parations for the commission of it, and only differ in being carried one step farther and nearer to the criminal act, of which however, like the former, they fall short (g). mistaken. innocent. § 439. The probative force, both of preparations and Infirmative hypotheses. attempts, manifestly rests on the presumption that an intention to commit the individual offence was formed in the mind of the accused, which persisted until power and opportunity were found to carry it into execution. But, however strong this presumption may be when the corpus delicti has been proved, it must be taken in connection with the following infirmative hypotheses. 1°. The 1o. Intention intention of the accused in doing the suspicious act is a psychological question, and may be mistaken. His intention may either have been innocent altogether, or, if criminal, directed towards a different object (h). 1. Thus, 1. Intention a person may be poisoned, and another, innocent of his death, may have purchased a quantity of the same poison a short time before for the purpose of destroying vermin. So, predictions of approaching mischief to an individual, who is afterwards found murdered, may frequently be explained on the ground that the accused was really speaking the conviction of his own mind, without any criminal intention-prophecies of death are much more frequently the offspring of superstition than of premeditated assassination. 2. As an example of intention criminal 2. Intention with a different object-murder by fire-arms is not un- with different common, and a person innocent of a murder might, a object. short time previous to its commission, have purchased a gun for the purpose of poaching, or even have stolen one, which is found in his possession. So, A. might purchase a sword or pistol for the purpose of fighting a duel with B., but, before the meeting takes place, the weapon might be purloined or stolen by C., in order to assassinate D. (g) 3 Benth. Jud. Ev. 69. (h) 3 Benth. Jud. Ev. 72. criminal, but 2o. Intention not misunderstood; but 1. Changed or abandoned. 2. Intention persisting, power failing. III. Declarations of intention, and threats. § 440. 2°. But, even when preparations have been made with the intention of committing the identical offence charged, or attempts have been made to commit it, two things remain to be considered (i): 1. The intention may have been changed, or abandoned, before execution. Until a deed is done, there is always a locus pœnitentiæ, and the possibility of a like criminal design having been harboured and carried into execution by other persons must not be overlooked. 2. The intention to commit the crime may have persisted throughout, but the criminal act may have been anticipated by others (k). A remarkable instance of this is presented by the celebrated case of Jonathan Bradford. This man was an innkeeper. In the middle of one night, a guest in his house was found murdered in bed, his host standing over the bed with a dark lantern in one hand and a knife in the other. The knife and the hand which held it were both bloody, and Bradford on being thus discovered exhibited symptoms of the greatest terror. He was convicted and executed for this murder; but it afterwards appeared that it had been committed by another person immediately before he came into the room of the deceased. But Bradford had also entered it with a similar design; the symptoms attributed to consciousness of guilt were partly attributable to surprise at finding his purpose anticipated, while the blood on his hand and knife was occasioned by his having, when turning back the bedclothes to see if the deceased were really dead, dropped the knife on the bleeding body (l). § 441. III. DECLARATIONS OF INTENTION TO COMMIT AN OFFENCE, AND THREATS TO COMMIT IT.- Next to preparations and attempts, follow declarations of intention and threats to commit the offence which is found (i) 3 Benth. Jud. Ev. 74. (1) Theory of Pres. Proof, Append. Case 7. perpetrated. Most of the infirmative hypotheses appli- Infirmative hycable to the former are incident to those now under potheses. consideration, which, however, have some additional ones peculiar to themselves. 1st. The words supposed to be declaratory of criminal intention may have been misunderstood, or misremembered. 2ndly. It does not necessarily follow because a man avows an intention, or threatens, to commit. a crime that such intention really exists in his mind. The words may have been uttered through bravado, or with the view of intimidating, annoying, extorting money, or other collateral objects. 3rdly. Besides, another person really desirous of committing the offence may have profited by the occasion of the threat to avert suspicion from himself(m). 4thly. It must be recollected that the tendency of a threat or declaration of this nature is to frustrate its own accomplishment. By threatening a man you put him upon his guard, and force him to have recourse to such means of protection as the law, or any extrajudicial powers which he may (m) A curious instance of this is related by a very old French authority. A woman of extremely bad character, one day, in the open street, threatened a man who had done something to displease her, that she would "get his hams cut across for him before long." A short time afterwards he was found dead, with his hams cut across, and several other wounds. This was of course sufficient to excite suspicion against the female, who according to the practice of continental tribunals at that time, was put to the torture, confessed the crime, and was executed. Shortly afterwards, however, a man who had been taken into custody for some other of fence, declared that she was inno- IV. Change of life or circumstances. V. Evasion of justice. have at command, may be capable of affording to him(n). "Still, however," as has been judiciously observed, "by the testimony of experience, criminal threats are but too often, sooner or later, realized. To the intention of producing the terror, and nothing but the terror, succeeds, under favour of some special opportunity, or under the spur of some fresh provocation, the intention of producing the mischief; and (in pursuance of that intention) the mischievous act” (0). § 442. IV. Change of life OR CIRCUMSTANCES.— Having examined the probative force of criminative facts existing before, though perhaps not discovered until after, the perpetration of the offence, we proceed to consider those occurring subsequent to it. Among these the first that naturally presents itself to notice is, a change of life or circumstances not easily capable of explanation except on the hypothesis of the possession of the fruits of crime; as, for instance, where shortly after a larceny or robbery, or the suspicious death or disappearance of a person in good circumstances, another previously poor is found in the possession of considerable wealth, and the like (p). The civil law held that the suddenly becoming rich was not even primâ facie evidence of dishonesty against a guardian (9); and in our criminal courts it is not, when standing alone, any ground for putting a party on his defence (r). § 443. V. EVASION OF JUSTICE.-By "Evasion of justice" is meant the doing some act indicative of a desire to avoid, or stifle, judicial inquiry into some offence of which the party doing the act is accused or suspected. Such desire may be evidenced either by his flying from the country or neighbourhood, removing (n) 3 Benth. Jud. Ev. 78. pendix, No. 2. (0) Id. (p) See Burdock's case, Ap (9) Cod. lib. 5, tit. 51, 1. 10. (r) 2 Ev. Poth. 345. himself, his family, or his goods, to another place, keeping concealed, &c. To these must be added the kindred acts of bribing or tampering with officers of justice, to induce them to permit escape, suppress evidence, &c. All these afford a presumption of guilt, more or less cogent according to circumstances. § 444. The fact that about the time of the commission of an offence a person accused or suspected of it left the country, changed his home, &c., is only presumptive evidence of an intention to escape being rendered amenable to justice for that offence-a man may change his abode for health, business, or pleasure. In order to estimate the weight due to this presumption, it is most important to inquire into the party's general mode of life. In the case of a mariner, carrier, itinerant vendor, or itinerant handicraft, the inference of guilt from change of place might amount to little or nothing (s). Moreover, the object in absconding might be to avoid civil process, or inquiry into some other offence (t). Change of place only presumptive of intention to evade justice. cumstances. § 445. But even the clearest proof that the accused Infirmative cirabsented himself to avoid the actual charge against him, although a strong circumstance, is by no means conclusive evidence of guilt. Many men are naturally of weak nerve, and, under certain circumstances, the most innocent person might deem a trial too great a risk to encounter. He may be aware that a number of suspicious, though inconclusive, facts will be adduced in evidence against him; he may feel his incapacity to procure legal advice to conduct his defence, or bring witnesses from a distance to establish it; he may be fully assured that powerful or wealthy individuals have resolved on his ruin, or that witnesses have been suborned to bear false testimony against him. Besides, (t) Id. 180. (s) 3 Benth. Jud. Ev. 176. |