now said. On the way home on Friday, the prosecutrix said that Mr. Cant had called her a drunkard, and she would fix him for it. She then seemed happy enough. Murphy corroborated this statement by declaring that the witness had told him of what he had done, after the time at which the communication had been made to Mr. Williams. A number of witnesses were then called, who gave the prisoner an excellent character, and Mr. Adolphus proceeded to reply. He rejoiced that Mr. Phillips had not attempted to cast any aspersion upon the character of the prosecutrix, and declared his belief that no attempt could be successfully made to show that she was unworthy of belief. The case depended entirely now upon the testimony of Edwards, and the simple question was, whether the jury would credit his statement in preference to that of the girl Bolland. No attempt was made to deny the advances which Cant had made to the girl on the morning of the 3d of October; and he asked the jury first, whether having made those advances, it was improbable that he should have followed them up; and secondly, whether they could believe a person who came forward and told such an improbable tale as Edwards. The testimony of the prosecutrix was materially sustained in many particulars that of Edwards received no important confirmation. True, he had gone to two persons to relate his story before he told it here, but at that time the prisoner was at large on bail; and it was to be observed that he might have done so for the express purpose of propping up an improbable story. He had said nothing about it at the police office, although he had heard the prosecutrix examined there; and the whole relation bore so much of the impress of fiction, that the jury, he was sure, would attach no credit to his declaration. The learned judge (Mr. Baron GURNEY) in summing up contrasted the statements of the prosecutrix and Edwards with great force, and having instructed the jury upon the law affecting the case, informing them that the offense of rape might have been committed upon the prosecutrix while she was in a state of insensibility, although no resistance had been made by her, left the whole case to them for decision. After about two hours' consideration, a verdict of "Guilty" was returned. The prisoner appeared somewhat astonished at this conclusion of the case, and loudly declared his innocence. Judgment of death was, however, recorded against him, and he was removed from the bar. The very peculiar circumstances of this case attracted a large share of public attention; and a feeling was commonly entertained that the verdict was founded upon an erroneous view of the facts of the case. The persons who adopted this impression lost no time in conveying their opinion to the Secretary of State for the Home Department; but in spite of their most strenuous exertions in favor of Mr. Cant, the Government declined to give a decision in opposition to that which had been arrived at by the jury, although it was resolved that the sentence of death should be changed for a punishment of transportation for life. In obedience to this determination Mr. Cant was subsequently sent out of the country. 365. CHICAGO & ALTON R. CO. v. GIBBONS. (1895. APPELLATE COURT OF ILLINOIS. 65 Ill. App. 550.). Mr. Justice HARKER delivered the action on the case to recover for the Opinion of the Court. This is an use of the widow and next of kin of Thomas Comeford, killed on a crossing of appellant's railroad at Dwight, while driving in front of freight cars being switched on a side track. There was a recovery for $2500. . . . The main ground upon which a reversal is asked is that the evidence fails to show any cause of action. The facts as disclosed by the record are as follows: Thomas Comeford was a farmer, living near Dwight and engaged in the milk business. It was his habit to serve his customers from a covered milk wagon drawn by two horses from house to house. While making his rounds on the evening of October 18th, 1894, he had occasion to cross appellant's railroad at its intersection with Chippewa street and Prairie avenue. Chippewa street runs east and west, Prairie avenue north and south, and they intersect at right angles where the railroad crosses them diagonally from southwest to northeast. It was near seven o'clock and quite dark. Comeford approached the railroad from the east on Chippewa street. Before reaching the track he discovered that a freight engine was switching cars, and stopped. The engine with several cars had just gone north over the crossing when the conductor, who was upon the ground assisting in the switching, signaled the engine to back south over the crossing. Just after the signal was given Comeford started his team over in a sharp trot. Before he could clear the side track on which the cars were moving, his wagon was caught and crushed and he was killed. Maiden testified that he stood talking with Comeford while the latter was waiting at the crossing; that he heard Comeford ask one of the railroad men if he could go across; that the man said, "Yes, get a hustle on yourself," and that Comeford then started on a trot, when he was struck. Several persons testified that the reputation of this witness for truthfulness was bad. No testimony was introduced to contradict the impeaching evidence, and no one seems to have seen Maiden on the ground. The main point in dispute is whether Comeford was invited to cross by some one of appellant's servants. It is insisted that he was, by the words, "Come on, get a move on you," and that Waugh, the conductor uttered them. If Waugh did thus invite him, then clearly appellant is liable. Under the evidence heard it is the only ground upon which a recovery can be based; for if Comeford, without such invitation, attempted to cross, his recklessness in so doing must debar a recovery. Charles Montague, a brakeman, assisting in the switching, testified that just before the accident, after the train had pulled north and was about to back south, he saw a man passing around the end of the train and he called out to him, "Hurry up, get a move on you," but there is no pretense that such remark was made to Comeford. Waugh and Montague, the conductor and brakeman who were controlling by signals the movements of the train at this crossing, both deny that any invitation was given Comeford to cross. They both testify that when he attempted to cross they called out loudly for him to stop and by waving their lanterns before the team tried to stop him. Two other witnesses, Daniel Morris and James Williams, testify to hearing the calls of Waugh and Montague for Comeford to stop and their efforts to keep him from crossing. Willams himself called out several times for him to stop. It is uncertain whether Comeford heard the calls to stop or saw the signals. He was almost lifeless when picked up and died within a few minutes after. He was sitting well back in his covered wagon and in the rapid movement of the team and wagon much noise was made. The clear preponderance of the testimony shows that the deceased was not invited to cross. Maiden was so thoroughly impeached and his testimony is so in conflict with the other testimony that we cannot believe him. The witnesses who testified to hearing the call of "Come on, get a move on you," do not pretend to say that it was made by Waugh or made to Comeford. We think it was the one made by Montague to the man he saw passing around the end of the train. In view of the uncertainty in the testimony of Webber, Patterson, and Boyer, and the positive denial of Waugh and Montague, and the testimony showing the efforts of Waugh and Montague to stop Comeford from crossing, we do not see how the verdict can stand. 366. HANS GROSS. Criminal Investigation. (transl. J. and J. C. Adam, 1907. Introd., p. XXV.) . . . It must be admitted that at the present day the value of the testimony of even a truthful witness is much overrated. The numberless errors in perceptions derived from the senses, the faults of memory, the far-reaching differences in human beings as regards sex, nature, culture, mood of the moment, health, passionate excitement, environment, all these things have so great an effect that we scarcely ever receive two quite similar accounts of one thing; and between what people really experience and what they confidently assert, we find only error heaped upon error. Out of the mouths of two witnesses we may arrive at the real truth, we may form for ourselves an idea of the circumstances of an occurrence and satisfy ourselves concerning it, but the evidence will seldom be true and material; and whoever goes more closely into the matter will not silence his conscience, even after listening to ten witnesses. Evil design and artful deception, mistakes, and errors, most of all the closing of the eyes and the belief that what is stated in evidence has really been seen, are characteristics of so very many witnesses, that absolutely unbiased testimony can hardly be imagined. If Criminal Psychology teaches us this much, so the other parts of the subject show us the value of facts, where they can be obtained, how they can be held fast and appraised - these things are just as important as to show what can be done with the facts when obtained. The trace of a crime discovered and turned to good account, a correct sketch be it ever so simple, a microscopic slide, a deciphered correspondence, a photograph of a person, or object, a tattooing, a restored piece of burnt paper, a careful survey, a thousand more material things are all examples of incorruptible, disinterested, and enduring testimony from which mistaken, inaccurate, and biased perceptions, as well as evil intention, perjury, and unlawful cooperation, are excluded. As the science of Criminal Investigation proceeds, oral testimony falls behind and the importance of realistic proof advances; "circumstances cannot lie," witnesses can and do. The upshot is that when the case comes for trial, we may call as many witnesses as we like, but the realistic or, as lawyers call them, circumstantial proofs, must be collected, compared, and arranged beforehand, so that the chief importance will attach not so much to the trial itself as to the Preliminary Inquiry. TITLE III (continued): TESTIMONIAL INTERPRETATION SUBTITLE D: CLASSIFICATION OF "IMPEACHING" OR 367. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.) A testimonial assertion comes, as evidence, in the same logical form as a circumstantial evidential fact (ante, No. 2); i.e., the form of proposed inference is : A asserts the existence of fact X; therefore, fact X exists. Hence, the problem of the cogency of this inference involves (as all other judicial inferences do) the question how many and what other hypotheses there are which explain away the evidential fact of A's assertion as due to some other cause than the existence of fact X (ante, No. 2). The evidential fact is simply that A makes the assertion; the problem is, Can it be explained. away, so that we need not accept fact X as the conclusion? In short, the whole process of Impeachment or Discrediting of a witness, as known to practitioners, is nothing but the general logical process of Explanation (ante, No. 2, § 5). So, too, the process of corroboration or support of a witness is the logical process of closing up the possible avenues of Explanation, and thus making the proposed inference more and more necessary and unavoidable. What, then, is the distinction, if any, between Explanation for circumstantial evidence and Explanation for testimonial evidence? Practically the distinction is a real one, — is in fact the chief basis for the time-honored division of all evidence into these two classes. Circumstantial evidence is heterogeneous and multifarious in its varieties; testimonial evidence is homogeneous. Circumstantial evidence has no single common feature, and few features partly in common; testimonial evidence has one great feature in common, and numerous large classes having common features. E.g. the finding of an old coat in an empty baker's wagon on a back lot in Halsted street, Cook county, - the presence of a broken oil can in a grain car on a sidetrack near Onondaga, New York, the lack of one ten-dollar bill in a roll of ten-dollar bills in a Louisville bank on Monday, January 4, - these are unique, isolated facts which have never happened before in precisely the same way; hence there are no generic truths or laws involved in our inference from them; it is purely empiric. But A's assertion that a street lamp was lighted at a given time or place is generically of a piece with hundreds of thousands of former evidential data, viz. it is a human assertion, resting for credit on human qualities. The human element in this testimony is an element in common, running through the vast mass of prior human testimonies. And even though human beings differ, yet their differences also are generic, each on a vast scale. Moral character, bias, experience, powers of perception in light and dark, powers of memory after a lapse of time, susceptibility to falsify under torture, these and other qualities. have been under observation in so many thousands of instances under varying conditions that we have built up generalizations (more or less correct or uniform), which pass for general truths (or at least, as working guides) on those subjects. In short, we possess a fund of general principles, applicable to specific instances of this class of evidence, and almost totally lacking for specific circumstantial evidence. It does not here matter whether those general principles are all sound or not; the point is that we believe them to be, and that we are always disposed to use them in our reasoning upon the probative value of specific human assertions. How does this bear upon the process of Impeachment or Explanation? In this way: Through this more or less explicit appeal to such general principles, most of our reasoning upon the credit of witnesses is put into the Deductive form; in which form these general principles or truths come out into the open as the avowed basis of our inference. Thus they can and must be tested for their validity; and thus, if well founded, they may serve as aids to the valuing of other testimony. These aids are generally lacking for circumstantial evidence; their possession is a great advantage in valuing testimonial evidence, and is its prime feature for practical purposes. 1. Classification of Impeaching Evidence. Since, then, the process of Impeachment or Explanation (i.e. the valuation of the discount to be made from the credit of a testimonial assertion) rests usually on a more or less explicit deduction from some generalized truth, and since the force of the Explanation will depend much on the number, nature, and correctness of 1 This distinction between the Deductive and the Empiric processes of inference is here so important that the following exposition of it will be useful: Professor ALFRED SIDGWICK, Fallacies; A View of Logic from the Practical Side (1884, 212 ff.): "The real foundation of Proof is always the recognition of resemblance and difference between things or events known and observed, and those which are on their trial, whether such recognition is based (1) on knowledge already reached and formulated in names or propositions or (2) on direct observation and experiment. In proportion as we openly and distinctly refer to known principles (already generalized knowledge) is Proof deductive; in proportion as we rapidly and somewhat dimly frame new principles for ourselves from the cases observed is Proof inductive, empirical, or (in its loosest form) analogical. . . . The whole history of the rise and growth of knowledge (it has been also already remarked) is a record of fruitful rivalry and interaction between two opposite processes. Observation of facts has demanded theory - statement of laws' or uniformities- -to explain, and even to name, the things and events observed; theory in its turn has always been more or less liable to purging criticism of 'fact.' . . . Strictly speaking, all Proof, so far as really proof, is deductive. That is to say, unless and until a supposed truth can be brought under the shadow of some more certain truth, it is self-supporting or circular. But there is yet a meaning in the distinction [between inductive and deductive], and, with certain limitations and apologies, I propose to make some use of it. - i.e. "Although the dependence of any Thesis on its Reason must be rationalized must have the underlying principle made clear - before the testing operation can be called complete, yet in regard to special dangers it makes considerable difference whether that principle is at first definitely apprehended or not, - whether (as it is commonly expressed) the Proof professes to rely (1) upon laws known or supposed to be true, or (2) upon facts observed or supposed to be observed. We must distinguish, then, as far as possible, between that kind of Proof which rests openly and distinctly upon already generalized knowledge - Deductive Proof - and that which rests upon what may be loosely described as 'isolated facts' or 'perception of resemblance and difference' or 'observation and experiment' or however the phrase may run, - that which is commonly known in its highest form as Inductive Proof, and in its lowest form as the Argument from Analogy. . . . However we choose to name the two different kinds of arguments, the distinction between them has a certain real importance, as already shown; and all that is intended to be done with it is to recognize that so far as the given argument may be seen to belong to one or the other class, so far we are already on the track of special dangers." |