by the criminal to avoid observation, that he has not been seen, either at or near the scene of the crime, or going towards it, or going from it, but his proximity, and indeed his presence are inferred from his movements at other points, before and after the crime was committed. . . . In Rush's case, the prisoner left his house in the evening, not long before the deceased, who lived in the neighborhood, was shot, and returned at about nine o'clock. The weight and force of facts like these, when considered by themselves, consist merely in the coincidences and correspondences of time which they present; rendering the fact of presence probable in various degrees, but possessing no exclusive efficacy. ...

2. The principal infirmative supposition applicable to the circumstance of opportunity to commit a crime, is that, admitting it proved to have existed, it does not necessarily follow that it was actually taken advantage of by the party shown to have possessed it; or that it was not taken advantage of by another person. In order to give it this effect, where it is solely or chiefly relied on, the circumstances tending to show its existence must be exclusive in their operation, by demonstrating that no other person had, or could have had the opportunity possessed by the accused, and that, therefore, by a necessary consequence, none but he could have committed the

crime.

Its whole tendency is merely to show a possibility that the act might have been committed by the person supposed to be indicated; without any of that quality of positive probability in which the essence of the force of presumptive evidence resides. Another person may have been present. The real murderer may have left the dead body, and escaped from the room. or the house in which it is found, only the moment before the accused entered it. The real incendiary may have fled from the building fired, only the moment before the accused approached it. The presence of the accused himself, on such an occasion, may be accounted for upon grounds of humane and laudable intention to render assistance, or mere innocent curiosity, or even mere accident. The exclusive character of the accompanying circumstances, in regard to means and modes of entrance upon and exit from the scene of the crime, however apparently satisfactory, may not be real. The murderer may have escaped from the room or house, by a door, or even a window, the existence or capacity of which has been entirely overlooked. Supposing the exclusive presence of one particular person to be satisfactorily established, such person may not have been the accused, but another person more or less closely resembling him. In a case of supposed murder the circumstance that the accused was the last person seen in company with the deceased, previous to his death or disappearance; or, in other words, that the deceased when last seen alive was seen in his company, does not, of itself, necessarily exclude the possibility that another and unseen person may have joined the deceased, after the accused left him, perpetrated the crime, and effectually escaped. The circumstances of the accused leaving his residence just before, and returning to it just after the perpetration of a crime in the vicinity, merely show a coincidence of action, without any necessary criminative effect.

Hastiness of movement towards the scene of the supposed crime may have been prompted by a desire to render assistance, on hearing alarming sounds or cries from the spot. And hastiness of movement from the spot may have

been dictated by a similar desire to call for more adequate aid, or by a fear of impending danger to the party himself.

Secrecy of movement near the scene of the crime, even including the disguise of the person, may be explained on other suppositions than that of guilty intent. The lovers of servants are apt to be stealthy in their visits, and in this way are sometimes taken for thieves. And secrecy and disguise have sometimes been assumed and practiced out of mere sport.

(JAMES RAM. On Facts as

57. JONATHAN BRADFORD'S CASE. Subjects of Inquiry by a Jury. 3d Amer. ed., 1863. p. 449.)

Jonathan Bradford, in 1736, kept an inn, in Oxfordshire, on the London road to Oxford. He bore a very unexceptionable character. Mr. Hayes, a gentleman of fortune, being on his way to Oxford, on a visit to a relation, put up at Bradford's. He there joined company with two gentlemen, with whom he supped, and, in conversation unguardedly mentioned that he had then about him a sum of money. In due time they retired to their respective chambers; the gentlemen to a two-bedded room, leaving, as is customary with many, a candle burning in the chimney corner. Some hours after they were in bed, one of the gentlemen, being awake, thought he heard a deep groan in an adjoining chamber; and this being repeated, he softly awaked his friend. They listened together, and the groans increasing, as of one dying and in pain, they both instantly arose and proceeded silently to the door of the next chamber, whence they had heard the groans, and, the door being ajar, saw a light in the room. They entered, and perceived a person weltering in his blood in the bed, and a man standing over him with a dark lantern in one hand and a knife in the other! The man seemed as petrified as themselves but his terror carried with it all the terror of guilt. The gentlemen soon discovered that the murdered person was the stranger with whom they had that night supped, and that the man standing over him was their host. They seized Bradford directly, disarmed him of his knife, and

charged him with being the murderer. He assumed, by this time, the air of innocence, positively denied the crime, and asserted that he came there with the same humane intentions as themselves; for that, hearing a noise, which was succeeded by a groaning, he got out of bed, struck a light, armed himself with a knife for his defense, and was but that minute entered the room before them. These assertions were of little avail; he was kept in close custody till the morning, and then taken before a neighboring justice of the peace. Bradford still denied the murder, but, nevertheless, with such apparent indications of guilt, that the justice hesitated not to make use of this most extraordinary expression, on writing out his mittimus, "Mr. Bradford, either you or myself committed this murder."

This extraordinary affair was the conversation of the whole country. Bradford was tried and condemned, over and over again, in every company. In the midst of all this predetermination, came on the assizes at Oxford. Bradford was brought to trial; he pleaded not guilty. Nothing could be stronger than the evidence of the two gentlemen. They testified to the finding Mr. Hayes murdered in his bed; Bradford at the side of the body with a light and a knife; that knife, and the hand which held it, bloody; that, on their entering the room, he betrayed all the signs of a guilty man; and that, but a few moments preceding, they had heard the groans of the deceased.

Bradford's defense on his trial was the same as before the gentlemen: he had heard a noise; he suspected some villainy was transacting; he struck a light; he snatched the knife, the only weapon near him, to defend himself; and the terrors he discovered, were merely the terrors of humanity, the natural effects of innocence as well as guilt, on beholding such a horrid scene.

This defense, however, could be considered but as weak, contrasted with the several powerful circumstances against him. Never was circumstantial evidence more strong! There was little need of the prejudice of the county against the murderer to strengthen it; there was little need left of comment from the judge, in summing up of the evidence; no room appeared for extenuation; and the jury brought in the prisoner guilty, even without going out of their box.

Bradford was executed shortly after, still declaring that he was not the murderer, nor privy to the murder of Mr. Hayes; but he died disbelieved by all.

Yet were these assertions not untrue! The murder was actually committed by Mr. Hayes' footman: who, immediately on stabbing his master, rifled his breeches of his

money, gold watch, and snuffbox, and escaped back to his own room; which could have been, from the after circumstances, scarcely two seconds before Bradford's entering the unfortunate gentleman's chamber. The world owes this knowledge to a remorse of conscience in the footman (eighteen months after the execution of Bradford) on a bed of sickness. It was a death-bed repentance, and by that death the law lost its victim.

It is much to be wished that this account could close here, but it cannot! Bradford, though innocent, and not privy to the murder, was, nevertheless, the murderer in design he had heard, as well as the footman, what Mr. Hayes declared at supper, as to the having a sum of money about him; and he went to the chamber of the deceased, with the same diabolical intentions as the servant. He was struck with amazement! he could not believe his senses and, in turning back the bedclothes, to assure himself of the fact, he, in his agitation, dropped his knife on the bleeding body, by which both his hands and the knife became bloody. These circumstances Bradford acknowledged to the clergyman who attended him after his sentence.

1873. p. 457.)

58. WILLIAM SHAW'S CASE. (T. DUNPHY AND T. J. CUMMINS. Remarkable Trials of All Countries. William Shaw was an upholsterer at Edinburgh, in the year 1721. He had a daughter Catherine Shaw, who lived with him. She encouraged the addresses of John Lawson, a jeweler, to whom William Shaw declared the most insuperable objections, alleging him to be a profligate young man, addicted to every kind of dissipation. He was forbidden the house; but the daughter continuing to see him clandestinely, the father on the discovery, kept her strictly confined. William Shaw had, for some time, pressed his daughter to receive the addresses

of a son of Alexander Robertson, a friend and neighbor; and one evening, being very urgent with her thereon, she peremptorily refused, declaring that she preferred death to being young Robertson's wife. The father grew enraged, and the daughter more positive; so that the most passionate expressions arose on both sides, and the words "barbarity," "cruelty," and "death," were frequently pronounced by the daughter! At length he left her, locking the door after him.

The greater part of the buildings in Edinburgh are formed on the

59. DOWNING'S CASE. (W. WILLS. Circumstantial Evidence. Amer. ed. 1905. p. 240.)