one of the witnesses he said that he had received a letter from Miss Nesbitt after the time of her disappearance, and put his hand into his pocket as if to produce it, but suddenly discovered that he had left it in the pocket of another garment. To other witnesses he said that he did not know of her whereabouts, and that the last time he saw her or her mother was when he put them aboard the train at Hood River on the morning he returned the team to the livery stable, although the train passed that station two or three hours before his return to town. To others he said that the last time he saw either of the women was on the 28th of January, 1900, when they left the homestead with a man by the name of Edmunds or Edwards. To the United States District Attorney, after he was indicted for forging Miss Nesbitt's name to the homestead relinquishment, he produced what purported to be a clipping from a newspaper containing a notice of the marriage of a Miss Alma Nesbitt to a W. H. Edwards at North Yakima, Rev. Mr. Griggs officiating. The testimony of the county clerk and postmaster at North Yakima showed that there was no record at that place of such a marriage, and that no such persons as the alleged contracting parties or officiating clergyman were known in that community. In a letter written in August, 1900, by the defendant, in answer to one from Mrs. Swift, a sister of Miss Nesbitt, he intimated that she was immoral, and had clandestinely gone away with another man, and suggested that further search for her and her mother be discontinued; for "as long as we keep trying to find them they are bound to keep quiet, and I know now that there is nothing happened to them, so I shall spend no more money, or time either, for I know she has left me for good." In this same letter he inquired if there had not been trouble between Miss Nesbitt and her sister, saying that she and her mother had both told him that they would never write to Mrs. Swift again, or tell her anything. In the spring of 1901 he suggested to one of his neighbors, in a conversation concerning the disappearance of the two women, and the suspicion against him on that account, that "you and Doc Riggs can straighten this matter up for me if you will, and set everything right about it, and we could make everything

right. If you and Doc Riggs could say you saw me taking these women to town, that would settle this matter, and straighten it up for me."

The relatives of Miss Nesbitt and her mother being unable to obtain any satisfactory information by correspondence as to their disappearance or whereabouts, Mr. George R. Nesbitt, a son and brother, came to Oregon in February, 1904, and went out to Williams' homestead to make a personal examination of the surroundings. After an investigation, he and his companion noticed a depression in the ground in a building used as a henhouse about 30 feet distant from the dwelling on the Williams claim. On digging they discovered an excavation about six feet long by three feet wide and about six feet deep, which had been filled up at some time. Upon throwing out the dirt they found in the bottom a lot of gunny sacks, which had been soaked with some liquid, and two tufts of hair about eight or ten inches long, one very fine and partly gray and the other black, matted together, as if clotted with blood. The gunny sacks and hair were examined by an expert chemist, who testified that the sacks had been saturated with human blood, and that the hair was human hair, and that the black hair had been removed from the scalp before death. Mr. Nesbitt identified the fine gray hair as that of his mother, and a woman who lived near the Williams homestead, and who saw much of the two women during the winter they lived on the claim, also testified that she had combed the old lady's hair many times, and believed it to have belonged to her. When Williams was asked to explain the matter of the excavation and the finding of the hair, he said that the excavation was formerly used for a water-closet, but that he had moved the closet and filled it up; that before doing so he had thrown into it some gunny sacks used as bedding for his mares when foaling that spring, and some bits of dogskin containing hair, which he had used as housing for his harness. These statements were shown to be false, not only by the testimony of the expert as to character of the blood on the gunny sacks and the hair, but by the testimony that one of the mares had her colt at a mill some six miles distant from his homestead, and the other after the water-closet had been moved and the excavation

filled up, if that had ever been done. No skin or hide of any kind was found in the hole or excavation, and the hair found therein was eight to ten inches long, so that it could hardly have been dog's hair, as claimed by the defendant; and, moreover, parties who were familiar with Williams' team and harness testified that they never knew of his using any dogskin in connection therewith. On March 14, 1900, about six days after the disappearance of Miss Nesbitt and her mother, a surveying party was at Williams' house for dinner. He was at that time engaged in building the chicken house in which the excavation was afterwards discovered. Covering the exact spot where the excavation was found was a pile of sacked grain, although it was thus exposed to the weather, and there was plenty of room in the shed adjoining his house for its storage. In the spring of 1900 Williams had some land cleared near his house. The brush from it was piled up and burned during the summer, and it is suggested that, becoming alarmed at the search that was being made for the missing women, he removed their bodies from the excavation, and burned them in the brush fire.

The rule at one time seems to have prevailed that a conviction for murder or manslaughter could not be sustained without direct proof of the killing, unless the body of the supposed victim had been found 2 Hale, P. C. 290; Starkie, Evidence (10 ed.), *862; Wills, Circum. Ev. p. 206; 7 Am. & Eng. Enc. Law (2 ed.), 862. So strict was this rule observed that it is said that on a trial for murder by a mother and the reputed father of a bastard child, which the proof showed they stripped and threw into the harbor of a seaport town, the court directed an acquittal on the ground that, as the tide of the sea flowed and reflowed into and out of the harbor, it might possibly have carried out the living child: Garrow, arguendo, in Hindmarsh's Case, 2 Leach, C. C. 571. In another case a mother was indicted for the murder of her illegitimate child. It had been sent to a nurse's, where it remained for a time, when the prisoner took it away, stating an intention of going to her father's. She was seen with the child next day as late as 6 o'clock, going in the direction of her father's house. Between 8 and 9 o'clock she arrived at the house without the child. The body was never found, and the court directed an

acquittal: Regina v. Hopkins, 8 C. & P. 591. The cook of a schooner was indicted for the murder of the captain upon Long Island Sound and throwing his body overboard. Some months later a body floated upon the shore, which the prosecution claimed was shown to be that of the murdered man. The court charged the jury that, inasmuch as the supposed tragedy was near the shore, and there was strong reason to suppose that, if the murder had been committed, the body would be discovered, they must be satisfied that the body produced was that of the murdered captain before they could convict the prisoner: People v. Wilson, 3 Parker, Cr. R. 199, 207. In Ruloff v. People, 18 N. Y. 179, the defendant was indicted for the murder of his infant child, and circumstances pointed strongly to his guilt, but the court held that he could not be convicted, inasmuch as the body of the child had never been found. The opinions in this case in the supreme court (3 Parker, Cr. R. 401), where it was held that a conviction could be had without the production of the body, and those on appeal (18 N. Y. 179), reversing the judgment, contain an exhaustive consideration of the rule as to the proof of the corpus delicti under the decisions as they then stood. The doctrine of the cases requiring the production of the body of the person alleged to have been murdered is based upon the statement of Lord HALE in 2 Hale, P. C. 290, that "I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body found dead." This statement was made at a time when a prisoner charged with a felony was not accorded the right to testify in his own behalf, the advantage of sworn witnesses, or the full aid of counsel; and Mr. Best thinks the statement too broad, and that the principle laid down must be taken with considerable limitations: Best, Evidence, § 441. And such language was afterwards stated by an English judge to have been by way of caution, rather than as laying down an absolute rule of law: Regina v. Button, Dearsly, C. C. 282, 284.

To require direct proof of the killing or the production of the body of the alleged victim in all cases of homicide would be manifestly unreasonable, and lead to absurdity and injustice; and it is believed that it is now clearly established by the authorities

that the fact of the death as well as the guilt of the defendant may be legally inferred from such strong and unequivocal circumstances as produce conviction to a moral certainty. Mr. Greenleaf says: "The proof of the charge in criminal causes involves the proof of two distinct propositions: First, that the act itself was done; and secondly, that it was done by the person charged, and by none other-in other words, proof of the corpus delicti and of the identity of the prisoner. It is seldom that either of these can be proved by direct testimony, and therefore the fact may lawfully be established by circumstantial evidence, provided it be satisfactory. Even in the case of homicide, though ordinarily there ought to be the testimony of persons who have seen and identified the body, yet this is not indispensably necessary in cases where the proof of the death is so strong and intense as to produce the full assurance of moral certainty. But it must not be forgotten that the books furnish deplorable cases of the conviction of innocent persons from the want of sufficiently certain proofs either of the corpus delicti or of the identity of the prisoner. It is obvious that on this point no precise rule can be laid down, except that the evidence ought to be strong and cogent,' and that innocence should be presumed until the case is proved against the prisoner, in all its material circumstances, beyond any reasonable doubt": 3 Greenleaf, Evidence (16 ed.), § 30. Mr. Kerr, in his work on Homicide, says: "The general rule, however, is that the corpus delicti, taken as a whole, may be shown by any evidence which satisfies the jury beyond a reasonable doubt, whether it be direct or circumstantial; but this is qualified and limited by the rule that the defendant's confession, taken alone and without corroborating proof of the corpus delicti, is not sufficient to support a conviction": Kerr, Homicide, § 493. Mr. Bishop, in commenting on the rule which for merly prevailed that there could be no conviction in homicide. cases without direct proof of the death, says: "It is perceived that the only service it could ever do was to cover up those blunderings of justice which were apt to come to the public gaze; for if one was wrongly convicted through a blunder in any other part of the case than the corpus delicti, it would seldom become known; hence the like rule was not applied to such a case"; and