2o. Probative force of presumptive evidence. Division of presumptions into violent, probable, and light. Illustration of violent pre- are founded on the customs and habits of society; as, for instance, that a man to whom several sums of money are owing by another will take in the debts of longest standing first, &c. (t) § 306. 2°. The vast field over which presumptive reasoning extends must render ineffectual any attempt to reduce the presumptions to which it gives rise into definite classes, according to their degree of probative force. Some classification, however, has generally been deemed convenient (u), and there is one which, on the strength of some high authorities, seems to have become embodied into our law of evidence. "Many times," says Sir Edward Coke (x), “juries, together with other matter, are much induced by presumptions; whereof there be three sorts, viz. violent, probable, and light or temerary. Violenta præsumptio is many times plena probatio; præsumptio probabilis moveth little; but præsumptio levis seu temeraria moveth not at all." As an instance of violenta præsumptio, amounting to plena probatio, the same author (y), and in this he is followed by several others of great eminence (~), puts the case of a man being run through the body with a sword in a house, of which he instantly dies, and another man is seen to come out of that house with a bloody sword, and no other man was at that time in the house. "This," observes Lord Chief Baron Gilbert (a), "is a violent presumption that he is the murderer; for the blood, the weapon, and the hasty flight, are all the necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself, is the proof of those (t) Gilb. Ev. 157, 158, 4th Ed.; Poth. Obl. § 812; Cod. lib. 10, tit. 22, 1. 3. (u) A large number, taken from the works of the earlier civilians, are collected by Menochius, Tr. de Præs. lib. 1, quæst. 2. (r) Co. Litt. 6 b. (x) 2 Hawk. P. C. c. 46, s. 42; 1 Stark. Ev. 562, 3rd Ed.; Id. 843, 4th Ed.; Gilb. Evid. 157, 4th Ed. (a) Gilb. in loc. cit. circumstances that do necessarily attend such fact." Notwithstanding the weight of authority in its favour, Objections to it. the above illustration of violent presumption has been made the subject of much and deserved observation. If the authors above quoted mean to say, as their words imply, that there is no possible mode of reconciling the above facts with the innocence of the man seen coming out of the house, the proposition is monstrous! Either of the following hypotheses will reconcile them, and probably others might be suggested. First, the deceased, with the intention of committing suicide, might have plunged the sword into his own. body; the accused, not being in time to prevent him, drew out the sword, and ran out, through confusion of mind, for surgical assistance (b). Second, the deceased and the accused might have both worn swords; the deceased, in a fit of passion, attacked the accused; the accused, being close to the wall, had no retreat, and had just time enough to draw his sword, in the hope of keeping off the deceased, who, not seeing the sword in time, ran upon it, and was killed (c). It is, however, possible that Sir Edward Coke and Chief Baron Gilbert only meant that the above facts would constitute a sufficient primâ facie case to call on the accused for his defence, and, in the absence of explanation by him, warrant the jury in declaring him guilty (d). (b) 3 Benth. Jud. Ev. 236; Burnett's Crim. Law Scotl. 508. (c) 3 Benth. Jud. Ev. 236, 237. (d) Their language seems to have been so understood by Mounteney, B., in the case of Annesley v. The Earl of Anglesea. (17 Ho. St. Tr. 1430). Mr. Starkie however says that the circumstances wholly and necessarily exclude any but one hypothesis. (1 Stark. Ev. 562, 3rd Ed.; Id. 844, 4th Ed.) -The illustration given by Sir Utility of threefold classification doubtful. Illustration of it. Division of presumptions of fact into slight and strong. § 307. The utility of the classification of presumptions into violent, probable, and light, is very questionable (e); but lest it be thought desirable to retain it, the following good illustration is added from a well known work on criminal law. "Upon an indictment for stealing in a dwelling-house, if the defendant were apprehended a few yards from the outer door, with the stolen goods in his possession, it would be a violent presumption of his having stolen them; but if they were found in his lodgings some time after the larceny, and he refused to account for his possession of them, this, together with proof that they were actually stolen, would amount, not to a violent, but to a probable presumption merely; but, if the property were not found recently after the loss, as, for instance, not until sixteen months after, it would be but a light or rash presumption, and" (understand if standing alone)" entitled to no weight” (ƒ). § 308. A division of presumptions of facts, more accurate in principle and more useful in practice, is obtained by considering them with reference to their effect on the onus probandi, or burden of proof; the general principles and rules of which have been explained in a former part of this work (g). Præsumptiones hominis, or presumptions of fact, are divided into slight and strong, according as they do or do not affect the burden of proof (h). Furtis, 121 a, Ed. Lugd. 1547); ened civilians, both before and since the time of Coke. See Boerius, Quæstiones, 168; Voet. ad Pand. lib. 22, tit. 3, N. 14, &c. (e) 2 Gr. Russ. 727. (ƒ) Archb. Crim. Plead. 199, 12th Ed. (g) Supra, Book 1, ch. 2. (h) "Præsumptio [hominis] rectè dividitur in leviorem, et fortiorem. Levior movet suspicio Slight presumptions, although sufficient to excite sus- Slight prepicion, or produce an impression in favour of the truth sumptions; of the facts they indicate, do not, when taken singly, either constitute proof, or shift the burden of proof. do not constitute proof, or Thus, stolen property found in the possession of the sup- shift the burden posed criminal a long time after the theft, though well of proof. calculated to excite suspicion against him, is, when standing alone, insufficient even to put him on his defence (i). So, when money has been stolen, and money similar in amount and the nature of the pieces is found in the possession of another person, but none of the pieces are identified, and there is no other evidence against him (k). And in the civil law, where a guardian who originally had no estate of his own became opulent during the continuance of his guardianship, this fact, standing alone, was deemed insufficient to raise even a primâ facie case of dishonesty against him (1); the Code justly observing, "nec enim pauperibus industria, vel augmentum patrimonii quod laboribus, et multis casibus quæritur, interdicendum est." (m). To this class also belong the presumptions of guilt derived from footmarks resembling those of a particular person being found on the snow or ground near the scene of crime (n), the presumption of homicide from previous quarrels (o), or from the accused having a pecuniary interest in the death of the deceased (p). § 309. But although presumptions of this kind are of Use and effect nem, et judicem quodammodo (i) Supra, Part 2, ch. 2. Id. 854, 4th Ed. (1) Voet. ad Pand. lib. 22, tit. 3, N. 14. (m) Cod. lib. 5, tit. 51, 1. 10; 2 Ev. Poth. 345. (n) Mascardus de Probat. quæst. 8, NN. 21-23. (0) Domat, Lois Civiles, Part. 1, liv. 3, tit. 6, Préamb. (p) 3 Benth. Jud. Ev. 188. of slight presumptions. no weight when standing alone, still they not only form important links in a chain of evidence, and frequently render complete a body of proof which would otherwise be imperfect; but the concurrence of a large number of them may, (each contributing its individual share of probability), not only shift the onus probandi, but amount to proof of the most convincing kind (q). Condemnations, even of capital offences, constantly take place on this kind of evidence (r); and the following good illustration, in a civil case, is given by Pothier from the text of the Roman law:-" A sister was charged with the -"A payment of a sum of money to her brother; after the death of the brother, there was a question, whether this was still due to his representatives. Papinian held that it ought to be presumed that the brother had released it to his sister; and he founded the presumption of such release on three circumstances:-1st, The harmony which subsisted between the brother and sister; 2nd, The brother having lived a long time without demanding the money; and 3rd, From a great number of accounts being produced which had passed between the brother and sister upon their respective affairs, in none of which there was any mention made of it. Each of these circumstances, taken separately, would only have formed a simple presumption, insufficient to establish that the deceased had released the debt, but their concurrence appeared to Papinian to be sufficient proof of such release (s).” (q) Poth. Obl. art. 815, 816; Huberus, Præl. Jur. Civ. lib. 22, tit. 3, N. 4 and 16; Id. Positiones Jur. sec. Pand. lib. 22, tit. 3, N. 19; Matth. de Crim. ad lib. 48 Dig. tit. 15, c. 6; Voet. ad Pand. lib. 22, tit. 3, N. 18; 1 Stark. Ev. 570, 3rd Ed.; Id. 855, 4th Ed. "A man's having observed the ebb and flow of the tide to-day, affords some sort of presumption, though the lowest imaginable, that it may happen again to-morrow: but the observation of this event for so many days, and months, and ages together, as it has been observed by mankind, gives us a full assurance that it will.” Butler's Analogy of Religion, Introduction. (r) See infru, sect. 3, and Appendix, N. 2. (s) Poth. Obl. art. 816. This is the law"Procula," which will |