Ellsworth American., 1877-05-24
Vol. XIII. Whole No. 1917. No. q.


has been In this case both praised and dis
praised-commended and deprecated, as
compared with testimony of direct char
acter, so styled. In contradistinction
from each other, the one is sometimes
called by legal writers direct, and the other
Is called indirect evidence.
Direct evidence, gentlemen, would be
where witnesses swear to seeing q man
commit criminal act. Indirect evidence
would be where witnesses swear to GER
tain facts, from which the commission of
| the crime may be inferred. The truth Is,
either mode of evidence may. In some
conditions, be better than the other. Each
sort of evidence has its advantages. No
doubt circumstantal evidence In one case
may be more reliable than direct evidence
In another case. The witness who swears
directly TO the commission OF the offense
may not be reiable-you might Dot be
willing to depend upon him. Certain cir
| cumstances of proof might be more salts
factory to the jury than the testimony Of
the witness.
| And the proposition reversed is as true.
that is, direct evidence in one case may be
more reliable than indirect evidence in
another case. IL is difficult to compare
different things with each other, in a moral
or legal way, and make the comparison 4
perfectly fair and accurate one. Either
direct or Indirect evidence may be of Il
most satisfactory and conclusive charac-
ter, or it may be unsatisfactory and in
conclusive. All depends upon the quality
and amount OF it, and the observance OF
the rules of law in weighing and consid-
ering ii.
| Take sample of circumstantial evidence
afforded by this case. How can Mrs.
Thayer's death be proved? No witness
saw her die, that is known of. except her
murderer. No witness saw her body after
death excepting. him.
The presence OF certain bones are testi-
fed to. She is missing. These facts are
but circumstances. There is at least
n possibility that the bones are not the
bones OF Ms, Thayer. But what do you
believe about it, upon your oaths and your
cOnsciences. If convictions could not be
safely procured upon circumstantial evil
dence, much the greater portion OF az
gravated offences would not be punished
at all. Murders are often committed in
the presence OF witnesses. Dreadful deeds
| are done in the dark. Crime seeks the
| blaCkness of night for its cover. Crime Is
tlmld and dastsrdly. II fears the light OF
day. Ii studies escape. Ii obliterates all
evidence possible. Still, there is q weak
ness in all crime. In covering up, it
leaves openings. In its effort to conceal
it often discloses. Its work is not per-
feet 1t reasons badly. Here and there
facts crop out, and circumstances are re-
vctled by which the guilty perpetrator of
J crime gets discovered.
These are general remarks, however,
intended to carry 10 your minds an idea
OF the difficulties which beset the discov-
cry of crime generally, and the modes Of
! Investigation which are nece sSarily adopt
ed TO lead To its detection.
/ II Is said there have been false conyiC-
tous, Very few indeed, in my Judgment
aud reading, compared with the whole
number of all the convictions. Very few
indeed, gentlemen, in my judgment, com
pared with the number of escapes of those
criminals who are guilty. False convic-
tiouS have undoubtedly been procured by
each mode of prooi-the direct, aud ind
rect or circumstantal. More formerly
than now. There were more of them in
the days OF judicial darkness and tyranny
aud Intolerance. one hundred years ago,
more or less.
Formerly most all offences in our
/ mother country, England. were punished
capitaliy. Ii was not strange that under
such condition Of things mistakes should
occur; but to modern New England. no
such character is lmputabe, to her juries
/ or her courts.
/ Alu~ioB has been made BY the able
counsel for the prisoner 10 the remarkable
case OF Brown, which took place once IN
! Vermont. case often cited as bearing
upon the value of circumstantial testi-
mOuy. That was remarkable case, an
/ exceptional case; and not case where
a man was convicted wholly upon circum-
/ stances but in addition TO some suspicious
| founGedlupon circumstances against theprtS
| onerhe made open confession, being a weak
minded man and urged TO do so by some
Of his friends. 1t was upon those facts
that he was sentenced but not hung. |
deem it my duty TO say passing word as
10 the mention made of the Phar case
/ which is now accupyng soKe public CON
/ >Ideratlon, the case in Vermont which has
/ been alluded to by the same counsel.
1 We do not know that Phair was wrong
I ly convicted. Time will settle that, aud
there Is this peculiarity about that case,
a. understand It. He was convicted By
a gentleman in Boston testifying that lie
offered TO sell him certain articles of pro-
I pcrty belonging to the deceased. In that
case the question is whether that was a
correct and true identification of the mau
or a mistaken one; and to the same kind
OF circumstances the prisoner appeals To
show the mistake and that is, the testI
mony OF another man that he was seen. At
u
at another place. And he is appealing To
these circumstance to save him.
But, gentlemen, disregard all other
Cases, no other case has anything to do
with this case. While the fact that false
convictions have occurred may admonish
US of the necessity OF carefulueSs in cases,
they are NOT 20 deter US from following our
own clear convictions, whatever they may
be, when properly founded on such evi
dence as may be before us, In any case.
There are certain rules to be observed
in weighing circumstances, Invoked by the
counsel for the prisoner.
First. Each circumstance before it can
be taken into account with other crcum-
stances, must itself be proved to your sat
isfaction beyond reasonable doubt.
Second. All the facts must be consistent
with each other. and with the main fact
sought to be proved. For instance, as 1T
ting the defence set up in this case in one
of its branches, if the murder was commit
ted near Trims at a time when the accused
was elsewhere, inasmuch as he could not
be in two places at the same time, the fact
of the proof of such absence is inconsistent
with the guilt of the accused, and excludes
its possibility, however strongly indicative
of guilt any other facts may have been.
Third. 1t is essential that the circum-
u,
should have direct necessary tendency 10
establish the main proposition sought to be
proved; so that all such circumstances as
are proven. taken together, will lead upon
the whole, to a satisfactory conclusion OF
the guilt OF the accu sed.
Fourth. 1t is essential that the evidence
should TO a reasonable certainty exclude
every hypothesis but the one to be proved.
IL the facts proved are consistent with anv
other hypothesis than the one to be proved,
the proof fails.
There is also another important detini-
ton to be given or oberservaton to be
made, the application OF which to the tes-
timony is invoked in behalf OF the state. and
that is, that where the circumstances are
distinct and independent of each other, the
probability shown by them increases in
proportion to the number of circumstances
proved.
Many moral writers lay it down, that it
increases in geometrcal ratio in propor-