§ 2708. Corpus delicti-Circumstantial evidence. The proof of the charge in prosecutions for crimes involves the proof of two distinct matters: First, that the act itself was done; and, secondly, that it was done by the person charged, in other words, proof of the corpus delicti, or body of the crime, and proof of the identity of the accused.24 It is seldom that either of these can be proved by direct testimony, and either may be established in a proper case, by circumstantial evidence. Even in the case of homicide, though ordinarily there ought to be the testimony of persons who have seen and identified the body, yet this is not absolutely necessary in cases where the proof of the death is so strong as to produce the full assurance of moral certainty,25 or, in other words, to satisfy the jury beyond a reasonable doubt.26 The corpus delicti of homicide must, however, be proved, as a rule, either by showing that the party alleged to have been killed is actually dead, by finding and identifying his corpse, or by showing that the murder was accomplished or accompanied by the employment of violence, or the like, in such a manner as to sufficiently account for the disappearance of the body and render direct evidence of its whereabouts or appearance impossible to be obtained." In regular order, evidence of the corpus delicti should properly precede evidence tending to implicate the defendant in its commission, and

24 Winslow v. State, 76 Ala. 47; Smith v. State, 133 Ala. 145, 31 So. 806, 91 Am. St. 21, and note; Willard v. State, 27 Tex. App. 386, 11 S. W. 453, 11 Am. St. 197. “A corpus delicti may be considered as always made up of two constituent parts; first, certain general facts, forming its basis, exclusive of criminative indications of any kind; as, in a case of alleged homicide, the fact of death (involving the physical fact of the existence of a dead body, and its identification, when possible); and secondly, certain other facts showing the existence of a criminal agency as the cause of the former." Burrill Circ. Ev. 677.

25 Wills Circ. Ev. 157, 162; Rex v. Hindmarsh, 2 Leach C. C. 651; People v. Alviso, 55 Cal. 230.

20 State v. Williams, 7 Jones L. (N. Car.) 446; McCulloch v. State, 48 Ind. 109; United States v. Williams, 1 Cliff. (U. S.) 5, 21; see also, Zoldoske v. State, 82 Wis. 580, 52 N. W. 778; Anderson v. State, 20 Fla. 381; Johnson v. Commonwealth, 81 Ky. 325; State v. Keeler, 28 Iowa 551; State v. Dineen, 10 Minn. 407.

27 Underhill Cr. Ev., § 7, citing, Smith v. Commonwealth, 21 Gratt. (Va.) 809, 820; Pitts v. State, 43 Miss. 472, 481; State v. Keeler, 28 Iowa 551, 553; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; Ruloff v. People, 18 N. Y. 179; State v. Winner, 17 Kans. 298; State v. Dickson, 78 Mo. 438; State v. Davidson, 30 Vt. 377, 386.

while the court may, in its discretion, vary the order in which the evidence is introduced, evidence must be given establishing the corpus delicti beyond a reasonable doubt, or a judgment of conviction will not be sustained by the evidence.28 It seems to have been held at one time that the corpus delicti, at least in cases of homicide, must be proved by direct evidence ;29 but the modern rule, as already stated, is that in any proper case it, as well as other facts, may be proved by circumstantial evidence satisfying the jury beyond a reasonable doubt.30

§ 2709. Circumstantial evidence-Must exclude every reasonable hypothesis other than that of guilt. It is laid down as a general rule by Mr. Burrill that "the hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent with them all." It certainly cannot be, however, that the hypothesis of guilt must be consistent with each and every minor fact of which there is some evidence, and the statement quoted was certainly not intended to have any such meaning. But the established rule may, in other respects, be stated in even stronger terms. There is some difference in the phrasing of the rule by the various courts, but it is settled in substance, with little dissent, that, in order to justify a conviction on circumstantial evidence it should not only be consistent with the inference of guilt, but also be incompatible or inconsistent with any other reasonable hypothesis.32 Indeed, it is sometimes said that the

"Traylor v. State, 101 Ind. 65.

See, Hale P. C. 290; Reg. v. Burdett, 4 B. & Ald. 95.

Willard v. State, 27 Tex. App. 386, 11 S. W. 453, 11 Am. St. 197, and note; People v. Palmer, 109 N. Y. 110, 16 N. E. 529, 4 Am. St. 423, and note; State v. Cardelli, 19 Nev. 319, 10 Pac. 433; Smith v. State, 133 Ala. 145, 31 So. 806, 91 Am. St. 21, and note; Campbell v. People, 159 Ill. 9, 42 N. E. 123, 50 Am. St. 134; 78 Am. Dec. 252-259, note.

"Burrill Circ. Ev. 735.

Houst. (Del.) 564, 571; Echols v. State, 81 Ga. 696, 699, 8 S. E. 443; Green v. State, 51 Ark. 189, 10 S. W. 266; James v. State, 45 Miss. 572, 575; State v. Asbell, 57 Kans. 398, 46 Pac. 770; People v. Ward, 105 Cal. 335, 38 Pac. 945; People v. Shuler, 28 Cal. 490, 496; Wright v. State, 21 Neb. 496, 32 N. W. 576; People v. Aiken, 66 Mich. 460, 33 N. W. 821; Wantland v. State, 145 Ind. 38, 43 N. E. 931; Cavender v. State, 126 Ind. 47, 48, 25 N. E. 875; Sumner v. State, 5 Blackf. (Ind.) 579, 36 Am. Dec. 561; United States v. Reder, 69 Fed. 965; Hamilton v. State, 96 Ga. 301, 22 S. E. 528; Smith v. State, 35 Tex. Cr. App. 613, 33 S. W. 339, 34 S. W. 960; Webb

evidence must show the defendant's guilt, or exclude every other reasonable hypothesis to a moral certainty,33 but it seems to us that this form of statement is apt to mislead, and it is not, of course, required that it should be shown that it was absolutely impossible that another might have been the perpetrator of the crime.34 The general rule upon the subject is thus stated in a recent case: "In attempting to prove a fact by circumstantial evidence there are certain rules to be observed that reason and experience have found essential to the discovery of truth and the protection of innocence. The circumstances themselves must be established by direct proof and not left to rest upon inferences. The inference which is to be based upon the facts and circumstances so proved must be a clear and strong logical inference, an open and visible connection between the facts found. and the proposition to be proved. When a criminal charge is sought to be sustained wholly by circumstantial evidence, the hypothesis of guilt or delinquency should flow naturally from the facts and circumstances proved and be consistent with them all. The evidence of facts and circumstances must be such as to exclude, to a moral certainty, every hypothesis but that of guilt of the offense imputed, or, in other words, the facts and circumstances must not only all be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence."35

§ 2710.

Circumstantial evidence-Elements and classification.—It is almost impossible to enumerate or classify all the elements of circumstantial evidence, or the facts and circumstances that may be re

v. State, 73 Miss. 456, 19 So. 238; Baldez v. State, 37 Tex. Cr. App. 413, 35 S. W. 664; Morgan v. State, 51 Neb. 672, 71 N. W. 788; State v. Avery, 113 Mo. 475, 495, 21 S. W. 193; State v. Miller, 100 Mo. 606, 626, 13 S. W. 832, 1051; Commonwealth v. Goodwin, 14 Gray (Mass.) 55; Chitister v. State, 33 Tex. Cr. App. 635, 638, 28 S. W. 683; Kennedy v. State, 31 Fla. 428, 12 So. 858; State v. Davenport, 38 S. Car. 348, 352, 17 S. E. 37; Carlton v. People, 150 Ill. 181, 37 N. E. 244; Gannon v. People, 127 Ill. 507, 521, 21 N. E. 525; Commonwealth v. Costley, 118 Mass. 1; Coleman v.

State, 26 Fla. 61, 7 So. 367; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777. Or as it is sometimes said, it must exclude every other reasonable hypothesis than that of the defendant's guilt.

33 See, Burrill Circ. Ev. 737; Jones v. State, 100 Ala. 88, 14 So. 772; see also, Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, and note.

34 Findley V. State, 5 Blackf. (Ind.) 576, 36 Am. Dec. 557; Sumner v. State, 5 Blackf. (Ind.) 579, 36 Am. Dec. 561.

35 People v. Fitzgerald, 156 N. Y. 253, 258, 50 N. E. 846.

ceived as evidence of guilt or in exculpation. "In truth," says Burke, "it seems a wild attempt to lay down any rule for the proof of intention by circumstantial evidence; all the acts of the party; all things that explain or throw light on these acts; all the acts of others relative to the affair that come to his knowledge and may influence him; his friendships and enmities; his promises; his threats; the truth of his discourses; the falsehood of his apologies, pretenses and explanations; his books; his speech; his silence where he was called to speak; everything which tends to establish the connection between all these particulars; every circumstance, precedent, concomitant and subsequent, become parts of circumstantial evidence. These are in their nature infinite, and cannot be comprehended within any rule, or brought under any classification."36 Mr. Burrill, however, has classified them as follows: "I. Criminative or exculpatory evidence, as derived: (1) From physical or external objects or appearances; (2) from the conduct or position of the accused himself; (a) before the commission of the supposed crime; (b) at or about the time of its commission; (c) afterwards. II. Exculpatory evidence or considerations, as derived: (1) from the exculpatory evidence adduced; (2) from new and distinct evidence."37 A brief explanation of these matters will be given in the sections immediately following and the most important will be more fully treated in subsequent sections.

§ 2711. Circumstantial evidence-Physical or external objects and appearances.-The physical or external objects and appearances are such as the person killed, the building burned or other subject of the offense, its appearances and various marks, the instruments of the offense and their appearances, the place and its appearances, sounds, smells and the like, symptoms of poison, objects of dress, and the like found at the place of the crime, fruits of the offense, and the like. (a) Some of these physical facts and appearances go merely to show the corpus delicti, or to show whether a crime has been committed. (b) Others go to indicate the particular perpetrator, or to prove that the accused was concerned in the crime, as principal or accessory. "A corpus delicti is shown by such facts as indicate a distinct criminal human agency; or, in other words, by those facts which go to negative the supposition or hypothesis that the appearances observed could have been the result of natural causes, or of accident, or of the act of the

6 Burke Work (Bohn's ed.), 37 Burrill Circ. Ev. 251.

party injured or slain, or of any irresponsible agency. In cases of alleged murder, the most important facts for this purpose are the appearances presented by the body, when found-its condition, whether buried or otherwise concealed, stripped of clothing, or otherwise-its position and attitude-the marks of violence upon it; if wounds, their nature, number and direction-the particular appearance of bodies found in the water, or suspended by the neck, and the like. In many cases the opinions of medical men, based upon actual inspection and examination, are necessarily sought for and relied on. In cases of alleged poisoning, these professional examinations become of peculiar importance, involving the dissection of the body, to a greater or less extent, and the application of chemical or other tests, for the purpose of detecting the presence of poison in it. Other facts which go to show that a crime has been committed, are, in cases of murder, rape and robbery, the presence of footmarks, other than those of the deceased or assaulted person, at the scene of the crime; marks of struggles or resistance to violence; stains of blood in the vicinity; cries of distress; sounds as of falling bodies; the clothing of the deceased or assaulted person, disordered, torn, stripped off or scattered about; pockets rifled of their contents, and the like. The participation of the accused in the crime proved to have been committed is shown by those physical facts or appearances which connect him with it; affording so many natural coincidences, harmonizing with the supposition of his guilt. They are, in other words, the traces, marks or indications, more or less distinct and impressive, of the presence of a particular criminal agent; and they may be considered under two principal divisions; first, traces or indications at the scene of the crime, derived or supposed to be derived from his person; and secondly, traces or indications upon or near his person, derived or supposed to be derived from participation in the crime."

§ 2712. Circumstantial evidence-Conduct and relations of accused. The criminative or exculpatory circumstantial evidence derived from the relations, position and conduct of the accused party himself may be, as suggested by Burke, either precedent, concomitant or subsequent.39 "In tracing the connection between a crime and the person suspected or accused of it, as indicated by his previous conduct and position," says Burrill, "the circumstances to be inquired into

38 Burrill Circ. Ev. 262.

30 See also, Rex v. Donnellan, Wills Cr. Ev., 30, 85, 241.