2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or private, permanent or transitory, clear and simple, or complicated; they are always accompanied by circumstances which more or less influence the mind in forming a judgment. And in some instances these circumstances assume the character of irresistible evidence; where, for example, a woman was found dead in a room, with every mark of having met with a violent death, the presence of another person at thescene of action was made manifest by the bloody mark of a left hand visible on her left arm. 14 How. St. Tr. 1324. These points ought to be carefully examined, in order to form a correct opinion. The first question ought to be, is the fact possible ? If so, are there any circumstances which render it impossible ? If the facts are impossible, the witness ought not to be credited. If, for example, a man should swear that he saw the deceased shoot himself with his own pistol, and upon an examination of the ball which killed him, it should be found too large to enter into the pistol, the witness ought not to be credited. 1 Stark. Ev. 505; or if one should swear that another had been guilty of an impossible crime.
3. Toullier mentions a case, which, were it not for the ingenuity of the counsel, would require an apology for its introducion here, on account of its length. The case was this: La Veuve Veron brought an action against M. de Morangies on some notes, which the defendant alleged were fraudulently obtained, for the purpose of recovering 300,000 francs, and the question was, whether the defendant had received the money. Dujonquai, the grandson of the plaintiff, pretended he had himself, alone and on foot, carried this sum in gold to the defendant, at his hotel at the upper end of the rue Saint Jacques, in thirteen trips, between half-past seven and about one o'clock, that is, in about five hours and a half, or, at most, six hours. The fact was improbable; Linquet, the counsel of the defendant, proved it was impossible; and this is his argument:
4. Dujonquai said that he had divided the sum in thirteen bags, each containing six hundred louis d'ors, and in twenty-three other bags, each containing two hundred. There remained twenty-five louis to complete the whole sum, which, Dujonquai said, he received from the defendant as a gratuity. At each of 'these trips, he says, he put a bag, containing two hundred louis, that is, about three pounds four ounces, in each of his coat pockets, which, being made in the fashion of those times, hung about the thighs, and in walking must have incommoded him and obstructed his speed; he took, besides, a bag containing six hundred louis in his arms; by this means his movements were impeded by a weight of near ten pounds.
5. The measured distance between the house where Dujonquai took the bags to the foot of the stairs of the defendant, "as five hundred and sixteen toises, which, multiplied by twenty-six, the thirteen trips going and returning, make thirteen thousand four hundred and sixteen toises, that is, more than five leagues and a half (near seventeen miles), of two thousand four hundred toises, which latter distance is considered sufficient for an hour's walk, of a good walker. Thus, if Dujonquai had been unimpeded by any obstacle, he would barely have had time to perform the task in five or six hours, even without taking any rest orrefreshment. However strikingly improbable this may have been, it was not physically impossible. But
6.- 1. Dujonquai, in going to the defendant's, had to descend sixty-three steps from his grandmother's, the plaintiff's chamber, and to ascend twenty-seven to that of the defendant, in the whole, ninety steps. In return ing, the ascent and descent were changed, but the steps were the same; so that by multiplying, by twenty-six, the number of trips going and returning, it would be seen tbere were two thousand three hundred and forty steps. Experience had proved that in ascending to the top of the tower of Notre Dame (a church in Paris), where there are three hundred and eighty-nine steps, it occupied from eight to nine minutes of time. It must then have taken an hour out of the five or six which had been employed in making the thirteen trips.
7.-2. Dujonquai had to go up the rue Saint Jacques, which is very steep; its ascent would necessarily decrease the speed of a man, burdened and encumberedwith the bags which he carried in his pockets and in his arms.
8.-3. This street, which is very public, is usually, particularly in the morning, encumbered by a multitude of persons going in every direction, so that a person going along must make an infinite number of deviations from a direct line; each by itself, is almost imperceptible, but at the end of five or six hours, they make a considerable sum, which may be estimated at a tenth part of the whole course in a straight line; this would make about half a league, to be added to the five and a half leagues, which is the distance in a direct line.
9. - 4. On the morning that Dujonquai made these trips, the daily and usual incumbrances of this street were increased by sixty or eighty workmen, who were employed in removing by hand and with machine, an enormous stone, intended for the church of Saint Genevieve, now the pantheon, and by the immense crowd which this attracted; this was a remarkable eircumstance, which, supposing that Dujonquai had not yielded to the temptation of stopping a few moments to see what was doing, must necessarily have impeded his way, and made him lose seven or eight minutes each trip, which, multiplied by twenty-six would make about two hours and a half.
10. - 5. The, witness was obliged to open and shut the doors at the defendant's house; it required time to take up the bags and place them in his pockets, to take them out and put them on the defendant's table, who, by an improbable supposition, counted the money in the intervals between the trips, and not in the presence of the witness. Dujonquai, too, must have taken receipts or acknowledgments at each trip, he must read them, and on arriving at home, deposited them in some place of safety all these distractions would necessarily occasion the loss of a few minutes. By adding these with scrupulous nicety, and by further adding the time employed in taking and depositing the bags, the opening and shutting of the doors, the reception of the receipts, the time occupied in reading and putting them away, the time consumed in several conversations, which he admitted he had with persons in the street; all these joined to the obstacles above mentioned, made it evident that it was physically impossible that Dujonquai should have carried the 300,000 francs to the house of the defendant, as he affirmed he had done. Toull. tom. 9, n. 241, p. 384. Vide, gencrally, 1 Stark. Ev. 502; 1 Phil. Ev. 116. See some curious cases of circumstantial evidence in Alis. Pr. Cr. Law, 313, 314; and 2 Theorie des Lois Criminelles, 147, n.; 3 Benth. Jud. Ev. 94, 223; Harvey's Meditations on the Night, note 35; 1 Taylor's Med. Jur. 372; 14 How. St. Tr. 1324; Theory of Presumptive Proof, passim; Best on Pres. SSSS 187, 188, 197. See Death; Presumption; Sonnambulism.