assisting in the work, and remained with him until the cars were running again over the track; that he examined the track and the rails, testing the rail carefully with a hammer; that there was nothing wrong with either; that he and Lynch gauged the track and found it. level; that no tie was removed, nor was a tie put in the track; that it was not necessary to put one in. That the cars were hoisted on the track and the track at once used for the passage of cars as before. George Courdice, engineer of the mine, and Comack Cunningham, official state inspector of mines, officially examined the track at the place in question the next day after the appellee was injured. Both testified that the track and the rails were in good and safe condition; that they saw nothing to indicate that a tie had been placed in the track, and that if such had been done, indications of the work would have been found; that there were no such indications. Both join in the opinion that no tie had been placed in the track. The state inspector, with a lamp and hammer, examined carefully the rail and

spikes by which it was attached to the ties, and could find nothing indicating that any change whatever had been made in the track, the rail, or the ties.

We do not think that, under this evidence, the jury were warranted in finding that a tie was placed in the track, as claimed. Such a conclusion seems to us to be manifestly against the greater weight of the testimony. It would appear more reasonable to conclude that Burns, in the darkness prevailing in the entry, mistook for a tie the guage which Lynch and Hickey were using, than to conclude that both Lynch and Hickey willfully and knowingly testified falsely, and that they did break the ground and place a tie in the track, in such manner as to leave no discernible trace of the work. If this view is correct, the evidence fails to show that the injury received by the appellee was occasioned by the failure of the appellant company to discharge its duty toward the appellee as its employee in the respect charged in the declaration. In the absence of such proof there can be no recovery.

146. MOUDY v. SNIDER. [Printed post, as No. 382.]

Topic 2. Mental Traces

147. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)1 (1) General Principle. The struggle of a victim for his life, and the act of taking his life, may leave upon the perpetrator indelible traces of blood, wounds, or rent clothing, which point back to the deed as done by him; these traces come from a mechanical contact with the body, weapons, and other things involved in the deed, and they remain upon him or are divested from him by a mechanical process. But a deed may also leave traces upon the doer through other than a mechanical process, i.e. through a mental, moral, or psychological process. These traces may be as significant in their way as the others, perhaps more so; and they may be equally relevant evidentially to show their bearer to be the doer of the act. These traces, like those of the other sorts, may be employed either affirmatively or negatively; [Adapted from the same author's Treatise on Evidence. (1905. Vol. I, §§ 172-177, in part.)]

the presence of such a trace may be used as indicating the doing of the act by the person bearing it; and the absence of the trace may be used as indicating the not doing it by the person not bearing the trace. The traces of this mental or psychological sort will be some form of a mental condition, memory, belief, consciousness, knowledge, or whatever other name may be more usual and appropriate.

-

How to evidence this mental condition is a - by conduct or the like second question. Here the inference is to a mental condition, usually from conduct as evidence. This falls under Title III, Human Condition, Subtitle C, Knowledge and Consciousness (ante, No. 30). This second sort of inference, in its present aspect, is seldom forced into obviousness. We are apt to infer, e.g. from an accused's flight to his guilt, forgetting that there are two steps of inferences, one from flight to a consciousness of guilt, and the other from consciousness to actual guilt of the past deed in issue. The cases usually present the evidence with the two inferences merged. In the study of the subject, they must be separately analyzed.

It is in criminal cases that the present class of inferences is most common. But in civil cases it may become equally valid; the following are some of the principal forms:

(2) Civil Cases. (a) Legitimacy as evidenced by Parents' Conduct. Upon an issue of the legitimacy of a child, the conduct of the parents towards the child is admissible on the present principle, as involving an inference from the parents' conduct to their belief as to the fact on which the legitimacy depends (time of birth, time of marriage, identity of the child, and the like), and then from that belief to the fact itself. Such evidence has traditionally been used since Solomon's day:

The Judgment of Solomon, (First Book of the Kings, III, 16), “Then came there two women, that were harlots, unto the king, and stood before him. And the one woman said, O my lord, I and this woman dwell in one house; and I was delivered of a child with her in the house. And it came to pass the third day after that I was delivered, that this woman was delivered also: and we were together; there was no stranger with us in the house, save we two in the house. And this woman's child died in the night, because she overlaid it. And she arose at midnight, and took my son from beside me, while thy handmaid slept, and laid it in her bosom, and laid her dead child in my bosom. And when I rose in the morning to give my child suck, behold, it was dead: but when I had considered it in the morning, behold, it was not my son, which I did bear. And the other woman said, Nay; but the living is my son, and the dead is thy son. And this said, No, but the dead is thy son, and this is my son. Thus they spake before the king. Then said the king, The one saith, This is my son that liveth, and thy son is the dead; and the other saith, Nay; but thy son is the dead, and my son is the living. And the king said, Bring me a sword. And they brought a sword before the king. And the king said, Divide the living child in two, and give half to the one, and half to the other. Then spake the woman whose the living child was unto the king, for her bowels yearned upon her son, and she said, O my lord, give her the living child, and in nowise slay it. But the other said, Let it be neither mine nor thine, but divide it. Then the king answered and said, Give her the living child, and in nowise slay it she is the mother thereof. And all Israel heard of the judgment which the king had judged; and they feared the king: for they saw that the wisdom of God was in him, to do judgment."

(b) Marriage, as evidenced by the Parties' Conduct. A man and a woman cohabiting as husband and wife show by their conduct that they believe themselves to have made a contract of marriage, ceremonial or informal, at

The con

some prior time. This is the commonest evidence of marriage. duct will vary in its significance; but the inference is obviously of the present sort.

(c) Personality, as evidenced by Belief and Knowledge of Personal Doings, Family History, and the Like. On an issue of personal identity, the present principle finds one of its simplest and commonest applications. The situation is this: Whether X is A is the fact in issue; A is shown to have done a certain act, to have had certain marked and individual experiences; if X did this act or had this experience, he probably is A; thus, as indicating whether X did or had it, the fact of his present belief or consciousness or recollection becomes relevant, and therefore his conduct as evidencing that belief. This sort of evidence, of the commonest use in the affairs of everyday life, has of course its weaknesses; the fact of X's belief or recollection of the act may be explained away as due, not to his having actually done the act, but to his having heard of it from others; while the fact of his non-recollection may also be explainable as due merely to that failure of memory which increases in proportion to the lapse of time and the insignificance of the act. Thus the strength of the inference is proportionate, on the one hand (when he claims to recollect), to the improbability of the person's having learned of the act from others, and, on the other hand (when he fails to recollect), to the improbability of a forgetfulness of the particular act. The theory of this sort of evidence, and its application, are well expounded in that marvelous feat of judicial skill and endurance, the charge of the presiding judge in the second Tichborne trial:

COCKBURN, C. J., in R. v. CASTRO, alias ORTON, alias TICHBORNE. (1874. Official Report of the Charge, I, 16; II, 327,403.) [The claimant to the rich Tichborne estate purported to be Roger, the long-lost son, who had been given up for dead, after the news of his loss at sea, some twenty years before, in a vessel last heard of off the coast of South America; Roger had been brought up a Catholic, and attended a Catholic school at Stonyhurst, but had spent most of his youth in France, where he became more fluent in French than in English; he afterwards served awhile in the army; he was some twenty-five years of age when he left on his travels. The claimant had lived for most of his manhood life in the backwoods of Australia; and was said to be really Arthur Orton, a butcher of Wapping. At the civil trial for the title to the estates, in 1871, the claimant's case finally broke down and was not submitted to the jury; he was then, in 1874, put on trial for perjury and convicted; in this trial he was not competent as a witness, but his testimony at the civil trial was used against him; and it is in this cross-examination that most of the instances referred to by the Chief Justice were found. On the claimant's cross-examination by Sir J. Coleridge, it appeared that though Roger had been three years at Stonyhurst School and lived on the quadrangle, the claimant thought that the quadrangle was “a part of a building"; that, though Roger had studied Latin and Greek, the claimant replied, when asked, "Was Cæsar in verse or prose,” “I don't recollect"; and "Was Cæsar a Latin writer or a Greek writer?" "I can't say; I suppose it was Greek"; and when shown a copy of Virgil, “It appears to me to be Greek"; and when asked, "Is mathematics the same thing as chemistry?" "I have no recollection"; and "Has Euclid anything to do with mathematics?" "I don't know"; and when asked, "What is physiology?" "The formation of the head, I believe"; and when asked the meaning of the Stonyhurst motto, "Laus Deo Semper," answered, "They mean, "The laws of God forever.'" A list of Roger's library was read to him; he thought that the "Theatre de P. Corneille" was written "by one of the Fathers"; asked as to the "Life of John Bunyan," whether he was "a sportsman, a general, a bishop, a master of fox hounds, or a prize fighter," the claimant said it was "difficult to give an answer

to such a question." Taking up these instances, the Chief Justice commented as follows:]

"Although outward appearance may deceive, yet if you are acquainted with what has passed through the mind of a man, and another man were to come forward and say, 'I am that man,' you have only to ask him as to the events of the other man's life, those at least which must have remained impressed on his memory, and which, therefore, if he be the man, he must of necessity retain, to enable him to demonstrate that he is the man he says he is, or to enable you to pronounce that he is not. If his memory is not the memory of the man he seeks to personate, if he does not know the events of that man's life, if he does not know what thoughts, what feelings, what emotions, that man's mind underwent, he cannot be the individual. ... Now you are in danger, in an inquiry of this nature, of being led into error by one of two alternatives. You may require too much; you may be satisfied with too little. You may require too much if you expect a man . . . to recollect every trifling individual occurrence of his life. . . . But there are things which it is next to impossible any one should forget, and in respect of those things we are entitled to require that a man should exhibit some knowledge when you know that they happened to a person whom he represents himself to be. . . . You must consider what it is you may fairly and reasonably and justly expect that a man should recollect. . . . Again. you may . . . also be satisfied with too little if you are led to accept, as true genuine knowledge, that which is not the honest production of the unaided memory, but knowledge derived from extraneous and adventitious sources. This is the danger into which persons too credulous have before now been led by imposture. ... What, then, are the things which would have impressed themselves on the mind and memory of a boy growing up into the period of adult life? For the recollections of boyhood still cling to us in after years with the freshness of the age to which they belong, and, though less vivid, even those of childhood do not wholly disappear. . . [After the recital of various instances, the cross-examination is then quoted]: 'Do you recollect [from your studies] whether Cæsar was written in verse or prose? No, I do not. -... Did you ever do any Cæsar?--I do not remember whether I did Is Cæsar a Latin writer or a Greek?' . . . To which comes the memorable answer, 'I should suppose Cæsar is Greek.' . . . Cæsar a Greek! Would Roger, do you think, have made that mistake? When Roger read Cæsar, did he believe he was reading Latin, or did he believe he was reading Greek? Is that a thing about which a person could make a mistake? Do you think that is what a man would be likely to forget?"

or not.

(d) Contracts, Deeds, Appointments to Office, Etc. The same mode of reasoning may, of course, upon occasion, be resorted to in evidencing the execution of a contract or the doing of any other important act. In its application to contracts and deeds, the principle is probably oftener applied than the number of recorded rulings indicates :

ERLE, J., in R. v. FORDERINGBRIDGE. (1858. E. B. & E. 678, 684; admitting conduct of master and apprentice to show the previous execution of an indenture of apprenticeship): "The execution here is whether upon this evidence a reasonable man would infer that the man had been bound apprentice.... The presumption of the existence of the deed [may be made] from the circumstances. . . . The relations of landlord and tenant, of partnership, of marriages, are frequently presumed from the conduct of the parties being consistent with that state of things, and more consistent with that than with any other.”

148.

ALEXANDER M. BURRILL.

A Treatise on Circumstantial Evidence. (1868. pp. 420, 459, 465, 555, 567.) I. That the legal consequences of crime, the loss of character, liberty, and life, attached to their commission, are rarely contemplated in their true light beforehand, has been remarked under a former head. It is after the criminal act (especially if of a high grade) has been done, and when the author of it (if perchance touched with a feeling of penitence) finds that it cannot possibly be undone, and that his connection with the facts of the transaction is irrevocably fixed, that the impending consequences flash upon his mind with all their force. They are now not contemplated as ulterior and remote contingencies and possibilities, but seen close at hand, with no seducing or absorbing objects to intercept the view; and, thus seen, they have power to agitate the natures of most men thoroughly, and to occupy their thoughts exclusively. To avoid these consequences, by the concealment of either the crime, or the criminal, if not of both, is now a sort of natural impulse, which, observation shows, is almost universally obeyed. . . .

But even in cases where, apparently, the most effectual precautions for concealment have been taken, the idea of discovery may be said to haunt the mind, and the fear of discovery not unfrequently to agitate it, in spite of all determination to assume an exterior of calmness or indifference. Hence, where a case of suspected crime has become the subject of judicial investigation, . . . the idea now converted into the prospect of discovery, and that becoming a more and more probable event, as fact after fact is brought to light, naturally, and almost necessarily, fills the mind with alarm; particularly where the criminal finds his own person drawn within the sphere of the investigation.

Destruction, Suppression, and Eloignment of Evidence. Among the most common expedients resorted to for the purpose of hiding a crime are: the destruction or concealment of the subject of the crime itself; such as the concealment of a dead body, by interment, or otherwise; the removal of it to a distant spot, without burial; the mutilation or destruction of it, where concealment of the entire body is impracticable; concealment or destruction of the clothing of the body, or other articles upon it, by which the crime might be traced out; concealment or destruction of the instrument of the crime; removal of the physical marks and traces of the crime; concealment of the scene of the crime, and of the criminal himself, while engaged in such work of concealment or destruction; destruction of the scene, the subject and the evidence of the crime, by one single act of arson; concealment of the fruits of the crime; getting witnesses out of the way, and the like.

The presumption arising from any of these acts of destruction, suppression, or eloignment of evidence, where they have been fastened upon the accused by satisfactory proof, is always unfavorable. Assuming that an act of this kind was done with a motive, the logical inference is that it was done in order to get rid of something which would otherwise prejudice the actor. Hence, the conclusion is warranted, that the subject of action, if presented in evidence, would, in fact, operate against him. The principle of this presumption is a general one, applicable in civil as well as criminal cases; and is embodied in the well-known maxim, Omnia præsumuntur contra spoliatorem. It must be borne in mind, however, that the getting rid of evidence,