is separable from that of the criminal. Thus the finding a dead body, or a house in ashes, may indicate a crime, but does not necessarily afford any clue to the perpetrator. And here, again, a distinction must be drawn relative to the effect of presumptive evidence. The corpus delicti, in cases such as we are now considering, is made up of two things: first, certain facts, forming its basis; and secondly, the existence of criminal agency as the cause of them (c). It is with respect to forming basis of the former of these that the general principles of Lord In such, the corpus delicti made up of two things. Proof of facts corpus delicti. Stowell and Sir Matthew Hale especially apply,-the established rule being, that the facts which form the basis of the corpus delicti ought to be proved, either by direct testimony, or by presumptive evidence of the most cogent and irresistible kind; or, perhaps, by a clear and unsuspected confession of the party (d). This is particularly necessary in cases of murder, where the maxim laid down by the latter seems to have been generally followed, namely, that the fact of death should be shewn, either by witnesses who were present when the murderous act was done, or by proof of the body having been seen dead (e); or, if found in a state of decomposition, or reduced to a skeleton, it should be identified in the commander's tent, the body of a native, said to have been murdered by the sepoys, was brought in and laid down. The crime could not be brought home to any one of them, yet there was the body. A suspicion, however, crossed the adjutant's mind, and, having the kettle in his hand, a thought struck him that he would pour a little boiling water on the body. He did so; on which the murdered remains started up and scampered off." No authority is cited. by dress or circumstances (ƒ).—“Liquere debet hominem esse interemptum (g). this rule. § 427. The sound policy of this rule is fearfully es- Sound policy of tablished by some old cases. A very celebrated one, related by Sir Edward Coke, has been already given under the head of presumptions made in disfavour of the spoliator (h). Sir Matthew Hale also mentions an instance(i), where a man was missing for a considerable time, and there was strong ground for presuming that another had murdered him and consumed the body to ashes in an oven. The supposed murderer was convicted and executed; after which the other man returned from sea, where he had been sent against his will by the accused, who, though innocent of murder, was not entirely blameless. There is also the case of a man named John Miles, who was executed for the murder of his friend, William Ridley, with whom he had been last seen drinking, and whose body was not found until after the execution of Miles. The deceased had, while in a state of intoxication, fallen into a deep privy, where no one ever thought of looking for him (k). This rule has been carried so far, that where the mother and reputed father of a bastard child were observed to strip and throw it into the dock of a seaport town, subse (f) In R. v. Clewes, 4 C. & P. 221, the skeleton of a man was, after a lapse of twenty-three years, identified by his widow, from some peculiarity about the teeth. A carpenter's rule and a pair of shoes found with his remains were also identified. When a skeleton is found, it frequently becomes of the utmost importance to determine whether it is that of a male or female, of a young or old person. For full information on this subject the reader is re ferred to Beck's Med. Juris. p. (h) Supra, sect. 2, sub-sect. 7, (i) 2 Hale, P. C. 290. (k) Theory of Presumptive Proof, Append. case 5. See also the case of Antoine Pin, 5 Causes Célèbres, 449, Ed. Richer, Amst. 1773. Where fact of murder is proved by witnesses, inspection of the dead body may be dispensed with. quently to which the body of the infant was never seen, Gould, J., who tried the father and mother for the murder, advised an acquittal, on the ground that as the tide of the sea flowed and reflowed into and out of the dock, it might possibly have carried out the living infant (1). § 428. Where, however, the fact of the murder is eye- proved by eye-witnesses, the inspection of the dead body may be dispensed with; as is well illustrated by the case of R. v. Hindmarsh (m). There, the prisoner, a seaman, was charged with the murder of his captain. The first count of the indictment alleged the murder to have been committed by blows from a large piece of wood, and the second by throwing the deceased into the sea. It appeared in evidence, that, while the ship was lying off the coast of Africa, with other vessels near, the prisoner was seen one night to take the captain up and throw him into the sea, after which he was never heard of; while, near the place on the deck where the captain was seen, was found a billet of wood, and the deck and part of the prisoner's dress were stained with blood. On this, it was objected by the prisoner's counsel that the corpus delicti was not proved, as the captain might have been taken up by some of the neighbouring vessels, citing Sir Matthew Hale and the case before Gould, J. The court, consisting of the judge of the Admiralty, Ashhurst, J., Hotham, B., and several doctors of the civil law, admitted the general rule of law; but Ashhurst, J., who tried the case, left it to the jury, upon the evidence, to say whether the deceased was not killed before his body was cast into the sea; and the jury having found in the affirmative, the prisoner was convicted, which conviction was afterwards held good by all the judges. (1) Per Garrow, arguendo, in R. v. Hindmarsh, 2 Leach, C. L. 571. (m) 2 Leach, C. L. 569. evidence in ex § 429. Whether it be competent, even in extreme Whether basis of corpus decases, to prove the basis of the corpus delicti by pre- licti provable sumptive evidence, has been questioned. It does, how- by presumptive ever, seem a startling thing to proclaim to the murderer treme cases. that in order to secure himself with impunity he has no more to do but to consume or decompose the body by fire, by lime, or by any other of the well known chemical menstrua; or to sink it in an unfathomable part of the sea (n). Unsuccessful attempts of this kind are known to have been made (o), and successful ones may have remained undiscovered. evidence al ways admis § 430. Whatever may be the admissibility or effect of Presumptive presumptive evidence to prove the corpus delicti, it is always admissible, and often, especially when amount- sible to disprove ing to evidentia rei, most powerful to disprove it. Thus corpus delicti. the probability of the statements of witnesses may be tested by comparing their story with the surrounding circumstances; and in practice false testimony is often encountered and overthrown in this way. Sir Matthew Hale relates an extraordinary trial for rape, which took place before him in Sussex, where the party indicted was an ancient wealthy man, turned of sixty, and the charge was fully sworn against him by a young girl of fourteen, and a concurrent testimony of her mother and father and some other relations. The accused defended himself successfully, by shewing that he had for many (n) 3 Benth. Jud. Ev. 234; Bonnier, Traité des Preuves, § 56. We believe that Rolfe, B., has directed a grand jury, that the rule excluding presumptive evidence of the basis of the corpus delicti is not universal. (0) In R. v. Cook, Leicester Sum. Ass. 1834, Wills' Circ. Ev. 165, 3rd Ed., the prisoner was tried for the murder of a creditor who Basis of corpus delicti established, presumptive evidence receivable to complete the proof of it. years been afflicted with a rupture, so hideous and great as to render sexual intercourse impossible (p). In another case, the prosecutrix of an indictment against a man for administering arsenic to her to procure abortion, deposed that he had sent her a present of tarts, of which she partook, and that shortly afterwards she was seized with symptoms of poisoning. Amongst other inconsistencies, she stated that she had felt a coppery taste in the act of eating, which it was proved that arsenic does not possess; and from the quantity of arsenic in the tarts which remained untouched, she could not have taken above two grains, while after repeated vomitings, the alleged matter subsequently preserved contained nearly fifteen grains, though the matter first vomited contained only one grain. The prisoner was acquitted, and the prosecutrix afterwards confessed that she had preferred the charge from motives of jealousy (q). § 431. The basis of a corpus delicti once established, presumptive evidence is receivable, not only to qualify or complete it, as, for instance, to fix the place of the commission of the offence (r), but even to shew the presence of crime, by negativing the hypotheses of the facts proved being the result of natural causes or irresponsible agency. For this purpose all the circumstances of the case, and every part of the conduct of the accused, may be taken into consideration (s). On finding a dead John Donellan, who was convicted and executed in 1781 for the murder by poison of his brother-in-law, Sir Theodosius Boughton, (Warwick Sp. Ass. 1781, Report by Gurney); by Parke, B., in the important case of John Tawell, who was convicted of murder by poison at the Aylesbury Spring Assizes of 1845, (Wills' Cir. Ev. 188, 3rd Ed.); by |