Aug 1804

Evidence

Circumstantial

Ch.2. Circumstantial [...?]

§.1. [...?] [...?] [...?]

In the case of circumstantial evidence there are always two facts to be considered: 1. the principal fact /the factum probandum or[?] problematical/, the fact the existence of which is supposed or proposed to be proved or - to be evidenced: which is the subject of proof; 2 the evidentiary fact - the fact /the factum probans/ from which the existence of the principal fact is or may be inferred.

The factum probandum may in any case be either of /is susceptible of two main distinctions: it may be or[?] it must be either of/ a physical nature, or of a psychological nature.

In all cases of a penal nature, (high enough in rank to be reputed criminal,) certain facts of a psychological nature are necessary to constitute the crime[?]: these are 1. criminative intentionality and 2. criminative consciousness: and in many cases supposing criminative intentionality and consciousness ascertained the mischievousness of the act will be liable to be modified by the nature of the motive or motives which give birth to it.

In all these cases the principal fact will therefore /accordingly/ be of a complex nature. Its ingredients will be /The existence, or in some cases the non-existence/ of some physical act or acts, together with the addition of /in conjunction with/ the psychological facts just mentioned.