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shall be given in evidence, which does not directly tend to the proof or disproof of the matter in issue. There is in fact no exception to this rule, in criminal cases, although there are certainly some cases which seem to be so. In high treason, by stat. 7 & 8 W. 3. c. 3. s. 8, no evidence shall be admitted or given of any overt act that is not expressly laid in the indictment; yet this does not prevent overt acts not laid, from being given in evidence, if they be direct proof of any of the overt acts which are laid; R. v. Rookwood, 4 St. Tr. 661, 697, Holt, 683, 685. and see 4 St. Tr. 722,731. 6 Id. 282, 284. Fost, 9. 22. R. v. Watson, 2 Stark. 134; and if any one overt act be proved against the defendant in the proper county, acts of treason tending to prove such overt act, though done in a foreign county, may be given in evidence. Fost. 9. 22. 8 St. Tr. 218. 9 Fa. 520. 558-562. 4 Id. 627, 655. 6 Id. 292. 8 Mod. 91. Or if the treason consist of a conspiracy, any act of the defendant's accomplices, done în furtherance of the common design, although not laid as an overt act in the indictment, may be given in evidence, provided it be direct proof of an overt act laid. R. v. Hardy, 1 East, P. C. 98, 99. So, in ordinary cases of conspiracy, acts done by some of the conspirators in the county in which the offence is laid, being proved, acts done by others of the conspirators in other counties may be given in evidence. R. v. Bowes, 4 East, 171 n. And in an indictment against persons for a conspiracy to carry on the business of common cheats, evidence was admitted, of the defendants having made false representations to other tradesmen, besides those named in the indictment. R. v. Roberts, 1 Camp. 400. In R. v. Hunt and others, 3 Barn. & Ald. 566, upon an indictment for conspiring and unlawfully meeting for the purpose of exciting disaffection and discontent among his Majesty's subfects at Manchester, it was holden that the previous conduct of a portion of the assembly, in training, &c. and in assaulting persons whom they called spies, was competent evidence as to the general character and intention of the meeting, although the effect of it as to each particular defendant was a distinct matter for the consideration of the jury. It was also holden, that it was competent to shew, as against Hunt, (who, though a stranger except by political connection, had been invited to preside as chairman at the meeting,) that at a similar meeting in another place, holden for an object professedly similar, certain resolutions had been proposed by that person; it being in its nature a declaration of his sentiments and views on the particular subject of such meetings, and of the topics there discussed. But the court held that evidence of the misconduct of the military and others, in the subsequent dispersion of the meeting, was properly refused by the judge at the trial, as ir. relevant, and having no bearing upon the intention and objects of the meeting, which intention and objects obviously existed

previously to the alleged misconduct of the military, attempted to be given in evidence.

Where a guilty knowledge upon the part of the defendant, is to be proved, the prosecutor is allowed to give in evidence other instances of his having committed the same offence for which he is now indicted. As, for instance, upon an indictment for disposing of and putting away a forged bank note, knowing it to be forged, the prosecutor may give evidence of other forged notes having been uttered by the prisoner, at other times, before or after the commission of the offence for which he is indicted, in order to prove, or at least to raise a presumption of, his knowledge that the note in question was forged. R. v. Wylie, 1 New Rep. 92. R. v. Tattersall, Id. 93 n. So, upon an indictment for uttering counterfeit money, it is competent to the prosecutor to prove that other pieces of such counterfeit money were found upon the defendant, or were uttered by him at different times. Id. 95.

And nearly the same rule applies, where it is requisite for the prosecutor to prove malice upon the part of the defendant. As, for instance, upon an indictment for murder, former attempts of the defendant to assassinate the deceased, would not only be receivable in evidence, but would be very strong presumptive proof of malice prepense. So, for the same reason, former menaces of the defendant, or expressions of vindictive feeling towards the deceased, or in fact the existence of any motive likely to instigate him to the commission of the offence in question, are also in such a case receivable in evidence. In a civil action for defamation, the plaintiff is always allowed, in order to prove the malice of the defendant, to give in evidence other words spoken by the defendant, besides those set out in the declaration; 2 Stark. 457. 1 Camp. 49; and the same, in actions for libel. Peake, N. P. C. 74. 166.

Upon an indictment for a rape, the defendant may give general evidence of the woman's character for want of chastity, or he may prove that she had before been criminally connected with him, but not that she had been criminally connected with others; R. v. Hodgson, 1 Ph. Ev. 190; and the same, upon an indictment with intent to commit a rape. 2 Stark. 243. Upon an indictment for libel, the defendant has been allowed to give in evidence such other parts of the same publication, as were fairly connected with the libel in question, and upon the same topic, in order to disprove the motive imputed to him by the indictment, and to shew the fair construction that should be put upon the passages therein set out. R. v. Lambert & Perry, 2 Camp. 398. And in Horne Tooke's case (1 East, P, C. 31), it being proved upon the part of the prosecution that the defendant had distributed several publications advocating republican principles, and which was offered in evidence in order to induce a presumption that parliamentary reform (which

was expected to be set up by the prisoner in his defence) was a mere pretext to cover his treasonable purposes: the defendant, in order to rebut that presumption, was allowed to give in evidence a book upon parliamentary reform, written by him and published twelve years before.

The prisoner also will be allowed to call witnesses to speak generally as to his character, but not to give evidence of particular actions, unless such evidence tend directly to the disproof of some of the facts put in issue by the pleadings.

The several cases now mentioned, when carefully considered, will be found to be, not exceptions to, but rather illustrations of, the rule above mentioned, namely, that nothing shall be given in evidence, which does not tend directly to the proof or disproof of the matter in issue. In most of them, the evidence admitted, tended directly to the proof of the knowledge or intention of the defendant, at the time of the commission of the offence, and which was a material ingredient in the crime imputed to him. In the case of rape, above mentioned, the evidence tended to shew the great improbability of any resistance upon the part of the woman, and also, that the woman was not entitled to credit as a witness. As to evidence of the defendant's character, it can be of avail only in doubtful cases: where the probabilities of the defendant's guilt on the one side, and the probabilities of his inno cence on the other, are nearly equal, satisfactory testimony as to his general good character for honesty or humanity, may have the effect of raising a well founded presumption in the minds of the jurors, that a man of such a character, could not have been the perpetrator of the larceny or murder im puted to him; and in this sense it may be deemed evidence tending to the disproof of the matter in issue.

Where the offence is stated in general terms in the indictment, as, for instance, where the defendant is indicted as a common barretor or common scold, or for keeping a common gambling house, or bawdy house, (see ante, p. 15) the prose cutor is allowed of course to give evidence of all the particular facts which constitute the offence thus generally stated in the indictment.

CHAPTER II.

The Manner of Proving the Matters put in Issue.

EVIDENCE may be classed under three heads: admissions or confessions, presumptions, and proofs. These we shall consider fully, in the several sections of this chapter. But before we enter into a particular consideration of the subject, it may be necessary first to notice one or two rules relating to evidence generally.

First, it is a general rule, that the best evidence the nature of the case will admit of, must be produced, if it be possible to be had; but if not possible, then the next best evidence that can be had shall be allowed. For if it appear that there is any better evidence existing than that which is produced, the very non-production of it creates a presumption that, if produced, it would have detected some falsehood which at present is concealed. 3 Bl. Com. 368. Gilb. Ev. 16. 1 Show. 397. Carth. 220. Holt, 284. 1 Salk. 281, 3 East, 192. See Arch. Pl. & Ev. 353-357. Therefore, before secondary evidence is offered, a foundation for it must first be laid, by proving that better evidence cannot be obtained. Thus, for instance, the best evidence of the contents of a deed or other written instrument, is the written instrument itself; secondary evidence, a copy, or parol evidence of the contents of the original. Therefore, before a copy of a written instrument, or parol evidence of its contents, can be received as proof, the absence of the original instrument must be accounted for, by proving that it is lost or destroyed, or that it is in the possession of the opposite party.

Records, however, are seemingly an exception to this rule, for they are proved by exemplifications or other copies, in all cases, unless they be records of the court in which they are to be produced, and the matter of record form the gist of the pleading to be proved. This exception has been adopted from necessity; requiring the record itself to be given in evidence, would be productive of great inconvenience, for it probably might be wanted for that purpose in several parts of the kingdom, at the same time; besides, by removing it from the place in which it was deposited, there would necessarily be great danger of its being lost. Gilb. Ev. 7, 8. For the same reasons, journals of the house of lords, or house of commons, -a bill, answer, depositions, and decree in equity, in most

cases,-libel, answer, depositions, &c. in the ecclesiastical and admiralty courts, in most cases,-the rolls of a court baron, and other inferior courts,-parish registers—entries in corporation books, or the books of public companies, relating to things public and general,-may all be proved by copies.

When the copy of a document, (the document itself not being evidence at common law), is made evidence by act of parliament, a copy must be produced; the original is not made admissible evidence by implication. 2 Camp. 121 n.

Where a written instrument is in the hands of the opposite party, it is necessary to serve him or his attorney with a notice to produce it; and if he do not produce it at the trial, in pursuance of the notice, then, upon proving the service of the notice, you will be allowed to give secondary evidence of its contents. The rule in this respect is the same in criminal as in civil cases. 2 T. R. 201 n. But in cases where the nature of the pleading gives sufficient notice to the defendant of the subject of inquiry, so that he may prepare himself to produce the written instrument, if necessary, for his defence, a notice to produce it is not required: thus, for instance, it has been holden that, in trover for a bond, the plaintiff may give parol evidence of it, to support the general description of it in the declaration, without having given the defendant previous notice to produce it. How v. Hall, 14 East, 274. So, upon an indictment for stealing a bill of exchange, parol evidence of it was admitted, without a notice to produce it. R. v. Aickles, 1 Leach, 330. So, upon an indictment for administering an unlawful oath, where it appeared that the defendant read the oath from a paper, parol evidence of what the defendant in fact said, was holden to be sufficient, without giving him notice to produce the paper. 6 East, 421. So, where a seditious meeting came to certain resolutions, and the defendant, who was chairman, gave a copy of these resolutions to another person, it was holden that this copy might be given in evidence, without a notice to produce the original. R. v. Hunt, 3 Barn, & Ald. 566. In the same case, it was also holden that it was not necessary to produce or account for banners bearing certain inscriptions, &c. exhibited at such meeting, but that parol evidence of such matters, by eye witnesses, was perfectly admissible to shew the general character and intention of the assembly. Id. See Arch. Pr. B. R. 149.

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Secondly, it is a general rule that hearsay is no evidence and for two reasons: what the other person said, was not upon oath; and the party who is to be affected by it, had no opportunity of cross examining him. Gilb. Ev. 149. To this rule, however, there are some exceptions, arising from necessity: 1. Hearsay is admissible to prove the death of a person beyond sea; Bul. N. P. 294. 15 East, 293.-2. Hearsay is good evidence to prove a prescription, Bul. N. P. 295, or custom, 14

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