4 Barb. 438 | N.Y. Sup. Ct. | 1848
The only question of importance presented by the bill of exceptions, arises upon the exception taken by the counsel for the accused, to that part of the charge of the court in which, after charging that the prisoner must be convicted, if at all, upon the strength of the proof against him, he told the jury “ that this rule did not relieve him from the necessity of explaining any circumstances against him, and the jury might take the fact that the prisoner had
The rule which imposes upon a litigant the obligation of producing evidence, which will contradict or explain circumstantial evidence against him, requires him to do so only when he is pressed by circumstantial proof, having it in his power to destroy its apparent force. (1 Cowen and Hill’s Notes, 310, and cases there cited. 1 Starkie, 34. 3 Id. 487.) Before the absence of evidence can affect the accused, it must appear that there is evidence that would elucidate the matter in dispute, and that it is peculiarly within the knowledge of the accused; and then if he is pressed by the force of circumstantial evidence and does not produce the evidence within his power, it may afford a strong presumption against him. According to the literal interpretation of the charge, if the jury had been convinced that the sister and brothers of the accused would fail to corroborate their mother, for no other reason than the want of knowledge on the subject, and were therefore left at home, or “ kept back,” then their ignorance would be a circumstance against him. If the literal be the fair construction of the charge, then it is manifestly erroneous. The court could not have intended to be thus understood. I shall assume that they intended to instruct the jury, that if they were convinced that the sister and brothers were not produced because they disagreed with, and therefore would not corroborate their mother, that their absence was a circqmstance against the accused. Without having knowledge upon the question whether the accused “ left his room on the night of the 29th of September,” they could not have disagreed with their mother in that respect; and hence the question is as to their knowledge whether the accused left his room that night.
The sister, on the night referred to, slept in a room under the bed room of the accused, and adjoining the one through which he passed in going to and from his room, and the brothers slept