sion of some facts or addition of others, or both. 1. Of 1. Where the fact deposed to the former of these, the most obvious, though not the most is physically usual case, is where the answers extracted shew that the impossible. fact deposed to is physically impossible. A good instance is afforded by the case of the Comte de Morangiés (i). "The question was, whether Monsieur de Morangiés had received a sum of 300,000 francs, for which he had given notes of hand to a person called Véron. These notes of hand he affirmed had been obtained from him fraudulently. Dujonquai, grandson of Véron, affirmed that he had himself on foot transported that sum to Morangiés, at his hotel, in thirteen journeys, between seven in the morning and about one in the afternoon, making about five hours and a half or six hours. The fact was shewn to be impossible, as follows:-Dujonquai said that he had divided the sum into thirteen bags, each containing six hundred louis, and twenty-three other sacks of two hundred pounds; twenty-five louis were given to Dujonquai by Morangiés. On each occasion Dujonquai put a sack of two hundred louis in each of his pockets, which, according to the fashion of the day, flapped over his thighs, and took a sack of six hundred guineas under his arm. According to the measured distance from the alley in which Dujonquai lived to the house of Morangiés, the space traversed by Dujonquai, in his thirteen journeys, would amount to five French leagues and a half; the time for each league being calculated at an hour for a person walking rather faster than usual. So far there is no absolute physical impossibility, however improbable it might be that Dujonquai should not stop a moment for refreshment or repose; but in going, Dujonquai had sixty-three steps to come down in his own house, and twenty-seven to go up at that of Morangiés, making in all ninety multiplied by twenty-six : this amounted to two thousand three hundred and forty (i) We cite from the Law Mag. N. S. vol. i. P. 24. steps. Now it was known, that to ascend the three hundred and eighty steps of Nôtre Dame from eight to nine minutes are requisite. Thus an hour must be deducted from the five or six during which the journeys were said to have been made. The street of St. Jacques, which Dujonquai had to ascend, is extremely steep. This would check the speed of a man laden and encumbered with bags of gold under his arm and in his pocket. The street is a great thoroughfare, especially in the morning, for three or six hours. The obstructions inevitable from this circumstance would accumulate considerably; half a league at least must be added to the five leagues and a half, which, as the crow flies, was the distance traversed. It happened that on the very day which Dujonquai fixed upon for his journeys, these ordinary obstructions were increased from the removal by sixty or eighty workmen of an enormous stone to St. Généviève, and the crowd attracted by the spectacle. This must, even supposing him not to have yielded for a moment to the curiosity of seeing what attracted others, have added seven or eight minutes to each of his walks, which, in the twenty-six, would amount to two hours and a half. Both in his own house and that of Morangiés it must have been necessary for Dujonquai to open and shut the doors, to take the sacks, to place them in his pockets, to take them out, to lay them before Morangiés, who he affirmed, contrary to all probability, counted the sacks during the intervals of his journey, and not in his presence. Time must have been requisite also to take and read the receipts given by the count, during each journey. On his return home Dujonquai must have given them to some other person. Therefore, reckoning the time required to take and lay down the sacks, to open and shut the doors, to receive and read and deliver the acknowledgments, to conversations which Dujonquai allowed he had with several people, together with the obstacles we have mentioned, the truth of Dujonquai's statement was reduced to a physical impossibility." § 626. 2. Cases like the above are, however, neces- 2. Where it is improbable, or sarily uncommon; in most instances the exertions of morally imthe advocate must be directed to shewing the impro- possible. bability, or at most the moral impossibility of the fact deposed to. The story of Susannah and the Elders in the Apocrypha affords a very early and most admirable example. The two false witnesses were examined out of the hearing of each other: on being asked under what sort of tree the criminal act was done, the first said " a mastick tree," the other " a holm tree." The judgment of Lord Stowell also in Evans v. Evans (k) shews how a supposed transaction may be disproved by its inconsistency with surrounding circumstances. "What had you for supper?" says a modern jurist (1). "To the merits of the cause, the contents of the supper were in themselves altogether irrelevant and indifferent. But if, in speaking of a supper given on an important or recent occasion, six persons, all supposed to be present, give a different bill of fare; the contrariety affords evidence pretty satisfactory though but of the circumstantial kind that at least some of them were not there." The most usual application of this is in detecting fabricated alibis. They seldom succeed if the witnesses are skilfully crossexamined out of the hearing of each other, especially as courts and juries are aware that a false alibi is a favourite defence with guilty persons, and consequently listen with suspicion even to a true one. sentation. § 627. 2°. Falsehood in toto is far less common than 20. Misrepre misrepresentation. Under this head comes exaggeration, Exaggeration. the dangers of which have been pointed out in the Introduction (m). There are however other forms (n). E. g. “Question-About what thickness was the stick Falsehood in with which you saw Reus strike his wife Defuncta? quantity. Falsehood in quality. Generality and indistinctness. Answer--About the thickness of a man's little finger. In truth it was about the thickness of a man's wrist. Falsehood in this shape may be termed falsehood in quantity. Question-With what food did the gaoler Reus feed the prisoner Defunctus? Answer-With sea biscuit, in an ordinarily eatable state. In truth, the biscuit was rotten and mouldy in great part. Falsehood in this shape may be termed falsehood in quality.” § 628. Of the various resorts of evasion the most obvious and ordinary are generality and indistinctness. "Dolosus versatur in generalibus (o)" "Multiplex indistinctum parit confusionem (p)." Untruthful witnesses, as well as unreflecting persons, commonly use words expressing complex ideas, and entangle facts with their own conclusions and inferences. E. g. Question-What did A. B. (i. e. the plaintiff, defendant, &c., as the case may be) do? or say? Answer-He promised, he engaged, he authorized, he ratified, he confessed, he admitted, &c. &c. The mode of detection here is to elicit by repeated questions what actually did take place, thus breaking up the complex idea into its component parts, and separating Equivocation. facts from inferences. Another form is that of " equivocation," or verbal truth telling, a practice much resorted to by witnesses who are regardless of their oaths, as also by others who delude themselves into the belief that deception in this shape is, in a religious and moral point of view, either not criminal or criminal in a less degree than actual falsehood. Effect of interest ducing untrue § 629. The maxim "Falsus in uno, falsus in omniand bias in pro- bus" (q) may be pushed too far. It must not be supposed that all the untrue testimony given in courts of justice proceeds from an intention to misstate or deceive. testimony. (0) 3 Co. 81 a. (p) Hob. 335. See 2 Benth. Jud. Ev. 147. (9) Broom's Max. xxiv. 2nd Ed. On the contrary, it most usually arises from interest or bias in favour of one party, which exercises on the minds of witnesses an influence of which they are unconscious, and leads them to give distorted accounts of the matters to which they depose. Again, some witnesses have a way of compounding with their consciences-they will not state positive falsehood, but will conceal the truth, or keep back a portion of it; while others whose principles and whose testimony are sound in the main will lie deliberately when questioned on particular subjects, especially on some of a peculiar and delicate nature. The mode of extracting truth by cross-examination is, however, pretty much the same in all cases, namely, by questioning about matters which lie at a distance, and shewing the falsehood of the testimony by comparing it with established facts. servations as to adverso. § 630. Although in enumerating the means by which ad- General obverse witnesses are to be assailed, Quintilian puts first (r), the course of "timidus (testis) terreri potest," menacing language and examination ex austerity of demeanor are not the most efficacious weapons for this purpose; for in the vast majority of instances, an artful or evasive witness is more effectually dealt with by putting him in good humour with himself, and off his guard as to the designs of his interrogator. The word "terror" must here be understood with reference to remorse of conscience, sense of shame, dread of disgrace and punishment, and a sort of undefined apprehension resulting from them all. The hardened villain who comes into the witness-box to swear to unmixed falsehood, and perseveres in that intention despite every obstacle, is comparatively rare. On most minds the well-known sanctions of truth are in continual, though it may be silent, operation, and the resolution to deceive has frequently yielded to their force when ju (r) Supra, § 624. |