Liability of innkeeper for the loss of the

goods of guest.

nation is at open war (c); so that robbery by a mob,
irresistible from their number, would be no excuse for
the bailee (d). This is an extremely hard presumption,
but one which public policy seems to require; and by
various modern statutes a common carrier can, in many
cases, limit his common law liabilities by notice (e).
So, in the case of innkeepers, where the goods of a
traveller brought into the inn are lost it is presumed
to be through negligence in the innkeeper, and casts on
him the onus of rebutting the presumption (f). But it
is no defence that they were stolen by the innkeeper's
servants, or other persons within the inn, for it is his
duty to provide honest servants and honest inmates, and
to exercise an exact vigilance over all persons coming
into his house as guests or otherwise (g). But, unlike
the carrier, he seems not to be liable for a loss in the case
of burglary or robbery by force from without the inn (h).
"Rigorous as this law is" (i: e. the law respecting inn-
keepers) "may seem," says Sir W. Jones (i)" and hard
as it may actually be in one or two particular instances,
it is founded on the great principle of public utility, to
which all private considerations ought to yield; for, tra-
vellers, who must be numerous in a rich and commercial
country, are obliged to rely almost implicitly on the

(c) Story, Bailm. § 489, 5th Ed. (d) Coggs v. Bernard, 2 L. Raym. 918, per Holt, C. J.

(e) See Story, Bailm. §§ 553573, 5th Ed.

(f) Story, Bailm. §§ 472, 473, 5th Ed.; Armistead v. White, 15 Jurist, 1010.

(g) Story, Bailm. § 471, 5th Ed. (h) Id. § 472, 5th Ed. In Richmond v. Smith, 8 B. & C. 9, Bayley, J., says, "It appears to me that an innkeeper's liability very closely resembles that of a carrier. He is primâ facie liable

for any loss not occasioned by
the act of God or the king's ene-
mies; although he may be ex-
onerated where the guest chooses
to have his goods under his own
care." The correctness of this
analogy between innkeepers and
carriers was, however, doubted by
the Court of Queen's Bench, in
the subsequent case of Dawson v.
Chamney, 5 Q B. 164; 7 Jur.
1037, which seems to corroborate
the view of Mr. Justice Story.
(i) Jones on Bailments, 95, 96,
4th Ed.

good faith of innholders, whose education and morals are usually none of the best, and who might have frequent opportunities of associating with ruffians or pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them." In this, as in many other instances of legal presumption, we may detect the application of the maxim, "Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt (k).”

SECTION III.

PRESUMPTIONS AND PRESUMPTIVE EVIDENCE IN CRI

MINAL LAW.

§ 416. The subject of presumptions and presumptive Design of this evidence in criminal law requires a separate consideration.

In the present section we accordingly propose to treat of

1. Presumptions in criminal law.

2. Presumptive proof in criminal cases.

3. The usual forms of inculpatory presumptive evidence in criminal proceedings.

section.

SUB-SECTION I.

PRESUMPTIONS IN CRIMINAL LAW.

§ 417. The introduction of legal presumptions into Legal precriminal jurisprudence presents a question of some diffi- sumptions in criminal jurisculty. Although no person ought to be condemned in prudence. a court of justice unless the tribunal really and actually believe in his guilt, yet even here the principle of legal presumption may, with due discretion, be advantageously (k) Co. Litt. 70 b.

K K

Criminal intent presumed from certain acts.

resorted to for the protection alike of the community and the accused. We accordingly find that not only are the general presumptions of law recognized in criminal justice, but that it has peculiar presumptions of its own. The universal presumption of acquaintance with the penal law (7), and the maxim "res judicata pro veritate accipitur (m)," are there in full force. A person who has once been tried for an offence under circumstances where his safety was in jeopardy by the proceedings cannot, if acquitted, be ever tried again for that offence, whatever new arguments to prove his guilt may be discovered, or whatever fresh proofs of it may come to light.

§ 418. A criminal intention is often presumed from acts which, morally speaking, are susceptible of but one interpretation. When for instance a party is proved to have laid poison for another, or deliberately struck at him with a deadly weapon, or discharged loaded firearms at him, it would be absurd to require the prosecution to shew that he intended death or bodily harm to that person. So where a baker delivered adulterated bread for the use of a public asylum, it was held unnecessary to allege that he intended it to be eaten, as the law would imply that from the delivery (n). The setting fire to a building is evidence of an intent to injure the owner, although no motive for the act be shewn (o); and the uttering a forged document is conclusive of an intent to defraud the person who would naturally be affected by it, which inference is not removed by that party swearing that he believes the accused had no such intention (p). And now by 14 & 15 Vict. c. 100, s. 8, it is enacted that

(1) Introd. sect. 2, § 45; and supra, sect. 2, sub-sect. 1.

(m) Introd. sect. 2, § 44; and infra, ch. 9.

11.

(n) R. v. Dixon, 3 Mau. & S.

(0) R. v. Farrington, R. & R. C. C. 207.

(p) R. v. Sheppard, R. & R.

C. C. 169. See also R. v. Mazagora, Id. 291; R. v. Nash, 2 Den, C. C. 493.

on the trial of any indictment for forging, uttering, offering, disposing of, or putting off any instrument whatsoever, or for obtaining or attempting to obtain any property by false pretences, it shall not be necessary to prove an intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged with intent to defraud." Where a party deliberately publishes defamatory matter malice will be presumed (g). In such cases res ipsa in se dolum habet (r),-the facts speak for themselves. Presumptions of this kind are so conformable to reason that moral conviction and legal proof are here in perfect harmony. But the safety of society, joined to the difficulty of proving psychological facts (s), renders imperatively necessary a presumption which may seem severe; viz. that which casts on the accused the onus of justifying or explaining certain acts primâ facie illegal. It is partly on this principle that sanity is presumed in preference to innocence (t). So, a party who is proved to have killed another is presumed in the first instance to have done it maliciously, or at least unjustifiably, and consequently all circumstances of justification or extenuation are to be made out by the accused, unless they appear from the evidence adduced against him (u).

(q) Haire v. Wilson, 9 B. & C. 643.

(r) Bonnier, Traité des Preuves, §§ 676, 677.

(s) "Comen erudition est que l'entent d'un home ne serra trie, car le Diable n'ad conusance de l'entent de home;" per Brian, C. J., P. 17 Ed. IV. 2 A. pl. 2.

(u) Fost. Cr. Law, 255, 290. It may be a question, whether this presumption holds in cases of suicide, where the only fact established before a coroner's jury is that the deceased put a period to his own existence, and there is no evidence as to the state of his mind at the time. It is submitted that the presumption does not apply in such cases, for the following reasons: First, the principle fails. The presumption of malice from slaying is only a re

(t) 2 Ev. Poth. 332; Answer of the Judges to the House of Lords, 8 Scott, N. R. 601; 1 Car. & K. 134, 135. See supra, sect. 1, sub-sect. 3, § 321.

Criminal intent
transferred
from one act to
another.

Presumption of

guilt.

§ 419. A criminal intent is sometimes transferred by law from one act to another, the maxim being "In criminalibus sufficit generalis malitia intentionis cum facto paris gradûs (u)." A., maliciously discharging a gun at B., kills C.; A. is guilty of murder, for the malice is transferred from B. to C.(x) And the same holds where poison laid for C. is accidentally taken by D.(y) It is on this principle that a party who accidentally kills himself in the attempt to murder another is deemed felo de se (z).

§ 420. In some cases the law attaches to acts criminal higher degree of in themselves a degree of guilt higher than that to which they are naturally entitled. It is on this principle that the entering into measures for deposing or imprisoning the king is held, (if it would be so held at the present day,) an overt act of compassing his death (a).

Statutory presumptions in criminal law.

§ 421. Many artificial presumptions have from time

buttable presumption, adopted on
the ground that to call on a living
person to justify a homicide may
be very advisable on grounds of
public policy, and can work no
hardship to the accused: - an
argument wholly inapplicable to
the case of a person who, being no
more, cannot be called on to jus-
tify or explain anything. Secondly,
presumptions ought to be based
on what most usually and gene-
rally exists. In many, probably
most, cases of suicide mental
alienation, in some form or other,
is present; in murder it is quite
otherwise. Thirdly, the man who
commits murder under the im-
pression that he may do so with
impunity has only moral and re-
ligious feelings to subdue; he

who destroys himself has also to struggle against the primary law of nature-self-preservation. Fourthly, and lastly, there seems no good reason why the law should in this case lose sight of its own maxim, "Nemo præsumitur esse immemor suæ æternæ salutis, et maximè in articulo mortis." (6 Co. 76 a.) The laws of some countries, we believe, have established it as a præsumptio juris et de jure that all

suicides are insane.

(u) Bacon, Max. Law, Reg. 15.
(a) 1 East, P. C. 230.
(y) Plowd. 474; 1 East, P. C.

230.

(z) 1 Hale, P. C. 413; 1 East, P. C. 230.

(a) Fost. Cr. Law, 195—6.