were shown into a room below, where the prisoners were sitting; that after they had been there some hours, the landlady, wife of the prisoner Durrand, came into the room where she was lying, and looked in her face with her candle to see if she was sleeping; and that her suspicions being excited, she followed her, and saw the three prisoners Mrs. Durrand, and seven or eight other persons surrounding Small's dead body; that the arms were akimbo, as if death had taken place during a desperate struggle; that the whole party took the body down into a cellar; and that she, the witness, followed them, and saw through the keyhole that Mrs. Durrand took 201. in bank-notes out of the pocket of the deceased, and divided it among the three prisoners; that the body was taken out about three in the morning, carried to the back of the pier, and there thrown over. Farquhar, who was present at the murder, deposed that the three prisoners and Small, the deceased, were in the room together, when a quarrel ensued between Durrand and Small about some dead bodies, which Small said had been sent from his house to the doctor's in Edinburgh; that Durrand rose up, seized Small, threw him down, twisted his neckcloth round, and struck him violently on the head with a bottle,

which immediately occasioned his death; that neither of the other prisoners took part in the affray, except Henderson, who, when the struggle began, put out the candle; that the body was taken down to the cellar, and the money divided, and the corpse afterwards thrown over the pier. So far the case was distinctly proved, and Lords Meadowbank and Mackenzie considered the guilt of Durrand established; though, as there was no clear evidence of the murder having been preconcerted, they held there was no sufficient case against the other prisoners. Six witnesses also swore that Emily Sutherland, the servant-girl, was in Durrand's service at that time; on the other hand eight witnesses swore that she was not there at that time, and did not come for a twelvemonth afterwards; and four witnesses, who however were all relations of Mrs. Durrand, deposed that she was also absent on the night in question. To complete the embarrassment, the prisoner Jamieson in his declaration confessed the crime, and told the story in nearly the same terms as Farquhar. The prisoner Durrand confessed in his declaration that Emily Sutherland was his servant at the time in question; and the prisoner Henderson declared that Mrs. Durrand was in the house at that time. With such contra

dictory evidence, the prosecutor declined to ask for a conviction; but the impression of the Court was that Durrand was really guilty, and that the alibi was got up by fixing real occurrences at another time on the day of the murder, and in this opinion they were supported by the great authority of Baron Hume on reading the evidence*.

The following judicious observations on the subject of this particular defence, from the pen of an able writer on the Criminal Law of Scotland, are deserving of notice :-" After all, the jury are frequently reduced to the difficult and painful duty of weighing the testimony on the one side against that on the other; and in doing so it is their duty, on the one hand, to recollect that the presumption of law as well as of justice is against the prosecutor, and therefore that if the evidence on both sides is equal, or nearly so, they should incline to the side of mercy; and on the other, how much more easy it is to get up a false story of alibi, where the whole to be proved is the presence of the prisoner at a particular place at a particular time, than a false account of all the minute par

* Allison's Principles of the Criminal Law of Scotland, p. 84.

ticulars relating to so many different matters, which is necessarily implied in the proof of a false charge against a prisoner*."

* Allison's Practice of the Criminal Law of Scotland, p. 626.

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CHAPTER IV.

INCULPATORY CIRCUMSTANTIAL EVIDENCE.

PART II.

EXTRINSIC AND MECHANICAL FACTS.

INCULPATORY circumstances of an extrinsic and mechanical nature, are such as are derived from the physical peculiarities and characteristics of persons and things,-from facts apparently independent of moral indications. Such facts are intimately related to, and as it were dovetail with the corpus delicti; and they are the links which establish the connexion between the guilty act and its invisible moral origin. It is impossible even to classify, and still less to attempt an enumeration of, evidentiary facts of the kind in question; but it may be interesting and instructive, by way of illustration, to advert to some of the principal heads of evidence of this kind, and to some remarkable cases which have occurred in the records of our criminal jurisprudence.

The principal facts of circumstantial evidence,