The Washington times., 1901-07-27
Circumstnntia Evidence.

CircumstnntiaI Evidence.
The acquittal of Robert Fosburgh at
! Pittsfield, Massachusetts. by direction
| of the judge. marks the close of a very
celebrated case. This young man was
charged with the killing of his sister,
| and was tried for manslaughter. In
| most States the charge would have been
murder, it resting with the jury to re-
! duce the grade of the homicide in their
| verdict should they find the defendant
| guilty at all.
Young Fosburgh's life was not actual
ly endangered, for the reason that the
charge itself was reduced, and ne could
have been convicted OF no higher of
fence than the one named in the indict-
ment. The peculiar significance Of the
case lies in the fact that the evidence
against the accused was purely circum-
stantial, and had the charge been muir
der, in the absence of sufficient testi=
mony for the defendant to offset it, the
young man might have been sent to the
gallows for a crime which the evil
dence. in its entirety, makes it morally
certain he never committed. 1t is
strongly suggestive of the unsatisfac-
tory nature of circumstantial evidence
in capital cases.
The question has frequently been
raised whether any man should be put
to death upon such testimony alone,
and the gravest doubts have been ex-
pressed Many courts have laid down
the rule that circumstantial evidence
may be SO clear and conclusive as TO
make it no less satisfactory than direct
testimony. So it may, possibly. but it
is hard to imagine a case in which such
evidence would not be strengthened t'y
the direct testimony of a credible wit
ness. Nearly always there is a possi-
bility of circumstantial evidence lead
ing to an erroneous conclusion. 1t may
seem that the only fair deduction from
it is that the defendant is guilty, and
yet it may easily happen that he is in
nocent although completely enmeshed
in a web of eliminating circumstances,
which he may not be able to explain
away. The very case under .;onsidera-
tion furnishes an illustration. Had
young Fosburgh and his sister been
alone in the house on the night of the
sisters death, it is very doubtful if any
thing the defendant could have said or
done would have overthrown the cir
cumstantial evidence against him. He
was saved by the testimony OF his
mother and that of other witnesses v no
happened to be in the house, and I is
easy to imagine a case in which he
would have been utterly helpless and
friendless.
There are many criminal cases, in
cluding some homieides. in which per-
sons have been thus convicted, whose
innocence was subsequently made per-
fectly clear. Capital cases of this Kind
are not numerous. but the possibility of
the conviction and execution of sin
gle human being upon the basis OF mere
circumstances which may lead to mis-
taken conclusions is, in itself, enough
TO suggest the wisdom of modifying the
law. Not that circumstantial evidence
should be excluded, nor that there
should be no conviction upon such tes-
timony unsupported. The change
should not go so far as that. But il
might be eminently wise to establish
the rule that no person should be pun
ished capitally on that kind of testi-
mony alone.
In the case of circumstantial evidence
there is the double danger of the wit
nesses being mistaken or Intentionally
false upon some of the links in the
chain, and of the chain itself leading to
an erroneous conclusion. If. in sucf
cases. no penalty more severe than i'm
prisonment could be inflicted, IL is
scarcely to be doubted that. upon the
whole, the ends of justice would be bet
ter subserved. On fare occasions man
richly deserving death might escape
that extreme penalty, but !le would be
likely to get long term in T-ison any
way. He might end his da.s behind the
bars. AS it is, great criminals some
times escape upon the theory that the
crime must be first degree murder or
nothing tas in the case of poisoning),
some of the jurymen being unwilling to
take a mans life without direct testi-
mony connecting him with the crime.
At the same time there is the danger
of wrongful conviction and execution,
in which event the mistake can never
be repaired. 1t is better that many gull
ty men should escape the gallows or the
electric chair than that one innocent
person should suffer the extreme pen
atty Of the law.