According to Hobhouse, evidence is not only due to the need of testing the suspect but also to prevent the reactions of the group against him. Therefore, some sort of evidence counts in the determination of crime in almost all the primitive societies. In some tribes evidence is mostly gathered through religious and magical practices.

Therefore, direct evidence is not always necessary. This evidence may be in the form of oath or ordeal. In the former case different methods are adopted in different tribes. For example among Crow tribe the suspect repeats some words of oath, taking the sun as a witness and keeping a knife in the mouth.

In Samoid tribe the oath is taken keeping one hand on the nose of a pig. Among Negroes of Africa an oath is taken keeping one hand on the forehead of the chief of the group. In Kirgiz tribe the suspect has not to take an oath to prove his innocence but such oath is taken by some other person intimately connected with him.

The reason for this custom is that few persons would like to risk the life of their dear ones since a false oath may cause the wrath of the supernatural power.

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Similarly, a variety of customs may be found in the ordeal test of evidence. In Chukchi tribe, the two persons fighting with another are required to compete to decide about the offender and the looser is the offender.

In Ifugao tribe both the plaintiff and the defendant have to put hands in boiling water to prove their innocence. Any one who does it in haste or whose hand is hurt is declared offender. In Ewy tribe of Africa boiling water is poured over the head of the suspected person. If he tolerates it without flinching he is declared innocent.

It may be observed that in most of the ordeal tests, the natural result is the establishment of crime unless by chance or by some unknown reasons the offender comes out unhurt. By the natural laws the suspect must be hurt.

If he is not hurt it is presumed to be due to the interference of some supernatural power. This is hardly scientific but is based upon a faith in the moral order in Nature. It is possible that in most of the cases the suspect is declared criminal through the ordeal test. The tests by oath are certainly better and more humane.

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Criminal intent or motive

A criminal is not only punished for his action but more for his intention or motive. Without intention or motive so many wrong acts are left without much punishment since responsibility goes with intention. If by mistake a person kills another or does it in self-defence he is not punished.

On the other hand, if criminal intent is proved severe punishment is awarded. In primitive societies, however, criminal intent or motive is not very important. They believe that if a crime goes unpunished the supernatural power may punish the whole group for it.

Therefore, every rule and regulation is considered sacred and the supernatural power punishes the criminal. An interesting example has been given by Goddard concerning Hupa tribe in this connection.

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A woman prepared fire to heat water to wash clothes. A child entangled in the fire, was burnt and died. Though there was no intent on the part of the woman, even then she had to sacrifice the life of her son in exchange.

In the Jaggy tribe the intent is meaningless in the case of murder. It is considered necessary that blood must flow in return for blood since it is believed that the soul of the murdered person thirsts for revenge. Therefore, it is necessary that the murderer must be given death punishment, otherwise the murdered soul will seek revenge from the whole group.

Though it is true that intent is not very important in the consideration of punishment, in tribal society, however, this does not mean that it is not considered relevant anywhere. For example, in Ifugao tribe distinction is made between willful and accidental actions in order to decide responsibility.

If the crime is due to carelessness or willful action, the criminal is invariably punished. On the other hand, if the action is accidental, the accused is not punished even if he has caused loss to other. For example, if by accident the eyes of a person are injured by another, no compensation is demanded.

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On the other hand, if a person shoots an arrow and it kills a boy passing on the way, the person concerned has to pay half of the usual fine fixed for a murder, since the death is not by intent but by carelessness. Similarly, if mistaking a person as an enemy, someone kills him, he has to pay the fine since the crime is due to carelessness. However, there is one occasion when intent is disregarded in punishment in Ifugao tribe. If some mishap occurs in a grand feast, the host and the priest are held responsible for it.

The host is held responsible since if he had not given the feast, there would not have been any mishap. The priest is guilty since it is believed that the mishap has happened due to some error in the performance of religious rites and the consequent sin. In Bantu tribe each murder is a crime, whether it is by intent or otherwise.

The murderer has to pay compensation to the chief of the group since an active member of the group has been lost, which is represented by the chief. On the other hand, if a person has incurred monetary loss due to some individual, it is not considered a crime and no compensation has to be paid. In this example the crime is considered a wrong act against the group. A wrong act against an individual is not a crime requiring punishment.