§7.2.10et, cum certam, aut in extrariam aut in ipsius qui periit voluntatem.
And, when it is certain, either to an outsider or to the will of the deceased.
in quibus similis atque in ἀντικατηγορίᾳ personarum, causarum, ceterorum comparatio est, ut Cicero pro Vareno in familiam Ancharianam, pro Scauro circa mortem Bostaris in matrem avertens crimen facit.
In these cases there is a similar comparison of persons, causes, and other circumstances as in mutual accusation, as Cicero in his defense of Varenus turns the charge onto the Ancharian family, and in his defense of Scaurus concerning the death of Bostar onto his mother.
§7.2.11est etiam illud huic contrarium comparationis genus, in quo uterque a se factum esse dicit; et illud in quo non personae inter se sed res ipsae colliduntur, id est, non uter fecerit, sed utrum factum sit.
There is also that contrary kind of comparison, in which both claim that the deed was done by themselves; and that in which not the persons clash with each other but the facts themselves, that is, not which of the two did it, but which of the two deeds was done.
cum de facto et de auctore constat, de animo quaeri potest.
When the fact and the author are established, inquiry can be made about the intention.
nunc de singulis.
Now concerning the individual cases.
cum pariter negatur, hoc modo: adulterium non commisi; tyrannidem non adfectavi. in caedis ac veneficii causis frequens est illa divisio: non est factum; et si est factum, ego non feci. §7.2.12sed, cum dicimus, proba hominem occisum, accusatoris tantum partes sunt; a reo nihil dici contra praeter aliquas fortasse suspiciones potest, quas spargere quam maxime varie oportebit, quia, si unum aliquid adfirmaris, probandum est aut causa periclitandum.
When both are equally denied, it is in this manner: "I did not commit adultery; I did not aim at tyranny." In cases of murder and poisoning, that division is frequent: "It was not done; and if it was done, I did not do it." But when we say, "Prove that the man was killed," it is solely the part of the accuser; nothing can be said in opposition by the accused except perhaps some suspicions, which it will be proper to scatter as widely as possible, because if you assert any one thing, it must be proved or you risk your case.
nam cum inter id quod ab adversario et id quod a nobis propositum est quaeritur, videtur utique alterum verum; ita everso quo defendimur, reliquum est quo premimur, §7.2.13ut cum quaerimus de ambiguis signis cruditatis et veneni, nihil tertium est ideoque utraque pars, quod proposuit, tuetur.
For when the question is between what is proposed by the adversary and what is proposed by us, one of the two definitely seems to be true; thus, when that by which we are defended is overthrown, there remains that by which we are pressed, as when we inquire concerning the ambiguous signs of indigestion and poison, there is no third option, and therefore each party defends what it has proposed.
interim autem ex re quaeritur, veneficium fuerit an cruditas; cum aliqua ex ipsa citra personam quoque argumenta ducuntur.
Sometimes, however, it is inquired from the fact itself whether it was poisoning or indigestion, when some arguments are drawn from the thing itself, even apart from the person.
§7.2.14refert enim, convivium praecesserit laetitia an tristitia, labor an otium, vigilia an quies.
For it matters whether joy or sadness, labor or leisure, waking or rest preceded the banquet.
Aetas quoque eius, qui periit, discrimen facit; interest, subito defecerit an longiore valetudine consumptus sit.
The age also of the person who perished makes a difference; it matters whether he failed suddenly or was consumed by a longer illness.
liberior adhuc in utramque partem disputatio, si tantum subita mors in quaestionem venit.
The discussion on both sides is still freer if only a sudden death comes into question.
§7.2.15interim ex persona probatio rei petitur, ut propterea credibile sit venenum fuisse, quia credibile est ab hoc factum veneficium, vel contra.
Sometimes proof of the fact is sought from the person, so that it may be credible that there was poison because it is credible that poisoning was committed by this person, or vice versa.
cum vero de reo et de facto quaeritur, naturalis ordo est, ut prius factum esse accusator probet, deinde a reo factum.
But when the inquiry is concerning both the accused and the fact, the natural order is for the accuser first to prove that the deed was done, and then that it was done by the accused.
si tamen plures in persona probationes habuerit, conuertit hunc ordinem.
If, however, he has more proofs in the person, he reverses this order.
§7.2.16defensor autem semper prius negabit esse factum, quia, si in hac parte vicerit, reliqua non necesse habet dicere; victo superest, ut tueri se possit.
The defender, however, will always first deny that the deed was done, because if he wins in this part, he does not need to speak of the rest; if defeated, it remains for him to defend himself.
illic quoque, ubi de facto tantum controversia est, quod si probetur non possit de auctore dubitari, similiter argumenta et ex persona et ex re ducuntur, sed in unam facti quaestionem, §7.2.17sicut in illa controversia: (utendum est enim et his exemplis, quae sunt discentibus magis familiaria) abdicatus medicinae studuit.
There also, where the controversy is only concerning the fact, which if proved leaves no doubt about the author, arguments are similarly drawn both from the person and from the thing, but directed toward the single question of the fact, as in that controversy (for we must also use these examples, which are more familiar to learners): a disinherited son studied medicine.
cum pater eius aegrotaret, desperantibus de eo ceteris medicis, adhibitus sanaturum se dixit, si is potionem a se datam bibisset.
When his father was ill and the other doctors despaired of him, being called in, he said he would cure him if he drank a potion given by him.
paler, acceptae potionis epota parte, dixit uenenum sibi datum; filius quod reliquum erat exhausit: pater decessit, ille parricidii reus est.
The father, having drunk part of the potion received, said that poison had been given to him; the son drained what was left; the father died, and the son is accused of parricide.
§7.2.18manifestum, quis potionem dederit, quae si veneni fuit, nulla quaestio de auctore; tamen, an venenum fuerit, ex argumentis a persona ductis colligetur.
It is manifest who gave the potion, which if it was of poison, there is no question about the author; yet whether it was poison will be gathered from arguments drawn from the person.
superest tertium, in quo factum esse constat aliquid, a quo sit factum, quaeritur.
The third case remains, in which it is established that something was done, and it is inquired by whom it was done.
cuius rei supervacuum est ponere exemplum, cum plurima sint huiusmodi iudicia, ut hominem occisum esse manifestum sit vel sacrilegium commissum, is autem, qui arguitur fecisse, neget.
It is superfluous to give an example of this, since there are very many trials of this kind, such as when it is manifest that a man has been killed or sacrilege committed, but he who is accused of doing it denies it.
ex hoc nascitur ἀντικατηγορία; utique enim factum esse convenit, quod duo invicem obiiciunt.
From this arises mutual accusation; for at least it is agreed that the deed was done which the two accuse each other of in turn.