
    In the Supreme Court of Pennsylvania.
    WESLEY BROWN v. ADAM SCHOCK.
    The rules of evidence are the same in civil and criminal cases when they pertain to questions which must be the same in their nature.
    In this case the question of identity was properly submitted to 'the jury.
    Error to tlie Court of Common Pleas of Schuylkill County.
   Opinion delivered March 8, 1875, by

Agnew, C. J.

The question in the court below was upon the competency of the evidence contained in the bill of exceptions. . Was Brown, the plaintiff, the same person as the man called Brown who accompanied Simpson in his rounds while perpetrating a series of frauds upon citizens of Schuylkill county? This was a question of fact for the jury, and might be proved by circumstances, just as in any other question of identity. The rules' of evidence are the same in criminal and civil cases when they pertain to questions which must be the same in their nature. Whether a particular man perpetrated á fraud or a crime is an inquiry precisely the same in its nature in all cases, to wit: A natural conclusion from the facts proved. In the proof of the circumstances from which the conclusion is to be drawn the evidence must often proceed step by step. No one witness may be able to prove all the facts, or indeed, more than a single fact. Hence to exclude every fact or circumstance, because it does not of itself make out the proof, is simply to decide that circumstantial evidence cannot exist in the case, where the purpose is to prove identity. Here we have a case where two men passed through the country selling a patent right for a washing machine, riding in the same two-horse carriage, and using certain blank forms as the instrumentality for perpetrating their frauds. One of these called his fellow Brown on two separate occasions and under circumstances tending to show that the name rose spontaneously to his lips. The plaintiff bears the same name, and is found in possession of the fruits of the fraud. He accounts for this possession by a formal transfer from Simpson, a known confederate with the man Brown, who was with' him. The witness called to prove the transfer is his own father-in-law, and the account he gives is that Simpson brought in fourteen or fifteen of these notes, asked Brown to buy them, and said they were good. Brown said he was willing to buy good notes, took them all without inquiry into the circumstances of the drawers, paid eighty per cent, for them, and did not protest the notes to hold the endorser. Then Brown brings suit on some of. them. The evidence of identity was objected to, is recieved by the court, and Brown is so informed by his counsel, and’ this case is continued several times to procure his attendance. He refused to appear, and his refusal is put now on the ground that he was informed by his counsel and believes himself that the testimony of his identity was illegal. Supposing that to be an honest opinion, yet it did not detract from Úitpríma facia effect of his declining to appear as evidence against him. If he had a strong motive to appear and would not, he leaves himself open to suspicion. The question is not upon his right to stay away, but upon the motive which may have caused his absence. A man of ordinary intelligence must know that his failing to appear when he had a strong motive to appear, would be evidence against him. If he relies upon his ability to disprove the motive imputed, he lakes the risk, but he leaves the effect of his conduct, as a matter of evidence for the opposite side to go to the jury, who must weigh both sides to determine the real motive. If he knew he was not the Brown who accompanied Simpson, the accomplice; his motive was very urging to appear, and by his presence convince the witnesses that he is not the same person called Brown, who accompanied Simpson. Omitting to do that by which he could at once dissipate doubt, he leaves his motive to be determined by -the jury, assuming the burden .of disproving it by his rebutting testimony. Therefore we canno.t say the circumstances; as evidence for the defence, are to be taken away from the jury. In such a case it is evident there can be no difference because the note is negotiable. The evidence here does not concern the note, but the identity of the person holding the note. Herein is the precise difference between this case and Phelan v. Moss, 17 P. F. Smith, 59. There the question was whether the bona fides of the holder was destroyed by taking the note at a large discount under suspicious circumstances. Here the question is whether the holder is the identical person who aided in the perpetration ofthe.fraúd which avoids the note. In the former case it was a question of mere good faith in the purchase. Here it is the identity of the person who coiiimitted the fraud itself. Here the manner of purchase is only a link in the the series of facts tending to prove that the holder is one and the same person with the one who committed the fraud.

In a question of circumstantial evidence, the proof derived from the circumstances is a question of natural presumption, and is to be found by the jury. The strength of this proof depends on the probability resulting from the facts. The presumption thus arising, being a natural one is to be determined necessarily by the jury, and not by the court. It is the right of the party to have this submitted to the jury, unless it be so weak ánd inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances. If in such a case as this we say that all the combined circumstances afford no evidence, we take from he party the right of trial by jury, a right of the utmost impoi lance in a matter in which the natural instinct and judgment of men are the legal and constitutional right of a party.

Judgment affirmed.  