criminal psychology-第47节
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But just as we presuppose that wherever the human will played any part； regular forms will come to light； so we begin to doubt that such forms will occur where we find that accident； natural law； or the unplanned coperation of men were determining factors； If I permit anybody to count up accidentally concurrent things and he announces that their number is one hundred； I shall probably have him count over again。 I shall be surprised to hear that somebody's collection contains exactly 1000 pieces； and when any one cites a distance of 300 steps I will suppose that he had made an approximate estimation but had not counted the steps。 This fact is well known to people who do not care about accuracy； or who want to give their statements the greatest possible appearance of correctness； hence； in citing figures； they make use of especially irregular numbers； e。 g。 1739； ； 3。25％； etc。 I know a case of a vote of jurymen in which even the proportion of votes had to be rendered probable。 The same jury had to pass that day on three small cases。 In the first case the proportion was 8 for； 4 against； the second case showed the same proportion and the third case the same。 But when the foreman observed the proportion he announced that one juryman must change his vote because the same proportion three times running would appear too improbable！ If we want to know the reason for our superior trust in irregularity in such cases； it is to be found in the fact that experience shows nature； in spite of all her marvelous orderliness in the large； to be completely free； and hence irregular in little things。 Hence； as Mill shows in more detail； we expect no identity of form in nature。 We do not expect next year to have the same order of days as this year； and we never wonder when some suggestive regularity is broken by a new event。 Once it was supposed that all men were either black or white； and then red men were discovered in America。 Now just exactly such suppositions cause the greatest difficulties； because we do not know the limits of natural law。 For example； we do not doubt that all bodies on earth have weight。 And we expect to find no exception to this rule on reaching some undiscovered island on our planet； all bodies will have weight there as well as everywhere else。 But the possibility of the existence of red men had to be granted even before the discovery of America。 Now where is the difference between the propositions： All bodies have weight； and； All men are either white or black？ It may be said circularly the first is a natural law and the second is not。 But why not？ Might not the human body be so organized that according to the natural law it would be impossible for red men to exist？ And what accurate knowledge have we of pigmentation？ Has anybody ever seen a green horse？ And is the accident that nobody has ever seen one to prevent the discovery of green horses in the heart of Africa？ May； perhaps； somebody not breed green horses by crossings or other experiments？ Or is the existence of green horses contrary to some unknown but invincible natural law？ Perhaps somebody may have a green horse to…morrow； perhaps it is as impossible as water running up hill。
To know whether anything is natural law or not always depends upon the grade and standing of our immediate experienceand hence we shall never be able honestly to make any universal proposition。 The only thing possible is the greatest possible accurate observation of probability in all known possible cases； and of the probability of the discovery of exceptions。 Bacon called the establishment of reliable assumptions； counting up without meeting any contradictory case。 But what gives us the law is the manner of counting。 The untrained mind accepts facts as they occur without taking the trouble to seek others； the trained mind seeks the facts he needs for the premises of his inference。 As Mill says； whatever has shown itself to be true without exception may be held universal so long as no doubtful exception is presented； and when the case is of such a nature that a real exception could not escape our observation。
This indicates how we are to interpret information given by others。 We hear； ‘‘Inasmuch as this is always so it may be assumed to be so in the present case。'' Immediate acceptance of this proposition would be as foolhardy as doubt in the face of all the facts。 The proper procedure is to examine and establish the determining conditions； i。 e。； who has counted up this ‘‘always；'' and what caution was used to avoid the overlooking of any exception。 The real work of interpretation lies in such testing。 We do not want to reach the truth with one blow； we aim only to approach it。 But the step must be taken and we must know how large it is to be； and know how much closer it has brought us to the truth。 And this is learned only through knowing who made the step and how it was made。 Goethe's immortal statement； ‘‘Man was not born to solve the riddle of the universe； but to seek out what the problem leads to in order to keep himself within the limits of the conceivable；'' is valid for us too。
Our great mistake in examining and judging often lies in our setting too much value upon individual circumstances； and trying to solve the problem with those alone； or in not daring to use any given circumstance sufficiently。 The latter represents that stupidity which is of use to scientific spirits when they lack complete proof of their points； but is dangerous in practical affairs。 As a rule； it is also the consequence of the failure to evaluate what is given； simply because one forgets or is too lazy to do so。 Proper action in this regard is especially necessary where certain legal proceedings have to occur which are entitled to a definite degree of probability without requiring certainty； i。 e。； preliminary examinations； arrests； investigations of the premises； etc。 No law says how much probability is in such cases required。 To say how much is impossible； but it is not unwise to stick to the notion that the event must appear true； if not be proved true； i。 e。； nothing must be present to destroy the appearance of truth。 As Hume says； ‘‘Whenever we have reason to trust earlier experiences and to take them as standards of judgment of future experiences； these reasons may have probability。''
The place of probability in the positive determination of the order of modern criminal procedure is not insignificant。 When the law determines upon a definite number of jurymen or judges； it is probable that this number is sufficient for the discovery of the truth。 The system of prosecution establishes as a probability that the accused is the criminal。 The idea of time…lapse assumes the probability that after the passage of a certain time punishment becomes illusory； and prosecution uncertain and difficult。 The institution of experts depends on the probability that the latter make no mistakes。 The warrant for arrest depends on the probability that the accused behaved suspiciously or spoke of his crime； etc。 The oath of the witness depends on the probability that the witness will be more likely to tell the truth under oath； etc。
Modern criminal procedure involves not only probabilities but also various types of possibility。 Every appeal has for its foundation the possibility of an incorrect judgment； the exclusion of certain court officials is based on the possibility of prejudice； or at least on the suspicion of prejudice； the publicity of the trial is meant to prevent the possibility of incorrectness； the revision of a trial depends on the possibility that even legal sentences may be false and the institution of the defendant lawyer depends upon the possibility that a person without defense may receive injustice。 All the formalities of the action of the court assume the possibility that without them improprieties may occur； and the institution of seizing letters and messages for evidence； asserts only the possibility that the latter contain things of importance； etc。
When the positive dicta of the law deal with possibility and proba… bility in questions of great importance the latter become especially significant。
We have yet to ask what is meant by ‘‘rule'' and what its relation is to probability。 Scientifically ‘‘rule'' means law subjectively taken and is of equal significance with the guiding line for one's own conduct； whence it follows that there are only rules of art and morality； but no rules of nature。 Usage does not imply this interpretation。 We say that as a rule it hails only in the daytime； by way of exception； in the night also； the rule for the appearance of whales indicates that they live in the Arctic Ocean； a general rule indicates that bodies that are especially soluble in water should dissolve more easily in warm than in cold water； but salt dissolves equally well in both。 Again we say： As a rule the murderer is an unpunished criminal； it is a rule that the brawler is no thief and vice versa； the gambler is as a rule a man of parts； etc。 We may say therefore； that regularity is equivalent to customary recurrence and that whatever serves as rule may be expected as probable。 If； i。 e。； it be said； that this or that happens as a rule； we may suppose
