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ed. Banbury Peerage case, 2 Selw. N. P. 709. So where a letter is sent with a parcel of goods, it will be presumed to relate to the goods, so as to come within the proviso of 43 Geo. 3, c. 81. Bennet v. Clough, 1 B. and A. 461.

Upon the same principle it will be presumed, where persons act in a public capacity, that they have been regularly appointed (1). Thus the fact of a person acting in the character of a surrogate is prima facie evidence that he was duly appointed, and had competent authority. Verelst's case, 3 Campb. 432, ante, p. 7. So where a person acts as a special commissioner, for taking affidavits. Howard's case, 1 Moody and Rob. 187. Ante, p. 7. So where a person acts as a peace officer, justice of the peace, &c., it is a general presumption of law that he is duly authorized to do so. Per Buller, J., Berryman v. Wise, 4 T. R. 366. Ante, p. 7. And on an indictment for the murder of a constable in the execution of his duty, it has been held not to be necessary to produce his appointment, it being sufficient if he was known to act as consta- [#17] ble. Gordon's case, 1 Leach, 515. I East, P. C. 352. S. C. ante, p. 7. So evidence that a letter carrier acted as such is sufficient without proving his appointment. Per Parke, B., Rees's case, 6 C. & P. 606. So it is sufficient to show that a person acted in a public service without producing his appointment. Per Littledale, J., Bolland, B., and Bosanquet, J., Borrett's case, 6 C. & P. 124 (a). So where constables and watchmen have been appointed by commissioners under a local act. Butler v. Ford,

3 Tyrwh. 677.1 Cr. and M. 662. Where certain trustees were empowered by two private acts of parliament to raise money to build a new church, and they had made a church rate under such acts, Coleridge, J., held that proof that they all acted as trustees on one occasion previous to signing the rate was evidence to go to the jury that they were trustees. Murphy's case, 8 C. and P. 310 (b).

In all these cases, however, the evidence is not conclusive and may be rebutted. 3 Tyrwh. 684. 1 Cr. and M. 669.

·Of guilt—arising from the conduct of the party charged, at the time of or after the charge.] In almost every criminal case a portion of the evidence laid before the jury consists of the conduct of the party at the time of, or after being charged with the offence. Thus it is frequently proved that upon being charged he fled, or endeavored to make his escape (2). Upon this proof it is said by Smith, B. that he had the authority of the law to say, that though a man charged with an offence should fly, that it is not conclusive evidence of guilt. The jury could not forget that one of the oaths they had taken was, whether the prisoner had fled in consequence of the charge made on him; but though it should be established that he fled in consequence of the charge, yet it did not follow of necessity that he was guilty of the murder; though it was a circumstance materially unfavorable and suspicious. Crawley's case, 40

(1) Dean v. Gridley, 10 Wend. 254. Bryden v. Taylor, 2 Har. & Johns. 396. So the presumption is that an officer has done his duty. Winslow v. Beall, 6 Call, 44. (2) “ Flight may be very strong evidence of the circumstances under which it takes place. the prisoner, and it lies upon her to rebut it."

guilt, or it may weigh nothing according to The legal presumption from flight is against Fox, J. Chapman's Trial, Pamphl. p. 213.

(a) Eng. Com. L. Rep. xxv. 559. (b) Id. xxxiv. 404.

Geo. 3. M'Nally on Ev. 577. The introduction of a falsehood into the defence is also a presumption against the prisoner. This presumption is heightened if the falsehood is to be supported, as it almost necessarily must be, by a witness conscious of it. Clarke's case, Bury Spring Assizes, 1789, Gilb. Ev. by Loft, 898. M'Nally on Ev. 580. No presumption of guilt arises from the silence of a prisoner when, on his examination before a magistrate, he is charged by another prisoner with having been joined in the commission of the offence. Appleby's case, 3 Stark. 33 (a). Vide post.

In weighing the effect of the presumptive evidence furnished by the conduct of a person charged with the criminal offence, great caution should be exercised. An innocent man finding himself in a situation of difficulty, and perhaps from the circumstances of the case, of danger, is sometimes induced to adopt a line of conduct which bears with it a presumption of guilt. A strong instance of this is to be found in Hale, 2 P. C. 290 (n). The case was thus: An uncle, who had the bringing up [18] of his niece, to whom he was *heir at law, correcting her for some offence, she was heard to say, Good uncle, do not kill me! after which she could not be found. The uncle was committed on suspicion of having murdered her, and was admonished by the judge of the assize to find out the child by the next assizes. Being unable to discover his niece, he brought another child, dressed like his niece, and resembling her in person and years; but, on examination, the fraud was detected, and upon. the presumption of guilt which these circumstances afforded, he was found guilty and executed. The child afterwards re-appeared, when of age, to claim her land. On being beaten by her uncle, she had run away, and had been received by a stranger.

Various other instances of the presumption of guilt arising from the conduct of the party before the charge, will be found in the following pages.

Presumption of guilt, arising from the possession of stolen property, &c.] The most common case of presumptive evidence in criminal proceedings, is the presumption arising from the possession of stolen property (1). The rules on this subject are well stated by Mr. East. may be laid down generally, he says, that whenever the property of one man, which has been taken from him without his knowledge or consent, is found upon another, it is incumbent on that other to prove how he came by it; otherwise the presumption is, that he obtained it feloniously. This, like every other presumption, is strengthened, weakened, or rebutted by concomitant circumstances, too numerous in the nature of the thing to be detailed. It will be sufficient to allude to some of the most prominent; such as the length of time which has elapsed between the loss of the property, and the finding it again; either as it may furnish more or less doubt of the identity of it, or as it may have changed hands oftener in the meantime, or it may have increased the difficulty to the prisoner of accounting how he came by it; in all which considerations that of the nature of the property must generally be mingled. So the probability of the prisoner's having been near the spot, from whence the

(1) Pennsylvania v. Myers, Addis. 320. State v. Jenkins, 2 Tyler, 379.
(a) Eng. Com. L. Rep. xiv. 152.

property is supposed to have been taken, at the time; as well as his conduct during the whole transaction, both before and after the recovery, are material ingredients in the investigation. But the bare circumstance of finding in one's possession property of the same kind which another had lost, unless that other can, from marks or circumstances, satisfy the court and jury of the identity of it, is not in general sufficient evidence of the goods having been feloniously obtained. Though where the fact is very recent, so as to afford a reasonable presumption that the property could not have been acquired in any other manner, the court are warranted in concluding it is the same, unless the prisoner can prove the contrary. Thus, a man being found coming out of another's barn, and upon search, corn being found upon him of the same kind with what was in the barn, is pregnant evidence of guilt. So persons employed in carrying sugar and other articles from ships, and wharfs, have often been con- [19] victed of larceny at the Old Bailey, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could not otherwise be proved. But this must be understood of articles like those above mentioned, the identity of which is not capable of strict proof from the nature of them. 2 East, P. C. 656. The fact of concealment (the identity of the property not being proved) is not of itself evidence of stealing, though undoubtedly very strong corroborative proof of it. Id. 657. 3 Inst. 98.

Where stolen property was found in the possession of a person, but sixteen months had elapsed since the larceny, Bayley, J., held that the prisoner could not be called on to account for the manner in which it came into his possession. Anon. 2 C. & P. 459 (a). Where seventy sheep were stolen on Thorley common, on the 18th of June, but were not missed till November, and the prisoner was in possession of four of the sheep, in October, and of nineteen others on the 23d of November, Bayley, J., allowed evidence of the possession of both to be given. Dewhurst's case, 2 Stark. Ev. 449 (n.) 2d ed.

Cases frequently arise of the discovery of property recently after its being stolen, in the house of a particular person, but the weight of this evidence must depend upon the accompanying circumstances of the case.

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be carefully observed," says Mr. Starkie, "that the mere finding of stolen goods in the house of the prisoner, where there are other inmates capable of stealing the property, is insufficient evidence to prove a possession by the prisoner." 2 Stark. Ev. 450 (n.) 2d ed.

In order to render evidence of the possession of stolen property admissible, it is not necessary that the discovery should take place before the apprehension of the prisoner. In Watson's case, 2 Stark. 139, (b) Lord Ellenborough cited a case from recollection, where a butler to a banker had been taken up on suspicion of having committed a great robbery. The prisoner had been seen near the privy, and the circumstance having excited suspicion in the minds of the counsel, who considered the case during the York assizes, at their instance, search was made, and in the privy all the plate was found. The plate was produced, and the prisoner was in consequence convicted. He had been separated from the custody of the plate since he had been confined in York Castle for some time, but

(a) Eng. Com. L. Rep. xii. 216. (b) Id. iii. 285.

no doubt was entertained as to the admissibility of the evidence; and Abbott, J., observed that an assize had scarcely ever occurred, where it did not happen that part of the evidence against a prisoner consisted of proof that the stolen property was found in his house after his apprehen


The possession of stolen property is sometimes used, not as presumptive evidence of the fact of larceny, but as proof of the commission of another offence. Thus on a charge of arson, the evidence of the prisoners' having been present and implicated in the fact was, that a bed and blankets [ 20 ] were afterwards found in their *possession, which had been taken out of the house at the time it was fired, and concealed by them; Buller, J., doubted at first whether such evidence of another felony could be admitted in support of the charge, but. as it seemed to be all one act, he admitted it. Rickman's case, 2 East, P C. 1035.

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Where two prisoners were jointly indicted for stealing two horses, the property of different persons, and it appeared that the original larceny was in Somersetshire, on different days, and at different places, but the prisoners were found in joint possession of them in Wilts, where they were indicted; on an objection that the prosecutor must elect upon which of the felonies to proceed, Littledale, J., said, "If you could confine your evidence entirely to a single felony in this county, you need not elect; but this you cannot do, for you must prove that the horses were originally stolen in another county. The possession of stolen property, soon after a robbery, is not in itself a felony, though it raises a presumption that the possessor is the thief; it refers to the original taking with all its circumstances." Smith's Case, Ry. and Moo. N. P. C. 295 (a).


In the application of the evidence respecting the possession of stolen property, great caution is necessary. "If a horse be stolen from A." says Lord Hale, "and the same day B. be found upon him, it is a strong presumption that B. stole him; yet I do remember, before a very learned and wary judge, in such an instance B. was condemned and executed at Oxford assizes; and yet within two assizes after, C. being apprehended for another robbery, upon his judgment and execution confessed he was the man that stole the horse, and being closely pursued, desired B., a stranger, to walk his horse for him while he turned aside upon a necessary occasion, and escaped, and B. was apprehended with the horse, and died innocently." 2 Hale, P. C. 289. The following remarks by Mr. East, on this subject are well deserving of attention. "It has been stated before, that the person in whose possession stolen goods are found must account how he came by them, otherwise he may be presumed to be the thief; and it is a common mode of defence, to state a delivery by a person unknown, and of whom no evidence is given; little or no reliance can consequently be had upon it. Yet cases of that sort have been known to happen, where persons really innocent have suffered under such a presumption, and therefore, where this excuse is urged, it is a matter of no little weight to consider how far the conduct of the prisoner has tallied with his defence, from the time when the goods might be presumed to have first come into his possession." 2 East, P. C. 665.

Presumption of malice, &c.] When a man commits an unlawful act,

(a) Eng. Com. L. Rep. xxi. 443.


unaccompanied by any circumstances justifying the commission of it, it is a presumption of law, that he has aeted advisedly, and with an intent to produce the consequences which have ensued. See Dixon's case, 3 M. and S. 15. Thus a presumption of malice arises in many cases. every charge of murder," says Mr. Justice *Foster," the fact of [ 21 ] killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise. out of the evidence produced against him, for the law presumes the fact to be founded in malice, until the contrary appears." Foster, 255; 1 Hale, P. C. 155; 1 East, P. C. 340. Where a man was convicted of setting fire to a mill, with intent to injure the occupiers thereof, a doubt occurred whether, under the words of 43 Geo. 3, c. 58, an intent to injure or defraud some person was not necessary to be proved; or at least some fact from which such intention could be inferred, beyond the mere act of setting the mill on fire; but the judges were of opinion that a person who does an act wilfully, necessarily intends that which must be the consequence of the act, viz., injury to the owner of the mill burned. Farrington's case, Russ. and Ry. 207 (a). See also Philp's case, 1 Moody, C. C. 263 (b).

Presumption of intent to defraud.] An intent to defraud may be presumed where the effect of the act committed by the party is to defraud another party. Thus where a person was indicted for disposing of a forged bank note, with intent to defraud the Bank of England, and the jury found that the intention of the prisoner was to defraud whoever might take the note, and that the intention of defrauding the bank in particular did not enter into his contemplation, a question was submitted to the judges, whether an intention to defraud the bank ought to be inferred, where that intention was not likely to exist in the prisoner's mind, and where the caution ordinarily used would naturally protect the bank from being defrauded? Their Lordships were of opinion, that the prisoner, upon the evidence in this case, must be taken to have intended to defraud the bank, and consequently that the conviction was right. Mazagora's case, Russ and Ry. 291 (c). And even where the prosecutor, on an indictment for forging a receipt with intent to defraud him, swore that he believed the prisoner had no such intent, the judge told the jury that the defrauding being the necessary effect and consequence of the forgery, it was sufficient evidence of the intent of the prisoner for them to convict him; and he was convicted accordingly. The twelve judges held the conviction to be right. Sheppard's case, Russ. and Ry. 169 (d). So where, on an indictment for uttering a forged bill of exchange, Alderson, B. told the jury that if they were satisfied that the prisoner uttered the bill as a true bill, meaning it to be taken as such, and when he did so knew it to be forged, they ought to find, as a necessary consequence of law, that he meant to defraud. The judges held that the direction was right. Hill's case, 8 C. and P. 274 (e). See also Philp's case, 1. Moody, C. C. 263 (ƒ). Beard's case, 8 C. and P. 143 (g).

Presumption of the duration of life.] In analogy to the statute re

(a) 1 Eng. Crown Cases, 207. (b) 2 Ibid. 263. (c) 1 Ibid. 291. (d) 1 Ibid. 169. (e) Eng. Com. L. Rep. xxxiv. 388. (ƒ) 2 Eng. Cr. Cas. 263. (g) 2 Eng. Com. L. Rep. xxxiv. 329.

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