Horne v. The State.

a series of other facts, which, by experience, have been found so associated with the fact in question, that, in the relation of cause and effect, they lead to a satisfactory and certain conclusion.. Circumstantial evidence is founded on experience and observed facts and coincidences, establishing a connection between the known and proved facts and the facts sought to be proved.

"From this view, it is manifest that great care and caution ought to be used in drawing inferences from facts proved; it must be a fair and natural, and not a forced or artificial, conclusion.

"The common law appeals to the plain dictates of common experience and sound judgment, and the inference to be drawn from the facts must be a reasonable and natural one, and, to a moral certainty, a certain one; it is not sufficient that it is probable only, it must be reasonably and morally certain. The next consideration is, that each fact which is necessary to the conclusion must be distinctly and independently proved by competent evidence; I say, every fact necessary to the [*49] conclusion, because it may and often does happen that, in making out a case on circumstantial evidence, many facts are given in evidence, not because they are necessary to the conclusion sought to be proved, but to show that they are consistent with it and not repugnant, and go to rebut any contrary presumption.

"The ordinary feelings, passions and propensities under which parties act, are facts known by observation and experience; and they are so uniform in their operation, that a conclusion may safely be drawn that, if a person acts in a peculiar manner, he does so under the influence of a particular motive. Indeed, this is the only mode in which a large class of crimes can be proved. I mean crimes which consist, not merely in an act done, but in the motive and intent with which they are done. But this intent is a secret of the heart, which can only be directly known to the searcher of all hearts; and if the accused makes no declaration on the subject, and chooses to keep his own secret, which he is likely to do if his purposes are criminal, such criminal intent may be inferred from his conduct and external acts.

Statement of the Case.

"A few other general remarks occur to me upon this subject, which I will submit to your consideration. When, fcr instance, probable proof is brought of a state of facts tending to criminate the accused, the absence of evidence tending to a contrary conclusion is to be considered, though not alone entitled to much weight, because the burden of proof lies on the accuser to make out the whole case by substantive evidence. But when pretty stringent proof of circumstances is produced, tending to support the charge, and it is apparent that the accused is so situated that he could offer evidence of all the facts and circumstances as they existed, and show, if such was the truth, that the suspicious circumstances can be accounted for consistently with his innocence, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would tend to sustain the charge.

[*50] "But this is to be cautiously applied, and only in cases where it is manifest that proofs are in the power of the accused not accessible to the prosecution. To the same head may be referred all attempts on the part of the accused to suppress evidence, to suggest false and deceptive explanation, and to cast suspicion without just cause on other persons, all or any of which tend somewhat to prove consciousness of guilt, and, when proved, to exert an influence against the accused. But this consideration is not to be pressed too urgently, because an innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs. Inferences drawn from independent sources, different from each other, but tending to the same conclusion, not only support each other, but do so with an increased weight. . .

"I will conclude what I have to say on this subject by a reference to a few obvious and well established rules, suggested by experience, to be applied to the reception and effect of circumstantial evidence. The first is, that the several circumstances upon which the conclusion depends, must be fully established by proof; they are facts from which the main facts are to be inferred, and they are to be proved by competent evidence, and by the same weight and force of

Horne v. The State.

evidence as if each one were itself the main fact in issue. Under this rule, every circumstance relied upon as material is to be brought to the test of strict proof, and great care is to be taken in guarding against feigned and pretended circumstances, which may be designedly contrived and managed so as to create or direct suspicion and prevent the discovery of the truth; these, by care and vigilance, may generally be detected, because things are so ordered by providence-events and incidents all so linked together-that real occurrences leave behind them vestiges by which, if carefully followed, the true character of the occurrences may be discovered. . . . "The next rule to which I ask attention is, that all the facts proved must be consistent with each other, and with the main [*51] fact sought to be proved. When a fact has occurred, with a series of circumstances preceding, accompanying and following it, we know that these must all have been once consistent with each other, otherwise the fact would not have been possible. Therefore, if any one fact necessary to the conclusion is wholly inconsistent with the hypothesis of the guilt of the accused, it breaks the chain of circumstantial evidence upon which the inference depends; and, however plausible or apparently conclusive the other circumstances may be, the charge must fail. Then what is reasonable doubt is, as often used, probably pretty well understood, but not easily defined; it is not mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt; it is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. The burden of proof is upon the prosecution; all the presumptions of law, independent of evidence, are in favor of innocence; and every person is presumed to be innocent until he is proved guilty; if, upon such proof, there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one, arising from the doctrine of chances, that the fact charged is more likely to be true than

Brief of Appellant.

otherwise; but the evidence must establish the truth of the fact to a reasonable and moral certainty, that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because, if the law, which mostly depends upon considerations of a moral nature, should go further than this and require absolute certainty, it would exclude circumstantial evidence altogether."

This charge was also excepted to.

[*52] At the same term the defendant moved in arrest of judgment, on the following grounds:

First. That the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of its not being within the jurisdiction of the court. Second. That the facts stated do not constitute a public. offense.

Motion overruled and the defendant excepted.

At the same term the defendant moved for a new trial on the following grounds:

First. That the court admitted illegal testimony on the trial. Second. Newly discovered evidence. Third. Error of the court in excluding evidence offered at the trial. Fourth. The jury separated without leave of court after retiring to deliberate upon their verdict. Fifth. The court misdirected the jury in a material matter of law. Sixth. The court erred in refusing to give the instructions asked by defendant. Seventh. That the verdict is contrary to law. Eighth. That the verdict is contrary to the evidence.

Which motion was overruled by the court, and the defendant excepted.

And thereupon the court entered judgment on the verdict, and sentenced the prisoner, and the defendant excepted.

Adams, Crozier & Ludlum, and W. P. Gambell, for appellant:

I. The court erred in overruling the motion to quash the indictment.

1. For aught that appears in the indictment, the offense might have been committed on the lands belonging to the Delaware Indians.

Horne v. The State.

[*53] 2. It may have been committed on the military reservation of Fort Leavenworth, which is under the sole and exclusive jurisdiction of the United States. (Const. U. S., art. 1, § 8.)

II. The court erred in refusing to allow the defendant's discharge from the army of the United States, and certificate of good character indorsed thereon, to be given in evidence to the jury.

1. It was competent evidence to show defendant's good

character.

2. It was competent evidence to show at what time he was discharged from the army of the United States. (Brightly's Digest, p. 74, § 184.)

3. In one aspect of the case, it was important to know at what time Horne came to the house of Philip Friend.

III. The court erred in refusing to charge the jury: That "the defendant is presumed to be innocent until his guilt, as charged, is established by legal evidence; the law presumes innocence of the act done, and innocence of the guilty intent." (2 Leading Criminal cases, p. 503, note 536; Com. v. McKie, 1 Lead. Crim. Cases, p. 347; 1 Gray, p. 61; 3 Gray, p. 463.)

IV. The court erred in refusing to charge the jury: That "the hypothesis that the defendant committed the act charged must exclude every reasonable hypothesis that it was committed by any other person."

V. The court erred in refusing to charge the jury: That "before the jury can convict the defendant, they must be satisfied, from the evidence, that no other person could have or did possess the opportunity possessed by the defendant to commit the act."

1. If no other person had an opportunity to commit the act, that fact might be used to demonstrate that no other person but the accused could have committed the offense. On the other hand, if another person did possess such opportunity, that fact might be used to demonstrate that [*54] some person other than the accused committed the offense. (Burrill Circl. Ev., pp. 369, 370, 371, 549.)

2. The jury must have been misled by the court in refusing to give this charge; it was, in effect, saying to the jury that