naturally occur in the following order: First, his character, as generally disposing or inclining him to the offense. Secondly, the particulars of his external situation and relation, as more immediately instigating him to its commission; or, in other words, as presenting motives to the offense, including also the contemplating of the necessary means of committing it. Thirdly, language indicative of existing disposition, or design; comprising remote allusions to the act in contemplation; expressions of animosity against the subject of it; and actual declarations of intention, or utterance of threats to commit it; all showing the impression of a motive, and the existence of a purpose, more or less distinctly formed or entertained. Fourthly, preparations for committing the offense; showing the motive in its fullest operation, and a purpose fixed and matured. Fifthly, opportunities and facilities, including the actual possession of the means for committing the crime; serving often to impart additional strength to motives. Lastly, actual attempts, stopping short only of full and effectual perpetration. But, as the law does not allow general character to be adduced, in the first instance, in evidence, as a criminative circumstance, judicial investigation must commence from a lower point in the series above indicated, and cannot go farther back than those circumstances which tend to show a motive on the part of the accused." The concomitant circumstances are such, in the main, as are part of the res gestae, but under this head may also be included not only such as are precisely contemporaneous with the transaction, but also such as immediately precede or follow it. The presence of the accused at the scene of the crime or his proximity thereto about the time of its commission, is an example of such a circumstance, and evidence of footprints, preparation and other conduct and movements of the accused about the time is often admissible. Subsequent conduct, such as the fabrication or suppression of evidence, flight, possession of stolen goods or fruits of the crime, demeanor and conduct of the accused when arrested or charged with the crime, and the like, may also be shown in a proper case. § 2713. Circumstantial evidence-Proof of every link beyond reasonable doubt.-It has often been said that "no chain is stronger than its weakest link" and that each necessary link in the chain of evidence must be proved beyond a reasonable doubt in order to sus "Burrill Circ. Ev. 280, 281; see also, Bulloch v. State, 10 Ga. 47, 54 Am. Dec. 369. tain a verdict of guilty in a criminal case resting upon circumstantial evidence. Rightly understood, this is doubtless true. But it has also been said that the doctrine of reasonable doubt does not, as a rule, apply to mere matters of subsidiary evidence, taken item by item, which may aid in proving the essential facts, but only to the essential facts which establish the defendant's guilt; and if such facts are fully proved so that the jury is convinced of defendant's guilt beyond a reasonable doubt, he may properly be convicted.42 We do not understand, however, that there is necessarily any conflict between these two statements, and the subject is thus explained in a recent case: "It is not necessary that each essential fact in the chain of evidence solely relied on to connect the accused with the commission of the offense, when separately considered, be found beyond reasonable doubt. Such a fact, though having little to sustain it when standing alone, may derive such support from others immediately connected therewith as to exclude all doubt of its existence. Nevertheless, if conviction depends entirely on different circumstances, arranged linkwise, connecting the defendant with the crime charged, then each and every one of these must be established beyond a reasonable doubt, for no chain can be stronger than its weakest link. Not so, however, with the minor circumstances relied on by the state to establish the ultimate and essential facts upon which conviction depènds. Some of these may fail of proof, and yet those essential to conviction be found from other evidence beyond a reasonable doubt."43 42 Hauk v. State, 148 Ind. 238, 254, 46 N. E. 127, 47 N. E. 465; Goodwin v. State, 96 Ind. 550; Wade v. State, 71 Ind. 535; Hinshaw v. State, 147 Ind. 334, 47 N. E. 157; see also, Bressler v. People, 117 Ill. 422, 8 N. E. 62; Horn v. State, (Wyo.) 73 Pac. 705, 724. "People v. Aiken, 66 Mich. 460, 78 Am. Dec. 253, note; 62 Am. Dec. 33 N. W. 821, 11 Am. St. 512; Sum- 182, note. ner v. State, 5 Blackf. (Ind.) 579, 36 Am. Dec. 561; Horne v. State, 1 Kans. 42, 81 Am. Dec. 499, and note; Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, and note; Kollock v. State, 88 Wis. 663, 60 N. W. 817; Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. R. 825; State v. Furney, 41 Kans. 115, 21 Pac. 213, 13 Am. St. 262; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 52 Am. St. 655; Clara v. People, 9 Colo. 122, 10 Pac. 799; People v. Phipps, 39 Cal. 333; Crow v. State, 33 Tex. Cr. App. 264, 26 S. W. 209; 48 State v. Cohen, 108 Iowa 208, 78 N. W. 857, 75 Am. St. 213, 215; see also, Leonard v. Territory, 2 Wash. Ter. 381, 7 Pac. 872; Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 Am. St. 346; State v. Hayden, 45 Iowa 17. § 2714. Substance of the charge-Venue-Variance.-In criminal as well as civil cases it is the rule that the substance of the charge or issue must be proved, and that if it is not proved, the variance will usually be fatal. Indeed, in some jurisdictions, the courts incline to require greater strictness of proof on the trial of a prosecution for crime than in a civil action. But proof of the substance or essence of the crime in a manner which substantially conforms to the description in the indictment is usually sufficient. The names of the persons injured and of others whose existence is essential. to the charge must, ordinarily, be proved as laid,45 but if there is sufficient evidence of identification a mistake in spelling or the like, will not necessarily be fatal, at least where the names are idem sonans. So, while time and place are not always material in such a sense that they must be proved precisely as alleged, yet in some instances they are material and even essential ingredients of the crime. and must be proved as alleged,48 and in other instances, by the manner of pleading, matters of description or detail may be made essential to be proved. It is also necessary, as a general rule, no matter whether the exact time and place are material or not, to prove that the crime was committed before the time of the indictment and within the jurisdiction of the court.50 But the venue may be in 49 "See, Vol. I, § 200; as to proving intent as alleged, see, Rex v. Jenks, 2 Leach C. C. 896, 2 East P. C. 514; Rex v. Boyce, 1 Moody C. C. 29. "Vol. I, § 200; Rex v. Jenks, 2 East P. C. 514, 2 Leach C. C. 896; Rex v. Walker, 3 Campb. 264; Rex v. Deeley, 4 Car. & P. 579, 1 Moody C. C. 303; Johnson v. State, 111 Ala. 66, 20 So. 590; People v. Armstrong, 114 Cal. 570, 46 Pac. 611; Sykes v. People, 132 Ill. 32, 23 N. E. 391; King v. State, 44 Ind. 285. Vol. I, § 200; see also, Rex v. Peace, 3 B. & Ald. 579, 1 Lead. Cr. Cas. 226; State v. Grant, 22 Me. 171; Williams v. United States, 3 App. (D. C.) 335; State v. Gordon, 56 Kans. 64, 42 Pac. 346; Smurr v. State, 88 Ind. 504; Weitzel v. State, 28 Tex. App. 523, 13 S. W. 864. 47 So. 306; Johnson v. State, 13 Ind. App. 299, 41 N. E. 550; Commonwealth V. Harrington, 3 Pick. (Mass.) 26; Hans v. State, 50 Neb. 150, 69 N. W. 838; People v. Jackson, 111 N. Y. 362, 19 N. E. 54; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; United States v. Matthews, 68 Fed. 880. 4s Commonwealth v. Purdy, 146 Mass. 138, 15 N. E. 364; State v. Libby, 84 Me. 461, 24 Atl. 940. See, Wiley v. State, 74 Ga. 840; State v. Buckles, 26 Kans. 237; State v. Jackson, 30 Me. 29; Sweat v. State, 4 Tex. App. 617; Coleman v. State, 21 Tex. App. 520, 2 S. W. 859. 50 State v. Bain, 43 Kans. 638, 23 Pac. 1070; State v. Dorr, 82 Me. 212, 19 Atl. 171; Arcia v. State, 28 Tex. "Smith v. State, 108 Ala. 1, 19 App. 198, 12 S. W. 599; see further VOL. 4 ELLIOTT Ev.-2 ferred from circumstantial evidence as well as proved by direct evidence. The strictness of the old rule as to variance between the proof and the indictment has been much relaxed in modern times, and it is said that variances are regarded as material because they may mislead the prisoner and because they may expose him to the danger of being again put in jeopardy for the same offense, and if they are not of a nature or extent to have any such effect they should not be regarded as fatal.52 "The general rule is that all averments necessary to constitute the substantive offense must be proved. If there is any exception, it is from necessity, or great difficulty amounting to such necessity, as where one could not show the negative and where the other with perfect ease can show the affirmative."53 But mere surplusage which might have been omitted without affecting the indictment and which is not in any way essential to mark or distinguish the crime need not, as a rule, be proved as alleged. And it is held that "where an offense may be committed by doing one of several things, the indictment may, in a single count, group them together, and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of these things without proof of the commission of the others."55 as to proving venue, Luck v. State, 96 Ind. 16; Harlan v. State, 134 Ind. 339, 33 N. E. 1102; Berry v. State, 92 Ga. 47, 17 S. E. 1006; Leslie v. State, 35 Fla. 184, 17 So. 559; State v. Farley, 87 Iowa 22, 53 N. W. 1089; People v. Curley, 99 Mich. 238, 58 N. W. 68; Ryan v. State, 22 Tex. App. 699, 3 S. W. 547; State v. Hobbs, 37 W. Va. 812, 17 S. E. 380. McCune v. State, 42 Fla. 192, 27 So. 867, 89 Am. St. 227; Johnson v. State, 35 Ala. 370; State v. Morgan, 35 La. Ann. 293; Tinney v. State, 111 Ala. 74, 20 So. 597; Bloom v. State, 68 Ark. 336, 58 S. W. 41; People v. Kamaunu, 110 Cal. 609, 42 Pac. 1090; Thornell v. People, 11 Colo. 305, 17 Pac. 904; Commonwealth v. Costley, 118 Mass. 1, 9, 26; Bland v. People, 4 Ill. 364; State v. Snyder, 44 Mo. App. 429, 430; State v. McGinniss, 74 Mo. 245, 246; Beavers v. State, 58 Ind. 530, 537; Hoff 54 man v. State, 12 Tex. App. 406, 407; 53 Commonwealth v. Thurlow, 24 Pick. (Mass.) 374, 381. 54 See, Commonwealth v. Rowell, 146 Mass. 128, 15 N. E. 154. 55 Bork v. People, 91 N. Y. 5, 13; § 2715. Identity.-After the corpus delicti is proved the next thing, ordinarily, is to connect the accused with the crime, and for this purpose direct evidence of his identity as the perpetrator of the crime is, of course, admissible, and it is held that the identifying witness need not be positive, but may speak according to his best impression and belief.56 The evidence may be either direct or circumstantial and is often permitted to take a wide range, both upon examination in chief and cross-examination.57 A witness may identify the accused by his voice, without seeing him, at least where the voice is peculiar, although such evidence is not always regarded as very satisfactory. So, evidence of footprints at the scene of the crime and a comparison of them with those of the accused is relevant and admissible in a proper case for the same purpose;60 and weapons, burglarious tools, clothing, and the like, belonging to the accused or found in his possession at or near the scene of the crime may usually 59 see also, Harris v. People, 64 N. Y. 148, 153; Reg. v. Rhodes, 2 Ld. Raym. 886; Roscoe Cr. Ev. (6th Am. ed.) 763; 3 Russell Crimes (4th ed.) 105; 3 Starkie Ev. 860. "People v. Young, 102 Cal. 411, 36 Pac. 770; People v. Rolfe, 61 Cal. 540; People v. Stanley, 101 Mich. 93, 59 N. W. 498; State v. Cushenberry, 157 Mo. 168, 56 S. W. 737; People v. Burt, 170 N. Y. 560, 62 N. E. 1099; State v. Lytle, 117 N. Car. 799, 23 S. E. 476; for many interesting instances of mistaken identity, see, Ram Facts, 462; Harris B9fore Tr. (Am. ed.) 372; Sergeant Ballantine Experiences, Chap. XLI, XLII; Legal Puzzles, 183; 1 South. Law J. 392; Burrill Circ. Ev. 631651. Pac. 520; State v. Martin, 47 S. Car. 67, 25 S. E. 113; Olive v. State, 11 Neb. 1, 7 N. W. 444 (cross-examination); Mixon v. State, 55 Miss. 525. 58 Fussell v. State, 93 Ga. 450, 21 S. E. 97; State v. Kepper, 65 Iowa 745, 23 N. W. 304; Commonwealth v. Hayes, 138 Mass. 185; Commonwealth v. Williams, 105 Mass. 62; People v. Willett, 92 N. Y. 29; Brown v. Commonwealth, 76 Pa. St. 319; Davis v. State, 15 Tex. App. 594; Givens v. State, 35 Tex. Cr. App. 563, 34 S. W. 626; Rex v. Harrison, 12 St. Tr. 850. 59 See, 1 Elliott Gen. Pr., § 38. 80 Morris v. State, 124 Ala. 44, 27 So. 336; People v. Rowell, 133 Cal. 39, 65 Pac. 127; People v. Keep, 123 Mich. 231, 81 N. W. 1097; State v. Reed, 89 Mo. 168, 1 S. W. 225; Gray v. State, 42 Fla. 174, 28 So. 53; Commonwealth v. Pope, 103 Mass. 440; State v. Morris, 84 N. Car. 756; State v. Reitz, 83 N. Car. 634; Lipes v. State, 15 Lea (Tenn.) 125, 54 Am. R. 402; Goldsmith v. State, 32 Tex. Cr. App. 112, 22 S. W. 405. |