in the footman
(eighteen months after the execution of Bradford), on
a bed of sickness. It was a death-bed repentance,
and by that death the law lost its victim.

It is much to be wished that this account could
close hertipbut it cannot! Bradford, though inno-
cent, and not privy to the murder, was, nevertheless,
the murderer in design : he had heard, as well as the

148 FAMOUS CASES OF

footman, what Mr. Hayes declared at supper, as to
the having a sum of money about him ; and he went
to the chamber of the deceased with the same
diabolical intentions as the servant. He was struck
with amazement ; he could not believe his senses ;
and, in turning back the bed-clothes, to assure him-
self of the fact, he, in his agitation, dropped his
knife on the bleeding body, by which both his hands
and the knife became bloody. These circumstances
Bradford acknowledged to the clergyman who at-
tended him after his sentence.

CIRCUMSTANTIAL EVIDENCE. 149

XXVII.

THE most remarkable murder trial which Boston
has seen since the famous Webster-Parkman case,
was that which resulted in a verdict that Leavitt
Alley was not guilty of the murder of Abijah Ellis.
There is at many points a wonderful parallelism in
the two trials. The victims were both men of wealth,
and of strikingly similar habits ; both were hard cred-
itors, and the incentive alleged in each case was the
inability of the murderer to meet a certain payment.
The horrible circumstances attending the finding of
Ellis' s body — just after the mysterious shooting of
Charles Lane, a wealthy merchant, in his own door-
way— and the consequent excitement, equaled in in-
tensity only by the discovery of the charred remains
of Dr. Parkman, a score of years before, will serve
to recall the salient features of the case.

Some workmen near the Cambridge gas works,
discovered two barrels, containing the mutilated
body, floating in the Charles river. They were
packed with horse manure and shavings, and in one
of the barrels was discovered a piece of brown paper

FAMOUS CASES OF

with the name of M. Schouler, a billiard manufac-
turer. Investigation proved that a teamster, Leavitt
Alley, was in the habit of removing these shavings
to his stable. Following the clew to the stable, it
was found that a dry manure heap had been recently
disturbed ; blood was also found upon some boards
near by.

It was proved that on the previous morning Alley
had started from his stable with four barrels, and a
teamster, in jumping from the wagon, had ascertained
that two of them were heavy. Two of the barrels
were not satisfactorily accounted for, while a man
testified to seeing the team and barrels with a man
strongly resembling Alley upon the mill-dam, where
they were supposed to have been thrown into the
river. Alley was owing Ellis some two hundred dol-
lars, was in great need of money, and Ellis was known
to have been searching for the suspected man on the
night when the murder was probably committed. A
new axe which Alley had purchased a short time
before was missing, and its very existence was denied.
In addition, blood stains were found upon the cloth-
ing worn by Alley, which were identified by experts
as human gore ; and a woman had heard strange
noises, like the rolling of barrels, in the stable on the
fatal night. Lastly, it was shown that Alley had

CIRCUMSTANTIAL EVIDENCE. 151

been abundantly provided with money after the death
of Ellis.

The testimony for the government was entirely cir-
cumstantial. It was not claimed that any human eye
saw, or human ear heard, the doing of the atrocious
deed. The case had been carefully worked up and
prepared by the best detective skill and professional
ability that could be brought to bear upon it, and, as
the facts already given were clearly brought out, the
outlook for the prisoner was certainly a dark one as
compared with the Webster trial, when the whole case
turned upon the identification by a dentist of a gold
plate. The stains of blood found in the prisoner's
stable and on his clothing were submitted to chemical
tests, by skillful experts, and then examined through
a microscope, and pronounced by them to be not only
human blood, but that of the murdered man. A
physician testified, from an examination of the de-
ceased's stomach, that he must have met his death
between six and nine o'clock on the fatal evening ;
and altogether the case against Alley was about as
strong a one as circumstantial evidence ever presents.
The prisoner's counsel, however, appeared to fully
appreciate the situation, and developed an unexpected
strength. To controvert the theory that Alley had
committed the murder in a quarrel, they introduced

i5 2 FAMOUS CASES OF

evidence from prominent citizens of New Hampshire
that he had always been a quiet and peaceable man,
with a reputation for honesty and integrity above re-
proach, in the face of. which the commission of so
horrible a crime seemed most unlikely. The prosecu-
tion had claimed that Alley was in debt to Ellis, and
without money to meet an engagement which fell due
at the time of the murder ; but the defense clearly
proved that the prisoner possessed considerable prop-
erty in New Hampshire and had money in a bank.

A strong point against the accused had been the
fact that, though he had not much ready money
on hand just before the murder, immediately after
it he had considerable in Ms possession. But the
defense disposed of this by evidence that a loan of
one hundred and twenty-five dollars was repaid by
his son the evening before the murder. There re-
mained the evidence of the blood, which the prose-
cution had professed to prove was not only human
blood, but that of the victim himself. But the
defense introduced experts, who not only denied
that the blood in question was that of a human being,
but showed that the best scientific authorities agree
that the difference between human and animal blood
cannot be determined after it has dried, as was the
fact in this case.

CIRCUMSTANTIAL EVIDENCE. 153

On the whole, therefore, the scientific testimony
not only served to confuse the jury, but positively
helped the prisoner's case. The defense then pro-
ceeded to -still further dissipate the web of circum-
stantial evidence which had been woven aronnd
Alley by satisfactorily accounting for every hour
of his time from the moment Ellis disappeared till
the time his body was discovered.

When the defense rested their case, public opinion
and expectation had naturally, and justly, very
much changed, and the probability of his convic-
tion had practically disappeared. No one had seen
the murder, and the natural indisposition to con-
demn a man on circumstantial evidence alone was
strengthened by the fact that much of what appeared
strongest in this evidence had been overthrown by
the defense. These considerations, joined with
the traditional principle of holding every man in-
nocent till his guilt is proved beyond the shadow
of a doubt, resulted in a verdict of not guilty —
a decision of the case with which the public will
not be inclined to find fault.

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