The San Francisco call., 1895-11-02

| and 1t is eminently proper that should give
you the rules OF law upon that species OF evil
| dence called circumstatial evidence and ex-
pain 10 you the difference between II and that
| species called direct or positive evidence.
| Much has been said of the nature of circum-
| stantial evidence and of the credit that ought
| 10 ee given to 1t. Whatever may be the nature
or quality OF the evidence, if the mind is fully
saIsned we must act upon such conviction,
! although on account of the uncertainty of all
| material affairs mistakes may be posi- Bile,
| still.
| peter In explaining circumstantial evidence
than that used by Chief Justice Shaw in the
celebrated Webster trial, in which he lays
down the correct rule as follows
| HoO it differs from
| direct eUideRcc.
| The distinction. then, between direct and
| clrcumstantial evidence is this: Direct or
| positive evidence is when a witness can be
called TO testify to the precise fact which is the
SUBJECT OF the issue in trial; that is. in case
| OF homicide that the party accused did cause
the death OF the deceased. Whatever may be
| the kind or force of the evidence, this is the
| TACT TO be proved But suppose no person was
| present on the occasion of the death-and OF
| course no one can be called to testify 10 it's
II wholly unsusceptibe OF legal proof? Ex-
| perlenee has shown that circumstantial evi-
| dence may be offered in such case; that is,
| mat BODY OF facts may be proved OF so con-
| elusive character as to warrant firm belief
| or the fact 1t would be injurious to the best
| interests OF society if such proofs could not
avail in judicial proceedings. If it were neceS-
sary always to have positive evidence, now
many criminal acts committed in the COM
munlty, destructive OF its peace and subver-
slYe OF It's order and security, would go wholly
| undetected and unpunished?
The necessity, therefore, of resorting to cir
cpmstantlal evidence. if 1t be safe and reli-
| able proceeding, is obvious and absolute.
| Crimes are secret. Most men, conscious of
| criminal purposes and about the execution Of
| criminal acts, seek the security of secrecy and
| L
! other modes of evidence besides that of direct
| testimony, provided such proofs may be relied
| on as leading to safe and satisfactory conclu-
| slonS; and. thanks to q beneficent Providence,
| the laws OF nature and the relations of things
| to each other are so linked and combined to-
| gether that a medium of proof is often fur
| nished leading TO inferences and conclusions
as strong as those arising from direct testimony.
| No eridence is proof
| against accident
True it is that no witness has been produced
| here who saw the act of killing committed and
hence it is urged for the prisoner that the evil
| dence is only circumstantial and consequently
| entitled to an inferior degree of credit; but
| this consequence does not necessarily follow.
| AS before stated, circumstantial evidence may
| be just as strong and convincing as direct evi-
Idence. fact positively sworn to by a single
eyewitness OF blemished character may not be
| as satisfactorily proved is fact which is
| the necessary consequence of chain of other
! credibility.
Innocent men may have been convicted and
! executed on circumstantia evidence, but inno-
cent men may have been also convicted and
executed on what is called positive evidence.
| what then? Such convictions are accidents
| which must be encountered.
You will therefore understand that there are
two classes or kinds OF evidence which are used
in courts in determining questions of fact, each
OF which is recognized by the law as legitimate
and proper evidence. An illustration or two
may here be proper to show you the difference
| between direct and circumstantial evidence.
Examples Of different
| kinds Of evidence.
If q witness should come upon the stand be-
! fore you and swear he saw another strike the
! fatal blow, by which his antagonist was killed
| saw him stab him to the heart, or present
have to do would be to judge of the truthful
! ness of his statement. If you believe such wit
ness, there is no reasoning process to be carried
on your verdict would follow such testimony
| If you did not believe him, you would reject his
testimony and would not act upon it; but in q
| case of circums tantial evidence, where no wit
ness can testify directly 10 the fact to be
| proved. you arrive at it by a series of other
| facts, which, by experience, will be found so
associated with the fact in question as in the
| relation OF cause and effect, they lead to sat
| isfactory and certain conclusion.
| To illustrate this: When footprints are dis
covered after a recent snow II is certain that
| some animate being has passed over the snow
| since it fell, and from the form and number of
| the footprints 1t can be determined with equal
| certainty whether it was man, bird or q
| quadruped. Perhaps better illustration is
| that if a witness testifes that deceased person
| was shot with pistol, and the wadding is
| found to be part of O letter addressed to tie
| prisoner, the residue of which is discovered in
his pocket, here the facts themselves are
| directly attested and sworn to, but the evj.
dence thus offered is termed ctrcumstantial
| evidence, and from these facts if unexplained
| by the prisoner, the jury may or may not de-
! duce or infer or presume his guilt according TO
their satisfaction of the nature of tie connec-
| ton between similar facts and the guilt of the
| person thus connected with them. When
| witness appears in court ana sWears that he
/ blow Vhi
| deprived another of his life the only question
is, Does he swear to the truth? Does he commit
perjury? Or is he mistaken in regard to the
| circumstances named?
Circumstdntial evidence as
good as direct.
! When evidence is circumstantial it NAV be
! just as satisfactory as direct evidence; as for
| instance, where a series OF circumstances are
proved by many witnesses all tending TO the
| same point and when the circumstances are
| shown beyond all reasonable doubt, which
| lead necessarily TO one conclusion and are
| reconcilabe with each other, they may be as
| satisfactory as direct evidence, it is possible
that en- injustice may be done. From the ma
| ture of human tribunals, whether the evidence
be direct or clrcumstantial, in all cases there
| is a possibility that perjury may be committed
| or error occur. No human testimony is su-
perior to doubt: the machinery of criminal
! justice like every other production of man
| is necessarily imperfect, but you are not,
| therefore, to stop its wheels. Because man
| may have been scalded to death or torn TO
| pieces by the bursting of boiler or mangled
| by the wheels of a railroad car you are not to
lay aside the steam engine. Indeed all evil
dence is more or less circumstantial, the diff
| ference being only in the degree; and it is suf-
| ficient for the purpose when it excludes disbe-
| lief and satisfies the mind to moral certainty
The law eXacts conviction wherever there
is legal evidence to show the guilt OF the pris-
oner beyond all reasonable doubt, and circum-
| stantial evidence is legal evidence. And in
! this case charge you that If the evidence con-
| vinces your mind beyond all reasonable doubt
that this defendant is guilty of the crime
| charged against him, then, although the
prosecution has produced no eyewitness of
| the fact of killing, you should find him guilty.
| Each mode Of proof
| has advantages.
Each of these modes of proof has its advan-
| tages and Disadvantages. Direct proof is enti-
| tied to great weight where the witnesses are