to time been introduced by statute into our criminal code. An instance is presented in the well-remembered statute 21 Jac. I. c. 27 (b), by which it was enacted that any woman delivered of a bastard child, who should endeavour to conceal its birth, should be deemed to have murdered it, unless she proved it to have been born dead. This reproach to our legislation has happily been removed by 43 Geo. III. c. 58, s. 3. The 11 Geo. IV. & 1 Will. IV. c. 66, s. 12, which renders it felony for any person to purchase, receive, or have in his custody or possession, without lawful excuse, any forged bank note, or other forged document of the nature therein specified, knowing the same to be forged, enacts that the proof of lawful excuse shall lie on the party ac cused (c). (b) See Introd. sect. 2, § 46. (c) The following exposition of the French law on this subject may not be deemed misplaced. "Souvent la loi pénale conclut à priori, de l'existence de certains faits qui rendent de délit vraisemblable, à l'existence même du délit. Mais la légitimité d'une présomption aussi grave est subordonnée à deux conditions: 1o, que le fait constaté emporte certitude morale du fait incriminé par la loi; 2o, que le fait constaté soit lui-même imputable. Ces deux conditions se trouvent réunies dans le cas prévu par l'article 61 du Code pénal, qui punit, comme complices des malfaiteurs exerçant des violences contre la paix publique, ceux qui, connaissant leur conduite criminelle, leur fournissent habituellement une retraite. Le fait de loger habituellement les malfaiteurs rend éminemment vraisemblable une coupable association. Ce fait est parfaitement imputable; la loi, en le frappant, ne fait qu'aggraver la pénalité d'un acte déjà répréhensible en lui-même. C'est là de la rigueur peut-être; mais ce n'est pas de l'iniquité. On peut justifier de même la disposition de la loi du 21 Brumaire, an v. (tit. III. art. 2), qui répute coupable de trahison tout militaire qui, en présence de l'ennemi, aura poussé des clameurs tendant à jeter l'épouvante et le désordre dans les rangs. La vraisemblance d'une intelligence criminelle avec l'ennemi justifie l'application de la peine capitale à un fait qui, par lui-même, est déjà d'une extrême gravité:" Bonnier, Traité des Preuves, § 674. Presumptions for protection of accused per sons. § 422. Some of the presumptions of the criminal law are for the protection of accused persons. Thus, an infant under seven years of age is conclusively presumed incapable of committing felony (d); between the ages of seven and fourteen the presumption continues, but may be removed by evidence (e): and a boy under fourteen is conclusively presumed incapable of committing a rape as principal in the first degree (ƒ). Rules of evi the same in civil and criminal proceedings. Presumptive evidence more frequently required in the latter. SUB-SECTION II. PRESUMPTIVE PROOF IN CRIMINAL CASES GENERALLY. § 423. The rules regulating the admissibility of evidence generally dence are, in general, the same in civil and criminal proceedings (g); and although presumptive evidence is receivable to prove almost any fact (h), the necessity for resorting to it is more frequent in the latter than in the former. The most heinous offences are usually committed in secret,-visible proofs must not be expected in works of darkness, and accordingly direct testimony against criminals is rarely attainable, except in those cases where one of several delinquents denounces his companions at the bar of justice. We do not mean that, for want of legitimate evidence, the law condemns and punishes on that which is inferior or less conclusive -quite the reverse. A chain of presumptive evidence often affords proof quite as convincing as the testimony of eye-witnesses (i); and as in criminal trials the interests at stake are greater, and the consequences of error infinitely more serious, a higher degree of assurance is required for condemnatory decision than in civil pro (d) 4 Blackst. Com. 23; 1 Hale, P. C. 27-8. (e) 4 Blackst. Com. 23. (f) Id. 212; and 1 Hale, P. C. 730. (g) See Part 1, ch. 1, § 94. (h) Supra, sect. 1, § 287. (i) Id. § 288. ceedings, where the mere preponderance of probability is sufficient ground for adjudication (k). in criminal cases. § 424. While all attempts to reduce the credibility of Rules of preevidence to fixed degrees must ever be deprecated as sumptive proof absurd and mischievous, the experience of past ages would indeed be thrown away, if it did not point out the principal quicksands and dangers to be avoided when dealing with the serious question of the guilt or innocence of persons charged with crime. Numerous rules have from time to time been suggested for the guidance of tribunals in this respect, among which the soundest in principle, and most generally recognized in practice, are: 1. The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor (l). 2. The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused (m). 3. In matters of doubt it is safer to acquit than to condemn; for it is better that several guilty persons should escape than that one innocent person suffer (n). The above hold universally; but the two following are peculiarly applicable when the proof is presumptive. § 425. I. There must be clear and unequivocal proof Rule I. There of the corpus delicti (o). Every criminal charge involves must be clear and unequiv two things: first, that an offence has been committed; cal proof of the and secondly, that the accused is the author, or one of corpus delicti. (k) Part 1, ch. 1, § 95. (1) Supra, sect. 2, sub-sect. 1, § 327. (m) Part 1, ch. 1, § 95. (n) Introd. sect. 2, § 49; and Part 1, ch. 1, § 95. (0) R. v. Burdett, 4 B. & A. 123 and 162; Wills, Cir. Evid. 156, 3rd Ed.; Evans v. Evans, 1 Hagg. Consist. Rep. 105; Bur- Division of offences into "delicta facti transeuntis," and "delicta facti permanentis." the authors, of it. "I take the rule to be this," says Lord Stowell in his able judgment in Evans v. Evans(p), "If you have a criminal fact ascertained, you may then take presumptive proof to shew who did it;-to fix the criminal, having then an actual corpus delicti * * * but to take presumptions in order to swell an equivocal fact, a fact that is absolutely ambiguous in its own nature, into a criminal fact, is a mode of proceeding of a very different nature and would, I take it, be an entire misapplication of the doctrine of presumptions." Sir Matthew Hale, also, in his Pleas of the Crown (q), laid down the two following rules, which have met with deserved approbation. "I would never convict any person for stealing the goods cujusdam ignoti, merely because he would not give an account how he came by them, unless there were due proof made that a felony was committed of these goods. I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body found dead (r)." And in Starkie on Evidence (s), it is stated to be "an established rule, upon charges of homicide, that the accused shall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the body." Such is the language of these eminent authorities; but the general principles which they lay down must be taken with considerable limitation; and, in order to treat the subject with accuracy, it is to be remarked that, in some offences, the evidence establishing the existence of the crime also indicates the criminal, while in others the traces or effects of the crime are visible, leaving its author undetermined : (p) 1 Hagg. Cons. Rep. 105. (r) The coincidence between fassus se furem, confessio hæc non obest, nisi constet etiam in specie de rebus furto subtractis." Matthæus, de Prob. cap. 1, N. 4. (s) 1 Stark. Ev. 575, 3rd Ed.; Id. 862, 4th Ed. transeuntis, denominated respectively by foreign jurists" delicta facti transeuntis," and "delicta facti permanentis (t).” Under the former, i. e. delicta facti transeuntis, are ranged Delicta facti those offences the essence of which consist in intention; such as various forms of treason, conspiracy, criminal language, &c.; all which being of an exclusively psychological nature, must necessarily be established by presumptive evidence (u), unless the guilty party chooses to make a plenary confession (x). To these must be added the crime of adultery; respecting which Lord Stowell himself, in other places, lays down as a fundamental rule, that it is not necessary to prove the fact by direct evidence (y); but that it is enough to prove such proximate circumstances as, by former decisions, or their own nature and tendency, satisfy the legal conviction of the court that the criminal act has been committed (z). In the canon law, however, this crime cannot be proved by the unsupported confession (however plenary) of the party:— a rule established to prevent persons getting rid of the matrimonial tie through the means of pretended adultery (a). § 426. In the other sort of cases-delicta facti perma- Delicta facti nentis: or, as they have been sometimes termed, delicta permanentis, cum effectu permanente (b),-the proof of the crime (t) Bonnier, Traité des Preuves, §56; Case of Capt. Green and his Crew, 14 Ho. St. Tr. 1230. (u) 3 Benth. Jud. Ev. 5; R. v. Burdett, 4 B & A. 122; Bonnier, Traité des Preuves, § 56; see Introd. sect. 1, § 12. (r) See infra, chap. 6. (y) Loveden v. Loveden, 2 Hagg. C. R. 1; Williams v. Williams, 1 Id. 299. See to the same effect, Ayl. Parerg. Jur. Canon. Angl. 45; Mascard, de (z) Williams v. Williams, 1 (a) See the judgment of Lord Stowell in Mortimer v. Mortimer, 2 Hagg. C. R. 316. (b) 14 Ho. St. Tr. 1230. |