Problems of Presumptive Proof

A popular crusade is in progress against the conviction of persons accused of capital crimes on what is loosely termed "merely circumstantial evidence." Several such convictions in cases that have attracted world-wide attention have lately occurred. Mrs. Maybrick's case has risen almost to the dignity of an international controversy. The case of Carlyle W. Harris, in New York, evoked a similar though a more local manifestation of dissent from verdicts involving capital punishment based on presumptive proof. In both cases the crime charged was murder of the most heinous character: the killing of a husband by his wife in the first, and of a wife by her husband in the second; and in each the killing was done by the agency of poison. Of concurrent interest with these was the case of Dr. Graves, tried in Colorado for the murder of Mrs. Barnaby,—also, as was alleged, by means of poison, sent to the victim through the mails in a form that counterfeited whiskey. The evidence on this trial, again, was what, in a common but indefinite phrase, is called "purely circumstantial," and the failure of the jury to agree was widely hailed with approval, grounded in large measure upon the repugnance already noted to capital convictions on evidence that is not positive, clear, and direct,—evidence, in fine, that is not free from all doubt. Finally, there is at this writing a case in which the public has taken an extraordinary interest, that of the trial of Miss Borden, charged with the murder of her father and stepmother.


Printers of newspapers throughout the United States are desired to publish that Stephen Boom, of Manchester, in Vermont, is sentenced to be executed for the murder of Russel Colvin, who has been absent about seven years. Any person who can give information of said Colvin may save the life of the innocent by making immediate communication. Colvin is about five feet five inches high, light complexion, light-colored hair, blue eyes, about forty years of age.
Manchester, Vt., November 26, 1819.
Three days afterwards the New York Evening Post copied this notice, and the next day it was read aloud in a New York hotel. A man named Whelpley stood by and heard it read. He had formerly lived in Manchester and had known Colvin, and he told many stories of his eccentric doings. A Mr. Tabor Chadwick, of Shrewsbury, N. J., listened to this talk, and, as he thought it over going home, it occurred to him that a man then living with his brother-in-law, Mr. William Polhemus, of Dover, N. J., answered closely to the description given of Colvin by Whelpley. He wrote a letter to the New York Evening Post stating his impressions. Whelpley saw this letter, went to Dover, N. J., found Colvin, and, after great effort, induced him to go to Manchester and prevent Stephen Boom's execution. There was great rejoicing in Manchester, Vt., when Stephen was released from prison, and his escape was celebrated by the firing of cannon. Yet both he and his brother bad confessed the crime for which he so narrowly escaped the scaffold.

Many such astounding cases of false confessions, made from motives never satisfactorily ascertained, are embalmed in the chronicles of crime: they belong to the mysteries of human experience; they are puzzles in psychological phenomena, which defy solution and mock all our reasoning. Are we, therefore, to conclude that confessions are not the best of direct evidence? We have already seen that the direct evidence of eye-witnesses often results in the gravest judicial errors, because eye-witnesses sometimes swear to what they never saw, and sometimes are themselves the victims of optical illusion or of a deceit practiced upon them by others. For all that, direct evidence is very valuable; strong circumstantial evidence is valuable, also, and the voluntary confessions of accused persons are the highest kind of evidence, amounting to proof positive. All these rules are, of course, subject to the law of exceptions, by which, however, the rule is not set aside, but confirmed.

The current clamor against the conviction of persons charged with murder by means of poison on purely presumptive proof is no new thing. The crime of poisoning has in all times been difficult of discovery. Excluding proof by presumption, not one poisoner in one hundred would ever be brought within the scope of human law and justice. The most memorable poisoning trial of modern times was that of William Palmer, of Rugeley, in Staffordshire, England. He was tried and convicted in 1856 for the murder of one Cook; but he was believed to have poisoned two other persons, also, his wife and a brother. The motive in each case was the same,—the collection of large sums of money from insurance companies which had issued policies on the lives of the poisoned persons. There never was the slightest particle of direct evidence against Palmer. No trace of the poison which he was believed to have used, strychnia, could be found in the body of Cook. Relying on this serious absence of direct proof on a vital point, Palmer freely boasted his confidence in acquittal by the jury up to the last moment; and even after the verdict of "guilty" was rendered, he persisted in believing he would be pardoned. In the condemned cell he repeatedly said that be was going to his grave a murdered man. Public opinion outside of Rugeley, where his guilt was never questioned, was much agitated as to the possibility of his innocence. On the scaffold, however, he broke down; and while he made no formal and explicit confession, he used expressions to the chaplain which tacitly admitted his guilt, not only in the case of Cook, but in the other cases for which he had not been tried. The verdict, therefore, though based on pure presumption, was undoubtedly just. One of the presumptive proofs which most strongly swayed the jury was the great fear shown by Palmer at every stage of the investigation, and his efforts to suppress and destroy evidence that told against him. He had, for example, offered the driver of the vehicle in which a jar containing the contents of Cook's stomach was to be taken to the Rugeley railway station en route to London ten pounds if he would upset the carriage and break the jar.

The same presumption of guilt from evidence of the prisoner's fear and his efforts to destroy the proofs of his crime was drawn in the celebrated case of Captain Donnellan, convicted in 1781 of the murder by poison of his brother-in-law, Sir Theodosius Boughton. In spite of the protests of the mother of the poisoned man, he had insisted, before any one else could arrive on the scene, on rinsing out the glass from which the fatal draught had been drunk. He had also interfered, with success, to prevent any medical examination of the body before it was too late to yield clear and positive proof of the cause of death. The weight of the medical testimony on the trial was rather in the prisoner's favor. The most eminent physician of the time, Sir John Hunter, testified positively that there was nothing in the circumstances of the death, nor in the evidence afforded by the autopsy, to justify the "least suspicion" of poison. Four medical witnesses of much less eminence, however, testified to the exactly contrary effect. The extreme fear shown by the accused man, his persistent efforts to suppress and destroy the evidence against him, and the fact that by the death of his brother-in-law he succeeded to a valuable estate, all raised presumptions against him. On these he was convicted and executed. He most solemnly protested his innocence just before going to the scaffold, and the case is still a favorite theme of disputation in the legal textbooks. The weight of opinion appears to be that the theory of presumptive proof was pressed too far, in this instance; that not only was guilt inferred from indirect evidence, but that a vital fact from which inference was made was itself first inferred, namely the fact that death was the result of poison. Nevertheless, no one can read all the evidence in the case without feeling that, whatever stretching of the law there may have been to convict Donnellan, it is not likely that any such moral wrong was thereby done to an entirely innocent man as was done in the case of Soren Qvist, already related, where the proof was not "purely presumptive," but almost absolutely direct and positive, and where it was finally clinched by confession.

Mr. Justice Bullen, in his charge in the Donnellan case, laid down this rule: "A presumption which necessarily arises from circumstances is very often more convincing and more satisfactory than any other kind of evidence. It is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof of guilt, without affording opportunities to contradict a great part, if not all, of these circumstances." Ordinarily, this is no doubt true; and cases like that of Soren Qvist do not invalidate the rule.

As a typical case illustrating the trustworthiness, in most cases, of entirely circumstantial evidence, and the safety and justice of convictions on presumptive proof deduced therefrom, the famous trial and conviction of Franz Muller for the murder of Thomas Briggs, a London bank clerk, in July, 1864, under very singular circumstances, may be adduced. Briggs took the train from the Fenchurch Street station on the North London railway to go to his home at Hackney. When the train arrived at Hackney, the compartment in which he had left Fenchurch Street was found empty of passengers; the cushions were soaked with blood, and all the signs of a terrible struggle for life were visible. Scattered about the carriage were found a hat, a walking-stick, and a small black leather bag. Briggs's mangled body was discovered some distance back on the line of the road, and he lived for several hours after being so found, in an unconscious state. He had evidently been clubbed into insensibility by a fellow-passenger soon after the train started from Fenchurch Street station, robbed, and then thrown out of the carriage window, from which, also, his murderer must have immediately jumped. The one clue which the police had to work upon was the hat left in the railway carriage, which was not that of Briggs. Here was the narrow pathway of a first presumption, which led on to a succession of other presumptions; and finally, without a jot or tittle of direct evidence by eye-witnesses, Franz Muller was landed on the scaffold. The first presumption was that the hat found in the carriage, not being that of Briggs, was that of his assailant. A label inside the crown showed that it was bought at a certain hat store in Marylebone, London. A few days later, Briggs's gold chain, stolen by his murderer, was traced to a jeweler in Cheapside, who had given another in exchange for it to a foreign-looking man whom he described. The second presumption was now made,—that this foreign-looking man was the murderer. This last presumption was widely made known in the papers, and soon a cabman came forward and told of a lodger who had recently left his house, and who, before leaving, had given to his (the cabman's) little daughter a cardboard box bearing the name of the Cheapside jeweler upon it. This cabman found a photograph of his departed lodger, and it was shown to the jeweler, who at once positively identified it as that of the foreign-looking man who had brought Briggs's gold chain to him and exchanged it for another. The lodger's name was Franz Muller. The final presumption of the police was then made,—Muller was the murderer. The cabman examined the hat left in the railway carriage, and identified it as one he had bought for Muller at the Marylebone hat store whose label it bore. Then the London shipping offices were visited, and a clerk was found who, being shown Muller's photograph, remembered that a man whose face it closely resembled had sailed on the Victoria for Canada, via New York. Extradition papers were prepared, and detectives and witnesses started in pursuit on a much faster steam vessel than the Victoria. Muller was arrested in New York harbor, searched, taken ashore, extradited, and carried back at once to England for trial. On his head Briggs's hat was found, and among his effects the gold watch of the murdered man. The defense was able and stubborn. Stress was laid on the fact that nothing but circumstances and presumptions were offered against the accused, and the counsel for the crown admitted this to be so. A strong attempt was made to prove an alibi; and if all that was sworn to had been true, Muller could not have been on the scene of the murder at the time it was committed. But the jury proceeded to accept presumptions as equivalent to proof positive. They believed that the hat left in the carriage was Muller's hat, and presumed that he must have been there, or he could not have left his hat behind; they presumed that his possession of Briggs's hat and gold watch at the time of his arrest in New York harbor was the direct result of his crime in the railway carriage; they presumed on the whole evidence, purely circumstantial as it was, that he did assault and kill Briggs, rob his body, and fly to America with the fruits of the robbery. They found him guilty with scarcely any hesitation. But the efforts made to save him were desperate, and, as in similar recent cases in this country, a large number of persons, swayed by the strong sentiment evoked out of their own imagination of perfect innocence where guilt had been proved beyond all reasonable doubt, cried "Shame!" Muller was a German, and powerful German influences were invoked to save him. The traditional stubbornness of the English official mind, backed as it always is by a wholesome majority opinion in favor of letting the law take its course, and making murder both an odious and a perilous crime, was adequate to the emergency. Muller, who had protested his innocence until the day of his death, broke down at the final moment, and whispered to the German chaplain who shrived him, "I did it."

Whatever may have been the case in former times, there is no reason to fear, in this age of the world, in English-speaking countries at least, that justice will often miscarry in capital cases, except to the detriment of the state. Sir Matthew Hale's dictum, "It is better five guilty persons should escape unpunished than one innocent person should die," is nowadays more than literally fulfilled. It is a maxim of increasing popularity, not only with all accused persons, but with that considerable class of people who find in criminals an irresistible impulse to sympathetic excitement. Blackstone improved on Hale, making it better to have ten assassins escape than to have one innocent man suffer by an error in the jury-room. Starkie improved on Blackstone, and made it "better that ninety-nine offenders should escape than that one innocent man should be condemned." It is a probable opinion that even Mr. Starkie is behind the times in which we live. There is now a constant clamor which seeks to pass itself off as public opinion, and which practically asserts that it is better all crimes should go unpunished than that any person should by any possibility suffer unjustly.

A glance at our American statistics of homicide for the year 1892 may appropriately conclude this article and point its moral. No fewer than 6796 persons were murdered in the United States last year, as against 5906 persons in 1891, 4290 in 1890, and 3567 in 1889. Innocent persons are evidently not escaping, however the guilty ones are faring. The American victims of homicide have almost doubled in three years. In the same year (1892) that 6796 persons were murdered, only 107 were executed by process of law,—one execution to every 63.5 murders.

The outcry against convictions on "purely presumptive proof" is at once senseless and insincere. If it should ever prevail, an era of free murder would be the inevitable result. It is really a protest against capital punishment, thinly disguised as an objection to the only kind of proof possible in the majority of criminal trials. Wholesome public opinion needs to be rallied in the other direction. It ought never to be forgotten that murder is capital punishment; every person who kills another shows himself a believer in capital punishment—for his victim; and the moment these friends of capital punishment can be converted to more humane views, capital punishment by the state will be abolished; the votaries of the death penalty have only to abolish it themselves, and the state cannot continue it. But the aim of the emotional agitators of the day is to abolish the death penalty first as a pnblic protection, and leave its abolition as a private pastime to await the discretion of the nearly 7000 executioners who are now annually practicing capital punishment in this country.

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