in the tissues. He experimented on a dog, giving it white arsenic and potassium chlorate in excess, the latter being a diuretic he subsequently found arsenic in the dog's tissues. Various medical witnesses averred that the symptoms were not those of slow poisoning, but of dysentery. The jury believed the chemical evidence for the prosecution and found the prisoner guilty. STEPHEN, J., comments somewhat fully on this case in his "Criminal Law of England," p. 305. He remarks that Taylor's credit was attacked because on the copper gauze being dissolved by the potassium chlorate, and arsenic liberated, Taylor assumed that the arsenic came from the liquid being tested. The defense tried to draw the inference that his whole evidence was unreliable. But examining that evidence, altogether 77 experiments were made, in four no copper was dissolved and no arsenic was found. In two tests no copper was dissolved and arsenic was found. In one test, the copper was dissolved and arsenic from the copper was found, thus showing that the test will reveal arsenic. The 74 experiments show that when there is no solution of copper, the test does not reveal arsenic unless it is free in the liquid, as distinct from being combined with the copper. A second argument was based on Richardson's evidence, that arsenic must be found in the tissues in a case of arsenical poisoning. In the judge's opinion, absence of arsenic at death does not show that no arsenic was given during life, but that none was given for the last two or three days of life. The third argument of the defense was that Taylor found antimony and arsenic present in the medicines, which contained bismuth, and therefore in that way such arsenic as was found could be accounted for. An attack was made on the credit of the witnesses for the defense, on the ground that they had also given evidence for the defense at Palmer's trial. Richardson then deposed that Cook's symptoms were those of angina pectoris, and Rogers that if death were due to strychnine, that poison ought to have been found in the body. After the sentence, petitions and other documents were sent to the judge (L. C. Baron Pollock), among them being a communication from Drs. Baly and Jenner on the medical evidence, they regarded the symptoms and post-mortem appearances as ambiguous, and thought they might be due either to natural causes or poison. The judge recommended the Home Secretary to refer the matter to the judgment of some independent medical and scientific persons selected by himself. Herapath meanwhile had written a letter to "The Times" asserting that Taylor had extracted more arsenic from the potassium chlorate and copper than could have been set free by the solution of the copper. The Home Secretary sent the papers to Sir Benjamin Brodie, the eminent surgeon, who reported on the materials supplied him, that there were six reasons for believing Smethurst guilty, and eight for doubting the same, and concluded — “I own that the impression on my mind is that there is not absolute and complete evidence of Smethurst's guilt." The Home Secretary thereon granted a free pardon. R. v. Maybrick-On the 31st July, 1889, Florence Maybrick was tried at the Liverpool Assizes for the murder of James Maybrick, her husband, who died on the 11th May, 1889. The alleged motive was intimacy with a man named Brierley. The symptoms of the fatal illness were agreed to be those of gastritis or some similar disease. According to the theory of the prosecution the Dif 1 Defense attacks the evidence for the prosecution on the ground that absence of arsenic from the tissues is conclusive evidence of absence of slow arsenical poisoning. ferent argument and conclusion based on facts as advanced by the prosecution. gastritis was due to administration of arsenic. According to the defense it was due to irritant food or cold through wetting. Chemical Evidence for the Prosecution. Nokes, pharmaceutical chemist, had sold to the prisoner some fly papers con-taining arsenic, also at the time of purchases she paid for them, although she had a running account. They were delivered in the ordinary way by the boy. Hanson, pharmaceutical chemist, had also sold arsenical fly papers to the prisoner under the same circumstances of paying at the time, although she had a running account. At the same time he sold her a lotion containing benzoin and elder flower water, being the usual ingredients of a skin lotion. These mixed with the arsenic would make a good combination as a cosmetic.1 Humphreys, surgeon, attended the deceased during his last illness, and gave him Fowler's Solution on 5th or 6th May. This contains arsenic, the total quantity thus administered was grain. On the 9th he applied Reinsch's test to the fæces and urine results negative; but he admitted inexperience in chemical testing, and hence possibly failed in detecting the presence of arsenic. Davis, analyst, deposed that a bottle of Valentine's Meat Juice handed to him contained grain of arsenic in solution. The normal preparation contained no arsenic. Some arsenic was present in the glass of the bottle, but less than in that of another bottle, the contents of which were arsenic free. He found no arsenic in the stomach or spleen, but it was present in the liver and intestines. A number of bottles present in the house con 3 tained arsenic, as did also a box labeled "poison for cats. One bottle was filled with a saturated solution of arsenic. A tumbler in a hat-box contained milk in which was a handkerchief. This milk contained arsenic equal to from 20 to 30 grains in the whole tumbler. He found arsenic in a jug in which some lunch for the deceased had been taken to his office. A bottle of glycerin in the lavatory contained arsenic, as did also one of deceased's medicine bottles. Stock bottles of the drugs from which the medicine was dispensed contained no arsenic.3 The fly papers contained arsenic. Witness produced tubes containing the characteristic sublimate from Reinsch's test, made respectively on the kidneys and liver. He calculated the quantity in the entire liver to be grain. The amount found was half the smallest amount that the witness had ever found in a fatal case of arsenic poisoning. Stevenson, analyst, stated that he had examined the contents of the stomach, and found no arsenic. In the intestines he found about grain of arsenic, and some arsenic in the kidneys. On examining the liver, 4 oz. yielded 0.027 grain of arsenic, equal to grain (0.33) for the whole liver, which weighed 3 lbs. On making a duplicate test, 8 oz. yielded 0.049 grain equal to 0.29 grain of arsenic for the whole liver. "The body at the time of death probably contained approximately a fatal dose of arsenic." He did not macerate the whole liver into one bulk. For the Defense. Various witnesses stated that the deceased was in the habit of taking arsenic as a medicine. In particular, Stanton, 1 Evidence of purchase of arsenic under suspicious circumstances, but one witness admitted that the arsenic would make a good cosmetic. The use as a cosmetic might explain the secrecy of the purchase. The evidence here given had evidently been prepared in anticipation of a defense that the arsenic in the meat juice had been derived from the glass of the bottle. * Interesting as a tracing back of the history of the medicine, in order to prove that it contained no arsenic when originally prepared. A duplicate test served the double purpose of confirming the accuracy of the first test, and also that the poison was fairly evenly distributed throughout the whole liver. ⚫ Evidently an answer given to a question foreshadowing one of the lines of defense. a pharmaceutical chemist, sold the deceased a "pick-me-up" containing Fowler's Solution, 7 drops to the dose, sometimes as often as five times a day. The last occasion was in November, 1887; the quantity in the day was nearly grain of arsenic. On going away from home he took with him 8 or 16 dose bottles. Arsenic is used as an aphrodisiac.1 Tidy, chemist, was of opinion that the symptoms and appearances were not those of arsenical poisoning. Stevenson assumed the quantity present to be 0.3 grain, but witness did not think that warranted. It is not fair to infer that all the intestines or liver contained the same proportion of arsenic as a portion. They should have been mashed up, and a uniform sample taken.2 Witness calculated the total quantity of arsenic found to be 0.082 grain.3 This does not point to over administration. He cited various medicinal cases. No. 1, arsenic was given three months before death, there was found 0.028 grain of arsenic. In No. 2, arsenic was given five months before death, there was found in the liver 0.174 grain of arsenic. In these cases there was no suggestion of arsenical poisoning. Paul, examiner in Toxicology, Victoria University, had examined similar pans to that mentioned by Davis, and found arsenic in the glaze, which arsenic was set free by acids. Prisoner's Statement. She had used a cosmetic containing arsenic from fly-papers. Her husband had been taking a powder, this she mixed in with the meat juice at his request. The jury found the prisoner guilty. (Times Report.) 1 Evidence of the deceased being an habitual arsenic taker. 5 2 Goes to prove that the sample did not adequately represent the whole of the organ. 3 The calculation by which the witness arrived at the figure 0.082 grain is not very clear. If the amounts found in the two portions analyzed by Stevenson be added together the sum is 0.076, which is only 0.006 grain short of Tidy's estimated total. That 12 oz. of the liver should contain 0.076 grain, and the remaining 2 lb. 4 oz. only 0.006 grain, is exceedingly improbable. It will be remembered that Davis found arsenic in the food sent to the deceased's office for his lunch. This is an attempt to prove that such arsenic was derived from the glaze of the containing vessel, from which it could be set free by any acids in the food. 5 This was an explanation of the reason for purchasing the fly papers. Compare with Note 1. This was an explanation of the reason why arsenic was found in the meat juice. It would be strengthened by the evidence that the deceased was an habitual arsenic taker. TITLE II: EVIDENCE TO PROVE IDENTITY 14. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)1 Other Principles discriminated. In evidencing that proposition commonly spoken of as Identity, there is apt to be a confusion in thought with two other processes which are really not germane. (1) It is perhaps natural to apply the notion of Identity or Identification to the general process of proving an accused person guilty. He is said to be "identified" as the murderer or the thief; i.e. the whole process of proof and the whole mass of evidence is thought of as involving the "identity" of the accused and the guilty person. From this point of view, all distinctions between the various sorts of evidence heretofore analyzed are merged and become useless. That the accused planned the act, had a motive for the act, bore traces of the act, and so forth, are all merely "identifying" facts; because the real guilty person also must have planned, had a motive, bore traces, and the like. Such an indiscriminate confusion and merger of all sorts of probative elements naturally excites suspicion of the propriety of the term "identification" as thus applied. In truth, there is no propriety in it. The very looseness of the term shows that, since the various sorts of evidence thus covered by it may be further analyzed and separated, there would remain no specific need for the term "identity" and no specific class of evidence to which it was distinctively appropriate. If this were the true meaning of the term, it might be discarded altogether as superfluous. term does have a distinctive application. (2) In arguing from subsequent traces of an act to the doing of an act, the argument of Identity sometimes is necessarily involved and needs to be distinguished. Suppose, for example, to prove a murder, evidence is offered that a gun found three days later in the defendant's possession is exactly fitted by a bullet found in the body of the deceased. Here there are two inferences involved: (a) “Because the defendant possessed the gun when found later, therefore he probably possessed it at the time"; this inference is always open to doubt, since the defendant may have borrowed the gun since the killing, or some third person may have surreptitiously placed the gun on his premises; (b) “Because the gun, thus possessed by the defendant at the time of the killing, fitted the bullet found in the body, therefore the defendant's gun must be the one that shot the deceased"; here the inference is open to doubt because the bullet may fit other guns, i.e. the fitting of the bullet is not a necessary mark of the identity of the gun that shot it. Now the first inference is an inference from subsequent traces to the former act of possession or use of the gun; no question of identity is involved. It is the second inference that involves the element of the identity. This is why much of the evidence herein termed Traces, as pointing back to an Act (post, No. 139), may incidentally involve a question of Identity. 1 Adapted from the same author's Treatise on Evidence (1905. Vol. I, §§ 410, 411). General Principle of Identity Evidence. Identity may be thought of as a quality of a person or thing, - the quality of sameness with another person or thing. The essential assumption is that two persons or things are thought of as existing, and that the one is alleged, because of common features, to be the same as the other. The process of inference thus has two necessary elements: (1) it is a Concomitant one, in its logical scheme (ante, No. 3); and (2) it operates by comparing common marks, found to exist in the two supposed separate objects of thought, with reference to the possibility of their being the same. It follows that its force depends on the necessariness of the association between the mark and a single object. Where a certain circumstance, feature, or mark, may commonly be found associated with a large number of objects, the presence of that feature or mark in two supposed objects is little indication of their identity, because, on the general principle of Relevancy (ante, No. 2, § 2), the other conceivable hypotheses are so numerous, i.e. the objects that possess that mark are numerous and therefore two of them possessing it may well be different. But where the objects possessing the mark are only one or a few, and the mark is found in two supposed instances, the chances of the two being different are nil or are comparatively small. Hence, in the process of identification of two supposed objects, by a common mark, the force of the inference depends on the degree of necessariness of association of that mark with a single object. For simplicity's sake, the evidential circumstance may thus be spoken of as "a mark." But in practice it rarely occurs that the evidential mark is a single circumstance. The evidencing feature is usually a group of circumstances, which as a whole constitute a feature capable of being associated with a single object. Rarely can one circumstance alone be so inherently peculiar to a single object. It is by adding circumstance to circumstance that we obtain a composite feature or mark which as a whole cannot be supposed to be associated with more than a single object. The process of constructing an inference of identification thus consists usually in adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together can conceivably coexist in a single object only. Each additional circumstance reduces the chances of there being more than one object so associated. The process thus corresponds accurately to the general principle of Relevancy (described ante, No. 2, §§ 2−4). It may be illustrated by the ordinary case of identification by name. Suppose there existed a parent named John Smith, whose heirs are sought; and there is also a claimant whose parent's name was John Smith. The name John Smith is associated with so many persons that the chances of two supposed persons of that name being different are too numerous to allow us to consider the common mark as having appreciable probative value. But these chances may be diminished by adding other common circumstances going to form the common mark. Add, for instance, another name circumstance, as that the name of each supposed person was John Barebones Bonaparte Smith; here the chances of there being two persons of that name, in any district however large, are instantly reduced to a minimum. Or, add a circumstance of locality, for example, that each of the supposed persons lived in a particular village, or in a particular block of a certain street, or in a particular house; here, again, the chances are reduced in varying degrees in each instance. Or, add a circumstance of family, for example, that each of the persons had -- |