It may be, also, that such a rule has
some reference to the dangerous possibility that a general
preconception of guilt, or a general excitement of popular feeling,
may creep in to supply the place of evidence, if, upon other than
direct proof of death or a cause of death, a jury are permitted to
pronounce a prisoner guilty.
"In this case the body has not been found and there is no direct
proof of criminal agency on the part of the prisoner, although the
chain of circumstantial evidence is complete and irresistible in
the highest degree. Nevertheless, it is all circumstantial
evidence, and under the laws of New York the prisoner cannot be
punished. I have no right of discretion. The law does not permit
a conviction in this case, although every one of us may be morally
certain of the prisoner's guilt. I am, therefore, gentlemen of the
jury, compelled to direct you to find the prisoner not guilty."
"Judge," interrupted the foreman, jumping up in the box, "we cannot
find that verdict under our oath; we know that this man is guilty."
"Sir," said the judge, "this is a matter of law in which the wishes
of the jury cannot be considered.
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