occur to us that that should be a reason why this character of testimony should be excluded. Of course, if the evidence regarding an experiment showed one made under circumstances and surroundings so dissimilar to the original transaction as that it would not shed any light upon it, there would be no error in its exclusion. See State v. Fletcher (Or.), 33 Pac. Rep. 575. But if the evidence shows that the experiment was made under circumstances similar to those which surround the original transaction, and such experiment would serve to shed any light upon that transaction, we can see no reason for the exclusion of such experiment, although it might not have been made under exactly similar conditions as attended the original transaction. The dissimilarity would not exclude, but would go to its weight before the jury. Another difficulty in connection with such testimony is that evidence of experiments made are collateral in their nature, and are liable to consume the time of the court in a trial of such collateral issues. It has been held, on this account, that the court will not stop a case in order that an experiment be made. People v. Levine, 85 Cal. 39, 22 Pac. Rep. 969, and 24 Pac. Rep. 631. And it has been urged, as it is urged in this case, that the evidence was properly excluded; that such evidence is not admissible, on account of the danger of fabrication. But in our opinion this furnishes no good reason for its exclusion. All evidence, we might say, can, under circumstances, be fabricated; but the liability of fabrication rarely, if ever, alone furnishes a good reason for the exclusion of evidence. Upon principle and authority this character of the testimony, where the experiment appears to have been made under conditions similar or nearly similar to those which attended the original transaction, and where such experiments would tend to shed any light upon said original transaction, is admissible. See Wilson v. State (Tex. Cr. App.), 36 S. W. Rep. 587; People v. Levine, 85 Cal. 39, 22 Pac. Rep. 969, and 24 Pac. Rep. 631. In the latter case, which was a case of arson, and in which an experiment was made with candles to ascertain how long they would burn, proof of the experiment was admitted; and the court, in passing upon the question, use the following language: "The proof of the result of experiments was equally as open to the defendant as the prosecution, and, if other experiments would have shown a different result from that shown by the experiment proved by the prosecution, the defendant had ample opportunity to show the fact. The books are full of authorities sustaining the court in admitting evidence of the result of experiments in chemistry, in toxicology, and particularly in the use of firearms, for purposes similar to that for which this evidence was admitted. It has been quite a common thing, in cases of homicide, to make experiments with firearms, to determine the carrying distance, the penetrating force, and the distance to which fire will be carried by firearms of certain pattern and caliber, and to prove the results of such experiments at the trial, as tending to show the guilt or innocence of the accused. The experiment in this case was one of a similar character, and for a similar purpose. Its result was not conclusive, but a mere circumstance to be considered in connection with the other evidence in the cause. It was both competent and admissible. Its weight was for the jury to determine. We cannot agree with counsel that it was the 'material and effective' evidence in the cause. The material and effective evidence of that branch of the case was the substantive fact of the candles themselves, and the condition in which they were found. They, and the coal oil, with their surroundings, were tangible things, rendering it cer tain that the fire was incendiary; and the proof in relation to them, independent of any proof of the result of experiment, was the 'material and effective' proof in the case. "Now, as heretofore stated, the evidence in this case of the experiments made was threefold and it appears that it was the endeavor of appellant to make the experiments as nearly as prac ticable under the same conditions attending the orig. inal transaction. The proof shows: That appellant with three other persons, was driving a wagon drawn by two mules. They were preceded at the point in question by three other wagons drawn by mules, which came into the lane at the gate, some 150 yards in advance of them, and proceeded down the Laroe lane. That the front wagons passed down said lane at a moderate walk, perhaps trotting a little near the center of the lane. The rear wagon, in which was the defendant, followed at a faster gait, trotting most of the way, and passed the other wagons at the south. west corner of said Laroe lane; the front wagons, from the time they came into the lane at the gate, having traveled about 600 yards and the rear wagon, in which was the defendant, having in the meantime traveled about 830 yards. Upon this state of case, the theory of appellant was that it was improbable, in the nature of things, for the wagon in which he was tray. eling to have stopped at the Laroe house, and for ap pellant and his codefendant to have then alighted, and gone a distance of 190 yards, committed an assault with intent to rape upon prosecutrix, and then returned to their wagon, got in it, and proceeded down the Laroe lane, and overtaken said three front wagons at the corner thereof. In order to show the improb ability that defendant could have stopped his wagon in front of the Laroe house, got out, committed the assault and returned to his wagon, got in, and overtaken the front wagons, he made the experiments which he offered in evidence, and it occurs to us that said testimony ought not to have been excluded. The prose cutrix alone identified the defendant and his codefendant as the persons making the assault upon her. Appellant testified on his own behalf, and denied this. Now, it stands to reason that it be true, as the witnesses who were in the front wagons testified, that they came into the gate than entered the Laroe lane about 150 yards in advance of appellant in bis wagon, and that they proceeded down said Laroe lane, and that appellant and his comrades in their wagon passed them at ne southwest corner of said Laroe lane, 680 yards from where they entered it, and if it be further true that it would be impossible for appellant to stop on his way at the Laroe house, and go a distance of 190 yards, and there commit an as sault on the prosecutrix, and return to his wagon, and resume his journey at the fastest gait his mules could travel, and overtake the front wagons at the corner of said lane, then it is demonstrated that the prosecutrix was mistaken as to her identification, and that he was not the party who assaulted her. Orif this experiment, made under similar or nearly simi lar conditions, renders it improbable that he could, with his team, have stopped at said house, and have overtaken the front wagons at the southwest elbow of said lane, traveling at the most rapid rate, then it of curs to us that such testimony was admissible tending to show that the prosecutrix was mistaken in identifying him as the party who perpetrated the outrage upon her, and he was entitled to have such testimony, in order to corroborate and support his own evidence. To our minds, nothing is clearer than this, and because the court improperly excluded this testimony the judgment is reversed and the cause remanded. BANKS AND BANKING-KNOWLEDGE OF BANK OFFICER. In Gunster v. Scranton Illuminating Heat & Power Co., 37 Atl. Rep. 550, decided by the Supreme Court of Pennsylvania, it appeared that the vice-president of a bank was also treasurer of a corporation doing business with the bank. As such vice-president he discounted two notes of the corporation, and placed the proceeds to its credit, and as treasurer of the corporation drew a check on the bank, with which he obtained two drafts of the bank, signed himself as vice-president to his order as an individual, and appropriated the proceeds to his own use. It was held that his knowledge, as vice-president. of his intent to misappropriate the funds obtained on the drafts, was not the knowledge of the bank, so as to enable the corporation to set off the amount obtained by him on such drafts against the notes of the corporation. The court thus discusses the question of law involved: The referee, finding that, if Jessup had not been a officer of the bank, there would have been no valid defense, thus reduced the case to a question of law,whether Jessup's knowledge of his own fraud at the time of its perpetration carried with it knowledge or notice to the bank which would prevent its availing itself of a credit on the check. He took the affirma tive view, and the court below sustained him. The authorities on this question are not uniform: In the case most relied upon by the learned referee (First Nat. Bank v. Town of New Milford, 36 Conn. 93), the cashier of the bank was also treasurer of the town, and in the latter capacity had been accustomed to borrow money for the town upon notes made by him in its name. Having, in his capacity as cashier, embezzled the funds of the bank, he drew a note for $3,000, as treasurer of the town, entered it upon the books of the bank as if regularly discounted, and thus covered his embezzlement. In a suit on the note it was held that the bank could not recover. The decision is put upon two grounds: First, that the treasurer did not intend to pledge the credit of the town, but that "he drew the note, entered it in the books, and caused it to be filed by the clerk, as a false representation and cover, precisely as he made other false representations and false entries, intending to restore the money and take out the note, and not intending to onerate the town. If that is so, there was no meeting of minds, and no purchase of the note or con. tract of loan which will sustain this action." This was apparently the view of the majority of the court, but the opinion then goes on to add, as a second reason, that, even if there was a contract of loan, "it was made by Conklin as agent of the town with Conklin as agent of the bank. He, as agent of the bank, had full knowledge, therefore, of the fraud; and now the bank, if they ratify his contract and confirm his agency, must accept his knowledge and be bound by it, pre cisely as if the loan had been made and the knowledge had by the board of directors." The first ground thus set forth does not appear to have been adopted in any other case, but the second has very respectable authorities in its favor, among which may be cited Bank v. Dunbar, 118 Ill. 625, 9 N. E. Rep. 186; Farmers' & Traders' Bank v. Kimball Co. (S. D.), 47 N. W. Rep. 402; and, similar in principle, Bank v. Davis, 2 Hill, 451; Holden v. Bank, 72 N. Y. 286; Webb v. Manufacturing Co., 11 S. C. 396. On the other hand, the principle has been distinctly repudiated by several courts of equal authority; and in the latest textbook it is laid down without qualification that an exception to the general rule that notice to the agent is notice to the principal "arises in case of such conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy, as where the agent acts for himself in his own interest, and adversely to that of the principal." 1 Am. & Eng. Law (2d Ed.), 1145, and cases there cited. In Bank v. Christopher, 40 N. J. Law, 435, it was held, after a review of the cases, that a director offering a note of which he is the owner to the bank of which he is a director, for discount, is to be regarded as a stranger, and the bank is not chargeable with the director's knowledge of fraud, or want of consideration for the note. And in De Kay v. Water Co., 38 N. J. Eq. 158, it was held that where the same person is an officer of two corporations, and he transfers securities issued by one to the other with knowledge that they are not valid except in the hands of an innocent holder for value, his knowledge is not to be attributed to the transferee; Van Fleet, V. C., saying: "I understand the law to be that, where an agent representing two principals concocts a scheme to defraud one of them for the benefit of the other, it will be presumed that he did not disclose, to the principal he intended to cheat, the means by which he intended to effect his purpose." In Innerarity v. Bank, 139 Mass. 332, 1 N. E. Rep. 282, the exception was held to be well established that notice to the agent would not be deemed notice to the principal where the communication of the facts would necessarily prevent the consummation of a fraudulent scheme which the agent was engaged in, and the distinction sometimes made upon the actual presence of the agent-as, e. g., a bank directorat the meeting where the transaction was concluded was said not to be of importance. The same view was followed in Allen v. Railroad Co., 150 Mass. 200, 22 N. E. Rep. 917, and Corcoran v. Cattle Co., 151 Mass. 74, 23 N. E. Rep. 727. See, also, to the same effect, Barnes v. Gaslight Co., 27 N. J. Eq. 33; Winchester v. Railroad Co., 4 Md. 231; Bank v. Gifford, 47 Iowa, 575; Frenkel v. Hudson, 82 Ala. 158, 2 South. Rep. 758; Bank v. Harrison, 10 Fed. Rep. 243, 252; Davis Improved Wrought Iron Wagon Wheel Co. v. Davis Wrought-Iron Wagon Co., 20 Fed. Rep. 699; Thomson Houston Co. v. Capital Electric Co., 12 C. C. A. 643, 65 Fed. Rep. 341. And in Platt v. Axle Co., 41 Conn. 255, it was held that the knowledge of the secretary of a prior assignment of stock standing in his wife's name could not be imputed to the corporation to defeat the corporation's lien for subsequent advances to the wife upon the same stock, and the decision does not seem to have been thought in conflict with First Nat. Bank v. Town of New Milford, supra, as no comment or reference was made to that case. An instructive case is Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 273, 17 N. E. Rep. 496. The same person was treasurer of two corporations, and fraudulently drew checks upon each in favor of the other when needed to balance his accounts and make his cash appear correct on examination. There had been also bona fide loans from each to the other, made in the same way. The court held that the account between them should be stated by charging each with the amount wrongfully transferred to it from the other, so that each should lose the exact amount taken from it by its treasurer acting in his capacity as such. This case was regarded by the learned referee in the court below as belonging to the class which imputes notice to the principal from knowledge of the agent, and the judgment could have been reached on that view. But the decision is put explicitly on the ground that "a party, even though innocent, cannot avail himself of an advantage obtained by the fraud of another, unless there is some consideration moving from himself;" referring to authorities as early as Lord Mansfield, and citing, among others, Loring v. Brodie, 134 Mass. 453, 468. It is to be noted that this case, though leading to a different judgment, was not regarded in the subsequent decis ions in 139, 150, and 151, Mass., cited supra, as conflicting with them, and that the principle of it would result in the same judgment, though for a different reason, as that in First Nat. Bank v. Town of New Milford, 36 Conn. 93, supra, and reconcile that case not only with the later case in the same court,-Platt v. Axle Co., 41 Conn. 255, supra,—but with the cases in the class we are now considering. And the same principle would sustain Bank v. Dunbar, 118 Ill. 625, 9 N. E. Rep. 186, supra, and probably other cases in the class imputing notice to the principal from knowledge by the agent. We are of opinion that the second class of cases have not only the preponderance of authority, but of sounder reason. The rule that knowledge or notice on the part of the agent is to be treated as notice to the principal is founded on the duty of the agent to communicate all material information to his principal, and the presumption that he has done so. But legal presumptions ought to be logical inferences from the natural and usual conduct of men under the circumstances. But no agent who is acting in his own antagonistic interest, or who is about to commit a fraud by which his principal will be affected, does in fact inform the latter, and any conclusion drawn from a presumption that he has done so is contrary to all experience of human nature. If it be urged, as in some cases, that the principal, having put the agent in his place, should, as a matter of public policy, be held answerable for all the latter does, a sound answer is suggested by the court in Allen v. Railroad Co., 150 Mass. 200, 206, 22 N. E. Rep. 917, that an independent fraud committed by an agent on his own account is beyond the scope of his employment, and bears analogy to a tort willfully committed by a servant for his own purposes, and not as a means of performing the business intrusted to him by his master. PROOF OF THE CORPUS DELICTI IN POISONING CASES. By the corpus delicti is meant the existence of a criminal fact. And in a criminal case, two distinct propositions must be established: First, that an act has been committed from which legal responsibility arises; and, second, 1 People v. Palmer, 109 N. Y. 110. that a particular individual is responsible.2 It is not always possible, however, to so separate the evidence as to make a certain part of it applicable to one or the other of these propositions. Take, for example, the crime of adultery. It needs hardly to be said that this crime must, in nearly all cases, be established by circumstantial evidence, and that generally those circumstances which show the commission of the offense will establish also the guilt of the parties accused. It is a rule which should be adhered to with the strictest tenacity that the corpus delicti must be proved, either by direct testimony, or by presumptive evidence, beyond a reasonable doubt. The rule was designed as a shield for prisoners, and must never be used as a sword. And it is well-settled that the corpus delicti of even the gravest offenses may be established by circumstantial evidence.5 The corpus delicti in homicide is a compound fact made up of death as the result and the criminal agency of some person as the means. And generally, since it is the basis of the latter inquiry, the fact of death must be first established. In cases of poisoning it is necessary to determine, first, the cause of death. It having been established that death resulted from the administration of poison, it is essential to conviction that, in the next place, it shall be established that the poison was administered by the prisoner. In proof of this latter fact, if the charge is denied, the possession of the deadly agent by the accused must be shown, and also that he had the op 2 Johnson v. Com., 29 Gratt. 796; Willard v. State, 27 Tex. Cr. App. 386. 3 See Cooke v. Cooke, 152 Ill. 286. In illustration of the general proposition in the case of other crimes, see State v. Folwell, 14 Kan. 105; People v. O'Neil, 109 N. Y. 251. 4 State v. Keeler, 28 Iowa, 551; Pitts v. State, 43 Miss. 472. 5 See opinion of Earl, J., in People v. Schryver, 42 N. Y. 1. See also State v. Hunter, 50 Kan. 302; State v. Parsons, 39 W. Va. 464; Carlton v. People, 150 Ill. 181; Johnson v. Com., 17 Cent. L. J. 428; Reg. V. Mockford, 11 Cox C. C. 16. For an elaboration of these general principles, see Will on Circumstantial evidence, 345 et seq. 6 Ruloff v. People, 18 N. Y. 179; Thomas v. State, 67 Ga. 460. 7 U. S. v. Williams, 1 Cliff. 15. To require the dis covery of the body in all cases would be absurd, and would, manifestly, lead to injustice. "It would amount to a condonation of all murders committed on the high seas." See U. S. v. Gilbert, 2 Sumu. 19. A to the rule in New York, see People v. Palmer, 109 N. Y. 110. And in Texas, see Puryea v. State, 28 TexCr. App. 73. portunity to administer it. In the first place, then, the cause of death must be determined.8 As a general thing, symptoms and postmortem appearances are inconclusive, since they may also indicate the presence of some disease. And it is, as a general thing, unsafe to convict on symptoms alone. This clearly appears from the fact that the symptoms of peritonitis and ulceration of the stomach much resemble the symptoms of irritant poisons, and that epilepsy, tetanus and heart disease produce much the same symptoms as those which appear after the administration of narcotic poisons. It was on the ground of the uncertainty of the opinions founded on appearances, and of the imperfection of medical science, that a pardon was granted after conviction in Smethurst's Case. But it is plainly essential that symptoms and appearances should be shown to be not incompatible with the hypothesis of death from poison.10 And the symptoms may be so characteristic of certain poisons as to preclude the possibility of referring the death to any other cause. For example, the presence of alcohol, chloroform and prussic acid is easily detected from the odor which is manifest on opening the body. Other poisons produce ulceration of the stomach; and from others still, an inflamed and congested state of the brain and spinal cord results. And, as to these poisons, it may be reasonably concluded, when, upon examination, none of the appropriate appearances or conditions are manifested, that they have not been the means by which death was produced. The celebrated Harris Case affords an excellent illustration of the above remarks. In this case, the testimony of the physicians who attended the deceased in her last illness was based on appearances upon and in the person which negatived the possibility of any other cause of death. One of the physicians testified that there was no ambiguity in the case, and that the pleasurable excitement, followed by coma, and then by entire nervous prostration, with other conditions, formed a group of symptoms which enabled him to say positively that the patient had had an overdose of morphine. On the autopsy there was revealed the congested appearance of the brain, which is a post-mortem 8 Polk v. State, 36 Ark. 117. "See People v. Millard, 53 Mich. 63; Joe v. State, 6 Fla. 591. 10 Hatchett v. Com., 76 Va. 1026. evidence of opium poisoning, and morphine was found in the stomach and membranes.11 It is a corroborative circumstance of great strength if several persons exhibit symptoms of having been poisoned after eating of the same food. In Rex v. Fanning four members of a family were taken ill after eating dumplings made by the prisoner, while those of the family, who had not eaten the dumplings, were not affected.12 It is also important to notice, in such cases, whether the violence of the sickness has been in proportion to the quantity of the suspected food eaten. Much aid in establishing the corpus delicti may generally be expected from chemistry, and if there is no evidence forthcoming as to chemical tests of the body or excreta, and no satisfactory explanation for the lack of such evidence, a doubt as to the reality of the charge is well-founded. Nevertheless, "chemical evidence should not be held in the highest esteem, nor be given the place of first importance in all cases."18 In many cases, and especially in those where arsenic is supposed to have been the deadly agent for the reason that arsenic is a constituent of the most common embalming fluids, the question of the post-mortem imbibition of poisons becomes one of great importance. Until within recent years, the possibility of the diffusion through the human body of poison injected after death, has received but slight consideration from medical authorities. The question came up prominently in the famous case of People v. Millard.14 In that case the experts were asked in effect: "Granting that white arsenic suspended in water was injected into the mouth and rectum a few hours after death, would it diffuse through the body to such an extent that it would be found in the liver and kidneys?" Dr. Vaughan, a prominent toxicologist and an expert witness for the defense, testified that "if within twenty-four hours after the death of Mrs. Millard, arsenic to the amount of onehalf a teaspoonful had been injected into the stomach and rectum, and the body buried, and examined 105 days afterwards, he would expect, from reading and experiments, to find arsenic in the liver from that injected." 11 People v. Harris, 136 N. Y. 423. 12 And see Graves v. People, 18 Colo. 170; Bill v. Com., 88 Va. 365; Brown v. State, 88 Ga. 257. 13 Medico-Legal Journal, March, 1888, 506. 14 53 Mich. 63. And it is said to have been proved by subsequent experiments, "beyond a doubt, that arsenic may diffuse through a dead body," and even that the finding of arsenic in the brain is no proof that it was administered during life. 15 when it is present in by the prisoner. Now, the fact that death was caused by the administration of poison having been satisfactorily established, the next thing necessary is to show that the poison was administered by the prisoner. The prob ability that the poisonous matter was taken by the deceased with suicidal intent must be excluded.20 Evidence that the deceased had been in the habit of taking the drug used as a medicine, or merely in the indulgence of an appetite, is admissible, but the habit must be shown to have continued down to a reasonable time before the death.21 The fact that the accused had in his possession poison of the same kind as that which produced death, and that he gave no explanation of such possession, may give rise to a strong inference of guilt. And, as in other cases where an attempt is made to explain an incriminating circumstance, if such explanation is shown to be false the effect on the case of the accused is disastrous. This was exemplified in the case of People v. Hartung, where Mary Hartung was charged with the murder of her husband. She explained, on purchasing arsenic a few days before her husband's death, that she wanted it for use in the stuffing of birds, and this was shown to be false.22 The importance of this element of possession is well shown in Com. v Robinson. In this case also the drug which produced death was arsenic, and the prosecution not being able to establish clearly that the prisoner had had the drug in her possession, she went on the stand and testified that she had never seen the drug, and that she could not tell whether it was a powder or a liquid.23 The unreliability of chemical evidence is well illustrated by the recent Buchanan Case. 16 An expert witness testified that he obtained results indicating the presence of morphine in the body of the dead woman, which had been buried forty-four days. But for the defense an expert witness of wide reputation testified that he had obtained similar results with an extract of pancreas. It was contended in People v. Stephens, in explanation of the presence of arsenic in the body, which had been in the grave for some time, that arsenic in the surrounding soil had been washed in by the percolation of rain water. There was no arsenic found, however, in the surrounding soil, nor in the nails of the coffin, and it has been demonstrated that arsenic becomes fixed in the soil, and cannot be absorbed by a body even the surrounding earth.17 But neither chemBut neither chemical analysis nor an autopsy is necessary, 18 There can be no rule of universal application as to any exclusive medium of proof by which the guilt of the offender may be shown. Every case must depend on its own circumstances, and to prove the corpus delicti in a case of poisoning, as in all other cases, the best evidence must be adduced of which the nature of the case admits. In Tawell's Case, Mr. Baron Parke denied emphatically that there was any rule of law requiring that the mode of death should be established by posi-The fact that the accused had in his possestive proof. Where one was said to have died from drinking of a poisonous mixture from a bottle given him by the accused, who represented that it contained whisky, a conviction was had, though there was no post-mortem examination, and no analysis of the contents of the bottle. 19 And in Palmer's Case it was said by Lord Campbell that circumstantial evidence was all that could be required to show that the deadly poison was administered 15 See People v. Hall, 48 Mich. Also a record of experiments in the Journal of the American Medical Assn., Vol. I. p. 115. 16 Tried in New York City, April, 1893. 17 People v. Stephens, 4 Park. Cr. Rep. 396. 18 Polk v. State, 36 Ark. 117. 19 Hatchett v. Com., supra. sion poison of the kind which produced the death in question, having been made to ap pear, it is obviously essential that he must be shown to have had an opportunity for administering it. In the case of Reg. v. Lawson the accused, who was the medical adviser of the deceased, had frequently sent medicine to the latter, and on the night of the latter's death had visited him and adminis tered some powders.24 And of course the |