The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-07-13
C1RUUMgTANTIAL EVIDENCE.

CTRUUMsTANTIAL EVIDENCE.
There Id no branch of legal knowledge
which Is Of more general utility than that
which regards the rules Of evidence; and the
Just and correct application Of these rules Ii
the most difficult task the advocate can be
called upon to perform.
For while, by O faction Of the iurists, the law
ID always regarded rs fixed and certain the
discovery OF the facts to which the law liz to
be applied may battle the most skllful. Com
sidering the great Importance Of this branch
of the law, 1T Is q very remarkable fact that,
as yet, no work has appeared In the English
language on the theory Of evidence and the
nature of circums.antlal evidence, or that
species Of proof which is founded ON pre-
sumptions, which ID far the most diff
cult of application, and not infrequently re-
suits In the graveet wrongs to Innocent per-
sons has been still less inquired into. Upon
this character Of proof, with the exception OF
the short essay which constitutes the intro
dnction TO Mr.. Phillipps's work entitled
sFamous Gases Of Circumstantial Evidence"
we know 81 no legal treatise upon this ques-
ton. Indeed, the question has been more
often and more ably treated by literary than
by judicial writer's, and, perhaps, the most
brilliant and profound paper upon the nature
OF circumstantial evidence extant to-day is
contained In q work OF fiction. We allude to
the defense Of himself which Bulwer has put
In the mouth Of Eugene Aram, but which YVES
avowedly not entirely original with Bulwer.
1t has Of late years been favorite theme
with quibbllng lawyers to descant upon the
certainty of circumstantIal evidence. Despite
the daily examples Of It's unreiability, this
school Of theorists keep on insisting that cir
e1mstAnceB cannot lie. and that where q num-
Der Of these point to conclusion they consti-
tute even better proof than direct testimony
to the criminal act itself, where the presump-
tions are not favorable to the fact sworn to.
The first enunciation of this doctrine In the
English jurisprudence which is followed In
America In all criminal procedures, Is by
Justice Bullen In the case Of Capt. Donnel-
Ian. ia 17B1, III his charge Mr.. Justice Bullen
said:
A PRESUMPTION which necessarily arises from
circumstances Ii very 1T "a more convincing
and more aalafRetOiy than any O her Kind OF
evidence. 1t Ia mt within the reach and COM
eumetances which shall be connected togather
% to amount IT, proof Of guilt, without afford.
Ing Opp0rtu mites III CDHGr dlgttn& u Great pHTt,
: IL not all. of these circumstances
MT. Phillips successfully refutes this whole
proposition, and shows it to be repugnant to
all the received principles Of Jurisprudence,
as laid down by the best writer's; that It Is not
warranted by experience, and ID foreign to tile
practice of the English law. After quoting
from the learned civilians, Marcardus and
Menochius, to show the fallacy Of the position,
he goes on to refer to the innumerable in
stances In which persons afterward
proved to be innocent have been con-
victed and executed on this sort OF
evidence. "But who can say" he continues,
''how many instances have occurred, where
the mistake has never been discovered? 1t
has often happened that the real murderer
has confessed the fact for which the innocent
man has suffered; but, rs real murderers do
not always confess when innocent men suffer,
Ii ID impossible to say to what length this
dangerous doctrine may have been carried"
There have recently been three cases
which admirably illustrate the fallacy
and dauger of the doctrine enunciated by
Mr.. Justice Bullen: First the Hull case,
then tile case Of a man In New Hampshire.
who had been three times tried and
barely escaped Lynch law, for the muir
der of man who has just turned up
alive and we'll; and In another instance, In
which man. satisfied that he could not es-
cape conviction under the strong circumstan-
tial evidence against him, pleaded guilty, with
the hope Of obtaining clemency; but after
ward recanted and offered reward for the
missing man, which shortly resulted In pro
ducng him. But In neither Of these two lat
ter cases was the danger Of Dresumptive
proof, the Illusion OF circumstances and the
falllbility Of human deductions 50 conclusive
iy proved as LII thee OF Dr.. Hull, suspected
of the murder OF his wife.
What more convincing refutation could
be afforded Of the assertion that
circumstances cannot Hep There Is not
one single premise upon which the re-
liability Of this character OF proof 10 based
which has not met with a signal refutation In
this case. Let US examine for example, the
medical testimony. 1t must be remembered
that the theories OF the doctors and OF the
police materially differed as to the probable
phenomena attending the death OF the victim,
and the confession of Cox absolutely destroys
the theory OF the doctors and vindicates that
or the police In regard to facts upon which
the opinion OF medical men Is supposed to be
conclusive.
In the Donnellan case four physicians tes-
titled that the victim had died Of poisoning.
while one alone, DR.. Hunter, the most emf
nent authority Of his day upon all anatomical
questions declared that there was not q single
symptom to Justify the presumption that
death had been caused by poison. Phillips
regards IL great outrage that Dr.. Hunters
opinion was not given to the jury by the court
as conclusive refutation. by reason Of his
greater reputation, Of the opinion of the
four unknown physicians. Suppose this
principle, which is, ordinarily, q
correct one, had been applied to the
Hull case. The doctors said that the BAN
dages on the body Of Mrs. Hull-the gag In