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§ 5. Evidence is matter of fact presented to judicial tribunals. The purpose of evidence and its relation to the pleadings are the best indication of what evidence is. Without refining over a matter of definition, it seems approximately correct to say that evidence, in the legal sense in which we are interested in it, is any matters of fact or alleged fact presented for the consideration of a court or jury to aid it in the determination of issues of fact. Evidence may take various forms. It may be, and most commonly is, testimony or statements by witnesses in court under oath, but it may also be a thing, such as a writing, or a photograph, or a building to be condemned, which the jury may be taken to see in order to fix the value. Whatever it is, it is either in itself a fact, as in the case of the building, or it is the reproduction of facts, as in the case of the photograph and the testimony of witnesses. The testimony may be mistaken or even deliberately falsesuch is the infirmity of human nature-but it always purports to be a statement of fact, and a large part of the work of the courts consists in distinguishing, as accurately as possible, what is really fact from what is error or falsehood.
§ 6. Difference between evidence and argument. must be apparent that the courts are aided in the decision of issues of fact not only by evidence but also by the arguments of counsel, and it is a natural inquiry what is the distinction between the two. The difference is this: Evidence, as has been stated, consists of matters of fact or at least purported matters of fact, and, to insure a reasonably close approximation to fact, it must be given in general by
persons with first-hand knowledge, under the solemnity of an oath. Argument, on the other hand, is not fact or even an original statement of facts, but is a discussion as to the effect of the facts brought out in the evidence, and is dependent upon them; it is not, like evidence, information, but is rather inferences and conclusions in regard to information.
To illustrate: In our perhaps outworn horse case, witness C testified that the horse seemed to him to be sound; and witness B, also the defendant in the case, said that the horse always went lame after being driven a short time. That was the evidence in the case, given by men who had observed the horse and personally knew whereof they spoke. The lawyers for A and B, on the other hand, did not themselves know the horse; probably they never saw it. Instead of presenting facts for the consideration of the jury and court, they took the facts which were given them; their part was to aid the jury in reaching conclusions from the facts presented by the witnesses. So B's lawyer, contending that the horse was unsound, would argue that C seldom saw the horse, that very likely the time when he saw it happened to be when it had not been driven far, and that B driving it constantly would be much more likely than C to know whether it was sound. On the other hand, A's lawyer would argue that B's interest in the suit warped his judgment, and that C, being a disinterested party, was more likely to be right. Thus each lawyer would give, not facts, but his construction of the facts in evidence, and endeavor to make it the view of the jury. The distinction here illustrated obtains generally. Evi
dence is real or purported matters of fact, while argument is reasoning in regard to the facts.
§ 7. Direct and circumstantial evidence. In the present age, circumstantial evidence figures largely in newspaper impressions of courts of justice. Wherein does it differ from what is called direct evidence? Direct evidence is evidence which tends to establish directly a fact in issue, whereas circumstantial evidence tends to establish a fact from which the fact in issue can be inferred. Let us suppose a case in which A is on trial for killing B. C testifies that he saw A shoot B; that B fell instantly, and that, when Cran up, he found B dead with a bullet wound in his temple. That is direct testimony because, without the necessity of inference, it tends to establish the main fact in issue, the killing of B by A. On the other hand D did not see the incident, but he testifies that previously A had told him he would "get even" with B, because B inveigled him into a worthless mining deal. He also testifies that, a few minutes after the shooting was alleged to have occurred, he saw A walking rapidly toward the outskirts of the town; that as A passed a clump of bushes he threw something into it which glistened; that a little farther on A unhitched a horse and buggy tied to a tree beside the road, jumped in, and drove away at a gallop; that D, being then impelled by curiosity, looked under the bush and found a 38 calibre revolver (the same calibre as that of the bullet extracted from B's skull at the autopsy). This testimony of D does not in so many words establish the crime charged against A, but it shows a motive for the killing in A's hatred of B, and subsequent conduct which lends color to the
theory of A's guilt. In other words it establishes facts, in A's hostility and A's movements immediately after the incident, from which A's guilt might be inferred.
§ 8. Weakness of circumstantial evidence. It is apparent that this inference is far from conclusive. Many a man has borne a bitter grudge against another without shooting him, and A's subsequent movements were not necessarily referable to his killing B. His haste might have been due to a business engagement in the next town which he was barely in time to keep; and he might have thrown away the revolver simply as a matter of precaution, seeing the shooting, fearing he might be wrongfully sus pected if the revolver were found on his person, and thinking he was unobserved when he cast the weapon aside. This may seem improbable, yet it is not impossible, and it indicates the chance of error in circumstantial evidence. In the case put, with the direct testimony of C, it would seem to leave no doubt of A's guilt; by itself, without corroborative evidence, it would hardly prove A's guilt beyond a reasonable doubt. So skeptical are some persons of circumstantial evidence that, as jurymen, they would not vote a conviction on circumstantial evidence alone, however strong the chain of circumstances might seem. It is common, in important trials, for prospective jurors to be rejected on the ground that they would not give such evidence its due weight. Moreover, there is one crime of which a conviction can never be obtained on circumstantial evidence alone: the Constitution of the United States requires that for a conviction of treason there must be the
testimony of two witnesses to the same overt act or a confession in open court (2).
§ 9. Degree of difference between circumstantial and direct evidence. While ordinarily, therefore, direct evidence might seem to be more satisfactory than circumstantial evidence, this does not by any means tell the whole story. In the first place, the difference between the two is more a difference of degree than of kind. C says that he saw A kill B; that we call direct evidence. What he really saw, however, as he will state when he tells his story in detail on the witness stand, was a revolver raised by A, a flash followed by a report, and B falling, and from these circumstances we infer that A killed B. The inference is automatic and instantaneous, instead of conscious and delayed, as in the case of the inference from A's hatred of B and his subsequent conduct, but it is still an inference.
§ 10. Strength of circumstantial evidence. More important than this theoretical consideration is the fact that circumstantial evidence is sometimes the only evidence available, and that, if properly scrutinized and weighed, it may be practically as safe a guide in the solution of issues of fact as direct evidence. For instance a watch is taken from A's residence during his absence. No one sees the theft, but B pawns the watch the next day. He is arrested and A identifies the prisoner as a man whom he saw at the nearest corner when he went out; he also identifies the watch pawned by B, as his own; C completes the chain when he sees the prisoner, and remembers that he noticed him coming down the walk from A's residence a
(2) U. S. Const., Art. III, sec. 3.