The crowd stirred. The counsel for the People smiled. The judge looked sharply at the speaker over his glasses. "On what ground?" he said curtly.
"On the ground," replied Mason, "that the corpus delicti has not been proven."
"Ah!" said the judge, for once losing his judicial gravity.
Mason sat down abruptly. The senior counsel for the prosecution was on his feet in a moment.
"What!" he said, "the gentleman bases his motion on a failure to establish the corpus delicti? Does he jest, or has he forgotten the evidence? The term 'corpus delicti' is technical, and means the body of the crime, or the substantial fact that a crime has been committed. Does any one doubt it in this case? It is true that no one actually saw the prisoner kill the decedent, and that he has so sucessfully hidden the body that it has not been found, but the powerful chain of circumstances, clear and close-linked, proving motive, the criminal agency, and the criminal act, is overwhelming.
"The victim in this case is on the eve of making a statement that would prove fatal to the prisoner. The night before the statement is to be made he goes to her residence. They quarrel. Her voice is heard, raised high in the greatest passion, denouncing him, and charging that he is a murderer, that she has the evidence and will reveal it, that he shall be hanged, and that he shall not be rid of her. Here is the motive for the crime, clear as light. Are not the bloody knife, the bloody dress, the bloody clothes of the prisoner, unimpeachable witnesses to the criminal act? The criminal agency of the prisoner has not the shadow of a possibility to obscure it. His motive is gigantic. The blood on him, and his despair when arrested, cry 'Murder! murder!' with a thousand tongues.
"Men may lie, but circumstances cannot. The thousand hopes and fears and passions of men may delude, or bias the witness. Yet it is beyond the human mind to conceive that a clear, complete chain of concatenated circumstances can be in error. Hence it is that the greatest jurists have declared that such evidence, being rarely liable to delusion or fraud, is safest and most powerful. The machinery of human justice cannot guard against the remote and improbable doubt. The inference is persistent in the affairs of men. It is the only means by which the human mind reaches the truth. If you forbid the jury to exercise it, you bid them work after first striking off their hands. Rule out the irresistible inference, and the end of justice is come in this land; and you may as well leave the spider to weave his web through the abandoned courtroom."
The attorney stopped, looked down at Mason with a pompous sneer, and retired to his place at the table. The judge sat thoughtful and motionless. The jurymen leaned forward in their seats.
"If your Honor please," said Mason, rising, "this is a matter of law, plain, clear, and so well settled in the State of New York that even counsel for the People should know it. The question before your Honor is simple. If the corpus delicti, the body of the crime, has been proven, as required by the laws of the commonwealth, then this case should go to the jury. If not, then it is the duty of this Court to direct the jury to find the prisoner not guilty. There is here no room for judicial discretion. Your Honor has but to recall and apply the rigid rule announced by our courts prescribing distinctly how the corpus delicti in murder must be proven.
"The prisoner here stands charged with the highest crime. The law demands, first, that the crime, as a fact, be established. The fact that the victim is indeed dead must first be made certain before any one can be convicted for her killing, because, so long as there remains the remotest doubt as to the death, there can be no certainty as to the criminal agent, although the circumstantial evidence indicating the guilt of the accused may be positive, complete, and utterly irresistible. In murder, the corpus delicti, or body of the crime, is composed of two elements:
"Death, as a result.
"The criminal agency of another as the means.
"It is the fixed and immutable law of this State, laid down in the leading case of Ruloff v. The People, and binding upon this Court, that both components of the corpus delicti shall not be established by circumstantial evidence. There must be direct proof of one or the other of these two component elements of the corpus delicti. If one is proven by direct evidence, the other may be presumed; but both shall not be presumed from circumstances, no matter how powerful, how cogent, or how completely overwhelming the circumstances may be. In other words, no man can be convicted of murder in the State of New York, unless the body of the victim be found and identified, or there be direct proof that the prisoner did some act adequate to produce death, and did it in such a manner as to account for the disappearance of the body."
The face of the judge cleared and grew hard. The members of the bar were attentive and alert; they were beginning to see the legal escape open up. The audience were puzzled; they did not yet understand. Mason turned to the counsel for the People. His ugly face was bitter with contempt.
"For three days," he said, "I have been tortured by this useless and expensive farce. If counsel for the People had been other than playactors, they would have known in the beginning that Victor Ancona could not be convicted for murder, unless he were confronted in this courtroom with a living witness, who had looked into the dead face of Nina San Croix; or, if not that, a living witness who had seen him drive the dagger into her bosom.
"I care not if the circumstantial evidence in this case were so strong and irresistible as to be overpowering; if the judge on the bench, if the jury, if every man within sound of my voice, were convinced of the guilt of the prisoner to the degree of certainty that is absolute; if the circumstantial evidence left in the mind no shadow of the remotest improbable doubt; yet, in the absence of the eye-witness, this prisoner cannot be punished, and this Court must compel the jury to acquit him." The audience now understood, and they were dumbfounded. Surely this was not the law. They had been taught that the law was common sense, and this,—this was anything else.
Mason saw it all, and grinned. "In its tenderness," he sneered, "the law shields the innocent. The good law of New York reaches out its hand and lifts the prisoner out of the clutches of the fierce jury that would hang him."
Mason sat down. The room was silent. The jurymen looked at each other in amazement. The counsel for the People arose. His face was white with anger, and incredulous.
"Your Honor," he said, "this doctrine is monstrous. Can it be said that, in order to evade punishment, the murderer has only to hide or destroy the body of the victim, or sink it into the sea? Then, if he is not seen to kill, the law is powerless and the murderer can snap his finger in the face of retributive justice. If this is the law, then the law for the highest crime is a dead letter. The great commonwealth winks at murder and invites every man to kill his enemy, provided he kill him in secret and hide him. I repeat, your Honor,"—the man's voice was now loud and angry and rang through the court-room—"that this doctrine is monstrous!"
"So said Best, and Story, and many another," muttered Mason, "and the law remained."
"The Court," said the judge, abruptly, "desires no further argument."
The counsel for the People resumed his seat. His face lighted up with triumph. The Court was going to sustain him.
The judge turned and looked down at the jury. He was grave, and spoke with deliberate emphasis.
"Gentlemen of the jury," he said, "the rule of Lord Hale obtains in this State and is binding upon me. It is the law as stated by counsel for the prisoner: that to warrant conviction of murder there must be direct proof either of the death, as of the finding and identification of the corpse, or of criminal violence adequate to produce death, and exerted in such a manner as to account for the disappearance of the body; and it is only when there is direct proof of the one that the other can be established by circumstantial evidence. This is the law, and cannot now be departed from. I do not presume to explain its wisdom. Chief-Justice Johnson has observed, in the leading case, that it may have its probable foundation in the idea that where direct proof is absent as to both the fact of the death and of criminal violence capable of producing death, no evidence can rise to the degree of moral certainty that the individual is dead by criminal intervention, or even lead by direct inference to this result; and that, where the fact of death is not certainly ascertained, all inculpatory