People v. Rulloff

3 Park. Cr. 401

• Court: New York Supreme Court
• Decided: May 15, 1857
• Status: Published

Opinions

Mason, J.

The only question presented by the prisoner’s counsel upon the bill of exceptions in this case is, whether, upon the trial of an indictment for murder, the corpus delicti can be proved by any other than direct evidence. The question is one of the highest importance, and I have examined it with the most anxious desire to arrive at a just conclusion and a correct determination of the question, and have bestowed upon it the most careful and deliberate consideration ; and the result is a firm conviction that there is nothing in the results of experience, or in the nature and character of circumstantial evidence, which forbids the corpus delicti being proved and- established by indirect evidence, any more than there is the guilt of the prisoner, or any other fact in the case. There is no more insecurity in the sanctions given to circumstantial evidence, as administered at the present day in the courts of England and this country, than there is in direct evidence ; and every attempt which has been made to assail circumstantial evidence from the results of experience has done no more than to prove that it necessarily partakes of the infirmities incident to all human testimony. Every consideration which has been argued against it on this ground has only tended to detract from the credibility of human testimony generally, and has shown that the infallibility of human testimony applies to circumstantial only in common with other evidence. If the annals of the judicial history of England, from the time of William the Conqueror to" the present day, could be put into a volume, it would show more convictions of innocent persons in capital cases by direct evidence, the results of fraud and- perjury and honest mistake, than those upon circumstantial evidence alone. Thera is little doubt that if the catalogue of victims be confined to perjured witnesses alone, the result would show a greater number than can be imputed to the account of circumstantial evidence; and yet honest mistake and fallibility in direct and positive proof, would remain to claim its share.

The testimony of the senses cannot be implicitly relied on, even where the veracity of the witness is above all suspicion, and consequently, lamentable mistakes have occurred in direct and positive proof as to the identity of the prisoner. Sir Thomas Damont, an eminent-English barrister, a gentleman of acute mind and strong understanding, swore positively to the identity of two men whom he charged with robbing him in open day-light.” But it was proved by the most conclusive evidence that the men on trial were, at the time of the robbery, at so remote a distance from the spot that the thing was impossible. The men were acquitted, and some time afterwards the robbers were taken, and the articles stolen found upon them. Sir Thomas, on seeing these men, candidly acknowledged his mistake, and, it is said, gave a recompense to the men who so narrowly escaped conviction. (Rex v. Wood and Brown, 28 State Trials, 819 ; Wills on Cir. Ev., 31, 47, 48.) The case of Rex v. Clinch and McAckley (3 Par. & Fon., 144), where the prisoners were convicted at the Old Bailey Sessions, in 1797, of the murder of one Frier, and executed. The identity of the prisoners was positively sworn to by a lady who was in company with the deceased at the time of the robbery and murder. It turned out afterwards that she was mistaken in the persons. (Wills on Cir. Ev., 110.) An equally fatal mistake was made in the conviction of Robinson, at the Old Bailey, in July, 1824, upon direct and positive proof. (Rex v. Robinson, Sess. Papers, 1824; Wills on Cir. Ev., 110.) A similar mistake was made by another prosecutor, a few months before the last mentioned case, where a young man was tried for highway robbery, and the prosecutor swore positively that the prisoner was the man who robbed him of his watch. (Wills on Cir. Ev., 111.) Grow's case was a conviction for murder by an honest mistake in the witnesses of personal identity. They mistook. Grow for Geddely, the real criminal. The remarkable case of Hoag, tried in the city of Hew-York, for bigamy, forcibly illustrates how easy it. is to be mistaken upon a question of personal identity. (5 C. H. Rec., 124.) Cases of this description might be greatly multiplied, but they would only serve to establish the fallibility of even direct and positive proof. The evidences of the identification of the dead body, in many of the cases referred to by the counsel for the people, upon the argument of this case, although classed under the head of direct evidence, are less satisfactory proof of the corpus delicti than the evidence in the case at bar furnishes. In the case of Eugene Aram, where the skeleton was found in a cave thirteen years after the murder, the proof of the identity of the body as that of Clarke was very faint, and but for the strong circumstantial evidence, a conviction could never have been justified. Charles I., after being much disfigured, was identified by a resemblance to the head upon the coins issued during his reign. The Marchioness of Salisbury, found among the ruins of Hatfield House, was identified by gold appendages to the artificial teeth. In the case of Mary Martin, the identification was by missing teeth. In the case of Clows, the body was identified twenty-three years after the murder by the peculiarity of the teeth. In the recent case of Dr. Webster, in our own country, the identification of the body consisted in the evidence of a dentist as to the identity of the artificial teeth. There is little use in going over the cases of this description. The evidence of identity in very many of these and similar cases, which might be greatly multiplied, are, although classed under the head of direct evidence, far less satisfactory proof to establish the corpus delicti than many cases which rest entirely upon circumstantial evidence. It is no reason, therefore, for rejecting circumstantial evidence that a few cases can be found in the course of, perhaps as many centuries, where innocent men have been convicted upon this species of evidence, for the results of experience have demonstrated that the same accusation, with equal if not greater force, may be brought against direct evidence. It was well and beautifully said by Park, J., in Rex v. Thurtell, tried for the murder of Weare, at the Hartford assizes, in January, 1824, that “ the Eye of Omniscience can alone see the truth in all cases; circumstantial evidence is there out of the question ; but clothed as we are with the infirmities of human nature, how are we to get at .the truth without a concatenation of circumstances? Though, in human judicature, imperfect as it must necessarily be, it sometimes happens, perhaps in the course of one hundred years,. that in a few solitary instances, owing to the minute and curious, circumstances which sometimes envelope human transactions, error has been committed from a reliance on circumstantial evidence ; yet this species of evidence, in the opinion of all those who are most conversant with the administration of justice, and most skilled in judicial proceedings, is much more satisfactory than the testimony of a single individual who has seen the fact committed.” (1 Cow. & Hill’s notes, 393.)

It was said, by Washington, J., in The United States v. Johns (1 Wash. C. C. R., 372), that circumstantial evidence is’sufficient, and is often more persuasive than the positive evidence of a witness who may be mistaken, whereas a concatenation and a fitness of many circumstances, made out by different witnesses,- can seldom be mistaken or fail to elicit the truth.” It was said, by Livingston, J., that “ the rule, even in a capital case, is, that should the circumstances be sufficient to convince the mind and' remove every rational doubt-, the jury is bound to place as much reliance on such circumstances as on direct and positive proof, for facts and circumstances- cannot- lie.” (Jacobson’s case, 2 C. H. Rec., 143; 1 Cow. & Hill’s Notes, 308.) Burnett says: “ Circumstances are. inflexible froofs’’ (Burn. Com. L. Scotland, 523.) Paley says: “Circumstances cannot lie.” (Prin. Mor. & Pol. Phil., book 6, ch. 9.) Burke, the distinguished statesman and orator, has said that “ when circumstantial proof is in its greatest perfection, that is, when it is most abundant in circumstances, it is much superior to positive proof.” (2.Burke’s Works, 624.) Paley has declared, and with more caution, that “a concurrence of well authenticated circumstances ' composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords.” (Prin. Mor. & Pol. Phil., book 6, ch. 9.) It was said, by Baron Legge, upon the trial of Mary Blandy for murder, that where “ a violent presumption necessarily arises from the circumstances, they are more convincing and satisfactory than any other kind of evidence, because facts cannot lie.” (28 State Trials, 1187.) Mr. Justice Buller stated to the jury, in his charge in the trial of John Donellan for murder, that “ a presumption which necessarily arises from circumstances is very often more convincing and satisfactory than any other kind of evidence, because 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 of contradicting a great part if not all of those circumstances.” ( Gurney's report of trial.) The opinions of judges of similar import might be multiplied to almost any extent, but the character and force of circumstantial evidence is so well defined and recognized by all the elementary writers upon evidence that it becomes unnecessary to pursue it. Starkie, in speaking of circumstantial evidence, says: “ It is, in its own nature capable of producing the highest degree of moral certainty.” (3 Stark. Ev., 479, 480.) The nature and character of circumstantial evidence are as well elucidated and described by Wills, in his admirable book on circumstantial evidence, as in any author which has fallen under my observation. He maintains that circumstantial evidence is capable of producing an equal degree of moral certainty.with direct evidence; and Burrill, in his most excellent treatise on circumstantial evidence, maintains the same claim for it In short, there is not a writer of any respectability upon the principles of evidence but what admits that circumstantial evidence has the inherent capacity to produce moral certainty in its results. It is a principle of circumstantial evidence that it is never permitted to rise to the dignity of proof until it does produce moral certainty. It is correctly said by Mills that a presumption which necessarily arises from circumstances cannot admit of dispute and requires no corroboration. He ádds: “If evidence be so strong as necessarily to produce certainty and conviction, it matters not by what kind of evidence the effect is produced, and the intensity of the proof must be precisely the same whether the evidence be direct or circumstantial. It is not,” he adds, “ intended to deny that circumstantial evidence affords a safe and satisfactory ground of assurance and belief; nor that, in many individual instances, it may be superior in proving power to other individual cases of proof by direct evidence.” ( Wills Cir. Ev., 29, 45.) It was said by Lord Erskine, with the strictest philosophical truth, in the Banbury Peerage case, that “proof is nothing more than a presumption of the highest order.” (Id., 48.) It is equally so, 'whether the evidence be direct or circumstantial. If a witness swears directly to a fact, as a general rule, we regard the fact as proved, because we presume the witness has told the truth; yet it is but a presumption after all. Having considered thus far the nature and character of circumstantial evidence, let us inquire whether it has not sufficient proving power to establish the corpus delicti in a charge of murder.

Lord Hale has often been referred to as authority against the rule, and in some instances has been followed as authority, denying the admissibility and competency of such evidence to establish the corpus delicti in such a case. Lord Hale said: “ I would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the dead body found, for the sake of two cases,” which he states, of wrong convictions, where the body was "not produced or found and identified. (2 Hale, 290; 2 Stark. Ev., 513.)

Now the only reason assigned by Lord Hale against the competency of this species of evidence, if it can be regarded an opinion against its competency, was that, in two instances, convictions had been had upon circumstantial evidence to establish the corpus delicti, when it turned out afterward that the persons ^were innocent.. This is no argument for rejecting this species of evidence, for the same accusation can be brought against the proof of the guilt of the prisoner by circumstantial evidence, where the corpus delicti has been clearly established by direct evidence, and the same charge can be brought' against direct evidence, as we have shown. This remark of Lord Hale,- although it has been often quoted by judges, and has found its way into the elementary books upon evidence and of publicists upon criminal law, yet it has not. been generally regarded as authority, but at most as merely advisory, and.'the rule as stated by him is now generally repudiated as unsound. It is stated by Burrill, in his valuable Treatise on Circumstantial Evidence, that ’ “ the death may be inferred from such strong and unequivocal circumstances as renders it morally; certain, and leaves no ground for reasonable doubt.” (Burr. Cir. Ev., 680.) It is said by Wills, in his most estimable .Essay on Circumstantial Evidence, that it is a fundamental and inflexible rule of legal procedure, and'of universal obligation, to require satisfactory proof of the' corpus delicti, either by direct evidence or by cogent and irresistible grounds of presumption. (Wills Cir. Ev., 156, 178.) He says again (p. 185), - after quoting the remark of Lord Hale, “ that to require the discovery of the body, in all cases, would be unreasonable,. and lead to absurdity and injustice, and is, .indeed, frequently rendered impossible by the act of the offender himself. The • fact of death, therefore,” he adds, “ may. be. inferred from such strong, and unequivocal circumstances of presumption as render it morally certain and leave no ground of reasonable doubt.” (Id., 163-185, 3d Lond.ed.) Greenleaf adopts the rule of Wills. He says that 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 indispensably necessary in cases, where .the ptoof of death is so strong and intense as to produce the full assurance of moral certainty* (3 Greenl. Ev., § 30.)' He cites the. remark of' Lord Hale (id., 121, § 131), andh'egards it as only advisory, and repudiates it as a rule. Starkie (vol. 1, 511, 6th Am. ed.) quotes , Lord Hale with approbation, and declares the rule, in unqualified terms, to be that the corpus delicti can only be proved by direct evidence of the fact, or by discovery and inspection of the dead body. He has, however, referred to the-,subject again- (2 id., 513), and corrected himself in the employment of the following language: “ It has been laid down by Lord Hále, as a rule of prudence in cases of murder, that, to warrant a conviction, proof should be given of the death by evidence of the fact or the actual finding of the dead body.” But he adds, “ although it be certain that no conviction ought to take place unless there is the most full and decisive evidence as to the death, yet it seems that actual proof of the finding and identifying of the body is not absolutely essential.” And it is evident that to lay down a strict rule “ to that extent might be productive of the most horrible consequences.” (2 Stark. Ev., 513, 6th Am. ed.) It is-stated in Russell on Crimes, that it has been holden as a rule that no person should be convicted of murder unless the body of the deceased has been found; and then, after quoting the language of Lord Hale, he adds: “ But this rule, it seems, must be taken with some qualifications; and circumstances may be sufficiently strong to show the fact of murder though the. body has never been found.” (1 Russ. on Cr., 567.) It is sáid by Chitty, in his Criminal Law, that “ It is said to be a good general rule that no man should be found guilty of murder unless the body of the deceased is found, because instances have arisen of persons being executed for murdering others who have afterward been found to be alive. But this rule must be taken rather as a caution than ás a maxim to be-universally observed, for it would be easy, in many instances, so to, conceal the body as to prevent it from being discovered.” (1 Chitty Cr. L., 738; 2 Arch. Cr. Pl., 208, Waterman’s ed.) The following authorities will be found.fully to establish the rule that where the discovery of. the body cannot be had, the corpus delicti may be proved by circumstantial evidence, where the facts and circumstances are so strong as to render it morally certain and leave no ground for reasonable doubt. (Whart. Am. L. of Homicide, 316, 317; Burr. Cir. Ev., 678-680, 70-117; 3 Cow. & Hill's Notes, part 1, 470-472, 562-564, new ed; Whart. Am. Cr. L., 284-286; 2 Arch. Cr. Pl. and Pr., 134, 135, Waterman's ed.; Barb. Cr. L., 455, 2d ed; United States v. Johns, 1 Wash. C. C. R., 372 ; State v. Frier, 1 Wright's Ohio R., 20; United States v. Gilbert, 2 Sumn. C. C. R., 27; Commonwealth v. Webster, 5 Cush., 296; Wills Cir. Ev., 185, 195.) In the cases of The United States v. Gilbert (supra), Justice Story, having this rule of Lord Hale pressed upon him, said: “ The proposition cannot be admitted as correct, in point of common reason or of law, unless courts of justice are to establish a positive rule to secure persons from punishment who may be guilty of the most flagitious crimes. In the case of murders committed on the high seas the body is rarely, if ever found, and a more complete encouragement and protection for the worst offences of this sort could not be invented than a rule of this strictness. It would amount to universal condonation of all murders committed on the high seas.” I assume, therefore, that the corpus delicti, as well as the guilt of the prisoner, may be proved by circumstantial evidence. It is undoubtedly true, as a general rule, that the dead body ought to be found and identified; but, like all other general rules, it has its exceptions. It becomes important, then, to inquire what are the exceptions to this general rule. There is no particular class of cases that can be said in law to form an exception. The application of the familiar and well settled rule in regard to allowing circumstantial evidence to prove a fact, is the only one that can be recognized in such a case; that rule is that circumstantial evidence can never be resorted to except where direct evidence is unattainable. (Wills Cir. Ev., 47.) Starkie says, circumstantial evidence ought in no case to be relied on where direct or positive evidence which might have been brought by the prosecutor is willfully withheld. (1 Stark. Ev., 515; Wills Cir. Ev., 47.) It is not, then, allowed to prevail to the conviction of an offender simply because it is politic, but because it is in its own nature capable of producing the highest degree of moral certainty in its application. ( 1 Stark. Ev., 494, 495.) The mistaken policy which led some of the writers on the civil and common law to modify their rules of evidence according to proof incident to particular crimes, and to adopt the execrable maxim that the more atrocious was the offence the slighter was the proof necessary, has no place in the wise common law principles of evidence as administered in England and this country. ( Wills Cir. Ev., 157, 178.) That no consideration of supposed expediency is permitted to supersede the immutable obligations of justice is a wholesome maxim of our common law rules of evidence. (Id., 173.) Many of the continental codes of Europe prescribe imperative formulae descriptive of the kind and of the amount of evidence necessary to constitute legal proof. (Id., 211, 236.) But this doctrine is wholly repudiated by the common law principles of evidence. It does not attempt to fix with arithmetical exactness a common standard of proof, which shall influence with unvarying intensity and affect the minds of all men alike. (Id., 236.) The common law principle of evidence regards such rules not merely as harmless and superfluous, but as positively pernicious and dangerous to the cause of truth; and while they operate as snares for the conscience of the judge, they are unnecessary for the protection of the innocent, and effective only for the impunity of the guilty. (Id., 236, 237.) In strict accordance with these principles, Mr. Starkie, in discussing the principles of circumstantial evidence, says: “ What circumstances will amount to proof can never be matter of general definition. The legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury. On the one hand, absolute metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt.” (1 Stark. Ev., 514; . 3 id., 514; 1 Cow. & Hill's Notes, 308.) Greenleaf says it is obvious that upon this point no precise rule can be laid down, except, that the evidence ought to, be strong and cogent. (3 Greenl. Ev., 32, § 30.) The doctrine is affirmed, by Wills in the strongest terms. (Wills Cir. Ev., 21, 26, 36, 41, 42.) In the case at bar there was no direct evidence of the corpus delicti,, and as it was most evident that none could be: adduced in the case, I am of opinion, for the reasons above stated, that I was right in saying to the jury, that the corpus delicti might be proved by-circumstantial evidence, when the evidence is so strong and intense as to produce the full certainty .of death, or, in other words, that the death might be inferred from such strong and -unequivocal circumstances- as render it morally certain and leave no ground for reasonable doubt. I cautioned the jury that, before .they could find this issue against the prisoner they must be satisfied from the evidence in the case that it was established by presumptive evidence of the most cogent and irresistible kind; that it was established by circumstances proved, so strong and intense as to produce the. full certainty of death.. Under this charge the jury responded in a-verdict of. guilty. ;It was an. impartial verdict upon the evidence, in the case, and accorded with my own convictions of the case, and entertaining the most deliberate opinion that no principle of law was violated upon the trial, and that no injustice, was done the prisoner in the verdict of the jury, I am of opinion that a new trial should be denied. ,. - ■ •

Gray, J.

. The only question here presented is as to the sufficiency .of circumstantial evidence, to establish the criminal act charged in the indictment. It is stated as a rule, by some elementary writers of high authority upon questions of evidence, that however strong or numerous the circumstances may be to establish a fact that a murder has been committed, they avail nothing unless the death, be first distinctly proved by inspection of the body. (4 Bl. Com., 359; Stark. Ev., 3d ed., 509.)

This.rule originated with' Sir Matthew Hale, who said he would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead, for the sake of two cases. (2 Hale’s P. C., 290.) I have examined those cases, and although there is much in them calculated to induce courts to caution jurors to consider with the greatest care and scrutiny the evidence submitted for their consideration, to keep in mind the legal presumption of innocence and give to the accused the benefit of every reas'onable doubt, yét I am not satisfied that they warrant a court in declaring that they will not carry into execution the verdict of a jury founded upon evidence, to the admissibility of which there is no possible objection, and which comes fully up to the legal test of proof in every other case and upon every other question that can arise, however highly penal the Consequences may be. In one of the cases referred to by Lord Hale, two things occurred out of the ordinary course of legal proceedings, without which a conviction would not have ensued. It was the well known case of an uncle charged with murdering his niece; he was admonished, by the justices before whom he was examined, to find out' the child by the next assizes; not being able to comply with judicial admonition he feared the consequence, and to avoid it brought another child like her in person and years, having appareled her like the true child. The deception was discovered, and upon the presumption arising from the child’s- absence and the fraudulent substitution, he was convicted and executed. It was afterwards discovered that the missing child was living,

The melancholy result in that case -may well be attributed to the extraordinary demeanor of the justices and the accused, and not to any defect in the rule of evidence adopted.

The other is a case, given by Lord Hale, of a man being convicted of the murder of another. The latter had been a long time missing, and was supposed to have been murdered by the accused and consumed by him to ashes in an oven. The accused was convicted and executed, and the latter returned within a year.

It is enough to say of this case, that under the rule now sought to be enforced by the prosecution, properly administered and the accused reasonably well defended, no such conviction could at this age be had. That there have been other cases of conviction where the party supposed to be murdered was, at the time of the conviction,' alive, is undoubtedly true.

We are therefore called upon, on account ot there having been once, perhaps in a century, such an instance, to hold that no conviction can be had unless the act of killing be proved by the evidence of one or more who saw it or the dead body be found. Should this be done, we should, for the same reason, where the dead body is found, hold that the crime of killing and the discovery of the author could not be established by circumstantial evidence. The danger in the latter case is fully equal, if not greater, than in the former, and in the latter case a two-fold evil would be almost necessarily the" result, viz., “the escape of the guilty and the punishment of the innocent.” Past experience has shown that very many instances have occurred in which honest witnesses have testified positively to a fact which subsequent developments have shown not to have existed. Verdicts have been the result of evidence given by peijured witnesses. In either case, we do not know whether the witness speaks the truth, but presume, from the reasonable-' ness of his statement, his deportment upon the stand, and the fact that he is not contradicted, or in any respect impeached, that he has testified truly, and act accordingly. Although circumstantial evidence may technically, in some respects be regarded as inferior or secondary in its character, it is so only when it appears that direct evidence is withheld, and then only for the purpose of avoiding the suspicion that would otherwise rest upon it from the mere circumstance that attainable, direct evidence is withheld. It has therefore sometimes been held that direct evidence should first be produced; both are certainly more conclusive than either. Nevertheless, such evidence is not in any sense inferior to direct evidence; many able jurists have held that a combination of circumstances, so connected with each other as to form a chain of evidentiary facts, is more convincing and less liable to suspicion than what is ordinarily termed direct evidence.

To secure safety in the administration of justice, care is taken, in proportion as the controversy rises in importance, to guard against mistakes and injustice. In criminal trials, the interest at stake being greater, the law has justly thrown around the accused guards against erroneous conclusions to be drawn from evidence, whether direct or circumstantial, which renders it necessary that a higher degree of certainty should be arrived at than in civil cases. No possible objection can be sustained to the admissibility of circumstantial evidence; no one, upon judicial authority, doubts its competency when a death has occurred, to prove not only that the person was killed without authority of law, but to identify the murderer.

Our limited intelligence alone, without the aid of wisdom derived from the experience of those •■by whom rules of evidence have been devised," affords abundant proof that no rules of evidence adapted to the wants of society by the human mind are infallible; differences of opinion are entertained as to whether direct or circumstantial evidence is the least liable to error. A learned commentator says, with great truth, that “ each have their peculiar advantages and characteristic dangers ”; to reject either under all circumstances as insufficient, would result in the clearest injustice. If fallible minds should reject all evidence not infallible, there would be an end to the administration of justice, civil or criminal.

Necessity-has forced upon us rules of evidence, and the protection of civil life is the highest object of our penal laws, and that, to a great extent, is accomplished by a dread of punishment; and notwithstanding. the consequences to the accused' are incalculably serious, yet if the corpus delicti be established by circumstances which come up to the best of proof, so strong and intense as to convince the understanding and consciences of a jury of the full certainty of death, though the dead body be not found, I am unable to discover upon what principle of justice a court can refuse to pronounce judgment upon the verdict. (3 Greenl. on Ev., 32, § 30.)

Mr. Wills, in his valuable treatise upon Circumstantial Evidence, says, that to require the production of the dead body in all cases would be unreasonable, and lead to absurdity and injustice ; and that the death may be inferred from such strong and unquestionable circumstances of presumption as render it reasonably certain, and leave no ground for reasonable doubt. ( Wills on Cir. Ev., 2, 203.)

Were it not so, says Bentham, a murderer, to secure himself with impunity, would have no more, to do but to consume or decompose the body by fire, by lime, or by any other known chemical menstrua, or to sink it in an unfathomable part of the sea. (3 Benth. Jud. Ev., 243.) Justice Story, in the case of The United States v. Gilbert and others (2 Sumn., 19, 27), said of the rule contended for by the counsel for the prisoner, “ It certainly cannot be admitted as correct, in point of common reason or of law, unless courts of justice are to establish a positive rule to screen persons from punishment who maybe guilty of the most flagitious crimes. In c, ses upon the high seas, the body is rarely if ever found, ai l a more complete encouragement and protection for the worst of offences could not he invented than a rule of this strictness. It would amount to a universal. condonation of all murders committed upon the high seas.”

The defendant’s child, at the time of his trial, had been missing over eleven years, under circumstances that fully justified the inference that he had put it to death, and sunk its body and that of its mother, in Cayuga lake. Its clothes with those of its mother, were pawned by him in Chicago, soon after the child and mother were missing, under the assumed name of James H. Revilee ; he then said they had died on Illinois river, south of Chicago.

The party to whom they were pawned, not hearing from him, opened the trunk containing the clothes, and found in it cards inscribed, James H. Eulloff, and on a separate paper, these words, “ Oh, that dreadful hour ” ; also a lock of hair labeled either Harriet’s or Mary’s hair, the witness thought Harriet’s.

The strong force of circumstances against him pressed him to the proof of his assertion that his child had died in Illinois, or that it was seen after the time it was missing; he made no effort to do either, but reposed himself entirely upon the inability of the prosecution to produce the dead body of his child.

I see no ground for interfering with the verdict.