TITLE IV (continued): EVIDENCE TO PROVE THE

DOING OF A HUMAN ACT

SUBTITLE C: RETROSPECTANT CIRCUMSTANCES

138. JOHN H. WIGMORE.

Principles of Judicial Proof. (1913.) 1 There remains the third group of circumstantial evidence, namely, facts having a Retrospectant indication. The inference here looks backward from the evidentiary fact to the alleged act; i.e. taking our stand at the fact offered, we infer from it that at some previous time the act was or was not done. The common feature of this group of evidentiary facts is that they are all open to a similar source of weakness, and thus offer to the opponent a general mode of explaining away their force. Thus, if, to show that A on January 1 stole a bicycle, there is offered the fact of his possession of the bicycle on June 1, the probative force of this fact rests on the assumption that the hypothesis that will explain his possession is that he obtained the bicycle by stealing it. But there are also in truth other possible hypotheses, for example, that it was given or sold to him by the thief or by a purchaser from the thief, or that he found it. So, if in proving the doing of an act by A as a mark of his identity with B, there is offered (as in the Tichborne case) the fact that A has a recollection of the event, or if, to disprove it, we offer the fact that A has no recollection of it, the opponent may show, in the first instance, that the recollection has come, not from having done the act, but from having heard or read about it; and, in the second instance, that the lack of recollection is due, not to not having done the act, but to the natural fading of memory. In short, the tests of relevancy and the opportunities of explanation are of the same general nature in this group of evidentiary facts. The general argument runs: Is the trace one whose possession (or lack of possession) by the person charged could be explained by the operation of other causes than the doing (or not doing) of the act in question?

The kinds of facts may best be roughly subdivided according to the mode in which such causes might operate, i.e. according as the connection between the evidentiary trace and the act in question is Mechanical (Physical) or Mental. The typical case of the first sort is the possession of stolen goods; of the second sort, consciousness of guilt.

Topic 1. Mechanical (Physical) Traces

139. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.) 2 (1) General Principle. The presence upon the person or premises of articles, fragments, stains, tools, or any other resulting circumstance, is constantly

[Adapted from the same author's Treatise on Evidence. (1905. Vol. I, § 148.)] [Adapted from the same author's Treatise on Evidence. (1905. Vol. I, §§ 149-160,

in part.)]

employed as the basis of an inference that the person did an act with which these circumstances are associated.

In criminal cases the use of this inference is typical. But it is no less applicable in several sorts of civil cases, where its nature is not always so obvious.

(1) (a) When an animal is found in B's possession, and the animal bears a brand or other mark, and one of the issues is whether A is the owner of the animal, it is a natural and immediate inference that the animal belongs to the person whose brand it bears, and, if that brand is A's, then to A. This inference, however, while sufficiently probable in the light of practical experience, is in truth a composite one, made up of two steps: (1) first, the inference, from the presence of A's usual mark, that A placed this particular mark, a genuine argument under the present principle, from a trace to the source of the trace; and (2) secondly, the inference from the fact that A placed it there, to the fact of his ownership of the animal. The latter step of inference is the vital one; it is perhaps not less natural than the former, but it is more serious in its effect. It would seem that the latter step of inference has been rarely conceded by Courts, as a matter of common law; though the former step was universally conceded, it was said that the presence of A's brand was evidence of identity (i.e. of the animal being one of those originally branded by A), but not of ownership. This unduly cautious attitude has been generally corrected by legislation; in most of the stock-raising communities, the brand on animals is made evidence of ownership; though in order to encourage registration and thus prevent confusion, the rule is applied only to brands duly registered by law. (b) The postmark on an envelope is, upon the same principle, admissible to show that the envelope bearing it had passed through the hands of the postal officials at the time and place indicated. (c) The payee of money naturally leaves behind him in the hands of the payor some document by way of receipt or evidence of payment; where this document is the instrument of obligation itself, its possession by the debtor is evidence of the discharge of the debt. (d) The existence of a document in a certain kind of place such as the grantee's custody or office of registry-may be sufficient evidence of the delivery of the document, so far as its delivery may be material. (e) The existence of a document of ownership of land (a deed, lease, or license) may be evidence that the maker of the document had possession of the land at the time of making it. This doctrine, now well settled in English law, is applicable in proof of title by adverse possession in prior generations, where no evidence has survived except the documents themselves which embodied acts of claim of ownership. (f) Finally the reverse of the preceding inference (4) may be made; i.e. from the present possession of land the inference that there once existed a deed of it, now lost, may be made:

This is the logical foundation of the presumption of a lost grant, which after long service has finally degenerated into a mere rule of substantive law, although the living principle of the original inference is still occasionally open to application.

(2) Negative Traces. If certain results would have followed if an act or an event had occurred (or not occurred), the absence of those results is some indication that the act or event has not occurred (or occurred). (a) A

common class of evidence of this sort is that of lack of news to show probable death of a person or the probable loss of a ship; for as it is usual for living persons to be heard from directly or indirectly, by persons having an interest in knowing, and for ships' officers to leave word of their journey at the ports they touch or with the other ships they pass, the lack of any such news indicates their non-existence. In counterexplanation (ante, No. 2) such facts as the infrequency of communication from the place the person went to, the fixed determination of the person to give up all connection with his former home, and the like, may of course be used to explain away the force of the fact of lack of news.

(b) It is a natural propensity of creditors to realize their claims, when left unsatisfied, by process of law, within a fair space of time; and when it is found, after some time, that a creditor has not resorted to law for the realization of his claim, there is a natural inference that this failure was due to the lack of right and necessity to resort to law, i.e. that the claim had been satisfied by payment. The fact may be explained away by showing a more probable hypothesis, for example, the insolvency of the debtor, his absence, or other circumstance likely to prevent the creditor from proceeding even though the claim was unpaid. (c) In various other situations a retrospectant inference is permissible from the absence of certain results. to the absence of certain causes; the chief of these are the inference, from the non-discovery of a will once existing, to the testator's revocatory destruction of it; the inference from the non-discovery of any document and the lapse of time, to the loss of the document; and the inference, from a debtor's continued possession of property, after its mortgage or sale, of his fraudulent intent to defraud creditors by the transfer. In general, that a certain effect was not seen or heard by those who would naturally have seen or heard it had its cause occurred is some evidence of the non-occurrence. But, though this situation can thus be treated as permitting an inference from circumstantial evidence, it is usually more natural to treat it as involving testimonial evidence; i.e. the argument is that witness A is qualified to testify that act X was not done by B, because A would have seen or heard it if it had been done; thus, the principle of testimonial knowledge is here the controlling one.

2. Traces and Identity. The question may be asked, What is the distinction between evidence of traces and evidence of identity? For example, to prove a murder, evidence is offered that a gun found in the defendant's possession is exactly fitted by the bullet found in the body of the deceased; what kind of evidence is this? The truth is that this evidentiary fact is double, and involves both kinds of inferences. The nature of the argument to prove Identity (ante, No. 14) is that a certain fact offered is an essential mark of sameness of person, - in this instance, that the fit of the bullet is a necessary and unique mark of the slayer. The weakness of this type of argument is that the mark may not be necessarily associated with one person but may be common to a number of persons; and hence the mode of explaining away such evidence is to show that other persons also have the same mark, — here, that other persons in the neighborhood possessed guns of the same bore. Now the argument from Traces assumes that the argument to Identity has been settled and accepted, i.e. here it assumes that the use of the gun in question is an essential or sufficient

mark of the murderer, and it then sets about to prove that the accused possessed that mark, i.e. used that gun; and to do this it offers the fact of its subsequent finding in the accused's possession. Here the weakness of the argument is an entirely new and different one, namely, the trace of subsequent possession does not necessarily indicate a use at the time of the murder, since the gun may be one which the accused has recently borrowed, or it may be his own gun which was lent to another person at the time of the murder. Thus, there are two wholly different evidentiary questions involved in the use of this evidence, first, the question of identity, whether this individual gun is a necessary mark of the slayer; and, secondly, the question of traces, whether its subsequent possession evidences its use at the time of the murder. The present type of argument, then, the argument from traces to a former act, — is a distinct argument from that of Identity.

3. Organic Traces. In this sort of Traces may be included those which are in strictness biologic or organic rather than mechanical. They play an important and well-recognized part in a few classes of cases. (a) When a child X is born to a wife A married to a husband B, it is natural to infer that the intercourse which begot the child was the intercourse of the husband B, i.e. that the child is legitimate. It is true that this inference is less strong where the birth occurs very shortly after the marriage; but even here the likelihood that the premarital intercourse was B's is greater than that it was another man's. This inference is the foundation of the presumption of legitimacy. (b) If the corporal traits of the progenitor are or may be transmitted to the progeny, then a specific corporal trait of the progeny may point back to a person of similar trait as the progenitor, on the condition that the person so charged as progenitor is within the number of those who by association and opportunity may have had intercourse (for otherwise the possible number of similar persons would leave open too many hypotheses). The propriety of the inference rests on the supposed physiological likelihood that traits may be transmitted by procreation. (c) A physiological principle, similar to the preceding one, but attended usually with more clearly marked results, tells us that the progeny of persons of one race receive from the progenitors certain corporal traits very different from the traits transmitted from a progenitor of another race. The presence of these peculiar traits of the race are therefore evidential to show a progenitor of the race bearing those traits. (d) That a shock received by the mother during pregnancy may leave a mark upon the child has long been a popular belief. Should it ever receive scientific sanction in any defined terms, the child's corporal mark after birth may be taken as evidential of the act which produced it. (e) That the existence of venereal disease in a husband is some evidence of an act of adultery on his part has always been conceded; it is merely a question of the strength of the explanatory circumstances. (f) Here also may be classed the evidence furnished by an animal's conduct in recognition of a physical fact. E.g. the trained bloodhound, after smelling a garment, may follow and point to a particular person; the strength of the inference depends on experience as to the trustworthiness of the animal's senses. Or, a dog or a bird may by conduct indicate recognition of a person said to be his owner; here the inference arises from experience as to the impressions made by familiarity with an owner and as to the certainty of interpretation of the conduct showing recognition.